Totsky v. Riteway Bus Service, Inc.

ANN WALSH BRADLEY, J.

¶ 73. (dissenting). In its examination of the stop sign statute, Wis. Stat. § 346.46(1), the majority thwarts the plain meaning canon of statutory construction. Its interpretation gives the stop sign statute a plain meaning that permits excused violations based on emergency without any language supporting the imputed interpretation. Additionally, the majority errs in overlooking the law that we must apply when reviewing the circuit court's grant of a new trial in the interest of justice.

¶ 74. The majority's interpretation is primarily accomplished not by examining the words of Wis. Stat. § 346.46(1), but by analogizing the stop sign statute to a starkly different statute. The only common thread weaving Wis. Stat. § 346.46(1) and Wis. Stat. § 346.05(1) is the classification of both as safety stat*417utes. The majority would have such statutes treated identically for all conceivable purposes. Yet, it fails to discern that by doing so, it has violated legislative intent as expressed in the clear and unequivocal wording of Wis. Stat. § 346.46(1).

¶ 75. Not all safety statutes are of the same breed. Some provide for the excuse of negligence "conclusively determined" by their violation, while others do not. W. Page Keeton, The Law of Torts 230 (5th ed. 1984). The most instructive guide in determining whether an excuse exists remains the wording of the statute. The majority concedes the need to find a stated excuse in the wording of the statute and cites to the Restatement and other treatises as authority for that premise.1 Majority Op. ¶¶ 29-31. In interpreting Wis. Stat. § 346.46(1) to permit the application of the emergency doctrine to its violation, however, the majority fails to explain the unmistakable absence of an emergency excuse from the text of the stop sign statute.

*418¶ 76. Wisconsin Stat. § 346.46(1) is not amenable to the application of the emergency doctrine. The plain language provides:

Except when directed to proceed by a traffic officer or traffic control signal, every operator of a vehicle approaching an official stop sign at an intersection shall cause such vehicle to stop before entering the intersection and shall yield the right-of-way to other vehicles which have entered or are approaching the intersection upon a highway which is not controlled by an official stop sign or traffic signal.

Likewise, subsections (2m)-(4) are silent as to any excused transgression, based on emergency, of the duty to stop at school crossings, railroad crossings, and temporary stop signs.

¶ 77. In the absence of expressed words allowing an excuse in emergency situations, the plain language of Wis. Stat. § 346.46(1) must be construed not to provide such an excuse. Restatement (2d) Torts, § 288(A). See also Ball v. District 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984) (legislature presumed to have known the import of the words it has chosen). No deviation from the duty imposed by the statute may then be excused by a claim of emergency. Indeed, this court has previously interpreted the plain language of Wis. Stat. § 346.46(1) as imposing an absolute duty to obey a stop sign. Sailing v. Wallestad, 32 Wis. 2d 435, 441,145 N.W.2d 725 (1966).

¶ 78. The legislative history of the stop sign statute supports this interpretation. As originally enacted, the stop sign statute required all vehicles to "come to a full and complete stop within thirty feet of the near limits of an intersection at which has been erected an official stop sign or traffic signal." Wis. Stat. § 85.69 *419(1929). The text of the statute did not provide for an exception based on emergency.

¶ 79. An amendment in 1943 broadened the requirement to stop at a stop sign to include any "device" transporting persons or property upon a public highway. Ch. 152, Laws of 1943. Again, no excuse to the duty of absolute compliance was provided in the text of the statute.

¶ 80. Wisconsin Stat. § 346.46 replaced the former Section 85.69 in 1957 and added language permitting a traffic officer or traffic control signal to direct cars into intersections. § 1, ch. 260, Laws of 1957. Additionally, the revised and renumbered statute required drivers to stop either at the stop line or before entering the crosswalk, rather than providing a range of 30 feet within which to make a stop.

¶ 81. The statute intended that "a stop must under all circumstances be made at a point where the operator of a vehicle can efficiently observe traffic on the intersecting roadway before entering such intersecting roadway." Legislative Council Note, 1957 S.B. 99 (emphasis added). Yet again, no provision was made for an excuse based on emergency, although the emergency doctrine had become a prominent feature in the law of this state and dated back to 1915. See Parkes v. Lindenmann, 161 Wis. 101, 151 N.W. 787 (1915); Siegl v. Watson, 181 Wis. 619, 195 N.W. 867 (1923). See also Basile v. City of Milwaukee, 250 Wis. 35, 38, 26 N.W.2d 168 (1947) (noting that "[t]he emergency doctrine is of course well established.").

¶ 82. The majority nonetheless misinterprets the statutory language while discounting precedent in an attempt to capture the legal reasoning of LaVallie v. General Ins. Co., 17 Wis. 2d 522, 117 N.W.2d 703 (1962), and apply it to the statutory violation at issue *420in this case. In an expansion of the holding in LaVallie, the majority transposes the application of the emergency doctrine from a statute that provides for emergency exceptions to a remarkably dissimilar statute that, by its very words, does not permit the application of the doctrine.

¶ 83. The statute in LaVallie governing roadway position requires that the operator of a vehicle "shall drive on the right half of the roadway and in the right-hand lane of a 3-lane highway, except" when a number of excused conditions exist.2 These excused conditions encompass emergency situations, as implied in sub. (d) and confirmed by the Wisconsin Jury Instructions. Wis JI — Civil 1135 and 1140. Although the court in LaVal-lie determined that the emergency doctrine applied to relieve a driver of negligence per se in the violation of Wis. Stat. § 346.05(1), LaVallie does not stand for the *421broad proposition that the emergency doctrine excuses all negligence per se, including violations of absolute statutory duties.3

¶ 84. As discussed, the stop sign statute does not provide for an excused violation on the basis of an emergency situation. Likewise, the jury instructions make no mention of potential excuses, emergency or otherwise. Wis JI — Civil 1325 and 1325A. Yet the majority relies upon the narrow language, "[ejxcept when directed to proceed by a traffic officer or a traffic control signal" and analogizes these two narrow circumstances to the numerous exceptions contained within Wis. Stat. § 346.05(1). Since both statutes list exceptions, the majority opines that the stop sign statute is not "immutable" and is thus subject to the emergency doctrine. Majority Op. at ¶ 33.

¶ 85. The majority fails to discern the fundamental differences in the nature of those exceptions. In essence, the narrow circumstances in Wis. Stat. § 346.46(1) permit a traffic officer or traffic signal to assume the driver's duty to efficiently observe traffic on the intersecting roadway before proceeding into the *422intersection. See Kraskey v. Johnson, 266 Wis. 201, 207, 63 N.W.2d 112 (1954) (legislative purpose behind stop sign statute not confined to duty of stopping but also extends to duty of observation); Majority Op. at ¶ 36 (recognizing the three-tiered duty underlying Wis. Stat. § 346.46(1)).

¶ 86. The limited exceptions of Wis. Stat. § 346.46(1) do not address emergency conditions. The driver still has a duty to obey the traffic officer or control signal. In the absence of guidance from either, every driver of a vehicle shoulders the driver's own duty to stop, observe, and then proceed.

¶ 87. In contrast, one of the several exceptions listed under the statute governing roadway position specifically provides for discharge from the duty to maintain proper roadway position when the driver encounters obstacles on the road. Wis. Stat. § 346.05(l)(d). These obstacles may include emergency conditions such as an unexpected cloud of dust or a sudden mechanical failure. As the Comments to Wis JI — Civil 1135 and 1140 reveal, there are numerous emergency exceptions to a requirement of driving in the right lane or right side of the road.

¶ 88. Because of the essential distinctions between the exceptions provided under each statute, the majority is misguided in justifying the application of the emergency doctrine to the stop sign statute. Its result is in direct contravention of the plain meaning of Wis. Stat. § 346.46(1), which creates an absolute duty of compliance.

¶ 89. The majority errs in its wholesale transfer of LaVallies legal reasoning in light of the significant differences between the statutes. A better candidate for statutory comparison is the crosswalk statute presented in Edwards v. Kohn, 207 Wis. 381, 241 N.W. *423331 (1932), which this court has interpreted as creating an absolute duty.

¶ 90. In Edwards, the plaintiff was struck by a vehicle that was unable to stop due to slippery road conditions. At the time, the plaintiff was crossing an intersection within a marked crosswalk. Wisconsin Stat. § 85.44(1) governed the action and provided that "[t]he operator of ány vehicle shall yield the right of way to a pedestrian crossing the highway within any marked or unmarked crosswalk at an intersection except at those intersections where the movement of traffic is being regulated by traffic officers or traffic control signals." Id. at 385.

¶ 91. The Edwards court refused to entertain the defendant's contention that the jury should have been instructed as to whether he had acted reasonably under the circumstances in violating the statute. Instead, the court determined that the defendant had an absolute duty to yield to the plaintiffs right of way, a duty not excusable by the showing of reasonable action in the face of inclement weather conditions. Id.

¶ 92. The statute at issue in Edwards closely parallels the stop sign statute and provides identical exceptions. Both impose an absolute duty of compliance that may not be excused by the emergency doctrine. Although the label of the emergency doctrine was not directly invoked in Edwards, the rationale of the doctrine is the essence of the case. The defendant proposed jury instructions seeking excuse because of the existence of slippery road conditions, and yet the court determined that he had an absolute duty to yield that was not mitigated by severe weather conditions.

¶ 93. The majority and the concurrence suffer from the same infirmity: the failure to recognize that Wis. Stat. § 346.46(1) imposes an absolute duty to *424which excuses of emergency do not apply. In its call to wholly abandon the doctrine of negligence per se and the emergency doctrine, both of which have become entrenched in the law of this state, the concurrence obscures the actual reason why the emergency doctrine serves no purpose in analyzing the statutory violation before us.

¶ 94. Essentially, the concurrence urges the adoption of a more relaxed rebuttable presumption standard for violations of safety statutes to replace negligence per se. Following the suggestion of the concurrence would mean that rather than negligence being "conclusively determined" by a statutory violation, negligence would remain only tentative until the defendant failed to meet the burden of production establishing that he or she acted reasonably under the circumstances. Concurring Op. at ¶ 70.

¶ 95. As a result, not only may courts consider emergency conditions as in this case to excuse a statutory violation, but courts may also consider a myriad of other factors and circumstances surrounding the statutory violation. Id. The violation of an absolute duty set forth in a safety statute warrants a stricter standard than the one contemplated by the concurrence.

¶ 96. The concurrence makes repeated references to Professor Richard Campbell to support shelving the emergency doctrine for both common law negligence and negligence per se. Yet, there is no intimation that Professor Campbell advocates the abandonment of negligence per se that would result from an adoption of the rationale of the concurrence. To the contrary, Campbell's cited text recognizes the integral role that negligence per se plays in violations of automobile safety statutes, such violations being commonplace. Campbell, Recent Developments of Tort Law *425in Wisconsin, Institute of Continuing Legal Education, CLEW, 83-85 (1969).

¶ 97. In its approval of Barnum v. Williams, 504 P.2d 122 (Or. 1972), the concurrence also errs, by embracing the rationale of a court that has been subject to criticism for introducing chaos into the law of negligence. See Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What's the Difference?, 77 Or.L.Rev. 497 (1998). The state of confusion engendered by Oregon common law as it relates to liability for statutory violations has evoked an appeal to the legislature for clarifying guidelines to remedy the confusion. Id. at 532-34. By advocating the abandonment of well-established doctrines in exchange for an approach with uncertain legal vitality, the concurrence needlessly sacrifices too much.

¶ 98. In this case, after apparently applying the emergency doctrine, the jury concluded that inclement weather resulting in slippery roads created an emergency that excused the duty to stop at a stop sign. It found that neither party was negligent.

¶ 99. Yet, as between two "innocent" parties, the absolute duty imposed by the legislature necessarily breaks the tie. The plain language of the stop sign statute as supported by the legislative history allows no excuses for emergencies. In the face of an absolute duty, the legislature gives the benefit to the innocent party not violating a safety statute, while holding the violator accountable. Both the majority and the concurrence fail to apply the absolute duty expressed in Wis. Stat. § 346.46.

¶ 100. The majority's error in this case is not limited to its disregard of the absolute duty imposed by the stop sign statute but also extends to its refusal to honor the circuit court's grant of a new trial in the interest of *426justice. Unlike a review of a directed verdict, in which we seek to uphold the jury's findings, on review of the grant of a new trial in the interest of justice we seek reasons to sustain the circuit court's findings and conclusions. Krolikowski v. Chicago & N.W. Transp. Co., Inc., 89 Wis. 2d 573, 580, 278 N.W.2d 865 (1979).

¶ 101. . Because of the broad discretion vested in the circuit court, a reversal is warranted only in the erroneous exercise of its discretion. Id. If the court offers several grounds for granting a new trial in the interest of justice, only one need be reasonable or sufficient to sustain the contention that the court did not erroneously exercise its discretion. Loomans v. Milwaukee Mut. Ins. Co., 38 Wis. 2d 656, 662, 158 N.W.2d 318 (1968).

¶ 102. In granting the new trial, Judge Skwier-awski expressed his unequivocal opinion that the jury had erred in absolving the defendants of negligence. He ordered the trial on two distinct grounds: 1) the emergency doctrine does not apply to excuse negligence per sé in the violation of the stop sign statute and 2) the emergency doctrine does not apply because the bus driver had created her own emergency. Majority Op. at ¶¶ 46-47.

¶ 103. As to the first ground, the majority's conclusion that the circuit court misapprehended the law of the emergency doctrine justifies reversal under its holding. However, Judge Skwierawski's alternate ground for granting a new trial does not warrant reversal, but rather mandates our deference.

¶ 104. The majority notes that the second ground also constitutes an erroneous exercise of the circuit court's discretion, because a reasonable jury could have concluded that the bus driver did not create her own emergency. Majority Op. at ¶ 47. In doing so, the *427majority completely overlooks the law in this regard, which requires a reviewing court to look for reasons to sustain the circuit court. Bartell v. Luedtke, 52 Wis. 2d 372, 377, 190 N.W.2d 145 (1971).

¶ 105. Additionally, the majority avoids mentioning the court of appeals' determination that a reasonable jury may have also agreed with Judge Skwierawski in finding the bus driver negligent for creating her own emergency. Totsky v. Riteway Bus Serv., 220 Wis. 2d 889, 905, 584 N.W.2d 188 (Ct. App. 1998). The court of appeals thus acknowledged the reasonable basis underlying the circuit court's conclusion.

¶ 106. The facts in this case do not present uncontroverted evidence that the driver of the bus was free of any negligence in creating her own emergency. The driver had previously skidded twice on ice, and she had been aware of the slippery road conditions. Based on her knowledge and past experience, the speed of 10 to 16 miles per hour may indeed have been excessive. The circuit court's conclusion was thus not without a reasonable basis, and its grant of a new trial in the interest of justice should be sustained. By reversing the order, however, the majority fails to afford due deference to the discretionary authority of the circuit court.

¶ 107. In sum, the majority violates the plain meaning of the stop sign statute by approving the application of the emergency doctrine. It also overlooks the deference afforded by an appellate court to a circuit court's discretion when granting a new trial in the interest of justice. Accordingly, I dissent.

¶ 108. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE DAVID T. PROSSER join this dissent.

In particular, the Restatement (Second) of Torts § 288(A) provides:

(1) An excused violation of a legislative enactment or an administrative regulation is not negligence.
(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor's incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted with an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.

(Emphasis supplied.)

Wis. Stat. §346.05 has remained substantially intact since it was addressed in LaVallie and reads in pertinent part:

(1) Upon all roadways of sufficient width the operator of a vehicle shall drive on the right half of the roadway and in the right-hand lane of a 3-lane highway, except:
(a) When making an approach for a left turn under circumstances in which the rules relating to left turns require driving on the left half of the roadway; or
(b) When overtaking and passing in circumstances in which the rules relating to overtaking and passing permit or require driving on the left half of the roadway; or
(c) When the right half of the roadway is closed to traffic while under construction or repair; or
(d) When overtaking and passing pedestrians, animals or obstructions on the right half of the roadway; or
(e) When driving in a particular lane in accordance with signs or markers designating such lane for traffic moving in a particular direction or at designated speeds; or
(f) When the roadway has been designated and posted for one-way traffic, subject, however, to the rule stated in sub. (3) relative to slow moving vehicles.

The LaVallie court also applied the emergency doctrine to excuse the violation of Wis. Stat. § 346.34(1) (1961), which read in relevant part:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway. . .or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

This statutory section has remained substantively the same and requires that the driver deviating from a direct course exercise ordinary care. Wis JI — Civil 1354. Thus, this statutory duty also differs from the absolute duty imposed by the stop sign statute.