LRB-2039/1
PJH:jld:jf
2011 - 2012 LEGISLATURE
June 10, 2011 - Introduced by Senators Grothman, Galloway, Lasee and Lazich,
cosponsored by Representatives
Jacque, Brooks, Bernier, Kaufert, Knudson,
LeMahieu, Litjens, Spanbauer, Strachota, Vos and Weininger. Referred to
Committee on Judiciary, Utilities, Commerce, and Government Operations.
SB125,1,3
1An Act to repeal 893.83 (title) and 893.83 (2); and
to renumber and amend
2893.83 (1) of the statutes;
relating to: liability of cities, villages, towns, and
3counties for damages caused by an insufficiency or want of repair of a highway.
Analysis by the Legislative Reference Bureau
Under current law, cities, villages, towns, and counties are immune from claims
arising out of the performance of a discretionary duty, or duty that requires a
governmental entity to use judgment or discretion in carrying out the duty. Cities,
villages, towns, and counties are liable for damages of up to $50,000 arising out of
the performance of a nondiscretionary duty.
Also under current law, cities, villages, towns, and counties are liable for
damages of up to $50,000 to a person or property resulting from an insufficiency or
want of repair of a highway, which includes shoulders, sidewalks, and bridges.
Cities, villages, towns, and counties are also liable for damages resulting from the
accumulation of snow or ice that has existed on a highway for at least three weeks.
The Wisconsin Supreme Court in Morris v. Juneau County, 219 Wis. 2d 544
(1998), held that the statutory provision imposing liability on cities, villages, towns,
and counties for highway defects is an exception to the more general provision
granting immunity to cities, villages, towns, and counties from liability arising out
of the performance of discretionary duties.
Finally, under current law, if the negligence or deliberate wrongdoing of a
person contributes to the creation of a highway defect that results in damages to a
person or property, the negligent or wrongdoing person is primarily liable and the
city, village, town, or county is secondarily liable only if the negligent person or the
person who committed the wrongdoing does not satisfy the judgment, and the city,
village, town, or county is otherwise liable for the damages.
This bill eliminates the specific immunity exception under which cities,
villages, towns, and counties may be held liable for an insufficiency or want of repairs
of a highway. This bill does not affect the immunity exception under which cities,
villages, towns, and counties may be held liable for damages of up to $50,000 for the
accumulation of snow or ice that has existed on a highway for at least three weeks.
The bill also eliminates secondary liability for cities, villages, towns, and counties.
For further information see the local fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB125, s. 1
1Section
1. 893.83 (title) of the statutes is repealed.
SB125, s. 2
2Section
2. 893.83 (1) of the statutes is renumbered 893.83 and amended to
3read:
SB125,3,11
4893.83 Damages caused by highway defects accumulation of snow or
5ice; liability of municipality
city, village, town, and county. If damages
6happen to any person or his or her property by reason of the insufficiency or want of
7repairs of any highway that any town, city, or village is bound to keep in repair, the
8person sustaining the damages has a right to recover the damages from the town,
9city, or village. If the damages happen by reason of the insufficiency or want of
10repairs of a highway that any county by law or by agreement with any town, city, or
11village is bound to keep in repair, or that occupies any land owned and controlled by
12the county, the county is liable for the damages and the claim for damages shall be
13against the county. If the damages happen by reason of the insufficiency or want of
14repairs of a bridge erected or maintained at the expense of 2 or more towns, cities,
15villages, or counties, the action shall be brought against all of the towns, cities,
16villages, or counties that are liable for the repairs of the bridge. Upon recovery of
1judgment, the damages and costs shall be paid by the towns, cities, villages, or
2counties in the proportion in which they are liable for the repairs. The court may
3direct the judgment to be collected from each town, city, village, or county for its
4proportion only. The amount recoverable by any person for any damages so
5sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to
6the commencement of actions brought under this subsection. No action may be
7maintained
against a city, village, town, or county to recover damages for injuries
8sustained by reason of an accumulation of snow or ice upon any bridge or highway,
9unless the accumulation existed for 3 weeks.
Any action to recover damages for
10injuries sustained by reason of an accumulation of snow or ice that has existed for
113 weeks or more upon any bridge or highway is subject to s. 893.80.
SB125, s. 3
12Section
3. 893.83 (2) of the statutes is repealed.
SB125,3,1514
(1) This act first applies to actions arising on the effective date of this
15subsection.
