COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 10, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0052
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DONALD DREIER, JANA
DREIER and
RURAL SECURITY LIFE
INSURANCE COMPANY,
Plaintiffs,
v.
WISCONSIN CENTRAL
LTD.,
Defendant-Third Party
Plaintiff-Appellant,
v.
TOWN OF HERMAN,
WISCONSIN and
MILWAUKEE GUARDIAN
INSURANCE INC.,
Defendants-Third Party Defendants-
Third Party Plaintiffs,
PHILLIP TRINKO,
Defendant-Third Party Defendant-
Third Party Plaintiff-Co-Appellant,
PHILLIP TRINKO, JANET
TRINKO and
EMPLOYERS HEALTH
INSURANCE COMPANY,
Counter Claimants,
WISCONSIN CENTRAL
LIMITED,
Counter Defendant,
WILLIAM OVANS and
PELLA FARMERS
MUTUAL INSURANCE
COMPANY,
Third Party Defendants-Respondents.
APPEAL from orders and a
judgment of the circuit court for Shawano County: THOMAS G. GROVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Wisconsin Central Ltd. and Phillip Trinko appeal a
summary judgment that dismissed their third-party complaint against William
Ovans and his liability insurer, Pella Farmers Mutual Insurance Company. A passenger in Trinko's car sued Trinko and
Wisconsin Central for the injuries he suffered when Trinko's car collided with
a Wisconsin Central freight train.
Trinko filed a third-party claim against Ovans asserting that he
negligently failed to cut trees, shrubs, and other vegetation on his land and
that the vegetation obstructed motorists' views of the railroad crossing. Wisconsin Central later filed a cross-claim
against Ovans making the same basic charges.
On summary judgment, the
trial court ruled that the highway-obstructing vegetation constituted a natural
condition and that landowners like Ovans had no common law duty to rectify such
natural conditions. The trial court
granted Ovans a time extension for answering Trinko's third-party
complaint. The trial court refused,
however, to permit Trinko to later amend his third-party complaint against
Ovans to allege that a fence on Ovans' land amidst the vegetation transformed
the highway obstructing vegetation from a liability free natural condition into
a liability carrying unnatural condition.
The trial court considered the amendment futile, holding that Ovans'
capacity as fence owner would not have transformed the vegetation from a
natural condition into an unnatural one.
The trial court
correctly granted summary judgment if Ovans showed no dispute of material fact
and a right to judgment as a matter of law.
See Powalka v. State Mut. Life Assur. Co., 53
Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972).
On appeal, Trinko and Wisconsin Central together raise four basic
arguments: (1) private landowners like
Ovans have a common law duty to cut highway obstructing vegetation; (2) the
trial court improperly granted Ovans a time extension for filing his answer to
the third-party complaint; (3) Ovans' status as fence owner made the vegetation
a liability carrying unnatural condition; and (4) the trial court should have
permitted amendment of Trinko's third-party complaint. We reject these arguments and therefore
affirm the trial court's orders.
We first conclude that
Ovans enjoyed common law immunity from civil liability. We read Wells v. Chicago & North
Western Transp. Co., 98 Wis.2d 328, 296 N.W.2d 559 (1980), to
acknowledge such immunity in the context of interpreting § 195.29(6), Stats.
Although the statute requires landowners to cut brush, the Wisconsin
Supreme Court ruled that the statute imposed no civil liability. The court also stated that the common law at
the statute's enactment had exempted landowners from civil liability for the
natural condition of the land. Id.
at 337-39, 296 N.W.2d at 563-64. Taken
together, these statements seem to endorse continued common law immunity. Although the Wells court later
seemed to retreat from this position, reserving a decision on whether uncut
brush was common law negligence, see id. at 344, 296
N.W.2d at 567, we read Wells as leaving common law immunity
intact. As a result, Ovans' common law
immunity against landowner liability continued unabated against Trinko's
third-party complaint. We note that the
Restatement and other states
continue to apply the same principle of common law immunity. See, e.g., Nichols v. Sitko,
510 N.E.2d 971 (Ill. App. 1987); Fritz v. Parkison, 397 N.W.2d
714 (Iowa 1986); Stevens v. Drekich, 443 N.W.2d 401 (Mich. App.
1989); see also Restatement
(Second) of Torts § 363 at 258 (1964).
Further clarification must come from the Wisconsin Supreme Court.
We also conclude that
the trial court correctly extended the time for Ovans to answer the third-party
complaint. Trial courts have wide
ranging discretion to deny or vacate default judgments that impose liability on
extralegal causes of action. Davis
v. City of Elkhorn, 132 Wis.2d 394, 399, 393 N.W.2d 95, 97 (Ct. App.
1986). The legislature never intended
default judgments to impose liability on nonexistent causes of action. This casts in a different light the degree
of excusable neglect some default judgment litigants must show in order to set
aside such judgments. Here, common law
immunity stood as an absolute bar to Ovans' civil liability. Under the circumstances, the trial court
properly withheld a default judgment that would have imposed real legal
liability on an extralegal cause of action.
We also see no countervailing factors that might conceivably justify
some other outcome. Trial courts should
not grant default judgments that they know they must ultimately vacate. See Johns v. County of Oneida,
201 Wis.2d 600, 608-09, 549 N.W.2d 269, 271 (Ct. App. 1996).
Last, the trial court
had a solid discretionary basis to bar Trinko from amending his third-party complaint. Trinko wanted to claim that Ovans created a
hazardous condition by maintaining a fence in the municipality's
right-of-way. The trial court's
decision was discretionary. Village
of Sister Bay v. Hockers, 106 Wis.2d 474, 481-82, 317 N.W.2d 505, 508-09
(Ct. App. 1982). Here, the trial court
correctly exercised its discretion over its own case docket. Trinko's motion fell outside the trial
court's scheduling order deadlines by seven months. It also sought a nine-month extension. Litigants have a duty to meet scheduling orders, and the trial
court could rationally rule that Trinko supplied no good cause for a nine-month
extension. Moreover, the amendment did
not provide a bona fide cause of action.
Its focus on fence ownership would not have defeated Ovans' common law
immunity. The fence did not cause the
vegetation or prevent its removal.
Under such circumstances, Ovans' fence owner capacity did not transform
the site into a liability carrying unnatural condition. In sum, Ovans' common law immunity continued
unabated despite his fence ownership.
By the Court.—Orders
and judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.