COURT OF APPEALS DECISION DATED AND FILED November 16, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL
from judgment of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Keith A. Nordgulen appeals from a judgment entered following a bench trial at which the circuit court determined that he was sixty-five percent negligent and that John L. Digaudio was thirty-five percent negligent in a motor vehicle accident. The circuit court ordered judgment in favor of Digaudio’s insurer, American Family Mutual Insurance Co., and dismissed Nordgulen’s counterclaim. We affirm.
BACKGROUND
¶2 This appeal arises out of a subrogation action filed against Nordgulen by American Family Mutual Insurance Co. to recover monies paid to its insured, Digaudio, for property damage he incurred in a two-vehicle accident. Nordgulen filed a counterclaim alleging that he sustained personal injuries and damage to his motorcycle.
¶3 We take the facts from the testimony presented at the bench
trial. In the late afternoon of July 25,
2006, Digaudio was driving his car southbound in the right-hand lane on
¶4 At the same time, Nordgulen was riding a motorcycle
northbound on
¶5 Laurel Mazur testified that she was in a vehicle two car lengths behind Nordgulen facing north when Nordgulen prepared to turn left into the intersection. She testified that she saw Nordgulen begin to turn when Digaudio’s vehicle was four car lengths from the intersection. As Nordgulen turned, Digaudio drove into the intersection and they collided.
¶6 The circuit court found that Digaudio was driving within the speed limit in a lawful travel lane, but that he was thirty-five percent causally negligent by driving too fast for the congested traffic conditions. The circuit court found that Nordgulen was sixty-five percent causally negligent by failing to yield the right-of-way when he made a left turn in front of traffic and by failing to maintain an adequate lookout. The parties stipulated to the amount of Digaudio’s damages. The circuit court entered judgment in favor of American Family Mutual Insurance Co. for sixty-five percent of the stipulated amount and dismissed Nordgulen’s counterclaim. See Wis. Stat. § 895.045 (2007-08).[1] Nordgulen appeals.
DISCUSSION
¶7 Nordgulen asserts that this appeal involves nine issues that require us to determine whether the circuit court “adopt[ed] ... appropriate legal standard[s]” for assessing Digaudio’s driving. He does not, however, identify a standard that he believes the circuit court adopted, nor does he identify a standard of review for this court to apply.
¶8 We are not bound by the manner in which a party frames the
issues. See Travelers Indem. Co. of Ill. v. Staff Right, Inc., 2006 WI App
59, ¶8, 291
¶9 Nordgulen argues that the traffic sign on 60th Street showing that the right lane ends gave notice to southbound drivers of a legal requirement to merge into the left lane. We disagree.
¶10 Pursuant to Wis. Stat. § 84.02(4)(e),
a uniform system of signs and other traffic control devices by adopting
a manual, namely, Fed. Highway Admin., Manual
on Uniform
Traffic Control Devices (MUTCD). See Harmann v. Schulke, 146
Wis. 2d 848, 853-54, 432 N.W.2d 671 (Ct. App. 1988); see also
Wisconsin Manual on Uniform Traffic
Control Devices at 4 (http://mutcd.fhwa.dot.gov/pdfs/2003/pdf-index.htm)
(last visited October 11, 2010) (reflecting that the 2003 edition of the MUTCD
and a 2005 Wisconsin supplement were in effect in Wisconsin on the date of the
accident at issue here).[2] The design and use of signs and other traffic
control devices in
¶11 The MUTCD
distinguishes between regulatory signs and warning signs. “Regulatory signs give notice of traffic laws
or regulations.” MUTCD, § 2A.05. Such signs “inform road users of selected
traffic laws or regulations and indicate the applicability of the legal
requirements.”
¶12 The design of regulatory signs and warning signs is
standardized. Regulatory signs are
generally rectangular. See id., § 2B.02. By contrast, “[a]ll warning signs shall be
diamond-shaped (square with one diagonal vertical) with a black legend and
border on a yellow background.”
¶13 No dispute exists that the sign on 60th Street showing that the right lane ends was diamond-shaped, with a black legend and border on a yellow background. Thus, we must apply the provisions of the MUTCD to the undisputed facts. We conclude that the diamond-shaped sign did not serve to give notice of an applicable traffic regulation or other legal requirement. Rather, the sign served to warn drivers of a condition that “might call for ... an action.” MUTCD, § 2C.01.
¶14 Further, no dispute exists that on the day of the accident a rectangular
regulatory sign prohibited parking on
¶15 Nordgulen nonetheless asserts that Digaudio could not use the
right southbound lane to travel up to and through the intersection of 60th and
Madison Streets. Nordgulen appears to
argue that traffic on
¶16 A broken yellow line is one of several available devices for marking a two-lane, two-way street. See MUTCD, § 3B.01. Nordgulen does not, however, point to any regulation preventing a municipality from permitting traffic to move in more than two lanes at limited times on a roadway marked with a broken yellow line.
¶17 We also reject Nordgulen’s contention that Digaudio could not approach the intersection of 60th and Madison Streets in the right lane because it was not separated from the left lane by white dashed lines. Separate lanes of traffic must be “clearly indicated.” See Wis. Stat. § 346.13. White dashed lines, however, are not required. See id. St. Clair testified that a lane delineation can be “anything that would actually guide a motorist properly.” He further explained that “a crack in between the two lanes ... can be used as a lane delineation” and that such use of roadway cracks is “very common in engineering practice.”
¶18 Digaudio testified that a crack in the roadway separated the two southbound lanes on the stretch of road at issue in this case. That testimony is uncontradicted in the record. The evidence thus fully supports the circuit court’s finding that Digaudio was travelling in a lawful traffic lane at the time of the accident.
¶19 We next examine the circuit court’s findings of
negligence. Negligence entails: “(1) a duty of care ...; (2) a breach of that
duty; (3) a causal connection between the conduct and the injury; and (4) an actual
loss or damage as a result of the injury.” Lemke-Wojnicki v. Kolodziaj, 2002 WI
App 316, ¶7, 258
¶20 The circuit court found that Digaudio was negligent by driving
too fast for conditions, a violation of Wis.
Stat. § 346.57(3). Digaudio
testified that he was traveling at the posted speed limit of thirty miles per
hour, and West Allis Police Officer Mark Sopa testified that the heavy traffic
on
¶21 Nordgulen insists that Digaudio was negligent by driving at a
speed greater than was reasonable and prudent, a violation of Wis. Stat. § 346.57(2). Because the circuit court found that Digaudio
drove too fast for conditions, however, the circuit court found that Digaudio
breached a greater duty as to speed than the obligation imposed by
§ 346.57(2). See Thoreson v. Milwaukee & Suburban Transp. Corp., 56
¶22 We turn to the circuit court’s finding that Nordgulen was
negligent. Pursuant to Wis. Stat. § 346.18(2), “[t]he
operator of a vehicle within an intersection intending to turn to the left
across the path of any vehicle approaching from the opposite direction shall
yield the right-of-way to such vehicle.”
The duty imposed by the statute is a particularly significant obligation
of a
¶23 The evidence also supports the circuit court’s conclusion that
Nordgulen breached his duty to maintain an adequate lookout. A driver who enters an intersection with his
or her vision obstructed is negligent as to lookout. See
Bey
v. Transport Indem. Co., 23
¶24 Apportionment of negligence is a decision for the fact finder,
and we will sustain the decision unless it is clearly erroneous. Phelps v. Physicians Ins. Co. of Wis., Inc.,
2005 WI 85, ¶45, 282
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] All references to specific sections of the MUTCD are to the 2003 edition.
[3] The
current version of Wis. Stat. §§ 346.57(2)-(3)
are identical to the versions discussed in Thoreson v. Milwaukee Suburban Transp. Corp.,
56
[4] Nordgulen
refers in his brief to Wis. Stat. § 939.24(1),
a statute that provides “a uniform definition of criminal recklessness, the
culpable mental state of numerous [criminal] offenses.” Judicial Council Committee Note, 1988,
§ 939.24. The statutory definition
applies to crimes that include recklessness as an element. See
Wis. Stat. § 939.24(2). Nordgulen does not explain why the definition
of criminal recklessness is applicable to the instant subrogation action. We will not develop his arguments for
him.