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COURT OF APPEALS DECISION DATED AND RELEASED July 26, 1995 |
NOTICE |
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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. 95-0576
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
CITY OF OSHKOSH,
Plaintiff-Respondent,
v.
LUCILLE A. AIELLO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Winnebago County: PETER L. GRIMM, Judge. Affirmed.
BROWN, J. Lucille
A. Aiello appeals a conviction for using imprudent speed while operating a
motor vehicle contrary to § 346.57(2), Stats. Aiello argues that the trial court
misapplied the law by ruling that she had an absolute duty to avoid an accident
and that she violated that duty simply by virtue of the fact that a collision
occurred. We determine, however, that
she has misstated the trial court's holding.
The trial court held that she has a responsibility to control her
vehicle. That this is the law in
Wisconsin there can be no doubt. The
trial court found that she failed in this responsibility and we agree.
Aiello struck the rear
end of a vehicle being driven by another driver while that driver was stopped
at a traffic light. The other driver
admitted that she was not paying attention to the light and did not immediately
notice that the light had turned green.
Aiello accelerated her vehicle when the light changed in anticipation
that the vehicle in front of her would move as well. When Aiello realized that the vehicle in front of her was not
moving, she applied her brakes. But she
was unable to stop in time and a collision occurred.
Aiello was issued a
citation for inattentive driving. After
hearing the evidence at trial, the trial court amended the charge to imprudent
driving to conform to the evidence.
This statute, § 346.57(2), Stats.,
reads:
No person shall drive a vehicle at a
speed greater than is reasonable and prudent under the conditions and having
regard for the actual and potential hazards then existing. The speed of a vehicle shall be so
controlled as may be necessary to avoid colliding with any object, person,
vehicle or other conveyance on or entering the highway in compliance with legal
requirements and using due care.
The
trial court ruled that Aiello anticipated the other car moving forward when the
light turned green and accelerated her vehicle without proper regard for the
hazard in front of her. The trial court
opined:
The
defendant did have the responsibility to control her vehicle to avoid colliding
with the vehicle of [the witness], and even though the speed might have been
minimal compared to the posted speed limit and even though the distance may
have been minimal, it still was the duty of the defendant to control her
vehicle, having regard for the actual hazard of the [vehicle in front of her.]
Aiello claims that this
is the statement of the trial court which amounted to imposing an absolute
liability upon her to avoid an accident.
But that is not how we read the trial court's statement. The trial court said that she had the
responsibility to “control her vehicle.”
This statement is synonymous with the hornbook law that drivers have the
duty to exercise due care. Indeed, Wis J I—Civil 1105 provides that
drivers must exercise proper “management and control” of the motor vehicle so
that when danger appears, the driver may stop the vehicle or take other means
to avoid injury or damage. The statute
used by the trial court in this case is in keeping with this concept. It mandates that vehicle operators drive at
a speed no greater than is “reasonable and prudent,” having “regard for the
actual and potential hazards then existing.”
The statute thus speaks to the driver's duty to exercise management and
control over the vehicle. The State
imposes this requirement in an effort to avoid accidents. This is all the trial court was saying. The trial court correctly stated the law.
Having correctly stated
the law, the remaining question is whether the trial court made factual
findings which are not clearly erroneous.
Section 805.17(2), Stats. Aiello claims that her speed, which was
minimal, was reasonable and prudent under the circumstances. She points to her testimony that she started
from a “stopped position, so my speed wasn't very fast at all. ¼ It felt more
like a bumper car to me. I didn't feel
really much of the impact at all.” She
further points to evidence that the only damage to the vehicle in front of her
was a broken tail pipe and that her car had no damage. Aiello also points to evidence that as soon
as she realized that the vehicle in front of her was not moving, she immediately
applied her brakes, but struck the forward vehicle nonetheless. From this, Aiello asserts that her speed was
not the cause of the accident and it is difficult to imagine that she could
have gone any slower. She argues that
her actions were entirely reasonable and prudent. She contends that she had every reason to believe that the
vehicle in front of her would proceed with the pace of traffic once the light
turned green.
And that is where she
goes wrong. She does not have the right
to so believe. She has a duty to look
out for potential hazards and to drive her vehicle at a speed commensurate with
those hazards. If the potential hazard
is an object that is not moving, then the prudent speed of her vehicle should
be zero. When the hazard is removed (by
movement in this case), then she can move.
Aiello admitted that she accelerated her vehicle in the belief that the
driver in front of her would also move.
She even conceded at trial that her belief was “miscalculated and
misjudged.” The “miscalculation” she
refers to is the same thing as a lack of managing and controlling her vehicle
with regard to the hazards then existing, actual or potential. The trial court could and obviously did
infer that Aiello failed to show regard for the hazard then and there existing,
i.e., the possibility that the driver in front of her would not move when the
light turned green.
We do not mean to
suggest that Aiello is solely at fault.
From the testimony, it appears obvious that the driver in front of her
failed to pay attention to what was going on. The record does not show whether the other driver was ticketed for
inattentive driving. She should have
been in our opinion. But that does not
negate Aiello's responsibility to exercise management and control over her
vehicle so as to take into account the potential hazard in front of her. Simply because the other driver may also
have violated the rules of the road does not obviate Aiello's duty.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule
809.23(1)(b)4, Stats.