Wisconsin's Hazardous Highways Immunity Bill: What's the Purpose?

By Ann Jacobs

Wisconsin has had a long tradition of pride in the maintenance of its roads.  Since 1849, Wisconsin law has required our counties cities, villages and towns to fix bridges, highways, sidewalks, parking lots and shoulders and to keep them safe for all users.  When a municipality has knowledge of a road in disrepair, it must repair it, or it may be liable for the harm caused to its citizens.  The legislative policy to protect travelers and users of highways and bridges was recognized in some of the earliest decisions of the Wisconsin Supreme Court going back to 1867.

SB-125 – the “Hazardous Highways Bill” changes Wisconsin law to eliminate the responsibility of municipalities for the harm they cause, and sadly, abandons Wisconsin’s long-standing commitment to the safety of its citizens.

Why This Issue Is Important

The implications of this change are important.  While the bulk of incidents resulting from a road or bridge in disrepair may be minor, the public harm that can occur when municipal infrastructure is not repaired can be devastating.  In Minnesota, just four years ago, the I-35W bridge in Minneapolis collapsed, killing thirteen people and injuring 121 others.  The 40-year old bridge collapsed into the river and its banks without warning. 

What does this object lesson tell us about the bridges in Wisconsin that are structurally deficient or functionally obsolete?

In 2010, 1,861 bridges in Wisconsin were deemed structurally deficient or functionally obsolete by the U.S. DOT.  That means they were either closed, restricted to lighter vehicles, or have speed or weight limits.  In other words, Wisconsin has bridges that may pose a serious risk to our innocent citizens when we fail to maintain our infrastructure.

The Current Law Works In Wisconsin - Balancing The Needs of Citizens and Municipalities 

As a preliminary matter, there is already a cap of $50,000 in Wisconsin law for damages arising from road and highway defects.  Most municipalities carry far greater insurance coverage. 

Remarkably, SB-125 essentially eliminates a general duty of local governments to maintain highways and bridges.  They wouldn’t be responsible to pay for damages resulting from their failure to maintain them.  Unless the injured person could prove the local government had a duty to act under another statutory provision, local governments would enjoy immunity from accidents involving failing to safely maintain highways or bridges.

Realistically, insurance rates will not drop for local governments if they are allowed to shirk responsibility for fixing sidewalks, bridges and roads.  Considering the very few lawsuits filed and won annually against municipalities, the idea that – because of these bills – new money will be available to pay for local road repairs is unrealistic and misses the point.  We do not permit one citizen to be injured due to a poorly maintained road so that another may have a new road. 

False Claims & Misunderstandings

There have also been false claims by supporters of this bill that without this bill, local governments can be sued without “notice” of the defect.  The example given was that a part of highway buckles due to very hot weather and a motorist drives over it 5 minutes later.  That is simply not correct.  Actual or constructive notice is already required by existing law.  Constructive notice can only occur after a length of time before the injury occurs, so that the local government, in the exercise of ordinary care should have discovered it in time to fix the problem.

All Wisconsinites deserve safety on their roads and redress in the unfortunate circumstance when they have been injured because those roads are defective or haven‘t been maintained.  Local governments should have a duty to maintain safe roadways and bridges.  We expect our local governments to repair known defects in highways that lead to unsafe conditions.  SB-125 does not protect our citizens.

Ann S. Jacobs is a shareholder with Domnitz & Skemp, S.C.  She has been named one of Wisconsin's top 25 women attorneys by Superlawyers since 2006.  She focuses her practice on medical malpractice and personal injury.  She is a frequent lecturer to other attorneys, and an author of the book "The Law of Damages in Wisconsin", published by the Wisconsin State Bar Association.  She is currently treasurer of the Wisconsin Association of Justice, and serves on many other organizations and committees.