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By Dave Umhoefer November 4, 2011

Wisconsin Association for Justice says a state bill would end a requirement that local governments repair roads and prevent injured citizens from suing

As the 2011 Wisconsin Legislature neared completion of its work, a group of trial lawyers attacked a batch of Republican-sponsored legislation it contends will "erase basic rights."

The Wisconsin Association for Justice -- formerly the Wisconsin Academy of Trial Lawyers -- railed against limits on attorneys fees in consumer cases, and immunity for doctors and drug makers in injury cases.

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We previously ruled Mostly True a health care advocate's claim that one of the bills "grants drug companies and medical device manufacturers immunity from injuries and deaths caused by their products."

This time we’ll examine the trial lawyers’ claim in an Oct. 31, 2011, news release regarding Senate Bill 125/Assembly Bill 180.

The group said the proposal "makes local governments' repair of roads, bridges and sidewalks no longer required by state law, and injured citizens could no longer sue them for bodily or auto damages … The state law has been in place for 162 years."

That sounds like a major change of lanes. Let’s pop the hood.

First, a bit of history.

Over several decades, it’s become much tougher for citizens in Wisconsin to sue and win when claiming negligence by their local units of government.

How much tougher?

In a 2009 Wisconsin Supreme Court opinion, Justice David Prosser, a former Republican speaker of the Wisconsin Assembly, said that "so far as government responsibility for torts is concerned, immunity has become the rule and liability has become the rare exception."

"Justice," wrote Prosser, "has been confined to a crawl space too narrow for most tort victims to fit."

Generally speaking, except in cases involving unheeded warnings over dangers involving actions they absolutely should have taken, public agencies are shielded from liability. That’s because of state laws and court rulings.

A notable and longstanding exception to that -- under a state "highway defects" law dating to 1849, a year after statehood -- allows up to $50,000 in civil damages when highways and sidewalks are poorly maintained and lead to vehicle damage or bodily injury.

The bill up for debate would eliminate nearly all of that statute. Local governments have sought this for years, hoping to avoid what they see as the "automatic" liability for defects, and get more discretion over when and how to do highway repairs -- as state officials have. Former Democratic Gov. Jim Doyle vetoed a previous attempt.

Here’s what’s unique about the defective highways statute (893.83): Plaintiffs don’t have to clear the high legal bar they would in winning a case against the government over other mistakes.

They don’t have to show government had an absolute duty to do the specific thing in dispute -- that duty is presumed under that existing law.

Notably, the law creates a "right to recover" damages from government.

Many of the cases are routinely settled before getting to court -- that’s how strong the law is.

If the cases reach trial, jurors have to decide if damages stemmed from known road defects -- and whether the municipality kept the highway "reasonably safe for public travel," according to jury instructions in place since 1974.

"With winter conditions, it’s awfully difficult to make sure highways are maintained every second, every hour of every day," said Andrew Phillips, a lawyer representing the Wisconsin Counties Association. Counties do most of the highway work.

He’s talking about potholes and defective shoulders, among other things -- problems that have been litigated all the way to the state’s highest courts.

The money stakes are not sky high, but significant: over a decade, counties served by Wisconsin County Mutual Insurance paid out $950,000 in these cases. That doesn’t include all counties, or other municipalities.

Let’s turn back to the statement.

Asked about its claims, the Association for Justice pointed us to the text of the bill.

The bill would eliminate the liability provisions except for damages resulting from the accumulation of snow or ice that has existed on a highway for at least three weeks. The chief backers of the bill, the Wisconsin Counties Association, acknowledge that.

So would that mean citizens could "no longer sue" and locals would not have a duty to repair, as the association claimed?

They couldn’t sue under the highway defects statute -- but still could file a claim under a more general state law, according to Phillips, the lawyer for the counties group. Even Ann Jacobs, a personal injury lawyer speaking for the Association for Justice -- the group making the claim -- agreed.

The two sides also agree localities’ legal exposure would drop if the more general state law (893.80) was the only route for plaintiffs.

The bottom line: People could still sue, though under less favorable circumstances from the complainant’s viewpoint. The ultimate effect would be decided by judges.

What about the second part of the claim? Would the bill eliminate the requirement that local governments repair roads?

Jacobs, of the trial lawyers’ group, says it effectively does because enforcement of that duty would all but disappear without the specific liability statute.

"What good is a right without a remedy?" Jacobs asked.

Even the counties’ attorney, Phillips, acknowledges that county decisions on when and how to repair highways would be more discretionary with the strict liability gone.

The Association for Justice, at a public hearing on the bill, made that point using this language: "Local governments would not have a general duty to maintain highways and bridges" if the bill passed.

But in its public news release, the group’s claim went well past that -- leaving readers to believe road repairs would no longer be required.

Phillips pointed us to Chapter 83.025 of state statutes: "The county trunk system shall be marked and maintained by the county." And for towns, 82.03: "The town board shall have the care and supervision of all highways under the town's jurisdiction."

So the locals still would have the obligation to repair.

Let’s patch this up and move on.

A trial lawyers group contends that a bill would change a 162-year-old state law to "make local governments' repair of roads, bridges and sidewalks no longer required by state law." It continued: "Injured citizens could no longer sue them for bodily or auto damages."

The bill could have a big impact on local government liability for highway problems, though just how dramatic remains to be seen.

But the group’s news release went too far in flatly claiming citizens could no longer sue, and asserting that highway repairs would no longer be required.

We rate this claim False.

Our Sources

Wisconsin Association for Justice, press release, Oct. 31, 2011

Interview with John Reinemann, lobbyist for Wisconsin Counties Association, Oct. 31, 2011

Interview with Andrew Phillips, attorney representing Wisconsin Counties Association, Oct. 31, 2011

Interview with Ann Jacobs, attorney, member of Wisconsin Association for Justice, Oct. 31, 2011

Interview with Rep. Andre Jacque, Republican sponsor of AB 180, Nov. 1, 2011

Testimony of Ann Jacobs on SB 125, Oct. 4, 2011

Phillips Borowski law firm, legal memo to Wisconsin Counties Association, Sept. 9, 2011

Wisconsin statute 893.83, "Highway Defects"

Wisconsin statute 893.80, "Claims Against Governmental Bodies"

Text of Senate Bill 125/Assembly Bill 180

Wisconsin Counties Association, memo to Senate committee, Oct. 4, 2011

Wisconsin jury instruction 8035, Highway or Sidewalk Defect or Insufficiency

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Wisconsin Association for Justice says a state bill would end a requirement that local governments repair roads and prevent injured citizens from suing

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