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County off hook for damage to town roads

Judge Robert Wing dismissed a lawsuit claiming Pierce County should pay for damage caused when heavy traffic was diverted around a fatal accident and over Town of Martell roads.

At the conclusion of a hearing Tuesday, the judge agreed with an insurance company lawyer who argued Wisconsin law gives the county immunity from this type of claim. A jury trial set for Sept. 25-26 was cancelled.

Following a fatal accident on Jan. 27, 2006, the Pierce County Sheriff's Department diverted Hwy. 63 traffic over 690th Avenue and 530th Street for several hours.

In July 2007, the county board denied Martell's claim for $27,126 to pay for damages. The town subsequently filed a lawsuit against the county and its insurance company, Wisconsin County Mutual Insurance.

The insurance company lawyer argued state law gives the county immunity from lawsuits involving discretionary decisions.

"(The town) concedes 'that Sheriff Muhlhausen's choice of route that day was discretionary'," wrote attorney Pamela Macal in her brief. "(If) the decision is discretionary, there is immunity for the consequences of that discretionary decision, like wear and tear on a road."

Martell's attorney Gwen Kuchevar argued the county's use of 530th Street created a public nuisance.

"An obstruction in or encroachment upon a highway that unnecessarily impedes or incommodes the lawful use of the highway by the public is a public nuisance," wrote Kuchevar.

"A public nuisance exists," she argued, "when a condition (here, the crumbled pavement and 'tippy' driving surface of 530th Street left after its use by the county as a state highway detour) or an activity (the county's use of 530th Street) substantially interferes (as by crumbling the pavement to the extent that semi trucks and trailers looked unstable and 'tippy' to County Board Chair Anderson as they drove by his home) with the use of a public place (a public road) or activities of an entire community (the traveling public)."

According to Kuchevar, Ron Anderson, who lives along the road and was county board chairman at the time, told Martell Town Chairman Arby Linder the street was crumbling as the detoured traffic drove over it, and semi truck and trailers looked "tippy."

"County law enforcement and highway personnel were at the site the day of the accident," said Kuchevar. "They could not direct and caution the detoured traffic without observing the deteriorating condition of 530th Street during its use as a state highway detour route."

She argued governmental immunity doesn't apply "when the underlying...conduct is grounded in negligence, and when that negligence is comprised of acts performed (or, in this case, not performed) in furtherance of ministerial duty."