By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 10, 2010 − A party that challenges the Wisconsin Department of Transportation’s (DOT) design of a road will lose unless the design is “obviously unsafe,” a Wisconsin Appeals Court recently ruled. An obviously unsafe road design might be one “that leads to the edge of a cliff for no apparent reason,” the court noted.

In Kauer v. Wisconsin Department of Transportation, 2009AP1615 (Sept. 8, 2010), the appeals court ruled that a Wis. Stat. section 32.05(5) condemnation action is not the proper action in which to challenge the safety of a DOT-approved road design.

The DOT condemned a portion of Lawrence and Carol Kauer’s land in Calumet County to construct a roundabout. The Kauer’s brought suit under section 32.05(05), which allows owners to contest condemnations for any reason other than inadequate compensation. The circuit court granted summary judgment in favor of the DOT, and the Kauer’s appealed.

Under Wisconsin caselaw, the appeals court explained, “a condemnation will be upheld absent a showing of fraud, bad faith, or a gross abuse of discretion.” A gross abuse of discretion might arise when there is “’utter disregard for the necessity of the use of land, or where ‘the land is taken for an illegal purpose,” the court noted.

The Kauer’s argued that the DOT’s roundabout road design was unsafe, and therefore constituted an utter disregard for the necessity of the use of their land. In support of their argument, the Kauer’s retained an expert who explained that slippery road conditions would make the roundabout unsafe, especially in winter. The DOT expert countered that the design was consistent with sound engineering practice.

On appeal, the DOT argued that the Kauer’s did not have standing to debate safety with the DOT in a condemnation procedure.

The appeals court ruled for the DOT, reasoning that an expert, as a matter of law, cannot “prevail in a debate over safety” because the DOT is the legislature’s delegate, and the legislature is in a better position to decide the most appropriate design for a road.

“The Kauers are asking us to allow them a trial in which they can second guess the DOT’s decision as to the best design for a road, and that is something we may not and will not do,” the appeals court wrote.

The court noted that its holding does not completely restrict safety claims under section 32.05(5). That is, “if the DOT’s road design was obviously unsafe, that might be evidence that there was utter disregard for the necessity of the use of land,” the court explained.

An example of an obviously unsafe road, the court explained in a footnote, would be one “that leads to the edge of a cliff for no apparent reason.”

The court concluded that the DOT showed a “reasonable ground” – that the road was designed in accordance with its operating manual and sound engineering practice – to support the design, which is all the law requires.

The court noted that a claimant may have other avenues to challenge the safety of road designs, namely sections 227.42 and 227.52, under which parties can challenge safety aspects of proposed government action or protect safety interests caused by a change in the physical environment.