In Wisconsin, vehicles driving in a funeral procession generally have the right of way at an intersection. Specifically, Wis. Stat. section 346.20 states:
(1) Except as provided in sub. (4), the operator of a vehicle not in a funeral procession or military convoy shall yield the right-of-way at an intersection to vehicles in a funeral procession or military convoy when vehicles comprising such procession have their headlights lighted.
(2) The operator of a vehicle not in a funeral procession shall not drive the vehicle between the vehicles of the funeral procession – except when authorized to do so by a traffic officer or when such vehicle is an authorized emergency vehicle giving audible signal by siren.
(3) Operators of vehicles not a part of a funeral procession or military convoy shall not form a procession or convoy and have their headlights lighted for the purpose of securing the right-of-way granted by this section to funeral processions or military convoys.
(4)
(a) Operators of vehicles in a funeral procession or military convoy shall yield the right-of-way in accordance with s. 346.19 upon the approach of an authorized emergency vehicle giving audible signal by siren.
(b) Operators of vehicles in a funeral procession or military convoy shall yield the right-of-way when directed to do so by a traffic officer.
(c) The operator of the leading vehicle in a funeral procession or military convoy shall comply with stop signs and traffic control signals, but when the leading vehicle has proceeded across an intersection in accordance with such signal or after stopping as required by the stop sign, all vehicles in such procession may proceed without stopping, regardless of the sign or signal.
Megan McKenzie, Thomas Jefferson 2008, is a staff attorney with American Family Insurance Company in Madison. She practices all stages of litigation defense and trial work.
Notice of Procession: Flags Not Required
An issue that often arises in funeral procession accidents is notice.
Motorists commonly and mistakenly believe that vehicles in a funeral procession are required to have flags attached to their vehicles. However, the right-of-way statute only requires vehicles operating in a funeral procession to have their headlights lighted. While funeral homes often dispense flags or magnetic signs to place on participating vehicles as a courtesy, there is no legal requirement they do so.
Additionally, the lead vehicle in a funeral procession “may” be equipped with a flashing amber light or all vehicles in the procession “may” have flashing amber lights, but again, this is not required.1
In other words, if funeral procession participants have headlights turned on, they are free to disregard all traffic controls at an intersection. Unsurprisingly, this often leads to accidents. It is difficult for other motorists to appreciate that a funeral procession is occurring because it appears that a normal vehicle is simply disregarding a traffic control signal.
It is especially problematic if a motorist approaches the intersection long after on obvious lead vehicle or hearse has passed or if there is a large gap between the processional vehicles.
Interestingly, an authorized emergency vehicle (ambulance, police car, fire truck, etc.) is required to provide more notice to surrounding traffic than a processional vehicle before entering an intersection. An authorized emergency vehicle must give an audible signal by siren to alert other drivers to yield the right of way.2 The audible warning is in addition to the obvious markings on the body and in some cases flashing colored lights on the authorized emergency vehicles.
The additional warnings serve to notify surrounding traffic of an emergency vehicle’s intention to disregard a traffic signal. While accidents involving emergency vehicles still do occur, the requirements for those vehicles provide additional safeguards against accidents that are lacking for funeral processions.
Not an Absolute Right
Right of way is not an absolute right. Contributory negligence is still a defense in a claim involving a funeral procession accident.
Operators of an authorized emergency vehicle are reminded in the statute that they have the duty to drive with due regard under the circumstances for the safety of all persons using the highway.3
While the funeral procession statute contains no similar express provision, the same rule should apply. Specifically, a long lag or gap between processional vehicles is insufficient to give notice to other vehicle operators of the procession.
While the statute is silent on the amount of space that must be left between vehicles in a procession, an argument can certainly be made that a reasonable person would follow a procession as closely as possible under the circumstances. A processional vehicle should not suddenly accelerate at a high rate of speed as it enters an intersection, when trying to close any gap. Other motorists can only yield the right of way to a funeral procession if they know if it is happening.
Gaps or lags between vehicles can be evidence of contributory negligence if an accident ensues.4
What Makes a Funeral Procession?
The funeral procession right-of-way statute does not actually define “funeral procession.” Nor am I aware of any other Wisconsin statute that defines those terms. Merriam-Webster also unhelpfully defines the noun “funeral” as:
- the observances held for a dead person usually before burial or cremation;
- a funeral sermon;
- a funeral procession;
- an end of something’s existence; and
- a matter of concern to one.
The question of when the procession and ultimate protection of Wis. Stat. section 346.20 begins is open for interpretation, and likely depends on the facts of the collision.
Is it sufficient to be part of a caravan from a relative’s residence to the funeral home to claim funeral procession right of way? Does there need to be a body or cremated remains somewhere in one of the processional vehicles? Does there need to be a municipal permit issued for the travel? Is the presence of a funeral director in one of the vehicles sufficient?
While Wisconsin has not directly answered this question, other jurisdictions can provide some guidance.
Generally speaking, there should be more than just a group of cars with their lights activated following a lead car to qualify as a funeral procession.5 I would argue that public policy requires some organization or formality for funeral procession right-of-way rules to apply. The intended destination of the vehicles and the presence of the remains of a deceased person in one of the vehicles seems important.
Otherwise, anyone on their way from their residence to a funeral home could claim to be part of a funeral procession and disregard traffic signals en route.
And public policy and common sense dictate that other motorists need to be able to differentiate between normal traffic and a funeral procession for the right-of-way statute to apply.
Endnotes
1 Wis. Stat. § 347.25(3).
2 Wis. Stat. § 346.19(1).
3 Wis. Stat. § 346.19(2).
4See WIS JI-CIVIL 1007.
5 See e.g., Jones v. Grissett, 258 S.C. 22, 186 S.E. 829 (1972).
