Snowmobile parked in dark is still 'operating,' says Court of Appeals.

• Author: Ziemer, David

Byline: David Ziemer

A snowmobiler who stops on a trail at night and turns off his vehicle and its lights is "operating" the vehicle pursuant to sec. 350.09(1), and is thus negligent per se when an accident results, the Wisconsin Court of Appeals held last week.

Sec. 350.09(1) says, in part: "Any snowmobile operated during the hours of darkness . . . shall display a lighted head lamp and tail lamp."

Facts

In 1995, Robert W. Zimmerman and Dean Leighton were snowmobiling at night on a trail in Racine County.

When they stopped and turned off their motors to talk, the head lights and tail lights automatically turned off. Their snowmobiles, snowmobile suits, and helmets were all black.

Karl A. Burg and a friend were snowmobiling on the same trail approaching the location where Zimmerman and Leighton had stopped. Burg did not see them until it was too late and swerved to avoid Zimmerman, striking Leighton. Burg sustained a brain injury and has permanent residual impairments.

Procedure

Burg's guardian brought suit against Zimmerman. In pretrial proceedings, Burg moved for an order declaring Zimmerman negligent per se under sec. 350.09(1).

Milwaukee County Circuit Court Judge Michael G. Malmstadt denied the motion, concluding that because the motor was not on, Zimmerman was not "operating" his snowmobile at the time of the accident.

"It's been pretty much a consistent ruling when [snowmobiles are] parked, they're not being operated, based upon the definition of the word operate' in the statutes of this state," said Malmstadt, adding:

"I think the law is stupid, but I'm stuck with what the law is. You know, I think when two people park their snowmobile[s] out there and are sitting around talking about what route they're going to take, it's hard for me to comprehend how the law can say that's not operating, but it does."

Instructed on regular negligence principles, the jury found neither Zimmerman nor Leighton negligent in their "use" of the vehicles. The jury also found that the amount of Burg's damages were even less than that suggested by the defendants.

Burg moved for a new trial, renewing his contention that Zimmerman was negligent per se, and also arguing that the jury's determination of damages was "perversely low." The court denied the motion.

Burg appealed, and a divided District I (Milwaukee) Court of Appeals reversed in a decision written by Judge Charles B. Schudson and joined by Judge Ted E. Wedemeyer Jr. Judge Patricia S. Curley...