Karl A. Burg by his legal guardian v. Cincinnati Casualty Insurance Co.
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2002 WI 76 SUPREME COURT CASE NO.: OF WISCONSIN 00-3258 COMPLETE TITLE: Karl A. Burg by his legal guardian, Gladys M. Weichert, Plaintiff-Appellant, v. Cincinnati Casualty Insurance Co. and Robert W. Zimmerman, Defendants-Respondents-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 241 Reported at: 248 Wis. 2d 145, 635 N.W.2d 622 (Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 9, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Michael G. Malmstadt JUSTICES: CONCURRED: DISSENTED: June 26, 2002 CROOKS, J., dissents (opinion filed). BABLITCH and PROSSER, J.J., join dissent. NOT PARTICIPATING: ATTORNEYS: For the defendants-respondents-petitioners there were briefs by Gregory J. Cook, Anthony P. Hahn and Kasdorf, Lewis & Swietlik, S.C., Wausau, and oral argument by Gregory J. Cook and Anthony P. Hahn. For the plaintiff-appellant there was a brief by Victor C. Harding and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee, and oral argument by Victor C. Harding. An amicus curiae brief was filed by John T. Podbielski, Jr. and Schelble & Podbielski, S.C., Milwaukee, on behalf of Mothers Against Drunk Driving (MADD). 2 2002 WI 76 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-3258 (L.C. No. 98 CV 8875) STATE OF WISCONSIN : IN SUPREME COURT Karl A. Burg by his legal guardian, Gladys M. Weichert, FILED Plaintiff-Appellant, v. JUN 26, 2002 Cincinnati Casualty Insurance Co. and Robert W. Zimmerman, Cornelia G. Clark Clerk of Supreme Court Defendants-RespondentsPetitioners. REVIEW of a decision of the Court of Appeals. ¶1 DIANE S. SYKES, J. This case Reversed. involves a serious snowmobile accident and requires us to determine the scope of the term "operate" for purposes of Wis. Stat. § 350.09, (199596)1 a snowmobile safety statute that requires anyone who operates a snowmobile at night to illuminate the snowmobile's head and tail lamps. 1 All future references will be to the 1995-96 version of the Wisconsin Statutes. No. ¶2 The plaintiff snowmobiling at night. Karl Burg was severely 00-3258 injured while At the time of the accident, Burg was traveling on the graded, unfinished bed of new highway lanes under construction, which ran alongside an existing highway. The accident occurred when Burg swerved to avoid hitting another snowmobiler, who had, five minutes earlier, together with a companion, stopped and shut off his snowmobile on the same path Burg was using. ¶3 driver Before trial, Burg moved for a determination that the of the violating stopped snowmobile Wis. Stat. § 350.09, was which negligent requires per head se and for tail lamps to be illuminated when a snowmobile is operated at night, and Wis. Stat. § 346.51, which prohibits the parking, standing, or stopping of any vehicle upon a roadway. denied the motion, concluding that a The circuit court snowmobile completely stopped with its engine off was not being "operated" within the meaning of the head and tail lamp statute. The court further concluded that the statute prohibiting the parking, stopping, or standing of any vehicle upon a roadway did not apply, because the snowmobile was stopped some distance off the actual highway, on the unfinished roadbed of the additional lanes that were under construction. ¶4 The court of appeals reversed, concluding that the stopped snowmobile was being "operated" within the meaning of the head and tail lamp statute, because the act of stopping the snowmobile was sufficient to meet the statutory definition of "operate." We disagree. The 2 snowmobile statutes define No. 00-3258 "operate" as "the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of any of the controls of a snowmobile necessary to put it in motion." Wis. Stat. § 350.01(9r). This definition does not include merely sitting on a stopped snowmobile with the engine off. We also agree with the circuit court's conclusion that Wis. Stat. § 346.51 does not apply because a graded roadbed under construction does not constitute a "roadway" within the meaning of the statute. Accordingly, we reverse. I ¶5 On the evening of November 29, 1995, two pairs of snowmobilers were traveling on a make-shift snowmobile trail in Racine County. Highway 36 was under re-construction two lanes were being added to expand the existing two-lane highway into four lanes. The two new lanes under construction were graded and flat, making it a good place to run a snowmobile. The defendant Robert Zimmerman and his friend, Dean Leighton,2 were snowmobiling on the unfinished new lanes. At approximately Highway 36 and Malchine Road, they stopped and shut off their snowmobiles, in the middle of the lane of snowmobile travel on the unfinished road bed. ¶6 Both snowmobiles were configured in such a way that when the sleds were turned off, the head lamps and tail lamps were extinguished and could not 2 be re-illuminated until the Leighton is not a party to this litigation. He signed a Pierringer-type release prior to the filing of this lawsuit. 3 No. engine was restarted. 00-3258 To restart the snowmobile, the ignition key had to be turned and a cord pulled.3 ¶7 The plaintiff Karl Burg and his friend Robert Dros were also snowmobiling on the unfinished new lanes of Highway 36. Burg was in the lead, ahead of Dros by approximately 100 to 110 feet, and traveling between 35 and 40 m.p.h. They came to the location where Zimmerman and Leighton were sitting on their stopped, unilluminated snowmobiles, approximately five minutes after Zimmerman and Leighton got there. light come on, his sled fishtail, Dros saw Burg's brake and his brake light extinguish. ¶8 Burg evidently had not seen Zimmerman or Leighton until it was too late, swerved in an apparent effort to avoid hitting Zimmerman, and instead struck Leighton's sled. on impact or sometime thereafter, Burg's helmet came off. Either Burg was thrown into the air and landed approximately 40 feet from the point of impact. injuries. He suffered severe and permanent head Leighton, who was also thrown from his sled, was knocked unconscious. His helmet, however, remained secure, and he regained consciousness at the scene. ¶9 Burg sued Zimmerman, alleging that Zimmerman had been negligent in the operation and parking of his snowmobile. Prior to trial, Burg moved for an order declaring Zimmerman negligent 3 Testimony showed that although it was possible to do so, it was extremely difficult to pull the cord while seated on the snowmobile. Zimmerman testified that it was more practical to get off the sled and pull the cord from a standing position. 4 No. 00-3258 per se for violating Wis. Stat. § 350.09(1) and (3). This statute generally sets forth the lighting requirements for a snowmobile. Subsection (1) requires that when operated during the hours of darkness, a snowmobile must have its head lamp and tail lamp illuminated. Wis. Stat. § 350.09(1). Subsection (3) imposes an additional requirement that the illuminated tail lamp be visible for 500 feet. ¶10 The Milwaukee Wis. Stat. § 350.09(3). County Circuit Michael Malmstadt, denied the motion. Court, the Honorable The circuit court noted that a boating statute requires boaters who are stopped in the water to show a light, see Wis. Stat. § 30.61(6), but said there was no similar statute for snowmobilers. Accordingly, the court reasoned that "[i]f the legislature had wanted to require people who stop and park somewhere with a snowmobile to have a light on it when it is stopped, they could have said so. They have said so with other vehicles such as boats . . . I guess there is no dispute that Mr. Zimmerman stopped his snowmobile and was sitting on it talking to another guy who also had a snowmobile, and they were sitting there. Sitting on it I don't believe under the law is operating it." ¶11 During the second day of the ensuing jury trial, Burg renewed his motion to have Zimmerman declared negligent per se for violation of Wis. Stat. § 350.09. asserted that Zimmerman Wis. Stat. § 346.51, was which negligent prohibits In addition, Burg also per se stopping, for violating standing, or parking a vehicle in a business or residential district upon the roadway of a highway. 5 No. ¶12 The circuit court again denied motion. the 00-3258 "This statute, 346.51, is designed to protect people traveling on the roadway. You're trying to get it to say that they are negligent vis-à -vis snowmobilers who are traveling off the roadway . . . 55 feet from the roadway, the negligence of this statute in my view relates doesn't to people traveling relate to people on traveling the off roadway . . . [i]t the roadway." Judge Malmstadt also stuck to his earlier ruling that "operation" for purposes of the snowmobile head and tail lamp statute did not include the act of merely sitting on a parked snowmobile with its engine off: "Snowmobiles . . . in this state can be parked without a light, according to the law. Now that doesn't mean that parking it without a light on in the middle of the pathway used by other snowmobiles is not negligence. It's just not statutorily prohibited." ¶13 At the close of evidence, Burg again renewed his motion on the negligence per se issues, and the motion was again denied. The negligent. jury Burg found moved Burg for negligent a new and trial, Zimmerman not reiterating his negligence per se arguments, and also challenging the jury's damages award as perversely low. The motion was denied, and Burg appealed. ¶14 circuit In a split decision, the court of appeals reversed the court, snowmobile concluding within the that meaning 6 Zimmerman of was "operating" Wis. Stat. § 350.09 his and No. 350.09(9r), concluded and that § 350.01(9r) therefore the was negligent definition included "a of se.4 per The court in Wis. Stat. "operate" person's 00-3258 actions in stopping a snowmobile and turning off its motor because, literally, such actions do 'exercise physical control direction' of the snowmobile." over the speed and Burg v. Cincinnati Cas. Ins. Co., 2001 WI App 241, ¶10, 248 Wis. 2d 145, 635 N.W.2d 622. court of appeals remanded the case for a new trial. The We accepted review. II ¶15 This case concerns the meaning of the term "operate" in Wis. Stat. § 350.01(9r) for purposes of the head and tail lamp illumination requirement of Wis. Stat. § 350.09. This is a question of statutory interpretation that we review de novo. Peterson v. Midwest Security Ins. Co., 2001 WI 131, ¶11, 248 Wis. 2d 567, 636 N.W.2d 727. ¶16 "Statutory interpretation begins with and, absent ambiguity, is confined to the language of the statute," and statutory words and phrases, unless technical in nature or carrying a peculiar legal meaning, are construed according to common and ordinary usage. Inc., 2001 WI 81, ¶10, Peterson, 2001 WI 131, ¶19. Fuchsgruber v. Custom Accessories, 244 Wis. 2d 758, 628 N.W.2d 833; See also, Wis. Stat. § 990.01(1). 4 The court of appeals did not address the negligence per se argument under Wis. Stat. § 346.51. 7 No. ¶17 The snowmobile head and tail lamp 00-3258 statute, Wis. Stat. § 350.09, provides: Head lamps, tail lamps and brakes, etc. (1) Any snowmobile operated during the hours of darkness or operated during daylight hours on any highway right of way shall display a lighted head lamp and tail lamp. . . . (3) After February 12, 1970, the tail lamp on a snowmobile must display a red light plainly visible during darkness from a distance of 500 feet to the rear. Wis. Stat. § 350.09(1) and (3). ¶18 There is no dispute that the accident occurred during the "hours of darkness" for purposes of this statute. Whether Zimmerman was required to display a lighted head and tail lamp, and therefore was negligent per se for failing to do so, depends upon whether the term "operate" within the meaning of the statute includes sitting on a snowmobile that is parked and shut off. ¶19 "Operate" is a defined term in Chapter 350, which pertains to the regulation of snowmobiles. "'Operate' means the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of any of 8 No. 00-3258 the controls of a snowmobile necessary to put it in motion." Wis. Stat. § 350.01(9r).5 ¶20 The statute is not ambiguous. Two activities qualify under this definition of "operate": 1) the exercise of physical control over the speed or direction of a snowmobile; and 2) the physical manipulation or activation of any of the controls necessary to put the snowmobile into motion.6 ¶21 Sitting on a snowmobile while it is stopped and shut off does not involve the exercise of physical control over the speed or direction of the snowmobile. "Speed" means magnitude of velocity, and therefore concerns movement. See The American Heritage Dictionary of the English Language 1731 (3d ed. 1992). 5 The statutory definition of "operate" concludes with this sentence: "'Operate' includes the operation of a snowmobile." This apparently was intended to make the terms "operate" and "operation" essentially synonymous throughout Chapter 350. Section 950.01(9r) was created by 1987 Wis. Act 399, § 443qe. When originally enacted the subsection read, "'Operation of a snowmobile' means controlling the speed or direction of a snowmobile." The definition was then amended in 1991. The amendment deleted the reference to "operation" and changed the term to "operate," 1991 Wis. Act. 39, § 3233, making clear, however, that the new defined term "operate" includes the old defined term "operation." 6 Similar language appears in the Implied Consent and Operating While Intoxicated statutes, Wis. Stat. §§ 343.305 and 346.63. However, the drunk driving statutory scheme uses the phrase "drive or operate," and separately defines those terms. See Wis. Stat. §§ 346.63(3)(a) and (b), 343.305(1)(b) and (c). Accordingly, "operate" is defined a bit more narrowly for purposes of the OWI and refusal statutes, and refers only to "the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion." Wis. Stat. §§ 346.63(3)(a) and (b), 343.305(1)(b) and (c). 9 No. 00-3258 Similarly, "direction" means the "course along which a person or thing moves." Id. at 527. A parked snowmobile with its engine off is obviously stationary. Sitting on a parked snowmobile with its engine off cannot constitute the exercise of physical control over its speed or direction. ¶22 The second part of the definition the physical manipulation or activation of the controls of a snowmobile to put it in motion does not necessarily require the snowmobile to actually be in motion. 544, 555 N.W.2d 399 See State v. Modory, 204 Wis. 2d 538, (Ct. App. 1996); Milwaukee County v. Proegler, 95 Wis. 2d 614, 628, 291 N.W.2d 608 (Ct. App. 1980). It does, however, plainly require some affirmative physical act of manipulation or activation of necessary to put it in motion. the snowmobile's controls Sitting on a parked snowmobile with its engine off is not, without more, the "manipulation or activation" of the snowmobile's controls necessary to put it in motion. ¶23 The court of appeals majority relied upon Proegler and Modory to support the conclusion that Zimmerman was operating his snowmobile within the meaning of Wis. Stat. § 350.01(9r). As noted by the court of appeals' dissent, however, Proegler and Modory actually support the opposite conclusion. ¶24 Proegler involved the prosecution of a drunk driver who had been found asleep and intoxicated at the wheel of his parked but still running "restraining physical the vehicle. movement manipulation of The of a a court of running vehicle's 10 appeals vehicle held that constitutes controls . . . ." No. Proegler, 95 Wis. "'[o]peration' of 2d a at 627-28. vehicle The occurs court either concluded when starts the motor and/or leaves it running." 00-3258 a that defendant Id. at 628-29. Accordingly, Proegler stands for the proposition that "operate" for purposes of the drunk driving statutes includes starting the engine or restraining the movement of a parked but still running vehicle.7 ¶25 Modory also involved a drunk driving prosecution. There, the defendant was in the driver's seat at the controls of his pickup truck, with the truck's engine running and its wheels spinning, but going nowhere, because the truck was stuck on a mound of dirt. Modory, 204 Wis. 2d at 540. The court of appeals held that the immobility of the truck was immaterial, because the physical manipulation or activation of the controls of the vehicle for purposes of the definition of "operate" did not necessarily require that the vehicle be moving. The court concluded that the defendant had "performed the requisite acts" under the definition of "operate" for purposes of the drunk driving laws, because "[h]e was behind the wheel of a vehicle 7 Burg attempts to bolster his argument by reference to the general definition of "operator" contained in the motor vehicle code. Wisconsin Statute § 340.01(41) defines "operator" as "a person who drives or is in actual physical control of a vehicle." Wis. Stat. § 340.01(41). This is unavailing for two reasons. First, Chapter 350, which governs snowmobiles, has its own definition of "operator." See Wis. Stat. § 350.01(9w). Second, Wis. Stat. § 340.01(74) generally excludes snowmobiles from the motor vehicle code, except where otherwise specified: "[a] snowmobile shall not be considered a vehicle except for purposes made specifically applicable by statute." 11 No. 00-3258 with the engine running and was attempting to free the vehicle from its stuck position." ¶26 stopping Here, the the Id. at 543-44. court appeals focused and snowmobile of turning off on its the act motor as of the requisite "physical manipulation" of the snowmobile's controls. But this misreads the evidence in the case. Zimmerman was not in the process of stopping his snowmobile and turning off its engine when the accident occurred; he had done that five minutes Proegler and Modory involved drunk drivers who were earlier. exercising some form of control over running vehicles in Proegler, restraining it from moving, and in Modory, attempting to move it. ¶27 Zimmerman In contrast, was merely at the sitting parked with its engine off. time on his of the accident snowmobile while here, it was This is insufficient to constitute "operation" of the snowmobile for purposes of the head and tail lamp illumination circuit court requirement correctly in Wis. concluded Stat. that § 350.09.8 Zimmerman was The not negligent per se for violation of Wis. Stat. § 350.09. 8 Mothers Against Drunk Driving filed an amicus curiae brief in this case, concerned about any influence it might have on the enforcement of drunk driving laws. We do not perceive any potential for negative affect. This case concerns a safety statute that specifies when the driver of a snowmobile must illuminate the snowmobile's head and tail lamps. The definition of "operate" in the drunk driving statutes is not at issue. Furthermore, "operation" for purposes of the drunk driving laws can be proved circumstantially. A defendant found intoxicated behind the wheel of a parked car with its engine off but still warm might well be prosecuted on that circumstantial evidence of recent "operation." 12 No. ¶28 The circuit court also correctly 00-3258 concluded Wis. Stat. § 346.51 does not apply to this case. that This statute prohibits the parking, stopping, or standing of any vehicle, attended or unattended, upon the roadway of any highway outside a business or residence district.9 Wisconsin Statute § 340.01(54) defines "roadway" as "that portion of a highway between the regularly established curb lines or that portion which is improved, designed or ordinarily used for vehicular travel, excluding the berm or shoulder." The graded but still unfinished bed of highway lanes under construction is clearly not a "roadway" under this definition. Accordingly, Wis. Stat. § for 346.51 does not provide a basis finding Zimmerman negligent per se. 9 Wisconsin Statute § 346.51 is made applicable to snowmobiles by Wis. Stat. § 346.02(10), and provides, in pertinent part: (1) No person shall park, stop or leave standing any vehicle, whether attended or unattended, upon the roadway of any highway outside a business or residence district when it is practical to park, stop or leave such vehicle standing off the roadway, but even the parking, stopping or standing of a vehicle off the roadway of such highway is unlawful unless the following requirements are met: (a) An unobstructed width of at least 15 feet upon the roadway of such highway must be left opposite such standing vehicle for the free passage of other vehicles. . . . (b) Such standing vehicle must be capable of being seen by operators of other vehicles from a distance of 500 feet in each direction along such highway. . 13 No. 00-3258 ¶29 To summarize, Wis. Stat. § 350.09 requires anyone who "operates" a snowmobile during the hours of illuminate the snowmobile's head and tail lamps. darkness to Because the statutory definition of "operate" does not include the act of sitting on a parked snowmobile with its engine off, Zimmerman was not negligent per se for failing to have the head and tail lamps of his snowmobile illuminated at the time of the accident. Furthermore, an unfinished roadbed under construction does not constitute a "roadway" for purposes of Wis. Stat. § 346.51, which prohibits the parking, standing, or stopping of a vehicle on a roadway, and therefore does not provide a basis for a finding of negligence per se.10 The court of appeals is of appeals is reversed. By the Court. The decision of the court reversed. 10 That Zimmerman was not negligent per se does not mean he could not be found negligent for parking his unilluminated snowmobile in the path of other snowmobiles. The jury, however, found him not negligent. 14 No. ¶30 N. PATRICK CROOKS, J. 00-3258.npc I cannot join (dissenting). the majority's opinion because I conclude that the driver of the snowmobile was indeed "operating" the snowmobile as defined in Wis. Stat. § 350.01. I would affirm the court of appeals' decision that stopping a snowmobile and turning off its motor is "operation," because such actions require the exercise of physical control over the speed and direction of the snowmobile. Accordingly, I respectfully dissent. ¶31 The majority concludes that the term "operate" in Wis. Stat. § 350.09 does not include the actions of a driver sitting on a parked snowmobile after having stopped it and shut off the motor. The majority divides the definition of "operate" into two qualifying activities, but concludes that here, the driver is not direction of exercising the physical snowmobile, control nor does over the the driver's speed or conduct qualify as the manipulation or activation of the snowmobile's controls necessary to put it in motion. In drawing these conclusions, the majority seems to rely largely on one fact: the snowmobile's motor was shut off. Although I agree that the facts here indicate that the snowmobile's motor was not running at the time of the accident, I respectfully disagree that because the motor was turned off, the driver was not, under the facts presented, "operating" the snowmobile. ¶32 The majority interprets "operate" to require acts of a positive nature, such as having the motor running, so that the snowmobile is prepared for positive movement. such a distinction. Based on 1 the plain I do not draw language of the No. definition in Wis. Stat. § 350.01(9r), "operate" 00-3258.npc requires the "exercise of physical control" or the "physical manipulation or activation of any of the controls." appeals' conclusion in this case I agree with the court of that a person's actions in stopping a snowmobile and turning off the motor fall within the definition of control over bringing it "operate." the to a speed The or stop. driver is direction of Moreover, the exercising the physical snowmobile driver by is physically manipulating the controls by turning off the engine. "The fact that such actions stop the snowmobile certainly renders those actions no less controlling of speed and direction than other actions that accelerate the snowmobile or change its course." Burg v. Cincinnati Cas. Ins. Co., 2001 WI App 241, ¶10, 248 Wis. 2d 145, 635 N.W.2d 622 (emphasis in original). "[t]he fact that the manipulation stopped the Moreover, snowmobile's motion certainly renders that action no less a manipulation of the controls necessary to put the snowmobile in motion." Id. at ¶11 (emphasis in original). ¶33 Proegler, As the court of appeals noted, Milwaukee County v. 95 Wis. 2d 614, 291 N.W.2d 608 supports this interpretation of "operate." (Ct. App. 1980), In Proegler, the court concluded that a drunk driver, sleeping in a parked car with the motor running, was operating the vehicle. 95 Wis. 2d at 628-629; see also State v. Modory, 204 Wis. 2d 538, 545, 555 N.W.2d 399 (Ct. App. 1996) (concluding that a drunk driver sitting in the driver's seat with engine running and wheels spinning, but stuck on a mound of dirt, was operating the 2 No. vehicle). The majority here relies on 00-3258.npc Proegler for the proposition that "operate" requires that the motor be running. I respectfully disagree. Comparing the facts in Proegler to the facts in this case demonstrates how interpreting "operate" in terms of whether the motor is running relies on inappropriate distinctions. To me, a wide-awake person still sitting on a snowmobile after having stopped it and turned the motor off has more physical control over the speed or direction of the snowmobile than a drunk driver sleeping in a parked car with the motor running. ¶34 "operate" I See Burg, 2001 WI App 241, ¶12. find by further support this it the definition contrasting for with interpretation of of "drive." "'Drive' means the exercise of physical control over the speed and direction of a motor Wis. Stat. § 346.63(3)(a) vehicle while (emphasis it added). is in The motion." majority's interpretation of "operate" which relies largely on the fact that the motor is running seems more akin to this definition of "drive," rather than the definition of "operate." majority does not require "motion" in its Although the interpretation of "operate," the majority does require that the motor be running, and the difference seems minimal to me. Focusing on "the exercise of physical control" and "physical manipulation," in a broader sense of action having either a positive or negative effect over the speed or direction of the snowmobile makes sense to me in order to distinguish clearly between "operate" and "drive." 3 No. ¶35 this 00-3258.npc Furthermore, I conclude that interpreting "operate" in way makes sense when applied to the facts here. The accident occurred in the middle, as opposed to the beginning or the end, of Zimmerman's snowmobiling trip. Granted, he was not driving at the time of the accident because the snowmobile was not in motion. He was, however, operating the snowmobile. He started operating the snowmobile when he left on his trip. At the time of the accident he was still operating his snowmobile when he was sitting on it after affirmatively manipulating the controls to stop it and turn off the motor. physically controlling, albeit in Moreover, he was a negative way, term "operate" the snowmobile's speed or direction. ¶36 Finally, interpreting the to include both positive and negative acts of physical control over the speed or direction seems logical, especially with respect to snowmobiles. In comparison to other motor vehicles, a snowmobile is small; therefore, it seems possible to manipulate the controls and have physical control over the speed or direction of the snowmobile without having the motor running. By requiring that the motor be running to "operate," the majority would have to conclude that if a person is pushing a snowmobile, with the motor off, the person is not exercising physical control over the speed or direction of the snowmobile; 4 No. to decide to the contrary, would violate the 00-3258.npc majority's interpretation of "operate."11 ¶37 I conclude that "operate" is appropriately interpreted to include the exercise of physical control over the speed or direction of a snowmobile in both positive and negative ways. Applied here, Zimmerman was operating the snowmobile. He had recently brought the snowmobile to a stop and turned off the motor, which required the physical manipulation of the controls. Furthermore, at the time of the accident Zimmerman was physically controlling the snowmobile's speed and direction by restricting its movement. of appeals' decision. Accordingly, I would affirm the court For the reasons stated, therefore, I respectfully dissent. 11 I also agree with the court of appeals' conclusion that the circuit court's and now the majority's interpretation of "operate" renders an ironic result under the facts of this case. Burg v. Cincinnati Cas. Ins. Co., 2001 WI App 241, ¶12 n.8, 248 Wis. 2d 145, 635 N.W.2d 622. "[T]he operator of a snowmobile that is stopped with its motor off would not be negligent per se, while the operator of a snowmobile that is stopped with its motor on would be negligent per se, although he or she would be better able to quickly respond to a dangerous situation." Id. For this additional reason, therefore, I respectfully disagree with the majority's reliance on the fact that the motor must be running in order to "operate" a snowmobile. 5 No. ¶38 I am authorized to state that Justices BABLITCH and DAVID T. PROSSER join this dissent. 6 00-3258.npc WILLIAM A. No. 1 00-3258.npc
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