Burg ex rel. Weichert v. Cincinnati Casualty Insurance Co., 2002 WI 76, 254 Wis. 2d 36

Summary

The Supreme Court of Wisconsin held that sitting on a parked snowmobile with its engine off does not constitute operating the snowmobile under Wis. Stat. § 350.01(9r), and therefore did not trigger the nighttime lighting requirement of Wis. Stat. § 350.09. The court also held that an unfinished, graded highway bed under construction was not a roadway under Wis. Stat. § 346.51, reversed the court of appeals, and concluded that the defendant was not negligent per se under either statute.

Holdings

1. A person merely sitting on a parked snowmobile with its engine off is not operating the snowmobile within the meaning of Wis. Stat. § 350.01(9r). Therefore, the person was not negligent per se under Wis. Stat. § 350.09 for failing to illuminate the snowmobile's head and tail lamps.
2. A graded but unfinished bed of highway lanes under construction is not a roadway within the meaning of Wis. Stat. § 346.51. Consequently, the statute did not provide a basis for finding Zimmerman negligent per se.

Questions Presented

1. Whether a person sitting on a parked snowmobile with its engine off is "operating" the snowmobile under Wis. Stat. §§ 350.01(9r) and 350.09, such that failure to illuminate the head and tail lamps constitutes negligence per se.
2. Whether a graded but unfinished highway roadbed under construction constitutes a "roadway" under Wis. Stat. § 346.51, which prohibits parking, stopping, or standing a vehicle on a roadway.

Disposition

reversed