COURT OF APPEALS DECISION DATED AND RELEASED January 14, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0715
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Mary McCoats,
Plaintiff-Appellant,
v.
Threshermen's Mutual
Insurance Company,
Hallowed Missionary
Baptist Church and
Robert L. Pugh,
Defendants-Respondents,
Wisconsin Health
Organization Ins., Corp.,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER CURIAM. Mary McCoats appeals from a judgment granted
to Threshermen's Mutual Insurance Company, Hallowed Missionary Baptist Church
and Robert L. Pugh. McCoats claims that
the trial court erred in granting summary judgment because: (1) the
defendants failed to establish a prima facie case for summary judgment;
(2) Wisconsin imposes liability for negligence which foreseeably causes
injury; (3) public policy does not bar McCoats's recovery; and (4) if
current law does not allow her to recover, it should be changed. Because the landowners abutting a municipal
sidewalk cannot be held liable for injuries sustained when McCoats slipped and
fell on the sidewalk outside Hallowed Missionary, we reject each of her
arguments and affirm.
I. BACKGROUND
On December 6, 1991,
McCoats walked along the sidewalk in front of Hallowed Missionary Baptist
Church. The caretaker of the church,
Pugh, had recently shoveled snow from the sidewalk. McCoats slipped and fell and sustained injuries. She commenced a lawsuit against Pugh, the
church and its insurer (Threshermen's).
The defendants filed a
motion seeking summary judgment. The
trial court granted the motion.
Judgment was entered. McCoats
now appeals.
II. DISCUSSION
When reviewing a grant
of summary judgment, we apply the standards set forth in § 802.08, Stats., just as the trial court applies
those standards. Voss v. City of
Middleton, 162 Wis.2d 737, 747-48, 470 N.W.2d 625, 628-29 (1991). The standard has been repeated so often that
we decline to do so here. See id.
We agree that it was
proper to grant summary judgment in this case.
It has been the longstanding law in this state that owners of premises
abutting a city street are not responsible to individuals for injuries
that result from failure to remove snow or ice from the municipal
sidewalk. Walley v. Patake,
271 Wis. 530, 540, 74 N.W.2d 130, 135 (1956).
Maintenance of a municipal sidewalk is a nondelegable duty and,
therefore, the City, rather than the landowner, is responsible for injuries
suffered while injured transversing the city sidewalk. Hagerty v. Village of Bruce,
82 Wis.2d 208, 213-14, 262 N.W.2d 102, 104 (1978).
McCoats argues that the
Restatement (2d) of Torts, § 324A, which says that even where a person has
no duty to act, if that person chooses to act, he or she must act in a
non-negligent manner, applies to this case.[1] She argues that because Pugh chose to shovel
the sidewalk he had to do so in a non-negligent manner. We reject this argument. Although Wisconsin has adopted this
restatement in general, see American Mut. Liability Ins. Co. v.
St. Paul Fire & Marine Ins. Co., 48 Wis.2d 305, 313, 179 N.W.2d
864, 868 (1970), it is not applicable in the context of keeping a municipal
sidewalk free of ice and snow.
McCoats also argues that
if she cannot recover, she has suffered an injury without a remedy. We reject this argument. Section 81.15, Stats., specifically prescribes that a city may be held
liable for failing to maintain its highways.[2] This includes sidewalks. Schattschneider v. Milwaukee &
Suburban Trans. Corp., 72 Wis.2d 252, 258, 240 N.W.2d 182, 185
(1976). The legislature has determined,
however, that the cause of action lies only if the snow has been present for
three weeks. The proper party to
“remedy McCoats's injuries” is the city, but only if she can prove that the
snow/ice was present for three weeks.
McCoats also argues that
no public policy factor operates to bar her claim. It is not necessary to even reach a public policy analysis,
however, because Wisconsin substantive law will not hold a landowner liable for
a duty delegated to a municipality. See
Hagerty, 82 Wis.2d at 213-14, 262 N.W.2d at 104.
Finally, McCoats argues
that if Wisconsin law does not allow her claim against the church, it should be
modified or change. This court,
however, is an error-correcting court. See
State v. Strege, 116 Wis.2d 477, 492, 343 N.W.2d 100, 108
(1984). Therefore, we decline to engage
in lawmaking. Based on the foregoing,
we conclude summary judgment was properly granted.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Restatement of Torts,
§ 324A provides:
One
who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise
reasonable care increases the risk of such harm, or
(b) he has undertaken to perform
a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
[2] Section 81.15, Stats., provides in pertinent part:
If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village.... No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.