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COURT OF APPEALS DECISION DATED AND RELEASED June 1, 1995 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-2587
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
VERA FLANAGAN,
Plaintiff-Respondent,
v.
CITY OF NEW LONDON,
WISCONSIN,
CITIES AND VILLAGES
MUTUAL INSURANCE COMPANY,
Defendants-Appellants,
MAIL HANDLERS BENEFIT
PLAN,
Defendant.
APPEAL from a judgment
of the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. The City of New London and the Cities and
Villages Mutual Insurance Company (collectively "New London") appeal
from a judgment entered on a jury verdict awarding Vera Flanagan $23,217.28 for
injuries sustained in a fall on a city sidewalk.[1] The issues are whether New London is immune
from suit, and, if not, whether the sidewalk's defect was insufficient as a
matter of law. We conclude that the
immunity of § 893.80(4), Stats.,
does not apply to actions under § 81.15, Stats.,
which creates municipal liability for sidewalk defects, and that New London
waived any defense that it could have raised by summary judgment. Therefore, we affirm.
Flanagan tripped and
fell on a city sidewalk depression of less than three-quarters of an inch. The jury found that the City was causally
negligent for failing to maintain its sidewalks in proper repair, but assessed
twenty-five percent contributory negligence against Flanagan. New London moved to change the verdict
answers and for judgment notwithstanding the verdict. The trial court denied New London's motions and entered judgment
on the verdict.
New London claims
immunity under § 893.80(4), Stats.,
because maintaining a sidewalk is a discretionary, rather than a ministerial
act. Section 81.15, Stats., creates municipal liability,
not immunity. It references § 893.80
for notices of injury and claim, not for immunity. See § 893.80(1)(a) and (b). Section 893.80(4) imposes immunity for quasi-legislative and
quasi-judicial functions; it does not grant immunity for sidewalk maintenance,
particularly since § 81.15 expressly imposes limited liability for failure to
maintain sidewalks.
New London also asserts
that it is entitled to judgment as a matter of law under McChain v. City
of Fond du Lac, 7 Wis.2d 286, 293-94, 96 N.W.2d 607, 611-12 (1959),
which granted summary judgment to Fond du Lac because the sidewalk depression
was only three-quarters of an inch. Id.
at 291, 96 N.W.2d at 609-10. McChain
did not successfully oppose summary judgment.[2] Id. at 290-91, 96 N.W.2d at
610. Here, the sidewalk's depression
was less than three-quarters of an inch.
New London relies on McChain's holding that such a minimal
depression is not actionable as a matter of law.[3] Id. at 293-94, 96 N.W.2d at
611-12. New London did not assert this
defense before trial. Had New London
moved for summary judgment, McChain would have supported its
position.[4]
Section 81.15, Stats., imposes limited liability for
the "insufficiency or want of repairs" of a sidewalk which the city
"is bound to keep in repair."
Generally, "insufficiency or want of repairs" is a jury
question. The jury found New London
negligent for failing to maintain its sidewalk. Although New London defended its policy only to correct defects
of more than three-quarters of an inch, its policy does not protect it from
liability. The jury considered its
policy, but determined that this particular defect constituted
"insufficiency or want of repairs."
The trial court instructed the jury on sidewalk defects and
insufficiencies. Wis J I—Civil 8035 instructs that
"[e]very municipality has the duty to exercise ordinary care to construct,
maintain and repair its sidewalks so that they will be reasonably safe for
public travel." It expressly
instructs that sidewalks must be reasonably, not absolutely, safe. New London did not object to this
instruction.[5] See § 805.13(3), Stats.
New London's acquiescing to a jury trial under § 81.15 by not moving for
summary judgment, and its failing to object to Wis J I—Civil 8035, constitute waiver to the proposed McChain
defense that this defect was not actionable as a matter of law. See McChain, 7 Wis.2d
at 293-94, 96 N.W.2d at 611-12.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The jury awarded $29,095.74, however it assessed twenty-five percent negligence against Flanagan.
[2] The counteraffidavit was based on information and belief, rather than on personal knowledge. Id. at 290-91, 96 N.W.2d at 610.
[3] The angle of the sidewalk rendered the depression between one-quarter and three-quarters of an inch, depending upon precisely where Flanagan fell. Assuming arguendo that Flanagan fell at the most depressed point, the distance was slightly less than three-quarters of an inch.