Anderson v. City of Milwaukee

Decision Date28 February 1997
Docket Number94-2162,Nos. 94-1030,s. 94-1030
Citation559 N.W.2d 563,208 Wis.2d 18
PartiesShirley D. ANDERSON, Plaintiff-Respondent, v. CITY OF MILWAUKEE, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner the cause was argued by Rudolph M. Konrad, Deputy City Attorney with whom on the briefs were Michael G. Tobin, Assistant City Attorney and Grant F. Langley, City Attorney.

For the plaintiff-respondent there was a brief by Thomas M. Pyper and Whyte Hirschboeck Dudek, S.C., Madison and oral argument by Thomas M. Pyper.

Amicus curiae brief was filed by Claire Silverman, assistant legal counsel, for the League of Wisconsin Municipalities.


The City of Milwaukee (City) seeks review of a published decision of the court of appeals, 1 which affirmed a judgment and order of the Circuit Court for Milwaukee County. The court of appeals held that the City had waived, by omission, the $50,000 liability damage limitation under Wis.Stat. § 893.80(3) (1991-92) 2 when it failed to plead it as an affirmative defense in its answer, and failed to raise it in motions after verdict. The court of appeals further held that the City is not immune under Wis.Stat. § 893.80(4) 3 from liability for the design of a walkway it constructed, owned, and maintained, because the City has a ministerial duty to comply with Wis.Stat. § 101.11, 4 the safe-place statute. We conclude that the $50,000 damage limitation cannot be waived by omission. Instead, the damage limitation may only be expressly waived by a public entity in situations such as outlined in Stanhope v. Brown County, 90 Wis.2d 823, 280 N.W.2d 711 (1979), where the purposes of the damage limitation statute are met. We further conclude that, in this case, the City waived the discretionary immunity defense of § 893.80(4) by failing to plead it as an affirmative defense. 5 Therefore, we do not reach the issue of whether the City has a ministerial duty to comply with the safe-place statute. Accordingly, we reverse the decision of the court of appeals.


¶2 On July 8, 1989, Shirley D. Anderson (Anderson) was shopping at the Fondy Farmer's Market when she tripped and fell on a raised line of bricks located on the market's walkway. The City constructed, owned, and maintained the market. Anderson broke her knee as a result of this incident.

¶3 On October 6, 1989, Anderson filed what she designated as a "notice of circumstances and claim" with the City, pursuant to Wis.Stat. § 893.80(1)(a). Anderson made a claim for $200,000, but further stated To the extent it is determined that Ms. Anderson's claim is limited to the $50,000 amount set forth in section 893.80(3), Stats., Ms. Anderson hereby makes claim for the full $50,000 without waiving her right to claim the full amount of her compensatory damages should Wisconsin law entitle her to recover such amount.

(Respondent's Appendix at 206.) The City did not respond to the claim; therefore, it was deemed denied under § 893.80(1)(b) after the passage of 120 days.

¶4 On July 11, 1990, Anderson filed suit in the circuit court, alleging that the City had violated Wis.Stat. § 101.11, the safe-place statute, by negligently designing, constructing, maintaining, and repairing the walkway. On August 3, 1990, the City filed an answer denying the allegations and pleading the affirmative defenses of contributory negligence and failure to mitigate damages. The City did not raise the Wis.Stat. § 893.80(3) damage limitation or the Wis.Stat. § 893.80(4) discretionary immunity defense in its answer, or in any pre-trial motions.

¶5 On January 31, 1991, Anderson filed an offer of settlement of $25,000 with the City. The City refused the offer, and the case proceeded to trial.

¶6 A jury trial was held from June 29, 1993 to July 2, 1993, before the Honorable Robert J. Miech. At the close of the evidence, the City moved for a directed verdict on the basis that it was immune from liability for the design of the walkway under Wis.Stat. § 893.80(4), because this constituted a discretionary act. The circuit court denied the motion.

¶7 The City also objected to special verdict question one, submitted by Anderson, which provided: "Was the City of Milwaukee negligent by failing to design, construct, maintain or repair the Fondy Mall walkway as safe as the nature of the walkway would reasonably permit?" The attorney for the City stated: "The only objection I have to [the special verdict] is the question concerning number one, to construct, maintain and all the rest of the stuff. I think negligence with respect to maintenance is all we need in this case and I don't think anything else is relevant." (R. 47 at 48-49.) The circuit court noted this objection, but the question was not changed. On July 2, 1993, the jury found the City negligent and ordered compensatory damages of $443,600.87.

¶8 On July 22, 1993, the City filed a motion after verdict, requesting the circuit court to: (1) change the jury answers finding the City negligent; (2) reduce the jury award of damages to "reflect an appropriate sum of money which under the evidence fairly constitutes" Anderson's losses; and (3) set aside the verdict because it was perverse, contrary to the law, and contrary to the evidence. The City never contacted the circuit court to request a hearing on this motion. Accordingly, the motion was considered denied under Wis.Stat. § 805.16(3) after the passage of ninety days.

¶9 On November 16, 1993, Anderson submitted a proposed judgment for the full verdict amount of $443,600.87 to the circuit court. On November 19, 1993, the City sent a letter to the circuit court in which it objected to the proposed judgment based on the damage limitation under Wis.Stat. § 893.80(3). The City also enclosed a proposed judgment for $50,000. On March 18, 1994, the circuit court entered judgment on the verdict pursuant toWis.Stat. § 805.16(3) because the ninety-day period for motions after verdict had expired. The circuit court therefore signed Anderson's proposed judgment for $443,600.87. 6

¶10 On April 25, 1994, the City filed a motion for post-verdict relief pursuant to Wis.Stat. §§ 806.07(1)(d) and (h), asking the circuit court to vacate the judgment on the grounds that it was void as a matter of law based on the $50,000 damage limitation under Wis.Stat. § 893.80(3). The circuit court, the Honorable Jacqueline D. Schellinger presiding, denied the motion. The circuit court determined that the judgment was not void because the City waived the damage limitation. The circuit court further concluded that the City was not entitled to equitable relief because it failed to raise the issue in a timely fashion. 7

¶11 The court of appeals affirmed the judgment and order of the circuit court. The court of appeals determined that the damage limitation under Wis.Stat. § 893.80(3) is not a jurisdictional requirement; therefore, it may be waived by omission if a party does not properly raise it. Anderson v. City of Milwaukee, 199 Wis.2d 479, 491, 544 N.W.2d 630 (1996). Accordingly, the court of appeals concluded that the City had waived the damage limitation by its omission in failing to plead it as an affirmative defense, and failing to raise it in motions after verdict. Id. at 491-92, 544 N.W.2d 630. In addition, the court of appeals concluded: "Once the City exercised its overall discretion and decided to design and construct the farmer's market, it had to comply with the safe-place statute mandates." Id. at 493, 544 N.W.2d 630. The court of appeals therefore held that the City is not immune from liability under Wis.Stat. § 893.80(4) for the design of the walkway because the City has a ministerial duty to comply with the safe-place statute. Id. at 494, 544 N.W.2d 630.


¶12 The first issue before us is whether a municipality may waive the $50,000 damage limitation under Wis.Stat. § 893.80(3) by omission. Statutory interpretation is a question of law, which we review de novo. E.g., Stockbridge School Dist. v. Department of Pub. Instruction Sch. Dist. Boundary Appeal Bd., 202 Wis.2d 214, 219, 550 N.W.2d 96 (1996); Hughes v. Chrysler Motors Corp., 197 Wis.2d 973, 978, 542 N.W.2d 148 (1996). "The cardinal rule in all statutory interpretation, as this court has often said, is to discern the intent of the legislature." Hughes, 197 Wis.2d at 978, 542 N.W.2d 148 (quoting Scott v. First State Ins. Co., 155 Wis.2d 608, 612, 456 N.W.2d 152 (1990)). To ascertain the legislature's intent, a court first examines the language of the statute itself. E.g., UFE Inc. v. Labor & Indus. Review Comm'n, 201 Wis.2d 274, 281-82, 548 N.W.2d 57 (1996). However, if the statute is ambiguous, a court must examine the scope, history, context, subject matter, and purpose of the statute to determine the legislature's intent. E.g., Stockbridge School Dist., 202 Wis.2d at 220, 550 N.W.2d 96; Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 327, 548 N.W.2d 519 (1996). A court should resolve statutory ambiguities to advance the legislature's basic purpose in enacting the legislation. UFE Inc., 201 Wis.2d at 288, 548 N.W.2d 57 (citing State ex rel. Carkel, Inc. v. Circuit Ct. for Lincoln County, 141 Wis.2d 257, 265-66, 414 N.W.2d 640 (1987)).

¶13 Accordingly, we turn to the language of Wis.Stat. § 893.80(3). Section 893.80(3) provides in pertinent part: "[T]he amount recoverable by any person for any damages, injuries or death in any action founded on torts against any ... governmental subdivision ... shall not exceed $50,000...." The legislature enacted this statute in 1963 in response to a decision of this court abrogating municipal tort immunity. See Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962).

¶14 For almost ninety years prior to 1962, this court held that municipalities in Wisconsin were exempt from tort liability under the doctrine of municipal tort immunity. See Hayes v. City of Oshkosh, 33 Wis. 314,...

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