Binder v. City of Madison

• Decision Date: 14 May 1976
• Docket Number: R,No. 4,No. 168,4,168
• Citation: 72 Wis.2d 613,241 N.W.2d 613
• Parties: Kenneth C. BINDER, Appellant, v. CITY OF MADISON, a Municipal Corporation, and Area, Vocational, Technical and Adult Education Districtespondents. (1974).
• Court: Wisconsin Supreme Court

Page 613

241 N.W.2d 613

72 Wis.2d 613

Kenneth C. BINDER, Appellant, v. CITY OF MADISON, a Municipal Corporation, and Area Vocational, Technical and Adult Education District No. 4, Respondents.

No. 168 (1974).

Supreme Court of Wisconsin.

Argued Jan. 5, 1976.

Decided May 14, 1976.

James P. Brennan and Simarski, Goodrich, Brennan & Stack, Milwaukee, on brief.

James P. Brennan, Milwaukee (argued), for appellant.

Robert E. Olsen, Asst. City Atty. (argued), for City of Madison; Henry A. Gempeler, City Atty., on brief.

John M. Koeppl, Madison (argued), for Area Vocational, Technical and Adult Ed. Dist. No. 4; Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief.

Jean G. Setterholm and Paul J. Swain, Madison, for the League of Wisconsin Municipalities, amicus curiae.

DAY, Justice.

The order appealed from sustains the demurrer of the defendant, City of Madison ('City'). Summary judgment was granted in favor of the other defendant, Area Vocational, Technical, and Adult Education District No. 4 ('VTAE District').

The issues on appeal concern the application and constitutionality of state statutes ¹ requiring that one tortiously injured on public property give notice of the injury, and file claims with the appropriate agency as a prerequisite to maintaining a court action.

The complaint in this action alleges that on July 3, 1970, the plaintiff, Kenneth C. Binder, in the course of his employment with American District Telegraph Company, was installing an alarm system in the auditorium located in the Madison Area Technical College, a building operated by the VTAE District, to which title was held by the City. While working in an area above the auditorium's ceiling, Mr. Binder stepped on a glass skylight and fell through to the auditorium floor, resulting in serious and permanent personal injuries. He was rendered unconscious 'for a long period of time,' and hospitalized for a 'sustained period.' The complaint alleges a cause of action under the Safe Place Statute, and an alternative cause of action in common law tort, on the basis of defendants' failure to provide adequate lighting, to warn Mr. Binder of the skylights (which had been painted grey, the same color as the rest of the floor above the ceiling), and to provide catwalks.

This action was commenced on June 21, 1973, by service of a summons upon each of the defendants. This was a few days before the expiration of the three-year statute of limitations, sec. 893.205, Wis.Stats. Mr. Binder, however, concedes that he had not given formal notice of his injury within 120 days of the accident, pursuant to sec. 895.43(1), Stats., to either defendant. Moreover, he had not filed a claim for damages with either the City Council or the VTAE District as required by sec. 65.25 and sec. 118.26.

The City demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Specifically, the City alleged that Binder had not filed a claim pursuant to sec. 65.25, Wis.Stats. On January 24, 1974, the trial court issued a written decision sustaining the City's demurrer on this basis, and the action was dismissed. Under the statute, the City's demurrer was properly sustained. To maintain a suit against a city (as contrasted to merely commencing such a suit) it is necessary to specifically plead that the plaintiff has presented a claim to the City Council in compliance with sec. 62.25, Stats. In Foreway Express, Inc. v. Hilbert (1966), 32 Wis.2d 371, 373, 145 N.W.2d 668, 670, this court said:

'. . . we conclude that under sec. 62.25(1)(a) a complaint in a tort action against a village or a city is demurrable when the complaint fails to allege that a claim has been presented to the board or council and has been disallowed.'

See also Schwartz v. Milwaukee (1969), 43 Wis.2d 119, 126, 168 N.W.2d 107; Sambs v. Nowak (1970), 47 Wis.2d 158, 177 N.W.2d 144. In the present case, compliance with sec. 62.25 was not pleaded; and it is conceded that there was in fact no claim presented.

The VTAE District filed an answer with affirmative defenses and a 'plea in bar' alleging that Mr. Binder had failed to file a claim with the VTAE District Board pursuant to sec. 118.26, Stats., and had failed to give notice of injury within 120 days pursuant to sec. 895.43, Stats. The VTAE District then moved for summary judgment, providing in support of this motion an affidavit of the secretary of the VTAE District Board, stating that no notice of injury and no notice of claim had been filed by Mr. Binder with the board. Mr. Binder presented no counteraffidavits to refute defendant's claim of lack of notice, and concedes that no notice of claim was given pursuant to sec. 118.26, but claims that no such notice is required in this case because a vocational school district is not a 'school district' within the meaning of sec. 118.26, Stats. Defendant challenges the right of Mr. Binder to raise this issue, since it was not raised in the trial court. Mr. Binder has no appeal of right. Because the issue involves a question of law rather than of fact, and has been briefed by both sides, we hold that it is one of sufficient public interest to merit decision. State v. Conway (1967), 34 Wis.2d 76, 82, 83, 148 N.W.2d 721; State ex rel. Gen. Motors Corp. v. Oak Creek (1971), 49 Wis.2d 299, 319, 182 N.W.2d 481.

School district is defined for purposes of Title XIV of the statutes (which includes ch. 118) in sec. 115.01(3), Stats. ² Plaintiff argues that since the statute does not specifically mention VTAE districts, they should not be considered 'school districts' for purposes of sec. 118.26, and that since no comparable statutory provision requiring presentation of a claim is contained in ch. 38, Wis.Stats., which concerns VTAE District functions specifically, the VTAE District does not benefit from any notice-of-claim requirement. He also emphasizes that the distinction between the old local VTAE boards, which could be sued in the name of their parent municipality or school district ³ and therefore benefited from notice-of-claim statutes applicable to those bodies, and the new VTAE districts authorized by sec. 41.155, Stats. (1965) (later sec. 38.155, Stats. (1969)), which are independent of local control and specifically authorized to sue and be sued in their own right, ⁴ and for which no separate notice-of-claim statute is provided.

We agree with the VTAE District that there is no evidence of a legislative intent to deprive VTAE districts of the notice-of-claim protection that their predecessor agencies enjoyed for nearly 50 years during which they were subsidiaries of municipalities and school boards, and could take advantage of those bodies' notice-of-claim statutes. In 1965, VTAE districts came into being as independent entities. In the original statute providing for their organization, sec. 41.155(1), Wis.Stats. (1965), they were specifically referred to as 'school districts.' ⁵ Although this description was subsequently dropped, there is nothing to indicate that when the VTAE districts were made separate entities with the power to sue and be sued in their own name, independent of either municipalities or school districts, they were no longer to be considered school districts for purposes of sec. 118.26, Stats. Sec. 115.01(3), Stats., on which Mr. Binder relies, has remained unchanged in any relevant way since before the independence of VTAE districts ⁶--since the time when VTAE boards were covered by sec. 118.26. We find it impossible to infer from the legislature's failure to amend sec. 115.01(3) an intent to exclude VTAE districts from notice-of-claim processes applicable to school districts and local governments generally. In light of this history, we conclude that the doctrine of expressio unius est exclusio alterius is inapplicable to the construction of sec. 115.01(3). Columbia Hosp. Assn. v. Milwaukee (1967), 35 Wis.2d 660, 669, 151 N.W.2d 750. VTAE districts are covered by sec. 118.26 and summary judgment was properly granted.

Because this holding is dispositive of this case, it is not necessary to discuss Mr. Binder's contention that summary judgment was not appropriate under sec. 895.43(1), Wis.Stats., because of the possibility of 'actual notice' under that statute.

Mr. Binder also seeks to challenge the constitutionality of secs. 62.25, 118.26, and 895.43, Stats., on the ground that these statutes deny 'equal protection of the laws' to persons injured by governmental, as opposed to private, tortfeasors. No attack on the constitutionality of these sections was made at the trial court level. As with any other issue not raised in the trial court, this court will generally not review constitutional questions raised for the first time on appeal. Wisconsin Power & Light Co. v. Dean (1957), 275 Wis. 236, 242, 81 N.W.2d 486. There are, of course, exceptions to this rule. Sambs v. Brookfield (1975), 66 Wis.2d 296, 314, 224 N.W.2d 582. In Hortonville Educ. Assn. v. Joint School Dist. No. 1 (1975), 66 Wis.2d 469, 479, 225 N.W.2d 658, 663:

'The general rule is that issues not presented to the trial court will not be considered for the first time on appeal. Estate of Scherffius (1974), 62 Wis.2d 687, 696, 697, 215 N.W.2d 547; Resseguie v. American Mut. Liability Ins. Co. (1971), 51 Wis.2d 92, 103, 104, 186 N.W.2d 236. With respect to constitutional issues, this court had said it may, in its discretion, consider such issues for the first time on appeal if it is in the interest of justice to do so and there are no unresolved factual issues. State v. Morales (1971), 51 Wis.2d 650, 654, 187 N.W.2d 841; Bradley v. State (1967), 36 Wis.2d 345, 359, 359a, 153 N.W.2d 38, 155 N.W.2d 564.'

See also State v. Weidner (1970), 47 Wis.2d 321, 323, 177 N.W.2d 69.

As to sec. 895.43(1) there are unresolved questions of fact concerning the VTAE District's 'actual notice' of Mr. Binder's injury. If 'actual notice' were given, this statute would not bar Mr....