Clark v. League of Wis. Municipalities Mut. Ins. Co.
| Decision Date | 31 March 2021 |
| Docket Number | Case Nos.: 2019AP954,2019AP1489 |
| Citation | 959 N.W.2d 648,2021 WI App 21,397 Wis.2d 220 |
| Court | Wisconsin Court of Appeals |
| Parties | Joyce S. CLARK, Plaintiff-Appellant, U.S. Department of Health & Human Services and United Wisconsin Insurance Company, Involuntary-Plaintiffs, v. LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE COMPANY, City of Oshkosh, Jean Wollerman and James Rabe, Defendants-Respondents. Joyce S. Clark, Plaintiff-Appellant, U.S. Department of Health & Human Services and United Wisconsin Insurance Company, Involuntary-Plaintiffs, v. League of Wisconsin Municipalities Mutual Insurance Company, City of Oshkosh, Jean Wollerman and James Rabe, Defendants-Respondents. |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. Kuborn of Apex Accident Attorneys, LLC, of Oshkosh.
On behalf of the defendant-respondent, the cause was submitted on the brief of Ashley C. Lehocky of Town Counsel Law & Litigation, LLC, of Appleton.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶1 This is a personal injury action by Joyce S. Clark against the City of Oshkosh (the City). The defendant's status as a governmental subdivision brings into play the statutory notice of injury requirement. See WIS. STAT. § 893.80(1d)(a) (2017-18)1 (as relevant here, a plaintiff must serve on a city defendant written notice of the circumstances of the claim, meeting certain statutory requirements, or must demonstrate that the failure to provide such notice was not prejudicial). Whether Clark complied with this requirement and, if not, whether her noncompliance should be excused are the primary issues on appeal.
¶2 The trial court granted the City's motion for summary judgment on the grounds that Clark had met neither the written notice requirement nor the statutory prerequisite for excusing noncompliance—lack of prejudice to the City. We agree with the former finding but not the latter, at least for summary judgment purposes. Although Clark did not provide formal written notice, she sufficiently raised an issue of fact as to whether the City was thereby prejudiced. We consequently remand for further proceedings on that issue.
¶3 Clark was a sewing instructor with Fox Valley Technical College (the College).2 As part of her job, she taught classes at the City-owned Oshkosh Senior Center (the Senior Center). On October 17, 2015, Clark unlocked and walked through one of the entrance doors to the Senior Center. The door closed faster than usual behind her, knocking her off balance and causing her to fall. Two of Clark's students helped her to her feet.
¶4 Later that day, Clark told her supervisor that she had been injured at work. The supervisor, on Clark's behalf, filled out an online "Employer's First Report of Injury or Disease" (the Injury Form); this is a standard Wisconsin Department of Workforce Development workers’ compensation form that is used to report work-related injuries to the employer's insurer. On the Injury Form, the supervisor (mistakenly) listed Clark's employer as "City of Oshkosh" and not the College. The Injury Form described the incident and injury as follows:
and left hip
Checked boxes on the Injury Form also indicated that Clark returned to work on October 21, that hers was not a "Lost Time or Other Compensable Injury," and that she was not treated in an emergency room. Clark reviewed and approved the Injury Form and provided it to the supervisor, who then sent it electronically to the City.
¶5 Paul Greeninger, a City safety and risk management officer, received the Injury Form. He could not verify that Clark was a City employee, so he asked Mark Ziemer, the City senior services manager, about the matter. Ziemer oversaw Senior Center operations and was familiar with Clark; he explained that Clark was a College and not a City employee. Greeninger informed Clark of her mistake, and sometime thereafter, Clark properly filed a new workers’ compensation form.
¶6 Greeninger, now aware of Clark's fall, investigated. Within the week, he examined the door and spoke with "individuals over at the Senior Center," including "the facilities person." Greeninger learned that employees had been switching off the door's "disabled person capability" button at night to preserve the motor. That button, when pushed, normally allowed the door to slowly open and close on its own. Because this functionality was turned off on the day of Clark's accident, however, the door swung back at Clark faster than she expected and hit her. Once Greeninger concluded that the door "was still operable," he ended his investigation. Greeninger thus summarized the extent and purpose of his inquiry as follows:
Initially it came that, as I recall, the door was broken and I wanted to know, if it is broken, we need to fix it. We found out it was not broken. So as far as I was concerned, there was nothing that needed to be fixed. There wasn't—in my job, was there uneven surface, was there liquids, did they trip, did they fall, all those things? None of that was there, so as far as I was concerned, as a safety person, there was nothing that needed to be fixed. So at that point my investigation was done.
¶7 At some point over the two and one-half years between the date of her fall and April 2018, Clark began suffering severe aftereffects. The fall "significantly exacerbated" a "previously slight, asymptomatic, pre-existing, arthritic condition ... leading to a hip replacement and in that process an infection ... which damaged [her] kidneys." On April 12, 2018, Clark filed a notice of claim form with the City. See WIS. STAT. § 893.80(1d)(b) (). Clark attested that she "suffered injuries to her face; left hip; and, other injuries," requiring treatment by multiple providers and resulting in "permanent injury with permanent residual limitations." She "demand[ed] satisfaction in the amount of $50,000.00" and attached an itemized list of medical bills.
¶8 In October 2018, Clark brought suit. The City moved for summary judgment, arguing that Clark had not complied with the notice of injury requirement of WIS. STAT. § 893.80(1d)(a).3 The first sentence of § 893.80(1d)(a) concerns formal notice of injury; as applicable to Clark's suit, it states that no action may brought against a city unless, within 120 days of the "event giving rise to the claim, written notice of the circumstances of the claim" is signed by the claimant, her agent, or her attorney and is personally served on the city mayor, manager, or clerk (or left with the person in charge of such office) per the personal jurisdiction requirements of WIS. STAT. § 801.11(4)(a)3., (b). The City pointed out—and the trial court agreed—that Clark unquestionably did not provide formal notice of injury: the only document the City received within 120 days of Clark's fall was the electronic Injury Form, which was neither signed nor properly served pursuant to § 801.11.
¶9 Where a claimant fails to give formal notice, the action is not barred if the claimant substantially complies with WIS. STAT. § 893.80(1d)(a) —meaning that the defendant "had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite [formal] notice has not been prejudicial to the defendant." Id. ; Bostco LLC v. Milwaukee Metro. Sewerage Dist. , 2013 WI 78, ¶88, 350 Wis. 2d 554, 835 N.W.2d 160. The court determined that the Injury Form did not and could not provide actual notice, because although it stated that Clark was physically injured, it did not inform the City of her claim. The court therefore found that the City did not have actual notice until April 2018, when Clark's notice of claim form alerted the City both that she had been injured and that she was seeking to hold it liable. The court further determined that this delay "was a fairly extensive period of time," such that permitting Clark's suit to proceed would really "defeat[ ] the purpose of the statute in allowing the governmental entity to make a prompt investigation of the circumstances giving rise to a claim." Accordingly, the court concluded that Clark had not met her burden of showing lack of prejudice from her failure to give timely written notice.
¶10 Clark moved for reconsideration and relief from judgment, which the trial court denied. Additional facts will be noted where relevant.
¶11 In most respects, this is a garden-variety personal injury claim, no different than a slip-and-fall suit alleging negligence against a property owner, and the sort of claim that is a mainstay of our civil dockets. In one crucial respect, however, this case is different: because Clark's injury occurred on City-owned property, Clark's negligence claim lies against the City. That fact brings into play the statutory requirement that Clark give two separate types of notice before she can file suit on her claim. See WIS. STAT. § 893.80(1d).4
¶12 The first notice, under WIS. STAT. § 893.80(1d)(a), is often referred to as the notice of injury. See Yacht Club at Sister Bay Condo. Ass'n v. Village of Sister Bay , 2019 WI 4, ¶20, 385 Wis. 2d 158, 922 N.W.2d 95. The primary purpose of this notice is to enable governmental...
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