Harte v. City of Eagle River

• Decision Date: 03 February 1970
• Docket Number: No. 41,41
• Citation: 173 N.W.2d 683,45 Wis.2d 513
• Parties: Alice G. HARTE et al., Respondents, v. CITY OF EAGLE RIVER, a Wis. municipal corp., Appellant.
• Court: Wisconsin Supreme Court

Page 683

173 N.W.2d 683

45 Wis.2d 513

Alice G. HARTE et al., Respondents, v. CITY OF EAGLE RIVER, a Wis. municipal corp., Appellant.

No. 41.

Supreme Court of Wisconsin.

Feb. 3, 1970.

[45

Wis.2d 515] This action for personal injuries was brought by Mrs. Alice Harte and her husband, Mr. Chester Harte, for injuries Mrs Harte received when she fell on a sidewalk in Eagle River. The city of Eagle River (hereinafter defendant) demurred to the complaint and from an overruling of that demurrer the city of Eagle River has appealed.

Krueger & Krueger, Rhinelander, for appellant.

Charles F. Higgins, Charles M. Hanratty, Milwaukee, for respondents; Robert L. Wilkins, Milwaukee, of counsel.

CONNOR T. HANSEN, Justice.

The complaint alleges the following: On July 11, 1967, Mrs. Harte was walking in a southerly direction on South First street in Eagle River when she stepped onto a 'defective and dangerous area of said public sidewalk' caused by one of the concrete slabs being tilted and in excess of three inches below the adjoining slab. As a result of the fall, Mrs. Harte was hospitalized and subsequently had her leg amputated between the knee and hip. Mr. Harte's cause of action was for medical expenses, together with loss of services, consortium, society and companionship.

The complaint also alleges that 'on July 13, 1967 and within 120 days from the injury, the plaintiff, CHESTER A. HARTE, reported the injury in detail to the Chief of Police of defendant city, one Arthur Sparks, and was advised by Arthur Sparks that he would thereupon perform the ministerial act of filing the report of the accident with the proper authorities of the defendant. * * * That said plaintiffs were then directed by defendant, its officers, agents and employees, to communicate directly with its liability insurance carrier, and did, * * *'

A claim for damages was filed with defendant on July 8, 1968; and the complaint alleges, on information and belief, that the claim was denied and disallowed. A copy of the univerified claim was attached to the complaint and signed by the attorney for plaintiffs. Also attached to the complaint was a letter from plaintiffs' attorneys to defendant's insurer.

The defendant demurred to the complaint on the grounds sec. 81.15, Stats., had not been complied with in that no written notice of injury had been filed by plaintiffs with defendant in the manner prescribed by statute within the 120 day period.

Sec. 81.15, Stats., ¹ has been construed to cover streets and sidewalks as well as 'highways,' ² and no question is raised as to the applicability of sec. 81.15 to this case. The only issue presented by this appeal is whether plaintiffs are barred from any further action against defendant because they failed to give written notice of injury in the manner set forth in sec. 81.15.

Prior to Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, and the abrogation of municipal immunity, sec. 81.15, Stats., was a major exception to the rule of municipal nonliability. Thus municipalities would often times try to establish that damages were not caused by highway defects and in this manner avoid liability. Since the abrogation of governmental immunity and the enactment of sec. 895.43, ³ municipalities argue that damages are caused by highway defects and seek to escape liability under the notice provisions of sec. 81.15. ⁴

'Holytz did not change the effect of the notice requirement in sec. 81.15, (Stats). Prior to that case, it was a condition precedent to recovery; since Holytz, it still is a condition precedent to recovery. A person has a cause of action against the city provided (or on condition that) he gives notice within the prescribed time. * * * ' Ocampo v. City of Racine (1965), 28 Wis.2d 506, 510, 137 N.W.2d 477, 479.

The converse is also true, i.e., plaintiffs will now attempt to avoid sec. 81.15, Stats., and qualify under sec. 895.43, Stats. Both of these statutes require that notice be given within 120 days of an alleged accident and the limits of liability are $25,000. However, the more rigorous notice requirements of sec. 81.15 can be avoided if only sec. 895.43, which provides for actual notice if the delay or failure is not prejudicial, is applicable. See Dusek v. Pierce County (1969), 42 Wis.2d 498, 167 N.W.2d 246. The disparity between these two statutes was commented upon in the recent case of Schwartz v. City of Milwaukee (1969), 43 Wis.2d 119, 123, 168 N.W.2d 107:

'* * * Apparently a material difference in these sections is the fact that s. 895.43 makes provision for actual notice while s. 81.15 does not. This point, however, is not involved in the instant case. A lot of confusion in the practice would be avoided if the legislature would repeal s. 81.15, which is no longer needed since our decision in Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, and the amendment to s. 895.43.'

In this case, the defendant has raised the issue of compliance with sec. 81.15, Stats., by demurrer.

'As a general rule, in pleading negligence only ultimate facts rather than evidentiary facts need to be pleaded. A complaint, when attacked by demurrer, should be liberally construed and sustained if it expressly, or by reasonable inference, states any cause of action. * * * ' Bembinster v. Aero Auto Parts (1959), 7 Wis.2d 54, 57, 95 N.W.2d 778, 780.

Plaintiffs attached two exhibits to their complaint: A copy of a letter from plaintiffs' attorney to defendant's insurer, and a copy of the claim filed with defendant on July 11, 1968, signed by plaintiffs' attorney. No factual allegations of any consequence are in the letter. However, the claim includes a recital of how notice was given; that defendant's insurer notified Mr. and Mrs. Harte to direct all future correspondence to their insurer's office; that an 'investigation and correspondence' ensued which enabled the city 'to fully investigate this incident'; and that negotiations between the insurer and the Hartes were conducted within 120 days of the accident. Defendant argues the content of the claim cannot be considered in determining whether sufficient facts are alleged to overcome the demurrer since the claim was not signed by either plaintiff.

In Laffey v. City of Milwaukee (1958), 4 Wis.2d 111, 89 N.W.2d 801, a cause of action based on sec. 81.15, Stats., was the subject of a demurrer and this court held that a claim attached to the complaint could be referred to and read into the complaint.

'* * * While it is not specifically alleged in the body of the present complaint that the employees of the city were negligent in creating the icy condition or in failing to remove it, such negligence is asserted in the notice to the city, a copy of which is attached to the complaint and hence can be read into the complaint for the purpose of testing the sufficiency of the pleading. Dralle v. (Town of) Reedsburg, 140 Wis. 319, 323, 122 N.W. 771.' Laffey v. City of Milwaukee, supra, 4 Wis.2d 114, 89 N.W.2d 802.

In Laffey, as in this case, the claim was signed by the attorney for the plaintiff. Laffey v. Milwaukee, supra, Vol. 2682, Appendices and Briefs, Appellant's appendix, p. 108--109. Thus, this court can look to facts alleged in the claim in passing on the sufficiency of the pleadings.

The complaint states that Mr. Harte reported the injury in detail to the chief of police, Sparks, who stated he would file the report. The attached claim recites no allegation of any written notice being submitted by plaintiff, only that the incident was recited orally and the police officers present stated they 'would reduce the notice of injury to writing and would file same with the proper authorities and that no further notice was necessary.' There is no allegation of any written notice signed by either plaintiffs or their attorney having been given to 'a supervisor of the town, one of the trustees of the village or mayor or city clerk against which damages are claimed * * *.' Sec. 81.15, Stats. ⁵ However, failure of plaintiffs to strictly comply with sec. 81.15 does not necessarily bar their cause of action, particularly in light of Lang v. City of Cumberland (1962), 18 Wis.2d 157, 118 N.W.2d 114, which held that a municipality may be estopped from asserting sec. 81.15 as a defense.

In Lang, an eleven year old girl fell into a sewer opening as she was walking along the street. There were no barricades or warnings and water was flowing so as to hide the opening. The complaint alleged that notice pursuant to sec. 81.15, Stats., had been "given to, or waived by" the city. The city moved for summary judgment supporting its action by affidavit of the city clerk that neither he nor the mayor had been served with notice. However, affidavits of the child's father and the mayor were presented in opposition. The father stated that within three or four days after the accident he contacted the mayor and told him that his daughter had been injured and intended to hold the city responsible for damages; that the mayor told him to submit the medical bills to the city for payment and they would be taken care of by the city or the insurance company; and that he had relied upon the representations of the mayor that the medical expenses would be paid by the city. The mayor in his affidavit stated he was aware of the conditions with the sewer covers and the fact the young girl had been injured, and that he had told the father to submit the medical bills to the city for payment and the city's insurer would be notified. This court held, under the circumstances of that case, the legislative purpose of sec. 81.15 was fulfilled and requiring a strict compliance with that statute would be inequitable:

'The facts shown in the affidavits suggest that the mayor's statements to Mr. Lang reasonably led him to believe that further notice was unnecessary; that Cynthia and her father reasonably relied upon such belief in failing to seek other advice before the...