Klika v. City of Green Bay, 2020AP2079

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
PartiesJanice A. Klika, Plaintiff-Appellant, v. City of Green Bay, Defendant-Respondent, Cities and Villages Mutual Insurance Company and The Cincinnati Insurance Company, Defendants, Blue Cross Blue Shield of Wisconsin, Subrogated Defendant.
Docket Number2020AP2079
Decision Date07 June 2022

Janice A. Klika, Plaintiff-Appellant,
v.

City of Green Bay, Defendant-Respondent,

Cities and Villages Mutual Insurance Company and The Cincinnati Insurance Company, Defendants, Blue Cross Blue Shield of Wisconsin, Subrogated Defendant.

No. 2020AP2079

Court of Appeals of Wisconsin, District III

June 7, 2022


This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Brown County No. 2019CV508: JOHN ZAKOWSKI, Judge.

1

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Janice Klika appeals an order granting summary judgment and dismissing her personal injury claims against the City of Green Bay ("the City"). The circuit court concluded that the City was immune from suit under Wis.Stat. § 893.80(4) (2019-20)[1] because Klika failed to present any evidence establishing that the City or its Department of Public Works ("DPW") had notice of the defective sidewalk at issue as required by the City's "Sidewalk Installation Policy" ("sidewalk policy"). We agree and affirm.

BACKGROUND

¶2 The material facts in this case are not in dispute for purposes of this appeal. In February 2018, Klika lost her balance as she stepped on a crack in the sidewalk near the federal courthouse in Green Bay, where there was an approximately two-inch difference in elevation between two adjoining sidewalk sections. Klika then stumbled and fell, resulting in injuries to her body.

¶3 At the time of Klika's fall, the City's sidewalk policy "order[ed] the replacement of sidewalks when the [DPW was] notified of a potentially hazardous sidewalk and a field inspection by the [DPW] reveal[ed] that the sidewalk [was] hazardous." According to a City employee, a sidewalk would be considered

2

"defective" and "in need of repair" if there was a "difference in elevation of three-quarters of an inch" or more between two adjacent sidewalks.

¶4 Sometime between late 2015 and early 2017, the City had completed several projects in the immediate vicinity of the defective sidewalk, including its Forestry Division removing a tree, grinding out that tree's stump, and then later planting a new tree. Although the exact reasons for removing the tree are unclear, an employee of the City testified during his deposition that he believed the tree needed to be removed due to the emerald ash borer. After Klika reported her fall to the City, the City, through its DPW, investigated the sidewalk and determined that the defect in the sidewalk was likely caused by the roots of the removed tree. The City temporarily repaired and then replaced the sidewalk in the spring and summer of 2018.

¶5 Klika filed this action against the City and its insurer, alleging that the City was negligent and had violated the Wisconsin safe place statute, Wis.Stat. § 101.11. During the course of discovery, several of the City's employees testified that they had worked in the area of the defective sidewalk during their employment, but none of them testified that they noticed a defect in the sidewalk.

¶6 The City subsequently filed a motion for summary judgment, arguing that it was immune from suit under Wis.Stat. § 893.80(4). The circuit court agreed, concluding that Klika had failed to produce any evidence showing that the City had the necessary notice under its sidewalk policy for replacing the sidewalk. In particular, the court noted that

[a]t most, [the forestry workers'] testimony shows [they] stood on the sidewalk where Klika fell. None of the workers testified that they noticed any problems with the sidewalk.… Thus, the forestry workers' testimony does not
3
show that the DPW or the City was notified of the potentially hazardous sidewalk where Klika fell.

The court granted the City's motion and dismissed all of Klika's claims against the City.

¶7 Klika now appeals. Additional facts are provided below.

DISCUSSION

¶8 We review a circuit court's summary judgment decision de novo, employing the same methodology as the circuit court. Chapman v. B.C. Ziegler & Co., 2013 WI.App. 127, ¶2, 351 Wis.2d 123, 839 N.W.2d 425. Summary judgment must be granted if the pleadings, depositions, answers to interrogatories, admissions and affidavits establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Wis.Stat. § 802.08(2). Inferences to be drawn from the summary judgment materials are viewed in the light most favorable to the party opposing the motion. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶23, 241 Wis.2d 804, 623 N.W.2d 751.

¶9 In determining whether governmental immunity applies, we assume the municipality was negligent. Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶17, 253 Wis.2d 323, 646 N.W.2d 314. Therefore, any factual disputes as to a municipality's negligence will not prevent summary judgment from being granted due to governmental immunity. Meyers v. Schultz, 2004 WI.App. 234, ¶10, 277 Wis.2d 845, 690 N.W.2d 873.

¶10 Relying on Kobelinski v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 504, 202 N.W.2d 415 (1972), Wis.Stat. § 66.0907, and Wis JI-

4

Civil 8035 (2021), Klika argues that the City had a nondelegable duty to maintain its sidewalks and to use reasonable care to keep its sidewalks safe. For our purposes, we will assume without deciding that the City had a duty to safely maintain the sidewalk at issue because, again, our analysis of whether governmental immunity applies in this instance assumes that the City was negligent. See Lodl, 253 Wis.2d 323, ¶17.

¶11 Under the governmental immunity statute, municipalities are immune from suit for "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."[2] Wis.Stat. § 893.80(4); see also Engelhardt v. City of New Berlin, 2019 WI 2, ¶21, 385 Wis.2d 86, 921 N.W.2d 714. Wisconsin courts have interpreted this statutory language to provide municipalities with immunity for "any act that involves the exercise of discretion and judgment." Lodl, 253 Wis.2d 323, ¶21.

¶12 As relevant to this appeal, a municipality is not immune from suit under Wis.Stat. § 893.80(4) if liability is associated with the municipality's

5

performance of a ministerial duty imposed by law.[3] See Lodl, 253 Wis.2d 323, ¶24. A duty is ministerial "when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT