Kobelinski v. Milwaukee & Suburban Transport Corp.

Citation56 Wis.2d 504,202 N.W.2d 415
Decision Date07 December 1972
Docket NumberNo. 280,280
PartiesEmily KOBELINSKI, Plaintiff-Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORP., Defendant and Third Party Plaintiff-Appellant, v. CITY OF MILWAUKEE, Third Party Defendant-Respondent.
CourtUnited States State Supreme Court of Wisconsin

Kivett & Kasdorf, Milwaukee, for appellant; Nonald J. Lewis and Dennis C. Egan, Milwaukee, of counsel.

Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for plaintiff-respondent; James J. Murphy, Milwaukee, of counsel.

James B. Brennan, City Atty., Rudolph T. Randa, Asst. City Atty., Milwaukee, for third party defendant-respondent.

CONNOR T. HANSEN, Justice.

This appeal presents the following issues:

1. Was it error for the trial court, following the conclusion of testimony, to direct a verdict in favor of the third-party defendant, the City of Milwaukee, and dismiss the third-party complaint?

2. Did the trial court commit prejudicial error in failing to instruct the jury as to certain instructions requested by defendant?

3. Were the remarks of plaintiff's counsel during closing arguments to the jury so improper and prejudicial as to require a mistrial?

4. Did the trial court err in reducing the amount of damages awarded by the jury?

Directed Verdict.

Generally, a municipality is, with respect to snow and ice on its sidewalks, under the duty of using reasonable care to keep such walks reasonably safe for use by pedestrians, taking into account all of the circumstances involved. 1

In Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, this court abrogated governmental immunity for tort liability. Prior to Holytz, supra, the scope of a municipality's liability for the condition of its sidewalks was contained within the provisions of sec. 81.15, Stats. Section 81.15 provides, in part:

'Damages caused by highway defects; liability of town and county. If damages happen to any person . . . by reason of the insufficiency or want of repairs of any highway which any . . . city . . . is bound to keep in repair, the person sustaining such damages shall have a right to recover the same from such . . . city . . . (upon giving a prescribed notice to the city within one hundred twenty days after the accident; but) (n)o action shall be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless such accumulation existed for 3 weeks.' 2

Subsequent to the Holytz Case, this court held that the limited liability of sec. 81.15 is no longer applicable to sidewalk cases. In Stippich v. Milwaukee (1967), 34 Wis.2d 260, 270, 149 N.W.2d 618, 622, this court stated:

'We think the limited scope of a municipality's liability under sec. 81.15 is no longer applicable to sidewalk cases and the question in such cases is not whether there was a defect, want of repair or insufficiency of the sidewalk which caused the injury but whether under the ordinary common-law rules of negligence the duty to maintain sidewalks reasonably safe was breached. This duty of a municipality to use reasonable care to keep its sidewalks reasonably safe for travel of pedestrians is only that which is reasonable under the circumstances. . . .'

However, the court went further to hold:

'All the limitations of sec. 81.15, such as notice, amount of recovery, etc., apply to the city's common-law duty and consequently no liability arises because of a natural accumulation of snow and ice existing less than three weeks. . . .' Stippich, supra, p. 270, 149 N.W.2d p. 623.

Therefore the city is liable at common law for breach of its duty to maintain sidewalks in such a condition as is reasonably safe for public travel by a person exercising ordinary care for their own safety but subject to the administrative and other limitations of sec. 81.15. Westler v. Milwaukee (1967), 34 Wis.2d 272, 149 N.W.2d 624.

Our attention is directed to sections 98--62 and 101--116 of the Milwaukee Code of Ordinances. We do not set them forth because we are of the opinion these ordinances are of no assistance in disposing of the issue before us. The city is liable for the conditions of its sidewalks, regardless of any ordinance it may pass limiting its liability or delegating it to another. There is no dispute in the record that the busloading zone was free of ice and snow for the required distance of 30 feet as required under section 98--62 of the Milwaukee Code of Ordinances, and that that portion of the sidewalk used for pedestrian travel was likewise free from ice and snow. Therefore, the City contends that as a matter of law it has met its burden to keep the side-walks reasonably safe.

The City's theory of liability is, however, contrary to the great weight of legal authority and the law of Wisconsin.

An ordinance requiring abutting landowners to keep the sidewalks in repair does not relieve the municipality of its duty. As stated in 63 C.J.S. Municipal Corporations § 794, p. 105:

'. . . It is generally held that the duty of keeping sidewalks in a reasonably safe condition rests primarily on the municipality; and this is true, even though there is a(n) . . .ordinance requiring the abutting owner to keep the sidewalk in repair and making him liable for failure to do so. . . .'

The law is similarly stated in 39 A.L.R.2d 782, 822, sec. 34, as:

'The duty of a city to use reasonable care to keep its sidewalks reasonably safe is one which rests primarily on it and which it cannot delegate to abutting owners. Therefore, it is ordinarily held that a(n) . . . ordinance imposing upon the abutting owner the duty to remove or to sand snow and ice upon a sidewalk does not relieve the city from its primary obligation to keep the sidewalks safe for walking.'

In accord is 19 McQuillin, Municipal Corporations, 3rd, sec. 54.19, pp. 54, 55, which states:

'. . . (A) municipality cannot shift to abutters its primary duty to exercise reasonable or ordinary care to maintain its sidewalks in a reasonably safe condition for travel. . . .

'. . ..

'The duty of an abutter with respect to the repair of sidewalks is entirely irrelevant to the issues in a case between a pedestrian on a sidewalk and the municipality. The fact that the abutting landowners are required by . . . ordinance . . . to . . . keep in repair sidewalks, does not relieve the city of its duty to exercise reasonable care and diligence. . . .'

This court, in Stippich, supra, 34 Wis.2d p. 270, 149 N.W.2d p. 623, has held:

'. . . (C)ities can, if they have not already done so, require abutting property owners to clean sidewalks, to use abrasives, and otherwise keep the walk safe for public use. Section 66.615(5), Stats., requires a duty to clean sidewalks of snow and ice in all cases where abutting owners or occupants fail to do so and the expense thereof can be charged to the owner. A city is also authorized to impose a fine or penalty. The ultimate duty and responsibility for the safety of sidewalks, however, rests with the city and this responsibility cannot be delegated so as to free it from all liability.'

Since the City cannot delegate its primary responsibility to maintain its sidewalks, it follows it cannot delegate or limit its primary liability by ordinance. Therefore, the question remains whether the City, subject to the limitations of sec. 81.15, Stats., has breached its duty to maintain sidewalks in such a condition as is reasonably safe for public travel by persons exercising ordinary care for their own safety.

This question was never submitted to the jury. Following the conclusion of the testimony, the trial court granted the City's motion for a directed verdict and dismissed the third-party complaint. Defendant contends that this was error. Although this court has stated that the preferred procedure is to reserve disposition of a motion to direct a verdict until after the jury returns its verdict, 3 the trial court did not err in failing to submit the question to the jury. The record, viewed most favorably to the defendant, contains no evidence upon which the jury could conclude that the City had failed to meet its duty in respect to the maintenance of its sidewalks.

There is no evidence that the accumulation of ice and snow upon which plaintiff fell existed more than three weeks. Section 81.15, Stats., provides that no action shall be maintained to recover damages sustained by reason of an accumulation of ice or snow unless such an accumulation existed for more than three weeks.

Defendant argues that the mound upon which plaintiff fell was the result of shoveling and not a 'natural' accumulation, and, therefore, under this court's decision in Laffey v. Milwaukee (1958), 4 Wis.2d 111, 89 N.W.2d 801, the three-week limitation of sec. 81.15, Stats., is inapplicable. In Laffey, supra, employees of the city fire department caused water to be discharged on the sidewalk, which water froze and created an icy condition. This court in Laffey, supra, pp. 114, 115, 89 N.W.2d p. 803, held:

'. . . In our opinion the provision of sec. 81.15, prohibiting recovery for injuries sustained 'by reason of an accumulation of snow or ice upon any bridge or highway's unless the accumulation had existed for three weeks, refers only to a natural accumulation of snow or ice, and does not apply to one artificially created by the city. The purpose of the particular provision is undoubtedly to give the municipality plenty of opportunity to learn of and remove snow and ice resulting from natural precipitation, before being held liable for failure to do so. We cannot believe the legislature intended to provide such a period of absolute immunity in cases where the city itself has negligently created the icy condition.'

The evidence when viewed most favorably to defendant indicates that the mound of ice and snow was created by the pushing of snow off the heavily traveled portion of the sidewalk to the curb. The question, therefore, is whether the mound so formed...

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