Scalcucci v. Cnty. of Dane
| Decision Date | 18 November 2021 |
| Docket Number | Appeal No. 2020AP937 |
| Citation | 2022 WI App 1,968 N.W.2d 869 (Table) |
| Parties | Joan SCALCUCCI and Rick Scalcucci, Plaintiffs-Appellants, United Healthcare Insurance Company, Involuntary-Plaintiff, v. COUNTY OF DANE and City of Madison, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
¶1 Joan and Rick Scalcucci appeal a summary judgment order dismissing their personal injury suit against the City of Madison and the County of Dane (collectively, "the Municipalities"). We conclude that the Municipalities are immune from suit under WIS. STAT. § 893.80(4) (2019-20).1 We further conclude that the circuit court did not erroneously exercise its discretion by not permitting the Scalcuccis to amend their pleadings. Accordingly, we affirm.
¶2 The material facts are not in dispute for purposes of this appeal. Joan Scalcucci injured her ankle
after tripping on a sidewalk in the City of Madison in front of the Dane County Public Safety Building. Joan tripped because there was an approximate 1¼ - 1½ inch offset, or height difference, between two adjoining slabs of pavement. The City owns one slab and the County owns the other.
¶3 The Scalcuccis sued the Municipalities and their respective insurers, alleging negligence and violations of the safe-place statute, WIS. STAT. § 101.11. Rick Scalcucci, Joan's husband, also brought derivative claims for loss of services, society, companionship, and consortium.
¶4 The Municipalities filed separate motions for summary judgment, which we discuss collectively. As relevant here, the Municipalities argued that they are immune from suit under the governmental immunity statute, WIS. STAT. § 893.80(4), and that no exceptions to immunity apply.2 See Lodl v. Progressive N. Ins. Co. , 2002 WI 71, ¶24, 253 Wis. 2d 323, 646 N.W.2d 314. The circuit court agreed and dismissed the Scalcuccis’ suit in full, and this appeal follows. We will discuss additional facts below as necessary.
¶5 Summary judgment is appropriate where the pleadings and evidence "show 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). Summary judgment "is designed to eliminate unnecessary trials" where "there is no triable issue of fact" to present to a jury. Maynard v. Port Publ'ns, Inc. , 98 Wis. 2d 555, 562, 297 N.W.2d 500 (1980). However, when a defendant is entitled to governmental immunity, then summary judgment may be appropriate even if there is a factual dispute as to negligence. Lodl , 253 Wis. 2d 323, ¶16. The court "assumes negligence, focusing instead on whether the municipal action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies."Id. , ¶17. The "application of the immunity statute and its exceptions ... is a question of law." Id.
¶6 As pertinent here, WIS. STAT. § 893.80(4) immunizes a municipality from liability for any act "done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions," a phrase our supreme court has interpreted to mean "any act that involves the exercise of discretion and judgment." See Lodl , 253 Wis. 2d 323, ¶21. To bring suit against a municipality, one of four judicially recognized exceptions to immunity must apply. See id. , ¶24.
¶7 The Scalcuccis argue that the "ministerial duty" and "known danger" exceptions apply. These exceptions stem from the same premise: "that immunity law distinguishes between discretionary and ministerial acts, immunizing the performance of the former but not the latter." Id. , ¶25; see also Engelhardt v. City of New Berlin , 2019 WI 2, ¶31, 385 Wis. 2d 86, 921 N.W.2d 714 (). Generally speaking, a ministerial duty is a duty that is so "absolute" and "certain" that the municipality is without discretion not to take some action. Lodl , 253 Wis. 2d 323, ¶25 ().
¶8 Specifically, under the ministerial duty exception, the duty to act arises out of the law. That is, no immunity exists where the duty "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 for judgment or discretion." Id. (citing Lister v. Board of Regents of Univ. of Wis. Sys. , 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976) ). " ‘Law’ in this context means, at a minimum, an act of government," and "includes statutes, administrative rules, policies or orders." Meyers v. Schultz , 2004 WI App 234, ¶19, 277 Wis. 2d 845, 690 N.W.2d 873 ().
¶9 The known danger exception applies "where a danger is known and of such quality" that the municipality's duty to act becomes "absolute, certain and imperative," even in the absence of some law directing its actions. Lodl , 253 Wis. 2d 323, ¶34 (); see also Engelhardt , 385 Wis. 2d 86, ¶5 . Thus, the known-danger inquiry involves a three-step test:
First, something must occur to create a compelling danger; second, a governmental actor must find out about the compelling danger; and third, the governmental actor either takes or fails to take precautionary measures. If the government does not take precautionary measures, the known and compelling danger exception applies.
Knoke v. City of Monroe , 2021 WI App 6, ¶50, 395 Wis. 2d 551, 953 N.W.2d 889 (citations omitted). There is no bright line for determining a known danger, but our case law establishes that the hazard must be readily apparent and "nearly certain to cause injury if not corrected"—i.e., an "accident waiting to happen." Engelhardt , 385 Wis. 2d 86, ¶¶44, 52 (internal quotation marks and quoted sources omitted); see also id. , ¶¶36-52 (discussing cases).
¶10 As noted, the Scalcuccis seek damages from the Municipalities for injuries that Joan sustained when she tripped on the 1¼ - 1½ sidewalk offset between two slabs of pavement (one slab owned by the City and the other by the County). To establish the ministerial duty exception to governmental immunity, the Scalcuccis must point to some law or act of government that "imposes, prescribes and defines the time, mode and occasion for [fixing this defect] with such certainty that nothing remains for judgment or discretion." See Lodl , 253 Wis. 2d 323, ¶25 ().
¶11 The Scalcuccis identify several laws or policies, but we conclude that none of them establish a ministerial duty. First, the Scalcuccis direct us to WIS. STAT. § 66.0907, the statute governing town and village sidewalks, and to the Madison Ordinance adopting that statute. See MADISON , WIS. , CODE OF ORDINANCES § 10.09 (2021). Specifically, the Scalcuccis reference § 66.0907(1), which states, "Streets shall provide a right-of-way for vehicular traffic and, where the council requires, a sidewalk on either or both sides of the street." But this provision, and the statute generally, do not prescribe any duty or set forth any specific tasks a municipality must undertake to fix uneven sidewalks.
¶12 Second, the Scalcuccis point to an August 11, 2001 "Administrative Procedure" of the City of Madison Engineering Division, titled, "Criteria for the Replacement of Public Sidewalk and Curb and Gutter." The Scalcuccis refer to a directive in that document stating, "sidewalk sections that contain offsets of ¾ inch or greater" shall be replaced. The Administrative Procedure, however, states that it pertains to "lots in plats and Certified Survey Maps that have been recorded [more than] four years [before] the request for the Conditional Occupancy Permit. " (Emphasis added.) The Scalcuccis have not explained how this condition applies to the property where Joan was injured. In any event, this document does not set forth "the time, mode and occasion [for replacing an offset sidewalk] with such certainty that nothing remains for judgment or discretion." See Lodl , 253 Wis. 2d 323, ¶25 ; see also Yao v. Chapman , 2005 WI App 200, ¶29, 287 Wis. 2d 445, 705 N.W.2d 272 ().
¶13 Third, the Scalcuccis rely on a pamphlet for property owners outlining the City's "Annual Sidewalk Repair and Rehabilitation Program." We will assume, based on relevant deposition testimony, that this is an official City program or policy. The pamphlet, however, states that, although the sidewalk repair program "is designed to bring defective sidewalk up to current standards," this "does not mean all sidewalk will be replaced ." By its terms, then, the program allows for the exercise of judgment and discretion in when and how to bring a defective sidewalk up to current standards, and thus cannot create a ministerial duty as a matter of law. See Lodl , 253 Wis. 2d 323, ¶25.
¶14 Fourth, the Scalcuccis refer us to a 2010 United States Department of Justice (DOJ) publication. This publication states that federal regulations for implementing the Americans with Disability Act (ADA) were revised to adopt "the 2010 ADA Standards for Accessible Design." Per the DOJ publication, the ADA Standards do not permit vertical changes in floor or ground level above ¼ inch. The DOJ publication, however,...
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