Stippich v. City of Milwaukee

• Decision Date: 11 April 1967
• Citation: 34 Wis.2d 260,149 N.W.2d 618
• Parties: Louise STIPPICH, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 618

149 N.W.2d 618

34 Wis.2d 260

Louise STIPPICH, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

April 11, 1967.

Maurice Weinstein, Milwaukee, for appellant.

John J. Fleming, City Atty., George A. Bowman, Jr., Asst. City Atty., Milwaukee, for respondent.

HALLOWS, Justice.

The city grounded its defense solely upon the proposition its liability is limited by sec. 81.15, Stats., ¹ to an insufficiency or want of repair in the sidewalk existing for a period of three weeks and a mere slippery condition resulting from a natural accumulation of snow and ice in winter, in the absence of an underlying defect which would otherwise be actionable, did not satisfy the statute. Prior to our decision in Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, which abolished governmental immunity for torts, the dismissal of this case would probably have been affirmed. The city assumed in its argument that the prior decisions of what was held not to be an insufficiency or want of repair or a defect in a sidewalk under sec. 81.15, were applicable to the common-law duty of the city and were unaffected by Holytz. We called for additional briefs on the question:

'Does the abolition of governmental immunity render a city liable for a sidewalk found to be unsafe where such condition does not amount to what has been heretofore held to be an actionable defect, insufficiency or want of repair under sec. 81.15?'

It has been suggested the court answered this question in Dunwiddie v. Rock County (1965), 28 Wis.2d 568, 573--574, 137 N.W.2d 388, when we said:

'In Holytz we contemplated the abrogation of the doctrine of governmental immunity would affect the area covered in sec. 81.15, (Stats.,) and, in fact, pointed out that that section in respect to its notice provisions and limitation of amount of damages would stand and be a limitation upon the right to recover. In Lang v. City of Cumberland (1962), 18 Wis.2d 157, 165, 118 N.W.2d 114, in explaining the effect of Holytz in relation to sec. 81.15, we stated, 'Before Holytz, liability of the municipality arose by virtue of sec. 81.15 upon the giving of notice. Since Holytz, the liability would exist in the absence of the statute, and the statute is a limitation upon it.' But the only limitations of this section are in respect to notice, the limit of the amount of damages, and the requirement that accumulated snow and ice must be of three-weeks' duration.'

But the question remained whether the common-law duty of a municipality to construct and maintain a sidewalk in such a condition that it is reasonably safe for public travel by persons exercising ordinary care for their own safety was only coextensive with sec. 81.15, Stats., or whether it exceeded the limits of what had been decided under that section to be neither an insufficiency nor a want of repair. We think the common-law duty embraces a somewhat larger area of what constituted an unsafe condition than that covered by the language of sec. 81.15. Of course, Holytz does not determine what constitutes negligence in this area; that is left to case law. While what affirmatively has been held to be a defect or an insufficiency or a want of repair under sec. 81.15 constitutes commonlaw negligence, the converse is not necessarily true.

Our reasons for this view are rooted in the history of sec. 81.15 and in its interpretations over the years. The first provision for liability similar to sec. 81.15 appeared in R.S. (1849) (ch.) 16, sec. 103, and was in derogation of the common law. During a period of over 100 years a rather static doctrine of limited liability under sec. 81.15 developed against the background of governmental immunity and in the context of conditions existing at the time of the decision. Recovery for injuries caused by the condition of streets and sidewalks was based upon a waiver of governmental immunity for torts as expressed in the statutes allowing recovery under certain conditions. Section 81.15 and its predecessor statutes allowed recovery only for insufficiency or want of repairs, commonly referred to as a defect.

The early cases dealt with defects in sidewalks such as a broken plank, McLimans v. City of Lancaster (1885), 63 Wis. 596, 23 N.W. 689; the difference in elevation of a boardwalk, Reed v. City of Madison (1892), 83 Wis. 171, 53 N.W. 547, 17 L.R.A. 733; or a loose rotten plank, Barrett v. Village of Hammond (1894), 87 Wis. 654, 58 N.W. 1053. Trampled upon accumulations of snow and ice on a sidewalk, although slippery and dangerous, were considered to be a normal and natural condition in that day in Wisconsin; shoveling sidewalks or the use of abrasives were the exception, not the rule. These cases reflect a then common viewpoint of a city's duty to render only limited services to its citizens and of a citizen's right to expect no more. It is understandable that in a nonmechanized era a municipalith would not be held to a standard of care which required clearing sidewalks of snow when snow and ice were welcomed on the streets so horses could pull the sleighs and the cutters. But snow and ice are no longer allowed to accumulate on streets and abrasives are used because the safety of modern transportation demands it.

A succinct expression of the rules which evolved requiring a natural accumulation of snow and ice on the sidewalk to amount to a structural defect is found in Byington v. City of Merrill (1901), 112 Wis. 211, 88 N.W. 26, and quoted in Trobaugh v. City of Milwaukee (1953), 265 Wis. 475, at page 483, 61 N.W.2d 866:

'The law is too well settled to require discussion, at this time, (1901) that the mere slippery condition of a walk, caused by ice forming thereon evenly, or substantially so, or the mere existence of a roughened condition of the surface of a walk caused by footprints in soft, wet snow and its freezing in that condition, does not render such walk insufficient or in want of repair within the reasonable meaning of the statute (sec. 81.15); but that an accumulation of snow or ice on a walk in a ridge or rounded form, so as to form an obstruction to the use thereof with reasonable safety, by persons in the exercise of ordinary care, does constitute such insufficiency and want of repair.'

Some of the oft-cited cases developing this rule and its reasons are: Cook v. City of Milwaukee (1869), 24 Wis. 270; Hyer v. City of Janesville (1898), 101 Wis. 371, 374, 77 N.W. 729, 730, wherein it was noted the facts presented only 'an accumulation of snow as is usually found on walks in the resident portions of cities and villages in the winter season in this climate. * * * Reasonable care did not require the walk to be scraped clean, down to the planking, or that mere footprints made in the soft snow and frozen in that condition should be removed * * *;' Koepke v. City of Milwaukee (1901), 112 Wis. 475, 480, 88 N.W. 238, 239 'The accumulation of ice and snow was nothing more than can be found on hundreds of walks in this state during the winter months. * * * It constituted no obstruction to travel * * * no more than the usual accumulation incident to our climate;' Salzer v. City of Milwaukee (1897), 97 Wis. 471, 73 N.W. 20; and Dapper v. City of Milwaukee (1900), 107 Wis. 88, 82 N.W. 725. However, the language in Dapper to the effect ice and snow on the sidewalk was not actionable unless there was also an underlying defect in the structure of the sidewalk was withdrawn in Trobaugh v. City of Milwaukee, supra. See also Jacobson v. City of Milwaukee (1952), 262 Wis. 256, 55 N.W.2d 1. In Steele v. City of Chippewa Falls (1935), 217 Wis. 1, 258 N.W. 181, the court stated the sole question was whether the sidewalk was defective because of an accumulation of snow and ice which was rough and slippery due to frozen footprints. The court considered the walk dangerous but not defective. Thus it was that some unsafe conditions of sidewalks were not actionable at common law because the statutory...