Vicki Pfeifer v. Secura Insurance a Mutual Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 2, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP713 Cir. Ct. No. 2021CV111

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

VICKI PFEIFER,

PLAINTIFF,

SECURITY HEALTH PLAN OF WISCONSIN INC.,
BADGERCARE PLUS MEDICAID MANAGED CARE PROGRAM,
NETWORK HEALTH PLAN AND
WISCONSIN DEPARTMENT OF HEALTH SERVICES,

INVOLUNTARY-PLAINTIFFS,

V.

SECURA INSURANCE A MUTUAL COMPANY AND S.D. ELLENBECKER INC.,

DEFENDANTS-APPELLANTS,

CITY OF MERRILL AND
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE,

DEFENDANTS-RESPONDENTS.
No. 2023AP713

APPEAL from an order of the circuit court for Lincoln County:
ROBERT R. RUSSELL, Judge. Affirmed.

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).

¶1 PER CURIAM. S.D. Ellenbecker, Inc., and Secura Insurance1
appeal from a circuit court order granting summary judgment and dismissing all
claims in this lawsuit against the City of Merrill and its insurer, League of
Wisconsin Municipalities Mutual Insurance.2 The City hired Ellenbecker to
construct and repair sidewalks throughout the City. Before the project was
complete, Vicki Pfeifer was injured when she tripped and fell on some spilled
concrete left on one of the City’s sidewalks. Pfeifer filed this negligence action
against the City and Ellenbecker, among others.

¶2 The City moved for summary judgment, arguing that it was entitled
to immunity under WIS. STAT. § 893.80(4) (2021-22).3 Both Ellenbecker and
Pfeifer opposed the City’s motion, arguing that exceptions to immunity applied.
The circuit court disagreed and granted the City’s motion. We conclude that the
City is immune from this suit under § 893.80(4), no exceptions to the City’s

1
For ease of reading, we will refer to these parties collectively as “Ellenbecker.”
2
For ease of reading, we will refer to these parties collectively as “the City.”
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2023AP713

immunity under § 893.80(4) apply, and the court properly granted summary
judgment to the City. Accordingly, we affirm.

BACKGROUND

¶3 The City contracted with Ellenbecker to construct and repair
sidewalks throughout the City in 2018, and the work was performed from July
until September of that year. Pursuant to the “Contract for M-2-2018 Concrete
Maintenance” between the City and Ellenbecker (the contract), Ellenbecker was
charged with “at all times keep[ing] the premises free from accumulations of
waste material or rubbish caused by [its] employees or work,” and it was required
to post signage, guards, barriers, and lighting in the construction area until the
work was “accepted” by the City. The City did not plan to perform its final
inspection of Ellenbecker’s work until all of it was completed.

¶4 As pertinent to this appeal, Ellenbecker replaced multiple sidewalk
squares in front of 804 Grand Avenue in Merrill, Wisconsin. While replacing the
sidewalk squares, Ellenbecker spilled a small amount of wet concrete on a part of
the sidewalk that was not being replaced, and the concrete was left to harden,
creating a raised obstruction (hereinafter, the spilled concrete).

¶5 On August 22, 2018, Pfeifer was walking on the sidewalk in front of
804 Grand Avenue—which was open for public use—when she tripped on the
spilled concrete and fell onto the sidewalk. As a result, Pfeifer filed suit against
both the City and Ellenbecker, among others, claiming that their alleged
negligence caused her severe injuries.

¶6 The City moved for summary judgment, arguing that it was
statutorily immune from liability under WIS. STAT. § 893.80(4) and that none of

3
No. 2023AP713

the exceptions to immunity applied. Both Pfeifer and Ellenbecker opposed the
City’s motion on the basis that two exceptions to immunity—ministerial duty and
known and compelling danger—applied to allow Pfeifer’s negligence suit against
the City to continue. See Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶24, 253
Wis. 2d 323, 646 N.W.2d 314.

¶7 After briefing, the circuit court held a nonevidentiary hearing on the
City’s motion and orally granted summary judgment to the City.4 According to
the court, WIS. STAT. § 893.80(4) “presumes that the City of Merrill is entitled to
immunity for an accident like this.” The court rejected Pfeifer’s and Ellenbecker’s
arguments that the “law” presented by the parties imposed a ministerial duty upon
the City that it failed to fulfill. It further determined that the known and
compelling danger exception did not apply because “Ellenbecker and Pfeifer have
not shown the [c]ourt that the alleged danger was known to the City of Merrill.”
Ellenbecker appeals.5

DISCUSSION

¶8 The issue presented in this appeal is whether the City is entitled to
governmental immunity or whether an exception to governmental immunity
applies. WISCONSIN STAT. § 893.80(4) “immunizes municipalities from liability
arising out of ‘acts done in the exercise of legislative, quasi-legislative, judicial or
quasi-judicial functions,’” which our supreme court “has consistently
interpreted … [as] any acts that involve the exercise of discretion.” Engelhardt v.

4
The circuit court later entered a written order dismissing all of Pfeifer’s claims against
the City with prejudice and with costs.
5
Pfeifer did not appeal the circuit court’s decision on summary judgment.

4
No. 2023AP713

City of New Berlin, 2019 WI 2, ¶¶21-22, 385 Wis. 2d 86, 921 N.W.2d 714
(citation omitted). “The doctrine of governmental immunity ‘is founded upon
policy considerations that strike a balance between the need of public officers to
perform their functions freely [and] the right of an aggrieved party to seek
redress.’” Pinter v. Village of Stetsonville, 2019 WI 74, ¶33, 387 Wis. 2d 475,
929 N.W.2d 547 (alteration in original; citations omitted). “Those policy
considerations focus largely on the protection of the public purse against legal
action and on the restraint of public officials through political rather than judicial
means.” Id. Section 893.80(4) does not, however, provide immunity under all
circumstances, and our supreme court has recognized four exceptions to
governmental immunity. Engelhardt, 385 Wis. 2d 86, ¶29; Lodl, 253 Wis. 2d
323, ¶24.

¶9 This case comes before us pursuant to the City’s successful motion
for summary judgment. Appellate review of an order granting summary judgment
is de novo, and we apply the same methodology as the circuit court, while
benefiting from the court’s analysis. Lodl, 253 Wis. 2d 323, ¶15; WIS. STAT.
§ 802.08(2). We also review the application of WIS. STAT. § 893.80(4) and its
exceptions to a set of facts de novo. See Kierstyn v. Racine Unified Sch. Dist.,
228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999). We stress that when determining
whether governmental immunity applies, we assume that the City was negligent,
“focusing instead on whether the [City’s] 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.” See Lodl, 253 Wis. 2d 323,
¶17. In other words, arguments to this court advocating that the City was or was
not negligent, as “proof” that an exception to immunity applies, have no place

5
No. 2023AP713

before us and will not prevent summary judgment. See Meyers v. Schultz, 2004
WI App 234, ¶10, 277 Wis. 2d 845, 690 N.W.2d 873.

¶10 As it did in the circuit court, Ellenbecker argues that both the
ministerial duty and the known and compelling danger exceptions to governmental
immunity permit Pfeifer’s negligence suit to proceed against the City. See Lodl,
253 Wis. 2d 323, ¶24. For the reasons that follow, we conclude that the City is
immune from liability for Pfeifer’s negligence claims under WIS. STAT.
§ 893.80(4) because no ministerial duty imposed by law was violated and because
no known and compelling danger gave rise to a ministerial duty.

I. Ministerial Duty

¶11 “The ministerial duty exception is not so much an exception as a
recognition that immunity law distinguishes between discretionary and ministerial
acts, immunizing the performance of the former but not the latter.” Lodl, 253
Wis. 2d 323, ¶25. “A duty is ministerial if 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 for judgment or discretion.’” Pinter, 387 Wis. 2d
475, ¶41 (citations omitted). “In contrast, a discretionary act ‘involves the
exercise of judgment in the application of a rule to specific facts.’” Id. (citation
omitted).

¶12 Before we address Ellenbecker’s specific arguments, we must first
examine its general claim that the circuit court erred by concluding that
governmental immunity is the rule, rather than the exception, when it stated that
WIS. STAT. § 893.80(4) “presumes” that the City is entitled to immunity. Citing
Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), and Legue

6
No. 2023AP713

v. City of Racine, 2014 WI 92, ¶4, 357 Wis. 2d 250, 849 N.W.2d 837, Ellenbecker
asserts that “[w]hile there are limited circumstances under which immunity from
liability applies, the law in Wisconsin is clear that for municipal government
actors ‘the rule is liability—the exception is immunity.’”

¶13 As we have outlined previously in a prior case, “[u]nder the common
law and up through the 1960s, the government was immune from tort liability as a
general rule,” but then “[i]n Holytz …, our supreme court abrogated the common
law government immunity doctrine.” Knoke v. City of Monroe, 2021 WI App 6,
¶¶13, 16, 395 Wis. 2d 551, 953 N.W.2d 889 (2020). “Holytz announced that
‘henceforward, so far as governmental responsibility for torts is concerned, the
rule is liability—the exception is immunity.’” Knoke, 395 Wis. 2d 551, ¶16
(quoting Holytz, 17 Wis. 2d at 39). Our supreme court “clarified, however, that
governmental entities continued to be immune from suit when they exercised their
‘legislative or judicial or quasi-legislative or quasi-judicial functions,’” Knoke,
395 Wis. 2d 551, ¶16 (quoting Holytz, 17 Wis. 2d at 40), which language the
legislature later adopted when it enacted the predecessor to WIS. STAT. § 893.80,
see WIS. STAT. § 331.43(3) (1963-64); 1963 Wis. Laws, ch. 198; Knoke, 395
Wis. 2d 551, ¶17 & n.3.

¶14 Over the following decades, our supreme court “consistently
interpreted ‘acts done in the exercise of legislative, quasi-legislative, judicial or
quasi-judicial functions’ to include any acts that involve the exercise of
discretion.” See Pinter, 387 Wis. 2d 475, ¶31 (citing Lifer v. Raymond, 80
Wis. 2d 503, 511-12, 259 N.W.2d 537 (1977)). In so doing, our supreme court has
acknowledged that the general rule of liability adopted in Holytz has effectively
been abrogated. See Pries v. McMillon, 2010 WI 63, ¶17, 326 Wis. 2d 37, 784
N.W.2d 648 (explaining that the Holytz “rule, since abrogated by case law,

7
No. 2023AP713

provided that in cases alleging negligent acts by public officials, liability was the
rule and governmental immunity was the exception”); see also Engelhardt, 385
Wis. 2d 86, ¶70 (Dallet, J., concurring) (“The result of this court’s adoption of the
pre-Holytz, pre-WIS. STAT. § 893.80(4) language conditioning immunity on the
performance of discretionary acts has been a return to governmental immunity as
the rule and liability as the exception.”); Melchert v. Pro Elec. Contractors, 2017
WI 30, ¶57, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J., dissenting)
(noting that “[c]riticism of this court’s interpretation of [§] 893.80(4) is
well-documented” and collecting cases). Nevertheless, recently and repeatedly,
the court has rejected invitations to “return to the plain text of § 893.80(4) and
adhere to [the] court’s stated purpose for the limited exception of governmental
immunity.” Pinter, 387 Wis. 2d 475, ¶¶34-38; id., ¶¶75-76 (Dallet, J., dissenting);
Engelhardt, 385 Wis. 2d 86, ¶¶21-28. Thus, the circuit court did not err by
suggesting that the City was presumptively entitled to immunity.

¶15 Within this same argument, Ellenbecker also challenges what it calls
the “oft-cited definition of ministerial duty articulated initially in” Meyer v.
Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). Ellenbecker asserts that
“[r]ecent” decisions, such as Legue and Pries, have distinguished Meyer and
“clarified … that governmental immunity does not attach merely because the
conduct in question involves elements of discretion” because a lack of
“discretionary details” or a failure to “dictate each precise undertaking the
government actor must implement” “did not prevent the formation of a ministerial

8
No. 2023AP713

duty” in those cases.6 See Legue, 357 Wis. 2d 250, ¶131; Pries, 326 Wis. 2d 37,
¶3; id., ¶¶77, 80 (A.W. Bradley, J., dissenting).

6
In Legue, a collision occurred between the plaintiff and a police officer responding to
an emergency call to the scene of an accident. Legue v. City of Racine, 2014 WI 92, ¶2, 357
Wis. 2d 250, 849 N.W.2d 837. At issue was the interplay between WIS. STAT. § 893.80(4)
immunity and WIS. STAT. § 346.03(5), which imposes a duty on officers to operate an authorized
emergency vehicle “with due regard under the circumstances for the safety of all persons.”
Legue, 357 Wis. 2d 250, ¶6. Our supreme court determined that the officer’s acts were “outside
the scope of the immunity statute.” Id., ¶133. In particular, the court stated:

Today’s holding is in keeping with sister state jurisdictions
with statutes similar to Wisconsin’s that view the operation of a
vehicle as a paradigmatic ministerial act. These jurisdictions
tend to hold that immunity does not attach to negligent operation
on the part of an emergency vehicle operator.

Consequently, we view our discretionary-ministerial
jurisprudence as directing us to hold that immunity does not
apply to the police officer’s conduct in the instant case simply
because she made the discretionary decision to respond to an
emergency call.

Id., ¶¶134-35 (footnotes omitted).

In Pries, a group of inmates were dismantling horse stalls at the Wisconsin State Fair
Park, and one of the inmates was injured when a piece of stall fell on him. Pries v. McMillon,
2010 WI 63, ¶¶4, 6, 326 Wis. 2d 37, 784 N.W.2d 648. Our supreme court determined that the
“two-page written procedure in effect at the time of the accident setting forth the proper method
of disassembling the horse stalls” fell “within the range of documents that could serve as a basis
for a ministerial duty.” Id., ¶¶9, 32. According to the court, the language in the procedure to
“[a]lways have someone holding up the piece that you are taking down,” along with the
understanding that the procedure was to be followed each time the stalls were dismantled and
“the nature of the work and the context in which it is performed,” gave rise to a ministerial duty.
Id., ¶¶37-38 (alteration in original).

(continued)

9
No. 2023AP713

¶16 Our review of the case law, however, confirms that the definition of
a ministerial duty articulated in Meyer remains the standard—as outlined in
paragraph 11 above—that the courts of this state currently apply. Compare
Meyer, 271 Wis. at 332 with Pinter, 387 Wis. 2d 475, ¶31; see also Engelhardt,
385 Wis. 2d 86, ¶32 (“In Wisconsin, the test for determining whether a duty is
ministerial or discretionary was articulated in Meyer ….”). Nothing in Legue or
Pries modifies or limits that definition. Thus, Ellenbecker’s argument that the
courts’ decisions in Legue and Pries changed the definition of ministerial duty is
incorrect.7

a. The Contract

¶17 Moving to Ellenbecker’s specific arguments, Ellenbecker identifies
several sources of “law” that it claims created a ministerial duty. “The first step in

Ellenbecker also cites Domino v. Walworth County, 118 Wis. 2d 488, 491, 347 N.W.2d
917 (Ct. App. 1984), for its argument that “simply allowing for the exercise of discretion does not
suffice to bring the actions under the blanket of immunity under WIS. STAT. § 893.80(4), because
that would effectively eviscerate the general rule of municipal liability.” There, we concluded
that the county did not enjoy immunity for the actions or omissions of its sheriff’s department
dispatcher where the dispatcher received a report of a fallen tree across a public road and failed to
ensure, after one officer was diverted to an accident scene, that another officer was assigned to
investigate the tree or inform the municipality. Domino, 118 Wis. 2d at 490. However, we
determined that the known and compelling danger exception, rather than the ministerial duty
exception, applied. Id. at 491. Thus, the Domino court’s discussion of discretion in the context
of the known and compelling danger exception has no impact on our current understanding of the
ministerial duty exception.
7
Although Ellenbecker argues that the circuit court erred by presuming that immunity
applied, it does not appear to argue that the City’s action or inaction at issue in this case did not
involve the exercise of discretion such that WIS. STAT. § 893.80(4) would not even apply.
Instead, it appears to muddle the use of the term “discretion” as it is used to determine which acts
of a municipality qualify under § 893.80(4) and as it is used within the definition of a ministerial
duty. These are two separate analyses: one focusing “on whether the [City’s] action (or inaction)
upon which liability is premised is entitled to immunity under the statute” and the other focusing
on “whether one of the judicially-created exceptions to immunity applies.” See Lodl v.
Progressive N. Ins. Co., 2002 WI 71, ¶17, 253 Wis. 2d 323, 646 N.W.2d 314.

10
No. 2023AP713

the ministerial duty analysis is to identify a source of law or policy that imposes
the alleged duty.” American Fam. Mut. Ins. Co. v. Outagamie County, 2012 WI
App 60, ¶13, 341 Wis. 2d 413, 816 N.W.2d 340. “Where there is a written law or
policy defining a duty, we naturally look to the language of the writing to evaluate
whether the duty and its parameters are expressed so clearly and precisely, so as to
eliminate the official’s exercise of discretion.” Pries, 326 Wis. 2d 37, ¶26.
“‘Law’ in this context means, at a minimum, an act of government,” including
“statutes, administrative rules, policies or orders[,]” “plans adopted by a
governmental unit,” and “contracts entered into by a governmental unit.” Schultz,
277 Wis. 2d 845, ¶19 (alteration in original; citations omitted).

¶18 Ellenbecker first argues that its contract with the City created a
ministerial duty.8 According to Ellenbecker, the City had “an overarching and
non-delegable duty to repair and maintain its public sidewalks to ensure their
safety. As part of that general duty, the City developed the sidewalk project at
issue and drafted [the contract] between the City and Ellenbecker, which
incorporated ministerial specifications.” (Citation omitted.) Section 12 of the
8
The City asserts that, “[a]t its core, Ellenbecker’s argument [on appeal] is that the City
had a ministerial duty to inspect Ellenbecker’s work prior to completion of the entire project.” In
its reply, Ellenbecker argues that the City’s statement here is “erroneous[]” because “[f]ailing to
inspect is but one of the multiple ministerial duties breached by the City.”

We pause to note that at many points in Ellenbecker’s briefing, it is unclear what exact
ministerial duty Ellenbecker is claiming that the City violated. For example, Ellenbecker cites the
source of law that it claims imposed a ministerial duty, but it does not always clearly and
specifically identify the duty that it claims 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.” See Pinter v. Village of Stetsonville, 2019 WI 74, ¶41, 387 Wis. 2d 475, 929
N.W.2d 547 (citation omitted). We have done our best to identify and address Ellenbecker’s
arguments. To the extent we have failed to do so, we conclude they were insufficiently
developed. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not address undeveloped arguments).

11
No. 2023AP713

contract, explains Ellenbecker, “incorporated detailed drawings and
specifications” and “provided that ‘the work shall be executed in strict conformity
with the plans and specifications.’” In support of its position, Ellenbecker refers
to a drawing, included with the contract, containing written specifications, stating
that “each sidewalk slab was to be five feet wide, four inches thick, and have a
slope toward the street of one-quarter inch per foot.” It further asserts, without
reference to any specific wording in the contract or the drawing, that “[t]he
sidewalk was also required to have a uniform walking surface free of
obstructions.”

¶19 We conclude that nothing in § 12 of the contract created a
ministerial duty for the City to act. First, § 12 provides in its entirety: “The work
shall be executed in strict conformity with the plans and specifications and the
[c]ontractor shall do no work without proper drawings and specifications.”
Accordingly, as the City argues, “[t]his provision clearly creates a requirement
that [Ellenbecker] complete the work according to the plans and specifications
approved by the City.” (Emphasis added.) The contract requires that “[t]he work”
be “executed” in a certain manner, but the City was not the entity doing the work;
Ellenbecker was. Therefore, § 12 of the contract does not prescribe performance
of a specific task to the City.

¶20 In response, Ellenbecker argues that the City “cannot avoid liability
by attempting to transfer its liability to a third-party contractor,” or “[s]tated
differently, the entity that has a non-delegable duty cannot assert that another to
which the duty was purportedly delegated is to be substituted as the primary
defendant.” In support of its position, Ellenbecker cites Hagerty v. Village of
Bruce, 82 Wis. 2d 208, 213-14, 262 N.W.2d 102 (1978), and Barry v. Employers
Mutual Casualty Co., 2001 WI 101, ¶42, 245 Wis. 2d 560, 630 N.W.2d 517. In

12
No. 2023AP713

Hagerty, the question was whether property owners were liable for injuries
resulting from failing to clear snow and ice from a public sidewalk adjacent to
their property where a municipal ordinance so required. Hagerty, 82 Wis. 2d at
211-12. Our supreme court concluded that property owners could not be held
liable under those circumstances because the duty to maintain the sidewalk
belonged to the municipality. Id. at 214.

¶21 Barry involved Wisconsin’s safe place statute. Barry, 245 Wis. 2d
560, ¶1. There, the plaintiff was injured when he fell down stairs that a
subcontractor had repaired, and an investigation revealed that the vinyl strip that
had been installed to secure the carpeting to the stairs had become loose. Id., ¶¶5,
7-8. Although there were other issues on appeal, our supreme court specifically
held that the corporate property owner’s “duty under the safe place statute is
non-delegable, and therefore [the property owner] must answer to [the plaintiff]
for any violation of that duty regardless of whether another party contributed to
the violation.” Id., ¶43.

¶22 We agree with the City that the issue of non-delegable duties is not
relevant to the immunity analysis. First, the cases cited by Ellenbecker are
inapposite. Neither case even mentions governmental immunity and, therefore,
cannot stand for the proposition that immunity is abrogated based on a
governmental entity’s discretionary acts in the performance of a non-delegable
duty. Ellenbecker does not identify any legal authority in support of that
proposition.

¶23 Second, the City concedes that it has a duty to maintain its
sidewalks, but it does not argue that it is immune from liability because it
delegated its duty to Ellenbecker. Instead, the City asserts that it is immune

13
No. 2023AP713

because replacing the sidewalks—or retaining Ellenbecker to do so—involved an
exercise of discretion, and no exceptions to immunity apply. As the City explains,
“[t]he City is imbued with discretion as to how to maintain its sidewalks” and
“could hire and pay a contractor to complete the construction.” The fact that the
contractor possibly breached its contract or was allegedly negligent in completing
the construction does not abrogate the City’s immunity. Thus, the City claims,
while “[t]he [c]ourt may assume that the City was negligent in choosing this
contractor and in supervising [Ellenbecker],” “[t]he City is still entitled to
immunity.” We agree.9

9
Ellenbecker makes an additional argument that because “the City voluntarily created
specifications for its sidewalks with such certainty that” “[t]he City need only follow and enforce
its straightforward drawing,” a “contractually-created ministerial duty was breached.” Again, the
City was not required to “follow” the “drawing” under the terms of the contract; Ellenbecker was.
Thus, we do not address the cases cited by Ellenbecker for the proposition that if government
entities “choose to act, they faced a specific legal obligation to do so in a prescribed manner.”

Instead, the City’s decisions to hire Ellenbecker, to choose the design specifications for
the sidewalk project, and to create the drawing included with the contract were legislative or
quasi-legislative acts. See Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶¶26, 38,
350 Wis. 2d 509, 835 N.W.2d 226 (“Legislative and quasi-legislative functions generally refer to
those policy choices made in an official capacity, e.g., when a governmental entity chooses one
project design over another.”). Ellenbecker essentially admits this fact by arguing that “the City’s
decision to develop the subject sidewalk project was discretionary,” but Ellenbecker then claims
that “once that project was implemented, following the design drawings and specifications of that
project was ministerial.” We fail to see how Ellenbecker’s possible faulty workmanship equates
to the City’s alleged failure to follow the design specifications in the contract, and beyond
arguing that the City had a non-delegable duty, which we addressed above, Ellenbecker does not
support that claim with legal authority.

(continued)

14
No. 2023AP713

¶24 Ellenbecker also relies on Umansky v. ABC Insurance Co., 2009
WI 82, 319 Wis. 2d 622, 769 N.W.2d 1, to support its argument that § 12 of the
contract imposes a ministerial duty on the City. In Umansky, the plaintiff fell to
his death at Camp Randall Stadium while working on a platform located eight feet
above the ground. Id., ¶1. At the time, no railing protected the platform, despite
the state legislature adopting federal safety regulations requiring “that railings be
installed on platforms like the one from which [the plaintiff] fell.” Id. A question
on appeal was whether immunity applied or whether the federal regulation
imposed a ministerial duty. Id., ¶2. The federal regulation at issue provided, in
part, that “[e]very open-sided floor or platform 4 feet or more above adjacent floor
or ground level shall be guarded by a standard railing.” Id., ¶16. Our supreme
court concluded that this “highly specific safety regulation in force under
Wisconsin law … created a ministerial duty such that there is an exception to the
ordinary rule of immunity.” Id., ¶¶16-18.

¶25 Ellenbecker correlates the safety requirement in Umansky to § 12 of
the contract. According to Ellenbecker, “[t]he sidewalk specifications within the

We also agree with the City’s claim that “Ellenbecker’s argument ignores the distinction
between municipality and contractor when it comes to immunity.” A contractor hired by a
municipality, such as Ellenbecker, may also be entitled to immunity if it can demonstrate “both
that the contractor was an agent as that term is used in [WIS. STAT.] § 893.80(4), i.e., as is
expressed in the [Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App.
1996),] test, and that the allegedly injurious conduct was caused by the implementation of a
decision for which immunity is available for governmental entities under § 893.80(4).” Showers,
350 Wis. 2d 509, ¶36; Lyons, 207 Wis. 2d at 457-58. As our supreme court expressed in
Showers, “it was the governmental entity in Lyons that made the choice of design that allegedly
was a cause of the accident”; thus, because the contractor followed the specifications of the
quasi-legislative design decision, “the governmental contractor was entitled to the same level of
immunity as would be accorded to the governmental entity had it been sued directly for its design
choice.” Showers, 350 Wis. 2d 509, ¶31. Importantly, however, “an allegation of negligent
workmanship [by the contractor] would not have the potential for immunity under § 893.80(4) for
that specific injury-causing conduct.” Showers, 350 Wis. 2d 509, ¶39.

15
No. 2023AP713

City’s contract mandated that the cement slabs have an even and unobstructed
walking surface. There was no discretion on the City’s part to ignore or
circumvent those ministerial requirements.”

¶26 Umansky is unavailing. First, our supreme court determined in
Umansky that the federal regulation was applicable under the circumstances
because it applied “to public buildings of a public employer,” Umansky, 319
Wis. 2d 622, ¶18, but we have determined above that § 12 of the contract does not
impose a duty upon the City. Second, the court recognized in Umansky that the
safety regulation was “highly specific” because it included specifications detailing
under what circumstances a railing was required as well as the type of railing. Id.,
¶16 & n.8, ¶18. Here, however, § 12 contains only a general direction that the
work be completed according to the plans and specifications. To the extent the
drawing included with the contract, specifying the size and slope of each sidewalk
slab, contained more detail, we agree with the City that the circumstances are
entirely divergent. Umansky involved a platform designed in violation of the
safety regulations that was not rectified and had remained that way for years,
while the spilled concrete in this case was not in the City’s design specifications,
appears to have been caused by faulty workmanship, and was unknown to the
City. The circumstances are not comparable.

¶27 Ellenbecker also identifies other alleged ministerial duties set forth
in the contract based on “the mandatory ‘shall’ language [that] are presumed to be
ministerial.” In particular, Ellenbecker relies on § 11 of the contract, which
provides that the City’s “[i]nspector shall have general supervision and direct all
work” and that the inspector “shall also have authority to reject all work and
materials which do not conform to the contract.” It also relies on § 14, which
provides that the inspector “shall report all failure on the part of [Ellenbecker] to

16
No. 2023AP713

fulfill the requirements of [the contract’s] specifications and the contract.”
According to Ellenbecker, “[u]nder the contract, [the City’s inspector] was tasked
with [ensuring] and enforcing compliance with the contract provisions,” and the
inspector “failed to carry out his monitoring and inspection duties until it was too
late—after [Pfeifer’s] accident—which occurred nearly a month after Ellenbecker
finished the sidewalk on the east side of Grand Avenue and it was opened for
public use.”

¶28 In support of its position, Ellenbecker cites Turner v. City of
Milwaukee, 193 Wis. 2d 412, 535 N.W.2d 15 (Ct. App. 1995). In Turner, the
plaintiff sued the City of Milwaukee for injuries she suffered when she was bitten
by a dog that had previously attacked twelve other people. Id. at 416. Prior to the
plaintiff’s injury, the city did not “seek a court order for the dog’s removal or
destruction” despite an ordinance stating that “[a] vicious animal that has been
involved in 2 or more previous unprovoked attacks, injuries or bites shall be
removed from the city or destroyed.” Id. at 416-18. The court determined that the
ordinance imposed a ministerial duty on the city to seek removal or destruction of
the dog. Id. at 420-21.

¶29 Ellenbecker asserts that “in rejecting the city’s arguments, the
Turner court held that the mandatory ‘shall’ language made the overarching duty
ministerial, regardless of whether there were discretionary options in how to carry
out that duty.” See id. at 423. Thus, Ellenbecker claims that a duty can be
ministerial even though fulfilling the duty requires the government actor to
exercise his or her judgment.

¶30 We disagree that Turner aids our analysis here. The ordinance at
issue in Turner not only used mandatory language, but it also defined the terms

17
No. 2023AP713

used such that there was no discretion as to whether to seek an order for removal
or destruction of the dog when the terms of the ordinance had been satisfied.
See id. at 417. The city’s claim in Turner that it had discretion was based on a
state statute providing that the city “may” seek such an order, but we determined
that the statute merely granted the city authority to seek the order rather than
granting discretion whether to do so. Id. at 418.

¶31 In this case, we do not agree that the use of the word “shall” within
the contract imposed a ministerial duty on the City. While “the choice of
discretionary versus mandatory language is a significant factor in determining the
existence of a ministerial duty,” Pries, 326 Wis. 2d 37, ¶30, a governmental entity
may have a mandatory duty but still have discretion or judgment as to the time,
place, or manner in which that duty is to be performed, see Yao v. Chapman, 2005
WI App 200, ¶29, 287 Wis. 2d 445, 705 N.W.2d 272 (“[F]or a duty to be
ministerial, a public officer must be not only bound to act, but also bound by law
to act in a very particular way, leaving nothing for judgment or discretion.”).
Thus, mandatory and ministerial are neither synonymous nor mutually exclusive.

¶32 Here, even though the contract provides that the City’s inspector
“shall” oversee Ellenbecker’s compliance with the contract provisions,
Ellenbecker has not identified any language dictating when, how, or under what
circumstances those monitoring and inspection duties were to occur. Importantly,
the contract does not require the City to inspect Ellenbecker’s work at any specific
time. In other words, the “time, mode and occasion” for the inspector’s
performance of the contractual duties remains within the inspector’s discretion.
See Yao, 287 Wis. 2d 445, ¶31 (“[T]he duties … suffer from a critical lack of
particularity as to time, mode and occasion of their performance, an essential
ingredient of a ministerial duty.”). The City’s inspector testified that he would

18
No. 2023AP713

inspect the “entire project” “[a]t the end,” or upon completion. Based on this
record, there is no evidence that the City’s inspector was required to perform an
inspection of Ellenbecker’s work prior to the completion of the project; therefore,
his failure to do so prior to Pfeifer’s accident did not violate a ministerial duty
imposed by law.

¶33 Ellenbecker argues, however, “that lack of specificity does not
preclude liability” because the City’s inspector “cannot supervise, direct, inspect,
report or reject the work if he never does anything.” Following this logic,
Ellenbecker says, the City “could completely avoid liability by simply waiting
weeks, months or even years after the sidewalk was opened to the public before
conducting its mandatory monitoring and inspection to assure compliance with the
contract specifications. A ministerial duty cannot be ignored by inaction.” In
support, Ellenbecker cites Rolland v. County of Milwaukee, 2001 WI App 53, 241
Wis. 2d 215, 625 N.W.2d 590. There, in our discussion of what it means to
“ignore[]” a mandatory duty, we explained that “we do not mean to imply that a
total disregard must be shown; proving a cavalier, mere lip-service payment or
perfunctory nod to a mandatory duty that the law either imposes or recognizes
would be sufficient to show that the duty was ignored.” Id., ¶12. Ellenbecker
claims that, like in Rolland, “it is for the jury to determine whether [the City’s
inspector’s] cavalier approach to his mandatory duties effectively breached his
overarching ministerial responsibilities.”

¶34 However, here, unlike in Rolland, there are no disputed facts to
suggest that the City’s inspector might have “ignored” a mandatory duty or that, as
Ellenbecker suggests, the inspector intended to wait for “weeks, months or even
years” to inspect Ellenbecker’s work. The evidence is that the inspector would
have inspected the project upon completion.

19
No. 2023AP713

b. Americans with Disabilities Act

¶35 Next, Ellenbecker argues that “federal regulations governing public
sidewalks pursuant to the Americans with Disabilities Act (ADA) also establish a
ministerial duty with which the City failed to comply.”10 According to
Ellenbecker, “[s]tate and local governments must follow the requirements of the
[2010] standards if the new construction or alteration at issue occurred after
March 15, 2012,” and the project here occurred in 2018. See 28 C.F.R.
§ 35.151(c)(3) (2024). The 2010 standards provide that the maximum allowable
change in the vertical level on floor or ground surfaces is one-quarter of an inch.
36 C.F.R. pt. 1191, app. D § 303.2. Ellenbecker argues that because “it is
undisputed that the spilled concrete upon which Pfeifer tripped exceeded
one-quarter inch in height,” the City violated “the ministerial sidewalk
requirements of the ADA.”

¶36 Even if we assume, without deciding, that Ellenbecker correctly
argues that the 2010 standards created a ministerial duty on the part of the City,
the City did not violate the duty. Ellenbecker does not claim that the City’s design
of the sidewalk project or that the specifications for the project provided to
Ellenbecker in the contract failed to comply with the 2010 standards. In other
words, the City did not direct Ellenbecker’s construction of the sidewalk to violate

10
Ellenbecker explains that the United States Department of Justice published revised
regulations for the ADA in September 2010. See U.S. DEP’T OF JUST., 2010 ADA STANDARDS
FOR ACCESSIBLE DESIGN (Sept. 15, 2010), https://www.ada.gov/law-and-regs/design-
standards/2010-stds/ (hereinafter, the 2010 standards). The 2010 standards “set minimum
requirements—both scoping and technical—for newly designed and constructed or altered [s]tate
and local government facilities, public accommodations, and commercial facilities to be readily
accessible to and usable by individuals with disabilities.”

20
No. 2023AP713

the 2010 standards because the contract did not include the spilled concrete.11 In
fact, the contract stated: “The [c]ontractor shall at all times keep the premises free
from accumulations of waste material or rubbish caused by [its] employees or
work ….” We agree with the City that “[i]t is absurd to argue that the City
violated [ADA] design standards because its contractor, unbeknownst to the City,
spilled concrete on an existing sidewalk.”

c. WISCONSIN STAT. § 66.0907

¶37 Ellenbecker’s next argument is that WIS. STAT. § 66.0907
“establishes an additional ministerial duty relating to public sidewalks which was
violated by the City.” In particular, Ellenbecker cites a portion of § 66.0907(1),
which provides: “The sidewalk shall be kept clear for the use of persons on foot.”
Thus, Ellenbecker claims that “the City had a ministerial duty to keep the subject
sidewalk clear for pedestrians” because “clear” means “free of obstructions or
unwanted objects” and because “[i]t is beyond dispute that the lump of hardened
concrete adhered to the sidewalk was an obstruction.” As above, Ellenbecker
concentrates on the statute’s use of mandatory language. According to
Ellenbecker, “the City opened the subject sidewalk for public use before it was
‘clear’ and violated the ministerial duty imposed by” § 66.0907.

¶38 We conclude that WIS. STAT. § 66.0907(1) does not create a
ministerial duty. First, as noted above, the statute’s use of mandatory language—
i.e., “shall”—does not alone determine whether a duty is ministerial. See

11
Again, Ellenbecker cites Umansky v. ABC Insurance Co., 2009 WI 82, 319 Wis. 2d
622, 769 N.W.2d 1, in support of its argument. For the reasons discussed above, Umansky is not
persuasive under the circumstances. See supra ¶26.

21
No. 2023AP713

supra ¶31. Second, the statute’s directive that the “sidewalk shall be kept clear for
the use of persons on foot” does not “prescribe[] and define[] the time, mode and
occasion for its performance with such certainty that nothing remains for judgment
or discretion.” See Engelhardt, 385 Wis. 2d 86, ¶32 (citation omitted);
§ 66.0907(1). Section 66.0907(1) does not affirmatively define a duty or set forth
a specific task that a municipality must perform. A different interpretation would
too broadly require municipalities to vigilantly monitor their sidewalks for
obstructions.

¶39 Ellenbecker again identifies Pries, Rolland, and Domino in support
of its position, but those cases are not analogous.12 In Pries, as we noted above,
see supra note 6, our supreme court determined that the written procedure
detailing the proper method for disassembling horse stalls gave rise to a ministerial
duty. Pries, 326 Wis. 2d 37, ¶¶32, 37-38. Ellenbecker argues that “the court held
that the mandatory word ‘always’ did not permit discretion as to whether to have
workers hold up the section of the horse stall being disassembled,” and, therefore,
a ministerial duty was created “despite the fact that the instructions did not
‘prescribe’ all details of how the stalls should be disassembled.”

¶40 The holding in Pries is—like many of the cases cited by
Ellenbecker—fact specific, and, therefore, the court’s reasoning in Pries is not
appropriately applied under the circumstances here. The disassembly procedure in
Pries detailed a specific task that was to be performed and defined the time
(always), mode (someone holds up the stall piece), and occasion (when the stalls

12
We previously addressed why Rolland v. County of Milwaukee, 2001 WI App 53,
241 Wis. 2d 215, 625 N.W.2d 590, is not persuasive, see supra ¶¶33-34, and why the court’s
reasoning in Domino is not applicable to the ministerial duty analysis, see supra note 6.

22
No. 2023AP713

are taken down) for its performance. See id., ¶¶37-38. Further, the court did not
find that the mandatory word “always” alone created the ministerial duty; instead,
the court relied on several factors, including the language of the procedure, the
understanding that the procedure was to be followed each time the stalls were
dismantled, and “the nature of the work and the context in which it is performed,”
to ultimately conclude that there was a ministerial duty. Id. Neither the language
in WIS. STAT. § 66.0907(1) nor the circumstances in this case are similar to the
instructions at issue in Pries.

¶41 Ellenbecker further argues that there is a statutory conflict between
WIS. STAT. § 66.0907 and WIS. STAT. § 893.80(4). According to Ellenbecker,
“[t]he cardinal rule of statutory construction is that when comparing a general
statute to a specific statute, the specific statute takes precedence,” and because
§ 66.0907 “specifically applies to sidewalks, whereas immunity
under … § 893.80(4) is general in nature,” § 66.0907 should control. Ellenbecker
also observes that § 893.80(5) “recognizes that rights enforceable against a
governmental entity can be created by other statutes.”

¶42 We conclude that Ellenbecker’s arguments regarding statutory
construction are underdeveloped. Ellenbecker cites only Kapischke v. County of
Walworth, 226 Wis. 2d 320, 595 N.W.2d 42 (Ct. App. 1999), in support of its
argument, but that case involved notice provisions and, therefore, does not support
Ellenbecker’s contention here. See id. at 326-27. Further, while Ellenbecker
correctly asserts that WIS. STAT. § 893.80(5) “makes clear that the legislature
envisioned the possibility that other statutes might create rights or remedies that
plaintiffs can pursue against governmental actors despite” § 893.80(4), Legue, 357
Wis. 2d 250, ¶86, Ellenbecker’s argument is entirely conclusory as to how or why
it is clear that the legislature intended, based on the language in WIS. STAT.

23
No. 2023AP713

§ 66.0907(1), to abrogate governmental immunity. We decline to address these
underdeveloped claims. See Papa v. DHS, 2020 WI 66, ¶42 n.15, 393 Wis. 2d 1,
946 N.W.2d 17.

d. WIS JI—CIVIL 8035

¶43 Finally, Ellenbecker claims that the “common law duty of a
Wisconsin municipality for sidewalk defects” also created a ministerial duty.
According to Ellenbecker, this common law duty is summarized in WIS JI—CIVIL
8035 (2021), which provides in part: “Every municipality has the duty to exercise
ordinary care to construct, maintain, and repair its (highways) (sidewalks) so that
they will be reasonably safe for public travel.” Ellenbecker acknowledges that
“immunity is now an available defense to municipalities in cases claiming a
breach of the duty to keep sidewalks ‘reasonably safe,’” but Ellenbecker cites the
jury instruction committee’s comment, stating, “The [c]ommittee believes that
claims for insufficiency or want of repairs of a roadway remain viable under WIS.
STAT. § 893.80(4) and Holytz …. However, governmental immunity, under
Holytz … may bar some claims.” WIS JI—CIVIL 8035 (2021). According to
Ellenbecker, “[t]he instruction committee expressly recognized that claims based
on the general duty ‘remain viable.’”

¶44 We again disagree with Ellenbecker that WIS JI—CIVIL 8035 (2021)
imposes a ministerial duty on the City. As the City observes, WIS JI—CIVIL 8035
(2021) outlines the duty of care to determine whether a municipality acted
negligently. We reiterate that we assume that the municipality was negligent
under the circumstances here; thus, the question of negligence is not before us in
this case. See Schultz, 277 Wis. 2d 845, ¶10.

24
No. 2023AP713

¶45 Instead, we conclude the provision of the jury instruction
Ellenbecker identifies lacks the specificity necessary for us to conclude that the
instruction prescribes a duty that is “absolute, certain and imperative, involving
merely the performance of a specific task.” We reach this conclusion because the
jury instruction does not “define[] the time, mode and occasion for its performance
with such certainty that nothing remains for judgment or discretion.”
See Engelhardt, 385 Wis. 2d 86, ¶32 (citation omitted). As for the jury instruction
comment, the jury instruction committee admits that governmental immunity will
bar some claims and does not suggest that the instruction itself creates a
ministerial duty. Further, committee’s pronouncements are merely persuasive, not
precedential. State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993).
Accordingly, we conclude that none of the sources of law presented by
Ellenbecker impose a ministerial duty on the City.

II. Known and Compelling Danger

¶46 Next, Ellenbecker argues that the spilled concrete represented a
known and compelling danger that created a ministerial duty for the City to act.
Governmental immunity does not apply where liability is based upon a failure to
properly respond to a particular danger that is “compelling and known … and is of
such force that the public officer has no discretion not to act.” Lodl, 253 Wis. 2d
323, ¶34 (citation omitted). In other words, “a dangerous situation will be held to
give rise to a ministerial duty only when ‘there exists a known present danger of
such force that the time, mode and occasion for performance is evident with such
certainty that nothing remains for the exercise of judgment and discretion.’” Id.,
¶38 (citation omitted); see also Engelhardt, 385 Wis. 2d 86, ¶5 (“The known
danger exception … applies when an obviously hazardous situation known to the

25
No. 2023AP713

public officer or employee is of such force that a ministerial duty to correct the
situation is created.” (citation omitted)).

¶47 “In order for the known and compelling danger exception to apply, a
three-step test must be fulfilled.” Pinter, 387 Wis. 2d 475, ¶51 n.11. “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, 395 Wis. 2d 551, ¶50. Our case law establishes that the danger
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 (citations
omitted).

¶48 According to Ellenbecker, “the lump of hardened concrete
undisputedly presented a serious danger to pedestrians which required a
particularized response—its immediate removal.” It asserts that because the
City’s inspector “immediately responded to 804 Grand Ave and chipped the
excess concrete off the sidewalk with a hammer” upon learning of Pfeifer’s fall,13
the inspector’s “actions were not only a recognition of the degree of danger
presented, but also affirmed that it was the City’s responsibility to remedy the
problem.” Thus, Ellenbecker claims that “[t]he only element [of the three-part

The City’s inspector testified that when he was made aware of the spilled concrete, he
13

“immediately went out to the site, witnessed the debris being on the sidewalk, and then took a
hammer out of [his] Jeep and chipped all of the debris off the sidewalk so that it was no longer a
hazard.”

26
No. 2023AP713

test] left to satisfy the known danger exception is whether the danger was ‘known’
to the City, in the legal sense.”

¶49 Without reaching the other elements of the three-step test, we
conclude that Ellenbecker has failed to satisfy the “known” element; thus, the
known and compelling danger exception does not apply under the circumstances.
Ellenbecker does not dispute that the City’s inspector testified during his
deposition that he did not become aware of the spilled concrete until Pfeifer
reported it after she fell, and Ellenbecker does not present any evidence that the
City otherwise had any knowledge of the spilled concrete until after Pfeifer’s
accident. Regardless, Ellenbecker claims that “[e]ven if [that fact were] true,
actual knowledge is not required under the circumstances present here.” Instead, it
asserts that “constructive notice”14 applies to the known and compelling danger
exception to immunity.

¶50 For several reasons, we disagree that constructive notice applies in
this case and that constructive notice is sufficient “knowledge” under the known
and compelling danger analysis. First, under the three-step test, the law states that
“a governmental actor must find out about the compelling danger.” Knoke, 395
Wis. 2d 551, ¶50; see also Engelhardt, 385 Wis. 2d 86, ¶33 (stating that “[t]he
nature of the danger” must be “compelling and known to the [public] officer”).
This language does not suggest that anything less than actual knowledge would

14
“Constructive notice is a fiction that attributes knowledge of a fact to a person ‘as if he
[or she] had actual notice or knowledge although in fact he [or she] did not.’” Kochanski v.
Speedway SuperAmerica, LLC, 2014 WI 72, ¶32, 356 Wis. 2d 1, 850 N.W.2d 160 (citation
omitted). In general, “constructive notice is chargeable only where the hazard has existed for a
sufficient length of time to allow … the opportunity to discover and remedy the situation.” Id.,
¶34 (citation omitted).

27
No. 2023AP713

satisfy the legal test. We agree with the City’s assertion that “[t]he known danger
exception exists because certain situations are so particularly hazardous that
knowledge of their existence gives rise to a ministerial duty to immediately act”;
therefore, “[i]f a public officer is unaware of the particularly hazardous
circumstances, they are equally unaware of the action that must be taken to
address the danger.” See Lodl, 253 Wis. 2d 323, ¶39.

¶51 Second, Ellenbecker cites no legal authority for the proposition that
constructive notice is legally sufficient to make a dangerous circumstance
“known” to a governmental entity under the known and compelling danger
exception. Indeed, there are no published or citable judicial decisions applying
constructive notice in the known and compelling danger context.15 Ellenbecker
acknowledges this fact, yet it asks this court to fundamentally alter the accepted
analysis anyway, stating that “there is no compelling reason why constructive
notice does not apply to the known danger exception to immunity.”
Notwithstanding the fact that Ellenbecker fails to develop a persuasive argument
as to why constructive notice should apply to the known and compelling danger
exception, beyond stating that a “municipality could simply stick its head in the
sand forever and claim ignorance to escape liability for dangerous sidewalk
defects,” see Papa, 393 Wis. 2d 1, ¶42 n.15, we refuse to modify the
long-established test for the known and compelling danger exception, see Cook v.
Cook, 208 Wis. 2d 166, 188-90, 560 N.W.2d 246 (1997) (concluding that the
court of appeals’ “primary function is error correcting” and that “[t]he supreme

15
In Knoke v. City of Monroe, 2021 WI App 6, ¶51 n.11, 395 Wis. 2d 551, 953 N.W.2d
889 (2020), this court rejected the plaintiff’s argument in a slip-and-fall case that the city had
constructive notice of hazardous conditions.

28
No. 2023AP713

court is the only state court with the power to overrule, modify or withdraw
language from a previous supreme court case”).

¶52 Third, to support its position that constructive notice applies,
Ellenbecker relies on Heuser ex rel. Jacobs v. Community Insurance Corp., 2009
WI App 151, 321 Wis. 2d 729, 774 N.W.2d 653. In Heuser, a student cut himself
while using a scalpel during a flower dissection exercise, and we concluded that a
school district could be held liable for the injuries he sustained. Id., ¶¶2, 7, 34.
Importantly, we emphasized that other children had been injured doing the activity
earlier in the day; thus, it was “self-evident that another student could get hurt
from the flower dissection lab unless the activity was changed,” which gave rise to
a duty “to ‘stop the activity the way it was presently conceived.’” Id., ¶¶4, 34
(quoting Voss ex rel. Harrison v. Elkhorn Area Sch. Dist., 2006 WI App 234,
¶20, 297 Wis. 2d 389, 724 N.W.2d 420). Because the teacher “did nothing,”
immunity was abrogated. Id., ¶¶33-34.

¶53 Ellenbecker cites this court’s statement in Heuser that “Wisconsin
law does not require knowledge of the specific cause of the injury; it determines
knowledge from the general danger of the circumstances.” See id., ¶22. It claims
that the City’s inspector “was aware that similar piles of excess cement had been
left by sidewalk contractors hired by the City on prior occasions” and was “aware
of the hazards attendant with the process of sidewalk replacement”; thus, “[a]s in
Heuser, the City cannot escape liability when it ignores its statutory and
contractual ministerial duties and basically does nothing.”

¶54 Heuser does not support Ellenbecker’s position. The case did not
address the issue of constructive notice because we concluded that the teacher had
actual knowledge of the danger. Moreover, the language Ellenbecker relies on in

29
No. 2023AP713

Heuser—that the “law does not require knowledge of the specific cause of the
injury,” id., ¶22—is read out of context and does not support a conclusion that
actual knowledge of the danger is not required. Rather, we simply rejected the
idea that the known and compelling danger exception required that the teacher
know specifically when or how the injury would occur. As long as the students
continued to use the sharp dissection tools, a specific, known and compelling
danger existed.

¶55 Our supreme court explained in Engelhardt that “[t]he nature of the
danger” must be “compelling and known to the [public] officer” and must be “of
such force that the public officer has no discretion not to act.” Engelhardt, 385
Wis. 2d 86, ¶33 (citation omitted). Thus, knowledge of the general hazards
associated with sidewalk replacement is insufficient to abrogate immunity under
the known and compelling danger exception, which applies under “conditions that
are nearly certain to cause injury if not corrected.” See Voss, 297 Wis. 2d 389,
¶19. Given it is undisputed that the City had no actual knowledge of the spilled
concrete, the known and compelling danger exception does not apply.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

30