Joan Scalcucci v. County of Dane

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.
November 18, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP937 Cir. Ct. No. 2018CV2154

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JOAN SCALCUCCI AND RICK SCALCUCCI,

PLAINTIFFS-APPELLANTS,

UNITED HEALTHCARE INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFF,

V.

COUNTY OF DANE AND CITY OF MADISON,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.
No. 2020AP937

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. 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.

BACKGROUND

¶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.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶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.

DISCUSSION

Standard of Review and Background Principles of Law

¶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.”

2
Because we conclude that the Municipalities are immune from suit under WIS. STAT.
§ 893.80(4), we do not consider the Municipalities’ other arguments, namely: the applicability of
the safe-place statute, whether the Municipalities are entitled to recreational immunity, and
whether either or both municipalities were in fact negligent.

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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 (these
exceptions “overlap to an extent, inasmuch as they both require the identification
of a ministerial duty” (internal quotation marks and quoted source omitted)).
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 (internal quotation marks and quoted source omitted).

¶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

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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
(internal quotation marks and quoted source omitted).

¶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 (internal quotation marks and quoted source omitted); see also
Engelhardt, 385 Wis. 2d 86, ¶5 (“The known danger exception … applies when
an obviously hazardous situation known to the public officer or employee is of
such force that a ministerial duty to correct the situation is created.” (footnote
omitted)). 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).

Application to the Scalcuccis’ Appeal

A. The ministerial duty exception does not apply.

¶10 As noted, the Scalcuccis seek damages from the Municipalities for
injuries that Joan sustained when she tripped on the 1¼ - 1½ sidewalk offset

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No. 2020AP937

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 (internal quotation marks and quoted source omitted).

¶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.”

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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 (“[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.”).

¶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, states that the revised regulations only
apply to governmental facilities designed or altered after March 15, 2012. The
undisputed facts establish that the building and sidewalk were built in 1993, and
the Scalcuccis do not assert that the sidewalk on which Joan tripped was altered
after March 15, 2012. Thus, we cannot conclude that the ADA Standards or the
federal regulations create a ministerial duty to fix the sidewalk offset.

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¶15 The Scalcuccis also appear to suggest that there is a ministerial duty
to maintain sidewalks under WIS. STAT. § 893.83, which, they assert,
“incorporate[s]” a former statute, WIS. STAT. § 81.15 (2001-02). Under this
former statute, an individual could sue municipalities for damages for injuries
caused by the “insufficiency or want of repairs of any highway” (with the term
“highway” construed to include sidewalks). See WIS. STAT. § 81.15 (2001-02),
renumbered WIS. STAT. § 893.83(1) and amended by 2003 Wis. Act 214, § 136;
see also Webster v. Klug & Smith, 81 Wis. 2d 334, 260 N.W.2d 686 (1978) (the
term “highway” in § 81.15 encompasses sidewalks). However, this statute has
been repealed. See 2011 Wis. Act 132, § 2; see also Langenhahn v. West Bend
Mut. Ins. Co., 2019 WI App 11, ¶22, 386 Wis. 2d 243, 926 N.W.2d 210 (“WIS.
STAT. § 81.15 … and its provisions relating to municipal liability for negligent
highway or sidewalk maintenance have been repealed.”). Section 893.83 in its
current form provides:

No action may be maintained against a city, village, town,
or county to recover damages for injuries sustained by
reason of an accumulation of snow or ice upon any bridge
or highway, unless the accumulation existed for 3 weeks.
Any action to recover damages for injuries sustained by
reason of an accumulation of snow or ice that has existed
for 3 weeks or more upon any bridge or highway is subject
to [WIS. STAT. §] 893.80 [the governmental immunity
statute].

It is clear that this provision does not create any general cause of action for
sidewalk or highway repair, much less a ministerial duty for municipalities to
maintain sidewalks. That is, it does not “prescribe[] and define[] the time, mode
and occasion for” performing the “specific task” of sidewalk maintenance “with

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No. 2020AP937

such certainty that nothing remains for judgment or discretion.” See Lodl, 253
Wis. 2d 323, ¶25 (internal quotation marks and quoted source omitted).3

¶16 The Scalcuccis further point to a number of cases purportedly
establishing a municipality’s duty to fix sidewalks. However, most of these cases
have been abrogated or limited by case law.4 The remaining cases the Scalcuccis
cite are inapposite because they concern claims not alleged or present here.5

3
Accordingly, the case law the Scalcuccis cite in support of this argument is also
inapplicable, as these cases rely on WIS. STAT. § 81.15 (2001-02) as the source of a cause of
action for insufficiency or want of highway repairs. See Bystery v. Village of Sauk City, 146
Wis. 2d 247, 251-53, 430 N.W.2d 611 (Ct. App. 1988); Hales v. City of Wauwatosa, 275 Wis.
445, 447-48, 82 N.W.2d 301 (1957).
4
In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 37, 39-40, 115 N.W.2d 618 (1962), our
supreme court abrogated common-law governmental immunity but provided a then-narrow
exception: “This decision is not to be interpreted as imposing liability on a governmental body in
the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions.” Our
legislature codified this exception the following year in what is now WIS. STAT. § 893.80(4). See
1963 Wis. Laws, ch. 198; Knoke v. City of Monroe, 2021 WI App 6, ¶17 & n.3, 395 Wis. 2d 551,
953 N.W.2d 889. In the decades that followed, our courts came to define this statutory exception
to immunity as encompassing “any act that involves the exercise of discretion and judgment.”
See Lodl, 253 Wis. 2d 323, ¶21. Thus, some have posited that immunity is again the rule and
liability the exception, meaning that a plaintiff attempting to bring suit against a municipality
must show that a recognized immunity exception applies. See id., ¶24; see also Engelhardt, 385
Wis. 2d 86, ¶70 (Dallet, J., concurring) (the result of post-Holytz jurisprudence “conditioning
immunity on the performance of discretionary acts has been a return to governmental immunity
as the rule and liability as the exception”). Therefore, the following cases, to which the
Scalcuccis cite, are no longer applicable under modern immunity jurisprudence because they rely
on a common-law duty to maintain sidewalks without the requirement that the plaintiff establish
an exception to governmental immunity: Kobelinski v. Milwaukee & Suburban Transport
Corp., 56 Wis. 2d 504, 510-513, 202 N.W.2d 415 (1972); Stippich v. City of Milwaukee, 34
Wis. 2d 260, 270, 149 N.W.2d 618 (1967); Westler v. City of Milwaukee, 34 Wis. 2d 272, 275-
76, 149 N.W.2d 624 (1967).

The Scalcuccis further cite Naker v. Town of Trenton, 62 Wis. 2d 654, 215 N.W.2d 38,
aff’d on reh’g, 62 Wis. 2d 654, 660a, 217 N.W.2d 665 (1974), in which our supreme court held
that “the doctrine of Holytz … imposes liability for want of ordinary care” for failure to properly
maintain a traffic sign. We recognize that a relatively recent supreme court case, Bostco LLC v.
Milwaukee Metropolitan Sewerage District, 2013 WI 78, ¶50, 350 Wis. 2d 554, 835 N.W.2d
160, cites this portion of Naker with approval. However, given the development of immunity
jurisprudence in the years following Naker, we cannot conclude that Naker stands for the blanket
(continued)

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No. 2020AP937

¶17 In sum, we conclude that the ministerial duty exception to
governmental immunity does not apply.

B. The known danger exception does not apply.

¶18 The Scalcuccis argue that the sidewalk offset constitutes a known
danger, such that the Municipalities had a ministerial duty to fix this hazard. See
Engelhardt, 385 Wis. 2d 86, ¶54. We disagree. We assume, for purposes of our
analysis, that the Municipalities knew of the sidewalk offset. Even so, controlling
case law establishes that, for this exception to apply, there must be an “immediate,
compelling, and self-evident” danger, see id., ¶54—essentially, “an accident
waiting to happen,” id., ¶52 (internal quotation marks and quoted source omitted).
See also American Fam. Mut. Ins. Co. v. Outagamie County, 2012 WI App 60,
¶26, 341 Wis. 2d 413, 816 N.W.2d 340 (“The known danger exception does not
apply whenever a dangerous situation exists. Instead, the exception is reserved for
situations that are more than unsafe, where the danger is so severe and immediate
that a specific and immediate response is required.” (citation omitted)).

¶19 Given this case law, we cannot conclude that the 1¼ - 1½ inch offset
between two slabs of pavement constitutes a danger so severe that immediate and

proposition that municipalities have a related duty of ordinary care to maintain sidewalks, absent
a law imposing a ministerial duty to do so. Nor do the Scalcuccis argue as much; instead, they
cite Naker in passing, for the idea that “a traffic sign once erected has to be maintained, or
liability may follow.” We conclude that Naker does not control the outcome of this case.
5
For example, liability in Bostco and Milwaukee Metropolitan Sewerage District was
premised on the defendant’s maintenance of a nuisance, a cause of action that, as we discuss in
the final section of this opinion, the Scalcuccis did not allege in the circuit court. See Bostco LLC
v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶¶3-4, 350 Wis. 2d 554, 835 N.W.2d 160;
Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶¶59-62, 277 Wis. 2d 635,
691 N.W.2d 658.

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specific remedial action was required, particularly when we compare this potential
danger to those circumstances that courts have determined to be a known danger.
In Cords v. Anderson, 80 Wis. 2d 525, 538, 542, 259 N.W.2d 672 (1977), for
example, a park trail passing inches from a ninety-foot gorge, containing no posted
warning signs, and known to be particularly dangerous at night was found to
create a ministerial duty to warn hikers of this “obvious danger.” Thus, the
manager of a state-owned natural area could be held liable for injuries hikers
sustained when they fell into the gorge. Id. at 538-42; see also Heuser ex rel.
Jacobs v. Community Ins. Corp., 2009 WI App 151, ¶¶2-7, 13, 321 Wis. 2d 729,
774 N.W.2d 653 (students’ use of scalpels for dissection constituted a known
danger, where their teacher knew that there had been previous injuries from
scalpel use, did not instruct the students on scalpel use, and did not sufficiently
warn the students of the danger); Engelhardt, 385 Wis. 2d 86, ¶¶14-15, 54-55
(known danger existed where child known to be unable to swim was left
unsupervised at a busy water park). Rather, the offset is more like the hazard in
Knoke, 395 Wis. 2d 551, ¶¶54-56, in which we concluded that snow and ice
accumulation on the side of a street was not severe, immediate, and uncommon
enough to constitute a known danger.

¶20 Accordingly, the Scalcuccis’ suit cannot proceed under the known
danger exception to governmental immunity.

C. The circuit court did not erroneously exercise its discretion in not permitting
the Scalcuccis to amend their complaint to raise nuisance claims.

¶21 We construe the Scalcuccis to argue that the circuit court
erroneously exercised its discretion in not permitting them to amend their
complaint to raise a nuisance claim. See Finley v. Culligan, 201 Wis. 2d 611,
626, 548 N.W.2d 845 (Ct. App. 1996) (circuit court’s decision to grant leave to

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amend a complaint is discretionary). However, the record reflects that the
Scalcuccis never separately moved to amend their complaint. Instead, the
Scalcuccis merely stated, in one of their summary judgment responses,

It should be noted that some cases have held that what
actually has occurred is that a private nuisance has been
established. If the Court is of the belief that this is the
manner in which the case is best framed, then the plaintiffs
make a motion to be allowed to amend their complaint to
make a claim against Dane County for creating and/or
continuing a[] nuisance, which they had a duty to repair.

Moreover, at the summary judgment hearing, when the circuit court asked the
parties if they had any additional arguments, the Scalcuccis did not mention a
nuisance claim, much less orally move to amend their complaint to add this claim.

¶22 A single conditional statement in the Scalcuccis’ summary judgment
response—which delegates the decision to amend to the circuit court, based on its
own judgment as to how the case is “best framed” in the course of deciding
motions for summary judgment—does not constitute a motion, or even a request,
to amend. In short, we cannot conclude that the circuit court erroneously
exercised its discretion in not amending the Scalcuccis’ complaint based on this
statement.

CONCLUSION

¶23 For the reasons stated, we affirm the summary judgment order
dismissing all claims against the Municipalities.6

6
In the Scalcuccis’ brief-in-chief, counsel acknowledges that unpublished per curiam
decisions cannot be cited for their precedential value, but then proceeds to rely heavily on one
such decision. See WIS. STAT. RULE 809.23(3). We remind counsel that such citation is
improper and is grounds for sanction. See WIS. STAT. RULE 809.83(2).

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By the Court.—Judgment affirmed.

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

13