Kristine Heyer v. The City of Clintonville

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 8, 2022
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. 2021AP1161 Cir. Ct. No. 2020CV142

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KRISTINE HEYER AND JOSHUA HEYER,

PLAINTIFFS-APPELLANTS,

V.

THE CITY OF CLINTONVILLE AND LEAGUE OF WISCONSIN
MUNICIPALITIES MUTUAL INSURANCE,

DEFENDANTS-RESPONDENTS,

COMPCARE HEALTH SERVICES INSURANCE CORPORATION,

SUBROGATED DEFENDANT.

APPEAL from an order of the circuit court for Waupaca County:
TROY NIELSEN, Judge. Affirmed.

Before Blanchard, P.J., Graham, and Nashold, JJ.
No. 2021AP1161

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. Kristine Heyer and Joshua Heyer appeal an order
dismissing their personal injury action against the City of Clintonville and its
insurer. The issue is whether the City has governmental immunity under WIS.
STAT. § 893.80(4) (2019-20).1 We conclude that it does, and therefore we affirm.

¶2 The circuit court dismissed the case on summary judgment. The
parties agree that on appeal we should apply the well-established method for
considering summary judgment, and that we do this without deference to the
circuit court.

¶3 The Heyers’ complaint alleged that on a certain date Kristine was in
a restroom at the City’s Olen Park. It further alleged: “As Heyer was exiting a
bathroom stall, she stepped onto a drain cover on the floor that was not screwed in
place or otherwise secured to the drain, causing her to instantly fall and sustain
serious injuries requiring surgeries.” The complaint alleged that the City “is and
has been aware of the deteriorated condition at this location prior to the accident,
yet failed to take any action to improve or maintain the area in question.”

¶4 We conclude that the complaint states a claim in negligence. In the
answers filed by the City and its insurer (collectively, “the City”), the defendants
joined issue by denying the factual allegations and alleging governmental

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

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immunity as an affirmative defense. The City moved for summary judgment,
which led to an exchange of briefs and affidavits.

¶5 However, neither party’s affidavits included an admissible
description of the specific events that led to the injury. The Heyers submitted, as
part of an affidavit by their attorney, a document that purported to be a transcript
of a “recorded statement” by Katherine Heyer. But this document was not a
deposition, was not sworn, does not state facts based on personal knowledge of the
affiant (counsel), and does not appear to otherwise be admissible as evidence, and
therefore we disregard it. See WIS. STAT. § 802.08(2) (summary judgment
affidavits shall be made on personal knowledge and shall set forth such
evidentiary facts as would be admissible in evidence).

¶6 Turning to the property condition that allegedly caused Katherine’s
injury, the affidavits of both sides contain photographs showing the drain in more
detail and its placement within the bathroom. As to these facts, there do not
appear to be material disputes. The drain is shown as being set in the floor of the
bathroom, approximately one foot outside the entrance to one of the stalls, and is
approximately nine inches across.

¶7 The Heyers allege that the City negligently allowed the drain cover
to exist in a deteriorated condition without improving or maintaining it. For
purposes of immunity, then, our focus is on whether improvement or maintenance
of the drain cover falls under any of the exceptions to immunity that are argued by
the Heyers.

¶8 Before turning to the exceptions, however, on appeal the Heyers
argue that governmental immunity could not apply at all to this case because the
relevant statute provides immunity only for “acts,” while here, as framed by the

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Heyers, the City’s negligent conduct was a matter of inaction, in the form of
failure to maintain or improve the drain cover. See WIS. STAT. § 893.80(4) (no
suit may be brought for “acts done in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions”).

¶9 The Heyers cite no case law that establishes this distinction between
action and inaction as a threshold question that removes some discretionary
government functions from the protection of the statute. If such a distinction
exists, we would expect case law to be readily available, because many litigated
injuries have arisen from omission, that is, inaction, rather than commission.

¶10 The flaw in the Heyers’ argument may be that it focuses narrowly on
the City’s alleged negligence, which was a failure to act, rather than on the broader
picture of the act the City was engaged in when it was allegedly negligent. In
other words, the issue may be better framed as whether the City is immune from
liability for negligence that it committed in the “act” of maintaining the bathroom
facility, whether by commission or omission.

¶11 However, regardless of precisely why the Heyers were unable to
support their argument with authority, the fact remains that the argument is
unsupported, and therefore we conclude that the statute provides immunity to the
City unless one of the recognized exceptions applies.

¶12 The Heyers argue that the exception for ministerial duties applies. A
duty is ministerial only when 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.” Lister v. Board of Regents, 72
Wis. 2d 282, 301, 240 N.W.2d 610 (1976).

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¶13 The Heyers’ argument fails because they do not identify any law or
policy that created a ministerial duty regarding the manner in which the bathroom
or the drain cover was to be maintained. Their brief asserts that City policy
required employees to report the alleged problem with the drain cover and the City
to correct it. However, the brief does not quote or describe any such policy.
Instead, it merely directs us to deposition testimony by city employees stating that
the bathroom is cleaned and checked for maintenance issues daily, and that staff
are to report maintenance issues to their supervisor.

¶14 Even if we were to assume that this material establishes the
existence of a policy that imposes a ministerial duty for staff to inspect and report
maintenance issues to superiors, there is no trace of a policy that sets the time,
mode, or occasion for the performance of repairs based on the issues reported.
Accordingly, the Heyers have failed to identify a policy that imposes a ministerial
duty to repair the allegedly deteriorated drain cover.

¶15 The Heyers also rely on the Safe Place statute, WIS. STAT.
§ 101.11(1). The question of whether that statute, by itself, imposes a ministerial
duty has previously been litigated. This court initially held that it does. Anderson
v. City of Milwaukee, 199 Wis. 2d 479, 492-94, 544 N.W.2d 630 (Ct. App. 1996),
rev’d, 208 Wis. 2d 18, 559 N.W.2d 563 (1997). However, we later declined to
follow that holding on the ground that the supreme court, when it reversed
Anderson on other grounds, stated that the supreme court’s decision should not be
taken as approval of our reasoning on the Safe Place statute. Spencer v. County of
Brown, 215 Wis. 2d 641, 650-51, 573 N.W.2d 222 (Ct. App. 1997). We
acknowledged in Spencer that ordinarily statements of this court that are not
specifically reversed on appeal retain precedential value, but we declined to apply
our earlier reasoning that had not been approved by the supreme court. Id. at 651.

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¶16 The Heyers argue that, pursuant to Cook v. Cook, 208 Wis. 2d 166,
189-90, 560 N.W.2d 246 (1997), we are bound by this court’s conclusion in
Anderson that the Safe Place statute imposes a ministerial duty, because that
analysis was not reversed by the supreme court. They argue that Spencer is not a
“legitimate decision” because it was contrary to the binding precedent of our
decision in Anderson, which compelled the conclusion that the Safe Place statute
imposes a ministerial duty.

¶17 However, regardless of whether Spencer is consistent with the
teaching of Cook, the City points out that, in a case after Spencer, the supreme
court held that “a court of appeals decision expressly overruled by this court no
longer retains any precedential value, unless this court expressly states that it is
leaving portions of the court of appeals decision intact.” Blum v. 1st Auto & Cas.
Ins. Co., 2010 WI 78, ¶56, 326 Wis. 2d 729, 786 N.W.2d 78. Accordingly, the
City asserts that our analysis in Anderson is no longer precedential, and therefore
we are left with only Spencer to follow.

¶18 In reply, the Heyers appear to suggest that Blum does not apply to
opinions issued before it, but they do not develop any argument to that effect. For
at least this reason, we conclude that our Anderson decision in its entirety lost its
precedential value when it was reversed by the supreme court, and we are bound
to follow Spencer.

¶19 The Heyers also argue that the City is not entitled to immunity
because the hazard that was present in this case qualifies as a known and present
danger that compelled action. This exception abrogates immunity when an
obviously hazardous situation exists and the nature of the danger is of such force
that the public officer has no discretion not to act. American Fam. Mut. Ins. Co.

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v. Outagamie County, 2012 WI App 60, ¶25, 341 Wis. 2d 413, 816 N.W.2d 340.
However, it does not apply whenever a dangerous situation exists, but only in
situations that are more than unsafe, where the danger is so severe and immediate
that a specific and immediate response is required. Id. at ¶26.

¶20 We conclude that the known and present danger exception does not
apply here. An unsecured or deteriorated drain cover on a nine-inch drain may
well be a hazard, but not to the degree that is necessary to activate this exception.

¶21 The Heyers’ brief also includes extensive critiques of existing law
relating to immunity and other matters. We do not further address that material,
because we are required to follow existing law.

By the Court.—Order affirmed.

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

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