893.83 Damages caused by accumulation of snow or ice; liability of city, village, town, and county. 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 s. 893.80.
History: 2003 a. 214 ss. 136, 137, 189; 2011 a. 132.
NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.
The plaintiff's oral notice to the chief of police, who said he would file a report, and direct contact and negotiation with the city's insurer, within 120 days, was sufficient compliance to sustain an action for damages against the city. Harte v. City of Eagle River, 45 Wis. 2d 513, 173 N.W.2d 683 (1972).
A spouse's action for loss of consortium is separate and has a separate dollar limitation from the injured spouse's claim for damages. Schwartz v. Milwaukee, 54 Wis. 2d 286, 195 N.W.2d 480 (1970).
Shoveling snow from a sidewalk to create a mound along the curb does not create an unnatural or artificial accumulation that renders a city liable. Kobelinski v. Milwaukee & Suburban Transport Corp. 56 Wis. 2d 504, 202 N.W.2d 415 (1972).
This section creates a secondary liability on a municipality or county for highway defects that cause damage only when the act or default of another tortfeasor also contributes to the creation of the defect. Dickens v. Kensmoe, 61 Wis. 2d 211, 212 N.W.2d 484 (1973).
City liability arising from snow and ice on sidewalks is determined under the standard of whether, under all the circumstances, the city was unreasonable in allowing the condition to continue. Circumstances to be considered include location, climactic conditions, accumulation, practicality of removal, traffic on the sidewalk, and intended use of the sidewalk by pedestrians. Schattschneider v. Milwaukee & Suburban Transport Corp. 72 Wis. 2d 252, 240 N.W.2d 182 (1976).
An insurance policy was construed to waive the recovery limitations this section. Stanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979).
Recovery limitations under this section are constitutional. Sambs v. City of Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980).
Immunity under this section does not exist for injuries resulting from ice on a stairway connecting 2 sidewalks. Henderson v. Milwaukee County, 198 Wis. 2d 748, 543 N.W.2d 544 (Ct. App. 1995).
If a plaintiff's injuries occurred by reason of insufficiency or want of repairs of any highway, a governmental entity is not afforded immunity under s. 893.80 (4). Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998), 96-2507.
As used in this section, “highway" includes the shoulder of the highway. Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998), 96-2507.
A person other than a municipality with any lability for a defect is primarily liable for the entire resulting judgment. If a contractor settles with the injured party for less than the amount of the ultimate award, the municipality is not liable for the balance. VanCleve v. City of Marinette, 2002 WI App 10, 250 Wis. 2d 121, 639 N.W.2d 792, 01-0231.
Under this section, a municipality may not be held primarily liable, and there can be neither joint, nor primary, liability on the municipality's part if any other party has any liability. Municipal liability is successive and is only for the damages and costs that the party with primary liability is unable to pay. VanCleve v. City of Marinette, 2003 WI 2, 258 Wis. 2d 80, 655 N.W.2d 113, 01-0231.
A municipality's liability is triggered only if execution has been issued against the party with primary liability and returned unsatisfied. By entering into a settlement and release with a defendant found by a jury to be liable, a plaintiff indirectly waives any right to hold the municipality secondarily liable because the release prevents taking a judgment against and executing upon the primarily liable defendant. VanCleve v. City of Marinette, 2003 WI 2, 258 Wis. 2d 80, 655 N.W.2d 113, 01-0231.
A “highway" is an area that the entire community has free access to travel on. A public parking lot is available to the entire community for vehicular travel, and as such, a city's public parking lot is a “highway" for purposes of this section. Ellerman v. City of Manitowoc, 2003 WI App 216, 267 Wis. 2d 480, 671 N.W.2d 366, 03-0322.
When an accumulation of ice is created by natural conditions a municipality has 3 weeks to address the problem. Actions based on artificial accumulations are actionable without the 3-week requirement. To be an artificial condition, grading must be part of a drainage design plan or be shown to divert water from other sources onto the sidewalks. If not, grading, by itself, does not create an artificial condition on land even if the municipality had notice that a hazardous condition existed. Gruber v. Village of North Fond du Lac, 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692, 03-0537.