Negligence – Immunity

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WI Court of Appeals – District IV

Case Name: Hailey Seitz, et al. v. Denise Barrett

Case No.: 2016AP1497

Officials: Lundsten, P.J., Blanchard and Kloppenburg, JJ.

Focus: Negligence – Immunity

Hailey Seitz was injured by a vehicle while attempting to ride her bicycle through a crosswalk. Hailey and her parents, Roger and Sara Seitz (Seitz), filed a lawsuit against the City of Prairie du Chien alleging that the City was negligent in maintaining the crosswalk. The City appeals the order denying its motion for summary judgment.

The City argues that it is entitled to immunity because, as a matter of law, crosswalk maintenance is a discretionary function. We agree. Seitz does not point to any statute, code, ordinance, rule, or policy that creates an absolute, certain, and imperative duty on the City to maintain its crosswalks in such a manner that nothing remains for the City’s judgment or discretion. As the summary judgment papers established, the City uses its judgment to determine whether and when to repaint lines on city streets.

We further conclude that, as a matter of law, the crosswalk did not satisfy the known danger exception to immunity. The known danger exception applies when “the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act.” C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988). For the exception to apply, the existing danger must be “compelling enough that a self-evident, particularized, and non-discretionary municipal action is required.” Lodl, 253 Wis. 2d 323, ¶40. The danger of harm must be more than a possibility. See C.L., 143 Wis. 2d at 722-23.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.