00-1927 Clemence, et al. v. Maryland Casualty Company, et al.

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This case arises out of injuries Judith Clemence sustained when she fell on snow-covered ice on the driveway apron of her condominium home in the City of Greenfield. The complaint alleged that the Clayton Crest Terrace Condominium Association and Jeff Grundy, with whom the Association contracted for winter maintenance of the driveways, were negligent for not maintaining the driveway in a safe manner. The circuit court granted summary judgment to the Association and Grundy, concluding that, because the driveway apron was in the area of public dedication, the city had a non-delegable duty to keep the driveway apron clear, and therefore, neither the Association nor Grundy had a duty to do so.

Judith Clemence and her husband, David, appeal the dismissal of Grundy and his insurer. The Clemences contend that the circuit court erred in concluding the city had a non-delegable duty and that Grundy had a duty because he assumed one by entering into the contract with the Association. They further contend there are factual disputes concerning Grundy’s breach of his duty and they are thus entitled to a trial.

We do not decide whether the driveway apron is a public way or whether the city had a non-delegable duty to remove snow and ice from it because, even if the city did not have such a duty, the Clemences do not identify a duty that Grundy had independent of his contract with the Association. Therefore, they do not have a claim against Grundy for negligence. Accordingly, we affirm the order dismissing the complaint against Grundy. Not recommended for publication in the official reports.

Dist I, Milwaukee County, McMahon, J., Vergeront, J.

Attorneys:

For Appellant: Robert A. Levine, Milwaukee; Steven S. Stein, Chicago, IL

For Respondent: James E. Snodgrass, Brookfield