01-2772 Caraher v. City of Menomonie

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“We conclude that the facts of this case are materially distinguishable from those in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), the case upon which the Carahers’ ‘known and present danger’ argument relies….

“There are two principal material distinctions between this case and Cords. In Cords, the public was invited to use the path in question. Here, the pipe was not designed or intended to be used as a footbridge. The public was not invited to make such use of it. In fact, there was a sidewalk provided to cross the creek not far from the pipe. Also, in Cords, the court noted that the danger – a narrow undercut – was not readily discernable. Here, using the sewer pipe for an unintended purpose presents an obvious danger. Nothing in Cords suggests that it imposes a ministerial duty on government to protect the public from every manifest danger.”

Order reversed and cause remanded.

Recommended for publication in the official reports.

Dist III, Dunn County, Stewart, J., Hoover, P.J.

Attorneys:

For Appellant: Lawrence M. Rocheford, St. Paul, Minn

For Respondent: James P. Watts, Minneapolis, Minn; Howard E. Shafran, New York, NY; Ronald S. Goldser, Minneapolis, Minn