Legal Memorandum: Municipality's Duty to Maintain Sidewalks

Issue: Whether a municipality has an exclusive duty to maintain sidewalks and would thus be liable in a slip and fall case on a sidewalk or would the responsibility fall to the property owner.

Area of Law: Municipal, County and Local Law, Personal Injury & Negligence
Keywords: Duty of municipality; Responsibility to maintain sidewalks; Slip and fall case
Jurisdiction: Wisconsin
Cited Cases: 129 Wis. 2d 545; 655 N.W.2d 113; 81 Wis. 2d 334; 14 Wis. 2d 68; 260 N.W.2d 686; 264 Wis. 404; 22 Wis. 2d 101; 59 N.W.2d 445; 125 N.W.2d 341; 251 Wis. 203; 254 Wis. 2d 77
Cited Statutes: Wis. Stat. § 81.17; § 893.83; § 893.83(2); Wis. Stat. § 893.83(2) (2008)
Date: 05/01/2008

In Physician’s Plus Insurance Corp. v. Midwest Mutual Insurance Co., 254 Wis. 2d 77, 646 N.W.2d 777 (2002), the Wisconsin Supreme Court pointed out that a municipality’s non-delegable duty is not necessarily an exclusive duty.  Id. at 130, 646 N.W.2d at 802 (citing First Nat’l Bank & Trust Co. v. S.C. Johnson & Sons, Inc., 264 Wis. 404, 409, 59 N.W.2d 445 (1953)).  Thus, both the city and the adjoining landowner have been held liable for creating or maintaining a nuisance that led to a sidewalk accident.  Id. (citing Holl v. City of Merrill, 251 Wis. 203, 209, 28 N.W.2d 363 (1947)).  Similarly, in the First National Bank & Trust case, both the property owner and the city were liable for injuries caused by a broken curbstone, where the property owner’s actions were deemed to constitute a nuisance. 264 Wis. 404, 59 N.W.2d 445; but see Hei v. City of Durand, 22 Wis. 2d 101, 125 N.W.2d 341 (1963) (holding that a City of Durand sidewalk defect resulting from natural tree growth did not constitute a nuisance, and that the abutting property owner was therefore not liable).

Under Wis. Stat. § 81.17 (since repealed)*FN1 and its successor statute, if any person is damaged by reason of a sidewalk defect for which the city would be liable, and the […]

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