State Codes and Statutes

893.83

893.83 Highway defects.

893.83(1)

(1) Damages caused by highway defects; liability of municipality. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway that any town, city, or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city, or village. If the damages happen by reason of the insufficiency or want of repairs of a highway that any county by law or by agreement with any town, city, or village is bound to keep in repair, or that occupies any land owned and controlled by the county, the county is liable for the damages and the claim for damages shall be against the county. If the damages happen by reason of the insufficiency or want of repairs of a bridge erected or maintained at the expense of 2 or more towns, cities, villages, or counties, the action shall be brought against all of the towns, cities, villages, or counties that are liable for the repairs of the bridge. Upon recovery of judgment, the damages and costs shall be paid by the towns, cities, villages, or counties in the proportion in which they are liable for the repairs. The court may direct the judgment to be collected from each town, city, village, or county for its proportion only. The amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to the commencement of actions brought under this subsection. No action may be maintained 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.

893.83(2)

(2) Highway defects; liability of wrongdoer; procedure. Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village, or county would be liable, and such damages are caused by, or arise from, the wrong, default, or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor. The town, city, village, or county may be sued with the person or private corporation so primarily liable. If the town, city, village, or county denies its primary liability and proves upon whom such liability rests, the judgment shall be against all of the defendants shown by the verdict or finding to be liable for the damages. Judgment against the town, city, village, or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part. On such return being made, the defendant town, city, village, or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.

893.83 - ANNOT.

History: 2003 a. 214 ss. 136, 137, 189.

893.83 - ANNOT.

NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

893.83 - ANNOT.

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).

893.83 - ANNOT.

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).

893.83 - ANNOT.

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).

893.83 - ANNOT.

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).

893.83 - ANNOT.

Ice resulting from improper drainage of runoff water is an artificial accumulation outside the 3-week limitation. An insurance policy did not waive the recovery limitation under this section. Sambs v. Brookfield, 66 Wis. 2d 296, 224 N.W.2d 582 (1974).

893.83 - ANNOT.

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).

893.83 - ANNOT.

The allegedly negligent placement of an arterial stop sign by a city does not constitute a highway defect within the meaning of this section. Weiss v. Milwaukee, 79 Wis. 2d 213, 255 N.W.2d 496 (1977).

893.83 - ANNOT.

When the plaintiff fell due to a depression in a street enclosed as a temporary sidewalk, the city, not the indemnitor contractor, was primarily liable since the contractor did no excavation in the street and its enclosing of the street did not cause the defect. Webster v. Klug & Smith, 81 Wis. 2d 334, 260 N.W.2d 686 (1978).

893.83 - ANNOT.

Failure to warn of a rubble pile beyond the dead end of a road was not actionable under this section. Foss v. Town of Kronenwetter, 87 Wis. 2d 91, 273 N.W.2d 801 (Ct. App. 1978).

893.83 - ANNOT.

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).

893.83 - ANNOT.

Recovery limitations under this section are constitutional. Sambs v. City of Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980).

893.83 - ANNOT.

This section does not impose liability for failure to cut roadside vegetation. Estridge v. City of Eau Claire, 166 Wis. 2d 684, 480 N.W.2d 513 (Ct. App. 1991).

893.83 - ANNOT.

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).

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

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.

893.83 - ANNOT.

The language that a highway that "any county by law or by agreement with any town, city or village is bound to keep in repair" does not apply when a county is obligated by contract with the state to maintain a state highway that was allegedly defective. Grinnell Mutual Reinsurance Co. v. State Farm Mutual Insurance Co., 2004 WI App 32, 269 Wis. 2d 873, 676 N.W.2d 573, 03-1415.