COURT OF APPEALS

                DECISION

   DATED AND RELEASED

 

            February 5, 1997

 

 

 

 

                  NOTICE

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See § 808.10 and Rule 809.62, Stats.

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports.

 

 

No.  96-0829

 

STATE OF WISCONSIN               IN COURT OF APPEALS

     DISTRICT II           

                                                                                                                       

SUSAN R. SCHLOUGH,

JAMES S. SCHLOUGH,

wife and husband,

adult individuals,

 

                                                            Plaintiffs-Appellants,

 

DEAN HEALTH PLAN, INC.,

a/k/a DEAN CARE HMO,

a Wisconsin corporation,

 

                                                            Plaintiff,

 

                        v.

 

CITIZENS SECURITY MUTUAL

INSURANCE COMPANY, a Minnesota

Fire and Casualty Company, and

JOSEPHINE COE, an adult individual,

 

                                                            Defendants-Respondents,

 

TWIN CITY FIRE INSURANCE COMPANY, an

Indiana Fire and Casualty Company,

CITY OF WHITEWATER, a Wisconsin municipal

corporation and BRUCE PARKER, an adult

individual, CITY OF WHITEWATER SIDEWALK

SUPERINTENDENT,

 

                                                            Defendants.

                                                                                                                      

 

 

                        APPEAL from a judgment and an order of the circuit court for Walworth County:  JAMES L. CARLSON, Judge.  Affirmed.

                        Before Snyder, P.J., Brown and Nettesheim, JJ.

                        PER CURIAM.   Susan R. and James S. Schlough have appealed from a summary judgment dismissing their action against Josephine Coe and her insurer, Citizens Security Mutual Insurance Company.  Because dismissal was mandated pursuant to the Wisconsin Supreme Court's two decisions in Walley v. Patake, 271 Wis. 530, 74 N.W.2d 130 (1956), and 274 Wis. 580, 80 N.W.2d 916 (1957), we affirm the judgment.

                        According to the Schloughs' complaint, Susan was injured when she fell on a snow and ice covered public sidewalk abutting Coe's property.  The primary issue on appeal is whether Coe could be held liable for injuries suffered by a pedestrian who fell because of a natural accumulation of snow and ice on the sidewalk adjacent to her residence.  The Schloughs also allege that the trial court erroneously exercised its discretion by its order denying their motion to amend their complaint.

                        The Schloughs contend that Coe negligently failed for more than three weeks to shovel the sidewalk crossing her property, resulting in a treacherous buildup of snow and ice which caused Susan's fall.  They contend that the common law doctrine of the abutting landowner's nonliability for injuries resulting from the accumulation of snow and ice has been abandoned.  They further contend that if the rule has not yet been abandoned, it should be because it has outlived its usefulness and no longer comports with the realities of modern society.

                        The owners and occupiers of property abutting a public sidewalk are not liable to individuals for injuries resulting from a failure to remove from the sidewalk accumulations of snow and ice created by natural causes.  See Walley, 271 Wis. at 535, 74 N.W.2d at 132.  This is true even though a municipal ordinance requires them to remove the accumulation.  See id.  Their only liability under such circumstances is to pay the penalty prescribed by the ordinance.  See id.  A claim based on negligence may not be brought, see id. at 539, 74 N.W.2d at 134-35, nor may a claim be brought based upon nuisance, see Walley, 274 Wis. at 584-85, 80 N.W.2d at 918.

                        These principles were more recently reiterated by the Wisconsin Supreme Court in Hagerty v. Village of Bruce, 82 Wis.2d 208, 262 N.W.2d 102 (1978).  In Hagerty, the court rejected a claim that failure to remove accumulated snow and ice from a public sidewalk in violation of a municipal ordinance was negligence per se, rendering the abutting landowner liable.  See id. at 211, 218, 262 N.W.2d at 103, 106.  It expressly relied on the Walley holdings that owners of land abutting a public sidewalk are not liable for injuries resulting from the failure to remove naturally accumulated snow and ice, even when an ordinance required them to do so.  See Hagerty, 82 Wis.2d at 212-13, 262 N.W.2d at 104.  It rejected the appellants' request that it treat the rule established in Walley and its predecessors as abrogated.  See Hagerty, 82 Wis.2d at 215-18, 262 N.W.2d at 105-06.

                        The rule applied in the Walley cases was not abrogated by State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974), as contended by the Schloughs.  Initially, we note that the court's decision in Hagerty was issued four years after Deetz, thus negating any claim that the nonliability rule stated in Walley was no longer viable after Deetz.  Second, the common enemy doctrine which was abandoned in Deetz is distinct from the nonliability doctrine discussed in the Walley cases and Hagerty. 

                        The common enemy doctrine which was abandoned in Deetz dealt with the diversion of surface water by a landowner to protect his own property from damage.  See Deetz, 66 Wis.2d at 9, 224 N.W.2d at 411.  Prior to Deetz, such diversion was always permissible regardless of whether it damaged the property of another.  See id.  In contrast, the nonliability rule discussed in the Walley and Hagerty cases deals with a landowner's responsibility for injuries occurring on his or her own property arising from snow and ice which accumulates because of natural weather conditions, not from any action taken by the landowner.  The cases are therefore inapposite, and Deetz  cannot be construed as overruling the nonliability rule of the Walley cases.[1]

                        The Walley and Hagerty decisions were issued by the Wisconsin Supreme Court, and we are bound by them.  See Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct. App. 1979). We therefore cannot "abandon" the nonliability doctrine as requested by the Schloughs.

                        The Schloughs' final argument is that the trial court erroneously exercised its discretion by denying them permission to file a second amended complaint.  They made the motion after the trial court granted summary judgment.  They contended that the amendment was necessary so that their complaint would set forth both the negligence and nuisance theories of law underlying their claims. 

                        Relief from judgment is not warranted on this ground.  As already noted, Coe cannot be held liable based on negligence, see Walley, 271 Wis. at 539, 74 N.W.2d at 134-35, or nuisance, see Walley, 274 Wis. at 584-85, 80 N.W.2d at 918.  See also Jasenczak v. Schill, 55 Wis.2d 378, 382, 198 N.W.2d 369, 371 (1972).  The trial court's refusal to permit amendment of the complaint to allege nuisance as well as negligence therefore did not affect a substantial right of the Schloughs and provides no basis for relief on appeal.  See § 805.18(2), Stats.

                        By the Court.—Judgment and order affirmed.

                        This opinion will not be published.  See Rule 809.23(1)(b)5, Stats.


     [1]  While the court used the phrase "common enemy" in the second of the Walley decisions, it is clear from a reading of the court's opinion that it used the phrase not as a legal term of art, but in a generic fashion, describing Wisconsin's winter weather as an enemy of all state residents.  See Walley v. Patake, 274 Wis. 580, 585, 80 N.W.2d 916, 919 (1957).