Vol. 78, No. 5, May 2005

Court of Appeals Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Civil Procedure Criminal Procedure Family Law

Insurance Property Torts

Civil Procedure

Offers to Settle - Fair Evaluation - "Reasonable" Offers

Mews v. Beaster, 2005 WI App 53 (filed 16 Feb. 2005) (ordered published 24 March 2005)

This lawsuit arose out of an accident in which Beaster's vehicle rear ended a vehicle being driven by Mews. Mews and her brother, a passenger in her car, were injured. They sued Beaster for compensatory and punitive damages. Mews' mother, who claimed loss of society and companionship, also sued Beaster. On Oct. 6 Beaster served separate statutory offers of judgment on all three plaintiffs. None of the offers were accepted by Oct. 20, the statutory deadline. On that same date the trial court (again) denied Beaster's motion to dismiss the punitive damages claim, but the court allowed bifurcation of the compensatory and punitive damages claims. A jury later awarded compensatory but not punitive damages to the plaintiffs.

After trial, Beaster moved for costs pursuant to Wis. Stat. section 807.01(1), which provides that if a plaintiff does not accept an offer of judgment and does not then recover a more favorable judgment, the defendant shall recover costs. The trial court denied the motion, ruling that the plaintiffs could not have fully and fairly evaluated the offers of judgment until they knew whether the punitive damages claim was going to trial.

The court of appeals, in an opinion written by Judge Brown, reversed. "[T]he plaintiffs knew that Beaster was offering to settle the `entire' claim for a certain amount. Whether punitive damages were eventually going to be part of the case or not, the offer was clear: Beaster would pay `X' dollars to resolve the whole claim" (¶ 11).

"The law in Wisconsin is such that we will condemn only those offers of settlement that unreasonably force settlements. Here, given the fact that both parties had the same information, were equally unsure about what might occur with regard to the motion for reconsideration and were equally capable of factoring this uncertainty into their risk-benefit analyses, there was nothing unreasonable about the offer or the timing of it" (¶ 12) (citation omitted).

"Were we to rule in the plaintiffs' favor, we would be doing a disservice to the offer-to-settle statutes that were designed to `force' settlements so long as the force is reasonable. Because any pending motions would likely bear on the decision whether to accept or reject an offer, the entire process would be rendered meaningless in innumerable cases. Motions to strike testimony, motions in limine, motions to dismiss and motions for summary judgment, to name a few, all could be used to thwart a clear, valid offer to settle a case. We can envision a scenario where any attorney on the receiving end of an offer of judgment who wanted to avoid the consequences of the offer could file a motion within the ten days that would place the outcome of the action in some state of uncertainty, thereby placing the attorney and the client in a position where they could not fully and fairly evaluate the offer. We cannot countenance such a result" (¶ 13).

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Criminal Procedure

Bond Deposits - Application to Payment of Court Costs - Pre-sentence Incarceration Credit in Lieu of Costs

State v. Baker, 2005 WI App 45 (filed 17 Feb. 2005) (ordered published 24 March 2005)

The defendant was convicted of numerous charges, including violating a domestic abuse injunction, bail jumping, and selling fake identification cards. He was assessed costs under Wis. Stat. sections 814.61(1)(a), 814.60(1), and 973.045. The state asked the circuit court to order that the $500 bond that had been posted by the defendant's father be applied to the court costs, arguing that Wis. Stat. section 969.02(6) mandated this result. The circuit court declined to apply the bond to the court costs and permitted its return to the father. The court instead ordered that costs be satisfied by pre-sentence jail incarceration, applying six days of incarceration at a rate of $100 per day to satisfy the costs. The state appealed. In a decision authored by Judge Dykman, the court of appeals reversed.

Section 969.02(2) authorizes a court to require a defendant charged with a misdemeanor to either execute an appearance bond with sufficient solvent sureties or deposit cash in lieu thereof. Section 969.02(6) provides that "when a judgment for a fine or costs or both is entered in a prosecution in which a deposit has been made in accordance with sub. (2), the balance of such deposit, after deduction of the bond costs, shall be applied to the payment of the judgment." The court of appeals concluded that the plain language of this statute required the circuit court to order the application of the balance of any bond deposit toward the satisfaction of court costs.

The defendant argued that "implicit findings" of indigency justified the waiver of his court costs, and he urged the appellate court to uphold the circuit court's ruling on indigency grounds pursuant to section 814.29(1). The court of appeals said that this statute guarantees access to the courts for the indigent in civil proceedings and may or may not apply to at least some costs in criminal proceedings through section 972.11(1) (see ¶ 10). The court then rejected the defendant's argument. "Whether sec. 814.29(1) provides a basis to waive court costs ordered at judgment in a criminal proceeding is not an issue that is properly before us today. The circuit court did not waive [the defendant's] costs - it ordered them satisfied through credit for jail incarceration time" (¶ 10).

Lastly, the appellate court considered the power of the circuit court to order that court costs be satisfied by pre-sentence incarceration in jail. It concluded that none of the statutes under which costs were assessed provides the court with authority to waive the costs or to order them satisfied by other means. Accordingly, the court of appeals held that the circuit court erred when it applied pre-sentence incarceration time toward satisfaction of the defendant's court costs.

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Family Law

Termination of Parental Rights Proceedings - Application of Preclusion Doctrines - Judicial Substitution

Brown County Dep't of Human Servs. v. Terrance M., 2005 WI App 57 (filed 23 Feb. 2005) (ordered published 24 March 2005)

This case presented the court of appeals with two principal issues: 1) whether issue and claim preclusion doctrines can be applied in successive termination of parental rights (TPR) cases; and 2) whether the respondent was entitled to judicial substitution.

Under the doctrine of claim preclusion, a final judgment in an action is conclusive in all subsequent actions between the same parties or their privies as to all matters that were litigated or might have been litigated in the earlier action. Under the doctrine of issue preclusion, a judgment in an action forecloses relitigation in a subsequent action of factual or legal issues that were actually litigated and decided in the earlier action.

In a decision authored by Judge Hoover, the court concluded that claim and issue preclusion may be utilized in TPR proceedings (see ¶ 7). (The court noted, however, that because the interests of children are involved in a custody proceeding, claim preclusion should not be as strictly applied in TPR cases as it is in other cases (see ¶ 9).)

With regard to the judicial substitution issue, the circuit court had ruled that the respondent's substitution request was untimely because it was not filed before the "hearing of any preliminary contested matters" under Wis. Stat. section 801.58. The respondent contended that the applicable statute is Wis. Stat. section 48.29, which allows a request for substitution "either before or during the plea hearing... ." The appellate court agreed with the respondent and held that he was entitled to judicial substitution because his request was timely under section 48.29 (see ¶¶ 11-13).

Divorce - Marital Estate - Government Pension with Spendthrift Provision

Waln v. Waln, 2005 WI App 54 (filed 23 Feb. 2005) (ordered published 24 March 2005)

The petitioner, Larry Waln, worked for the Milwaukee Police Department for many years. He left the department in 1996 and began receiving duty disability payments. When he turns 63 in 2007, his duty disability payments will end, and his pension payments will begin. In 2003, after 26 years of marriage, Larry and his wife, Barbara, were divorced. At the time of the divorce, the value of Larry's pension was more than $360,000. Barbara sought half of the monthly pension payment, when and if it is paid, as well as an order directing Larry to elect the 50 percent joint survivor annuity pension payout option and name Barbara the beneficiary. The court was barred from directly dividing the pension by a statutory spendthrift provision, Wis. Stat. section 62.63(4). The circuit court thus found that Larry's pension was not subject to property division. It also declined to order the payout election and beneficiary designation requested by Barbara. Barbara appealed, and the court of appeals, in a decision authored by Judge Peterson, reversed.

Wisconsin courts usually characterize a pension as property instead of as income and either divide the pension or divide other marital assets to effect a de facto pension division. However, the appellate court recognized that there is little case law interpreting how the statutory spendthrift provision governing government pensions affects the court's power to equitably divide marital assets at divorce. The court of appeals concluded that, though the spendthrift provision bars a court from directly dividing the pension, it does not bar a court's discretionary authority to consider the pension when dividing the marital estate.

"The pension is still a marital asset accumulated during the course of the marriage. Even when a court cannot divide a pension through a domestic relations order, the court retains broad discretion in dividing a pension plan between the parties. The court has the discretionary authority to order the employee spouse to make a specific payout election or enter other orders in the event a selection is made which runs counter to the non-employee spouse's interests. Therefore, the spendthrift provision, while barring a direct order dividing the pension, does not completely usurp the court's ability to effectuate an equitable division of the parties' assets, including the pension" (¶ 17) (internal quotes and citations omitted).

Because the circuit court erroneously concluded that the spendthrift provision left it no discretion to consider the pension when dividing the marital estate, the appellate court reversed with directions to the circuit court to consider the pension.

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Insurance

UM Coverage - "Complete Operation" Doctrine

Austin-White v. Young, 2005 WI App 52 (filed 1 Feb. 2005) (ordered published 24 March 2005)

Austin-White was injured while assisting Young with some landscaping. Young had removed the tailgate of an inoperable dump truck and placed it on his Bobcat, and he intended to put the tailgate on the flatbed of his nearby pickup truck. While Young was driving the Bobcat, the tailgate fell and struck Austin-White's leg, injuring him. At the time of the accident, Austin-White was standing near Young's pickup truck waiting for Young to drive him home. Young's vehicles were uninsured, so Austin-White sought coverage under uninsured motorist (UM) coverage issued to Austin-White's parents by AMI. The circuit court determined that Young was liable for Austin-White's injuries but granted AMI's motion to dismiss on the coverage issues. Austin-White appealed.

The court of appeals, in an opinion written by Judge Hoover, affirmed in part and reversed in part. The parties agreed that Young's pickup truck was an "uninsured vehicle" but disputed whether it was "in use" when Austin-White was injured. The court held that the pickup truck was "in use."

"[T]he question is whether Young's use of the Bobcat to lift the tailgate was a part of loading the pickup truck and was a reasonably consistent use of the truck. We answer both parts of that question affirmatively" (¶ 12). "Using a pickup truck, flatbed or otherwise, to transport cargo is part of the truck's inherent nature. The bed portion of a truck is not intended for passengers, meaning transportation of cargo, including scrap metal, is the very purpose of the design" (¶ 13).

"We are satisfied that this case is controlled by precedent applying the `complete operation' doctrine... . It is undisputed that Young was in the process of moving the tailgate onto the flatbed of the pickup truck. To do this, he needed to transport the gate from its original location. That he used the Bobcat is irrelevant-it was simply a necessary, preparatory act preceding his setting the gate on the flatbed. The pickup truck is a covered vehicle under the AMI policy, [Austin-White's] injuries occurred while Young was in the `complete operation' of loading the pickup, and the loading is a covered use. Therefore, [Austin-White] is covered under the uninsured motorist provisions of the policy" (¶¶ 14-15).

Nonetheless, Austin-White was not covered under AMI's medical payment provision. Succinctly stated, Austin-White neither was "struck by" a motor vehicle nor was an "occupant" of the pickup truck when injured. "He was not in the truck, upon the truck, or getting into, onto, out of, or off of the truck" (¶ 18).

UIM Coverage - "Underinsured"

Praefke v. Sentry Ins. Co., 2005 WI App 50 (filed 28 Dec. 2005) (ordered published 24 March 2005)

Praefke was seriously injured in an accident in which another driver was negligent. He incurred medical bills in excess of $400,000. The tortfeasor's vehicle was covered by a policy with a $100,000 combined single liability limit. The entire limit was paid out, with most of the money going to Praefke. Praefke's vehicle was covered by a policy with Sentry that included underinsured motorist (UIM) coverage of $100,000 per person and $300,000 per accident. The trial court ruled that the tortfeasor's vehicle was not "underinsured" within the meaning of Sentry's policy and also that Sentry's reducing clause was not "contextually ambiguous."

The court of appeals, in an opinion authored by Judge Wedemeyer, affirmed. "A review of the Praefkes' insurance policy reveals that this case involves the newer, more modern view of UIM coverage as the policy refers to limits comparison, rather than damages. Accordingly, the Praefkes' reasonable expectation should be that the UIM coverage will apply only if the tortfeasor's liability limit is less than the $100,000 in UIM coverage provided in the Sentry policy they purchased" (¶ 11). Under the Sentry policy's language, "the court must apply the limit of the liability policy to the limit of the UIM coverage purchased" (¶ 13). Because the amounts were the same, the tortfeasor's vehicle was not "underinsured." The court was not persuaded that the "combined single limit" of $100,000 on the tortfeasor's vehicle was "different" than Praefke's "$300,000 UIM coverage per accident" (¶ 15).

UM Coverage - Not Ambiguous

Myers v. General Casualty Co., 2005 WI App 49 (filed 2 Feb. 2005) (ordered published 24 March 2005)

Myers was injured in an accident caused by an uninsured motorist. Because Myers was working when the accident occurred, he received more than $213,000 in worker's compensation benefits. Myers claimed that he also was entitled to $100,000 in uninsured motorist (UM) coverage under his own policy issued by General Casualty. The policy contained a reducing clause, and so the insurer denied the claim. The circuit court ruled that the reducing clause was valid and was not contextually ambiguous.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. First, the court held that the reducing clause complied with Wis. Stat. section 632.32(5)(i), despite Myers' contentions to the contrary. The statute does not mandate any "magic language," and the reducing clause need not "mirror the language of the statute" (¶ 12). Second, the court held that the reducing clause was not contextually ambiguous. The court noted that "published case law concerning contextual ambiguity" heretofore "has been limited to underinsured motorist [UIM] provisions"(¶ 17). Acknowledging the differences between UIM and UM coverage, the court saw "no reason why the principles governing contextual ambiguity in a UIM reducing clause setting should not also apply in a UM reducing clause setting" (¶ 18).

The court then reviewed the policy's provisions, including its title page, which advised the insured to "read [the] policy carefully," and the index, which "correctly refers the insured to the reducing clause in the primary policy in an orderly, direct and understandable fashion" (¶ 22). "In summary, we conclude that there is nothing in General Casualty's primary policy which would befuddle a reasonable insured in his or her attempt to locate and understand the limits of the policy's UM coverage, including the reducing effect of any past or future worker's compensation payments. In tracing the route that a reasonable insured would have had to take to arrive at General Casualty's UM reducing clause, we encounter no inconsistent or misleading provisions which might produce an objectively reasonable alternative meaning of the policy. We conclude that the UM reducing clause in General Casualty's policy is not contextually ambiguous and is therefore enforceable" (¶ 26) (citations omitted).

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Property

Partition - Warranty Deed - Equitable Reimbursement

O'Connell v. O'Connell, 2005 WI App 51 (filed 1 Feb. 2005) (ordered published 24 March 2005)

Two brothers and their wives had since 1951 owned a parcel of land, in which each couple had an undivided half interest. In 1994 the owners signed a warranty deed that conveyed a one-half interest in the property to one brother, Gerald, and his wife (Gerald) and a one-quarter interest to Gerald's brother's two sons (the nephews). Gerald claimed to have made substantial improvements to the property prior to the 1994 deed. When a dispute arose over tree-cutting revenues in 1999, Gerald sought partition of the property and reimbursement for past improvements. The parties stipulated to the partition, the property was sold, and Gerald sought reimbursement of nearly $50,000. Following a hearing, the circuit court denied Gerald reimbursement for improvements made before the warranty deed was executed in 1994, but it granted reimbursement for improvements made after the deed was signed. Gerald appealed.

The court of appeals, in an opinion written by Judge Cane, reversed. According to the court, the "critical issue" was "whether Wis. Stat. § 706.10(5) and the warranty deed in question extinguish the access to equity in a partition action authorized by Wis. Stat. § 842.02" (¶ 10). Neither the statute nor the warranty deed itself could "cut off Gerald's equitable claim ... unless an inchoate, potential cause of action in equity constitutes an encumbrance" (¶ 11). "Wisconsin courts have long recognized a distinction between an interest that attaches to property and a right recognized in courts to assert an equitable claim" (¶ 12). "Unlike a mortgage or ordinary lien, the right codified in Wis. Stat. § 842.02 does not therefore attach to the property nor does it automatically diminish its value" (¶ 13).

Nor did Gerald's potential claim fall within the category of "equitable liens," namely, a "debt, duty, or obligation owing by one person to another" at the time of the 1994 warranty deed. Indeed, until the "unity of possession was dissolved" in 1994, Gerald could not have asked for reimbursement (¶¶ 14-15). "Wisconsin's law of partition expressly authorizes circuit courts in equity to order compensation by one party to another when a partition does not equalize the positions of the parties. Gerald argues for compensation on exactly that ground. He claims the half-share in the proceeds of the sale his half ownership would ordinarily entitle him to is inadequate because expenses borne only by him increased the property's value" (¶ 17). The court also rejected the nephews' argument that the doctrine of laches also foreclosed Gerald's claim (see ¶ 19).

Addressing the award of attorney fees to the parties, the court remanded the matter because the record was incomplete and there were a number of issues for the trial court to consider.

Construction Liens - Bonds - Releases

Hunzinger Constr. Co. v. SCS of Wis. Inc., 2005 WI App 47 (filed 23 Feb. 2005) (ordered published 24 March 2005)

The sole issue before the court was "whether Demco Wisconsin, ... as property owner, is entitled to dismissal from a lien foreclosure action initiated by SCS of Wisconsin, Inc." The court of appeals, in an opinion authored by Judge Anderson, affirmed the trial court's order dismissing Demco, "because the property was released from the lien by the bond ... pursuant to Wis. Stat. § 779.08 (2003-04) and no personal judgment can otherwise be rendered against Demco" (¶ 1).

Although Wis. Stat. section 779.08 "plainly states that the lien foreclosure action shall continue as if the interested parties had not furnished a release bond, this does not mean, as SCS contends, that the owner of the property subject to the lien must remain a party to the action. First, the language SCS cites in support of its argument cannot be read in isolation. When read in its entirety, the statute expressly provides that if a bond is properly filed and deposited and the lien claimant does not take exception to the bond within the allowed time, the lien attaches to the security bond, the amount adjudged due in the foreclosure proceeding is satisfied out of the security bond and `the property described in the lien claim shall thenceforth be entirely free of the lien and shall in no way be involved in subsequent proceedings'" (¶ 10) (citation omitted).

"By its plain language, the patent purpose of the release bond procedure found in Wis. Stat. § 779.08 is to allow a property owner whose property is the subject of a construction lien or a general contractor, acting on the owner's behalf, to substitute a bond for the property. It provides a means by which, before a final determination of the lien claimant's rights and without prejudice to those rights, the property may be freed of the lien, so that it may be sold, developed or used as security for a loan. The procedure thus protects both the property owner by allowing the bond to substitute for the land as the object to which the lien attaches and the claimant by providing an alternate source of recovery on the claim of lien" (¶ 11). On the facts of record, then, Demco was properly dismissed from the lawsuit.

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Torts

Architects - Standard of Care

Kerry Inc. v. Angus-Young Assocs. Inc., 2005 WI App 42 (filed 24 Feb. 2005) (ordered published 24 March 2005)

Kerry Inc. brought claims for breach of contract, professional negligence, and misrepresentation against an architectural firm, Angus-Young Associates Inc. Several parties appealed the circuit court's order granting summary judgment in favor of Angus-Young. The court of appeals, in an opinion written by Judge Deininger, reversed because material issues of fact existed about whether Angus-Young had fulfilled the requisite standard of care.

Before it purchased a building near a river, Kerry Inc. retained an engineering firm (Rust) that inspected the property and issued a report. Kerry later retained Angus-Young to perform architectural services as part of a renovation, and Kerry provided Angus-Young with Rust's report. After work began, workers discovered serious and expensive problems with the building's foundation. Kerry alleged that it would not have undertaken the renovation had it known of the foundation problem before work began. Kerry sued Angus-Young on a variety of claims, which alleged, in effect, that Angus-Young had failed to properly review Rust's report and failed to determine the renovation's true cost. Rust cross-claimed for contribution and indemnification against Angus-Young.

Case law lead the court to hold that "Angus-Young cannot claim to have been absolved by its contract from its duty to exercise `due architectural care' in performing services for Kerry - that duty pre-existed the parties' contract and attached itself to all activities Angus-Young performed in fulfilling its contract with Kerry relating to the renovation project"(¶ 10).

Nor was the court persuaded that Angus-Young had contractually limited the scope of its services. Unlike claims in several cited decisions, Kerry's claim "does not involve an alleged duty to oversee construction methods or worksite safety. The defect that allegedly caused Kerry to suffer a loss involved the building under renovation itself, not an adjacent area. Kerry does not claim that Angus-Young was contractually obligated to perform its own structural inspection of the building foundation, but that, in the exercise of due architectural care, it should have recognized the inadequacy of the Rust report to serve as a basis for its preparation of plans for the renovation of the building. Because the report says nothing about the building's foundation below the water line and is silent with respect to whether the underwater features were inspected, Kerry claims that Angus-Young should have called for a more extensive inspection before it performed its contracted service of planning the renovation work to be done on the building. We agree with Kerry that the parties' contract does not preclude such a claim"(¶¶ 14-15).

After listing the pertinent contract provisions, the court held that "the foregoing provisions required Angus-Young to devise and furnish Kerry with plans and specifications that would result in Kerry obtaining a safe and suitable building to house its business" (¶ 16). Moreover, Kerry submitted sufficient evidence on these claims to withstand summary judgment.

The court also addressed Kerry's misrepresentation claims. Although these too were found sufficient to withstand summary judgment, there was some "question whether Kerry's misrepresentation claims add anything to its ability to recover the damages it seeks from Angus-Young" on the claim for the breached standard of care (¶ 22).

Punitive Damages - Jury Instructions

Schwigel v. Kohlmann, 2005 WI App 44 (filed 23 Feb. 2005) (ordered published 24 March 2005)

This case arose out of a failed business relationship between two tool makers. An earlier appeal resulted in an order for retrial. On retrial the jury awarded the plaintiff approximately $250,000 on various contract-related claims, $12,000 for conversion, and $375,000 in punitive damages. The trial judge answered 16 of 18 special verdict questions and left the jury with only two issues relating to damages. (The scope of the retrial was limited to damages.) The defendants appealed.

The court of appeals, in an opinion authored by Judge Snyder, affirmed despite an error in the jury instructions. "Neither the jury instructions nor the verdict form itself advised the jury that punitive damages are not to be awarded for the breach of contract and must be determined based only upon Kohlmann's conduct in relation to the conversion claim. By such omission, the trial court failed to fully and fairly inform the jury of the rules of law applicable to the case" (¶ 10). The error was, however, harmless because the "jury heard and considered the same evidence of outrageous conduct that would have been presented had the breach of contract compensation issue been severed and tried independently" (¶ 12). Nothing in the original remand order suggested that the case had to be heard in a "contextual vacuum" (¶ 13).

The court also held that the evidence clearly supported the jury's punitive damages determination. The defendant conceded that "he acted with malice in converting" plaintiff's tool-making related property, but he pointed to a number of factors that allegedly undermined the award, especially the 30:1 ratio between the punitive damages award ($375,000) and the conversion award ($12,000). "The United States Supreme Court has observed that larger punitive damages awards may be constitutional where `a particularly egregious act has resulted in only a small amount of economic damages.' In the context presented here, Kohlmann's profoundly egregious conduct was disproportionate to the relatively small amount of economic loss incurred by Schwigel. Accordingly, a comparison of the punitive damages award to the compensatory damages award does not defeat the jury's verdict" (¶ 22). Moreover, the court was unpersuaded that the amount of the punitive damages award should be somehow related to the amount of "the penalty that would have been available in a comparable criminal charge" (¶ 23). Finally, the court held that the evidence also fully supported the jury's award of compensatory damages (see ¶¶ 25-28).

Slip and Fall - Icy Public Sidewalk - Liability of Owner of Abutting Land

Holschbach v. Washington Park Manor, 2005 WI App 55 (filed 23 Feb. 2005) (ordered published 24 March 2005)

The plaintiff slipped, fell, and injured himself on an icy public sidewalk abutting property containing an apartment complex that the defendant owned and operated. The icy patch had formed as a result of runoff from the defendant's property. A downspout running from the roof of the apartment building to the ground directed drainage away from the building and toward the sidewalk, because of the natural grade of the land. A local ordinance arguably required that the downspout instead be connected to the city storm sewer system. The plaintiff commenced a negligence cause of action, which was dismissed by the circuit court on summary judgment.

In a decision authored by Judge Brown, the court of appeals affirmed. As described by the appellate court, this case involved an issue that has arisen numerous times in Wisconsin case law, namely, whether an injured plaintiff who has slipped and fallen on an icy public sidewalk may sue the owner of the property abutting the walk for not alleviating the icy condition. Said the court, "the law is that when a properly working downspout built in the ordinary and usual manner discharges water upon the property and such water finds its way to the public sidewalk because of the natural slope and topography of the land, the resulting runoff onto the sidewalk is a natural condition for which the property owner incurs no liability. Such are the facts of this case..." (¶ 1). This result does not change merely because a city ordinance may have required the defendant to connect the downspout to the city storm sewer system (see ¶ 22).

A defendant may, however, incur liability for artificial accumulations. Thus, when a property owner by negligent omission, for example, by failing to properly repair a drainage system, allows water to accumulate in a place where a person would expect to find only a normal amount of water, then an artificial condition exists. Case law recognizes that the presence of a design system is crucial to a slip-and-fall plaintiff's case: something made with human labor must be defective, and the runoff must result from that defect. When a properly working downspout constructed in the ordinary and usual way discharges water onto land and such water flows to the sidewalk merely by virtue of the natural and ordinary layout of the land, no design system exists (see ¶ 17).

The icy condition of the sidewalk in front of the defendant's property resulted from a natural accumulation of water. Accordingly, the appellate court held that the defendant was not liable for that condition.

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