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11/11/83 MARY FIGGS v. CITY MILWAUKEE

November 11, 1983

MARY FIGGS, PLAINTIFF-RESPONDENT,
v.
THE CITY OF MILWAUKEE, DEFENDANT-APPELLANT



Appeal from a judgment of the circuit court for Milwaukee county: Michael D. Guolee, Judge.

Petition to review granted.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Moser

The City of Milwaukee (City) appeals from a judgment and award of damages in favor of Mary Figgs (Figgs) for personal injuries suffered when she tripped in a hole and fell on the grassy strip between the sidewalk in front of her home and the curb of the public roadway. The City raises four issues on review: (1) whether Figgs' failure to itemize her claim in compliance with sec. 893.80(1)(b), Stats., barred her action; (2) whether, as a matter of law, the City could not be liable for Figgs' injuries because she fell on her own property; (3) whether the trial court improperly allowed the jury to assess damages for medical expenses; and (4) whether the trial court improperly invaded the province of the jury. Because we conclude that Figgs' noncompliance with sec. 893.80(1)(b) deprived the court of subject matter jurisdiction, we reverse.

From July of 1969 until sometime in the summer of 1980 a parking sign was located in the grassy strip between the sidewalk and the roadway in front of the Figgs home in the City. When an employee of the City removed the sign in 1980, pulling it out of the ground, a hole may have been left which was never filled in. Because grass grew up around this spot, neither Figgs nor her husband ever noticed a hole until after Figgs tripped and fell on this spot on September 30, 1980. As a result of the fall, Figgs suffered abrasions on the bridge of her nose and on her right knee and bruising on her right knee and right wrist.

Figgs consulted her lawyer and three days later sought treatment at the emergency room at St. Michael Hospital where her nose and knee were X-rayed. The attending physician found no fractures or swelling and released Figgs.

On the advice of her lawyer, Figgs consulted Dr. Donald Ackerman (Ackerman), a general practitioner. Between her first visit on October 13, 1980, and her last on December 8, 1980, Figgs consulted Ackerman twenty-three times for deep heat treatments to her knee and wrist. Ackerman also prescribed anti-inflammation medication for Figgs.

On October 15, 1980, Figgs presented to the city clerk a document entitled "CLAIM" demanding satisfaction in the amount of $4,500 with no itemization of what the amount represented. Over a year later the City denied Figgs' claim. On November 24, 1981, the instant suit was filed.

Ackerman was unavailable to testify at trial, so his deposition was read into evidence. Ackerman testified as to Figgs' claimed injuries and the treatments he provided. Counsel for Figgs did not elicit any testimony as to the reasonableness or necessity of these treatments to relieve the injuries complained of.

Before the cause was submitted to the jury, the assistant city attorney moved the court to dismiss the action based on Figgs' failure to itemize her claim in accordance with the language of the notice of injury statute, sec. 893.80. The trial court held that Figgs had sufficiently complied with the statute and denied the City's motion.

The jury returned a special verdict in favor of Figgs; and a judgment in the sum of $1,818.90, plus costs and disbursements for a total of $2,140.10, was entered against the City. This appeal followed.

The City contends that Figgs' failure to comply with sec. 893.80(1) (b), Stats., which requires an itemization of the claim, prevented the trial court from having subject matter jurisdiction over the action. We agree.

Section 893.80(1) (b), Stats., provides, in relevant part, that no action may be brought against a political corporation upon a claim or cause of action unless a claim containing the address of the claimant and "an itemized statement of the relief sought" is served on the political corporation. *fn1 Figgs presented to the City a claim demanding relief in the lump sum of $4,500 with no itemization of her demand.

It is a maxim of statutory construction that a statute "should be so construed that no word or clause shall be rendered surplusage." *fn2 "A separate meaning must attach to each individual term in a legislative act." *fn3 A construction of sec. 893.80(1) (b), Stats., allowing a lump sum demand such as that made by Figgs would contravene the above canon of statutory ...


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