COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
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. 96-0997
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
RAYMOND CROWELL and
JANICE JEAN CROWELL,
Plaintiffs-Appellants,
v.
SUPERAMERICA GROUP, a
division
of Ashland Oil, Inc.,
and
POPE AND TALBOT OF
WISCONSIN, INC.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Chippewa County:
RODERICK A. CAMERON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Raymond and Janice Crowell appeal a summary judgment
dismissing their slip and fall action against SuperAmerica. The Crowells allege that SuperAmerica was
negligent and violated the safe place statute because water draining through a
hole in the canopy above the service island created the ice patch. The trial court granted summary judgment
because the Crowells had no evidence that SuperAmerica had actual or
constructive notice of the hole in the canopy.
The Crowells argue that material issues of fact remain unresolved
regarding SuperAmerica's notice of the defect and that notice is not required
because SuperAmerica was actively negligent.
We reject these arguments and affirm the summary judgment.
The owner of a business is
not an insurer of its frequenters and will be held liable for failure to
correct a defect only when there is actual or constructive notice of the
defect. Strack v. Great Atlantic
& Pacific Tea Co., 35 Wis.2d 51, 54, 150 N.W.2d 361, 362
(1967). An owner is deemed to have
constructive notice of a defect in the premises where there is evidence that a
hazard existed for a sufficient time to allow a vigilant owner the opportunity
to discover the situation.[1] May v. Skelley Oil Co., 83
Wis.2d 30, 36, 264 N.W.2d 574, 577 (1977).
The evidence submitted
on summary judgment does not establish or allow an inference that SuperAmerica
had actual or constructive knowledge of the hole in the canopy or the ice
accumulation. Raymond Crowell testified
in his deposition that the ice formed during the two or three minutes he was in
the store paying for his purchases. A
two or three minute time period is not sufficient to provide even the most
vigilant owner with constructive notice of a defect. SuperAmerica employees testified that they were unaware of any
holes in the canopy and had not previously observed any accumulation of water
or ice under the canopy. They inspected
the area one-half hour before the accident.
The Crowells offer a strained construction of the employees' depositions
in an effort to show knowledge of a defect or a water accumulation problem at
the edge of the canopy. In context, the
employees' depositions cannot be reasonably construed to suggest prior
knowledge of any defect in the premises.
The Crowells offered nothing but speculation to support their assertion
that the hole existed earlier than two or three minutes before Crowell's
accident. The trial court properly
disregarded assertions that were not based on admissible evidence. See Hopper v. City of Madison,
79 Wis.2d 120, 130, 256 N.W.2d 139, 143 (1977).
Finally, citing Kosnar
v. J.C. Penney Co., 6 Wis.2d 238, 242, 94 N.W.2d 642, 644 (1959), the
Crowells argue that notice is not required because the accident was due to
SuperAmerica's active negligence. The
negligent acts they describe, however, building and maintaining the canopy and
failing to inspect or repair it, do not constitute "active
negligence" as that term is used in Kosnar. There, the store created a hazardous
condition by placing a rubber mat in front of the door that was habitually
pushed up by the swinging door. The mat
created a danger that would not have existed had J.C. Penney not created the
dangerous condition. The service island
canopy at SuperAmerica created no such additional danger.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] If the defect results from the owner's course of conduct or method of operation, the owner is charged with constructive notice without passage of an appreciable period of time. Kaufman v. State St. Ltd. Partnership, 187 Wis.2d 54, 65, 522 N.W.2d 249, 254 (Ct. App. 1994). The Crowells have not identified any course of conduct or method of operation by SuperAmerica upon which constructive notice could be charged.