COURT OF APPEALS DECISION DATED AND RELEASED MARCH 4, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2738-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GEORGE
URBANSKI,
Plaintiff-Appellant,
v.
JAMES LUNDE AND
INTEGRITY
MUTUAL INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Polk County:
JAMES R. ERICKSON, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This case arises out of an auto accident.[1] George Urbanski appeals a summary judgment
determining that his negligence exceeded that of the other driver, James Lunde,
as a matter of law, and dismissing his complaint. Urbanski argues that material issues of fact preclude summary
judgment. Because we conclude that
competing inferences may be drawn from the facts, we reverse the judgment and
remand for further proceedings.
At his deposition,
Urbanski testified that after getting something to eat at Dairy Queen, he
backed his car up and was pulling out of the parking lot. He stopped before pulling on to the street,
and looked to his left in preparation for a right-hand turn. "[A]ll of a sudden, there was this
bang."
Lunde had been traveling
from the right on Highway 35 and made a left-hand turn into the driveway
of the Dairy Queen, and collided with Urbanski's vehicle. Urbanski claims that he was not moving at
the time, but was "sitting there, checking traffic." He never saw Lunde's vehicle before the
collision. He testified that he
believed the driveway served both as an entrance and exit.
Lunde testified that he
momentarily stopped on Highway 35 before making a left-hand turn to allow
northbound traffic to pass. He noticed
a friend's car in the Dairy Queen parking lot.
He did not see Urbanski's vehicle.
Lunde testified that from the first time he saw Urbanski to the time of
impact, each vehicle traveled four or five feet.
The investigating
officer testified that it was commonplace for vehicles to use the driveway as
both an exit and an entrance. At the
time of the accident, the officer observed painted arrows on the driveway
indicating that the driveway served as an entrance, although at the time of his
deposition the arrows were probably faded away and no longer there. He testified that Urbanski stated that he
was "almost at a complete stop" looking to his left for oncoming
traffic.[2]
The trial court granted
Lunde's and his insurer's motion for summary judgment. The court concluded that it was undisputed
that Urbanski caused the accident by attempting to exit the entrance to Dairy
Queen. It concluded that Urbanski's
negligence exceeded Lunde's as a matter of law.
When reviewing summary
judgment, we apply the standard set forth in § 802.08(2), Stats., in the same manner as the
circuit court. See Green
Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816, 820-21
(1987). Summary judgment is appropriate
when material facts are undisputed and when inferences that may be reasonably
drawn from the facts lead only to one conclusion. Id. To be
entitled to summary judgment of dismissal, a moving defendant must establish a
defense that would defeat plaintiff's claim.
Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 477
(1980). If the evidentiary facts
submitted by affidavit will under any reasonable view allow an inference in
support or denial of a claim of either party, "it is for the trier of fact
to draw the proper inference and not for the court to determine on summary
judgment which of the two or more permissible inferences should
prevail." Fischer v. Mahlke,
18 Wis.2d 429, 435, 118 N.W.2d 935, 939 (1963).
Negligence is the
failure to exercise ordinary care under the circumstances. Marciniak v. Lundborg, 153
Wis.2d 59, 64, 450 N.W.2d 243, 245 (1990).
Here, the record permits conflicting inferences with respect to the
circumstances of the collision.
According to Urbanski's deposition, a reasonably prudent person would
have assumed that the driveway served both as an entrance and exit. The officer also testified that it was
commonly used as both an entrance and an exit.
Lunde argues that
painted arrows demonstrate unequivocally that the driveway served only as an
entrance. Nonetheless, the officer's
and Urbanski's depositions shed doubt on whether the arrows were sufficiently
visible to apprise the ordinarily prudent driver that the driveway served as an
entrance only.
Also, Urbanski testified
that he was not moving at the time of the collision. Lunde, on the other hand, testified that he noticed his friend's
car in the parking lot, but not Urbanski's.
This raises a question as to lookout.
Because the facts permit opposing inferences with respect to the
circumstances of the accident, we are unable to conclude that Urbanski's
negligence exceeded Lunde's as a matter of law.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.