COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
November 23, 1999 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT I |
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Cincinnati
insurance company, plaintiff-appellant, susan diehl, involuntary-plaintiff, v. mayfair
property, Inc., the yarmouth group property management, inc., gerling america
insurance company, abc corporation, def insurance company, ghi company, uvw
insurance company, xyz insurance company and rst insurance company, defendants-respondents. |
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APPEAL from a judgment of
the circuit court for Milwaukee County:
stanley a. miller,
Judge. Reversed and cause remanded.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
¶1 PER CURIAM. Cincinnati
Insurance Company (Cincinnati) sued to recover certain worker’s compensation
payments it made to Susan L. Diehl (Diehl) for injuries she suffered in the
parking lot of the Mayfair North Tower Building (Mayfair) on December 15, 1994. The trial court’s judgment granted the
summary judgment motion filed by the defendants, Mayfair Property, Inc., the
owner of the property, Yarmouth Group Property Management, Inc. (Yarmouth), the
property manager, and Gerling America Insurance Company, the insurer of the
property. Cincinnati contended that
Diehl slipped on a patch of ice in the parking lot. The trial court concluded that Cincinnati failed to submit proof
establishing that the defendants had notice of the alleged ice patch on which
Diehl fell. The trial court concluded
that in the absence of such proof, Cincinnati failed to make a prima facie case
of the defendants’ violation of the safe place statute, § 101.11(1), Stats., or common law negligence. Because we conclude that Cincinnati
submitted sufficient evidence to support the inference that the defendants had
constructive notice of the icy conditions in the parking lot where Diehl fell,
we reverse the trial court’s judgment.[1]
BACKGROUND
¶2 The
trial court considered the motion for summary judgment in light of certain
undisputed facts. Snow began falling on
December 15, 1994, at approximately 6:00 a.m.
When Diehl arrived at Mayfair at approximately 6:45 a.m., the
parking lot was covered with snow and slush.
Diehl broke her ankle as she departed from Mayfair at approximately
12:55 p.m.
¶3 It
was undisputed that Yarmouth was aware of the morning’s weather conditions on
the day of the accident. A snow removal
report, identified by the director of operations, acknowledged that snow,
accumulating to approximately one inch, began falling at 6:00 a.m., and that
the temperature hovered in the mid-thirties.
It was undisputed that Yarmouth had contracted with a snow removal
contractor and owned a vehicle equipped with a plow; nevertheless, the Mayfair
parking lot was not plowed on the day of the accident. Instead, Yarmouth’s staff cleared the
sidewalks of snow by hand. The snow
removal report also indicated that Yarmouth’s staff salted the entire parking
lot and that “most areas melted by 12:00 noon.”
¶4 Diehl
testified at her deposition that she slipped and fell on a patch of ice in the
Mayfair parking lot, approximately five feet from the curb of the sidewalk on
the north side of the building. Diehl
testified that there was no evidence of sand or salt having been spread in the
area of the patch of ice on which she fell.
¶5 The
trial court’s decision focused on Cincinnati’s failure to establish “how long
the ice existed, the extent of the ice, or whether there were additional ice
patches in the parking lot. The fact
that it began snowing at 6:00 [a.m.] for a total of approximately one inch does
not by itself demonstrate constructive notice.” From this summation of the evidence, the trial court concluded
that Cincinnati failed to provide “any length of time evidence that
establishe[d] constructive notice.
Additionally, defendants patrolled the parking lot and conducted snow removal
in a vigilant manner without discovering any ice patch.” The trial court granted the defendants’
motion for summary judgment. Cincinnati
appeals.
STANDARD OF REVIEW
¶6 We
review the trial court’s grant of summary judgment de novo. See Green Spring Farms v. Kersten,
136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Section 802.08(2), Stats.,
sets forth the standard by which summary judgment motions are to be
judged: “The judgment sought shall be
rendered if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Summary
judgment should be granted only where the moving party shows “a right to a
judgment with such clarity as to leave no room for controversy[.]” Grams v. Boss, 97 Wis.2d 332,
338, 294 N.W.2d 473, 477 (1980).
DISCUSSION
¶7 ‘“The
elements in a cause of action for negligence are: (1) a duty of care on the part of the defendant; (2) a breach of
that duty; (3) a causal connection between the conduct and the injury; and (4)
an actual loss or damage as a result of the injury.’” Transportation Ins. Co. v. Hunzinger Constr. Co.,
179 Wis.2d 281, 293, 507 N.W.2d 136, 140 (Ct. App. 1993) (citation
omitted). The safe place statute
provides in pertinent part:
101.11 Employer’s Duty to Furnish Safe Employment and Place. (1) Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
In
order to prevail on a claim of negligence, a claimant must demonstrate that the
defendant had actual or constructive notice of the defect causing the
claimant’s injury. See Low v.
Siewert, 54 Wis.2d 251, 253-54, 195 N.W.2d 451, 453 (1972). Violation of the safe place statute also
requires proof of actual or constructive notice. See Kaufman
v. State St. Ltd. Partnership,
187 Wis.2d 54, 57-59, 522 N.W.2d 249, 251 (Ct. App. 1994).
¶8 In
this case, the defendants denied any actual notice of the patch of ice on which
Diehl fell; Cincinnati was unable to submit proof of the defendants’ actual
notice. However, we conclude that
Cincinnati submitted ample evidence to create a jury question regarding whether
or not the defendants had constructive notice of the icy conditions in the
parking lot, including the ice patch on which Diehl injured herself.[2]
¶9 It
was undisputed that Yarmouth knew that snow and ice had accumulated in the
parking lot for hours prior to Diehl’s injury.
Yarmouth responded to these conditions by having its staff shovel the
walks by hand and spread salt on the parking lot. Yarmouth was unable to produce any evidence indicating when or
whether the spot where Diehl fell had been salted. Yarmouth’s own records indicated that most but not all of
the snow and ice on the parking lot melted by noon, shortly before Diehl
slipped and fell. In light of these
facts, we conclude that the record submitted to the trial court was not
susceptible to resolution on a motion for summary judgment as a question of
law.
¶10 In reaching this conclusion, we rely on Werner v. Gimbel Brothers, 8 Wis.2d 491, 99 N.W.2d 708 (1959). In Werner, a Gimbel’s maintenance supervisor came to work at 6:00 a.m. Id. at 493, 99 N.W.2d at 709. The sidewalk adjacent to the Gimbel’s store was icy at that time. Id. at 493a, 99 N.W.2d at 709. The plaintiff, Mrs. Werner, was injured in a fall at 10:30 a.m. Id. At the time of Mrs. Werner’s accident, Gimbel’s maintenance crew was sanding the parking lot; the part of the sidewalk where Mrs. Werner fell had not yet been sanded or salted. Id.
¶11 The
trial court determined that the issue of whether Gimbel’s had actual or
constructive notice of the icy condition of the sidewalk requiring it to take
reasonably remedial action presented a question of law. Id. at 493-93a, 99 N.W.2d at
709. The trial court ruled in favor of
Gimbel’s and the Werners appealed. The
Supreme Court reversed the trial court:
The only issue on this appeal is the question of fact whether the defendants’ actual or constructive notice of the unsafe condition of the walk warned them in time to require them to take reasonable precautions to prevent such an accident. We consider that the evidence bearing on that issue presents a jury question not to be determined as a matter of law.
Id.
at 493, 99 N.W.2d at 709.
¶12 Our
case shares key features with Werner. In both cases, there was ample evidence of prevailing winter
conditions that resulted in ice formation.
In both cases, several hours passed between the time that each
maintenance crew became aware of the icy condition and the time of the
accident. Finally, in both cases, the
moving parties, the property owners, were unable to submit positive proof that
the area where the accident occurred was salted or sanded by their respective
staffs.
¶13 Accordingly,
we hold that this case must proceed to trial so that a jury can decide whether
enough time had elapsed between 6 a.m. and 12:55 p.m. to give Yarmouth
constructive notice of the icy condition of that part of the parking lot where
Diehl’s accident occurred to require remedial action in addition to the action
already taken by Yarmouth. Accordingly,
we reverse the trial court’s order and remand the case for trial.
By the Court.—Judgment reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.