|
COURT OF APPEALS DECISION DATED AND FILED April 20, 2005 Cornelia G. Clark Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL from a judgment of the circuit court for Racine County: gerald p. ptacek, Judge. Affirmed.
Before Brown, Nettesheim and Snyder, JJ.
¶1 PER CURIAM. Carmella Marino, individually and as special administrator of the estate of her late husband, Eugene Marino, appeals from a summary judgment dismissing claims against Capitol Indemnity Corporation, the insurer for the Racine Raiders semi-professional football team, arising from Eugene’s death after he fell from the bleachers at a Raiders game. We conclude that there are no disputed material facts or reasonable inferences demonstrating that the Raiders exercised the requisite custody or control over the playing field, bleachers and guardrails to render the Raiders liable under the safe-place statute for Eugene’s death. We affirm the circuit court.
¶2 The Raiders play their home games at Horlick Field in Racine. Horlick Field is owned by the City of Racine. Eugene Marino attended a Raiders game in August 2002 and, as he was leaving the game, he lost his balance and fell through the bleacher railing to the ground. He ultimately died from the injuries he sustained in the fall.
¶3 In her amended complaint against the Raiders’ insurer,[1] Marino alleged that although the City owned Horlick Field, the City had an arrangement with the Raiders to permit the team to play its home games there. Marino alleged that the Raiders had control or custody of the field for purposes of the safe-place statute, Wis. Stat. § 101.11 (2001-02),[2] that the bleacher stands and/or guardrails were unsafe within the meaning of the statute, and that the Raiders had notice or knowledge that the bleacher stands and/or guardrails “were not as free from danger as the nature of the place would reasonably permit.” Marino further alleged that the Raiders negligently failed to maintain the premises in a safe condition as required by the statute and that this failure was a substantial factor in Eugene Marino’s death.
¶4 Capitol Indemnity moved for summary judgment because the Raiders lacked the requisite custody or control of the premises to be liable under the safe-place statute. Wisconsin’s safe-place statute, Wis. Stat. § 101.11(1), requires that “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.” “Owner” is defined in Wis. Stat. § 101.01(10) as any entity “having ownership, control or custody of any place of employment or public building ….” It is undisputed that the City of Racine, not the Raiders, owns Horlick Field. Therefore, the liability of the Raiders and its insurer under the safe-place statute can “only rest upon the conclusion that it had ‘control or custody’ of the bleachers.” Novak v. City of Delavan, 31 Wis. 2d 200, 207, 143 N.W.2d 6 (1966).
¶5 The summary judgment record reveals the following. The written contract between the City and the Raiders governs only the right to sell concessions at Horlick Field. An oral agreement between the parties requires the Raiders to pay a fee for each home game. The agreement does not address maintenance or improvements to the field. The City regularly inspected, maintained and repaired the bleachers, and stationed Parks Department employees at the field to prepare the field and facilities for play. The Raiders generally practice at another field, but they use the locker room at Horlick Field on practice days. Although the Raiders have funded some improvements to the field, they forward complaints regarding the facilities to the City. The City makes the field available for numerous other public events not related to the Raiders.
¶6 The circuit court isolated the issue on summary judgment as being whether, as a matter of law, the Raiders had custody or control of the bleachers to make the Raiders an “owner” within the meaning of the safe-place statute. The circuit court, relying on Novak, agreed with Capitol Indemnity that no genuine material factual issues exist on this question. The court concluded that the City maintained and repaired the grounds and the bleachers, and it was undisputed that the Raiders have never purported to inspect or maintain the bleachers. Because the Raiders did not have the requisite custody or control, they were not subject to safe-place liability as a matter of law. Marino appeals.
¶7 We
review decisions on summary judgment by applying the same methodology as the
circuit court. M & I First
Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536
N.W.2d 175 (Ct. App. 1995). That methodology has been recited often and
we need not repeat it here except to observe that summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. at 496-97.
¶8 On appeal, Marino repeatedly argues that the circuit court should not have decided the case on summary judgment because questions of negligence and custody or control under the safe-place statute must be decided at trial, not summary judgment. We disagree. Capitol Indemnity was not precluded from attempting to show that the material facts were not disputed and that no reasonable competing inferences could be drawn on the question of whether the Raiders exercised the requisite custody or control for safe-place liability. In the appropriate case, the question can be decided on summary judgment.
¶9 Marino
argues that the bleacher guardrails are patently unsafe or fail to meet
applicable safety codes. Marino puts
the cart before the horse. We must
first decide whether there are any factual disputes relating to the Raiders’
custody and control such that the Raiders could be held liable for the
allegedly unsafe condition of the bleacher guardrails.
¶10 Marino
next argues that there are factual issues in the record which should have
precluded summary judgment. As evidence
of the Raiders’ custody and control, Marino cites the Raiders’ requests for
maintenance and repair of the facility; the “Horlick Field-Home of the Raiders”
sign; the Raiders’ payment for a new scoreboard, improvement of the concession
stand, electrical work and improvements in the office; and the Raiders’
performance of duties specific to the use of the facility by a football team.
¶11 Capitol
Indemnity counters that other teams use the field, the Raiders do not routinely
practice there, the City maintains and repairs the facility and addresses
maintenance and repair concerns brought to its attention by the Raiders, the
City prepares the field for play, and the City provides employees to be present
at the game and cleans up the facility after the game. The City regularly inspects and maintains
the bleachers. The Raiders maintain the
concession stand and supply the equipment and supplies for the concession
stand.
¶12 The
parties do not raise factual disputes.
Rather, the inquiry is whether these activities are sufficient to amount
to custody or control to render the Raiders an owner under the safe-place
statute.
¶13 The
circuit court relied upon Novak in determining the custody or
control question. The Novaks attended a
high school football game and sat in the bleachers. At some point, the footboard gave way, causing the Novaks to fall
to the ground, injuring Mrs. Novak. The
Novaks sued under the safe-place statute.
Novak, 31 Wis. 2d at 202-03. The City of Delavan owned the field; the school district paid a
per game fee to use the field for its seven football games. Id. at 203. On game nights, the school district provided
ticket sellers and takers and parking lot workers. Teachers safeguarded the field from students and prepared the
lines on the field. The school district
never inspected the bleachers or performed any repairs on them. Id. The City was responsible for preparing the field for the game and
cleaning up after the game. City
employees regularly inspected the bleachers before and after every game and
performed all maintenance and repair on the bleachers. Id. at 204.
¶14 After
a jury trial, the circuit court entered a judgment holding that the school
district was an owner as a matter of law and had a duty to construct safe
bleachers. Id. at
205. On appeal, our supreme court
focused on whether the school district, which did not hold legal title to the
field, had control or custody of the field such that it could be held liable
under the safe-place statute. Id.
at 207. The court concluded that the
school district did not have control or custody of the bleachers such that the
district was entitled to enter the premises to rebuild or repair the
bleachers. Id. at
208. In so holding, the court relied
upon the following undisputed facts:
the school district used the field for seven football games and while
its employees supervised the events, its employees “did not purport to inspect
the bleachers or to perform any maintenance services with reference to
them. When any problems arose
concerning the bleachers, it was the city’s employees who attended to
them.” Id.[3]
¶15 While
the Raiders’ use of Horlick Field is more multi-faceted than that of the school
district in Novak, we conclude that the Raiders still do not have
the necessary custody or control to render the team an owner under the
safe-place statute. The undisputed
facts are that the City maintains the bleachers and responds to maintenance and
repair issues brought to its attention by the Raiders. Like the school district, the Raiders pay a
fee to use the field and do not maintain or repair the bleachers or
guardrails. The Raiders are one of
several users of the field and do not have any contractual obligation to
maintain the field; their written contract is limited to concessions. The “Home of the Raiders” sign at the field
and the Raiders’ occasional payment for improvements to benefit the team do not
confer custody or control. The Raiders’
use of Horlick Field was not sufficient to confer safe-place liability.[4]
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2003-04).
[1] At the summary judgment hearing, Marino stated that recovery was not being sought against the City because of the $50,000 limit on recovery.
[2] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[3] We reject Marino’s claim that Novak v. City of Delavan, 31 Wis. 2d 200, 143 N.W.2d 6 (1966), stands for the proposition that a jury trial is required to resolve the question of whether the Raiders had custody or control under the safe-place statute. In Novak, the question was whether the facts, regardless of how they were established, showed the requisite degree of custody and control. Novak does not stand for the proposition that a jury trial is necessary to resolve that question.
[4] To the extent we have not addressed an argument raised on appeal, the argument is deemed rejected. State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). (“An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.”).