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COURT OF APPEALS
DECISION
DATED AND FILED
May 22, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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Wendy Crary and Phillip A. Crary,
Plaintiffs-Appellants,
Dean Health Plan, Inc. and WCA Group Health Trust,
Plaintiffs,
American Protection Insurance Company p/k/a Liberty Mutual
Fire Insurance Company,
Involuntary-Plaintiff,
v.
PIC Wisconsin
and Beaver Dam Community Hospitals, Inc.,
Defendants-Respondents.
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APPEAL
from an order of the circuit court for Dodge County: John
R. Storck, Judge. Affirmed in
part; reversed in part and cause remanded.
Before Higginbotham, P.J., Dykman and Lundsten, JJ.
¶1 PER CURIAM. Wendy and Phillip Crary appeal
the circuit court’s order for summary judgment in favor of PIC Wisconsin and
Beaver Dam Community Hospitals, Inc. (collectively, “BDCH”). We affirm in part and reverse in part.
¶2 Wendy Crary slipped on ice and fell in the parking lot of Beaver Dam
Community Hospital
as she was leaving work shortly after 5:00 p.m., injuring herself. Crary saw the ice around her car, but slipped
and fell on it anyway. According to the
affidavit of Wayne Schroeder, BDCH’s director of maintenance, BDCH maintenance
personnel policy and practice was to patrol the parking lots at dusk and at
other times as weather conditions warranted.
He averred that the parking lots were examined for melting snow and
water turning to ice as the sun set and, if any problems were noticed,
including ice patches and slippery conditions, then salt would be applied. He averred that three or four people were on
maintenance duty at the time of the accident and that, when their shift began
and weather conditions warranted, they would have begun to examine the parking
lots. According to the affidavit of Kay
Jezyk, an employee in the BDCH maintenance department who finished work at 2:30
p.m. on the day of the accident, she did not recall any problem with ice on the
parking lot and, had a patch of ice been noticed and reported to her, she would
have immediately remedied the problem.
¶3 Crary and her husband brought this action against BDCH
alleging common-law negligence and a violation of the Wisconsin Safe Place Statute,
Wis. Stat. § 101.11 (2005-06). The circuit court granted summary judgment in
favor of BDCH, concluding that the Crarys had failed to produce any evidence
that BDCH had actual or constructive notice of the ice patch on which Wendy
fell.
¶4 We review a circuit court’s decision granting summary
judgment de novo, applying the same methodology as the circuit court. Johnson v. Rogers Mem’l Hosp., Inc.,
2005 WI 114, ¶30, 283 Wis.
2d 384, 700 N.W.2d 27. “Summary judgment
must be entered ‘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.’” Id., (quoting Wis. Stat. § 802.08(2)). “All reasonable inferences drawn from the
underlying facts contained in these documents … must be viewed in the light
most favorable to the non-moving party.”
Id. “[T]his court does not resolve issues of fact
on summary judgment, but rather decides whether genuine issues of material fact
exist.” Id.
¶5 The Crarys first argue that the circuit court should have
imputed constructive notice to BDCH on the safe place statute claim. That is, the Crarys argue that BDCH should be
treated as if it had notice of the ice as a matter of policy although, in fact,
it did not. We reject this argument.
¶6 The safe-place statute “requires an employer or owner to make
the place ‘as safe as the nature of the premises reasonably permits.’” Megal v. Green Bay Area Visitor &
Convention Bureau, Inc., 2004 WI 98, ¶10, 274 Wis. 2d 162, 682 N.W.2d 857 (quoting Strack v. Great Atl. & Pac.
Tea Co., 35 Wis.
2d 51, 54, 150 N.W.2d 361 (1967)). The
owner or employer “is not an insurer of frequenters of his premises,” so “in
order to be liable for a failure to correct a defect, he [or she] must have
actual or constructive knowledge of it.”
Kaufman v. State St.
Ltd. P’ship, 187 Wis. 2d 54, 59, 522
N.W.2d 249 (Ct. App. 1994) (quoting Strack, 35 Wis. 2d at 54).
¶7 The general rule is that an employer or owner is deemed to
have constructive notice under the safe place statute only where the hazard has
existed for a long enough time that a reasonably vigilant owner would have
discovered and repaired it. Megal,
274 Wis. 2d
162, ¶12. “Ordinarily, constructive
notice cannot be found when there is no evidence as to the length of time the condition
existed.” Kaufman, 187 Wis. 2d at 59. However, courts have imputed constructive
notice without evidence of the length of time a dangerous condition existed in
a narrow class of cases where the nature of the business made the harm reasonably
foreseeable. See Megal, 274 Wis. 2d
162, ¶18 (“[w]e have refused to impute constructive notice where the area where
the harm occurred is not an area where the owner was merchandizing articles for
sale to the public in a way that made the harm that occurred reasonably
foreseeable”); Kaufman, 187 Wis. 2d at 64 (no exception because banana in a
parking lot used by Walgreens and Pick N’ Save customers was unrelated or only
incidentally related to the operation of the stores, and thus not a foreseeable
danger).
¶8 There is no dispute that Crary did not provide evidence
indicating how long the ice had been in the parking lot. Absent this evidence, constructive notice
cannot be imputed to BDCH because there are no facts from which it could be inferred
that the ice was present for a long enough period of time that a reasonably
diligent owner would have found it. This
case does not fit the narrow class of cases where the nature of the business
makes the harm reasonably foreseeable because there is nothing about the
hospital’s business, taking care of people’s medical needs, that makes it
reasonably foreseeable that there would be ice in the hospital parking
lot. Accordingly, we conclude that the
circuit court properly granted summary judgment dismissing the claim under the
safe place statute.
¶9 The Crarys next argue that the circuit court should not have
granted summary judgment dismissing their common-law negligence claim. The circuit court dismissed the claim because
the Crarys had not adequately shown that BDCH had actual or constructive notice
of the ice on which Crary slipped.
¶10 “A person is negligent if the person, without intending to
cause harm, either acts affirmatively or fails to act in a way that a
reasonable person would recognize as creating an unreasonable risk of
injury.” Megal, 274 Wis. 2d 162, ¶25. Even if a plaintiff has not shown that a
defendant had actual or constructive notice of an unsafe condition that caused his
or her injury, which is necessary to establish a violation of the safe-place statute
with its higher standard of care, a plaintiff may be able to show that the
defendant failed to exercise ordinary care, and thus prove a claim of
common-law negligence. Id.
In this case, the circuit court concluded that a showing of actual or
constructive notice was a necessary component of a common-law negligence
claim. That ruling is inconsistent with Wisconsin negligence law.
¶11 The summary judgment materials submitted by the parties raise
an issue of fact as to whether BDCH acted reasonably in policing its parking
lots for dangerous conditions. The
affidavits established that BDCH had a policy of sending out employees to look
for hazards and that a BDCH employee did not notice any ice several hours
before the accident. The disputed questions
of fact for the jury include: (1) to what extent did BDCH’s employees follow
its policy on the day of the accident; and (2) were BDCH’s actions reasonable
given the size of the parking lot where Crary fell and the weather conditions. Because these disputed factual issues
preclude summary judgment on the negligence claim, we reverse the circuit
court’s decision as to that claim and remand for further proceedings.
By the Court.—Order affirmed in part; reversed
in part and cause remanded.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.