COURT OF APPEALS DECISION DATED AND RELEASED December 19, 1995 |
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. 94-1667
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
NENG YEE LO,
individually and for the
Next of Kin of PAO LO,
deceased,
and as administrator
of the
estate of the deceased
and
XIONG THAO,
individually and as mother
and natural guardian
of KA ZONG LO, a minor,
Plaintiffs-Appellants,
v.
KOHL'S FOOD STORES,
INC.,
a Wisconsin
Corporation,
PINKERTON'S INC.,
a Delaware Corporation
and BLUE CROSS, BLUE
SHIELD
UNITED OF WISCONSIN,
Defendants-Respondents,
WISCONSIN DEPARTMENT
OF HUMAN SERVICES,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.
APPEAL from judgments of
the circuit court for Milwaukee County: PATRICK J. MADDEN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Neng Yee Lo and Xiong Thao appeal from summary judgment
dismissals of their negligence action against Kohl's Food Stores, Inc. and
Pinkerton's, Inc.[1] They present two issues for review—whether
the trial erroneously exercised its discretion when it “failed to order
Defendant Kohl's to properly respond to legitimate discovery requests;” and
whether the trial court erred when it granted summary judgment dismissal to
Kohl's and Pinkerton's. We affirm the
judgments because we conclude that the trial court acted within its discretion
when it denied Lo and Thao's motion to compel discovery at the summary judgment
hearing. Further, summary judgment was
properly granted because the summary judgment materials established that Kohl's
was not negligent as a matter of law, that Pinkerton's had no duty to the
plaintiffs, and that there were no remaining genuine issues of material fact
necessitating a trial.
I. BACKGROUND
The underlying facts are
undisputed. On June 14, 1991, after
shopping at the Kohl's Food Store on West Juneau Avenue in the City of
Milwaukee, Pao Lo and Thao returned to their car parked in the Kohl's parking
lot. Lo placed the groceries in the
back seat, and Thao got into the front passenger seat and closed and locked her
door. Lo then got into the front
driver's seat and started the car. At that time, an assailant entered Lo's
vehicle from the unlocked rear passenger door.
The assailant pointed a handgun at Lo's head and demanded money. The assailant then grabbed for Thao's purse
and fired the handgun at Lo's face. He
then fled from the car and was chased by a Pinkerton's security guard from the
Kohl's store, but he escaped. Lo died
from the gunshot wound. Police later
apprehended the assailant, Steven Smith, who was charged and convicted of Lo's
homicide.
In December 1992, Neng
Yee Lo and Thao filed a negligence action against Kohl's and Pinkerton's for
Pao Lo's death. Their amended complaint
alleged that Kohl's:
[K]new or should have known of the
robberies, purse snatching, and other criminal activities which all represent
security risks or hazards to its customers, but was negligent in hiring,
maintaining and monitoring security for the safety of its business customers coming
and going out of its said premises.
The
amended complaint alleged that Pinkerton's “was negligent in providing security
to Pao Lo as a business customer of Kohl's.”
The negligence of both Kohl's and Pinkerton's was alleged to be the
direct and proximate cause of injuries suffered by Pao Lo, his next of kin, his
wife, and his daughter, including “great bodily pain and suffering;” “mental
anguish;” “emotional distress;” and “loss of society, companionship, services.”
Kohl's and Pinkerton's
filed answers denying any negligence on their part and setting forth
affirmative defenses. Each pleaded that
any injuries or loss sustained by the plaintiffs was the result of either
intentional or negligent acts of another, constituting an independent or
superseding cause. Further, Kohl's
filed a cross-claim against Pinkerton's seeking, inter alia,
contribution and indemnification if Kohl's was found liable at trial.
Later, both Kohl's and
Pinkerton's filed motions seeking summary judgment dismissal. At the hearing on the motion, Lo and Thao
alleged that Kohl's had not properly answered an interrogatory question
regarding Kohl's knowledge of past incidents of crime at the West Juneau
store. Kohl's had objected to the question,
arguing that it was “overly broad, unduly burdensome, and [was] not reasonably
calculated to lead to discovery of admissible evidence.” Lo and Thao never moved the court to compel
discovery. See
§ 804.12(1)(a), Stats. Thus, the summary judgment materials never
included any admissible evidence on Kohl's knowledge of crime at the
store. The trial court denied Lo and
Thao's request that the trial court order Kohl's to answer the interrogatory
question, agreeing with Kohl's that the summary judgment hearing was not the
appropriate time to make such a request, and that Lo and Thao should have moved
the court to compel discovery earlier.
The trial court granted
summary judgment dismissal to both Kohl's and Pinkerton's, concluding that the
summary judgment materials established that there were no genuine issues of
material fact, and that as a matter of law there was no liability on the part
of either Kohl's or Pinkerton's.
Further, the trial court specifically found that the homicide “was a
random act of violence which nobody could have anticipated except the
perpetrators.”
II. ANALYSIS
On appeal, Lo and Thao
argue that the trial court prejudicially misused its discretion in failing to
order Kohl's to respond completely to their proper discovery requests and that
genuine issues of material fact exist necessitating a trial. We disagree.
A. Motion to Compel
Discovery.
If a discovering party
receives an answer to an interrogatory that it believes is evasive or
incomplete, or fails to receive any answer at all, the discovering party may
move the trial court for an order compelling discovery. See § 804.12(1)(a) & (b), Stats.
Further, the burden is “on the frustrated party to seek a court order
compelling compliance.” 3 Jay E. Grenig & Walter L. Harvey, Civil
Procedure § 412.2 at 580 (2d ed., Wis. Prac. Series) (1994).
A motion for an order
compelling discovery should be filed with the court and served on all the
parties within a reasonable time after the moving party is served with the
allegedly insufficient response to the discovery request or, if no response has
been received, after the deadline for the response. The motion should be made in sufficient time so that it can be
decided and the moving party can obtain the requested material before the trial
and the discovery deadline.
Id. at
581 (footnotes omitted); see Hertlein v. Huchthausen, 133
Wis.2d 67, 71, 393 N.W.2d 299, 300 (Ct. App. 1986) (stating that § 804.12,
Stats., provides various remedies
to which party can avail itself if party is concerned about not receiving
discovery materials). The question of
whether to grant a motion compelling discovery is a matter within the
discretion of the trial court and we will not reverse the trial court absent an
erroneous exercise of that discretion. Earl
v. Gulf & Western Mfg. Co., 123 Wis.2d 200, 204-05, 366 N.W.2d 160,
163 (Ct. App. 1985).
In the present case, the
trial court denied Lo and Thao's demand that Kohl's respond to their
interrogatory question. Essentially,
the trial court concluded that the plaintiffs should have moved the trial court
earlier to compel discovery and that summary judgment was not the appropriate
time for such a request. The trial
court correctly applied the relevant law and thus could properly reach this
discretionary decision. Accordingly, we
will not reverse on this ground. Id.
B. Summary Judgment.
“Summary judgment is
appropriate to determine whether there are any disputed factual issues for
trial and `to avoid trials where there is nothing to try.'” Caulfield v. Caulfield, 183
Wis.2d 83, 91, 515 N.W.2d 278, 282 (Ct. App. 1994) (citation omitted). While we apply the same methodology as the
trial court when reviewing a summary judgment motion, we owe no deference to
the conclusion of the trial court. Novak
v. American Family Mut. Ins. Co., 183 Wis.2d 133, 136, 515 N.W.2d 504,
506 (Ct. App. 1994). We first examine
the pleadings to determine whether they state a claim for relief. See Green Spring Farms v. Kersten,
136 Wis.2d 304, 315-17, 401 N.W.2d 816, 820-21 (1987). If the pleadings state a claim and the
responsive pleadings join the issue, we then must examine the evidentiary
record to analyze whether a genuine issue of material fact exists or whether
either party is entitled to a judgment as a matter of law. Id. Further, the claim should be dismissed only if it is quite clear
that under no circumstances can the plaintiff recover. Barillari v. City of Milwaukee,
194 Wis.2d 247, 256, 533 N.W.2d 759, 762 (1995) (citation omitted). We address the claims raised against Kohl's
and Pinkerton's seriatim.
1. Claim against Kohl's.
In Radloff v.
National Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865 (1963), the
Wisconsin Supreme Court stated that:
[T]o establish negligence on the part of
the proprietor it is necessary to show that the proprietor or his employees
knew or by the exercise of reasonable care, could have discovered that such
acts were being done or were about to be done by the third person so as to
threaten the bodily security of other patrons on the premises.
Id. at
233, 121 N.W.2d at 870.
In the present case,
there is no evidence in the summary judgment materials that Kohl's either knew
or, by the exercise of reasonable care, could have discovered that Smith was
about to rob and murder Pao Lo in the parking lot. There was no evidence that Kohl's was either aware of Smith's
actions or could have discovered the robbery.
Smith's affidavit establishes that he and his alleged accomplice had
only been on the premises for two minutes before the murder. Further, the summary judgment materials
establish that the managers on duty were unaware of Smith's presence. From these submissions, the trial court
could properly characterize the tragic shooting as a “random act of violence
which nobody could have anticipated except the perpetrators.”
Under Radloff,
as a matter of law, Kohl's was not negligent and thus, the trial court properly
granted summary judgment. See Barillari,
194 Wis.2d at 256, 533 N.W.2d at 762.
2. Claim against
Pinkerton's.
The amended complaint
alleged that Pinkerton's “was negligent in providing security to Pao Lo as a
business customer of Kohl's.” The
summary judgment materials fail to establish that Pinkerton's owed a duty to
provide security services outside the store where the shooting took place. The uncontroverted contract between Kohl's
and Pinkerton's establishes that Pinkerton's, at the time of the shooting, was
only contracted to provide “investigative services” for the Kohl's store. The uncontroverted affidavit of the vice
president of investigations for Pinkerton's establishes that the investigative
services were for inside the food store, and that it did not require
Pinkerton's to provide any security services outside or inside the
store. Indeed, another summary judgment
submission established that Kohl's cancelled its contract for security services
with Pinkerton's in 1989. Without
evidence raising a genuine issue of material fact with regard to Pinkerton's
actual duty to provide security to Kohl's customers outside the store, Lo and
Thao's claims cannot survive the summary judgment motion. See Jones v. Williams, 408
N.W.2d 426, 428 (Mich. Ct. App. 1987) (concluding that summary judgment was
properly granted to detective agency when contract established that agency had
no duty to provide security services outside of restaurant and it was
undisputed that victim was shot outside the building). Accordingly, summary judgment dismissal
could be granted in favor of Pinkerton's because it is clear that under no
circumstance could Lo and Thao recover.
See Barillari, 194 Wis.2d at 256, 533 N.W.2d at
762.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.