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COURT OF APPEALS DECISION DATED AND RELEASED February 15, 1996 |
NOTICE |
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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. 94-2981
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JACKIE FRANKLIN,
Plaintiff-Appellant,
v.
MICHAEL JACKSON,
Defendant,
DIESEL TRUCK DRIVER
TRAINING SCHOOL, INC.,
a Wisconsin
corporation, and
FIREMAN'S FUND
INSURANCE COMPANY,
a foreign corporation,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Dane County:
P. CHARLES JONES, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER
CURIAM. Jackie Franklin appeals from a summary judgment
dismissing his complaint against the Diesel Truck Driver Training School, Inc.
and its insurer, Fireman's Fund Insurance Company (collectively referred to as
"Diesel Training"). The issue
is whether there is a genuine issue of material fact to establish that Diesel
Training was negligent because it failed to warn and protect its students
against another student who it allegedly should have known was dangerous. We conclude that no reasonable jury could
find, upon the facts presented, that Diesel Training had failed to exercise
ordinary care. Because the trial court
properly granted summary judgment, we affirm.
The facts are
undisputed. Franklin and his assailant,
Jackson, were students at Diesel Training.
They were driving to school with three other students when they began to
argue. The five students arrived at
Diesel Training in the dark, early morning hours and were walking through the
parking lot when Jackson struck Franklin with a glass mug.
Franklin sued Diesel
Training on two negligence theories:
(1) failure to protect him against a student who was a convicted felon
with violent proclivities; and (2) failure to adequately light and secure its
parking lot. Diesel Training
successfully moved for summary judgment.
Franklin appeals.
Summary judgment is used
"to decide the preliminary question of law of whether a jury question on
the issue of negligence has been presented." Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d
723, 732-33, 275 N.W.2d 660, 665 (1979).
The summary judgment methodology of § 802.08(2), Stats., must be followed by this court
as well as the trial court. In re
Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582 (Ct.
App. 1983). To establish a negligence
action, the plaintiff must prove: (1) a duty and a breach of that duty; (2) a
close connection between the conduct and the injury; and (3) resulting
damages. See Scholmer v. Perina,
173 Wis.2d 889, 894, 473 N.W.2d 6, 9 (Ct. App. 1991), aff'd, 169 Wis.2d
247, 485 N.W.2d 399 (1992).
The issues on summary
judgment are whether Diesel Training was negligent because: (1) it should have
known that one of its students had violent proclivities that foreseeably
created an unreasonable risk of harm to others; and (2) it had a duty to light
and secure its parking lot. The trial
court granted summary judgment because it concluded that both allegations of
negligence were based on speculation. See
Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis.2d 455,
460, 267 N.W.2d 652, 655 (1978) (if the evidence contains no reasonable basis
for choosing liability over nonliability, the matter remains speculative and it
becomes the court's duty to direct a verdict for the defendant).
Franklin contends that
Diesel Training had a duty to protect its students from another student's
intentional torts under Korenak v. Curative Workshop Adult Rehabilitation
Ctr., 71 Wis.2d 77, 237 N.W.2d 43 (1976). Korenak extended an adult educational institution's
duty of ordinary care to protect its students from the "known
negligent conduct" of other students to include intentional torts.[1] Id. at 80-81, 237 N.W.2d at 45
(emphasis supplied). Unlike Korenak,
there is no evidence that Diesel Training knew about Jackson's criminal
record. Franklin contends that Diesel
Training's duty arose when it admitted Jackson as a student because it should
have obtained his criminal record, which disclosed his violent proclivities.[2] We disagree.
Korenak is
distinguishable because the Center had been notified that the assailant had
assaulted Korenak previously. We
decline to extend Korenak to require a truck driving school to
investigate its registrants for criminal records or problematic
backgrounds. To impose such a duty is
likely to result in discriminatory decisions based on speculation.
Franklin also contends
that Diesel Training had a duty to light and secure its parking lot, but he
does not establish that the absence of lighting and security was a substantial
factor in producing his injuries.
Franklin provides the court with possible bases for liability. However, there is an equally possible basis
for nonliability because there is no reasonable basis in the evidence to
conclude that lighting and a secure parking lot would have prevented the
assault where Jackson struck Franklin in the presence of three other students
who were aware of their argument.
Because the choice of liability is no more compelling than the choice of
nonliability, the matter remains speculative.
See Merco, 84 Wis.2d at 460, 267 N.W.2d at 655.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Korenak reviewed an order overruling a demurrer, whereas we are reviewing a summary judgment. Consequently, even if the factual situations were analogous, which we conclude they are not, the procedural postures are different. Pavlik v. Kinsey, 81 Wis.2d 42, 48, 259 N.W.2d 709, 711 (1977) (standard to review a demurrer); Leszczynski v. Surges, 30 Wis.2d 534, 538-39, 141 N.W.2d 261, 264-65 (1966) (standard to review a summary judgment).