COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-1951-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
LEROY GILBERT and
JANIS GILBERT,
Plaintiffs-Respondents,
v.
AMERICAN FAMILY
INSURANCE,
a Wisconsin Insurance
Co.,
Defendant-Third Party Plaintiff-Appellant,
v.
CITY OF ANTIGO,
Third Party Defendant.
APPEAL from an order of
the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. American Family
Insurance Co. appeals an order denying its motion for summary judgment.[1] Because the material facts are undisputed
and American Family is entitled to a judgment of dismissal as a matter of law,
we reverse the order and remand with directions to enter summary judgment in
favor of American Family.[2]
Janis Gilbert filed a
complaint against Ronald Smith seeking damages for personal injuries arising
out of a trip and fall on a City of Antigo sidewalk. The sidewalk borders property owned by Smith, American Family's
insured. Gilbert was out for a walk
when her toe hit a raised portion of the sidewalk and she tripped and fell on
the city sidewalk in front of Smith's property. She injured her wrist, lip and elbow. When Gilbert looked to see what she tripped over, she saw that
the sidewalk was "all full of this grass and stuff," brown in color,
like someone had sprayed a weed killer on it.
Photographs of the sidewalk show brown grass in the seams of the
sidewalk.
The Gilberts' complaint
states:
That
the insured, Ronald Smith, was then and there negligent in failing to correct a
defective condition of the sidewalk, failing to warn the public including the
Plaintiff, Janice Gilbert, of the dangerous condition of the sidewalk, and in
maintaining said sidewalk in a faulty and unsafe condition, although, Ronald
Smith knew or should have known of its condition.
American Family joined
Antigo as a third-party defendant because the sidewalk in question was owned by
the city. The trial court denied
American Family's motion for summary judgment, stating: "If the plaintiff can show at trial
that a condition was created by the landowner grass that was unreasonably
dangerous at the time, the doctrine of common law negligence would apply to
that owner." American Family
appeals the order.
When reviewing summary judgment, we apply
the standard set forth in § 802.08(2), Stats.,
de novo. Cook v. Continental Cas.
Co., 180 Wis.2d 237, 244-45, 509 N.W.2d 100, 103 (Ct. App. 1993). To survive a prima facie case for summary
judgment, a party may not rely on pleadings but must support his or her
allegations with evidentiary facts. Hopper
v. Madison, 79 Wis.2d 120, 130, 256 N.W.2d 139, 143 (1977);
§ 802.08(3), Stats. Summary judgment is appropriate when
material facts are undisputed and when inferences that may be reasonably drawn
from the facts are not doubtful and lead only to one conclusion. Radlein v. Industrial Fire & Cas.
Ins. Co., 117 Wis.2d 605, 609, 345 N.W.2d 874, 877 (1984).
Gilbert contends that an
examination of the proofs on file demonstrate that (1) grass was allowed to
grow in the seams of the sidewalk in front of Smith's property, (2) some
kind of vegetation killer had been sprayed on it causing it to turn brown, (3)
the only area on the entire block where it turned brown was in front of Smith's
property, and (4) the brown grass concealed the raised portion of the
sidewalk. Gilbert contends that a jury
could reasonably conclude that Smith sprayed grass killer, causing the grass to
turn brown, thus camouflaging the raised portion of the sidewalk. Gilbert contends that Smith would have been
liable for omitting due care in connection with activities on his premises.
There are several flaws
with the Gilberts' liability theories against Smith. First, it is undisputed that the allegedly defective sidewalk was
on the city's premises, not Smith's.
Smith owes no legal obligation to maintain city sidewalks. An abutting landowner is "liable for
only such defects or dangerous conditions in public streets or sidewalks that
are created by the active negligence of such landowners or their
agents." Jasenczak v. Schill,
55 Wis.2d 378, 382, 198 N.W.2d 369, 371 (1972). There is no showing that Smith created or contributed to the
raised part of the sidewalk. Second,
there is no proof from which a reasonable inference could be made that brown
dead grass concealed the sidewalk defect more effectively than green growing
grass. Gilbert testified at her
deposition that she did not know whether she noticed that the grass was brown
before she fell. Third, there is no
proof from which to infer that Smith used weed killer on the grass or that even
if he had done so, it was a factor causing Gilbert's injuries.
The parties discuss the
concepts of active and passive negligence.
Their discussion is not material here because the undisputed facts fail
to demonstrate that Smith breached any legal duty. Absent a showing of legal duty and its breach, there is no
negligence. See Milwaukee
Partners v. Collins Engineers, 169 Wis.2d 355, 361-62, 485 N.W.2d 274,
276-77 (Ct. App. 1992) (Negligence claim consists of a duty of care; a breach
of the duty; causal connection between the breach and the injury; and actual
loss or damage as a result of the injury.).
Consequently, the order
is reversed and remanded with directions to grant American Family's motion for
summary judgment.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.