COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2835-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ARLINE A. SMITH,
Plaintiff-Appellant,
v.
CITY OF OCONTO AND
FARNSWORTH PUBLIC
LIBRARY,
Defendants-Respondents.
APPEAL from a judgment of
the circuit court for Oconto County:
LARRY L. JESKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Arline Smith appeals a summary judgment
dismissing her claims against the City of Oconto and the Farnsworth Public
Library (collectively "the City") arising out of injuries Smith
sustained as a result of a slip and fall.[1] Smith identifies three issues, whether: (1)
the trial court erroneously concluded that Smith's negligence exceeds the
City's as a matter of law; (2) the lawn's condition presented an obvious and
apparent danger; and (3) Smith was engaged in a recreational activity at the
time of her injury. Because the trial
court properly concluded that the undisputed facts demonstrate that Smith's
negligence exceeded the City's as a matter of law, we affirm the summary
judgment of dismissal.
The record discloses the
following undisputed facts derived from Smith's pretrial deposition testimony
and affidavit. As Smith was leaving the
library, she noticed a Christmas display on its lawn. She walked over to it to look at it. She turned to walk away and took one step and felt nothing under
her foot. She fell to the sidewalk and
was injured. There was no snow on the
ground. She had not noticed that the lawn
was higher than the sidewalk. The lawn
was approximately one foot higher than the adjacent sidewalk, retained by a
concrete-type wall. A photograph,
marked as an exhibit, shows that the library's lawn is approximately two steps
higher than the abutting sidewalk.
Smith brought this
action alleging injuries as a result of the City's failure to provide a railing
or a warning of the dangerous condition.
She further alleged that her fall resulted from an attractive
nuisance. There were no allegations
that the sidewalk condition violated any safety statutes or building
codes. On motion for summary judgment,
the trial court concluded that Smith's negligence exceeded the City's as a
matter of law. It dismissed the action,
but refused to order costs to the prevailing party.
When reviewing summary judgment, we apply the
standard set forth in § 802.08(2), Stats.,
in the same manner as the circuit court.
Kreinz v. NDII Sec. Corp., 138 Wis.2d 204, 209, 406 N.W.2d
164, 166 (Ct. App. 1987). 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). Because numerous cases
discuss the methodology, we do not repeat it here. See Green Spring Farms v. Kersten, 136 Wis.2d
304, 314-15, 401 N.W.2d 816, 820 (1987).
Contributory negligence
is a defense to an action grounded on negligence, or nuisance having its
origins in negligence. Schiro v.
Oriental Realty Co., 272 Wis. 537, 546-47, 76 N.W.2d 355, 360
(1956). If plaintiff's negligence is
greater than defendant's, § 895.045, Stats.,
bars recovery.[2] "Generally, the apportionment of
negligence is a question for the jury." Kloes v. Eau Claire Cavalier Baseball Ass'n, 170 Wis.2d
77, 88, 487 N.W.2d 77, 81 (Ct. App. 1992).
"Where the facts are undisputed, whether a plaintiff's negligence
exceeds a defendant's negligence as a matter of law is a question of law that
we review de novo." Id.
at 86, 487 N.W.2d at 81. Further,
"where the plaintiff's negligence clearly exceeds the defendant's, we may
so hold as a matter of law." Id.
at 88, 487 N.W.2d at 81.
A pedestrian has the
obligation to exercise ordinary care for her own safety. See Kobelinski v. Milwaukee
& Suburban Transp. Corp., 56 Wis.2d 504, 511, 202 N.W.2d 415, 420
(1972). The failure to exercise
ordinary care to employ one's own sense of sight so as to become aware of the
existence of a danger is negligence. See
Wis JI—Civil 1007. Here, Smith testified that she did not
notice the grade change between the lawn and the sidewalk, although it was
plainly visible. There is no allegation
that her vision was obscured by darkness, or that weather conditions, ice or
snow were factors. There is no
contention that the City violated any safety code.
This set of undisputed
facts demonstrates that Smith, in failing to observe where she was walking,
failed to exercise ordinary care for her own safety. In comparing the alleged negligence of the City with that of Smith,
we conclude that the trial court did not err when it determined that the proofs
disclosed a high degree of negligence on Smith's part and low degree of
negligence on the City's part, if indeed the City was negligent at all. Because the undisputed facts disclose that
Smith's negligence clearly exceeds that of the City's, we affirm the summary
judgment dismissing her claim.[3]
Next, the City argues
that the trial court erroneously failed to award it costs as the prevailing
party. The City, however, has not
cross-appealed the judgment that it challenges. A respondent may raise a claim of error in his brief without
filing a notice of cross-appeal when all that is sought is the correction of an
error which would sustain the judgment.
Auric v. Continental Cas. Co., 111 Wis.2d 507, 516, 331
N.W.2d 325, 330 (1983). That is not the
case here, where the City seeks to modify the summary judgment. The City's failure to file a notice of
cross-appeal prevents appellate review of its claim of error. See § 809.10(2)(b), Stats.
By the Court.—Judgment
affirmed. No costs on appeal.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] This is an expedited appeal under Rule 809.17, Stats. We construe the order of dismissal as a final judgment.
[2]
Section 895.045, Stats.,
provides:
Contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.