|
COURT OF APPEALS DECISION DATED AND RELEASED MAY 21, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3036-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ELIZABETH L. MUNRO
and ROBERT A. MUNRO,
Husband and Wife,
Plaintiffs-Appellants,
JOHN HANCOCK
FINANCIAL SERVICES,
Plaintiff,
v.
MIDWEST EXPRESS
AIRLINES, INC.,
Defendant-Respondent.
APPEAL from judgment of
the circuit court for Outagamie County:
DENNIS C. LUEBKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Elizabeth and Robert Munro appeal a judgment
dismissing their personal injury action against Midwest Express Airlines, Inc.[1] The Munros contend that Midwest Express was
negligent for failing to warn Elizabeth about a defect in the airport tarmac
upon which she tripped and fell. The
trial court found that Midwest Express was not negligent and, if it was
negligent, Elizabeth was 70% causally negligent. The Munros argue that the trial court's findings are not
supported by the evidence and that the trial court failed to consider the
parties' conduct as a whole when it allocated 70% of the causal negligence to
Elizabeth. We reject these arguments
and affirm the judgment.
Elizabeth tripped and
fell as she walked across the tarmac to a waiting airplane. Robert testified at the bench trial that he
noticed a defect in the tarmac in the area where his wife fell. He testified that a slab of concrete was
raised approximately one-half inch above the adjoining slab. Robert's testimony was impeached by his
deposition testimony in which he estimated the raised edge to be between
one-quarter and one-half inch. The
trial court found that the raised edge was between one-quarter and one-half inch.
The trial court's
findings of fact will not be upset on appeal unless they are clearly
erroneous. To command reversal,
evidence in support of a contrary finding must itself constitute the great
weight and clear preponderance of the evidence. See Cogswell v. Robertshaw Controls Co., 87
Wis.2d 243, 249-50, 274 N.W.2d 647, 650 (1979). The Munros presented no evidence other than Robert's testimony in
support of their contention that the slab was raised by such an amount that one
can infer that Midwest Express knew or should have known of the defect. Even if this court were to presume that the
edge of the slab was raised one-half inch, that fact does not require this
court to overturn the judgment because it does not establish that Midwest
Express' negligence exceeded Elizabeth's negligence.
The trial court also
found that the record was devoid of any evidence concerning the length of time
the alleged defect may have existed or whether Midwest Express was aware of the
defect. The Munros argue that a sealant
placed between the two slabs indicates that a period of time had elapsed since
the defect arose and that Midwest Express had knowledge of the condition and
had taken steps to remedy it. The
record does not show who put the sealant on the crack or why it was placed
there. The tarmac is not owned, leased
or maintained by Midwest Express. The
Munros' argument that the sealant demonstrates actual or constructive knowledge
by Midwest Express is pure speculation properly rejected by the trial court. See Schwalbach v. Antigo Elec.
& Gas, Inc., 27 Wis.2d 651, 654, 135 N.W.2d 263, 265 (1965).
The Munros argue that
the trial court attributed excessive negligence to Elizabeth because it failed
to consider the fact that her neck was immobilized by a brace at the time she
fell and she was distracted when Midwest Express crew members greeted her. The trial court's finding that Elizabeth was
negligent as to lookout is adequately supported by the record. Elizabeth could see several feet in front of
her. A "good morning"
greeting does not constitute such a distraction that it relieves a person of
exercising ordinary care as to lookout.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.