Megal v. VISITOR & CONVENTION BUREAU

• Decision Date: 07 October 2003
• Docket Number: No. 02-2932.,02-2932.
• Citation: 267 Wis.2d 800,672 N.W.2d 105,2003 WI App 230
• Parties: Nancy MEGAL, Plaintiff-Appellant, v. GREEN BAY AREA VISITOR & CONVENTION BUREAU, INC., Valley Forge Insurance Company, and Tommy G. Thompson, Secretary of the United States Department of Health and Human Services, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

267 Wis.2d 800

2003 WI App 230

672 N.W.2d 105

Nancy MEGAL, Plaintiff-Appellant,¹ v. GREEN BAY AREA VISITOR & CONVENTION BUREAU, INC., Valley Forge Insurance Company, and Tommy G. Thompson, Secretary of the United States Department of Health and Human Services, Defendants-Respondents.

No. 02-2932.

Court of Appeals of Wisconsin.

Submitted on briefs August 5, 2003.

Decided October 7, 2003.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John C. Peterson of Peterson, Berk & Cross, S.C., Appleton.

On behalf of the defendants-respondents, the cause was submitted on the brief of William J. Ewald and Tina M. Dahle, Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and Kenneth E. Rusch, O'Hagan, Smith & Amundsen, Milwaukee.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. PETERSON, J.

Nancy Megal appeals a summary judgment dismissing her claim of a safe-place violation. Megal slipped and fell on a french fry when she was walking down a stairway at the Brown County Veterans Memorial Arena. In order to prevail, Megal must ordinarily be able to prove actual or constructive notice-that the arena knew the french fry was on the stairway or that the french fry was there long enough so that the arena should have discovered it. Megal can prove neither. Instead, she claims an exception constructive notice requirement: there is a reasonable probability the unsafe condition occurred because of the nature of the business and the manner in which it is conducted. We disagree and affirm the judgment.

BACKGROUND

¶ 2. On February 6, 1998, Megal attended an ice show at the arena. The arena has 61,000 square feet on three floors. It has the capacity to hold 5,248 people, and on this night 4,220 tickets were sold. Megal sat in the upper level. After the show ended, she was exiting by walking down a stairway. The stairs were crowded and she could not see the stairs in front of her. Megal slipped on a two-or three-inch ketchup-soaked french fry on one of the bottom stairs. She did not see the french fry before she slipped on it, nor did she know how long the french fry had been on the step. As a result of the fall, Megal fractured her left ankle.

¶ 3. The arena does not allow patrons to carry in food or drink from the outside. Patrons can purchase concessions in the lower concourse of the arena beginning one hour before the show starts until approximately fifteen minutes before the show ends. There are no restrictions on where patrons can take their concessions in the arena.

¶ 4. During ice show performances, there are usually two people performing janitorial services. Both persons share responsibilities for cleaning spills throughout the arena and for maintaining the restrooms. There are no formal, written procedures for inspection of the premises. The employees clean the bathrooms and dust mop the floor near the concession stand, but they usually only clean up spills outside of these areas when a customer or other arena employee reports them.

¶ 5. Megal sued the arena, among other parties, alleging a violation of Wisconsin's safe-place statute, WIS. STAT. § 101.11,² and common law negligence. The arena moved for summary judgment, and the trial court granted the motion. With respect to the safe-place violation, the trial court determined Megal could not prove the arena had actual or constructive notice of the dangerous condition, the french fry. With respect to the negligence claim, the trial court concluded it was "pure speculation to argue any procedure or inspection pattern or number of personnel would have been able to locate, remove, and clean up the french fry."

DISCUSSION

[1, 2]

¶ 6. When reviewing a summary judgment, we perform the same function as the trial court, and our review is independent. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). On summary judgment, a court must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. STAT. § 802.08. [3-6]

¶ 7. The safe-place statute requires a place of employment to be kept "as safe as the nature of the premises reasonably permits." Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967). Owners and operators are not liable for an unsafe condition unless they have either actual or constructive notice of the condition. Id. at 54-55. Constructive notice generally exists "`where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discover and remedy the situation.'" Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d 54, 59, 522 N.W.2d 249 (Ct. App. 1994) (citation omitted). What constitutes "a sufficient length of time" depends on the nature of the business, the nature of the defect, and the public policy involved. May v. Skelley Oil Co., 83 Wis. 2d 30, 36-37, 264 N.W.2d 574 (1978). Thus, under the general rule, constructive notice cannot be assigned where it cannot be proved how long a hazardous condition existed. Kaufman, 187 Wis. 2d at 59.

[7]

¶ 8. There is an exception to the general constructive notice rule, called the "Strack" exception. It applies only when there is "a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted . . . ." Strack, 35 Wis. 2d at 57-58. Under those circumstances, an injured person does not have to prove the dangerous condition existed for a sufficient period of time to allow an owner to correct the condition. Id. Rather, "a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice." Id. at 54-55. ¶ 9. Megal cannot prove how long the french fry was on the stair. The french fry could have been there for the entire show, part of the show, or could have been dropped by one of the exiting patrons immediately in front of Megal just seconds before she stepped on it. Megal argues this case should fall under the Strack exception to the general rule of constructive notice.

¶ 10. Under Strack, Megal claims a jury could find the arena liable for her injuries based on either the arena's failure to clean the stairs on which she fell or on the arena's method of operation. Megal argues the method of operation allowed patrons to take concessions anywhere in the arena. She claims a jury could conclude that this creates foreseeable danger because it is a reasonable assumption patrons would drop food at some time. The jury then could conclude it was incumbent on the arena to employ sufficient custodial persons and to create and follow clean-up procedures in order to ensure the premises were as safe as their nature reasonably permits.

Question of Fact or Question of Law

[8]

¶ 11. We must first decide if Megal's argument presents a question of fact, as she claims, or a question of law. If it is a question of fact, summary judgment was inappropriate and a jury must decide the issue. If it is a question of law, summary judgment is an appropriate procedure.

¶ 12. In order to resolve this issue, we must understand the distinction between questions of fact and questions of law.

The distinction between propositions of fact and conclusions of law is this: Propositions of fact are descriptive; conclusions of law are dispositive. Propositions of fact state history; conclusions of law assign legal significance to that history.

Clarence Morris, Law and Fact, 55 HARV. L. REV. 1303, 1329 (1942).

When there is but one account of what happened [however the account is determined], and the application of acceptable rules of law to that account is problematical, a question of law results.

Morris, supra, at 1314-15 (quoting Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443 (1899)).

A conclusion of law results when legal effects are assigned to events. A conclusion of law stands for more than the happening of events; it is at least a step in the legal disposal of events. If a rule of law is applied before a conclusion is reached, that conclusion is one of law.

Morris, supra, at 1328-29.³

¶ 13. Ordinarily, notice is a question of fact left to the jury to answer. Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 370-71, 350 N.W.2d 730 (Ct. App. 1984). This is because the facts are generally disputed. Did the proprietor know the french fry was on the stairs? Or how long had the french fry been lying there undiscovered? To use Morris's language, these are descriptive questions-the history, the happening of events. That is why they are questions of fact. ¶ 14. Here, however, there is no dispute about the happening of events. The only question is what legal significance to attach to those events. That is a question of law.

¶ 15. Our conclusion is bolstered by the reported cases. In Kaufmann, 187 Wis. 2d at 65, we affirmed a summary judgment dismissing a safe place claim. We concluded as a matter of law that the Strack exception did not apply to a banana in a parking lot outside a grocery store. Id. Further, in an opinion authored by Chief Justice Hallows—who also authored Strack—the supreme court upheld a directed verdict, concluding as a matter of law that Strack did not apply to a burned out light in a parking lot. Low v. Siewart, 54 Wis. 2d 251, 254, 195 N.W. 2d 451 (1972).

Strack

¶ 16. We must now determine whether Strack applies in this situation. Strack was injured when she slipped and fell on a prune that had fallen on the floor of a grocery store. Strack, 35 Wis. 2d at 54. The issue was whether the store had sufficient notice that the prune was on the floor. Id. The court held:

[I]n circumstances where there is a reasonable probability that an unsafe condition will occur because of

...