Megal v. VISITOR & CONVENTION BUREAU

• Decision Date: 02 July 2004
• Docket Number: No. 02-2932.,02-2932.
• Citation: 2004 WI 98,274 Wis.2d 162,682 N.W.2d 857
• Court: Wisconsin Supreme Court
• Parties: Nancy MEGAL, Plaintiff-Appellant-Petitioner, 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.

274 Wis.2d 162

2004 WI 98

682 N.W.2d 857

Nancy MEGAL, Plaintiff-Appellant-Petitioner, 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.

Supreme Court of Wisconsin.

Oral argument April 1, 2004.

Decided July 2, 2004.

For the plaintiff-appellant-petitioner there were briefs by Jolene D. Schneider, John C. Peterson and Peterson, Berk & Cross, S.C., Appleton, and oral argument by Jolene D. Schneider.

For the defendant-respondent Green Bay Area Visitor & Convention Bureau, Inc., there was a brief by William J. Ewald and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and oral argument by William J. Ewald.

¶ 1. PATIENCE D. ROGGENSACK, J.

Nancy Megal requests that we review a published court of appeals decision that affirmed the order of the circuit court for Brown County, William M. Atkinson, presiding, granting the defendant's motion for summary judgment, thereby dismissing Megal's safe-place violation and negligence claims.

¶ 2. Because we conclude that Megal's safe-place claim was properly dismissed, we affirm that part of the court of appeals decision. However, because we also conclude that the court of appeals erred when it affirmed the dismissal of Megal's negligence claim, we reverse that part of the court of appeals decision and remand for further proceedings.

I. BACKGROUND

¶ 3. The background facts are undisputed. On February 6, 1998, Nancy Megal accompanied her seven-year-old granddaughter, her granddaughter's friend and the two girls' mothers to an ice show at the Brown County Veterans Memorial Arena (Arena). The Arena has three floors totaling nearly 61,000 square feet and, for an ice show, seats a maximum of 5,248 patrons. The night Megal was there for the "Pocahontas on Ice" show, the Arena had sold 4,220 seats, and many of the patrons were children. Megal and her group were seated on the upper level of the Arena. At the end of the show, Megal, along with the rest of the audience seated near her, descended a stairway to exit. The stairway was crowded, and Megal said she held onto the stairway handrail; however, she could not see the stair in front of her. As she neared the bottom step, Megal slipped and fell when she stepped on a ketchup-covered french fry. Megal did not see the french fry before she slipped on it; she did not know how it got there or how long it had been there. As a result of the fall, Megal fractured her left ankle and suffered permanent injury. Aside from the french fry on the stair, there were no other spilled food items on the stairs, nor any other noticeable litter, trash or other debris cluttering the Arena.

¶ 4. Patrons attending events at the Arena are not allowed to bring in food or drink from the outside; however, concessions are available for purchase inside the Arena, but only on the lower east concourse beginning an hour before a show and ending approximately fifteen to thirty minutes before the conclusion of a show. Patrons may carry these concessions to all areas of the Arena without restriction.

¶ 5. At evening ice shows, including the one Megal attended, two workers are responsible for performing janitorial services. They are not required to abide by formal written procedures. Instead, one of the janitors generally would clean the lower east concourse food area after intermissions, and either janitor would clean up a spill or mess if he or she saw one or was told about one. Usually, the janitors relied on others to tell them of spills.

¶ 6. The Arena is owned by Brown County and leased to the Green Bay Area Visitors & Convention Bureau, Inc. (Bureau). The Bureau had an agreement with Promotion Management, Inc. (PMI) whereby PMI would provide concessions in the Arena, and the personnel necessary for the day-to-day operation of the Arena.

¶ 7. Megal filed a complaint on February 5, 2001, and, once the identity of all parties became known, she filed an amended complaint on April 26, 2001, naming, among others, the Bureau and its insurer, Valley Forge Insurance Company; PMI and its insurer, Valley Forge Insurance Company; and Brown County and its insurer, Wisconsin Municipal Mutual Insurance Company, alleging negligence and a violation of Wisconsin's safe-place statute. See Wis. Stat. § 101.11 (2001-02).¹ The circuit court granted partial summary judgment for the Bureau, releasing it from liability for the statutory safe-place claim, but not from the negligence claim. Both the Bureau and Megal moved for reconsideration and the circuit court granted the Bureau's motion, thereby dismissing the negligence claim as well. Megal appealed. The court of appeals affirmed and we accepted Megal's petition for review.

II. DISCUSSION

A. Standard of Review

¶ 8. We review summary judgments de novo, using the same method as the circuit court. Alvarado v. Sersch, 2003 WI 55, ¶ 10, 262 Wis.2d 74, 662 N.W.2d 350. Summary judgment can be granted only if there are no disputes of material fact and one party's claim is entitled to judgment, as a matter of law. Id.

B. Safe-Place Violation Claim

1. Safe-Place law

¶ 9. According to Wis. Stat. § 101.11, every employer and owner of a public building is to provide a place that is safe for employees and for frequenters of that place, and "[e]very employer and every owner of a place of employment or a public building ... shall so construct, repair or maintain such place of employment or public building as to render the same safe." Section 101.11(1). This duty has a higher standard of care than that imposed by common-law negligence. Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 26, 284 N.W.2d 692 (Ct.App.1979),aff'd,100 Wis.2d 120, 301 N.W.2d 201 (1981). However, the safe-place statute addresses unsafe conditions, not negligent acts. Gross v. Denow, 61 Wis.2d 40, 47, 212 N.W.2d 2 (1973). In addition, the law does not require an employer or an owner of a public building to be insurers of frequenters of the premises. Strack v. Great Atl. & Pac. Tea Co., 35 Wis.2d 51, 54, 150 N.W.2d 361 (1967).

¶ 10. Moreover, "safe" is a relative term. Gross, 61 Wis.2d at 46, 212 N.W.2d 2. "Safe" does not mean completely free of any hazards. See id. What constitutes a safe place "depends on the facts and conditions present, and the use to which the place `was likely to be put.'" Id. at 47, 212 N.W.2d 2 (quoting Gould v. Allstar Ins. Co., 59 Wis.2d 355, 362, 208 N.W.2d 388 (1973)). Just because a place could be made more safe, it does not necessarily follow that an employer or owner has breached the duty of care established by Wis. Stat. § 101.11(1). See Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis.2d 321, 327, 227 N.W.2d 444 (1975)

. Rather, the duty set forth by the statute requires an employer or owner to make the place "as safe as the nature of the premises reasonably permits." Strack, 35 Wis.2d at 54,

150 N.W.2d 361. The "nature of the business" and the "manner in which [business] is conducted" are factors to be considered in assessing whether the premises are safe, within the meaning of § 101.11(1). See Gerdmann v. United States Fire Ins. Co., 119 Wis.2d 367, 372, 350 N.W.2d 730 (Ct.App.1984).

¶ 11. In order for an employer or owner to be subject to the standard of care established by Wis. Stat. § 101.11(1) for any unsafe condition of the premises, the employer or owner must have notice that an unsafe condition exists. This notice can be actual notice or constructive notice. Strack, 35 Wis.2d at 54-55, 150 N.W.2d 361; Kaufman v. State Street Ltd. P'ship, 187 Wis.2d 54, 59, 522 N.W.2d 249 (Ct.App.1994). Constructive notice has been explained as:

neither notice nor knowledge but a shorthand expression, "the mere trademark of a fiction." In order to promote sound policy, we attribute constructive notice of a fact to a person and treat his legal rights and interests as if he had actual notice or knowledge although in fact he did not.

Strack, 35 Wis.2d at 54-55, 150 N.W.2d 361 (citations omitted). See May v. Skelley Oil Co., 83 Wis.2d 30, 36, 264 N.W.2d 574 (1978)

.

¶ 12. In the context of an alleged safe-place violation, the general rule is that an employer or owner is deemed to have constructive notice of a defect or unsafe condition when that defect or condition has existed a long enough time for a reasonably vigilant owner to discover and repair it. May, 83 Wis.2d at 36, 264 N.W.2d 574; Strack, 35 Wis.2d at 55, 150 N.W.2d 361; Kaufman, 187 Wis.2d at 59, 522 N.W.2d 249. Ordinarily, constructive notice requires evidence as to the length of time that the condition existed. Kaufman, 187 Wis.2d at 59, 522 N.W.2d 249.

¶ 13. The length of time required for the existence of a defect or unsafe condition that is sufficient to constitute constructive notice depends on the surrounding facts and circumstances, including the nature of the business and the nature of the defect. May, 83 Wis.2d at 37, 264 N.W.2d 574; Gerdmann, 119 Wis.2d at 371, 350 N.W.2d 730; Dykstra, 92 Wis.2d at 26, 284 N.W.2d 692. We have carved out a limited exception to the general rule that temporal evidence is required before constructive notice can arise. We have explained:

[W]hen an unsafe condition, although temporary or transitory, arises out of the course of conduct of the owner or operator of a premises or may reasonably be expected from his method of operation, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice.

Strack, 35 Wis.2d at 55, 150 N.W.2d 361. See Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 683-84, 180 N.W.2d 525 (1970)

.

¶ 14. In Strack, the plaintiff was shopping in defendant's grocery store in the produce area where there were tables displaying fruit for sale in the center of a wide aisle. The plaintiff slipped on a small Italian prune that was on the floor and injured her back and leg. Str...