Tatalovich v. City of Superior

Citation904 F.2d 1135
Decision Date07 June 1990
Docket NumberNo. 89-1510,89-1510
PartiesLenore A. TATALOVICH, Plaintiff-Appellant, v. The CITY OF SUPERIOR, a municipal corporation under the laws of the State of Wisconsin, and Employers Insurance of Wausau, a Mutual Company, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

James W. Balmer, Falsani, Balmer, Berglund & Merritt, Duluth, Minn., for plaintiff-appellant.

Timothy J. Yanacheck, Straub & Schuch, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, WOOD, Jr. and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff-appellant, Lenore Tatalovich appeals from the entry of summary judgment dismissing her negligence case brought against the City of Superior, Wisconsin and Employers Insurance of Wausau resulting from an automobile accident. We affirm.

I.

On the first day of April in 1986, Lenore A. Tatalovich was injured as she was seated in a parked automobile on Main Street in the City of Superior, Wisconsin. 1 The parties to this suit agree that Main Street is no longer used for traffic and is best described as having been "terminated many years ago." When the accident occurred, there was no construction taking place on Main Street. At the time of Tatalovich's accident, in spite of the fact that Main Street had been "terminated" for traffic purposes, the City had placed neither traffic barricades nor "Road Closed" signs on the street. The parties agreed and the trial court found, for purposes of summary judgment that Tatalovich's automobile accident resulted from the absence of traffic control devices on Main Street.

On November 24, 1987, plaintiff Lenore A. Tatalovich, a citizen of the State of Minnesota, filed a complaint in the United States District Court for the Western District of Wisconsin, based upon diversity of citizenship, alleging that the injuries she suffered in the automobile accident resulted from the negligence of the City of Superior Wisconsin in the design, construction and maintenance of Main Street. 2 Some four months thereafter, the district court issued an order and set a trial date as well as deadlines for the completion of particular pre-trial discovery and motion proceedings. Accompanying the court's order were two documents, one entitled "Procedures to be Followed on Motion for Summary Judgment, U.S. District Court, Western District of Wisconsin" and the other, "Helpful Hints for Submitting Proposed Findings of Fact." The court's order included a statement that: "If a motion for summary judgment is filed, the parties are to follow this court's Procedures for the Filing of Summary Judgment Motions, a copy of which is attached." As the trial court explained in its summary judgment decision: "These procedures require that the party opposing the [summary judgment] clearly identify which of the movant's proposed factual findings the opposing party contends raise a genuine issue and explicitly propose findings of fact not stated by the movant as to which the opposing party contends there is no genuine issue." Tatalovich v. City of Superior, No. 87-C-898-C, slip op. at 2 n. 1 (W.D.Wis. February 7, 1989). These procedures also mandate that the proposed findings of fact be supported with citations to the record. The Summary Judgment Procedures include a Section V that provides:

"NOTE PARTICULARLY:

V. In deciding the motion for summary judgment:

A. The court will conclude that there is no genuine issue as to any proposed finding of fact initially proposed by the movant, except to the extent an opposing party's response asserts that a genuine issue exists; and

B. The court will conclude there is no genuine issue as to any finding of fact initially proposed in a response, except to the extent that movant's rebuttal asserts a genuine issue exists.

C. As to any finding of fact, whether initially proposed by the movant or in a response, as to which it is asserted a genuine issue exists, the court will make a determination as to the existence or non-existence of such genuine issue.

D. The court is not required to give any weight to a piece of evidence unless it is set forth in the manner described.

E. The court does not consider it is under any obligation to search the record for factual matters that might support either the grant or the denial of the motion. It is the duty of the parties to bring to the court's attention by specific reference to the record ... all factual and legal matters material to the resolution of the issues in dispute."

The "Helpful Hints for Submitting Proposed Findings of Fact" that the trial court attached likewise concluded with the following statement:

"The court is under no obligation to search the record for any facts not proposed and supported in the proposed findings of fact. Arguments that depend on facts that are not the subject of a proposed finding, requiring a search of the record, are unlikely to succeed. Arguments that depend on facts not in the record are even less likely to succeed."

The court denied the City of Superior's motion for summary judgment. Following a later telephonic scheduling conference between the parties the trial judge set a new scheduling order. That order also included the document entitled "Procedure to be Followed on Motions for Summary Judgment," that had accompanied the court's previous scheduling order.

The City of Superior again moved for summary judgment, alleging the City was immune from liability under Wisconsin law on the ground that the placement of traffic control devices is a "legislative or quasi-legislative" act subject to immunity from suit under Wis.Stat. Sec. 893.80(4). The City attached to its motion for summary judgment the proposed findings of fact required under the trial court's summary judgment procedures. Tatalovich's response to this second summary judgment motion can best be described as failing to comply with the court's summary judgment procedure as the response failed to include the required proposed findings of fact. Furthermore, the statement of facts found in Tatalovich's responsive brief failed to cite the sections of the record in support of its factual assertions. Tatalovich's brief responding to the summary judgment motion did include an answer to the City's interrogatory stating that barricades had been erected on Main Street after the date of Tatalovich's accident. 3 Tatalovich also attached to her response an affidavit of one Donald J. Anderson, a licensed professional engineer. Anderson opined that the Manual on Uniform Traffic Control Devices, governs "[t]he design, installation and operation or use of new traffic control devices placed and maintained by [Wisconsin] local authorities." 4 Thus, Anderson stated the City was required to place "a Type III barricade across Main Street east of the location of the collision." Anderson's affidavit further recited that "[a] reasonable and prudent municipality exercising due care in the circumstance of the case at hand would have placed barricades across Main Street consistent with the abandonment of its several thousand feet immediately west of the last residence--precluding access to the actual point of collision, the collision itself, and injuries sustained by Plaintiff, Lenore Tatalovich." The affidavit went on to note that: "Reasonable men could not differ on the propriety of placing a barricade on this road so as to have prevented this collision and the failure to do so is a failure of reasonable men to act out [sic] due care under the circumstances."

The district court granted the City's motion for summary judgment. Initially, the court refused to consider either the evidence that a barricade had subsequently been erected on Main Street or Tatalovich's affidavit of Donald Anderson included in her summary judgment response. The trial judge refused to consider these submissions, reasoning that the plaintiff had failed to include proposed findings of fact pursuant to the court's summary judgment procedures. The judge also concluded that Tatalovich's proffered evidence raised no issue of fact because it failed to demonstrate "that defendant agrees with the legal proposition that the [Manual on Uniform Traffic Control Devices] determines how to make" 5 the decision concerning the erection of traffic control devices and further concluded that this evidence was "not material to the legal question [of] whether the Manual dictates the decision to erect traffic control devices in the factual situation before the court." 6 The trial court's reasoning on the merits of the question of whether the City's decisions dealing with the erection of signs and barricades were subject to statutory immunity under Wis.Stat. Sec. 893.80(4) came to the conclusion that the Manual of Uniform Traffic Control Devices, that governs a municipality's decisions concerning the "design, installation, operation or use of new traffic control devices," 7 required barricades to be erected only on those streets where construction projects were ongoing and that there were no construction projects on Main Street. City of Superior v. Tatalovich, No. 87-C-898-C, slip op. at 6-7 (W.D.Wis. February 7, 1989). Furthermore, the trial court ruled that the Manual did not provide any mandatory requirements concerning the placement of warning signs on a permanently closed road. Id. at 7-8. The judge also rejected the claim that there existed "dangerous circumstances within the knowledge of the defendant [that] may give rise to a clear and absolute duty to take remedial action, regardless of statutory or regulatory requirement," because the "plaintiffs have come forward with no evidence showing that Main Street presented a grave and hidden danger of which defendants had knowledge...." Id.

II.

Tatalovich alleges that the trial court violated Rule 56 of the Federal Rules of Civil Procedure in disregarding materials she submitted in opposition to the Motion for Summary Judgment, in particular,...

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