Cartter v. Marcus Hotels, Inc.

• Decision Date: 17 July 2012
• Docket Number: No. 2011AP1167.,2011AP1167.
• Parties: Paul CARTTER, Plaintiff–Appellant, Department of Veteran Affairs, Involuntary–Plaintiff, v. MARCUS HOTELS, INC. and Milwaukee City Center, LLC, d/b/a Hilton Milwaukee City Center, Defendants–Respondents, Zurich American Insurance Company, Defendant.
• Court: Wisconsin Court of Appeals

344 Wis.2d 123

820 N.W.2d 155

2012 WI App 97

Paul CARTTER, Plaintiff–Appellant,

Department of Veteran Affairs, Involuntary–Plaintiff,

v.MARCUS HOTELS, INC. and Milwaukee City Center, LLC, d/b/a Hilton Milwaukee City Center, Defendants–Respondents,Zurich American Insurance Company, Defendant.

No. 2011AP1167.

Court of Appeals of Wisconsin.

July 17, 2012.

OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Milwaukee County: Timothy G. Dugan, Judge. Affirmed.

Before CURLEY, P.J., FINE and BRENNAN, JJ.¶ 1BRENNAN, J.

Paul Cartter appeals from the trial court's judgment, entered following entry of an order partially granting summary judgment and a bench trial, which together dismissed Cartter's claims against Marcus Hotels, Inc. (“Marcus”), Milwaukee City Center, LLC (d/b/a Hilton Milwaukee City Center) (“the Hotel”), and Zurich American Insurance Company. Cartter argues that: (1) the trial court failed to make all reasonable inferences in his favor on summary judgment and, as a result, erroneously dismissed his safe-place claim; and (2) the trial court applied the wrong standard of care to his negligence claim at trial and erroneously dismissed that claim as well. For the reasons set forth below, we affirm the trial court.

Background¹

¶ 2 On June 18 through June 23, 2007, the Paralyzed Veterans of America held its annual National Veterans Wheelchair Games in Milwaukee. The Hotel knew that a large contingent of paralyzed veterans would be staying at the Hotel. In anticipation of their arrival, the Hotel circulated to its staff a document entitled “Pre–Convention Release.” Jill Schneider, the Hotel's convention service manager, testified at her deposition that she authored the Pre–Convention Release and that it was intended “to put the different department heads on notice that there was going to be a high number of disabled veterans staying at the hotel” and to help the Hotel staff “service the guests properly.” Among other things, the Pre–Convention Release informed the Hotel staff that “[the Paralyzed Veterans] Group will have Durable Medical Equipment (shower chairs, slide boards, toilet seats[,] etc.) brought in.... Guests may call down requesting equipment. Please let guests know that there is a Durable Medical Equipment room on-site and they can go down and sign out equipment.” Furthermore, Policy 220 in the operations manual distributed by Marcus, the company who operated the Hotel, directed staff at the Hotel to “[b]e very sensitive to the needs of an individual with a disability.”

¶ 3 On June 18, 2007, Cartter, who lives in Arizona, came to Milwaukee to take part in the National Veterans Wheelchair Games. Cartter was in a helicopter crash while serving in the United States Air Force. As a result, he suffered a spinal cord injury, which left him with permanent paralysis of and significant loss of sensation in his right leg. He has limited ability to walk, but when he does so, he has a pronounced limp and a dropped foot. While in Milwaukee, Cartter stayed at the Hotel in room 625. On June 22, 2007, his fifth day at the Hotel, Cartter slipped and fell in the bathtub while taking a shower. He fell through the shower curtain onto the bathroom floor suffering injury.²

¶ 4 Shortly after his fall, Cartter contacted the front desk of the Hotel. Yves Behrens, the Hotel's assistant general manager, went to speak with Cartter in his room. Behrens testified at his deposition that after Cartter's fall, room 625 was cleaned and Cartter was given a rubber bathmat. Behrens also testified that there was no bathmat in Cartter's room prior to his fall and that a bathtub without a bathmat is less safe than a bathtub that has a bathmat. However, Behrens believed that “the bathtub [was] safe” at the time Cartter fell.

¶ 5 Cartter testified at his deposition that he had showered in room 625 several times prior to his fall. He had no problems using the shower before his fall and had not previously noticed that the bathtub was slippery. Annie Fang, the director of housekeeping, and Teresa Cardine, the housekeeper assigned to clean room 625, both stated by affidavit that the bathtub had a slip-resistant bottom. Cartter testified at his deposition that he did not recall whether the bathtub had a smooth or textured bottom.

¶ 6 Stephen and Juana Jelen occupied room 625 from June 6 through June 11, 2007, a few days prior to Cartter's stay. Because Juana had physical problems with her hip, Stephen and Juana checked the bathtub's bottom prior to use to ensure that it was not unusually slippery and found no problems. ³

¶ 7 Michael and Bernadette Stewart were guests in room 625 immediately prior to Cartter's stay, from June 11 through June 13, 2007. The Stewarts did not note any problems with the bathtub and did not find that it was unusually slippery.

¶ 8 In the three and one-half months prior to Cartter's stay at the Hotel, three Hotel guests reported falling in Hotel bathtubs in rooms other than room 625. One of the guests reported to the Hotel that she “slipped on the rubber bathmat lo[ ]sing her balance.” Another guest reported that he slipped in the bathtub as he was standing up after turning off the water. And the third guest, on whom the Hotel staff smelled alcohol, reported slipping “because there was extra water in the tub from the drain not working properly.”

¶ 9 On May 18, 2007, Hilton generated a Property Improvement Report.⁴ The Property Improvement Report listed the renovations that the Hotel was required to institute to be relicensed with the Hilton brand name. Requirement 102 stated: “Bathrooms—Replace all tubs. King guestrooms must have a shower in lieu of bathtub/shower. Pre-fabricated shower stalls are not allowed.” The reason for replacement was listed as “condition.” (Capitalization omitted.)

¶ 10 In December 2008, Cartter filed a complaint against the defendants, ⁵ which he later amended. Both his original complaint and the amended complaint alleged negligence, violation of Wisconsin's safe-place statute, and violation of the Americans with Disabilities Act (“ADA”). Cartter voluntarily dismissed his ADA claim.

¶ 11 In January 2009, shortly after the original complaint was filed, in response to the Property Improvement Report, the Hotel relined 555 bathtubs, including the bathtub in room 625. Cartter had not yet inspected the bathtub in room 625 for litigation purposes.

¶ 12 The defendants filed a motion for summary judgment to which Cartter responded. Following a hearing on the motion, the trial court dismissed Cartter's safe-place claim on the grounds that Cartter had not produced any evidence of an unsafe condition or evidence that the Hotel had notice of an unsafe condition. However, the trial court found questions of fact existed with respect to Cartter's negligence claim, and that claim proceeded to trial. Following a bench trial, the court dismissed Cartter's negligence claim. The court concluded that there was no evidence that the bathtub was defective, and consequently, no evidence that the Hotel breached its ordinary duty of care. Furthermore, the trial court concluded that there was no evidence demonstrating that the Hotel voluntarily took on additional duties in anticipation of the arrival of the Paralyzed Veterans of America. Judgment was entered accordingly and Cartter appeals.

¶ 13 Additional facts are included in the discussion as necessary.

Discussion

I. The trial court properly dismissed Cartter's safe-place claim on summary judgment.

¶ 14 Cartter first argues that the trial court erred in dismissing his safe-place claim on summary judgment because the trial court allegedly did not make all reasonable inferences in his favor. He contends that if the trial court had properly considered the facts in the light most favorable to him, as the court was required to do on summary judgment, it would have found genuine issues of material fact existed and permitted Cartter's safe-place claim to proceed to trial. Furthermore, he contends that the trial court erred in failing to “assume” that the bathtub was unsafe on summary judgment as a sanction against the defendants for relining the bathtub before Cartter was able to inspect it for purposes of litigation. We disagree.

A. Cartter set forth no evidence on summary judgment from which it is reasonable to infer that the slip-resistant bottom in the room 625 bathtub was worn and unsafe.

¶ 15 Wisconsin's safe-place statute imposes a burden on an owner of a public building to “construct, repair or maintain such place ... as to render the same safe.” Wis. Stat. § 101.11(1) (2009–10).⁶ The statute imposes a higher standard of care than is imposed by common-law negligence. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 9, 274 Wis.2d 162, 682 N.W.2d 857. “However, the safe-place statute addresses unsafe conditions, not negligent acts.” Id.

¶ 16 The word “safe” as used in the safe-place statute “does not mean completely free of any hazards.” Id., ¶ 10. The statute does not guarantee a plaintiff's safety. DeMarco v. Braund, 30 Wis.2d 675, 680, 142 N.W.2d 165 (1966). Owners do not breach their safe-place duty simply because their property could have been made safer. Megal, 274 Wis.2d 162, ¶ 10, 682 N.W.2d 857. “Rather, the duty set forth by the statute requires an ... owner to make the place ‘as safe as the nature of the premises reasonably permits.’ ” Id. (citation omitted).

¶ 17 To succeed in a claim under the safe-place statute, a plaintiff bears the burden of showing that (1) there was an unsafe condition; (2) the unsafe condition caused the plaintiff's injury; ⁷ and (3) the owner of the public building had either actual or constructive notice of the unsafe condition before the plaintiff's injury. Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶ 89, 262 Wis.2d 539, 664 N.W.2d 545. A plaintiff must prove all three elements to recover under the statute. Id.

¶ 18 The trial court considered four facts in evidence that Cartter...