Chartier v. Benson

• Decision Date: 22 January 2015
• Docket Number: No. 2013AP2238.,2013AP2238.
• Citation: 864 N.W.2d 120 (Table),360 Wis.2d 490
• Parties: James CHARTIER and Debora Chartier, Plaintiffs–Appellants, Roundy's Supermarkets, Inc. and Roundy's Supermarkets, Inc. Welfare Benefit Plan, Involuntary–Plaintiffs, v. Brian D. BENSON, Barbara A. Benson, Benson Management, Inc., Benson Properties, Benson Properties I, LLC a/k/a Benson Properties 2, LLC, State Farm Fire and Casualty Company, Howard J. Davis and Davis Construction, Defendants–Respondents, Roundy's Supermarkets, Inc. Employee Benefit Plan by its Plan Manager Humana Insurance, Defendant.
• Court: Wisconsin Court of Appeals

360 Wis.2d 490

864 N.W.2d 120 (Table)

James CHARTIER and Debora Chartier, Plaintiffs–AppellantsRoundy's Supermarkets, Inc. and Roundy's Supermarkets, Inc. Welfare Benefit Plan, Involuntary–Plaintiffs

v. Brian D. BENSON, Barbara A. Benson, Benson Management, Inc., Benson Properties, Benson Properties I, LLC a/k/a Benson Properties 2, LLC, State Farm Fire and Casualty Company, Howard J. Davis and Davis Construction, Defendants–RespondentsRoundy's Supermarkets, Inc. Employee Benefit Plan by its Plan Manager Humana Insurance, Defendant.

No. 2013AP2238.

Court of Appeals of Wisconsin.

Jan. 22, 2015.

Opinion

¶ 1 BLANCHARD, P.J.

This tort case resulted from injuries that James Chartier suffered when he allegedly tripped over a protrusion or elevation differential on a concrete pad. The concrete pad was located next to a building owned by Brian and Barbara Benson, and straddled property owned by the Bensons and property owned by the City of La Crosse. The pad was the foundation that remained after the Bensons hired and directed a construction contractor, Howard Davis, to remove an enclosure that housed an automated teller machine on the side of the Bensons' building. Davis removed the ATM enclosure approximately six months before Chartier's fall.

¶ 2 Chartier filed a complaint against the Bensons and Davis¹ alleging negligence in failing to properly inspect, repair, and maintain the concrete pad, and, based on the same factual allegations, a violation of the safe place statute, Wis. Stat. § 101.11 (2011–12).² The circuit court granted summary judgment in favor of the Bensons and Davis, dismissing Chartier's complaint.

¶ 3 On appeal, Chartier argues that the circuit court erred in granting summary judgment in favor of the Bensons because the court failed to reach the following four conclusions: (1) it was a factual question for the jury to resolve whether Chartier's alleged trip occurred on property that was then owned by the city, or instead on property owned by the Bensons; (2) the Bensons may be liable under the safe place statute because the location of the alleged trip was either a “public building” or a “place of employment”; (3) as a matter of law, Chartier's negligence did not exceed that of the Bensons in causing the accident; and (4) even if the location of the alleged trip was on city property, the Bensons could be negligent if they failed to exercise reasonable care in removing the ATM enclosure and in addressing the safety to pedestrians of the foundation that remained.

¶ 4 We agree with Chartier that the circuit court erred in deciding a disputed factual issue when it found that there was no genuine issue on the question of whether the spot where Chartier claims to have tripped was on city property. We also agree with Chartier that the Bensons are not entitled to judgment as a matter of law on the ground that they have no liability under the safe place statute, because we conclude that the portion of the concrete pad that was owned by the Bensons was a “place of employment” and because we also conclude that the question of whether the city-owned portion was a “place of employment” would be for the jury to decide. We also agree with Chartier that (1) the Bensons fail to demonstrate that this is the exceptional case involving uncontroverted evidence that one party is substantially more negligent than the other as a matter of law, and (2) the Bensons could have been negligent even if Chartier tripped on city property. Accordingly, we reverse the circuit court on those issues and remand for further proceedings.

¶ 5 As to the claim against Davis, Chartier argues that we should reverse the circuit court's grant of summary judgment “[d]ue to the complete lack of any record or basis upon which to base the judgment.” We conclude that Chartier's argument is wholly undeveloped. Accordingly, we affirm this portion of the circuit court's decision.

BACKGROUND

¶ 6 The following background facts are not disputed by the parties. The Bensons own a two-story building on West Avenue North in La Crosse. There is a laundromat on the street level of the building. The second level consists of apartment units. The focus of this case is a concrete pad that, at the time of the accident, occupied a small, open air area adjoining the west side of the building, near the bottom of a stairway that runs between the first and second floors. Given the nature of the arguments made on appeal, we now describe in some detail the physical layout at the time of the accident.

¶ 7 Descending the stairway on the west end of the building, one would be heading south. The west side of the stairway was the inside of the west wall of the building. The stairway led down to an outdoor concrete walkway. At the bottom of the stairway, one could not turn left on the walkway, but had to turn right, to the west. A low retaining wall was directly across the walkway from the bottom of the stairway. Thus, a person reaching the bottom of the stairway would ordinarily turn right, and proceed on the walkway, with the retaining wall on the left. Once past the west wall of the stairway, the area at issue in this appeal was on the right, as described in more detail immediately below. After taking only a few steps, a person following the walkway from the bottom of the stairway met a public, concrete sidewalk that ran north-south, parallel to the west side of the building.

¶ 8 Prior to November 2007, a small enclosure housing an ATM machine was joined to or at least flush with the west wall of the building, just east of the public sidewalk. Thus, the enclosure was immediately to the north of a person using the walkway to enter or leave the building. But as we now explain, the enclosure was removed before the accident, leaving the concrete pad at issue, between the west wall of the stairway and the public sidewalk.

¶ 9 In August 2007, as part of a project to widen West Avenue North, the city bought a portion of the Bensons' property located between the west wall of the building and the public sidewalk. As part of the purchase agreement, the Bensons agreed to remove the ATM enclosure, which straddled the new line between the property the city was acquiring and the property the Bensons would retain. The city acquired the west portion of the land on which the enclosure sat and the Bensons retained the east portion, which adjoined the west wall of the building.

¶ 10 The Bensons hired Howard Davis Construction Company, owned by Howard Davis, to remove the ATM enclosure. Davis initially quoted the Bensons a cost of $4,400 for tasks that included removal of the ATM building, removal of the foundation, and re-pouring concrete in this area. However, the Bensons paid Davis $1,800, for a reduced scope of work. This involved removing the ATM enclosure, but without replacing the foundation on which the enclosure sat, because, according to testimony by Brian Benson, “there was no major concrete work to be done” after the enclosure was removed, and in addition the city planned to replace the public sidewalk in that area in June 2008. Under the more limited scope contract, Davis removed the ATM enclosure in November 2007, but did not replace the foundation.

¶ 11 The accident occurred in May 2008, as Chartier helped his son carry a desk out of a second-floor apartment. According to Chartier, the desk was approximately three feet long, and “pretty light.” Chartier backed down the stairway and his son faced forward, each carrying one end of the desk. After reaching the bottom of the stairway, Chartier testified that he continued walking backwards in a “semicircle” fashion, so that the men effectively curled around the west wall of the building. This path took them over the concrete pad next to the west wall of the building.

¶ 12 Chartier testified that he tripped on something, fell, and was injured. A reasonable inference from Chartier's testimony is that one of his heels caught on either (1) a portion of slightly raised concrete forming a lip of the pad, perhaps at the junction of the walkway and the concrete pad, or (2) a hard nub of metal (a “piece of bolt”) that was “sticking out of the cement pad.”

¶ 13 Davis testified that, after removing the ATM enclosure, he had ground down all of the bolts remaining on the concrete pad. However, photos from the day of the accident or shortly thereafter, submitted on summary judgment, appear to illustrate at least one piece of metal not flush with the concrete pad.

¶ 14 In his complaint, Chartier alleged negligence and violation of the safe place statute. The complaint alleged that the defendants

were negligent in the performance of the demolition project, and in creating an unguarded hazard consisting of leaving the foundation of the ATM building above the height of the surrounding surface of the sidewalk, and leaving a bolt or bolts as well as other materials in the ground sticking above the surrounding surface of the sidewalk, and in failing to inspect, maintain and keep the property in good repair and free of obstructions and hazards, and in guarding the hazards and obstructions, and in other matters.

The complaint also alleged, based on essentially the same facts, that the Bensons had failed to “furnish a safe place” in violation of the safe place statute.

¶ 15 In moving for summary judgment, the Bensons argued, in pertinent part, that: Chartier's fall did not occur on the Bensons' property, but instead on city property; the safe place statute does not apply to the spot where Chartier allegedly tripped; and the undisputed facts show that Chartier was negligent and that, as a matter of law, his negligence exceeded any negligence of the Bensons.

¶ 16 The circuit court granted summary judgment in favor of the Bensons on three grounds. First, the court determined that it was “logically impossible that Mr. Chartier fell on the Bensons' property,” as opposed to the city's property, due to the size of the desk and the relative locations and configurations of the...