Correa v. Woodman's Food Mkt.
| Decision Date | 19 May 2020 |
| Docket Number | No. 2018AP1165,2018AP1165 |
| Citation | 2020 WI 43,943 N.W.2d 535,391 Wis.2d 651 |
| Parties | Jose M. CORREA, Plaintiff-Respondent-Petitioner, Kitty Rhoades Secretary of State of Wisconsin Department of Health Services, Involuntary-Plaintiff-Respondent, v. WOODMAN'S FOOD MARKET, Defendant-Appellant, United Healthcare of Wisconsin, Inc., Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner, there were briefs filed by Eric M. Knobloch, Michael A. Lococo, and Gruber Law Offices, LLC, Milwaukee. There was an oral argument by Eric M. Knobloch.
For the defendant-appellant, there was a brief filed by Lisa M. Lawless, Eric M. Meier, and Husch Blackwell LLP, Milwaukee; with whom on the brief was Duffy Dillon and Duffy Dillon Law Office LLC, Janesville. There was an oral argument by Lisa M. Lawless.
An amicus curiae brief was filed on behalf of Wisconsin Association for Justice by Michael J. Cerjak, Rachel E. Potter, and Cannon & Dunphy, S.C., Brookfield.
¶1 Mr. Jose Correa slipped on an unknown substance at a Woodman's Food Market ("Woodman's"), causing him to fall and sustain injuries. He says the substance caused an unsafe condition within the meaning of Wis. Stat. § 101.11 (2013-14),1 and that it was there long enough to give Woodman's constructive notice of its existence. To prove how long the substance was on the floor, he introduced a security camera video showing the part of the store where he slipped and fell. Everyone agrees there is no evidence to prove when the substance was deposited on the floor and that it is not possible to actually see the substance in the video.
¶2 In this case we decide whether ascertaining the point in time at which an unsafe condition commenced is a sine qua non of constructive notice. We also decide whether the security camera video may support an inference that the substance was on the floor long enough to give Woodman's constructive notice of its existence.2 We conclude that a plaintiff need not prove the exact moment the unsafe condition commenced, so long as the evidence is sufficient to prove it existed long enough to give the defendant constructive notice of its presence. We also conclude that a jury may infer from the security camera video in this case that the unsafe condition existed long enough to give the defendant constructive notice of its presence.
¶3 While shopping at Woodman's, Mr. Correa slipped on an unknown substance in the dairy aisle. After collecting himself from the fall, he signaled a Woodman's employee who promptly cleaned the spot where he had slipped. The employee also handed Mr. Correa a paper towel with which to wipe the substance off his shoe. Woodman's security camera captured all of these events.
¶4 Unfortunately, Mr. Correa suffered an injury to his wrist during the fall. His lawsuit against Woodman's alleged two causes of action: (1) negligence;3 and (2) a violation of Wisconsin's "safe place" statute ( Wis. Stat. § 101.11 ). After discovery closed, Woodman's moved for summary judgment arguing that Mr. Correa couldn't show that Woodman's knew the dairy product was on the floor and so couldn't prove an essential element of his claim. The circuit court denied the motion because it concluded there were genuine issues of material fact.
¶5 At trial, Mr. Correa testified that he did not see the substance on the floor until after he slipped on it, and to this day he doesn't know what it was. The jurors watched 10 minutes of video from a security camera, which commenced several minutes before the accident and ended several minutes after. The video shows numerous customers walking near (and even over) the spot where Mr. Correa slipped; a Woodman's employee walking past the spot twice; Mr. Correa slipping and falling; Mr. Correa getting the attention of a Woodman's employee and showing him the location of the substance on which he slipped; the employee wiping the substance off the floor; and it shows that employee giving Mr. Correa a paper towel to wipe the substance off his shoe.4 However, nothing in the video indicates when or how the substance came to be on the floor, nor is the video resolution high enough to actually show the substance. The jury also heard a Woodman's employee testify that after Mr. Correa fell he saw two spots of some type of substance on the floor. Another employee testified that, after reviewing 90 minutes of security footage prior to Mr. Correa's accident, he could not tell when the substance came to be on the floor.
¶6 At the close of Mr. Correa's case-in-chief, Woodman's moved for a directed verdict arguing that Mr. Correa's failure to introduce evidence showing how the substance on which he slipped came to be on the floor necessarily defeats a "safe place" claim. The circuit court denied the motion, and the jury eventually found Woodman's had constructive notice of the substance on the floor and that there had been a violation of the safe place statute. Woodman's post-trial motions (including a motion for a directed verdict or judgment notwithstanding the verdict, a motion to change a verdict answer, and a motion for a new trial) were all unsuccessful. Woodman's appealed.
¶7 The court of appeals reversed, ruling that because the evidence before the jury provided "[no] indication of how long the hazard existed on Woodman's floor," the circuit court had "clearly erred in denying Woodman's motion for a directed verdict." We granted Mr. Correa's petition for review and now reverse the court of appeals.
¶8 We will not overturn a circuit court's ruling on a motion for directed verdict unless it is clearly wrong:
[W]hen the trial judge rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a given question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial judge is wrong.
Olfe v. Gordon, 93 Wis. 2d 173, 186, 286 N.W.2d 573 (1980) (quoting Trogun v. Fruchtman, 58 Wis. 2d 569, 585, 207 N.W.2d 297 (1973) (quoting Slam v. Lake Superior T. & T. Ry., 152 Wis. 426, 432, 140 N.W. 30 (1913) )).
¶9 A circuit court should grant a directed verdict "only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonable to permit unbiased and impartial minds to come to but one conclusion." Zillmer v. Miglautsch, 35 Wis. 2d 691, 698, 151 N.W.2d 741 (1967) (). "If there is any evidence to sustain a defense or a cause of action, the case must be submitted to the jury." Id. at 699 (emphasis added; citation omitted).
¶10 Mr. Correa says he suffered injury consequent upon an unsafe condition that Woodman's had allowed to exist in violation of Wisconsin's "safe place" statute, Wis. Stat. § 101.11. Woodman's, however, says it was not aware of the unsafe condition. Additionally, it says Mr. Correa produced no evidence showing it should have been aware of that condition. The circuit court disagreed, ruling that a jury could infer from Woodman's 10-minute security camera video that the unsafe condition existed long enough that Woodman's should have been aware of it. The court of appeals, on the other hand, said Mr. Correa's "evidence does not provide a basis for any reasonable inference as to how long, prior to Correa's fall, the substance was on the floor."
Correa v. Woodman's Food Market, No. 2018AP1165, unpublished slip op., ¶31, 2019 WL 2588584 (Wis. Ct. App. Jun. 25, 2019). It said any inferences the jury might have drawn from the video with respect to that question would be mere speculation. Id. The disagreement between the circuit court and the court of appeals reveals that this case hinges on the type of evidence a plaintiff must produce to demonstrate that an unsafe condition has existed long enough that a reasonably diligent defendant would discover and remedy it.
¶11 We begin our analysis with the requirements imposed by Wisconsin's "safe place" statute:
Every employer shall furnish employment which shall be safe for ... [the] frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
Wis. Stat. § 101.11. The parties agree that the safe place statute applies to Woodman's.
¶12 To make out a claim under the safe place statute, Mr. Correa must prove: "(1) there was an unsafe condition associated with [Woodman's floor]; (2) the unsafe condition caused [Mr. Correa's] injury; and (3) [Woodman's] had either actual or constructive notice of the unsafe condition before [Mr. Correa's] injury." Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶89, 262 Wis. 2d 539, 664 N.W.2d 545. Woodman's does not contest either of the first two elements; its defense addresses only whether it had notice of the unsafe condition. And because Mr. Correa does not argue Woodman's actually knew of the unsafe condition, the instant contest resolves to the narrow question of constructive notice.
¶13 An "owner is deemed to have constructive notice of a defect or unsafe condition when that defect or...
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