Dee v. Market Square Housing & Midwest Family Mutual Ins. Co., 01-3302

• Citation: 647 N.W.2d 469,256 Wis. 2d 696
• Decision Date: 02 May 2002
• Docket Number: 01-3302
• Parties: This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5. Emily Dee, Plaintiff-Appellant, v. Market Square Housing LLC and Midwest Family Mutual Insurance Company, Defendants-Respondents.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV COURT OF APPEALS
• Court: Court of Appeals of Wisconsin

This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.

Emily Dee, Plaintiff-Appellant v Market Square Housing LLC and Midwest Family Mutual Insurance Company, Defendants-Respondents

No. 01-3302-FT

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

COURT OF APPEALS DECISION DATED AND FILED May 2, 2002

APPEAL from a judgment of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Reversed and cause remanded.

Appeal Cir. Ct. No. 00-CV-244

Cornelia G. Clark Clerk of Court of Appeals

Before Dykman, Roggensack and Deininger, JJ.

¶1. PER CURIAM.

1Emily Dee appeals from a judgment dismissing her personal injury claim against Market Square Housing, LLC, and its insurer. She sued after being injured in a parking ramp under construction. On summary judgment the trial court held Dee more negligent than Market Square, the ramp's owner, as a matter of law. The issue on appeal is whether the evidence submitted on summary judgment allowed competing reasonable inferences concerning the apportionment of negligence. We conclude that it does, and therefore reverse.

¶2. The material facts are not in dispute. After an evening of drinking, Dee and a friend, Rose Dubey, were walking in downtown La Crosse toward Dee's home. A police report describes what happened next:

[Dee and Dubey] thought they were being followed by two unknown male subjects.

To get away from the two unknown male subjects Ms Dee and Ms Dubey walk south on 4th St., then East on Jay St., and then entered the ground level hallway of the Market Square parking ramp from the north side of the building. Ms Dee and Ms Dubey walked south through the ramp (Ms Dubey was ahead of Ms Dee). Ms Dee goes on to explain that as they reached the south end of the hallway just before exiting on to King St., there were some 4ftx8ft (possibly 4x10) sheets of sheetrock propped up against the left wall. Ms Dee does not know how, but the three sheets of sheetrock fell hitting her in the left knee....

It should be noted that the ramp is not open for business yet however, there are no signs on either end of the hallway advising people they can not at least walk through nor are the entrances of the hallways blocked. The [vehicular] entrances and exits are blocked off for vehicles. The ramp area is very well lighted, and there was no security personnel seen this date....

Dee was aware that the ramp was not open for parking. She conceded that either she or Dubey must have hit the building material and caused it to fall while walking briskly or jogging through the hallway. When Dee went to the hospital after the accident her blood alcohol content registered at .144 percent.

¶3. On these undisputed facts Market Square contended that it was entitled to judgment because no reasonable trier of fact could find its causal negligence greater than Dee's. Dee contends, however, that a trier or fact could find Market Square more casually negligent for leaving the construction materials in a hallway open to public passage and without barricades or warning signs.

¶4. Our review of a summary judgment motion is a question of law that we consider de novo. Hofflander v. St. Catherine's Hosp. Inc., 2001 WI App 204, ¶11, 247 Wis.2d 636, 635 N.W.2d 13. Summary judgment shall be rendered when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. §802.08(2). We will reverse a summary judgment if a party's submissions reveal disputed material facts or undisputed material facts from which reasonable competing inferences may be drawn. See Hofflander, 2001 WI App 204, at ¶11.

¶5. Market Square's alleged negligence is subject to evaluation under the Wisconsin safe place statute, Wis. Stat. §101.11(1). That section requires owners of public buildings, such as Market Square's parking ramp, to maintain them as safely as their nature reasonably permits, for the protection of their frequenters. McGuire v. Stein's Gift and Garden Center, Inc., 178 Wis.2d 379, 398, 504 N.W.2d 385 (Ct. App. 1993). This standard imposes a more stringent duty than does the ordinary care standard. Topp v. Continental Ins. Co., 83 Wis.2d 780, 788, 266 N.W.2d 397 (1978). However, comparative negligence remains...