Fata v. School District of Horicon, No. 2006AP234 (Wis. App. 12/21/2006), 2006AP234.
| Decision Date | 21 December 2006 |
| Docket Number | No. 2006AP234.,2006AP234. |
| Parties | Sara Fata, Plaintiff-Appellant, Metalcraft of Mayville, Subrogated-Plaintiff, v. School District of Horicon and EMC Property Casualty Company, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dodge County: JAMES O. MILLER, Judge. Reversed and cause remanded.
Before Dykman, Vergeront and Deininger, JJ.
Sara Fata, a former track and field athlete at Horicon High School, appeals a judgment that dismissed her personal injury action against the Horicon School District. She claims the circuit court erred by disregarding, as a "sham affidavit," her affidavit submitted in opposition to the District's summary judgment motion. She also contends the circuit court should not have concluded that the District was immune under WIS. STAT. § 893.80(4) (2003-04)1 from liability for her injury as a matter of law. We conclude Fata's affidavit is not a "sham affidavit" and that it creates a dispute of material fact regarding whether the District is entitled to discretionary-act immunity. Accordingly, we reverse the appealed judgment and remand for further proceedings on Fata's claims.
¶ 2 Sara Fata, then a student at Horicon High School and a member of its girls' track team, injured her knee while attempting a high jump during the team's first practice of the season. As she ran toward the bar, she realized that she would not be able to complete the jump. She pushed the bar out of the way and fell or jumped into the high jump "pit," which consisted of several large foam pads or mats that rested on wooden pallets and provided a soft landing area several feet above the ground. Fata claims her leg became trapped in a gap between the foam mats, which, when she fell to one side, resulted in torn knee ligaments.2
¶ 3 Fata brought this action against the Horicon School District, alleging negligence and a violation of the Safe Place Statute, WIS. STAT. § 101.11.3 The District moved for summary judgment, asserting that it was immune from liability for Fata's injury on all claims because, at the time Fata was injured, its employees were engaged in performing discretionary acts for which immunity is afforded under Wis. Stat. § 893.80(4). The circuit court, after determining that it would disregard an affidavit from Fata as a "sham affidavit," granted the District's motion for summary judgment and dismissed Fata's claims. The court also denied Fata's motion asking it to reconsider its determination that her affidavit was a sham affidavit.
¶ 4 The case comes before us on summary judgment and our review is thus de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Before addressing whether summary judgment is appropriate on the present record, we must determine whether we should consider Fata's affidavit submitted in opposition to the District's summary judgment motion. Whether an affidavit should be disregarded as a "sham affidavit" is also a question that we answer de novo. See Yahnke v. Carson, 2000 WI 74, 236 Wis. 2d 257, ¶22, 613 N.W.2d 102.4 We conclude that Fata's affidavit is not a sham affidavit.
¶ 5 A sham affidavit is an affidavit of a party or other witness submitted in opposition to a motion for summary judgment that purports to create an issue of material fact by averring facts that directly contradict the affiant's prior deposition testimony with no reasonable explanation for the contradiction. See id., ¶¶15-18. The sham affidavit rule as adopted and explicated by the Wisconsin Supreme Court is as follows:
[F]or purposes of evaluating motions for summary judgment pursuant to WIS. STAT. § 802.08, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.
¶ 6 At her deposition, Fata was asked these questions and gave these answers:
In her affidavit submitted in opposition to the District's summary judgment motion, Fata averred that, at the time of her injury, "three sections [of high jump pads] were not bound or secured together in any fashion." She also averred that "[m]y injury would not have occurred had the three sections been bound or secured together."
¶ 7 The District contends that Fata's affidavit is a sham affidavit because her averments that the landing pads were not bound or secured together and this failure contributed to her injury contradict her deposition testimony that the lack of a single, unified cover over the three pads caused her injury. The District notes that Fata's expert stated in a report submitted with Fata's witness list that, after reviewing the depositions of Fata and her two track coaches, he concluded that the District's failure "to provide a covering pad for the high jump landing pit as per National High School Track and Field Rules ... was a proximate cause of the injury to Ms. Fata." The District further asserts that Fata did not claim the landing pads were not bound or secured together until she learned that the operative rule at the time of her injury required only that the landing pads be either covered with a common cover or attached together. The District thus maintains that its alleged failure to bind or secure the high jump landing pads together, "suddenly recalled by Fata four years after the accident and almost a year after her deposition, was properly disregarded as [a] sham." We disagree.
¶ 8 Fata did not testify at her deposition that the high jump landing pads were bound or secured together at the time of her injury. We thus conclude that her later averment that the pads were not bound or secured does not "directly contradict[]" anything in her deposition testimony. See Yahnke, 236 Wis. 2d 257, ¶23.
¶ 9 No questions were asked of Fata during her deposition regarding the binding or securing of the pads to each other. Fata testified that on her aborted jump, Her testimony thus plainly pointed to a gap or crack between the landing pads as causing or contributing to her knee injury. Fata faulted her coaches for not ensuring that the cover, which "usually" covered the landing pads and which Fata believed was required by "a rule," was in place at the time she suffered her injury. When asked whether the District "did anything else wrong that contributed to your injury," Fata again pointed to the coaches' alleged failure to verify that the cover was in place over the landing pads. When asked the same question again a few questions later, she gave the response we have quoted above, citing a possible lack of "proper training of putting the covers on the mats ... but other than that, no."
¶ 10 We conclude that Fata's averment regarding the failure to bind the landing pads together can only be characterized as a supplementation of her deposition testimony, not a contradiction of it. Had Fata testified at her deposition that the landing pads were bound together at the time of her injury, or that a lack of binding played no role in causing her injuries, we would agree with the District that her later averments to the contrary, absent an adequate explanation of the contradiction, should not be allowed to prevent summary judgment in favor of the District. As we have described, however, that is not what happened.
¶ 11 Fata's inability to come up with additional factors contributing to her injury in response to open-ended questions at her deposition does not directly contradict her later averments regarding the District's failure to bind the landing pads. She was not testifying at her deposition as an expert on the applicable rules for high jump landing areas or the standard of care pertaining to them. She simply gave an account of how she was injured, one that clearly implicated gaps or cracks between the landing pads as a contributing factor. The District was thus on notice that any failure on its part to take appropriate steps to prevent the presence of gaps or cracks from occurring between the pads might be cited as causal negligence on its part. The fact that Fata testified to only one such failure and could not name others at her deposition should not preclude her from later supplementing her response by averring another failure on the District's part that may have contributed to the gaps or cracks between the landing pads.
¶ 12 Not only does Fata's affidavit not directly contradict her deposition testimony, we also conclude that she provided an adequate explanation for belatedly citing a failure to bind the pads together as a cause of her injury. In support of her motion for reconsideration, Fata averred that, at the...
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