Kremsreiter v. Marathon County

• Decision Date: 06 September 1995
• Docket Number: No. 95-0353,95-0353
• Citation: 541 N.W.2d 838,197 Wis.2d 118
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Lee KREMSREITER, Plaintiff-Appellant, v. MARATHON COUNTY, Defendant-Third Party Plaintiff-Respondent, WISCONSIN COUNTY MUTUAL INSURANCE COMPANY, Defendant-Third Party Plaintiff, v. STAINLESS SPECIALISTS, INC., Third Party Defendant.
• Court: Wisconsin Court of Appeals

Page 838

541 N.W.2d 838

197 Wis.2d 118

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Lee KREMSREITER, Plaintiff-Appellant, v. MARATHON COUNTY, Defendant-Third Party Plaintiff-Respondent,

WISCONSIN COUNTY MUTUAL INSURANCE COMPANY, Defendant-Third

Party Plaintiff, v. STAINLESS SPECIALISTS, INC., Third Party Defendant.

No. 95-0353.

Court of Appeals of Wisconsin.

Sept. 6, 1995.

Before CANE, P.J., LaROCQUE and MYSE, JJ.

PER CURIAM.

Lee Kremsreiter appeals a summary judgment that dismissed his negligence lawsuit against Marathon County. Kremsreiter suffered injuries while serving a sentence at the Marathon County jail. While he slept, the upper bunk of his metal bunk bed separated from the masonry wall and collapsed. The trial court correctly granted the County summary judgment if there was no dispute of material fact and the County deserved judgment as a matter of law. Powalka v. State Mut. Life Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). According to the trial court, Kremsreiter's summary judgment affidavit essentially admitted that the bunk bed apparatus was safe, claiming only that the apparatus could have been safer. Kremsreiter argues that the trial court misjudged the facts and the aptness of the doctrine of res ipsa loquitur. We agree with Kremsreiter that disputes of material fact existed. We therefore reverse the summary judgment and remand the matter for further proceedings.

Kremsreiter's summary judgment affidavit created a dispute of material fact on the bunk bed's safety and the County's negligence. Negligence is the failure to exercise ordinary care under the circumstances. Marciniak v. Lundborg, 153 Wis.2d 59, 64, 450 N.W.2d 243, 245 (1990). Himself a mason for sixteen years, Kremsreiter served as his own expert witness. He stated that he had personal experience with the masonry rivets and other fasteners. In his opinion, the method used to attach the bunk bed was unsafe in terms of several factors: (1) the number of rivets; (2) the availability of better fasteners; (3) the method used to brace and support the bed; (4) the rivets' uneven effectiveness on hollow block walls; and (5) the lack of expony or other substance to provide extra gripping strength where the rivets met the wall. These facts directly contradicted the County's expert mason's deposition, which stated that masonry rivets were a recognized method of attaching things to block walls, thereby implying that they were safe. Viewed in its entirety, Kremsreiter's affidavit stated that masonry rivets were sometimes safe for attaching things to masonry walls, but not in this instance; it thereby created an inference that the County was negligent. The trial court read...