Lambrecht v. Estate of Kaczmarczyk

• Decision Date: 23 March 2001
• Docket Number: No. 99-0821.,99-0821.
• Citation: 241 Wis.2d 804,2001 WI 25,623 N.W.2d 751
• Parties: Arlyne M. LAMBRECHT, Plaintiff-Appellant, HERITAGE INSURANCE COMPANY and Medicare, Involuntary-Plaintiffs, v. ESTATE OF David D. KACZMARCZYK and American Family Insurance Group, Defendants-Respondents.
• Court: Wisconsin Supreme Court

241 Wis.2d 804

2001 WI 25

623 N.W.2d 751

Arlyne M. LAMBRECHT, Plaintiff-Appellant, HERITAGE INSURANCE COMPANY and Medicare, Involuntary-Plaintiffs, v. ESTATE OF David D. KACZMARCZYK and American Family Insurance Group, Defendants-Respondents.

No. 99-0821.

Supreme Court of Wisconsin.

Oral argument October 31, 2000.

Decided March 23, 2001.

For the plaintiff-appellant there were briefs by Eric S. Darling and Schmidt, Darling & Erwin, Milwaukee, and oral argument by Eric S. Darling.

For the defendants-respondents there was a brief by Mary Lee Ratzel, Sherry A. Knutson and Peterson, Johnson & Murray, S.C., and oral argument by Sherry A. Knutson.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case is on appeal from an order of the Circuit Court for Waukesha County, James R. Kieffer, Circuit Court Judge. The appeal is here on certification from the court of appeals. Wis. Stat. (Rule) § 809.61 (1997-98).¹ Arlyne M. Lambrecht, the plaintiff, brought this action against the Estate of David D. Kaczmarczyk and American Family Insurance Group, the defendants, alleging that David D. Kaczmarczyk, the defendant-driver, negligently operated his automobile, causing the plaintiff bodily injury. The circuit court granted the defendants' motion for summary judgment. The plaintiff appealed. We reverse the order of the circuit court.

[1]

¶ 2. The complaint states a simple cause of action based on negligence. Negligence is ordinarily an issue for the fact-finder and not for summary judgment. Summary judgment is uncommon in negligence actions, because the court "must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendant-driver] failed to exercise ordinary care." Erickson v. Prudential Ins. Co., 166 Wis. 2d 82, 93, 479 N.W.2d 552 (Ct. App. 1991) (quoting Shannon v. Shannon, 150 Wis. 2d 434, 442, 442 N.W.2d 25 (1989)). Ordinarily a court cannot so state. As the Fifth Circuit Court of Appeals explained in Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965):

Because of the peculiarly elusive nature of the term "negligence" and the necessity that the trier of facts pass upon the reasonableness of the conduct in all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where historical facts are concededly undisputed.²

¶ 3. Negligence may, like other facts, be proved by circumstantial evidence, which is evidence of one fact from which the existence of the fact to be determined may reasonably be inferred.³ This case involves circumstantial evidence and the issue is whether negligence may be inferred from the facts. One rule of circumstantial evidence is the doctrine of res ipsa loquitur. Although the doctrine of res ipsa loquitur is an evidentiary rule⁴ that ordinarily arises at trial in determining the instructions the circuit court should give the jury, the issue was raised in this case at the summary judgment stage. The issue presented is whether in an automobile collision case a defendant negates the inference of negligence based on res ipsa loquitur and obtains a summary judgment simply by establishing that the defendant-driver suffered a heart attack at some point during the course of the collision, even though the defendant is unable to establish at what point the heart attack occurred.

¶ 4. This case raises the question of the effect of a defendant's going forth with evidence of non-negligence when the complainant's proof of negligence rests on an inference of negligence arising from the doctrine of res ipsa loquitur.

¶ 5. To put the issue in context, we note that Professor Prosser has written that of all the res ipsa loquitur issues, the procedural effects of the defendant's evidence of a non-actionable cause have given the courts the most difficulty.⁵ Our cases prove this point all too well.

¶ 6. We conclude that the defendants in the present case are not entitled to summary judgment. First, the evidence that the defendant-driver suffered a heart attack at some point during the collision does not by itself foreclose to the plaintiff the benefit of an inference that the defendant-driver was negligent; the evidence of the heart attack does not completely contradict the inference of negligence arising from the collision itself. Second, the defendants' evidence at summary judgment of the defendant-driver's heart attack is not sufficient to establish as a matter of law the affirmative defense known as "illness without forewarning."⁶ The defendants have the burden of persuasion of this affirmative defense.⁷

¶ 7. Because the record does not conclusively show, as a matter of law, that the defendant-driver's unforeseen heart attack preceded the collision and caused him to commit an act or omit a precaution that would otherwise constitute negligence, we conclude that genuine issues of material fact relating to negligence are in dispute, and the defendants should not be granted summary judgment.

¶ 8. We reverse the order of the circuit court granting the defendants' motion for summary judgment.

I

¶ 9. For the purposes of the motion for summary judgment, the facts of the collision are not in dispute, although the facts relating to the defendant-driver's heart attack are. In their motion for summary judgment the defendants summarized the facts, and in her response to the motion the plaintiff agreed with the defendants' statement of facts. Furthermore, the defendants submitted an affidavit of the Waukesha police officer who went to the site of the collision shortly after the occurrence. Attached to the affidavit were the officer's accident report and the Crime Management System Incident Report; we may also rely on these reports.⁸

¶ 10. On February 8, 1996, at approximately 4:30 p.m., the defendant-driver's automobile was traveling westbound on a straight and dry road when it collided with three automobiles, two of which were in the right turn lane traveling in the same direction as the defendant-driver's automobile; these vehicles were going to turn right at the intersection and travel north. The third vehicle, the plaintiff's automobile, was either stopped at the intersection, facing south, or just starting to move when it was struck; this vehicle was going to turn left across the defendant's lane of traffic and travel eastbound.

¶ 11. One of the drivers whose vehicle was struck reported that he saw the defendant-driver in his rear view mirror coming up very fast; he could not tell whether the defendant-driver was attempting to shield his face from the bright sun or if the visor was down. According to the Old Farmer's Almanac, of which we take judicial notice, on February 8, 1996, sunset was at 5:15 p.m. Central Standard Time.⁹

¶ 12. The driver-defendant's automobile rearended the first vehicle, brushed the back bumper of the second vehicle, and skidded across a dividing median, striking the third vehicle (the plaintiff's) directly in the plaintiff's side door. On the basis of his personal observation, the police officer reported that the defendant-driver's car visor was in the down position at the site of the collision. The police officer observed that the defendant-driver's automobile left skid marks after the collision with the first car. The plaintiff claims to have sustained extensive bodily injuries.

¶ 13. When police arrived at the scene, one officer found the defendant-driver lying partially outside his front passenger door, apparently unable to breathe. The defendant-driver was not wearing a seat belt. His head and shoulders were protruding out of the right front passenger door. Soon thereafter, paramedics arrived at the scene, and found that the defendant-driver was not breathing and had no pulse. The paramedics determined that the defendant-driver was in ventricular fibrillation and defibrillated him several times. Recognizing that their efforts were unsuccessful, the paramedics transported him to the emergency room at Waukesha Memorial Hospital. Attempts to revive him were unsuccessful, and a physician pronounced the defendant-driver dead at 5:25 p.m ¶ 14. A medical examiner performed an autopsy and determined that the cause of the defendant-driver's death was arteriosclerotic cardiovascular disease, which resulted in acute cardiopulmonary arrest. In other words, the defendant-driver died of a heart attack.

¶ 15. However, medical experts (through affidavits and depositions) disagree about when the heart attack occurred. According to the medical examiner, the defendant-driver suffered a heart attack before the initial collision. The defendants' expert medical witness also stated to a reasonable degree of medical certainty that the heart attack occurred before the first collision. But she further stated that it was not possible in this instance for any medical expert to determine the exact time of the heart attack based on the post-collision examination; the question was one of probability and likelihood. The plaintiff's expert medical witness could not state with certainty which came first, the initial collision or the heart attack. He asserted that it would be pure speculation for anyone to say when the heart attack occurred; it was just as likely that the heart attack occurred before the initial impact as after the initial impact.

¶ 16. The defendants' medical expert stated that, regardless of when the heart attack occurred, the defendant-driver probably had between five and twenty seconds from the onset of dizziness and loss of blood pressure to losing consciousness.

¶ 17. The defendants moved for summary judgment, arguing that: (1) it was undisputed that the defendant-driver suffered a heart attack sometime before, during, or after the collision; (2) the medical testimony was inconclusive as to whether the heart attack occurred before, during, or after the collision; and (3) it is just as likely that the heart attack occurred...