Rush v. Twin City Fire Ins. Co.

Decision Date29 November 2022
Docket Number2021AP631
PartiesCynthia Rush, Plaintiff-Appellant, v. Twin City Fire Insurance Company, Batteries Plus, LLC and Fred W. Storm, LLC, Defendants-Respondents. Secretary of the U.S. Department of Health and Human Services, Involuntary-Plaintiff,
CourtWisconsin Court of Appeals

This opinion will not be published.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

APPEAL from an order of the circuit court for Milwaukee County: Cir Ct. No. 2019CV1574 KEVIN E. MARTENS, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Cynthia Rush appeals the order granting summary judgment in favor of Twin City Fire Insurance Company, Batteries Plus LLC, and Fred W. Storm, LLC dismissing her complaint alleging negligence and a violation of the safe place statute claims arising out of a slip and fall accident on a sidewalk curb. She argues that she presented sufficient evidence to allow a reasonable jury to draw a logical inference that the condition of the sidewalk caused her to fall. Upon review, we conclude that there is no reasonable basis for a fact finder to conclude without resorting to speculation that the condition of the curb was a substantial factor in causing Rush's fall. Accordingly, we affirm.

BACKGROUND

¶2 In February 2019, Rush filed a complaint against Twin City Fire Insurance Company, Batteries Plus, LLC, and Fred W Storm, LLC[1] alleging claims of negligence and a violation of the safe place statute. Rush alleged that on October 31, 2017, she went to a Batteries Plus Bulbs store in Milwaukee and "fell in a dangerously and negligently maintained area." Rush alleged that she suffered permanent and serious injuries as a result of the fall.

¶3 During discovery, Rush was deposed and she submitted photographs of the front of the store, the sidewalk, and the parking lot where she fell. In October 2020, Batteries Plus filed a motion for summary judgment, arguing that Rush failed to offer prima facie evidence of negligence.[2] The circuit court conducted a hearing on the motion in February 2021. Batteries Plus argued that there was no evidence of what caused Rush's fall and that the sidewalk was not proven to be in bad condition. Rush argued that the jury should be the one to choose between competing inferences-either Rush fell because she misstepped, or Rush fell because of the condition of the sidewalk.

¶4 The circuit court read several sections of Rush's deposition into the record:

It's not in dispute that on October 31, 2017, Ms. Rush entered Batteries Plus, the store, to purchase a battery. She described the conditions in her deposition as a beautiful Fall day but cold and windy.
As Ms. Rush left the store and walked back to her car parked in the parking lot, she stepped off the curb and then fell. Ms. Rush in her deposition testified …
"I remember walking to the car, and I stepped off the curb, and then there was no ground there, and I started to fall. I remember starting to fall and thinking, oh, my gosh what happened? And I tried to reach for the car, you know, to like stop myself and everything. Like, you know, you get dizzy when you start to fall. You know, how you"-then she gave an indication I presume with her hands-"and I don't know how I ended up here," again giving another indication. "And the next thing I know I was face-I was face down in the parking lot."
….
Later in her deposition … Rush testified and answered questions as follows:
"Question: Okay, I'm asking you and looking at these pictures if you see anything that's wrong with the parking lot, anything that refreshes your recollection that when you put your foot down that would explain why you didn't feel there was anything there?
The answer: I don't know. I mean, I don't know. Is there a-was there-did it crumble as I stepped on it? I don't know.
Question: I mean do you see anything that's crumbled that-
Answer: Well, this sidewalk is all crumbly," and then she gave an indication.
….
"Question: … You said that right before you fell that you stepped off and there was nothing there?
Answer: There was like-yeah, it's like there was nothing solid, like my foot didn't hit the pavement.
….
Question: Do you remember your foot touching anything as it came down?
Answer: No, I don't know. I don't recall.
Question: Do you remember if your foot slipped when you tried to put it down?
Answer: I don't know."
Finally "Question: Okay, was there something that you stepped on that was loose or something like that that caused you to lose your footing when your foot came down?
Answer: Oh, I don't know."

¶5 The court noted that Rush testified that she did not "have a lot of recollection of what happened because [she] hit [her] head so hard." Further, it noted that "[a]pparently there had been no witnesses identified who observed the fall as well." Finally, the court noted several facts "not in controversy," stating that "Batteries Plus did take possession of the property [in] 1995. Between 1995 and October 31, 2017, there were no changes, alterations, modifications, replacement or other construction work to the concrete sidewalk that runs along the store front." Further, the court recounted that in the store manager's deposition testimony, "he noticed the worn-off patch," and "he never thought the sidewalk might be a problem for Batteries Plus customers, that no customer ever reported chipping, crumbling, or the wearing of the sidewalk to him as an issue or problem."[3]

¶6 The court concluded:

[S]peculation and conjecture apply to a choice between liability and non-liability when there is no reasonable basis in the evidence upon which a choice of liability can be made. A mere possibility of such causation is not enough when the matter remains one of pure speculation or conjecture. When the possibilities are at best evenly balanced, it becomes the duty of the [c]ourt to direct verdict for the defendant.
In this case again from the deposition testimony that Ms. Rush gave, I don't believe that there's a reasonable basis for a fact-finder to be able to conclude that the condition of the sidewalk or the curb that-I'll use the word eroding, the eroding curb or sidewalk caused or was the substantial factor in causing injury.
Ms. Rush testified that she put her foot down off the curb, and it was that foot, the foot that stepped off the curb that was the problem when she fell. She testified that she believed she fell because something happened to that foot when she put it off the curb. And that when she put that foot off the curb, there was no ground there.
Understandably given her injuries, she testified that she could not recall a lot of what happened because again she hit her head so hard. And unfortunately again with that injury and lack of other witnesses, there's at least some absence of what would be more determinative evidence perhaps that would assist the plaintiff's case.
She again testified that she did not remember her foot touching anything when she stepped down and doesn't remember slipping. She didn't recall whether she stepped on anything that felt loose when she stepped down. From the record and her testimony, there is no evidence that the eroded part of the curb had any effect on her fall. In fact, the only evidence suggest[ed] that she fell after she put her foot down … towards the blacktop.

¶7 The court concluded that "it doesn't appear from these facts that a jury could make any reasonable inferences that with all the absence of facts regarding the curb itself, that that eroded part of the curb somehow caused her fall." The court concluded that because it did not believe that the plaintiff could meet the burden to establish causation with regard to harm, the court granted judgment in favor of Batteries Plus and Storm and dismissed Rush's complaint.

¶8 Rush appeals.

DISCUSSION

¶9 Rush argues that she has presented sufficient evidence to allow a reasonable jury to draw a logical inference that the condition of the sidewalk caused her to fall and sustain serious injuries. Therefore, she argues that the circuit court erred when it granted summary judgment in favor of Batteries Plus and Storm. We disagree that the evidence presented would allow the jury to do more than speculate about the cause of Rush's fall and injuries. Therefore, we affirm.

¶10 We independently review the circuit court's grant of summary judgment. Zielinski v. A.P. Green Indus., Inc., 2003 WI.App. 85, ¶5, 263 Wis.2d 294, 661 N.W.2d 491. Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Wis.Stat. § 802.08(2) (2019-20).[4] A non-moving party may not rest upon mere allegations of its pleading; it must put forth evidence supporting those allegations. Sec. 802.08(3). Summary judgment materials and inferences from the underlying facts "are viewed in the light most favorable to the nonmoving party." AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24, ¶16, 308 Wis.2d 258, 746 N.W.2d 447; Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶23, 241 Wis.2d 804, 623 N.W.2d 751.

¶11 Rush brought claims of negligence and a violation of the safe place statute, Wis.Stat. § 101.11. Where ordinary negligence considers acts, the safe place statute applies to unsafe conditions. See Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶9, 274 Wis.2d 162, 682 N.W.2d 857. There are four elements to a claim of negligence, "(1) a duty of due care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the plaintiff's injury; and (4) an...

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