Rush v. Twin City Fire Ins. Co.
Decision Date | 29 November 2022 |
Docket Number | 2021AP631 |
Parties | Cynthia 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, |
Court | Wisconsin 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This opinion will not be published.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).
¶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.
¶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:
¶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 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:
¶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.
¶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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