Dr. Arthur Delahoussaye v. Economy Premier Assurance Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 8, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1284 Cir. Ct. No. 2015CV6508

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

DR. ARTHUR DELAHOUSSAYE AND MELISSA DELAHOUSSAYE,

PLAINTIFFS-APPELLANTS,

V.

ECONOMY PREMIER ASSURANCE COMPANY AND FREDERICK BOELTER, III,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Reversed and cause remanded for further
proceedings.

Before Brash, P.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).
No. 2019AP1284

¶1 PER CURIAM. Dr. Arthur Delahoussaye and Melissa
Delahoussaye appeal the circuit court’s order granting summary judgment in favor
of Economy Premier Assurance Company and Frederick Boelter, III (collectively,
“Boelter”). They argue that the circuit court improperly granted summary
judgment dismissing this case because there are disputed issues of material fact
with regard to their negligence action against Boelter. We reverse and remand for
further proceedings.

¶2 On September 11, 2012, Arthur Delahoussaye, who is a competitive
bicycle racer, was riding his bicycle at about twenty-six miles per hour when the
front wheel of his bike released, his bike collapsed, and he sustained severe
injuries. The Delahoussayes brought this action against Boelter, who sold Arthur
the bike over the internet three years earlier. The Delahoussayes alleged that
Boelter negligently removed the small tabs, known as “lawyer’s tabs,” at the end
of the bike’s front fork. The tabs serve as a secondary retention device for the
front wheel. The Delahoussayes alleged that the absence of the lawyer’s tabs
caused or contributed to the front wheel of the bicycle disengaging from the front
fork, which caused the accident. The Delahoussayes also alleged that Boelter
negligently failed to warn him that he had removed the lawyer’s tabs.

¶3 Boelter moved for summary judgment dismissing the action against
him. In his deposition, Boelter denied removing the lawyer’s tabs and denied
knowing of their existence. Boelter testified that he is a recreational bicyclist, that
he purchased the bike from Jeffrey Thompson, and that he used the bike about ten
times over a period of five months before deciding that the frame was too big for
him and selling it to Arthur.

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No. 2019AP1284

¶4 Thompson was also deposed. He testified that he was a competitive
bike racer and that he used the bicycle for two racing seasons before selling it to
Boelter. He further testified that he did not remove the lawyer’s tabs and that he
originally purchased the bike from Specialized Bicycle Components, Inc.

¶5 The circuit court granted summary judgment in Boelter’s favor,
concluding that Boelter was entitled to judgment as a matter of law because there
was no evidence showing that Boelter’s alleged negligence caused Delahoussaye’s
accident.

¶6 “Summary judgment will be granted where there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of
law.” Driver v. Driver, 119 Wis. 2d 65, 69, 349 N.W.2d 97 (Ct. App. 1984); WIS.
STAT. § 802.08(2) (2019-20).1 “We review a circuit court’s decision to grant
summary judgment de novo, applying the same methodology as the circuit court.”
Fromm v. Village of Lake Delton, 2014 WI App 47, ¶11, 354 Wis. 2d 30, 847
N.W.2d 845 (emphasis added).

¶7 “The first step of that methodology requires the court to examine the
pleadings to determine whether a claim for relief has been stated.” Green Spring
Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If a claim for
relief has been stated, the inquiry then shifts to whether there are any disputed
issues of material fact. Id. We examine the moving party’s affidavits to
determine whether they establish a prima facie case for summary judgment.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP1284

Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994).
If they have, “we then examine the opposing party’s affidavits to determine
whether there are any material facts in dispute which would entitle the opposing
party to a trial.” Id. at 372-73.

¶8 The Delahoussayes argue that the circuit court improperly granted
Boelter’s motion for summary judgment because there are material facts in
dispute. They contend that whether Boelter removed the tabs is a question of
credibility that the jury should determine. They also contend that the jury could
reasonably infer that Boelter was negligent based on the doctrine of res ipsa
locquitur. That doctrine provides that negligence may be inferred by a trier of fact
when: (1) there is an accident of a type that does not ordinarily occur in the
absence of someone’s negligence; (2) the defendant must have exclusive control
of the instrumentality that caused the accident; and (3) there must not have been
any voluntary action on the part of the plaintiff that contributed to the action.
American Fam. Mut. Ins. Co. v. Dobryznski, 88 Wis. 2d 617, 625-26, 277
N.W.2d 749 (1979).

¶9 We conclude that the affidavits and other materials produced in
favor of and in opposition to the motion for summary judgment raise a material
issue of fact for resolution by a trier of fact: whether or not Boelter removed the
lawyer’s tabs. Boelter contends that he did not remove them. A trier of fact could
possibly find Boelter’s testimony that he did not remove them incredible. Because
there is a disputed issue of material fact, summary judgment should not have been
granted.

By the Court.—Order reversed and cause remanded for further
proceedings.

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No. 2019AP1284

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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