Cynthia Rush v. Twin City Fire Insurance 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.
November 29, 2022
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. 2021AP631 Cir. Ct. No. 2019CV1574

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

CYNTHIA RUSH,

PLAINTIFF-APPELLANT,

SECRETARY OF THE US DEPARTMENT OF HEALTH AND HUMAN
SERVICES,

INVOLUNTARY-PLAINTIFF,

V.

TWIN CITY FIRE INSURANCE COMPANY, BATTERIES PLUS, LLC AND
FRED W. STORM, LLC,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
KEVIN E. MARTENS, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.
No. 2021AP631

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 PER CURIAM. 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.

1
Based on the undisputed allegations in the complaint, Batteries Plus, LLC’s insurance
policy was issued by Twin City Fire Insurance Company. Throughout the proceedings, the two
entities were represented by the same counsel. We refer to these defendants collectively as
Batteries Plus. Fred W. Storm, LLC (Storm) was alleged to be the owner of the property where
the store was located and where the accident occurred. Storm was represented by separate
counsel.

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¶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.”

2
Storm did not formally join Batteries Plus’s motion for summary judgment. However,
its counsel noted to the court that its interests were aligned. The circuit court concluded that
Storm was joining the motion for summary judgment because it did not file separate briefs, a
point to which Storm did not object. The case against Storm was also dismissed when the court
granted summary judgment.

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….

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.”

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No. 2021AP631

¶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.

3
The circuit court reviewed photographic evidence of the condition of the parking lot,
sidewalk and curb. It noted, “we can use adjectives … crumbling, wearing, eroding … but at
least some portion of the sidewalk where the edge is not sort of a more sharp 90-degree angle …
you could reasonably infer was when the concrete was first laid down many years ago.”

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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

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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 actual loss
or damage as a result of injury.” Lambrecht, 241 Wis. 2d 804, ¶28.

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶12 The safe place statute is a negligence statute—it “does not create a
new cause of action, but it does establish an increased standard of care[.]”
Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 361, 208 N.W.2d 388 (1973). “Under
[the safe place] statute, ‘owners of a place of employment or a public building
have the duty to repair or maintain the premises in as safe a condition as the nature
of the premises reasonably permits.’” Hofflander v. St. Catherine’s Hosp., Inc.,
2003 WI 77, ¶87, 262 Wis. 2d 539, 664 N.W.2d 545 (citation omitted). There are
three elements to a claim under the safe place statute: (1) an unsafe condition
associated with a premises; (2) the unsafe condition caused the plaintiff’s injury;
and (3) the owner of the premises had “either actual or constructive notice of the
unsafe condition” before the plaintiff’s injury. Correa v. Woodman’s Food Mkt.,
2020 WI 43, ¶12, 391 Wis. 2d 651, 943 N.W.2d 535 (citation omitted).

¶13 Rush’s claims fail on the issue of causation—an element existing in
both claims for negligence and a violation of the safe place statute. See
Hofflander, 262 Wis. 2d 539, ¶96 (“The safe place statute merely affects the level
of one’s duty of care; it does not alter the analysis of causation.”). “To establish
causation in Wisconsin, the plaintiff bears the burden of proving that the
defendant’s negligence was a substantial factor in causing the plaintiff’s harm.”
Ehlinger v. Sipes, 155 Wis. 2d 1, 12, 454 N.W.2d 754 (1990). “The phrase
‘substantial factor’ denotes that the defendant’s conduct has such an effect in
producing the harm as to lead the trier of fact, as a reasonable person, to regard it
as a cause, using that word in the popular sense.” Zielinski, 263 Wis. 2d 294, ¶16
(citation omitted). “[If] there is no credible evidence upon which the trier of fact
can base a reasoned choice between ... two possible inferences, any finding of
causation would be in the realm of speculation and conjecture.” Id. (citation
omitted; brackets and ellipses in Zielinski).

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¶14 Batteries Plus argues that Rush has failed to present evidentiary facts
that would allow a reasonable inference that it was Batteries Plus or Storm’s
negligence in maintaining the curb that caused her fall. “Before the case may
reach the jury, the plaintiff must present a quantum of evidence sufficient to render
the eventual answer non-speculative.” Correa, 391 Wis. 2d 651, ¶16. The circuit
court soundly analyzed the situation:

[Rush] had no facts to offer and offered no testimony that
that foot was necessarily situated on the eroded part of the
sidewalk, that it slipped, that it misstepped, that it caused
her next step to be impacted in any way.”

¶15 Rush argues that her testimony and the photographic evidence
established where she fell and that the deposition of the store manager showed that
Batteries Plus was aware (had constructive or actual notice) that the sidewalk curb
in the parking lot was in an eroding condition.5 She argues that a reasonable jury
could infer based on Rush’s testimony and photographic evidence of the curb that
lack of sidewalk maintenance caused her fall. She admits the jury could also infer
that she slipped and it was not caused by the sidewalk conditions; nevertheless,
she argues that such fact finding is the province of the jury.

¶16 However, Rush’s claims fail because she has not presented facts that
remove the issue of causation from speculation. The plaintiff “must come forward
with evidentiary facts that establish the ultimate facts; and the degree of proof
must be such as to remove these ultimate facts from the field of mere speculation
and conjecture.” Zillmer v. Miglautsch, 35 Wis. 2d 691, 700, 151 N.W.2d 741
(1967). While a judge and jury “may, of course, draw logical inferences from the

5
Photographic evidence of the condition of the parking lot, sidewalk and curb was
submitted to this court on appeal. We form no opinion about the condition of the curb.

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No. 2021AP631

evidence, connecting its dots into a coherent pattern,” Correa, 391 Wis. 2d 651,
¶21 (citation omitted), “[a] jury cannot be allowed to merely theorize negligence
from what might be a mere possibility,” Zillmer, 35 Wis. 2d at 700.

¶17 Here, the evidence in Rush’s deposition does not support a
reasonable inference that the condition of the sidewalk had any effect on her fall.
As the circuit court recounted:

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 on the black—towards the blacktop.

….

[I]t 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.

If faced with the facts presented here, a jury’s inferences would be necessarily
speculative to connect her fall to the eroded sidewalk. She does not testify that she
slipped off the curb. She has not met her burden to provide facts that move the
ultimate fact of the accident causation “from the field of mere speculation and
conjecture.” Zillmer, 35 Wis. 2d at 700.

¶18 “[I]t is the rare personal injury case which can be disposed of by
summary judgment[.]” Lambrecht, 241 Wis. 2d 804, ¶2 (citation omitted).
Summary judgment for negligence-based claims is unusual because “[a]s a general
rule ... the existence of negligence is a question of fact which is to be decided by
the jury.” Ceplina v. South Milwaukee Sch. Bd., 73 Wis. 2d 338, 342-43, 243

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N.W.2d 183 (1976). For the circuit court or the reviewing court to decide that a
party “is not negligent as a matter of law, the court must be able to say that no
properly instructed, reasonable jury could find, based upon the facts presented,
that the defendants failed to exercise ordinary care.” Id. at 342. Here, we have
such a case. Based on the evidentiary facts offered to the court, no reasonable jury
could conclude that Batteries Plus and Storm caused injury to Rush without
resorting to speculation. Therefore, Rush’s negligence claim fails and Batteries
Plus and Storm have no liability for Rush’s injury.

CONCLUSION

¶19 We conclude that there is no reasonable basis from the facts
presented and reasonable inferences drawn from those facts for a fact finder to
conclude that the condition of the curb was a substantial factor in causing Rush’s
fall. We conclude that there were no genuine issues of material fact and that
Batteries Plus and Storm were entitled to summary judgment as a matter of law.
Accordingly, we affirm the circuit court order and dismissal of Rush’s claims.

By the Court.—Order affirmed.

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

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