Gerald Haugen v. Northern State Bank

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.
September 9, 2020
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. 2019AP746 Cir. Ct. No. 2018CV25

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

GERALD HAUGEN,

PLAINTIFF-APPELLANT,

V.

NORTHERN STATE BANK AND OWNERS INSURANCE COMPANY,
P/K/A AUTO-OWNERS LIFE INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Ashland County:
PATRICK J. MADDEN, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2019AP746

¶1 PER CURIAM. Gerald Haugen appeals from a summary judgment
dismissing his action against Northern State Bank and its insurer, Owners
Insurance Company (collectively, “the Bank”), for injuries allegedly caused by a
defective floor in the Bank’s hallway. The circuit court concluded that the statute
of repose in WIS. STAT. § 893.89 (2017-18)1 barred Haugen’s claims. We affirm.

BACKGROUND

¶2 Haugen asked to use the restroom while he was a customer at the
Bank, and a Bank employee directed him down a carpeted hallway that joined the
original bank building to an adjacent building purchased by the Bank in 1972.
The main floor of the acquired building was several inches higher than the main
floor of the original bank building, and, therefore, the hallway connecting the
buildings had a slight incline of 4 and 1/8 inches over a distance of 21 inches. The
president and chief executive officer of the Bank provided an affidavit in support
of summary judgment averring that neither the configuration nor the incline of the
hallway had been altered during his twenty-four-year employment with the Bank.

¶3 Haugen stumbled while ascending the hallway, and he fell into the
wall, allegedly injuring his shoulder.2 Haugen stated in his deposition that he
“[w]ent down the hallway and I stumbled on that.” He also stated, “I stumbled on
that bump.” Less than one year prior to Haugen’s injury, the Bank had installed
new carpeting in the hallway. Haugen stated in his deposition, however, that the
carpeting did not cause him to stumble.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Haugen testified at his deposition that he did not fall to the floor when he stumbled.

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¶4 Haugen commenced an action alleging common law negligence and
a violation of Wisconsin’s safe place statute, WIS. STAT. § 101.11. The Bank
moved for summary judgment based on WIS. STAT. § 893.89, which is
Wisconsin’s statute of repose that bars any claims resulting from injuries caused
by structural defects beginning ten years after a structure is substantially
completed. The circuit court granted the motion for summary judgment, and
Haugen now appeals.

DISCUSSION

¶5 The principles of summary judgment are well known. Our review of
summary judgment is independent. Green Spring Farms v. Kersten, 136 Wis. 2d
304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is granted if there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law. WIS. STAT. § 802.08(2). The moving party has the burden of
establishing the absence of a genuine issue of material fact. AccuWeb, Inc. v.
Foley & Lardner, 2008 WI 24, ¶21, 308 Wis. 2d 258, 746 N.W.2d 447. We
examine the summary judgment record considering the facts in the light most
favorable to the party opposing summary judgment. Id.

¶6 The mere existence of some alleged factual dispute will not defeat an
otherwise properly supported motion for summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, a factual issue is genuine only
if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Id. at 248. Importantly, once the moving party has made a
prima facie case for summary judgment, a party opposing summary judgment may
not rest on the mere allegations in the complaint to prevent summary judgment

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because the complaint is not evidence. See Tews v. NHI, LLC, 2010 WI 137, ¶82,
330 Wis. 2d 389, 793 N.W.2d 860.

¶7 In Haugen’s brief opposing the Bank’s motion for summary
judgment, he conceded that the statute of repose bars claims arising out of
structural defects more than ten years old, including his claims for negligent
construction of the hallway ramp where he fell into the wall. Haugen argued,
however, that pursuant to WIS. STAT. § 893.89(4)(c), the statute of repose does not
protect “[a]n owner or occupier of real property for damages resulting from
negligence in the maintenance, operation or inspection of an improvement to real
property.” Haugen then asserted—both below and again in this appeal—that his
claims against the Bank are of this nature.

¶8 In this regard, Haugen points to the allegations in his complaint that
he sought damages for the Bank’s alleged “negligent failures to maintain the
premises, furnish and use safety devices and safeguards, and adopt and use
methods and processes reasonably adequate to render such premises safe.”
Haugen then argues that genuine issues of fact precluding summary judgment
“include whether the incline was marked and how [the Bank] did or did not
maintain the area where [Haugen] fell.”

¶9 Haugen’s arguments—like the mere allegations in his complaint—
do not provide evidentiary facts sufficient to oppose summary judgment. See
Preloznik v. City of Madison, 113 Wis. 2d 112, 119, 334 N.W.2d 580 (Ct. App.
1983). When a matter is before the circuit court on summary judgment, the
question presented is an evidentiary one, which requires the presentation of
evidentiary facts by affidavit or other proof. See WIS. STAT. § 802.08(2).

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No. 2019AP746

¶10 Alluding to the Bank’s answers to interrogatories and production of
documents, as well as a letter from the City of Ashland, Haugen insists that he
produced evidence of the Bank’s negligence, including its

undisputed and complete lack of any inspection
whatsoever, its failure to mark or otherwise identify the
change in elevation for its customers who were being sent
down the hallway in order to use the restrooms, its
installation of nondescript carpeting, and its failure to
institute (let alone maintain) any policies or procedures
whatsoever for making sure its business premises are safe.

¶11 In order to survive summary judgment, however, Haugen had the
burden to produce evidence creating a factual basis for the inference that it was a
lack of maintenance, a lack of inspection, or a failure to mark the incline that
caused his fall. He failed to do so. In fact, Haugen concedes in his reply brief that
there “are no liability experts to tell us what caused [Haugen’s] fall.” And as
mentioned previously, Haugen himself testified at his deposition that his stumble
was caused by the “bump” in the floor and that the carpet did not cause him to
stumble. A party opposing summary judgment must do more than simply assert a
failure to warn or maintain. The party must present evidence sufficient to entitle it
to a trial. Quite simply, Haugen failed to back up his argument and the allegations
in his complaint with evidence sufficient to raise a genuine issue of material fact
that must be tried.

¶12 Our conclusion is consistent with prior cases applying the statute of
repose in WIS. STAT. § 893.89. In Mair v. Trollhaugen Ski Resort, 2006 WI 61,
¶25, 291 Wis. 2d 132, 715 N.W.2d 598, our supreme court rejected the plaintiff’s
argument that the failure to modify a restroom floor drain in a ski resort to comply
with modern safety standards created an unsafe condition associated with the
structure. The court noted that the plaintiff also argued that the bathroom lighting,

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No. 2019AP746

the color of the bathroom walls or floor, or the lack of warning signs or markers
may have caused her injury. Id., ¶26. The court held, “Although defects in the
lighting or paint color or a lack of warning signs could be considered unsafe
conditions associated with the structure, Mair did not present evidence sufficient
to escape summary judgment that such a condition contributed to her fall.” Id.

¶13 A subsequent case involved a customer leaving an office building
when she fell and broke her foot while negotiating a step three inches in height.
See Rosario v. Acuity & Oliver Adjustment Co., 2007 WI App 194, ¶2, 304
Wis. 2d 713, 738 N.W.2d 608. Rosario claimed the owner was negligent in failing
to properly maintain and warn visitors of the condition of the premises. Id., ¶3.
Alternatively, she alleged a violation of the safe place statute. Id. She argued the
step was maintained in an unsafe manner because the owner failed to mark the
step, leaving her without “proper visual clues” by which she could judge the
height of the step and thus prevent her fall. Id., ¶5. This court held that Rosario’s
claim “most assuredly relates to the failure to design and construct a safe part of
the Oliver property.” Id., ¶19. In rejecting Rosario’s alternative claim that a lack
of markings or signs warning of the irregular step caused her fall, we concluded
that the statute of repose barred the claims and “[t]here is no basis to attribute
causation to any lack of warning.” Id., ¶27.

¶14 Similarly, there is no evidentiary basis in the present case to attribute
causation of Haugen’s stumble to any lack of warning or failure to maintain the
hallway incline. Haugen did not present sufficient evidence that such failures
contributed to his fall in order to escape summary judgment. The allegedly
defective condition in the present case is essentially a structural design issue,

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No. 2019AP746

rendering the claims barred by the statute of repose. Accordingly, the circuit court
properly granted the Bank summary judgment.3

By the Court.—Judgment affirmed.

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

3
In its brief to this court, the Bank requests costs. The Bank is entitled to recover costs
pursuant to WIS. STAT. RULE 809.25(1)(a)1.

7