Bridgett Larkins v. Diane Building Corporation ( 2023 )

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.
January 4, 2023
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. 2021AP349 Cir. Ct. No. 2019CV2231
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
BRIDGETT LARKINS AND JEROME LARKINS,
PLAINTIFFS-APPELLANTS,
V.
DIANE BUILDING CORPORATION,
DEFENDANT-RESPONDENT,
ALDI, INC. GROUP INSURANCE WELFARE BENEFIT PLAN, ABC
COMPANIES, DEF COMPANIES, GHI INSURANCE COMPANIES, JKL
INSURANCE COMPANIES,
DEFENDANTS.
APPEAL from a judgment of the circuit court for Milwaukee
County: LINDSEY CANONIE GRADY, Judge. Affirmed.
Before Donald, P.J., Dugan and White, JJ.
No. 2021AP349
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. Bridgett and Jerome Larkins (collectively Larkins)
appeal from the circuit court’s grant of summary judgment in favor of Diane
Building Corporation (DBC) and dismissing the Larkins’ complaint alleging
negligence and a violation of Wisconsin’s Safe Place Statute, WIS. STAT. § 101.11
(2019-20).1 On appeal, the Larkins raise several arguments asserting that the
circuit court erroneously granted summary judgment in favor of DBC. Upon
review, we affirm.
BACKGROUND
¶2 Bridgett tripped and fell on a set of stairs located on a property
owned by DBC and leased to the United States Postal Service (USPS) to operate
as a post office. On March 20, 2019, the Larkins filed a complaint alleging that
DBC was negligent and violated WIS. STAT. § 101.11, Wisconsin’s Safe Place
Statute.2 The Larkins contended that the heel of Bridgett’s shoe caught on loose
riser material on an interior stairway, causing her to fall and sustain severe
injuries. The Larkins further contended that DBC was negligent and violated
§ 101.11 when it failed to maintain and repair the loose riser material on the stairs.
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The complaint also alleged a third cause of action for loss of society, companionship,
and consortium.
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No. 2021AP349
¶3 The circuit court held several status conferences over the course of
these proceedings, the first of which occurred on June 27, 2019.3 At this
conference, the circuit court postponed entering a scheduling order to allow the
parties to conduct discovery and determine if USPS would be joined to the case.
When the parties returned for a subsequent status conference on October 15, 2019,
DBC informed the circuit court that USPS would not be joined, and the circuit
court advised the parties to continue with discovery efforts on the issue of notice.
The circuit court additionally inquired whether DBC was considering a motion for
summary judgment and informed DBC to notify the court of its decision by the
next status conference scheduled for December 19, 2019.
¶4 In advance of the December status conference, the Larkins submitted
a letter brief in which it argued that DBC could not delegate its duty under WIS.
STAT. § 101.11 to USPS to maintain and repair the stairway. In response, DBC
submitted its own letter brief in which it argued that it lacked notice of the loose
riser material, and it also outlined its arguments for a potential motion for
summary judgment based on a lack of notice. At the subsequent status
conference, the circuit court addressed the parties’ positions and set a briefing
schedule for DBC’s motion for summary judgment.
¶5 DBC filed a brief in support of its motion for summary judgment on
February 13, 2020, and it argued that the Larkins could not prove that DBC had
actual or constructive notice of the loose riser material on an interior stairway. As
explained in DBC’s brief, USPS leased the premises since 1976 and operated the
3
The record does not contain the transcripts, if any exist, for these status conferences.
Thus, we rely on the parties for the details of what occurred at those status conferences.
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No. 2021AP349
property as a post office. Under the lease, USPS was required to repair and
maintain the property. DBC then argued that it does not maintain a presence at the
property, USPS has been responsible for all maintenance and repairs at the
property for over four decades, and the Larkins have not established when the riser
material became loose and created the unsafe condition. Thus, DBC contended
that it did not have actual or constructive notice and that the Larkins’ claims for
negligence and a violation of WIS. STAT. § 101.11 failed as a matter of law.
¶6 In response, the Larkins argued that DBC’s motion was premature as
a result of incomplete and ongoing discovery.
¶7 The circuit court held the first hearing on DBC’s motion for
summary judgment on April 16, 2020.4 Based on the argument raised by the
Larkins, the circuit court took DBC’s motion under advisement, provided the
Larkins additional time to produce an expert, and allowed the parties an
opportunity to supplement the summary judgment briefing after conducting further
discovery.
¶8 Subsequently, the Larkins’ expert, David Collette, submitted a
report. In his report, Collette opined that the loose riser material was caused by a
debonding process that occurred between the riser material and the stair. He
further opined that this debonding process would “not occur quickly” and “would
take at least 3-6 months.” Collette described that the riser material was not
properly installed, which created the condition for the debonding process to occur:
[I]t appears the riser material was not installed so the
material was underneath the nosing material but cut so the
4
The Honorable Jeffrey A. Conen presided over the hearing held on April 16, 2020.
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No. 2021AP349
riser material ended at the bottom of the nosing material.
The standard installation is to overlap the riser material
underneath the nosing so that contaminants like water being
tracked onto the stairway by pedestrians or cleaning
chemicals used during the maintenance process don’t get
behind the riser material and negatively affect the adhesive
and concrete.
Thus, Collette described:
The images show that the vertical concrete surface
of the stairway, where the risers are attached, has degraded
and is no longer a viable bonding surface. This surface
degradation has affected either the concrete surface or the
adhesive used to attach the riser to the point the riser has
debonded. As the riser was not overlapped by the nosing,
the riser can be seen to be falling away from the riser
surface and into the space above the tread.
¶9 Ultimately, Collette provided in his report that “[DBC] would have
constructive notice of the condition because the riser material, on the date of the
incident, had been debonding for at least 3-6 months.” He also added, “The cut
risers show that there was prior knowledge of the hazard.”
¶10 DBC deposed Collette, and subsequently filed a combined
supplemental brief and motion to strike Collette’s opinions on July 15, 2020. In
its supplemental briefing and motion to strike, DBC highlighted that Collette
admitted during his deposition that he had not performed a site visit, that he was
not sure of the specific materials and adhesives that were used on the stairway, and
that he could not provide an opinion as to the actual length of time that the riser
material was loose. DBC further stated that Collette admitted during his
deposition that the debonding process would be imperceptible. Thus, as relevant
to its motion for summary judgment, DBC continued to maintain that it lacked
notice, and the lack of notice was fatal to the Larkins’ claims for negligence and a
violation of WIS. STAT. § 101.11.
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No. 2021AP349
¶11 The Larkins also filed a supplemental brief in which it argued that
Collette’s opinion created a genuine issue of material fact that DBC had
constructive notice of the loose riser material.
¶12 The circuit court held a second hearing on DBC’s motion for
summary judgment on October 27, 2020.5 The circuit court found that there was
no genuine issue of material fact as to whether DBC had notice of the loose riser
material and granted DBC’s motion. Following the circuit court’s ruling, the
Larkins raised a “concern” about the absence of a scheduling order and where that
left the case, and the circuit court considered the Larkins’ concern as raised out of
order:
I feel like you’re asking an odd question out of
order. So, when we started the motion and I said is
everybody ready and does anybody have anything to add or
is there anything before I render a decision to me that
would have been a great time to say, “Judge, I haven’t ever
had a scheduling order, my discovery is incomplete, I don’t
want you to make a summary judgment decision because
Judge Conen didn’t clearly define the guidelines for the
motion.”
Thus, the circuit court informed the Larkins that the course of action would now
be to file a motion for reconsideration or an appeal.
¶13 The Larkins now appeal.
DISCUSSION
¶14 Summary judgment shall be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
5
Due to the retirement of the Honorable Jeffrey A. Conen, this case was assigned to the
Honorable Lindsay Canonie Grady who presided over this hearing.
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No. 2021AP349
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).
“Whether the circuit court properly granted summary judgment is a question of
law that this court reviews de novo.” Racine Cnty. v. Oracular Milwaukee, Inc.,
2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88 (citation omitted).
¶15 On appeal, the Larkins argue that the circuit court erred in granting
DBC’s motion for summary judgment. The Larkins raise four arguments: (1) the
circuit court failed to follow the procedures for summary judgment set forth in
WIS. STAT. § 802.08(1); (2) the circuit court failed to decide DBC’s motion to
strike Collette’s opinions prior to deciding DBC’s motion for summary judgment;
(3) the circuit court erroneously found that no genuine issue of material fact
existed that DBC did not have notice—either actual or constructive—of the loose
riser material on the stairway; and (4) the circuit court erroneously failed to
explicitly address the Larkins’ negligence claim.
¶16 In response, DBC argues that the Larkins forfeited their procedural
arguments, including that the circuit court failed to follow summary judgment
procedures and that the circuit court failed to decide DBC’s motion to strike
Collette’s opinions before addressing the motion for summary judgment. As to
the Larkins’ additional arguments, DBC argues that the circuit court properly
found that there was no genuine issue of material fact that it did not have actual or
constructive notice of the loose riser material. It also argues that the Larkins failed
to raise an argument below as to actual notice and cannot raise an argument as to
actual notice for the first time on appeal. Last, DBC argues that any failure to
explicitly address the Larkins’ negligence claim is irrelevant because the same
notice requirement applies to both the negligence claim and the claim for a
violation of WIS. STAT. § 101.11; therefore, DBC argues that the Larkins’ failure
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No. 2021AP349
to demonstrate a genuine issue of material fact as to notice is fatal to their
negligence claim, just as it is to their claim under § 101.11.
¶17 As explained below, we agree with DBC. Thus, we conclude that
the Larkins forfeited their procedural arguments and that the circuit court
appropriately found that there was no genuine issue of material fact that DBC did
not have actual or constructive notice of the loose riser material. Accordingly, we
conclude that the circuit court properly granted DBC’s motion for summary
judgment.
¶18 We first address the procedural arguments. Second, we address
DBC’s argument that there is no genuine issue of material fact that DBC lacked
notice of the loose riser material and the effect of the lack of notice on the Larkins’
negligence claim.
I. Forfeiture
¶19 “It is a fundamental principle of appellate review that issues must be
preserved at the circuit court to be raised on appeal as a matter of right.” Schill v.
Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 n.21, 327 Wis. 2d 572, 786
N.W.2d 177. “If the issue is not preserved, an appellate court may consider the
issue forfeited.” Id. “Raising issues at the trial court level allows the trial court to
correct or avoid the alleged error in the first place, eliminating the need for
appeal.” In re Ambac Assurance Corp., 2012 WI 22, ¶22, 339 Wis. 2d 48, 810
N.W.2d 450 (citation omitted). “It also gives both parties and the trial judge
notice of the issue and a fair opportunity to address the objection.” Id. (citation
omitted).
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No. 2021AP349
¶20 In this case, the Larkins forfeited their two procedural arguments by
failing to raise them below.
¶21 First, the Larkins forfeited their argument that the circuit court failed
to follow the procedures found in WIS. STAT. § 802.08(1) when it addressed
DBC’s motion more than eight months after the Larkins filed their complaint, and
without a scheduling order providing an alternative deadline. See § 802.08(1) (“A
party may, within 8 months of the filing of a summons and complaint or within the
time set in a scheduling order under s. 802.10, move for summary judgment on
any claim[.]”). As DBC correctly asserts, the Larkins had several opportunities to
raise an argument about the timeliness of DBC’s motion under § 802.08(1) at the
status conferences and in the briefing, yet the Larkins failed to do so. Indeed, the
Larkins were on notice that DBC was contemplating a motion for summary
judgment by the October 15, 2019 status conference, and the Larkins were
officially informed of DBC’s intention at the December 19, 2019 status
conference.
¶22 Yet, the Larkins sat silent at both status conferences about any
concern over the timeliness of DBC’s motion for summary judgment, and when
the Larkins filed their response, they pursued an argument that DBC’s motion was
premature based on a lack of discovery. Then, when presented with the
opportunity for additional briefing, the Larkins pursued an argument that
Collette’s opinion created a genuine issue of material fact as to constructive
notice. Therefore, because the Larkins failed to raise any argument below based
on WIS. STAT. § 802.08(1) and had multiple opportunities to do so, we conclude
that the Larkins forfeited any argument that the circuit court erroneously granted
DBC’s motion for summary judgment as a result of DBC’s motion being untimely
under § 802.08(1).
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No. 2021AP349
¶23 The Larkins similarly failed to raise any argument below about the
circuit court ruling on DBC’s motion for summary judgment prior to ruling on
DBC’s motion to strike Collette’s opinions. In fact, at the time that the circuit
court granted DBC’s motion for summary judgment, the only “concern” the
Larkins’ counsel raised dealt with where the case stood following the circuit
court’s granting of DBC’s motion for summary judgment.6 The court held that it
was too late to raise an issue of where the case stood after it granted the motion for
summary judgment. As a result, the circuit court was never presented with any
opportunity to address any objection to the court deciding DBC’s motion for
summary judgment prior to addressing DBC’s motion to strike Collette’s opinions,
or correct or avoid any error in the order in which it addressed DBC’s motions.
See In re Ambac Assurance Corp., 339 Wis. 2d 48, ¶22. Thus, we conclude that
the Larkins also forfeited any argument premised on the circuit court addressing
DBC’s motion for summary judgment prior to addressing DBC’s motion to strike
Collette’s opinions because the Larkins failed to raise this argument below.7
6
As noted above, after the circuit court granted DBC’s motion for summary judgment
dismissing the Larkins’ claims against DBC, the Larkins’ counsel raised a “concern” about the
absence of a scheduling order and where that left the case. The court explained that it granted the
motion for summary judgment, which meant that the claims against DBC were dismissed and
DBC was dismissed from the case. It stated that it was only addressing the claims against DBC
and it was not addressing any claims against any other defendants if the Larkins had such claims.
7
Nonetheless, we observe that the circuit court did consider Collette’s opinion in finding
that no genuine issue of material fact existed. The circuit court stated, “[W]hat the [c]ourt will
ultimately find is that even with the expert testimony, there isn’t an issue as to any material fact
that would establish the quantum of time.” Therefore, we also conclude that the order in which
the circuit court addressed DBC’s motions is irrelevant.
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No. 2021AP349
II. Notice
¶24 The Larkins’ remaining arguments require us to address whether the
circuit court erroneously found that there was no genuine issue of material fact
that DBC lacked either actual or constructive notice of the loose riser material.8
¶25 As a threshold matter, we address DBC’s argument that the Larkins
forfeited any argument that DBC lacked actual notice by failing to raise the
argument below and pursuing an argument based on actual notice for the first time
on appeal. Here, we again agree with DBC. The Larkins plainly pursued an
argument below that Collette’s opinion created a genuine issue of material fact as
to whether DBC had constructive notice of the loose riser material. Nowhere in its
brief did it pursue an argument that DBC had actual notice of the loose riser
material. Thus, by failing to pursue an argument below that DBC had actual
notice and raising this argument for the first time on appeal, the Larkins have
forfeited this argument. See Schill, 327 Wis. 2d 572, ¶45 n.21.
¶26 Accordingly, we turn to whether DBC had constructive notice of the
loose riser material, and we conclude that the circuit court properly found that
there was no genuine issue of material fact that DBC lacked constructive notice of
the loose riser material.
¶27 Under the safe place statute, a property owner is only liable for an
unsafe condition if it has actual or constructive notice of the condition. See
8
In addressing the Larkins’ remaining arguments, we note that our review is de novo.
See Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d
88 (citation omitted). Thus, we review independently of the circuit court whether a genuine issue
of material fact exists, and we do not review the circuit court’s finding that no genuine issue of
material fact exists for error.
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No. 2021AP349
Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶¶1, 3, 245 Wis. 2d 560, 630
N.W.2d 517. As noted above, this case turns on the issue of constructive notice of
an allegedly unsafe condition on a stairway caused by loose riser material.
¶28 “Constructive notice is a fiction that attributes knowledge of a fact to
a person ‘as if he had actual notice or knowledge although in fact he did not.’”
Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶32, 356 Wis. 2d 1,
850 N.W.2d 160 (citation omitted). “[T]he general rule is that an employer or
owner is deemed to have constructive notice of a defect or unsafe condition when
that defect or condition has existed a long enough time for a reasonably vigilant
owner to discover and repair it.” Id., ¶33 (citation omitted). “Ordinarily,
constructive notice requires evidence as to the length of time that the condition
existed.” Id. (citation omitted).9
¶29 Importantly, here, we reject the Larkins’ contention that Collette’s
opinion creates a genuine issue of material fact because his opinion does not
establish the length of time that the riser material was actually loose. Without any
information showing how long the riser material was actually loose, DBC cannot
be charged with constructive notice. See id.; see also Kaufman v. State St. Ltd.
P’ship, 187 Wis. 2d 54, 65, 522 N.W.2d 249 (Ct. App. 1994).
9
We do not address the Larkins’ argument that this case meets an exception to the time
requirement because the Larkins failed to develop this argument below. See Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 n.21, 327 Wis. 2d 572, 786 N.W.2d 177. We also consider
this argument undeveloped on appeal. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (Ct. App. 1992). We nonetheless note that this exception is a narrow one, making it unlikely
that the exception would apply to this case. See Megal v. Green Bay Area Visitor & Convention
Bureau, Inc., 2004 WI 98, ¶13, 274 Wis. 2d 162, 682 N.W.2d 857.
12
No. 2021AP349
¶30 In his report, Collette opined that the debonding process on the
stairway would have taken at least three to six months. However, in a later
deposition, Collette admitted that the debonding process is imperceptible. Thus,
Collette’s statement that the debonding process would take three to six months
merely communicates how long an imperceptible debonding process would have
taken—it does not tell us the length of time the riser material on the stairway was
actually loose and falling away from the stair, creating the allegedly hazardous
condition. In fact, the Larkins themselves recognize that Collette’s report fails to
provide an actual length of time because, as noted, the Larkins attempt to rely on
an exception to the time requirement for establishing constructive notice, as
opposed to arguing that the riser material was loose for a specific length of time.
Thus, Collette’s opinion clearly fails to establish the length of time of the actual
existence of the allegedly hazardous condition that caused Bridgett’s fall down the
stairs.
¶31 Without an opinion as to the length of time that the riser material
was loose on the stairway creating the condition that the Larkins argue caused
Bridgett’s fall, we are left to speculate when the condition actually existed
following an imperceptible debonding process. “Speculation as to how long the
unsafe condition existed and what reasonable inspection would entail are
insufficient to establish constructive notice.” Kochanski, 356 Wis. 2d 1, ¶36.
Consequently, we conclude that the circuit court properly found that there was no
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No. 2021AP349
genuine issue of material fact as to whether DBC had constructive notice of the
loose riser material.10
¶32 Last, without a genuine issue of material fact regarding notice, we
conclude that the circuit court’s failure to specifically mention the Larkins’
negligence claim is irrelevant. Whether DBC had notice of the loose riser material
is an element of both the negligence claim and the claim under WIS. STAT.
§ 101.11. See Barry, 245 Wis. 2d 560, ¶¶1, 3 (safe-place statute); see also
Wallow v. Zupan, 35 Wis. 2d 195, 200, 150 N.W.2d 329 (1967) (negligence).
Thus, the circuit court’s failure to explicitly mention the Larkins’ negligence claim
is irrelevant because a finding that no genuine issue of material fact exists is fatal
to the negligence claim as well as the claim under § 101.11.
¶33 On this point, we further observe that the Larkins treated the issue of
notice as applicable to both of their claims for negligence and a violation of WIS.
STAT. § 101.11 in their briefing below, and they failed to raise any argument
below that the notice element did not apply to their negligence claim. They also
failed to raise any argument at the second hearing on DBC’s motion for summary
judgment that the failure to separate their negligence claim from their claim under
§ 101.11 was problematic. Thus, the Larkins have also forfeited any argument
regarding the circuit court’s failure to explicitly address their negligence claim by
failing to raise the argument below. See Schill, 327 Wis. 2d 572, ¶45 n.21.
10
The Larkins further point to evidence that portions of the riser material appear to have
been cut away, but they similarly do not provide a timeline of when the riser material was cut or
who cut it. Therefore, this argument still fails to provide the length of time that the riser material
was loose.
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No. 2021AP349
¶34 Accordingly, we conclude that the circuit court properly granted
DBC’s motion for summary judgment, and we affirm.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
15