Atlantic Specialty Insurance Company et al v. United States of America

Filing 59

ORDER granting 32 Motion for Summary Judgment; granting 37 Motion for Court to Take Judicial Notice of Climatological Data and Google Maps Calculations; granting 52 Motion to Join. Signed by District Judge William M. Conley on 8/30/2017. (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ATLANTIC SPECIALTY INSURANCE
COMPANY,
Plaintiff,

OPINION AND ORDER

RICHARD LAND,

16-cv-282-wmc
Involuntary Plaintiff,

v.
UNITED STATES OF AMERICA,
Defendant.
While making a delivery for his employer Dunham Express, involuntary plaintiff
Richard Land allegedly fell on ice in the Middleton Post Office parking lot, injuring his
neck, back, shoulder and wrists.

Dunham’s occupational accident insurance carrier,

plaintiff Atlantic Specialty Insurance Company, now seeks money damages from the
United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. Specifically,
Atlantic alleges that the United States was negligent in failing to both divert water from
the parking lot and to treat the ice with salt or sand.1 Before the court is the United
States’ motion for summary judgment. (Dkt. #32.)2 For the reasons that follow, the
court concludes that Atlantic has failed to put forth sufficient evidence from which a

Atlantic also alleged a claim for violation of Wisconsin’s Safe Place Statute, Wis. Stat. § 101.11,
which the court previously dismissed, finding that the post office parking lot was not a public
place for purposes of that statute. (4/17/17 Op. & Order (dkt. #25).)
1

Only Atlantic Specialty responded to defendant’s motion for summary judgment, but
involuntary plaintiff Land filed a motion to join Atlantic Specialty’s brief in opposition to
defendant’s motion for summary judgment (dkt. #57), which the court will grant.
2

reasonable fact finder could find that defendant breached a duty of care. Accordingly,
the court will grant defendant’s motion for summary judgment.

UNDISPUTED FACTS3
A. Middleton Post Office
The United States Post Office in Middleton, Wisconsin, is located at 7613
Elmwood Avenue. The customer entrance and parking lot are on the north side of the
building. On the west side of the building, there is a loading dock area and parking area
for employees and delivery trucks. The loading dock area has a concrete pad that has
parking stalls for two trucks to unload side by side.
There are two catch basins in the west parking lot, one north of the concrete
parking pad and the other to the south.4 The photograph below shows the catch basin to
the right (or south) of Land’s truck as it faced the loading dock, the morning of the
accident:

Unless otherwise noted, the court finds the following facts to be material and undisputed when
viewed in the light most favorable to the non-moving parties.
3

Plaintiff disputes this fact, and others, on the basis that Land did not provide testimony to
support, at least, all aspects of the proposed fact. (See, e.g., Pl.’s Resp. to Def.’s PFOFs (dkt. #47)
¶ 7.) Still, there is no dispute that Statz’s declaration -- the other evidence cited for support -provides the necessary support for the proposed finding, and plaintiff has provided no basis to
dispute Statz’s representations as to the layout of the post office.
4

2

(Land Depo., Ex. 9 (dkt. #35-5).) There is a small pitched roof over the loading dock
area with a gutter that drains into a downspout on the north side of the loading dock
(barely visible in the picture) and into the catch basin north of the loading dock (not
visible). The roof on the remainder of the Middleton Post Office is flat.
Roberta Statz was the acting manager at the Middleton Post Office on March 14.
She typically arrived between 6:00 and 6:30 a.m., which she believes was her arrival time
that morning, although she was not certain of that by the time of her deposition.
Regardless, there is no dispute that she arrived before Land and was at the Post Office at
the time of his fall.

3

Statz parked in the south stall of the concrete parking pad. She then walked
around the back of her van and up the ramp leading into the loading dock area to enter
the building.

This path is well traveled, with approximately 30 people entering the

Middleton Post Office through the loading dock each day. Statz did not observe any ice
or experience any slippery conditions in the parking lot that morning, even in the area
where Land reported falling. Statz avers in her declaration that if she had observed ice or
experienced slippery conditions, she would have arranged for salt or sand to be applied,
or she would have done so herself. Statz further avers that she did not believe that there
would be ice present or forming given the temperature that day.

B. Land’s Accident
On March 14, plaintiff Richard Land drove a Dunham Express step van5 to the
Middleton Post Office to deliver two boxes of toner cartridge. Land arrived between 8:30
and 9:00 a.m., and parked his truck in the southern parking stall of the concrete pad in
the loading dock area, immediately behind Statz’s van.

In the complaint, Atlantic

Specialty and Land allege that he exited his truck and “stepped into a large hole filled
with ice and water.” (Pl.’s Compl. (dkt. #1) ¶ 11; Invol. Pl.’s Compl. (dkt. #3) ¶ 1.) At
his deposition, however, Land conceded that this description was not accurate. Instead,
Land claims that he stepped out of his truck on the passenger side, took several steps,
and then slipped on ice underneath water. While acknowledging that he saw the water
“Multi-step trucks (also known as walk-in delivery or step vans) are a type of light-duty and
medium-duty truck created for local deliveries to residences and businesses. They are designed to
be driven either sitting down or standing up, and often provide easy access between the driver and
goods, hence the name ‘Walk-In Delivery’ van.”
“Multi-stop truck,” Wikipedia,
https://en.wikipedia.org/wiki/Multi-stop_truck.
5

4

before stepping down, Land testified that he did not know there was ice underneath it.
Land further testified, consistent with Statz, that before falling, he did not see any ice in
the area where he fell. At his deposition, Land also testified that he did not expect ice
“because things were melting.” (Land Depo. (dkt. #35) 67.)
At approximately 9:30, Land reported to an employee that he had slipped and
fallen, hurting his neck, back, left shoulder and wrists. Land was then directed to Statz,
who took notes and photographs to create a report.
On the passenger side of Land’s truck and Statz’s van, there was water draining
from an area of residual snow adjacent to the building (not visible in the picture) into the
catch basin south of the loading dock area (as shown in the picture). Plaintiff Atlantic
contends that both water and ice were present, not simply water and that the photos
speak for themselves as to whether they depict ice and/or water. (Pl.’s Resp. to Def.’s
PFOFs (dkt. #47) ¶¶ 23-24.)

In contract, Statz avers that the water was not deep

enough to measure, and the pavement was clearly visible through it, which defendant
contends undermines any inference that the pavement was obscured by ice.
For his part, Land testified that he never saw ice in the area where he fell and,
when asked to review the photographs taken immediately after his fall, he could not
identify any visible ice in the area. (Def.’s Reply to Def.’s PFOFs (dkt. #55) ¶ 24 (citing
Land Depo. (dkt. #35) pp.79-81).) Still, Land maintained that there was a three to five
foot patch of ice under the water, next to his van.

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C. Climatological Data6
On March 14, 2014, the temperature at the Dane County Regional Airport in
Madison, Wisconsin, was 43 degrees at 9:00 a.m. and 49 degrees at noon.

The

temperature had been 36 degrees or above and increasing since 3:00 p.m. the previous
day, March 13. As plaintiff points out, however, that before those warmer temperatures,
it had been below freezing, though not for the 63 consecutive hours plaintiff claims.
(Def.’s Resp. to Pl.’s Add’l PFOFs (dkt. #56) ¶ 56 (explaining that the data only shows
freezing temperatures from 3:00 a.m. on March 12 to noon on March 13).)7 There was
no precipitation on March 13 or earlier on March 14, nor was it raining when Land fell.

OPINION
Liability under the Federal Torts Claim Act, 28 U.S.C. §§ 2671-80, is determined
by reference to state law.

Molzof v. United States, 502 U.S. 301, 305 (1992).

In

Wisconsin, a claim for common law negligence has four elements: (1) a duty of care
owed by the defendant; (2) a breach of that duty; (3) a causal connection between the
breach and plaintiff’s injury; and (4) an actual loss or damage as a result of the injury.
Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. For the
purposes of summary judgment, the government neither disputes that Land was injured
Under Federal Rule of Evidence 201(b), defendant requests that the court take judicial notice of
the local climatological data from the National Oceanic and Atmospheric Association for
Madison, Wisconsin, for March 2014. (Def.’s Mot. for Judicial Notice (dkt. #37).) The data
was collected from the Dane County Regional Airport, located 9 miles from the Middleton
Airport. (Id. at ¶¶ 1-.2) Plaintiff does not object to this motion. Indeed, plaintiff also purports
to rely on that same data to oppose summary judgment. As such, the motion will be granted, and
the court has considered this evidence in deciding the motion for summary judgment.
6

Defendant further points out that for the forty-eight hour period before 3:00 a.m. on March 12,
temperatures were above freezing. (Def.’s Resp. to Pl.’s Add’l PFOFs (dkt. #56) ¶ 29.)
7

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when he slipped and fell, nor that he suffered an actual loss or damages because of that
injury. Instead, defendant’s motion is focused on the scope of the duty of care and
whether defendant breached that duty.
Whether a duty of care exists and the scope of that duty is a question of law.
Brennder v. Amerisure Mut. Ins. Co., 2017 WI 38, ¶ 12, 374 Wis. 2d 578, 893 N.W.2d
193.

“[A]ll persons have a duty of reasonable care to refrain from those acts that

unreasonably threaten the safety of others.” Antwaun A. ex rel. Muwonge v. Heritage Mut.
Ins. Co., 228 Wis. 2d 44, 55, 596 N.W.2d 456, 461 (1999) (citing Klassa v. Milwaukee
Gas Light Co., 273 Wis. 176, 77 N.W.2d 397 (1956)). “This duty arises ‘when it can be
said that it was foreseeable that his act or omission to act may cause harm to someone.’”
Antwaun A., 228 Wis. 2d at 55, 596 N.W.2d at 461 (quoting A.E. Investment Corp. v. Link
Builders, Inc., 62 Wis. 2d 479, 483–84, 214 N.W.2d 764 (1974)).

As such, “the

existence of a duty hinges on foreseeability.” Antwaun A., 228 Wis. 2d at 56.
Whether a duty of care has been breached also turns on the reasonableness of
one’s actions and the foreseeability of injury under the circumstances. One breaches the
duty of ordinary care if he or she, “without intending to do harm, does something (or
fails to do something) that a reasonable person would recognize as creating an
unreasonable risk of injury.” Alvarado v. Sersch, 2003 WI 55, ¶ 14, 272 Wis. 2d 74, 662
N.W.2d 350 (citing Wis. JI-CIVIL 1005). While actual or even constructive notice of
the risk is not necessary to demonstrate negligence, see Megal v. Green Bay Area Visitor &
Convention Bureau, Inc., 2004 WI 98, ¶ 25, 274 Wis.2d 162, 682 N.W.2d 857, the risk
still must be foreseeable to establish a breach of the ordinary duty of care, see Behrendt v.

7

Gulf Underwriters Ins. Co., 2009 WI 71, ¶ 23, 318 Wis. 2d 622, 768 N.W.2d 568.
Plaintiff rightly points out that summary judgment is rarely appropriate in
resolving negligence claim. (Pl.’s Opp’n (dkt. #48) 3 (citing Wagner v. Dissing, 141 Wis.
2d 931, 946, 416 N.W.2d 655 (Ct. App. 1986).) As the Wisconsin Supreme Court
explained in Behrendt v. Gulf Underwriters Ins. Co., however, “where there is no genuine
issue of material fact as to the breach and where there is a lack of foreseeable risk, it can
be said as a matter of law that, based on the facts presented, there is no breach because
no properly instructed, reasonable jury could find the defendant failed to exercise
ordinary care.” 2009 WI 71, at ¶ 23 (internal citation and quotation marks omitted).
Plaintiff posits two core theories in support of her negligence claim:

(1) the

parking lot (more specifically, the water drainage system) was defectively designed,
resulting in water and ice buildup; and (2) defendant failed to treat the ice with salt or
sand.8 The court will address each theory in turn.

I.

Drainage System
With respect to the first theory -- that a defect in the parking lot caused the ice

buildup -- the court agrees with defendant that on the facts of record, this claim required
expert testimony, even if viewed in the light most favorable to plaintiff. Since plaintiff
offers no such expert, this claim fails as a matter of law.
In its opposition brief, plaintiff describes four theories, citing to the complaint for support. The
first three -- failure to inspect and maintain; failure to warn; failure to repair, remove, eliminate,
remedy, clear or correct -- all concern the parking lot design, and specifically the design of the
water drainage system, or at least plaintiff fails to articulate another basis for these broad, vague
claims. The fourth theory addresses the failure to perform ice services. (Pl.’s Opp’n (dkt. #48)
9.)
8

8

Except for some obvious abnormality not alleged or argued by plaintiff, any
negligence claim premised on a defect in the design of the Middleton Post Office’s parking
lot would fall outside common knowledge. As described above, there were two catch
basins in the area close to where Land slipped and fell.

Certainly, expert testimony

would be required to assess the proper placement of catch basins in reference to existing
buildings and parking lot, as well as the grade and slope of the parking lot, likely impact
of sun and shadows, and the accumulation of snow, water and ice, among other
considerations. See Lees v. Carthage Coll., 714 F.3d 516, 522 (7th Cir. 2003 (“Where all
the specifics of a defendant’s duty of care involve specialized knowledge, plaintiffs must
introduce expert testimony to establish this element of a negligence claim.”); Payne v.
Milwaukee Sanitarium Found., Inc., 81 Wis. 2d 264, 276, 260 N.W.2d 386, 392 (1977)
(“Expert testimony should be adduced concerning those matters involving special
knowledge or skill or experience on subjects which are not within the realm of the
ordinary experience of mankind, and which require special learning, study or
experience.”).
If the evidence demonstrated a failure on the part of defendant to address these
factors in any way, then the defect and the risks associated with water build-up and ice
formation might be obvious and foreseeable to a lay person. Here, however, defendant
devised a solution involving catch basins, a gutter system and a slanted section of the
roof. As the trier of fact in FTCA claims, this court would have no basis for determining
without expert testimony that the Middleton Post Office’s loading dock and lot design
was defective, causing a reasonably foreseeable risk of injury.

9

See, e.g., Holschbach v.

Washington Park Manor, 2005 WI App 55, ¶ 14, 280 Wis. 2d 264, 694 N.W.2d 492
(affirming grant of summary judgment to defendant in slip and fall accident where “the
record does not lead us to conclude the downspout was built other than in the ordinary
and usual way as an ordinary and usual addition to a building”); Oxman v. One Beacon Ins.
Co., 2005 WI App 233, ¶ 12, 287 Wis. 2d 828, 705 N.W.2d 905 (unpublished)
(affirming entry of summary judgment in defendant’s favor on common law negligence
claims where plaintiff failed to offer expert testimony to determine whether placement of
rug in a public doorway violated duty of ordinary care).
If anything, the evidence is to the contrary, since the overhanging dock gutter is
designed to flow north away from the area of plaintiff’s fall into the north drainage basin.
Indeed, the only evidence of the source of water draining to the south basin is a very
small, residual pile of snow to the south of the dock and another, barely visible pile even
further south. In short, the only evidence is of ordinary drainage having nothing to do
with the loading dock, much less with its design.9 (Land Depo. (dkt. #35) 71-73, Ex.
11.)

II.

Treating Ice Build-Up
This leaves plaintiff’s second contention that defendant breached a common law

duty of ordinary care by failing to treat the ice with salt or sand. While, premises are
merely required to be “reasonably safe” under the common law, Gould v. Allstar Ins. Co.,

If anything, a question might be asked as to why the acting manager regularly parked in one of
the two docking spots, preventing trucks from stopping closer to the protective and apparently
drier overhang area, but there is no claim of negligence in this record.
9

10

59 Wis. 2d 355, 361, 208 N.W.2d 388, 391 (1973), defendant argues it is entitled to
summary judgment under case law applying the higher standard of care of the
Wisconsin’s Safe Place Act. See Megal, 2004 WI 98, at ¶ 23 (“The standard of care that
the safe-place statute establishes is a higher standard of care than that which the law
imposes through common-law negligence.”). Even under this higher standard, property
owners are not required to ensure their premises are completely free of all defects and
hazards. See, e.g., Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 169, 124 N.W.2d 86, 89
(1963) (affirming entry of summary judgment in defendants’ favor on Safe Place Act
claim involving slip and fall in parking lot, explaining “defendant's duty did not extend to
making the parking lot absolutely safe”).
The question for summary judgment then is whether the undisputed record would
support a finding that the risk of injury from ice formation was reasonably foreseeable,
thus requiring treatment of the ice with sand and salt.

On this question, plaintiff’s

evidence is sorely lacking. Plaintiff has offered no evidence that anyone was aware of ice
forming in the area around Land’s fall. On the contrary, the only evidence is that acting
manager Statz walked by that area on her way into the Post Office sometime before
Land’s arrival, and she avers seeing no ice. While somewhat self-serving and speculative,
Statz also avers without contradiction that she would have asked someone to salt or sand
it or done so herself had she seen ice that morning. No other employee or frequenter
that morning mentioned any ice. Finally, Land, himself, testified that he saw no ice
before falling.
In response, plaintiff contends that the “photographs speak for themselves,” but

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the photographs are inconclusive at best and seem to show only water in the area where
Land allegedly fell at worst. Accordingly, there would appear no evidence that anyone at
the Post Office had notice (actual or otherwise) that the wetness was ice, much less that
there was ice under the water.
Of course, plaintiff need not show actual (or even constructive) knowledge of ice.
Still, there must be some basis for finding that the risk of ice formation was foreseeable.
Even the climatological data undermines such a finding, or at least plaintiff has failed to
explain otherwise. At the time of Land’s fall, the temperatures were above freezing and
continuing to rise. While this warm-up may not have been sufficient to entirely melt the
snow ground cover -- a point plaintiff harps on -- the only evidence of snow or ice are the
relatively residual spots that stubbornly remain in shade long after it has melted
everywhere else.

Plaintiff offers no basis for explaining, through expert testimony or

otherwise, why one would foresee ice still remaining under water run-off when the
temperature at the time of Land’s fall was 43 degrees and had been above freezing for the
prior 6 hours.
Of course, this is certainly possible, and indeed for purposes of summary judgment,
the court finds it happened just so based on Land’s testimony to that effect, but no
evidence suggests that it was reasonably foreseeable that ice was lingering beneath the
water meandering to the south basin at the time of Land’s slip and fall, or that this was
so in the hours or days leading up to that accident. As such, any negligence theory based
on defendant’s failure to treat that ice with sand or salt fails as a matter of law.

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ORDER
IT IS ORDERED that:
1) Defendant the United States of America’s motion for summary judgment (dkt.
#32) is GRANTED.
2) Defendant’s motion for court to take judicial notice of climatological data and
google maps calculations (dkt. #37) is GRANTED.
3) Involuntary plaintiff Richard Land’s motion to join Atlantic Specialty’s
opposition (dkt. #52) is GRANTED.
4) The clerk of court is directed to enter judgment in defendant’s favor and close
this case.
Entered this 30th day of August, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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