Freidig v. Target Corp.

CARLA FREIDIG, Plaintiff, v. TARGET CORPORATION, Defendant.

17-cv-827-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

December 19, 2018

OPINION and ORDER

Plaintiff Carla Freidig slipped on a puddle and fell in a store owned by defendant Target Corporation. She says that the fall injured her wrist, and she sued Target under Wisconsin's common law of negligence and Wisconsin's safe-place statute, Wis. Stat. § 101.11. Target moves for summary judgment on both claims. Dkt. 15. Freidig concedes that she cannot support a claim for negligence, so the court will grant Target's motion on that claim, which leaves only her safe-place claim.

Target contends that Freidig's claim under the safe-place statute fails for two reasons: Freidig cannot show that the fall caused her wrist injury; and Target did not have notice of the puddle. The court will deny the motion for summary judgment on Freidig's safe-place claim. Target has security video of the fall itself, which is enough to allow a reasonable jury to find that the fall caused the injury to Freidig's wrist. So causation is a disputed fact that will have to be resolved at trial.

The notice issue is complicated by Target's failure to preserve video showing what happened before the fall itself, despite Target's policy to preserve video of the 20 minutes before and 20 minutes after such an incident. A Target employee had walked near the area 10 to 15 minutes before the fall, and she gave a statement that she was not aware of anyone else being in the area before the fall. The lost video might have confirmed the employee's statement, which suggests that the puddle was there long enough to put Target on notice of the potential hazard. The court concludes that Target had a duty to preserve the video recording of the lead-up to Freidig's fall and that Freidig was prejudiced by Target's failure to do so. As a remedy under Rule 37(e)(1), the court will deem Raemisch's statement that she was the last person to walk through the area before Freidig to be undisputed for the purposes of summary judgment. Based on this statement, a reasonable jury could conclude that the puddle was present long enough to give Target constructive notice of the hazard.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

On July 2, 2016, Carla Freidig was walking through an empty checkout lane at a Target store. Freidig slipped on a puddle and fell on her knees. While falling, she reached out with her left hand and braced herself on the checkout counter.

After the fall, Target employees came to help Freidig. She had pain in both of her knees and in her left toes. She did not report any other pain at that time. Target employees gave Freidig ice for her knees and toes. An employee inspected the area where Freidig fell and found a puddle of clear liquid that was about the size of a basketball. Dkt. 29, ¶ 12. Freidig filled out a guest incident report that said she hurt her knees and toes because she slipped on a puddle. Dkt. 17-3.

Target investigated the accident and took a formal, recorded statement from Sarah Raemisch, a Target employee. Dkt. 17-4. Raemisch said she had walked through that area 10 to 15 minutes prior to Freidig's fall. She did not notice any liquid on the floor, but she only "sometimes" looks for spills and hazards. Id. at 3. She said that "to [her] knowledge," she was the last person to walk through the area before Freidig. Id. She was facing away from the checkout lane at the time of Freidig's fall. See id. at 1 ("when I heard it, it was like a loud kind of like scream . . . I turned around and she was kneeling").

Freidig's slip and fall were captured on Target's security camera. Target has a policy to preserve video recording of accidents in its stores, including from 20 minutes before the accident to 20 minutes after. But for reasons unexplained by either side, Target preserved video beginning only six seconds before Freidig's accident. So the recording does not show Raemisch's walk through the area or show how the puddle was formed. Recording that is not preserved is overwritten after 30 days, so the recording of the lead-up to Freidig's fall is gone for good. Dkt. 23-1, at 7.

Freidig went from the Target store to an urgent care clinic for the pain in her knees and toes. She did not complain about any other injuries during her visit. Freidig received a brace for one knee and was told that if she did not recover in a few days she should make a follow-up appointment with her family practice doctor. Freidig's knee improved, and she did not make a follow-up appointment nor seek any other treatment for the knee injury.

One or two weeks later, Freidig went to Door County for a vacation.¹ While there, she noticed pain in her left wrist for the first time. Freidig self-treated the pain by purchasing a wrist splint at a pharmacy. After Freidig returned from Door County, she made a doctor's appointment for September 1. For the rest of July and August, Freidig continued wearing the wrist brace and continued to feel pain when she exerted herself. After the September 1 appointment, Freidig received treatment for wrist pain, culminating with surgery in February 2017. No doctor rendered an opinion as to whether the July 2 fall caused the wrist injury.

Freidig exercises about six times per week, often by following a video called "Insanity by Beachbody." The Insanity workout includes moves such as burpees (an exercise where the person places her hands on the ground, kicks her feet out and back in, and then stands up) that put strain on Freidig's wrists. Freidig testified that she did "some sort of exercise" between the day of the fall and her trip to Door County, Dkt. 31, ¶ 55, but she could not remember if she specifically did the Insanity workout. Dkt. 19 (Freidig Dep. 79:2-4). Freidig then brought the Insanity video with her to Door County, Id. at 78:6-17, but she was unable to perform the Insanity workout because of her wrist pain. Id. at 82:15-18.

ANALYSIS

A claim under the safe-place statute has three elements: (1) there was an unsafe condition; (2) the unsafe condition caused the plaintiff's injury; and (3) the defendant had either actual or constructive notice of the unsafe condition before the injury occurred. Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶ 89, 262 Wis. 2d 539, 664 N.W.2d 545.

Target challenges Freidig's safe-place claim on the last two elements. Target contends that Freidig needs expert testimony to show that the fall caused her wrist injury. And Target contends that Freidig cannot show that Target had actual or constructive notice of the puddle that Freidig slipped on. The notice question is heavily intertwined with Freidig's motion for relief under Rule 37(e).

A. Standard at summary judgment

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will not be granted unless "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

B. Causation

Target contends that without a medical expert, Freidig cannot show that her wrist injury was caused by her slip and fall at Target, rather than her exercise routine. But the court is not persuaded that expert testimony is necessary in this case, and viewing the evidence in the light most favorable to Freidig, it concludes that a reasonable juror could find that Freidig's slip and fall caused her wrist injury.

"The test of cause in Wisconsin is whether the defendant's negligence was a substantial factor in contributing to the result." Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 267 N.W.2d 652, 654 (1978) (citations omitted); see also Hofflander, 2003 WI 77, ¶ 96 ("The safe place statute merely affects the level of one's duty of care; it does not alter the analysis of causation."). There may be more than one substantial causative factor in any given case, Soderlund v. Alton, 160 Wis. 2d 825, 467 N.W.2d 144, 147 (Ct. App. 1991), and a plaintiff needs to show only that a defendant's conduct was one of the factors. Schnabl v. Ford Motor Co., 54 Wis.2d 345, 195 N.W.2d 602, 607 (1972). A plaintiff does not need to rule out every alternative cause.

Expert testimony may be required to prove causation when the issue "involves technical, scientific or medical matters which are beyond the common knowledge of experience of jurors." City of Cedarburg Light and Water Comm'n v. Allis-Chalmers Mfg. Co., 33 Wis.2d 560, 149 N.W.2d 661, 662 (1967). But the Wisconsin Supreme court has warned that "the requirement of expert testimony is an extraordinary one" and "not to be taken lightly." State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (citing Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶ 28, 323 Wis.2d 682, 781 N.W.2d 88). Expert testimony is required only when the underlying issue is so esoteric or complex that it falls outside "the realm of the ordinary experience of mankind." Id. ¶ 28 (internal quotations omitted). Expert testimony may be useful in a given case, but that does not mean it is required. Cf Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases where Wisconsin courts have declined to require expert testimony).

Freidig's claim could certainly be strengthened by expert testimony explaining her injury, but her accident is well within the common experience of jurors. Freidig fell and used her left hand to brace herself, and she later developed a problem in her left wrist that required...