Neuzerling v. Costco Wholesale Corp.

SHIELA S. NEUZERLING, and MICHAEL NEUZERLING, Plaintiffs, v. COSTCO WHOLESALE CORPORATION, Defendant.

Case No. 18-CV-1539

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

August 13, 2020

DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

1. Background

On August 24, 2015, Shiela S. Neuzerling was shopping with her husband, Michael Neuzerling, at the Costco in Pewaukee, Wisconsin. (ECF No. 47, ¶¶ 1, 5.) Sheila went to the women's restroom, which is located at the end of a hallway that includes a family restroom, a men's restroom, an employee timeclock, a drinking fountain, an electrical closet, and an office. (ECF No. 47, ¶ 8.) After Sheila left the restroom and was walking down the hallway she slipped and fell. (ECF No. 47, ¶ 14.) There was some water on the floor in the area where Sheila fell. (ECF Nos. 47, ¶ 38; 53, ¶ 6.)

The Neuzerlings filed suit against Costco, alleging negligence, violation of Wisconsin's safe place statute, and loss of society, companionship, and consortium. (ECF No. 1-1.) Costco removed the action to this court (ECF No. 1) and all parties consented to have a magistrate judge preside (ECF Nos. 32, 33, 36, 37). Costco has moved for summary judgment, and that motion is ready for resolution. (ECF No. 42.)

2. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it "might affect the outcome of the suit" and a dispute is "genuine" only if a reasonable factfinder could return a verdict for the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment the court is to "construe all evidence and draw all reasonable inferences from the evidence in" favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008); Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001)). "The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and [in] opposition to the motion for summary judgment." White v. City of Chi, 829 F.3d 837, 841 (7th Cir. 2016).

It is undisputed that Wisconsin law applies in this diversity action. RLI Ins. Co. v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008).

3. Analysis

3.1. Wisconsin's Safe Place Statute

Wisconsin's safe place statute does not create a distinct cause of action but "instead establishes a duty greater than that of ordinary care imposed at common law." Barry v. Emplrs. Mut. Cas. Co., 2001 WI 101, ¶18, 245 Wis. 2d 560, 630 N.W.2d 517; see also Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶96, 262 Wis. 2d 539, 664 N.W.2d 545. Under Wis. Stat. § 101.11 an employer is required to "furnish and use safety devices and safeguards, and ... adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and ... do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters."

There is no dispute that Costco was an "employer" under the statute, see Gennrich v. Zurich Am. Ins. Co., 2010 WI App 117, ¶11, 329 Wis. 2d 91, 789 N.W.2d 106, or that the Neuzerlings were "frequenters" of Costco's premises. Thus, Costco was required to inspect its premises to make sure they were safe for "frequenters" such as the Neuzerlings. See Wis. Bridge & Iron Co. v. Indus. Comm'n, 8 Wis. 2d 612, 618, 99 N.W.2d 817, 821 (1959). However, "'safe' is a relative term." Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶10, 274 Wis. 2d 162, 682 N.W.2d 857. The obligation to inspect premises to make sure they are safe does not require a property be free of any hazards. Id.

"Just because a place could be made more safe, it does not necessarily follow that an employer or owner has breached the duty of care established by Wis. Stat. § 101.11(1)." Megal, 2004 WI 98, ¶10. Moreover, the safe place statute "does not require an employer or an owner of a public building to be insurers of frequenters of the premises." Szalacinski v. Campbell, 2008 WI App 150, ¶27, 314 Wis. 2d 286, 760 N.W.2d 420 (quoting Megal, 2004 WI 98, ¶9). Thus, "[t]he 'mere happening of an accident does not automatically establish that a place is not safe within the meaning of the safe place statute or that someone was negligent under the common law.' We do not subscribe to 'post hoc, propter hoc.'" Moulas v. PBC Prods., 213 Wis. 2d 406, 417, 570 N.W.2d 739, 743 (Ct. App. 1997) (quoting McGuire v. Stein's Gift & Garden Ctr., Inc., 178 Wis. 2d 379, 397-98, 504 N.W.2d 385, 392-93 (Ct. App. 1993)).

Rather, "[i]n order for an employer or owner to be subject to the standard of care established by Wis. Stat. § 101.11(1) for any unsafe condition of the premises, the employer or owner must have notice that an unsafe condition exists." Megal, 2004 WI 98, ¶11. Notice may be either actual or constructive. Id. An employer is said 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. at ¶12

"Ordinarily, constructive notice requires evidence as to the length of time that the condition existed." Megal, 2004 WI 98, ¶12. This does not require a plaintiff to identifyspecifically when the hazard appeared but merely that the hazard existed long enough for a reasonable property owner to have addressed it. Correa v. Woodman's Food Mkt., 2020 WI 43, ¶18, 391 Wis. 2d 651, 943 N.W.2d 535. "The length of time required for the existence of a defect or unsafe condition that is sufficient to constitute constructive notice depends on the surrounding facts and circumstances, including the nature of the business and the nature of the defect." Megal, 2004 WI 98, ¶13.

Costco argues that Sheila's claim fails because she cannot prove that Costco had actual or constructive notice of the water on the floor prior to her fall. (ECF No. 43 at 5.) Sheila concedes that Costco did not have actual notice of the water on the floor (ECF No. 53, ¶ 7) but argues that a reasonable jury could find that Costco had constructive notice of the water on the floor.

Rose Sorensen, a member of Costco's Member and Security Services team, was responsible for performing hourly walk-throughs of the store to check for hazards, including water on the floor. (ECF No. 53, ¶¶ 2-3.) The last part of the store that Sorensen inspected every hour was the hallway where Sheila fell. (ECF Nos. 47, ¶ 34; 53, ¶ 3.) Sorensen would complete her walk-throughs by entering the office off that hallway and having a manager sign paperwork confirming that she completed the hourly walk-through. (ECF No. 53, ¶ 3.) Sorensen testified that she completed a walk-through at 3:45 PM, which was fifteen minutes before Sheila fell. (ECF No. 47, ¶ 32.) Sorensen did not see any water on the floor in the hallway. (ECF No. 47, ¶ 35.)

The Neuzerlings "dispute" this testimony, as they do many of Costco's other proposed findings of fact, on the basis that "whether her testimony is true is an issue of credibility subject to jury determination." (ECF No. 47, ¶ 32.) However, the Neuzerlings offer no evidence suggesting that Sorensen is being untruthful. A non-movant's hope that a jury might inexplicably reject uncontradicted testimony is not a basis for denying summary judgment. Thus, the court accepts as undisputed every proposed finding of fact to which the Neuzerlings' only basis for disputing the fact is that a jury might reject the uncontroverted evidence. (See ECF No. 47, ¶¶ 18, 22, 23, 25, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 39.)

Costco points to Sorensen's hourly inspection as evidence that the water had been on the floor for, at most, fifteen minutes, and that it was doing all that was reasonably required to ensure that its store was safe. Sheila argues that Sorensen's hourly inspections is actually evidence that Costco had constructive notice of the water.

Sheila points to Rudzinski v. Warner Theatres, Inc., 16 Wis. 2d 241, 114 N.W.2d 466 (1962), a case in which the plaintiff slipped on beer in the lobby of a theater. Although there was no evidence as to how long the beer had been on the floor, the court concluded that the jury could reasonably conclude that the theater had constructive notice of the spill because an usher had been seated with a view of where the plaintiff fell. Id. at 249, 114 N.W.2d at 470. Sheila argues:

Just like the facts in Rudzinski, however, the length of time that the water was presented is immaterial because the water was in the plain view of theCostco employees who walked in the hallway or in and out of the office, including Rose Sorensen, who allegedly did a safety walk through the area shortly before Ms. Neuzerling's fall.

(ECF No. 48 at 10.)

The unusual fact in Rudzinski that allowed for departure from the rule that constructive notice requires evidence of the length of time the condition existed was that the spot where the plaintiff fell was within the constant view of an usher. Thus, even if the beer had been on the floor for just a few moments, the usher was in position to have noticed it.

Although Costco employees may have frequently passed through the hallway where Sheila fell, there is no evidence that they were there constantly, as was the usher in Rudzinski. Sheila has not offered any evidence that any Costco employee had been in the hallway in the fifteen-minute interval between Sorenson's inspection and the time she fell.

This fact also distinguishes Hendrix v. Secura Ins., 2020 WI App 10, 390 Wis. 2d 833, 939 N.W.2d 876, 2020 Wisc. App. LEXIS 45, an unpublished case relied upon by Sheila, in which the defendant moved for summary judgment, arguing that the plaintiffs had not provided...