Too Much Crack
The plaintiff tripped on a sidewalk crack outside of a restaurant. Gulbrandsen v. H&D, Inc., 2008 AP 2990. The plaintiff brought claims based upon common law negligence and the Wisconsin safe place statute. The evidence was that the height of the crack was between ½ to ? of an inch. The circuit court granted the defendants' motion for summary judgment on both claims.
In order to proceed with a safe place claim, the plaintiff must show that (1) there was an unsafe condition associated with the structure, (2) the unsafe condition caused the plaintiff's injury, and (3) the defendants had either actual or constructive notice of the unsafe condition before the injury occurred. The court restated the longstanding rule that whether the place is reasonably safe depends upon the facts and circumstances of the particular case and is a question for a jury in all but the exceptional case.
In this instance, the appellate court found that the trial court incorrectly applied a mathematical standard. The particular height of the crack was not determinative. The fact of the crack and the discrepancy in heights raised a genuine issue of material fact as to whether or not the sidewalk was reasonably safe. The appellate court noted that photographs taken of the crack appeared to show a build-up of debris within the crack. The build-up would give rise to an inference that the crack had existed for some period of time. A patron of the restaurant also averred that he had first observed the crack about two months prior to the fall.
The same evidence which demonstrated questions of fact as to the safe place claim also raised material questions of fact as to the negligence claim. The appellate court reversed and remanded the case back to the trial court. The case demonstrates the difficulty defendants encounter with courts that are unwilling to make findings as a matter of law.
