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Oxman v. One Beacon Insurance Co.9/7/2005
Before Wedemeyer, P.J., Fine and Curley, JJ.
Pamela E. Oxman appeals a summary judgment dismissing her personal-injury claims against Herman Weingrod, d/b/a the Phoenix Building, and its insurer, One Beacon Insurance Company. Oxman claims she was injured when she tripped on a floor mat and fell down a small set of stairs in the front entrance to the Phoenix Building. She asserts that there are genuine issues of material fact that preclude summary judgment. We affirm.
I.
The Phoenix Building is a seven-story office building in Milwaukee. The front entrance of the building has an outside set of doors, a set of stairs going up to a landing, and inside doors leading to a lobby. Oxman sued Weingrod and One Beacon Insurance Company, claiming that she tripped over a bunched-up floor mat that was holding the inside doors open and fell down the stairs. She alleged both common-law negligence and a violation of the Safe Place Statute, WIS. STAT. ยง 101.11.
According to Oxman's deposition testimony, she was leaving her work in the Phoenix Building around 3:30 p.m. on April 28, 2000, when she saw a floor mat "bunched up" between the doorframe and the doors. Oxman testified that she pushed the left door open and, as she stepped on the landing, she tripped on the floor mat and fell down the stairs. Oxman claimed that she did not know who put the floor mat there, or how long it had been there before she saw it. She testified that, in the past, someone had propped open the doors with bricks and ashtrays to, she assumed, air out a sewer smell in the building. She also claimed that after her accident the door was propped open with a doorstop. She admitted that the stairwell was well lit, and that there were no structural defects in connection with her fall. She did not and does not work for Weingrod.
Weingrod, the owner and manager of the Phoenix Building, submitted an affidavit in support of his motion for summary judgment. He averred that, on the day of the accident, neither he nor anyone on the building's maintenance staff had propped open the inside doors with the floor mat. He claimed that he did not know who had propped the doors open or how long they had been propped open before Oxman fell. Weingrod testified at his deposition that he had never seen the interior doors to the building propped open with ashtrays or bricks. He further testified that smokers sometimes propped the outside doors open with objects like bricks or ashtrays when they went outside to smoke. Weingrod acknowledged that there was a problem with a sewer smell "primarily in the spring," but claimed, however, that when this happened, someone would call the Sewerage Commission, the Sewerage Commission would fix a problem with the sewer lines, and the odor would be eliminated.
Rick Fiedorczyk, a maintenance employee, testified at his deposition that he had never used the floor mat to hold the doors open, and that he did not know that the doors were propped open on the day of the accident. He claimed that the sewer smell came from outside of the building, and that when the Sewerage Commission inspected the Phoenix Building's facilities, they did not find any problems.
Weingrod and One Beacon Insurance Company sought summary judgment, asserting that Weingrod was not liable under the Safe Place Statute for Oxman's injuries because he did not have either actual or constructive notice that the floor mat was used to prop the doors open. See Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361, 362 (1967) (generally owner of building must have actual or constructive notice of alleged defect to be liable under Safe Place Statute). Oxman claimed t
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