COURT OF APPEALS DECISION DATED AND FILED May 17, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. West Bend Mutual Insurance
Company appeals a summary judgment dismissing its negligence claim against
InterCon Construction, Inc., and Arch Insurance Company (collectively
“InterCon”). We conclude summary
judgment was inappropriate because the record viewed in the light most
favorable to
¶2 This case arises out of a sewer backup. West Bend Mutual insured Pember Companies,
Inc., which was replacing sewer and water mains in the City of St. Croix
¶3 Pember’s bypass system, consisting of six-inch flexible hoses, had been in place for at least a month. On the day of the sewage backup, InterCon was installing gas lines. InterCon informed Pember that it was going to be digging in the area and needed to move a Pember bypass hose.
¶4 At this point, the testimony of the two main witnesses diverges. InterCon foreman James Espeseth and Pember foreman Kevin Pigman were the primary witnesses to the events that transpired. Pigman claims that he told Espeseth he would allow the hose to be moved as long as he did not kink it, “otherwise it would obstruct the flow.” Pigman also testified, “He didn’t tell me he was going to be digging a … 12-foot long ditch by 2 feet by 3 feet deep. He just told me he needed to move my hose out of the way.” InterCon was digging in the area for at least an hour. Pigman was working elsewhere on Pember’s project and did not speak to Espeseth personally while he was digging or supervise Espeseth’s relocating of the hose.
¶5 Pigman first became aware that there was a problem when a motorist alerted him sewage was flowing from a manhole. Pigman discovered the cause of the backup when he followed the bypass hose and found it collapsed and kinked in the trench dug by InterCon. When Pigman found the kinked hose, he discovered that InterCon had not filled in the trench and InterCon’s backhoe was gone. Pigman pulled the hose out of the trench and placed it in such a way as to take out the kink, alleviating the backup. Pigman later approached Espeseth and explained, “I told him that he had dug a ditch and my hose collapsed in his ditch which caused the pump not to be able to pump because it was kinked.”
¶6 Conversely, Espeseth testified that he asked Pigman to move the entire bypass system to the other side of the street and Pigman refused. However, Pigman did say Espeseth could move the hose in order to dig. According to Espeseth, Pigman did not tell him the hose could kink. Pigman told Espeseth the hose contained sewage and Espeseth was aware the hose contained sewage because he observed it.
¶7 Espeseth stated that InterCon used its backhoe to dig under Pember’s hose, causing Pember’s hose to drape across its trench. After installing the gas line, Espeseth testified he needed to backfill the trench, requiring Pember’s hose to be moved. Espeseth contends he moved the hose and took care to make sure the hose did not kink when he moved it. Espeseth did not backfill the entire trench, but claimed he moved the hose five to six feet from the exposed, open area. After moving Pember’s hose, Espeseth left the immediate vicinity but did not communicate that fact to Pigman. When Pigman told Espeseth that he found the kinked hose in InterCon’s trench, Espeseth claimed it was not his fault because he had placed the hose onto a “flat spot that I had backfilled,” and “we didn’t have a ditch there.” Furthermore, Espeseth claimed the trench was only eighteen inches wide.
¶8
¶9 We review the circuit court’s grant of summary judgment using
the same methodology as the circuit court.
City of
¶10 In order to constitute a cause of action for negligence, there
must exist: (1) a duty of care on the
part of the defendant; (2) a breach of that duty; (3) a causal connection
between the conduct and the injury; and (4) an actual loss or damage as a
result of injury. See id., ¶28. Negligence is
ordinarily an issue for the factfinder and not for summary judgment.
¶11 Causation is a question of whether the breach of duty is a
substantial factor in causing the harm from which the damages are claimed. Fondell v. Lucky Stores, Inc.,
85
¶12 InterCon argues that the record fails to establish a duty to prevent the kink. InterCon insists the scope of its duty did not include assuming responsibility for the functioning of Pember’s temporary bypass system. InterCon argues that Pigman’s testimony established that the system was under Pember’s complete control. InterCon further asserts there could be any number of causes for the failure of the bypass system and no evidence established that InterCon caused the kink. InterCon contends that the record contains “nothing more than speculation and conclusory allegations as to how the failure in its bypass system occurred, and even more speculation tying the sewage backup to InterCon.”
¶13 However, viewing the evidence in the light most favorable to West Bend, as we are required to do on summary judgment, material questions of fact arise regarding a duty to move the bypass hose in a manner that would prevent kinking. If the jury believed Pigman’s version of events, Espeseth was told he could move the hose as long as he did not kink it. Pigman also told Espeseth that a kink in the line would obstruct the flow of the hose, which Espeseth knew contained sewage. Although Pigman testified that Pember was responsible for the bypass hose system in the weeks preceding the sewage backup, a reasonable jury could infer that on the day of the backup Espeseth assumed responsibility for moving the hose to facilitate its trenching operation.
¶14 Pigman’s testimony also leads to a reasonable inference that
InterCon breached its duty of care and caused the damages. After Pigman was alerted to a potential
problem, he followed the hose and found it kinked in InterCon’s trench that was
not backfilled. Moreover, Pigman was
disclosed as an expert witness and testified that the kinked hose caused the
sewage to backup. It is not dispositive
for purposes of summary judgment that there could be other causes for the
failure in the sewage bypass system. Accordingly, summary judgment was
inappropriate because the record viewed in the light most favorable to
¶15 InterCon also argues that West Bend raises for the first time
on appeal its theory that InterCon’s negligence arises out of Espeseth digging
underneath the hose, allowing the hose to drape across the trench and
kink. We are not persuaded. First, InterCon claims without record citation
that “[
¶16 In any event,
¶17 Accordingly, viewing the evidence in the light most favorable
to
By the Court.—Judgment reversed and cause remanded for further proceedings.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).