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COURT OF APPEALS DECISION DATED AND RELEASED January 16, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2718-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DANIEL A. OLSON,
Plaintiff-Appellant,
v.
CORRELL, INC., and
LIBERTY
MUTUAL INSURANCE
COMPANY,
Defendants-Appellants,
HI-WAY EXPRESS, INC.,
VANLINER INSURANCE
CO.,
Defendants-Respondents,
LUMBERMENS MUTUAL
CASUALTY CO.,
AFFILIATED
UNIVERSITY PHYSICIANS,
Third Party Defendants.
APPEAL from an order of
the circuit court for Dane County: MARK
A. FRANKEL, Judge. Reversed.
Before Eich, C.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Daniel Olson, Correll, Inc. and Correll's insurer,
appeal from a summary judgment dismissing Olson's complaint against Hi-Way
Express, Inc., and its insurer.[1] Olson was injured while unloading a truck
containing tables manufactured and loaded by Correll at its plant 1,148 miles
away. Hi-Way Express owned the truck
and delivered the tables from Correll's plant to the place of Olson's
injury. The issue is whether we can
conclude as a matter of law, from the materials submitted on summary judgment,
that Hi-Way Express cannot be held liable for Olson's injury. Because the submissions do not allow that
conclusion, we reverse.
Olson
was injured inside the truck when a stack of the tables fell on him without
warning. In deposition testimony, Olson
admitted that the Hi-Way Express employee on the scene did nothing at the time
of the accident to cause it. Solely on
the basis of that testimony, Hi-Way Express moved for and received summary
judgment.
We review the trial
court's decision on summary judgment using the same procedures and without
deference to its decision. In re
Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582 (Ct.
App. 1983). If, as here, the complaint
states a claim and the pleadings place factual issues in dispute, we next
determine whether the moving party has made a prima facie case for summary
judgment. Id. at 116, 334
N.W.2d at 582-83.
In this case, Hi-Way
Express has failed to do so. Its
submissions establish only that it was not causally negligent at the time of
the accident. Left open is the question
whether some earlier negligence in securing or shifting the load of tables
during the 1,148 mile trip may have caused it to fall on Olson. It appears undisputed that Hi-Way Express
assumed the duty of securing the tables during the trip, and that Hi-Way
Express delivered and helped unload tables at several previous stops. Because the issue of Hi-Way Express' prior
negligence remains unresolved by summary judgment, the matter must proceed to
trial on Olson's claim.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.