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COURT OF APPEALS DECISION DATED AND RELEASED October 3, 1995 |
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. 95-0473
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
LISA LEPAK,
AMY LEPAK, and
ASHLEY LEPAK, minors,
by their guardian ad
litem,
GEORGE BURNETT,
Plaintiffs-Appellants,
v.
BRYAN D. JOHNVIN,
SECURA INSURANCE,
a mutual company,
EMPLOYERS INS. CO.,
Defendants,
THOMAS E. and JOAN GARRITY,
and PRUDENTIAL PROPERTY
AND CASUALTY CO.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Brown County:
SUE E. BISCHEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Lisa Lepak, and her
daughters, Amy Lepak and Ashley Lepak, (hereinafter "the appellants")
appeal a summary judgment dismissing their wrongful death action against Thomas
and Joan Garrity and their insurer, Prudential Property and Casualty Co. This action arises out of a highway accident
death of Lisa's husband, Kevin Lepak (Lepak).
The appellants argue that the trial court erroneously held that it was
the plaintiff's burden to prove the lack of Lepak's contributory
negligence. They further argue that an
issue of material fact exists whether Lepak's negligence exceeded Thomas
Garrity's (Garrity).[1] We reject these challenges and affirm the
judgment.
The appellants'
complaint alleges that at approximately midnight on September 15, 1990, as a
result of Garrity's negligence, Bryan Johnvin, who was operating a different
vehicle, negligently ran over Kevin Lepak, who was laying unconscious on U.S.
Highway 41. According to Johnvin's
statement, when he pulled onto the highway he noticed a motorcycle and two cars
in front of him. He traveled northward
behind this group of vehicles until he lost sight of them at the crest of a
hill. As he came over the hill, he saw
two vehicles facing him in his lane.
One was on the right-hand shoulder half-way on the pavement and the
other was on the left-hand shoulder, also half on the pavement. Both vehicles were flashing their headlights
from low to high beam.
Garrity testified that
when he came upon Lepak lying in the middle of the road, he only had time to
pull over and warn oncoming traffic by turning his car and flashing his
headlights. His unrefuted statement was
that there was not enough time to move the body before an oncoming car
approached.
Upon seeing the flashing
headlights, Johnvin slowed down to thirty-five miles per hour but did not see
anything in the roadway ahead. He continued
at thirty-five miles per hour and saw Lepak an instant before running over
him. He could not avoid him. Johnvin testified that Garrity's headlights
blinded him. He had to look away to get
the light out of his eyes.
Lepak died five days
later from injuries sustained in the accident.
It is undisputed that at the accident scene Lepak was administered
massive amounts of an intravenous solution that substantially reduced his blood
alcohol content by the time the hospital measured it to be .18%. The uncontroverted testimony of an accident
reconstructionist determined that Lepak was traveling at sixty to sixty-nine
miles per hour before braking. Neither
party offers direct evidence how Lepak came to be lying in the road.
The appellants initiated
this action against Johnvin and Garrity.
The negligence ascribed to Garrity was the flashing of headlights at
oncoming drivers. The trial court
dismissed the action against Garrity, concluding as a matter of law that
Lepak's causal negligence exceeded that of Garrity's. The appellants appeal the ruling.
The appellants argue
that the trial court improperly reversed the burden of proof, because it
concluded that Lepak's alcohol consumption and speed demonstrated that as a
matter of law his negligence was greater than Garrity's. When reviewing summary judgment, our review
is de novo. We apply the standards set
forth in § 802.08(2), Stats., in
the same manner as the circuit court. Kreinz
v. NDII Secs. Corp., 138 Wis.2d 204, 209, 406 N.W.2d 164, 166 (Ct. App.
1987). From the documents of record,
the non-moving party is entitled to the benefit of all favorable facts and
reasonable inferences drawn in his favor.
Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476-77
(1980). The purpose of summary judgment
is not to find facts, but to determine whether disputes of material fact exist
to require trial. Id.[2]
Generally, the
comparison of negligence is a question of fact, peculiarly within the jury's
province. Holzem v. Mueller,
54 Wis.2d 388, 393, 195 N.W.2d 635, 638 (1972). Nonetheless, in extreme cases, the degree of negligence may be
determined as a matter of law. Johnson
v. Grzadzielewski, 159 Wis.2d 601, 608, 465 N.W.2d 503, 506 (Ct. App.
1990) (Where it appears that plaintiff's negligence as a matter of law exceeds
that of the defendant, "it is not only within the power of the court but
it is the duty of the court to so hold.").
On the record before us,
we conclude that the undisputed facts demonstrate Lepak's negligence exceeded
Garrity's as a matter of law. Lepak had
a duty to exercise ordinary care for his own safety. See id.
"Evidence of intoxication is a proper consideration in determining
negligence only if it is found that the amount of alcohol consumed so affected
the person so as to appreciably lessen or impair his ability to exercise
ordinary care for his own safety."
Landrey v. United Servs. Auto. Ass'n, 49 Wis.2d 150, 158,
181 N.W.2d 407, 412 (1970); see Klinzing v. Huck, 45
Wis.2d 458, 468-69, 173 N.W.2d 159, 164 (1970). Here, the amount of alcohol consumed was nearly twice the
prohibited concentration of .10% under § 346.63, Stats., permitting the only reasonable inference that the
amount consumed appreciably lessened or impaired Lepak's ability to exercise
ordinary care for his own safety. It is
also undisputed that Lepak's speed of over sixty miles per hour was in excess
of the posted speed of fifty-five miles per hour. See § 346.57(4), Stats. Here, there was undisputed evidence of
negligent operation. Lepak's illegal
blood alcohol level, combined with his negligent excessive speed, left no issue
of fact with respect to the existence of Lepak's negligence to be determined by
a jury.
The appellants contend
that even assuming Lepak's negligence, a fact issue is presented by its
comparison to Garrity's negligence, which consisted of turning his vehicle the
wrong way and flashing bright headlights in the eyes of oncoming drivers. We disagree. Based on the undisputed facts before us, we conclude, as a matter
of law, that Garrity's negligence, if any, is less than Lepak's negligence of
driving a motorcycle in excess of sixty miles per hour with over .18% blood
alcohol content. The only negligence
ascribed to Garrity was that of flashing his headlights that were claimed to
have blinded the oncoming driver. Even
were that so, the oncoming driver should have been expected to behave
reasonably if blinded, and the only reasonable course of action for a blinded
driver is to stop his vehicle, which was the result Garrity was trying to
achieve.[3]
Flashing headlights is
only minimal negligence, if any, under the circumstances, which were an
insufficient period of time to return to the body and remove it from the
highway before the oncoming vehicle reached it. Garrity's course of action was reasonably calculated to alert
oncoming vehicles to a dangerous situation particularly here where the highway
was a divided four-lane.
The appellants argue,
however, that Lepak's negligence, as an unconscious person lying in the
roadway, cannot exceed Garrity's. This
argument ignores the undisputed facts of Lepak's blood alcohol and speed. While summary judgment standards require the
courts to give the benefit of all reasonable inferences to the non-moving
party, it does not require the court to ignore undisputed evidence because it
is unfavorable.
The appellants also
contend that Garrity must prove not only Lepak's greater negligence but also
that it was causally related to his accident.
See Klinzing, 45 Wis.2d at 468-69, 173 N.W.2d at
164. The appellants argue that there is
no proof of Lepak's causal negligence and that it is mere speculation to
conclude that because Lepak was intoxicated and lying in the roadway, his
negligence was a cause of the accident.
They argue that another vehicle, animal or mechanical failure may have
contributed to Lepak's loss of control and skid mark on the roadway and that
"[t]here is no evidence that Lepak was driving negligently" or that
Lepak's conduct caused his accident.
We conclude, as a matter
of law, that Lepak's excessive speed and .18% blood alcohol content were
causally related to an impaired ability to control his motorcycle. While there is no direct evidence of how
Lepak's body came to be lying in the roadway, time to react and speed affected
at least in substantial part his ability to operate and control his
motorcycle. Consequently, the
undisputed circumstantial evidence creates the only reasonable inference that
Lepak's negligence exceeded Garrity's and was a substantial factor resulting in
his position on the roadway.[4]
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] On a de novo review, we may affirm the judgment if the trial court reached the correct result but for the wrong reason. Because our review is independent of the trial court, it is unnecessary to address whether the trial court erroneously shifted a burden of proof. Liberty Trucking Co. v. DILHR, 57 Wis.2d 331, 342-43, 204 N.W.2d 457, 463-64 (1973).
[3] Cf., Quady v. Sickl, 260 Wis. 348, 353, 51 N.W.2d 3, 5 (1952) ("When the situation on a highway is such that one's vision is completely obscured, it is one's duty to slow down or even stop until the cause of such obscured vision is at least in part removed."); see also Schmit v. Jansen, 247 Wis. 648, 650-51, 20 N.W.2d 542, 543 (Motorist has right to rely on assumption that approaching motorist will observe the rules of the road.).