CA Blank Order

Hon. Richard G. Niess

Circuit Court Judge, Br 9

Dane County Courthouse

215 South Hamilton, Rm 5103

Madison, WI 53703

Carlo Esqueda

Clerk of Circuit Court

Dane County Courthouse

215 S. Hamilton, Rm. 1000

Madison, WI 53703

Timothy S. Knurr

Gruber Law Offices, LLC

100 E. Wisconsin Ave., Ste. 1650

Milwaukee, WI 53202

Abigail Potts

Assistant Attorney General

P. O. Box 7857

Madison, WI 53707

You are hereby notified that the Court has entered the following opinion and order:



	2013AP854	Ada Sattler v. Gerald C. Gibson (L.C. # 2009CV5335)

Before Blanchard, P.J., Sherman and Kloppenburg, JJ.

The estate of Norman Wagner appeals a judgment dismissing its action against Gerald Gibson, a certified nursing assistant who worked at the Union Grove Wisconsin Veterans’ Home at the time of Wagner’s death. The complaint alleged that Gibson was negligent and violated ministerial duties, leading to Wagner’s death. The circuit court dismissed the action at the close of the plaintiffs’ case, concluding that there was no evidence of a breach of a ministerial duty and insufficient evidence that any breach of a duty was a substantial factor causing Wagner’s death. Upon our review of the parties’ briefs and the record, we conclude at conference that the judgment should be summarily affirmed for lack of proof of causation.[1]

Wagner was an eighty-seven-year-old man suffering from Alzheimer’s dementia. Because he had a history of wandering, his family requested a 2:00 a.m. bed check. Gibson, who worked the 11:00 p.m. to 7:00 a.m. shift, performed a bed check at 1:30 a.m. At that time, Wagner appeared to be asleep in a chair. Believing that Wagner was not in need of any assistance, Gibson did not disturb him and went about his business. At 7:42 a.m., Wagner was found dead outside the building. He apparently exited through a door that locked behind him, leaving him in light clothing in two degree weather. The parties stipulated that Wagner could have died in as little as twenty minutes or as long as one hour after he left the building. The cause of death was determined to be cardiac arrhythmia secondary to environmental hypothermia.

To establish liability, the plaintiffs must show to a reasonable certainty based upon the greater weight of the evidence that Gibson’s negligence or breach of a duty was a substantial factor causing Wagner’s death. Wis JI—Civil 1500 (2006). A mere possibility of causation is not sufficient. When the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, the court must direct verdict for the defendant. Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 460, 267 N.W.2d 652 (1978).

Here, the court properly dismissed the action for lack of proof of causation. As the court noted, whether Gibson could have said or done anything to prevent Wagner from leaving the building would have been utter speculation. It is not clear that Wagner left the building during Gibson’s shift. There is no reason to believe that Wagner would not have wandered from the building if Gibson had awakened him, spoken with him, or put him in bed at the time of the bed check.

The estate cites Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990), for the proposition that a plaintiff need demonstrate only that proper treatment could have lessened or avoided the harm. However, Ehlinger has been limited to cases involving medical omission and misdiagnosis. Beacon Bowl, Inc. v. Wisconsin Elec. Power Co. 176 Wis. 2d 740, 784-86, 501 N.W.2d 788 (1993).

Finally, the estate did not file a reply brief, in effect conceding Gibson’s argument regarding causation. While the estate’s brief-in-chief mentioned the causation issue, the argument is not fully developed and the estate identifies no specific act or omission by Gibson that was a substantial factor in Wagner’s death.

IT IS ORDERED that the judgment is summarily affirmed. Wis. Stat. Rule 809.21(1) (2011-12).

[1] Because we affirm the judgment on the basis of causation, we need not review the trial court’s decision regarding the ministerial duty exception to governmental immunity.