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Court considers safe place statute

The state Supreme Court is considering a case that will determine whether a business can be held liable when a customer slips and falls even though there is no way to determine how long the hazard existed.

The case involves a woman who slipped on a ketchup-soaked French fry after attending a performance at the Brown County Veterans Memorial Arena. Although the woman cannot prove how long the French fry lay on the stairs, she maintains the group leasing the arena did not provide adequate janitorial staffing to ensure safe conditions.

The case arose when Nancy Megal attended a performance of Pocahontas on Ice at the arena in 1999. An estimated 4,220 people attended the performance at the arena, which seats more than 5,000.

As Megal reached the bottom of a crowded stairway following the performance, she stepped on a French fry, slipped, and fractured her ankle. The injury left her with permanent pain and disability.

“By applying the Strack exception, which is what this court is being asked to do, you begin to encroach into the area of invoking the safe place statute to in effect guarantee the safety of patrons at large scale venues.”

William J. Ewald,
Dennissen, Kranzush, Mahoney & Ewald, Green Bay

Megal sued the Green Bay Visitor & Convention Bureau (GBVCB), which leased the arena, alleging the group violated the safe place statute (Stat. 101.11). In order to succeed, Megal had to show: 1) an unsafe condition existed; 2) that condition caused her injury; and 3) the GBVCB had actual or constructive notice of the unsafe condition before the injury occurred.

Brown County Circuit Court Judge William M. Atkinson granted summary judgment in favor of the GBVCB, determining that Megal could not show that the group had notice of the hazardous condition.

Megal appealed and the Wisconsin Court of Appeals affirmed Atkinson’s decision in a 2-1 opinion authored by Judge Gregory A. Peterson and joined by Judge Michael W. Hoover. Judge Thomas Cane dissented. Megal appealed again and the Supreme Court accepted the case. The high court heard oral arguments April 1.

Appearing before the court on behalf of Megal, Jolene D. Schneider, of Peterson, Berk & Cross S.C. in Appleton, maintained that the GBVCB’s custodial coverage was deficient enough to qualify for the Strack exception to the general constructive notice rule in the safe places statute. In Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967), the court determined that the exception exists when there is “a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted.”

Schneider said that the case should be allowed to go to trial for a jury determination.

“First, a reasonable jury could find that the bureau had constructive notice of a hazardous condition because of the way in which it operated the arena,” Schneider told the high court. “Second, the court of appeals improperly precluded liability prior to trial by applying public policy considerations before the jury could make a determination of negligence.”

According to court records, there were usually two people responsible for janitorial services during performances. They were responsible for maintaining restrooms and cleaning spills throughout the arena.

William J. Ewald, of Dennissen, Kran-zush, Mahoney & Ewald in Green Bay, represented GBVCB during the oral arguments. Ewald noted that in cases where the Strack exception has been applied, the business have had much smaller spaces that fell within the exception.

“By applying the Strack exception, which is what this court is being asked to do, you begin to encroach into the area of invoking the safe place statute to in effect guarantee the safety of patrons at large scale venues,” Ewald told the court.

“A reasonable jury could find that the bureau had constructive notice of a hazardous condition because of the way in which it operated the arena.”

Jolene D. Schneider,
Peterson, Berk & Cross,
S.C., Appleton

Peterson’s majority decision in Megal raised concerns about the potential impact on other large venues.

He wrote: “How could the arena possibly have patrolled the entire facility to be on guard for something such as a spilled French fry? … Consider the ramifications for other public places … stadiums, theaters, restaurants, shopping malls. The list is endless. Imagine for example, the consequences for Lambeau Field when more than 70,000 people are trying to exit at the end of a football game. Are they all required to sit in their seats until custodians have inspected all the stairways, hallways, aisles and rows?”

Justice Jon P. Wilcox picked up on that line of questioning during oral arguments. During that discussion, he expressed concerns about strict liability for an arena.

Schneider responded, “What Lambeau Field or Miller Park does is not relevant to the case. It’s really only relevant in so far as evidence might be presented that would go to the standard of care. The court of appeals improperly precluded liability based on fears of what might happen at Lambeau Field when this case is really not about Lambeau Field.”

Appearing unconvinced, Wilcox said, “It is about this type of facility. It’s about the stadium here in Madison. It’s about the Brewers’ stadium. It’s about any large arena and what expectations one would have. And it’s about whether they would serve food.”

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Wisconsin Supreme Court

In his dissent, Cane indicated that Megal should have been allowed to take her case to trial. He noted that: “Patrons were allowed to take their food anywhere in the arena; the arena employed as few as two janitorial employees, with possibly only one working the night of Megal’s injury, to monitor the entire facility; there are no formal written procedures for inspection of the premises; and the employees do not conduct regular sweeps of the stairs or concourse areas to ensure they are clear of spills or other unsafe conditions. … Thus, a jury acting reasonably could charge the arena with having constructive notice of an unsafe condition…”

Several justices questioned Ewald regarding how many janitors should have been on site and whether that was they type of question that showed the need for a jury trial. Ewald noted that before the case could go to a jury, the question of the Strack exception needed to be answered. Given that there was no way of determining how long the French fry had been on the stairs, he said there was no way of showing that the GBVCB should have known about the hazard.

“In dealing with the question of do you get to a jury in a safe place case when there is no length of time evidence, you have to decide whether or not under those circumstances, the Strack exemption should be applied,” Ewald told the court.

The Supreme Court is expected to issue an opinion in the Megal case before its July recess.

Tony Anderson can be reached by email.

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