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Jones v. United States

United States District Court, E.D. Wisconsin

July 11, 2016

KAREN JONES, et al., Plaintiffs,



         In this action Plaintiff Karen Jones alleges that the Department of Veterans Affairs was negligent when it allowed a rolling chair to be present in the carpeted waiting room of a clinic it operated in Appleton, Wisconsin. This court denied the Defendants' motion to dismiss because it was conceivable some facts could emerge that would allow a factfinder to find negligence. The Defendants have now moved for summary judgment, arguing that discovery has produced no facts from which negligence could reasonably be inferred. For the reasons given below, the motion will be granted.

         I. Background

         The parties have stipulated to all of the material facts. The Plaintiff accompanied her husband to a medical appointment at the clinic in question. In the waiting room, there was a table with an unfinished puzzle and at least two chairs around it. One chair had wheels, while the other did not. The rolling chair was not one of the chairs normally present in the waiting room. Instead, it had apparently been moved into the waiting room from a nearby conference room, either by a clinic employee or a member of the public. The waiting room floor was carpeted with standard office-style carpeting. The Plaintiff sat down on the rolling chair. According to her, she did not notice that it had wheels, but there was nothing preventing her from noticing that fact. She recalls that the chair was positioned so that she did not have to move it at all prior to sitting down. She began working at the puzzle until, needing to reach a piece, she stood up. When she went to sit back down, however, the chair was no longer positioned underneath her. She fell and hit her tail bone and elbows on the floor.

         II. Analysis

         Under Fed.R.Civ.P. 56(a), a party is entitled to summary judgment if it can show there is no genuine dispute regarding material facts and that it is entitled to judgment as a matter of law. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). To establish a negligence claim, a plaintiff must prove: (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the injury. Miller v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 260, 580 N.W.2d 233 (1998).

         The focus in this case is on the duty of care owed by the clinic to the Plaintiff. The Plaintiff states that she had worked on a number of puzzles at various VA clinics over the years, but had never sat on a chair with wheels before. She did not notice that the chair in question had wheels, and had no reason to believe it did have wheels since she had never sat in a rolling chair in a VA clinic before. Much of the Plaintiff's argument rests on the premise that wheeled chairs are inappropriate for clinic waiting rooms because many clinic visitors have ambulatory problems. According to Shirley Probst, a former nurse at the clinic, wheeled chairs can pose a hazard because many of the clinic visitors are elderly and / or have trouble with walking and balance. Thus, the Plaintiff argues that the clinic breached its general duty to the public at-large by having hazardous chairs in its waiting room.

         The government argues that, in allowing a rolling chair to be present in the waiting room, it did not create an unreasonable risk of harm to the Plaintiff or anyone else. The Plaintiff has conceded that the chair in question is a standard office-style chair without any defects. The floor was level and carpeted, making it unlikely that a chair with wheels would roll very much without being pushed. Moreover, chairs with wheels are not some sort of novelty-millions of such chairs are found in homes and offices around the world. The government also argues that even if such chairs might conceivably be unsuitable for those with ambulatory issues, the Plaintiff herself was not handicapped in any way, and so it is largely irrelevant that the chairs could have been dangerous for other visitors to the clinic.

         The Plaintiff does not argue that rolling chairs are inherently dangerous, or even that they were dangerous to herself in particular. Instead, she asserts that such chairs could be dangerous to some people, and thus a rolling chair was inappropriate for use in a clinic waiting room. As Nurse Probst testified, such chairs pose a "slip, trip and fall hazard" (ECF No. 41-3 at 18:3) because a wheeled chair "could roll back or move when somebody was getting into it, especially if they were using an ambulatory aid." (Id. at 18:11-13.)

         The extent of the United States' liability under the FTCA is generally determined by reference to state law. Molzof v. United States, 502 U.S. 301, 305 (1992). In negligence cases, Wisconsin courts have long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. In that dissent, Judge Andrews explained that "[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." 248 N.Y. 339, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting). See Alvarado v. Sersch, 2003 WI 55, ¶ 13, 262 Wis.2d 74, 81, 662 N.W.2d 350, 353 (Wis. 2003). "A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable." Schuster v. Altenberg, 144 Wis.2d 223, 235, 424 N.W.2d 159, 164 (1988) (italics added).

         In the Plaintiff's view, negligence is a question of fact that the court could resolve in her favor: because the safety of others ("harm to someone") was threatened by the wheeled chair (according to Nurse Probst), the clinic breached a duty to the Plaintiff, as a member of the "world at large, " even though she herself did not have the ambulatory problems that allegedly made the chair hazardous in the first place. That is, if someone creates a hazardous condition, it does not matter that the condition was not hazardous to the particular plaintiff who was injured, or that the specific harm that ensued was not itself foreseeable. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 732, 275 N.W.2d 660, 665 (1979) ("The risk need not be to the particular plaintiff. The test [in Wisconsin] is whether unreasonable risk to the world at large is created by the conduct."); A. E. Inv. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 486, 214 N.W.2d 764, 767 (1974) ("it is not necessary that either the person harmed or the type of harm that would result be foreseeable. The act or omission in the face of foreseeable harm was negligence.") Thus, the fact that the Plaintiff was not elderly or handicapped in some fashion does not mean the Defendant had no duty toward her. A factfinder could conclude that there was a foreseeable risk of harm to some individuals as a result of allowing wheeled chairs in a clinic frequented by elderly and handicapped individuals.

         The Plaintiff is correct in her statement of the governing law, which does not require that the particular harm (or the particular plaintiff) be foreseeable so long as a dangerous condition was created. But the underlying question is whether it was foreseeable that allowing a rolling chair to be placed at a table in a carpeted waiting room could cause injury to someone. "Wisconsin law considers conduct to be negligent if it involves a foreseeable risk of harm to anyone." Bowen v. Lumbermens Mut. Casualty Co., 183 Wis.2d 627, 644, 517 N.W.2d 432, 439 (1994). Was it foreseeable that the use of a rolling chair in a carpeted waiting room could cause injury to people with ambulatory problems, as Nurse Probst testified?

         I conclude that Nurse Probst's subjective concerns about the hazards of using rolling chairs do not establish negligence here, or even create a genuine issue of material fact. It is likely true that the VA clinic is visited by a more infirm segment of the population than, say, a health club or beach resort; no doubt Nurse Probst is correct that some individuals who visit the clinic have trouble walking or standing. Even so, there are elderly and handicapped people everywhere in our society. They go to clinics, yes, but they also visit shopping malls, libraries, stores, and hair salons. There is nothing so unusual about a VA clinic that would make the use of such a common and benign product as a rolling chair inherently hazardous. The Plaintiff has cited no reason to believe it foreseeable that the placement of a standard-issue rolling chair in a carpeted room next to a table could have resulted in injury, even to a person with ambulatory issues. Nowhere did Nurse Probst explain how the use of an "ambulatory aid" (presumably a walker) could result in a wheeled chair simply rolling away from the individual while she was sitting down or standing up. Nurse Probst was a registered nurse in the psychiatric unit, not a safety expert. She cited no previous accidents with rolling chairs, nor did she cite any actual experience that could give rise to her view that such chairs posed a hazard. As already noted, wheeled chairs are in homes and offices everywhere and yet nowhere are they considered hazardous, particularly if they are on a carpeted surface. Because rolling chairs are so ubiquitous in society, the clinic was entitled to expect that patients and visitors alike would understand that the chair was mobile and that some small modicum of extra care would be required with their use. As such, it was not foreseeable that injury would result.

         In addition, any "danger" arising out of the fact that the chair had wheels was an obvious one. Even if not specifically perceived by this Plaintiff, there is no evidence that any reasonable visitor to the clinic would not have been able to discern that the chair in question had wheels. "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A (1965). It should go without saying that the obvious purpose of wheels is to enable mobility. Thus, in an Arizona case, the court granted summary judgment for the defendant nail salon after the plaintiff fell out of a rolling chair. There, the plaintiff was a 73-year-old woman described as "less than steady on her feet" due to her age and previous surgeries. Castro v. J.K. House, Inc., No. 1 CA-CV 10-0467, 2011 WL 2176154, at *1 (Ariz.Ct.App. May 24, 2011). The floor of the salon was "hard, smooth, textured tile." Id. The court of appeals affirmed the trial court's finding of no negligence, concluding that the plaintiff had "failed to present any evidence demonstrating a triable issue of fact that the conditions at Total Concept on the day of the accident were not open and obvious to Mrs. Castro or that Total Concept should have anticipated a risk of harm to her despite the open and obvious nature of these conditions." Id. at *4. Similarly, in Smith v. Marks Isaacs Co.,147 So. 118, 119 (La. Ct. App. 1933), the plaintiff alleged negligence on the part of a beauty salon when it used a rolling chair ...

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