United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANTS’ MOTION FOR
and Anthony Tempesta sue Scottsdale Indemnity Company and
Federal Home Loan Mortgage Corporation (“Freddie
Mac”) for injuries Nicole Tempesta sustained when she
slipped and fell on ice located on the sidewalk at the end of
her driveway. The Tempestas contend that the ice resulted
from a defective sump pump at an adjacent property and that
Freddie Mac is liable for their damages based on its
acquisition of title of the property via foreclosure a few
months earlier. The defendants move for summary judgment on
the Tempestas’ claims. The issues have been fully
briefed and are ready for resolution. For the reasons that I
explain in this decision, the defendants’ motion for
summary judgment is denied.
Home Loan Mortgage is a corporate entity organized and
existing pursuant to the Federal Home Loan Mortgage
Corporation Act, 12 U.S.C. § 1451, et seq. It
removed this action pursuant to 12 U.S.C. § 1452(f)(3),
which provides that, “any civil or other action, case
or controversy in a court of a State . . . to which the
Corporation is a party may at any time before the trial
thereof be removed by the Corporation, without the giving of
any bond or security, to the district court of the United
States for the district and division embracing the place
where the same is pending . . . by following any procedure
for removal of causes in effect at the time of such
removal.” Accordingly, its presence in this action
means that jurisdiction is proper.
and Anthony Tempesta are husband and wife and reside at 3212
Lakeview Circle in Racine, Wisconsin. (Pl.’s Resp. to
Defs.’ Proposed Findings of Fact (“Pl.’s
Resp.”) ¶¶ 1-2, Docket # 26.) The Tempestas
have lived at the Lakeview Circle property for about 12 to 13
years. (Id. ¶ 3.) Nicole Tempesta was injured
on January 9, 2013, when she slipped and fell on ice located
on the sidewalk at the end of her driveway. (Id.
¶ 4.) The sidewalk on which the ice was located was a
public sidewalk. (Id. ¶ 5.) An apron exists
beyond the sidewalk at the bases of the driveways at 3206
Lakeview Circle and 3212 Lakeview Circle. (Pl.’s
Statement of Additional Facts (“Pl.’s SOF”)
¶ 8, Docket # 26.) The apron at the base of the
driveways is shared by the two property owners at 3206 and
3212 Lakeview Circle. (Id. ¶ 9.) The apron is
raised higher than the sidewalk, so when the water runoff
reached the apron, it would pool and start to run north
toward the Tempestas’ property. (Id. ¶
Tempesta testified that when the sump pump at 3206 Lakeview
Circle would malfunction, water would back up, shoot straight
into the air, then run down the driveway onto the sidewalk
instead of flowing out the discharge pipe and into the
street. (Pl.’s Resp. ¶ 8.) Water would come out
from the top of the sump pump where the sump pump connected
to the downspout and both fed into the underground discharge
pipe. (Id. ¶ 9.) When there was excessive
activity from the sump pump, water would make its way onto
the Tempestas’ property. (Id. ¶ 10.)
Miller had purchased the property located at 3206 Lakeview
Circle in 2010 or 2011. (Id. ¶ 12.) Miller
lived at the property located at 3206 Lakeview Circle for
about two years. (Id. ¶ 13.) It was during the
residency of Miller at the property located at 3206 Lakeview
Circle that water started to shoot out the top of the sump
pump. (Id. ¶ 14.) Anthony Tempesta testified
that sometime in 2010 or 2011, the sump pump either became
disconnected from the underground discharge pipe or the
underground pipe was plugged and the water had nowhere to go
but up and onto the driveway, instead of down the pipe.
(Id. ¶ 16.) Anthony alerted Miller to the
problem with water shooting straight up from the sump pump.
(Id. ¶ 17.) In 2010 and 2011, Anthony
complained to various City of Racine departments about the
water problem. (Id. ¶ 19.)
Mac acquired title to the property located at 3206 Lakeview
Circle after foreclosure, by deed dated September 20, 2012.
(Id. ¶ 6.) Freddie Mac sold the property on or
about August 15, 2013. (Id. ¶ 7.) At the time
of Nicole Tempesta’s accident, the property located at
3206 Lakeview Circle was occupied by Kim Beascochea.
(Id. ¶ 21.) Town & Lake Realty was called
upon to provide services with regard to the property.
(Id. ¶ 24.) Sandra Mallas, a broker with Town
& Lake Realty, was hired by Federal Home Loan Services to
be the listing agent for the property sometime in September
2012. (Id. ¶¶ 22-27.) Mallas testified
that she could not touch the property unless it was vacant
and that an eviction did not happen until the end of May
2013. (Id. ¶ 29.) The property was listed for
sale on May 23, 2013. (Id. ¶ 28.) Before
listing the property, Mallas was responsible for periodically
driving by the property to see if it was still occupied.
(Id. ¶¶ 31-32.) Mallas would note the
condition of the property and communicate those notes to
Federal Home Loan Services. (Pl.’s SOF ¶¶
29-30.) Mallas could not recall whether she noted ice on the
driveway or sidewalk of the property. (Id. ¶
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). “Material
facts” are those under the applicable substantive law
that “might affect the outcome of the suit.”
See Anderson, 477 U.S. at 248. The mere existence of
some factual dispute does not defeat a summary judgment
motion. A dispute over a “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
evaluating a motion for summary judgment, the court must draw
all inferences in a light most favorable to the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). However, when the nonmovant is the
party with the ultimate burden of proof at trial, that party
retains its burden of producing evidence which would support
a reasonable jury verdict. Celotex Corp., 477 U.S.
at 324. Evidence relied upon must be of a type that would be
admissible at trial. See Gunville v. Walker, 583
F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a
party cannot rely on his pleadings and “must set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 248. “In
short, ‘summary judgment is appropriate if, on the
record as a whole, a rational trier of fact could not find
for the non-moving party.’” Durkin v. Equifax
Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005)
(citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).
defendants move for summary judgment on the Tempestas’
negligence, loss of consortium, and nuisance claims. These
are state law claims; therefore I must apply Wisconsin law to
them as declared by the Wisconsin Supreme Court. State
Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th
Cir. 2001); see also Campbell v. Federal Home Loan Morg.
Corp., No. 07-CV-1428, 2009 WL 395207 (S.D. Ind. Feb.
13, 2009) (applying Indiana law to negligence claim against
Freddie Mac). If the Wisconsin Supreme Court has not decided
an issue, “the rulings of the state intermediate
appellate courts must be ...