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Tempesta v. Scottsdale Indemnity Co.

United States District Court, E.D. Wisconsin

August 10, 2016




         Nicole 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.


         Federal 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.


         Nicole 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. ¶ 10.)

         Anthony 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.)

         J.L. 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.)

         Freddie 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. ¶ 31.)


         The 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 party.” Id.

         In 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)).


         The 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 ...

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