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Milligan v. Rock on River, Inc.

United States District Court, W.D. Wisconsin

December 29, 2017

JOSHUA MILLIGAN, by his legal guardian and conservator, Susan Thomas, Plaintiff,
ANTHONY WILLIAM RUNDE, Third-Party Defendant.

          OPINION & ORDER


         Plaintiff Joshua Milligan was assaulted while attending “Rock on the River, ” a music festival in Bridgeport, Wisconsin. Milligan contends that each of the defendants was involved in operating the festival and that each may be held liable for failing to prevent or stop the assault. Milligan raises claims under Wisconsin's common law of negligence and Wis.Stat. § 101.11, the safe-place statute. Defendants filed a third-party complaint against Anthony Runde, who defendants allege was “the principle assailant” against Milligan. Dkt. 17, ¶ 3.

         Two related motions are before the court: (1) defendants' motion to exclude the testimony of Milligan's expert, Dkt. 85; and (2) defendants' motion for summary judgment, Dkt. 87. Also before the court is defendants' motion to conduct a second deposition of Anthony Runde. Dkt. 134.

         The court will grant defendants' motion to exclude the expert's testimony. I consider the expert to be qualified in the field of event security, but his opinions are highly conclusory. For reasons explained more fully in this opinion, he does not show how he arrived at his conclusions based on his analysis of the conditions at the festival, nor does he show how the alleged deficiencies in security relate to the assault. Without the expert's opinions, Milligan does not have admissible evidence that defendants' conduct fell below a standard of care or that defendants' actions or failure to act were a substantial factor in causing his injuries. Accordingly, I will also grant defendants' motion for summary judgment.

         Defendants' claims against Runde are contingent on a finding of liability against defendants, so granting their summary judgment motion moots their claims against Runde, along with the motion for leave to depose him.


         The court can provide few facts about the background of this case because neither side provided them in admissible form. Milligan's 14 proposed findings of fact do not discuss the assault or the events leading up to it. Rather, Milligan's proposed facts focus on defendants' alleged negligence and the legal relationship between the different defendants. Defendants provide a narrative, but they rely mostly on unsworn statements made to the police in 2013, which are not admissible because they are hearsay. The court will discuss other evidence cited by the parties as it becomes relevant in the context of the opinion.The Rock on the River music festival took place on July 13, 2013, in Bridgeport, Wisconsin. The festival was operated by defendant Rock on the River, Inc., a corporation formed by Scott B. Sheckler, who is not a defendant. Scott B. Sheckler also formed defendant Country on the River, Inc., which operated an annual music festival from 2010 to 2014. Defendants Scott L. Sheckler and Jill Sheckler are Scott B. Sheckler's parents and they are the beneficiaries of a trust that owns the land where both festivals were held. Scott L. Sheckler and Jill Sheckler are former owners of defendant Sheckler Management Inc.

         The festival grounds for Rock on the River were approximately 98 acres divided up into a 1000 foot by 1000 foot music venue with the remaining area set aside for parking lots and a campground. Approximately 2, 000 people attended the festival.

         Jaden McCullick, a lieutenant for the Crawford County Sheriff's Department, coordinated the security presence at the festival with organizer Scott B. Sheckler. Twenty-nine law enforcement officers patrolled the festival grounds, including in the campground.

         Joshua Milligan attended the Rock on the River festival. At an unspecified time, Milligan was assaulted in the camping area of the festival, near the porta potties.


         A. Jurisdiction

         The parties have responded to the court's order to supplement the record with evidence showing that subject matter jurisdiction is present under 28 U.S.C. § 1332, which requires diversity of citizenship between plaintiffs and defendants and an amount in controversy greater than $75, 000. Although it is reasonable to infer that more than $75, 000 is at stake, the court needed additional information because the parties' proposed findings of fact failed to cite evidence of the parties' citizenship. Dkt. 139.

         The parties' supplemental materials show that: (1) Joshua Milligan is a citizen of Iowa; Dkt. 147[1]; and (2) all of the original defendants are citizens of Wisconsin, Dkts. 143-45, with the exception of Sheckler Management, Inc., which is a citizen of Florida, Dkt. 143. Thus, Milligan and defendants have diverse citizenship and the court may exercise jurisdiction under § 1332.

         Although third-party defendant Runde appears to be a citizen of Iowa, Dkt. 137 (Runde Dep. 9:11-14), the court may exercise supplemental jurisdiction over a claim brought by a defendant against a third-party defendant without destroying diversity jurisdiction. Abbott Labs. v. CVS Pharm., Inc., 290 F.3d 854, 858 (7th Cir. 2002) (“[S]upplemental jurisdiction [is] capacious enough to include claims by or against third parties.”). “The only party denied a back door claim against third-party defendants is the original plaintiff if they are non-diverse.” R & M Fleet Servs., Inc. v. Caribbean Truck & Equip. Co., No. 12-cv-411, 2013 WL 5754923, at *3 (N.D. Ind. Oct. 23, 2013) (citing Aurora Loan Svcs., Inc. v. Craddieth, 442 F.3d 1018, 1025 (7th Cir. 2006)).

         B. Overview of the claims and the parties' contentions

         1. Legal theories

         Milligan contends that defendants' negligence caused his injuries, in violation of both the common law and Wisconsin's safe-place statute, Wis.Stat. § 101.11. To prove a common law negligence claim, a plaintiff must show: “(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury.” Rockweit v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995). In Wisconsin, everyone owes a duty “to the world at large, ” Hornback v. Archdiocese of Milwaukee, 313 Wis.2d 294, 309, 752 N.W.2d 862 (quoting Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (1928) (Andrews, J., dissenting)), whenever it is “foreseeable that his act or omission to act may cause harm to someone.” Rolph v. EBI Companies, 159 Wis.2d 518, 532, 464 N.W.2d 667, 672 (1991) (citation omitted). The defendant breaches this duty of ordinary care if it, “without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.” Alvarado v. Sersch, 2003 WI 55, ¶ 14, 262 Wis.2d 74, 662 N.W.2d 350 (quoting Wis JI-Civil 1005). “One is causally negligent when his or her conduct is a substantial factor in causing injury to another.” Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 47, 309 Wis.2d 541, 749 N.W.2d 581.

         Under the safe-place statute, “[e]very employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.” Wis.Stat. § 101.11(1). “The safe place statute does not create a distinct cause of action, but provides a higher duty than the duty of ordinary care regarding certain acts by employers and owners of places of employment or public buildings.” Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 20, 291 Wis.2d 132, 146, 715 N.W.2d 598, 605. The word “safe” does not mean “completely free of any hazards.” Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 10, 274 Wis.2d 162, 682 N.W.2d 857. Rather, the question ...

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