United States District Court, W.D. Wisconsin
JOSHUA MILLIGAN, by his legal guardian and conservator, Susan Thomas, Plaintiff,
ROCK ON THE RIVER, INC., SCOTT SHECKLER, JILL SHECKLER, SHECKLER MANAGEMENT, INC., and COUNTRY ON THE RIVER, INC., Defendants, and ROCK ON THE RIVER, INC., SCOTT SHECKLER, JILL SHECKLER, SHECKLER MANAGEMENT, INC., and COUNTRY ON THE RIVER, INC., Third-Party Plaintiffs,
ANTHONY WILLIAM RUNDE, Third-Party Defendant.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
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.
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.
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.
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.
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
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
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
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.
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.
parties' supplemental materials show that: (1) Joshua
Milligan is a citizen of Iowa; Dkt. 147; 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.
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)).
Overview of the claims and the parties'
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.
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 ...