Returning Subscriber?
Not a Subscriber to Litigation Pathfinder?
Get the full text of this legal issue, including links to cited primary law, along with unlimited access 1,000’s of other legal issues…and more!
Issue: Is a motion for summary judgment appropriate in a negligence action under Wisconsin law?
| Area of Law: | Litigation & Procedure, Personal Injury & Negligence |
| Keywords: | Motion for summary judgment; Negligence action; Prima facie defense |
| Jurisdiction: | Wisconsin |
| Cited Cases: | 103 Wis. 2d 403; 466 N.W.2d 897; 546 N.W.2d 501; 233 N.W.2d 360; 424 N.W.2d 924; 243 N.W.2d 183; 164 Wis. 2d 567; 144 Wis. 2d 865; 434 N.W.2d 830; 290 N.W.2d 551; 50 N.W.2d 381; 164 F.3d 55; 93 Wis. 2d 173; 485 N.W.2d 256; 180 Wis. 2d 237; 151 F.3d 591; 69 Wis. 2d 782; 303 N.W.2d 668; 286 N.W.2d 573; 533 N.W.2d 491; 449 N.W.2d 61; 160 Wis. 2d 546; 433 N.W.2d 251; 290 N.W.2d 330; 362 N.W.2d 118; 169 Wis. 2d 247; 194 Wis. 2d 234; 576 N.W.2d 545; 101 Wis. 2d 169; 525 N.W.2d 149; 582 N.W.2d 448; 412 N.W.2d 522; 140 Wis. 2d 640; 260 Wis. 201; 473 N.W.2d 578; 509 N.W.2d 100 |
| Cited Statutes: | Wis. Stat. § 111.34 (Supp. 1999) |
| Date: | 07/01/2000 |
It is well-established that a Wisconsin court should grant summary judgment “only when it is perfectly plain that there is no substantial issue to be tried.” Kafka v. Pope, 194 Wis. 2d 234, 533 N.W.2d 491, 493 (1995) (quoting Fredrickson v. Kabat, 260 Wis. 201, 50 N.W.2d 381, 383 (1951)). A motion for summary judgment does not decide issues of fact; rather, it is intended to discover whether there remain any issues of fact that entitle the plaintiff to a trial. Id., 533 N.W.2d at 493.
“To prevail on a motion for summary judgment dismissing an action, a defendant must establish a prima facie defense that defeats the plaintiff’s claim, and it must also appear that no triable issue of material fact exists and that summary judgment is appropriate under the law.” Deegan v. Jefferson County, 188, Wis. 2d 544, 525 N.W.2d 149, 156 (1994).
The general rule in a negligence action is that negligence is a question of fact to be decided by a jury. “[The supreme] court has stated that summary judgment does not lend itself well to negligence questions and should be granted in actions based on negligence only in rare cases.” Ceplina v. South Milwaukee Sch. Bd., 73 Wis. 2d 338, 243 N.W.2d 183, 185 (1976). The supreme court has further stated that in order to find that a person was not negligent […]