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Halsted v. Society Insurance Co.11/21/2002
. Joseph Ray Halsted appeals from an order dismissing his personal injury action against Dale and Tammy Lilly, and Elinor Pfaff. Halsted fell and severely injured himself on the premises owned by the Lillys and formerly owned by Pfaff. The issue is whether he presented sufficient evidence on summary judgment to create a dispute of material fact concerning the cause of his fall. We conclude he did not, and therefore affirm.
. Halsted rented the upstairs half of a duplex from the Lillys and accessed his apartment using an outside stairway. On a night when he was admittedly intoxicated, he was found lying near the stairs, severely injured. From the physical evidence at the scene, one could reasonably infer that his injury occurred when he fell over the handrail while on or at the top of the stairway. Halsted could not confirm this, however, because he cannot remember anything about his accident. At the time he was injured his blood alcohol level was .40 percent, a near fatal level according to a defense expert. With a blood alcohol content that high, the expert stated that:
person's double vision results in a complete loss of depth perception. Individuals at this level of alcohol intoxication also lose all peripheral vision which results in a complete inability to see anything to either side.... person's judgment about safe behavior is severely impaired to the extent that he is not safe out in the general environment because of increased risk taking and impaired perceptions of his environment and of his own impairment. Coordination is likewise severely impaired. Finally, information processing and reaction time are severely impaired because of the alcohol's effect on the individual's central nervous system.
The expert estimated that in the hours prior to the accident Halsted must have drunk the equivalent of thirty cans of regular beer.
. There is no dispute that a reasonable fact finder could determine that Halsted's intoxication was a cause of the accident. The basis of this lawsuit is Halsted's allegation that the unsafe nature of the stairway was also a substantial factor in his fall. In an affidavit opposing summary judgment, Halsted's expert engineering witness, David Rudig, noted that the stairway violated several local building code provisions, including a stairway handrail three to five inches below the minimum thirty inch height requirement, a top step six and one-half inches too narrow, varying riser heights, and an unsafe slope to the stair treads. Rudig concluded that:
t is my professional opinion that, if Mr. Halsted fell over the handrail, the extremely low height of the handrail was a cause of Mr. Halsted's continued fall to the pavement below and his resulting injury.
7. Based on the information that I have received and reviewed to date it is my professional opinion Mr. Halsted did, in fact, fall over the portion of the handrail adjacent to the upper four steps.
. In a prior deposition Rudig was asked if he had a professional opinion as to the cause of the fall, and Rudig answered "no." "The only opinion that I can render is what the condition of the premises were and whose responsibility it was to have it code compliant."
. In the decision granting summary judgment, the trial court declined to consider Rudig's opinion on causation, as stated in his affidavit, because it directly conflicted with his deposition testimony that he had no opinion on the matter. The trial court therefore dismissed the complaint because Halsted had nothing to rebut the evidence that his extreme intoxication was the only substantial cause of his injury.
. We review summary judgment decisions d
Page 1 2 Wisconsin DUI Attorneys
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