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Halsted v. Society Insurance Co.11/21/2002
e novo, applying the same standards as the trial court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). If, as here, the pleadings join issues of material fact and the moving party's affidavits establish a prima facie case for summary judgment, we then look to the opposing party's affidavits to determine whether there are any material facts in dispute such that the matter should proceed to trial. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232-33, 568 N.W.2d 31 (Ct. App. 1997). Upon review of the party's submissions on summary judgment, the reviewing court should not consider affidavits that directly contradict prior deposition testimony, unless the contradiction is adequately explained. Yahnke v. Carson, 2000 WI 74, , 236 Wis. 2d 257, 613 N.W.2d 102.
. Rudig's opinion on causation should not be considered on summary judgment. In his prior deposition testimony, Rudig said he could not offer an opinion on cause. In his affidavit, he did offer an opinion. That is a direct contradiction. Halsted explains that in his deposition Rudig was addressing what might have precipitated Halsted's fall, whereas in the affidavit he opined on the cause of the injury, that being the handrail's failure to stop Halsted's fall after he lost his balance. However, we do not draw that distinction from our examination of Rudig's deposition testimony. At the deposition, counsel repeatedly asked Rudig, in an open-ended way, if he had any opinion on the causation issue. Rudig had multiple opportunities to make the distinction counsel now offers, but he did not. Consequently, we decline to consider Rudig's opinion in our de novo review and, without it, the defendants' evidence on causation stands unrebutted.
. Even if we considered Rudig's affidavit, Halsted has failed to adequately present a material factual dispute on causation. A mere possibility of causation is not enough; if the matter remains one of speculation or conjecture, or the probabilities are at best evenly balanced, the plaintiff cannot prevail. See Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 460, 267 N.W.2d 652 (1978). Rudig's affidavit, at best, establishes only the possibility that a code compliant handrail would have prevented the fall. Beyond that, it is only conjecture.
By the Court. -- Order affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).
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