A spectator, who sued after she stepped into a pole vault hole at a youth football game, has lost for a second time after appealing the legal defeat she suffered at the hands of a trial court. Specifically, the Wisconsin appeals court held for the defendants after finding that the plaintiff failed to respond to the “alternative” defenses put forth by the defendants.
Plaintiff Constance Kropp claimed she suffered “serious injuries” after stepping into the hole, which had not been “covered.” She filed tort claims against Mid-State Youth Football & Cheerleading Conference, RLI Insurance Company, Adams-Friendship Youth Football, and Berlin Youth Football and Cheerleading, Inc. (or the football organizations).
On a motion for summary judgment, the circuit court determined that the football organizations could not be held liable for Kropp’s alleged injuries, pursuant to Wisconsin’s recreational immunity statute. The football organizations had also introduced alternative grounds for summary judgment, namely that they owed no duty of care to Kropp and that Kropp’s own contributory negligence exceeded any negligence on their part as a matter of law.
On appeal, Kropp addressed only the recreational immunity issue. In response, the football organizations disputed recreational immunity and also advanced arguments on their duty of care and contributory negligence theories. Kropp declined to reply to the football organizations’ alternative arguments. She claimed that she has not replied to the alternative arguments because “they were not the basis for the circuit court’s decision, were not the focus of her own appeal, and the football organizations did not file a cross-appeal,” wrote the court. “None of these reasons justify Kropp’s failure.
“This was not a situation in which the football organizations needed to file a cross-appeal in order to argue that the circuit court’s decision should be affirmed based on alternative grounds. The reason the football organizations may raise these alternative arguments is because they are offered in support of affirming the circuit court’s decision. It is well established that a respondent on appeal may raise any argument that would support the action taken by the circuit court because judicial economy is not served by reversing on one ground a decision that would be supported under another theory. State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985).
“Indeed, apart from Kropp’s failure to address the football organizations’ alternative arguments in her reply brief, it is problematic that she failed to address the alternative grounds in her brief-in-chief, where, as here, she knew that the football organizations have alternative arguments supporting summary judgment.”
The court continued: “The ultimate question before this court, then, is whether there are any material facts in dispute—on the issues of duty of care and contributory negligence as well as recreational immunity—that entitle Kropp to a trial. See Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶24, 241 Wis. 2d 804, 623 N.W.2d 751. Thus, Kropp needed to persuade us that summary judgment was improperly granted, and here a complete argument would have addressed all reasons that Kropp was aware of that the football organizations were advancing to support summary judgment in their favor.
“Accordingly, we affirm the circuit court based on Kropp’s failure to respond to the football organizations’ alternative arguments. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of response in reply brief taken as a concession).”
Constance Kropp v. Adams-Friendship Area School District et al.; Ct. App. Wisc, Dist. 4; Appeal No. 2013AP2247, 2015 Wisc. App. LEXIS 83; 2/5/15
