                                                            2020 WI 43

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2018AP1165


COMPLETE TITLE:        Jose M. Correa,
                                 Plaintiff-Respondent-Petitioner,
                       Kitty Rhoades Secretary of State of Wisconsin
                       Department
                       of Health Services,
                                 Involuntary-Plaintiff-Respondent,
                            v.
                       Woodman's Food Market,
                                 Defendant-Appellant,
                       United Healthcare of Wisconsin, Inc.,
                                 Defendant-Respondent.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 388 Wis. 2d 257,932 N.W.2d 188
                                     (2019 – unpublished)

OPINION FILED:         May 19, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 21, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              William Sosnay

JUSTICES:
KELLY, J., delivered the majority opinion for a unanimous Court.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation

ATTORNEYS:



      For the plaintiff-respondent-petitioner, there were briefs
filed by Eric M. Knobloch, Michael A. Lococo, and Gruber Law
Offices, LLC, Milwaukee. There was an oral argument by Eric M.
Knobloch.


      For the defendant-appellant, there was a brief filed by Lisa
M. Lawless, Eric M. Meier, and Husch Blackwell LLP, Milwaukee;
with whom on the brief was Duffy Dillon and Duffy Dillon Law Office
LLC, Janesville. There was an oral argument by Lisa M. Lawless.


     An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by Michael J. Cerjak, Rachel E. Potter,
and Cannon & Dunphy, S.C., Brookfield.




                                 2
                                                                    2020 WI 43


                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.   2018AP1165
(L.C. No.   2016CV2542)

STATE OF WISCONSIN                        :              IN SUPREME COURT

Jose M. Correa,

            Plaintiff-Respondent-Petitioner,

Kitty Rhoades Secretary of State of Wisconsin
Department of Health Services,

            Involuntary-Plaintiff-Respondent,
                                                                  FILED
      v.                                                     MAY 19, 2020

Woodman's Food Market,                                           Sheila T. Reiff
                                                             Clerk of Supreme Court

            Defendant-Appellant,

United Healthcare of Wisconsin, Inc.,

            Defendant-Respondent.



KELLY, J., delivered the majority opinion for a unanimous Court.

ANN WALSH BRADLEY, J., withdrew from participation.




      REVIEW of a decision of the Court of Appeals.            Reversed.



      ¶1    DANIEL KELLY, J.    Mr. Jose Correa slipped on an unknown

substance at a Woodman's Food Market ("Woodman's"), causing him to

fall and sustain injuries.     He says the substance caused an unsafe
                                                                      No.     2018AP1165



condition within the meaning of Wis. Stat. § 101.11 (2013-14),1

and that it was there long enough to give Woodman's constructive

notice of its existence.            To prove how long the substance was on

the floor, he introduced a security camera video showing the part

of the store where he slipped and fell.                  Everyone agrees there is

no evidence to prove when the substance was deposited on the floor

and that it is not possible to actually see the substance in the

video.

       ¶2     In this case we decide whether ascertaining the point in

time at which an unsafe condition commenced is a sine qua non of

constructive notice.         We also decide whether the security camera

video may support an inference that the substance was on the floor

long       enough    to   give   Woodman's        constructive       notice    of   its

existence.2         We conclude that a plaintiff need not prove the exact

moment the unsafe condition commenced, so long as the evidence is

sufficient to prove it existed long enough to give the defendant

constructive notice of its presence.               We also conclude that a jury

may infer from the security camera video in this case that the
unsafe      condition     existed    long       enough   to   give    the     defendant

constructive notice of its presence.




       All subsequent references to the Wisconsin Statutes are to
       1

the 2013-14 version unless otherwise indicated.

       This is a review of an unpublished decision of the court of
       2

appeals, Correa v. Woodman's Food Market, No. 2018AP1165,
unpublished slip op. (Wis. Ct. App. Jun. 25, 2019), which reversed
the Milwaukee County Circuit Court, the Honorable William Sosnay
presided.

                                            2
                                                                  No.   2018AP1165



                                I.   BACKGROUND

     ¶3        While shopping at Woodman's, Mr. Correa slipped on an

unknown substance in the dairy aisle.             After collecting himself

from the fall, he signaled a Woodman's employee who promptly

cleaned the spot where he had slipped.            The employee also handed

Mr. Correa a paper towel with which to wipe the substance off his

shoe.     Woodman's security camera captured all of these events.

     ¶4        Unfortunately, Mr. Correa suffered an injury to his

wrist during the fall.      His lawsuit against Woodman's alleged two

causes    of    action:   (1)    negligence;3     and   (2)   a   violation    of

Wisconsin's "safe place" statute (Wis. Stat. § 101.11).                     After

discovery closed, Woodman's moved for summary judgment arguing

that Mr. Correa couldn't show that Woodman's knew the dairy product

was on the floor and so couldn't prove an essential element of his

claim.     The circuit court denied the motion because it concluded

there were genuine issues of material fact.

     ¶5        At trial, Mr. Correa testified that he did not see the

substance on the floor until after he slipped on it, and to this
day he doesn't know what it was.           The jurors watched 10 minutes of

video from a security camera, which commenced several minutes

before the accident and ended several minutes after.                    The video

shows numerous customers walking near (and even over) the spot

where Mr. Correa slipped; a Woodman's employee walking past the


     3 We do not review Mr. Correa's negligence claim. The court
of appeals correctly observed that he forfeited this claim because
the jury was not instructed on it and he has not alleged this was
error.

                                       3
                                                               No.   2018AP1165



spot twice; Mr. Correa slipping and falling; Mr. Correa getting

the attention of a Woodman's employee and showing him the location

of the substance on which he slipped; the employee wiping the

substance off the floor; and it shows that employee giving Mr.

Correa a paper towel to wipe the substance off his shoe.4            However,

nothing in the video indicates when or how the substance came to

be on the floor, nor is the video resolution high enough to

actually show the substance.          The jury also heard a Woodman's

employee testify that after Mr. Correa fell he saw two spots of

some type of substance on the floor.          Another employee testified

that, after reviewing 90 minutes of security footage prior to Mr.

Correa's accident, he could not tell when the substance came to be

on the floor.

      ¶6      At the close of Mr. Correa's case-in-chief, Woodman's

moved for a directed verdict arguing that Mr. Correa's failure to

introduce evidence showing how the substance on which he slipped

came to be on the floor necessarily defeats a "safe place" claim.

The circuit court denied the motion, and the jury eventually found
Woodman's had constructive notice of the substance on the floor

and that there had been a violation of the safe place statute.

Woodman's post-trial motions (including a motion for a directed

verdict or judgment notwithstanding the verdict, a motion to change

a   verdict    answer,   and   a   motion   for   a   new   trial)   were   all

unsuccessful.     Woodman's appealed.


      4It is undisputed that all of Woodman's employees are trained
to clean up spills as soon as they are aware of them.

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                                                     No.   2018AP1165



     ¶7   The court of appeals reversed, ruling that because the

evidence before the jury provided "[no] indication of how long the

hazard existed on Woodman's floor," the circuit court had "clearly

erred in denying Woodman's motion for a directed verdict."        We

granted Mr. Correa's petition for review and now reverse the court

of appeals.

                      II.   STANDARD OF REVIEW

     ¶8   We will not overturn a circuit court's ruling on a motion

for directed verdict unless it is clearly wrong:

          [W]hen the trial judge rules, either on motion for
     nonsuit, motion for a directed verdict, or motion to set
     aside the verdict, that there is or is not sufficient
     evidence upon a given question to take the case to the
     jury, the trial court has such superior advantages for
     judging of the weight of the testimony and its relevancy
     and effect that this court should not disturb the
     decision merely because, on a doubtful balancing of
     probabilities, the mind inclines slightly against the
     decision, but only when the mind is clearly convinced
     that the conclusion of the trial judge is wrong.
Olfe v. Gordon, 93 Wis. 2d 173, 186, 286 N.W.2d 573 (1980) (quoting

Trogun v. Fruchtman, 58 Wis. 2d 569, 585, 207 N.W.2d 297 (1973)
(quoting Slam v. Lake Superior T. & T. Ry., 152 Wis. 426, 432, 140

N.W. 30 (1913))).

     ¶9   A circuit court should grant a directed verdict "only

when the evidence gives rise to no dispute as to the material

issues or only when the evidence is so clear and convincing as

reasonable to permit unbiased and impartial minds to come to but

one conclusion."    Zillmer v. Miglautsch, 35 Wis. 2d 691, 698, 151

N.W.2d 741 (1967) (quoted source and citations omitted). "If there
is any evidence to sustain a defense or a cause of action, the

                                 5
                                                              No.    2018AP1165



case must be submitted to the jury."         Id. at 699 (emphasis added;

citation omitted).

                             III.    ANALYSIS

     ¶10   Mr. Correa says he suffered injury consequent upon an

unsafe condition that Woodman's had allowed to exist in violation

of   Wisconsin's   "safe    place"    statute,     Wis.    Stat.    § 101.11.

Woodman's, however, says it was not aware of the unsafe condition.

Additionally, it says Mr. Correa produced no evidence showing it

should have been aware of that condition.                 The circuit court

disagreed, ruling that a jury could infer from Woodman's 10-minute

security camera video that the unsafe condition existed long enough

that Woodman's should have been aware of it.           The court of appeals,

on the other hand, said Mr. Correa's "evidence does not provide a

basis for any reasonable inference as to how long, prior to

Correa's   fall,   the   substance   was    on   the   floor."      Correa   v.

Woodman's Food Market, No. 2018AP1165, unpublished slip op., ¶31

(Wis. Ct. App. Jun. 25, 2019).           It said any inferences the jury

might have drawn from the video with respect to that question would
be mere speculation.       Id.   The disagreement between the circuit

court and the court of appeals reveals that this case hinges on

the type of evidence a plaintiff must produce to demonstrate that

an unsafe condition has existed long enough that a reasonably

diligent defendant would discover and remedy it.

     ¶11   We begin our analysis with the requirements imposed by

Wisconsin's "safe place" statute:

     Every employer shall furnish employment which shall be
     safe for . . . [the] frequenters thereof and shall

                                     6
                                                          No.    2018AP1165


     furnish and use safety devices and safeguards, and shall
     adopt and use methods and processes reasonably adequate
     to render such employment and places of employment safe,
     and shall do every other thing reasonably necessary to
     protect the life, health, safety, and welfare of such
     employees and frequenters. Every 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. The parties agree that the safe place statute

applies to Woodman's.

     ¶12    To make out a claim under the safe place statute, Mr.

Correa must prove:     "(1) there was an unsafe condition associated

with [Woodman's floor]; (2) the unsafe condition caused [Mr.

Correa's]   injury;   and   (3)   [Woodman's]   had   either    actual   or

constructive notice of the unsafe condition before [Mr. Correa's]

injury."    Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77,

¶89, 262 Wis. 2d 539, 664 N.W.2d 545.      Woodman's does not contest

either of the first two elements; its defense addresses only

whether it had notice of the unsafe condition.          And because Mr.

Correa does not argue Woodman's actually knew of the unsafe

condition, the instant contest resolves to the narrow question of

constructive notice.

     ¶13    An "owner is deemed to have constructive notice of a

defect or unsafe condition when that defect or condition has

existed a long enough time for a reasonably vigilant owner to

discover and repair it."          Megal v. Green Bay Area Visitor &

Convention Bureau, Inc., 2004 WI 98, ¶12, 274 Wis. 2d 162, 682

N.W.2d 857.    How long that must be is a fact intensive question:
"The length of time required for the existence of a defect or

                                    7
                                                                       No.   2018AP1165



unsafe condition that is sufficient to constitute constructive

notice    depends    on   the       surrounding       facts      and   circumstances,

including the nature of the business and the nature of the defect."

Id., ¶13.       Because this is a factual question, we traditionally

leave it for the jury to resolve.                     Id., ¶20 n.2 ("Whether an

employer or owner has notice of an unsafe condition generally is

a question of fact left to the jury."); see also Hofflander, 262

Wis. 2d 539, ¶25 ("As to the safe place claim, the court held that

there    were    questions     of    fact       for   a   jury    whether . . . the

defendants had constructive notice of the disrepair.").

     ¶14    In    concluding    that     Mr.      Correa   had     failed    to   prove

constructive notice for lack of evidence regarding how long the

unsafe condition existed, both Woodman's and the court of appeals

relied heavily on Kochanski v. Speedway SuperAmerica, LLC, 2014

WI 72, 356 Wis. 2d 1, 850 N.W.2d 160, and Kaufman v. State St.

Ltd. P'Ship, 187 Wis. 2d 54, 522 N.W.2d 249 (Ct. App. 1994).                       Both

cases are instructive and provide the general parameters for

assessing the constructive notice element of a "safe place" claim.
In the latter case, Mrs. Kaufman slipped on a banana peel in the

parking lot when returning to her car from a shopping errand.                       She

had walked over the same area on the way into the store but had

not noticed a banana peel at that time.                The court of appeals based

its analysis on the rule that "constructive notice is chargeable

only where the hazard has existed for a sufficient length of time

to allow the vigilant owner or employer the opportunity to discover

and remedy the situation."           Id. at 63 (quoted source omitted).              It
concluded that, notwithstanding Mrs. Kaufman's testimony, "there
                                            8
                                                                   No.   2018AP1165



was no evidence of how long the banana was in the parking lot, and

any conclusion in that regard would be purely speculative."                    Id.

       ¶15       Twenty years later, we addressed a similar situation in

Kochanski.        There, the plaintiff slipped or tripped on some ice in

front of a Speedway store, causing him injury.                   As in this case,

Mr. Kochanski brought a "safe place" claim and introduced (inter

alia) security camera footage of his fall.                 The evidence showed

that there had been a light snowfall the morning of the accident,

but nothing to establish how long the snowfall had created a

potentially unsafe condition.            We observed that "[o]rdinarily,

constructive notice requires evidence as to the length of time

that       the   condition   existed."       Kochanski,    356    Wis. 2d 1,    ¶33

(quoting Megal, 274 Wis. 2d 162, ¶12).              And we quoted Kaufman's

observation that "'constructive notice [usually] cannot be found

when there is no evidence as to the length of time the condition

existed.'"         Kochanski, 356 Wis. 2d 1, ¶34.           We concluded that

"[s]peculation as to how long the unsafe condition existed and

what       reasonable   inspection   would     entail     are    insufficient   to
establish constructive notice."5             Id., ¶36.


       The gradual accumulation of snow at issue in Kochanski may
       5

have eventually created an unsafe condition, but the video footage
was insufficient to demonstrate that an accumulation sufficient to
create the unsafe condition had been present long enough to give
the defendant constructive notice of its existence.        We also
observed that the video's subject-matter limited its instructive
value:   "Furthermore, given the weather that often occurs in
February in Wisconsin, standing alone, a temporary natural
accumulation of snow is insufficient to provide notice of an unsafe
condition under the safe-place statute."     Kochanski v. Speedway
SuperAmerica, LLC, 2014 WI 72, ¶37, 356 Wis. 2d 1, 850 N.W.2d 160.

                                         9
                                                      No.   2018AP1165



     ¶16   And that brings us to the nub of the parties' dispute.

Before the case may reach the jury, the plaintiff must present a

quantum of evidence sufficient to render the eventual answer non-

speculative.    Woodman's says the security camera video gives us no

information about how long the unsafe condition existed because

the video does not capture the moment the troublous substance was

deposited on the floor.    And without that information, Woodman's

says, it is impossible to measure the amount of time the unsafe

condition existed:    "If no evidence brackets the duration of the

hazard, then constructive notice cannot be proven."         Woodman's

also asserts that nearly 100 years of law rejects Mr. Correa's

proposition that "the inability to prove the begin-time for the

dangerous condition should not be fatal to the constructive notice

analysis."     The court of appeals also addressed the durational

issue, but from a slightly different angle.       It said that Mr.

Correa's concession that the video's resolution was not sufficient

to actually show the substance on the floor defeated his argument

that the video "supports a reasonable inference that the substance
was present for longer than ten minutes."    Correa, No. 2018AP1165,

unpublished slip op., ¶27.

     ¶17   This gives rise to two distinct questions related to the

constructive notice element of a "safe place" claim.           First,

whether a plaintiff must positively identify the point in time at

which the unsafe condition arose.     And second, whether a jury may

infer the duration of the unsafe condition from evidence such as

the security camera footage submitted to the jury in this case.


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                                                              No.   2018AP1165



      ¶18    The first question is the more straightforward, and so

we will start there.       The answer is that identifying the moment in

time at which a condition becomes unsafe is not a sine qua non of

the   test   described   in    Kochanski    (or   Kaufman).      Rather,   the

plaintiff's responsibility is to prove the existence of the unsafe

condition for a quantum of time sufficient to support a finding of

constructive notice.          The temporal aspect of the constructive

notice element is functional, not formalistic.             That is to say,

the purpose of inquiring into how long the unsafe condition existed

is to determine whether a "vigilant owner or employer" would have

had   "the   opportunity    to   discover   and   remedy   the   situation."

Kochanski, 356 Wis. 2d 1, ¶34 (quoted source omitted).                So the

evidence need only show that the unsafe condition existed long

enough for the defendant to discover and remedy it.              For example,

if a reasonably vigilant owner would have discovered and remedied

an unsafe condition within 10 minutes, and the evidence shows the

condition lasted that long, it is of no moment that the unsafe

condition had actually commenced an hour earlier.             The 10-minute
duration is the legally relevant period of time.6 The commencement

an hour earlier is of mere academic interest.              It is axiomatic

that a plaintiff's case cannot be insufficient for failing to prove

a point with no legal significance.               The focus here, as in

Kochanski and Kaufman, is whether the evidence shows an extant

      6This is not to say, of course, there is any case-independent
significance to how long the condition existed. Whether it is 1
minute, 10 minutes, or 90 minutes, the amount of time necessary to
establish constructive notice of the unsafe condition is a fact-
driven question for the jury to answer.

                                     11
                                                                  No.        2018AP1165



unsafe   condition    for    a    period    of    time   sufficient     to    give   a

reasonably vigilant owner or employer the opportunity to discover

and remedy it.

      ¶19   This question came to the fore in this case because of

the increasing prevalence of video recordings of our everyday

public activities.     Ordinarily, it would be difficult to prove how

long an unsafe condition existed without identifying the point at

which it commenced.     With video footage, however, it is possible

to work backwards from the point of injury for a period of time

sufficient to demonstrate that the unsafe condition should have

been discovered and remedied.          That amount of time may or may not

encompass the point at which it commenced.                 But if the captured

amount of time is enough to satisfy the constructive notice

element, there is no need to rewind the video even further to

discover when it arose.          And that brings us to the second question

of   whether   the   video       evidence    in   this   case   was     capable      of

supporting the constructive notice element of a safe place claim.

      ¶20   The court of appeals observed that the video resolution
was not high enough to directly observe the substance on which Mr.

Correa slipped.      Therefore, it reasoned, the video contains no

evidence of how long the substance was on the floor.                  And because

Mr. Correa did not identify the point in time at which the

substance fell to the floor, the court of appeals concluded he had

failed to introduce any evidence of the temporal aspect of the

constructive notice element of his case.                 Specifically, it said

that "such evidence does not provide a basis for any reasonable
inference as to how long, prior to Correa's fall, the substance
                                        12
                                                          No.   2018AP1165



was on the floor.       The jury could only guess as to how long the

substance was on the floor.      Any such inference would be to engage

in speculation."        Correa, No. 2018AP1165, unpublished slip op.,

¶31.

       ¶21   Inferences, however, are not speculation.          They are

distinct in that the former are "drawn from established facts which

logically supports the same."       Smith v. Chicago & N.W. Ry. Co.,

246 Wis. 628, 632, 18 N.W.2d 352 (1945).          Federal practice forms

provide a good definition of an inference:              "Inferences are

deductions or conclusions that reason and common sense lead you to

draw from facts established by the evidence in the case."          3B Jay

E. Grenig West's Fed. Forms, District Courts-Civil § 34:41 (5th

ed. 2019).     They are commonly used to complete the evidentiary

picture: "Both juries and judges may, of course, draw logical

inferences from the evidence, connecting its dots into a coherent

pattern."       State    v.   Sarnowski,   2005   WI App 48,    ¶12,   280

Wis. 2d 243, 694 N.W.2d 498.         When we instruct jurors before

sending them to deliberate, we tell them to "[d]raw your own
conclusions and your own inferences . . . ."           4A Jay E. Grenig

Wis. Pl. & Pr. Forms § 33:137 (5th ed. 2019).

       ¶22   When the court of appeals demoted the jury's conclusions

from the video to the status of speculation, it deprived the jury

of its unquestionable prerogative to draw inferences from the

evidence presented to them.      Landrey v. United Servs. Auto. Ass'n,

49 Wis. 2d 150, 157, 181 N.W.2d 407 (1970) ("[W]here more than one

reasonable inference can be drawn from the credible evidence, the
reviewing court must accept the one reached by the fact finder.");
                                    13
                                                                No.    2018AP1165



Estate of Cavanaugh by Cavanaugh v. Andrade, 202 Wis. 2d 290, 306,

550 N.W.2d 103 (1996) ("[W]e must sustain the jury's finding 'if

there is any credible evidence under any reasonable view or any

reasonable     inferences    derived   therefrom     that    support       [it].'"

(quoted source omitted; internal marks omitted; some alteration in

original)).

     ¶23      The video in this case could potentially support several

inferences.      Starting with the established fact (as required by

Chicago & N.W. Ry. Co.) that there was a foreign substance on

Woodman's floor, and that Mr. Correa slipped on it, a jury could

reasonably infer the following.             First,   one could infer the

location of the substance.         That inference could follow from the

footage that captured Mr. Correa falling, an employee's response

to Mr. Correa's alert to the substance on the floor, the employee

cleaning the indicated area, and Mr. Correa wiping his shoe with

a paper towel given to him by the employee.                 Second, one could

infer the substance was on the floor for at least 10 minutes.                 That

inference could be drawn from watching the 10-minute video and
concluding it did not show the substance falling to the floor.

Such a conclusion would necessarily mean the substance had been

there   for    at   least   10   minutes,   unless   one     were     to   assume

autogenesis (an unnecessarily exotic explanation for a mundane

occurrence such as a spill on a grocery store floor).                 Third, one

could infer the existence of the substance for the 80 minutes prior

to the video the jury considered.           That inference could follow

from the Woodman's employee's testimony that the video he reviewed
(which covers the 80 minutes leading up to the video the jury saw)
                                       14
                                                             No.    2018AP1165



did not show the substance falling to the floor.             Based on the

same rationale above, a jury could conclude the substance was on

the floor for at least 90 minutes.       Each of these inferences could

logically   follow   from   facts   established   through    Mr.    Correa's

testimony, the content of the video, or both.                They are not

necessary    inferences,    however,     just   legitimate    and    logical

inferences.7

     ¶24    With all of that in mind, we turn to our review of

whether the circuit court should have granted Woodman's motion for

a directed verdict. We will not disturb the circuit court's ruling

unless we are "clearly convinced that the conclusion of the trial

judge is wrong."      Olfe, 93 Wis. 2d at 186 (quoting Trogun, 58

Wis. 2d at 585 (quoting Slam, 152 Wis. at 432)).         A trial judge's

responsibility is to grant the motion "only when the evidence gives

rise to no dispute as to the material issues or only when the


     7 Woodman's cited a host of cases to support its point that
constructive notice cannot be established without proving how long
the unsafe condition existed, including May v. Skelley Oil Co., 83
Wis. 2d 30, 264 N.W.2d 574 (1978); Low v. Siewert, 54 Wis. 2d 251,
195 N.W.2d 451 (1972); Shoemaker v. Marc's Big Boy, 51 Wis. 2d 611,
187 N.W.2d 815 (1971); Merriman v. Cash-Way, Inc., 35 Wis. 2d 112,
150 N.W.2d 472 (1967); Rosenthal v. Farmers Store Co., 10
Wis. 2d 224, 102 N.W.2d 222 (1960); Boutin v. Cardinal Theatre
Co., 267 Wis. 199, 64 N.W.2d 848 (1954); Reiher v. Mandernack, 234
Wis. 568, 291 N.W. 758 (1940); Dierkes v. White Paving Co., 229
Wis. 660, 283 N.W. 446 (1939); Lundgren v. Gimbel Bros., 191
Wis. 521, 210 N.W. 678 (1927). But this misses the point. Our
holding does not relieve plaintiffs from the obligation to prove
the unsafe condition lasted long enough to establish constructive
notice.    Our holding is simply that locating the temporal
commencement of the unsafe condition is not necessary if the extant
evidence shows it existed long enough to give a reasonably diligent
store owner an opportunity to discover and remedy it.

                                    15
                                                      No.   2018AP1165



evidence is so clear and convincing as reasonable to permit

unbiased and impartial minds to come to but one conclusion."

Zillmer, 35 Wis. 2d at 698 (quoted source and citation omitted).

Consequently, "[i]f there is any evidence to sustain a defense or

a cause of action, the case must be submitted to the jury."       Id.

at 699 (emphasis added; citation omitted).

     ¶25    Mr. Correa's testimony and the security camera video

were sufficient to permit an inference that a foreign substance

had been on Woodman's floor for at least 90 minutes.8       Woodman's

does not argue in this court that this was an insufficient amount

of time to give it constructive notice of the substance's presence,

nor does it argue that the substance did not create an unsafe

condition.    In light of the record before it, the circuit court

could reasonably conclude there was at least some evidence to

sustain Mr. Correa's cause of action with respect to constructive

notice.    Under those circumstances, its duty to submit the case to

the jury was mandatory.    Therefore, we do not believe the circuit




     8 This is not to say, however, that the jury's inferences were
the only possible options. A jury could instead conclude that the
video's quality was insufficient to show the moment the substance
fell to the floor. Such a conclusion would interrupt the logical
deduction regarding how long the substance was there. But neither
the circuit court nor this court has the authority to choose
between the possible inferences.     That is a choice left to the
jury. See Landrey v. United Servs. Auto. Ass'n, 49 Wis. 2d 150,
157, 181 N.W.2d 407 (1970) ("[W]here more than one reasonable
inference can be drawn from the credible evidence, the reviewing
court must accept the one reached by the fact finder.").

                                  16
                                                               No.   2018AP1165



court was clearly wrong in denying Woodman's motion for directed

verdict.9

                            IV.    CONCLUSION

     ¶26    For purposes of a claim under Wis. Stat. § 101.11,

determining   the   point   in    time    at   which   an   unsafe   condition

commenced is not necessarily a            sine qua non       in establishing

constructive notice.    Instead, the plaintiff's responsibility is

simply to demonstrate that the unsafe condition lasted long enough



     9 The same analysis demonstrates that summary judgment in
Woodman's favor would have been inappropriate.     "We review the
disposition of a motion for summary judgment de novo, applying the
same methodology the circuit courts apply."     Leicht Transfer &
Storage Co. v. Pallet Cent. Enterprises, Inc., 2019 WI 61, ¶8, 387
Wis. 2d 95, 928 N.W.2d 534 (citation omitted). "Summary judgment
is appropriate only 'if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.'" Id. (quoted source omitted).

      Because the materials presented——including the security
camera footage——revealed there was a genuine issue with respect to
a material fact (to wit, the length of time the substance was on
the floor), the circuit court did not err in denying Woodman's
motion for summary judgment.    For the same reason, the circuit
court did not clearly err in denying Woodman's motion to change a
verdict answer, and it did not misuse its discretion in denying
its motion for a new trial. See respectively Best Price Plumbing,
Inc. v. Erie Ins. Exch., 2012 WI 44, ¶44, 340 Wis. 2d 307, 814
N.W.2d 419 ("A circuit court's decision to change the jury's answer
is 'clearly wrong' if the jury verdict is supported by 'any
credible evidence.'" (quoted source omitted)); and Lange v. Olson,
185 Wis. 657, 661, 202 N.W. 361 (1925) ("An order which grants or
refuses a new trial will not be disturbed in this court except in
a clear case of an abuse of discretion. Where a new trial is
denied, if there is any credible competent evidence which sustains
the verdict, this court will not disturb the determination; that
is, it will hold there has been no abuse of discretion.").

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to allow a reasonably diligent store owner to discover and remedy

the condition.     Further, we hold that, upon the state of the record

in this case, a jury could infer that the unsafe condition causing

Mr.   Correa's     injury   lasted   long      enough     to    give    Woodman's

constructive notice of its existence without proving the point at

which the unsafe condition commenced. Therefore, the circuit court

did not err in denying Woodman's motion for summary judgment, its

motion for a directed verdict, its motion to change a verdict

answer, and its motion for a new trial.               For those reasons, we

reverse the court of appeals.

      By    the   Court.—The   decision   of    the     court   of     appeals   is

reversed.

      ¶27    ANN WALSH BRADLEY, J. withdrew from participation.




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