Gilmore v. Westerman

In Gilmore v Westerman, 200 Wis.2d 492, 546 NW2d 886, 1966 WL 73972 (1996), the plaintiff was injured when he fell from the fire escape leading from the rear door of a bar operated by the insured, after being pushed or shoved out the door by another patron. He asserted that his injuries were caused, in part, by the insured's failure to maintain the fire escape steps in a safe condition in accordance with the applicable building code standards. The court noted that "an independent concurrent cause must provide an independent basis for a cause of action in and of itself and must not require the occurrence of the excluded risk to make it actionable." (id., 200 Wis.2d 492, 546 NW2d 886, 1966 WL 73972 at 3). The court held that, although a jury had determined that the building code violation was a cause of plaintiff's injuries, the assault and battery exclusion precluded coverage, because the plaintiff would not have been injured had he not been pushed or shoved out the door.