Flintrop v. Lefco

190 N.W.2d 140, 52 Wis. 2d 244, 1971 Wisc. LEXIS 981
CourtWisconsin Supreme Court
DecidedOctober 5, 1971
Docket146
StatusPublished
Cited by14 cases

This text of 190 N.W.2d 140 (Flintrop v. Lefco) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flintrop v. Lefco, 190 N.W.2d 140, 52 Wis. 2d 244, 1971 Wisc. LEXIS 981 (Wis. 1971).

Opinions

Connoe T. Hansen, J.

On March 5, 1968, plaintiff-appellant, Ronald Flintrop, and his wife, Beverly (hereinafter plaintiffs) attended a social gathering at the home of the defendants-respondents, Seymour Lefco, and his wife, Rachael (hereinafter defendants). He arrived at approximately 9 p. m., at which time he observed that the weather was clear. He also noticed that the front steps were clear and not slippery. During the next two hours a natural accumulation of ice formed on the front steps and sidewalk. Defendant testified that he was aware of this condition because (1) it was apparent from looking outside, (2) guests who had arrived after the plaintiff had informed the defendant of the weather condition, (3) it was one of the topics of conversation during the course of the evening, and (4) defendant’s wife was aware of the condition and tried to find an abrasive to cover the steps. Defendant also testified that, as the guests were leaving, he said, “Be careful, the steps are slippery.” Plaintiff denied that any warning was given, or that he overheard any con[247]*247versation relating to the weather. He testified that he did not go outside, nor look out, nor become aware that it was raining out.

At approximately 11 p. m. plaintiff left the home of the defendants and in the process of descending the front steps slipped and fell, sustaining a fractured arm. There was no testimony as to whether or not it was raining or snowing at that time. Plaintiff testified that he was not certain whether any of the outside lights were on, but observed only that it was dark. He also testified that he was looking directly ahead and there was enough light to see the porch, the steps and the front sidewalk. However, he was able to see the ice on the steps and sidewalk after he fell. Plaintiffs wife, who had preceded the plaintiff down the steps, testified that, although there was some light, it was dark and she had to feel her way out.

Testimony revealed that at the time of the accident the defendant was standing in the doorway with the front door open. Light was available from the inside hall light, a porch light six or seven feet to the side of the front porch, and a street light approximately 50 feet from the front porch. The light directly over the front steps and porch, however, had been burned out for some time, and the defendant had knowledge of this fact.

Issue.

The issue in this case is whether the trial judge erred in directing the verdict against the plaintiffs.

At the time of the accident, the plaintiff was a social guest of the defendant and between them the duty owed was that of licensor to licensee. Kaslo v. Hahn (1967), 36 Wis. 2d 87, 153 N. W. 2d 33. A licensor may be liable to the licensee for injuries caused by the active negligence of the licensor, or by a trap on the premises. [248]*248Kaslo v. Hahn, supra; Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N. W. 2d 310; Szafranski v. Radetzky (1966), 31 Wis. 2d 119, 141 N. W. 2d 902; Kretchman v. Reid (1970), 46 Wis. 2d 677, 176 N. W. 2d 301. A condition of the premises is not active negligence. Kaslo v. Hahn, supra. To establish liability on the part of the defendants, therefore, it is necessary to decide that the icy condition of defendants’ front steps constituted a trap. “A ‘trap’ arises when the owner fails to disclose to the licensee a known but concealed danger.” Szafranski v. Radetzky, supra, 126.

In Kaslo v. Hahn, supra, 93, this court held that liability arising from injury caused by a trap is not predicated on any act of the landowner but rather on a failure to warn of the condition. Under Kaslo, a trap envisions known, concealed and dangerous conditions, whether they result from natural conditions or an affirmative act on the part of the landowner. Therefore, it cannot be held categorically that a natural accumulation of ice and snow is not a trap as a matter of law.

The defendant testified that he was aware of the slippery condition of his front steps; therefore, the only question to be decided on review is whether this condition was observable as a matter of law.

We are of the opinion that the trial court erred in ruling as a matter of law that this was not a concealed situation.

Questions to be resolved at trial were: (1) Whether, in fact, plaintiff was adequately warned; and (2) whether there was sufficient illumination, under the facts of this case, so that the condition was obvious to a reasonable man in the exercise of ordinary care. These are questions of fact, and under the evidence presented in this case should have been answered by the jury.

In Phoenix Ins. Co. v. Wisconsin Southern Gas Co. (1970), 45 Wis. 2d 471, 484, 485, 173 N. W. 2d 610, this [249]*249court quoted the standard by which decisions on motions for a directed verdict will be reviewed:

“ Tn determining whether or not the trial court was in error in failing to direct the verdict, this court must take that view of the evidence which is most favorable to the party (the plaintiff in this case) against whom the verdict was sought to be directed. Schumacher v. Klabunde (1963), 19 Wis. (2d) 83, 87, 119 N. W. (2d) 457; Mueller v. O’Leary (1935), 216 Wis. 585, 587, 257 N. W. 161. If there is any evidence to sustain a defense or a cause of action, the case must be submitted to the jury. Kielich v. Whittaker (1924), 183 Wis. 470, 198 N. W. 270. The weight and sufficiency of the evidence is for the jury (Jolitz v. Fintch (1938), 229 Wis. 256, 261, 282 N. W. 87), as is the weight to be given to the witness’ positive or negative testimony. Conrardy v. Sheboygan County (1956), 273 Wis. 78, 82, 76 N. W. (2d) 560. Furthermore, it is basic that the credibility of the evidence and the inferences to be drawn therefrom are matters for the jury. Braatz v. Continental Casualty Co. (1956), 272 Wis. 479, 487, 76 N. W. (2d) 303. If there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury. Larson v. Splett (1954), 267 Wis. 473, 66 N. W. (2d) 181. Incredible evidence is evidence in conflict with the uniform course of nature or with fully established or conceded facts. Davis v. Skille (1961), 12 Wis. (2d) 482, 107 N. W. (2d) 458; Czerniakowski v. National Ice & Coal Co. (1948), 252 Wis. 112, 31 N. W. (2d) 156.’ ”

Viewing the evidence in its most favorable light to the plaintiffs, we believe there was sufficient credible evidence presented by the plaintiffs to create issues of fact for jury determination.

Eespondent argues that since plaintiff was able to see the ice after he fell, he was able, as a matter of law, to see the ice before he fell. Observability after the fact, while of probative value, is not necessarily determinative of the issue of observability before the fact, especially where the observations are made from two different [250]*250positions. In determining whether or not a trap exists, the question of observability must be decided with reference to the point of the alleged entrapment.

Respondent further argues that inadequate lighting should have warned plaintiff that a dangerous condition might exist and cites Scheeler v. Bahr, supra, in support of this proposition. In Scheeler, plaintiff dove into shallow, murky water and sustained severe injuries.

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Flintrop v. Lefco
190 N.W.2d 140 (Wisconsin Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
190 N.W.2d 140, 52 Wis. 2d 244, 1971 Wisc. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flintrop-v-lefco-wis-1971.