Gould v. Allstar Insurance Co.

208 N.W.2d 388, 59 Wis. 2d 355, 1973 Wisc. LEXIS 1433

• Court: Wisconsin Supreme Court
• Decided: June 29, 1973
• Docket: 470
• Status: Published

Opinions

Heffernan, J.

Plaintiff’s complaint charged defendant, Denoon Beach, Inc., with common-law negligence and also with violating its duties under the safe place statute, sec. 101.06, Stats, (renumbered sec. 101.11 by ch. 185, Laws of 1971). The defendant concedes that the defendant’s beach was open to the public for the defendant’s profit, that the plaintiff paid a fee for admission to the area, and that the location was “a place of employment” under the safe place statute. It is, accordingly, undisputed that under the facts Gould was a “frequenter” at a place of employment. Sec. 101.06, Stats. 1969, provided :

“Employer’s duty to furnish safe employment and place. Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall 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 employes 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.”

While, under the common law, Gould would be an “invitee,” the distinction between licensees and invitees in this case is irrelevant. Richard V. Campbell, Recent Developments of Tort Law in Wisconsin, p. 17 (1969), points out:

“Where our Safe Place Statute applies, this distinction [common law] is eliminated. If a person is a user of a place of employment or a public building, as defined by the Safe Place Statute, he is an employee, a frequenter or a trespasser. Frequenters are not subdivided. All receive the same protection. Mlynarski v. St. Rita’s Congregation, 81 Wis. 2d 54, 142 N. W. 2d 207 (1966).”

The safe place statute does not create a new cause of action, but it does establish an increased standard of care, the violation of which is negligence. Baker v. McDel Corp. (1971), 53 Wis. 2d 71, 79, 191 N. W. 2d 846; Widell v. Holy Trinity Catholic Church (1963), 19 Wis. 2d 648, 650, 121 N. W. 2d 249.

Under the common law, premises were merely required to be reasonably safe; but under the safe place statute, liability is imposed if the premises are not kept as free from danger as the nature of the place will reasonably permit. Krause v. Menzner Lumber & Supply Co. (1959), 6 Wis. 2d 615, 622, 95 N. W. 2d 374.

Bunce v. Grand & Sixth Building (1931), 206 Wis. 100, 104, 238 N. W. 867, points out that the statute imposes a duty beyond the duty imposed by the common law.

Since the duty on the defendant in this case is higher than that imposed by the common law, there need be no inquiry into the legal basis of liability of an occupier of land to an invitee. If there is liability under the safe place statute, the judgment must be affirmed. The ultimate question, even in the face of the higher safe place duty, remains the same. It is “whether the defendant was negligent in not maintaining a premise in as safe a condition as the nature thereof would reasonably permit.” Wittka v. Hartnell (1970), 46 Wis. 2d 374, 385, 175 N. W. 2d 248.

On this appeal it is not argued that the jury was improperly instructed. It is for the jury to determine, under proper instructions, whether the safe place statute has been complied with or violated. Zehren v. F. W. Woolworth Co. (1960), 11 Wis. 2d 539, 544, 105 N. W. 2d 563; Heiden v. Milwaukee (1937), 226 Wis. 92, 102, 275 N. W. 922.

In the instant case, where the trial judge specifically approved the jury’s findings, it is only necessary to consider such testimony as would sustain the verdict; and, if there is any credible evidence which under any reasonable view would support the jury’s findings, the verdict is final. Seitz v. Seitz (1967), 85 Wis. 2d 282, 289, 151 N. W. 2d 86; Kosnar v. J. C. Penney Co. (1959), 6 Wis. 2d 238, 240, 94 N. W. 2d 642.

The evidence is clear and undisputed that the end of the pier, some 100 feet from shore, was located in a position where it was unsafe to dive. Moreover, the plaintiff relies on the contention that the defendant was negligent in failing to erect a warning sign or in some way warn its customers of the dangers involved in diving from the end of the pier. There is undisputed evidence that the defendant knew of the danger of diving from the pier, that there had been a warning sign at an earlier time, and that a new warning sign had been painted, was in the possession of the defendant, and had not been placed on the pier.

In view of the nature of the use to which the pier was likely to be put, the premises were not safe. There was evidence from which the jury could conclude that the premises were not kept as free from danger as the nature of the place would reasonably permit.

The defendants do not really argue that they were not negligent. In their brief they address themselves to two points. The essence of their first argument is that they had no duty to warn plaintiff of the danger because the danger was obvious to him. He admitted that he could not see the lake bottom.

Principal reliance is placed upon a recent case by this court, Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N. W. 2d 310. In that case, a social guest, a licensee, at a private home was severely injured when he dived into shallow water from the end of a pier on Lake Waubesa. That case came to us on an appeal from an order which sustained the defendant’s demurrer. The complaint alleged that a recent rainstorm had muddied the water and had obscured any view of the bottom, preventing any ascertainment of the depth of the lake at that point. We stated, at page 480, that the complaint must fail because, “as a matter of law the plaintiff must be held to knowledge and appreciation of the risk likely to be encountered by plunging headfirst into the unplumbed depths of the murky lake.” We concluded in that case that the “opaqueness of the water was in itself a notice of danger.” (P. 477) Accordingly, there was no obligation upon the owner for his failure to give an actual warning.

The Scheeler Case, however, does not control the instant case. The relationship between Scheeler and his host was that of licensor-licensee. There is no duty on the part of the licensor to make the premises safe for the licensee. He had the duty only of disclosing to his social visitor the existence of a trap — a known but concealed danger. Once that obligation was discharged, either by the host’s warning or by the guest’s seeing a noticeable and observable danger, the duty is satisfied and there can be no liability. In Scheeler, we found it unnecessary to go into the question of the plaintiff’s contributory negligence, since the defendant had breached no duty and was not negligent. There was an actual and obvious danger, and once that was apparent, under the physical circumstances of the case, whether or not the defendant was negligent under other possible legal relationships was immaterial. The duty owed to Scheeler was the lowest of the common-law duties which an occupier of land owes to one on his premises with permission. The duty owed in the instant case is the higher statutory duty, and the duty of warning in the instant case is merely a part of the statutory obligation of the occupier of the place of employment to: . . do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters.”

Had there been a warning sign in the instant case, it would not necessarily have discharged the duty of Denoon Beach to make the place safe. The question would clearly be one for the jury in terms of plaintiff’s contributory negligence. Where a safe place violation is alleged, giving of a warning may vitiate a plaintiff’s cause of action by reason of his own contributory negligence, but it does not necessarily satisfy the land occupier’s duty.

A similar argument was raised in Umnus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N. W. 2d 42, where it was argued that the plaintiff should clearly have been aware of an open and obvious danger. The court disposed of that argument, pointing out at page 436, “We do not find that the statute distinguishes between obvious and hidden dangers.”

The defendant in Umnus argued also that the open and apparent danger presented a question of contributory negligence. The court agreed but pointed out that this was a matter of defense and had nothing to do with the defendant’s duty under the safe place statute, although it clearly had relevance in respect to the plaintiff’s obligation to use reasonable care for his own safety.

Accordingly, we conclude that Scheeler offers no solace to the defendants in this case. The plaintiff’s faulty appraisal of the depth of the water herein was contributory negligence, a matter of defense only, and would prevent the plaintiff’s recovery only if the jury were to find his negligence greater than that of the defendant.

We should also point out that, aside from the different legal relationships in Scheeler and this case, there were factual differences. The plaintiff here testified that he looked at the water before diving and that it appeared to be three or four feet deep, deep enough for a safe dive of the type he attempted.

In the case of Rogers v. Oconomowoc (1964), 24 Wis. 2d 308, 128 N. W. 2d 640, a common-law negligence case not under the safe place statute, the jury was asked whether the city had been negligent in failing to warn of shallow water in proximity to a retaining wall at a swimming beach. The court concluded that the question was properly for the jury but upheld the jury’s verdict on the ground that there was evidence that the plaintiff had been swimming in that very spot before and had actual knowledge of the danger.

The jury’s conclusion that both the plaintiff and the defendant in the instant case were negligent is correct. It found, under proper instructions, in respect to the defendant that the premises were not as safe as the nature of the place would reasonably permit. In respect to the plaintiff, it found that he had failed to exercise the care and caution that an ordinarily prudent person would use under the circumstances.

The defendants’ second principal argument is, assuming negligence of both plaintiff and defendant, that the negligence of the plaintiff exceeded that of the defendant Denoon Beach, Inc. We do not agree. In considering the apportionment of negligence, it is necessary to consider the circumstances of this accident as revealed by the testimony.

The plaintiff stated that, although he made an observation of the water, he assumed that the place was safe for swimming and diving and he gave consideration to the fact that this was a public beach held open, for a fee, for that very purpose. It is reasonable to conclude from the evidence that, in a public, profit-making beach of this type, the plaintiff had less of a duty to look for dangers than he would at a beach where there was no inducement to swim and to dive. In this respect the situation is not unlike the department-store cases, where this court has held that the primary focus of a customer’s attention is to examine the merchandise and not to consider hazards that would lie in his path and which he would not reasonably expect to be there. We stated in Zehren v. F. W. Woolworth Co. (1960), 11 Wis. 2d 539, 542, 543, 105 N. W. 2d 563, that under the safe place statute:

“A person is not bound as a matter of law to see absolutely every defect or danger in his pathway which is plainly observable nor to remember the existence of every defect or hazard of which he has knowledge .... A customer is only required to act as a reasonably prudent person under the circumstances.”

We are satisfied that the plaintiff’s duty to act as a prudent person was affected by the commercial nature of the place where he was swimming. He could reasonably expect to be in a place of physical safety. It is clear, however, that his observation was defective, and the jury properly found him negligent.

As in negligence cases generally, the apportionment of causal negligence under the safe place statute is a question peculiarly within the province of the jury. Young v. Anaconda American Brass Co. (1969), 43 Wis. 2d 36, 45, 168 N. W. 2d 112; Frankovis v. King & Smith Co. (1957), 275 Wis. 156, 162, 81 N. W. 2d 495. Only in unusual cases will this court overturn a jury verdict on the apportionment of negligence. Smith v. St. Paul Fire & Marine Ins. Co. (1973), 56 Wis. 2d 752, 755, 203 N. W. 2d 34.

Under the evidence most favorable to the verdict, the jury might well have concluded that the appearance of depth at the end of the pier was deceptive, and that, although the plaintiff’s observation was defective, under the circumstances of the place in which he was a frequenter, the causal negligence was primarily due to the defendant’s failure to have the premises as safe as the use to which they were put would reasonably permit.

There is ample evidence to sustain the verdict. The court correctly instructed the jury and made the proper conclusions of law on motions after verdict.

By the Court. — Judgment affirmed.