Gross v. Denow

212 N.W.2d 2, 61 Wis. 2d 40, 1973 Wisc. LEXIS 1244

• Court: Wisconsin Supreme Court
• Decided: November 12, 1973
• Docket: 227
• Status: Published

Opinions

Egbert W. Hansen, J.

Issues raised on this appeal relate to: (1) The applicability of the safe-place statute; (2) the apportionment of negligence; and (3) the award of damages. Each is separable from the others, and each will be treated separately on this review.

Applicability of safe-place statute.

As to plaintiff’s cause of action against Midwest for violation of the safe-place statute, the initial inquiry is whether the dirt road on which plaintiff was injured was a “place of employment” under that statute. The safe-place statute provides in pertinent part:

“(a) The phrase ‘place of employment’ includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in (a) private domestic service which does not involve the use of mechanical power or (b) farming. ...” ¹

Of this statutory reference to a “place of employment” this court has observed: l

“. . . The words,‘place of employment’are descriptive. They furnish an outline of a definition and, as used in the statute, indicate a purpose to protect employees and lawful frequenters. Those words naturally carry the idea of a place necessarily used by one or more persons engaged in an enterprise for the purpose of gain or profit, direct or indirect. ...” ²

We deal here with a private thoroughfare, on the premises and under the control of the racetrack operator.³ So we do not have the issue of a public place, not under ownership or control' of the employer, being considered a “place of employment.” ⁴ The racetrack was “an enterprise for the purpose of gain or profit.” The spectators and drivers using the road from pit area to parking area were “lawful frequenters.” The permitted use of the road by drivers and spectators was directly related to the business being carried on.

The safe-place statute provides that it is an employer’s duty to furnish safe employment and place. The applicable statute, in part, provides:

“(1) 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.” ⁵

Under this statute an employer has a duty to make the “place of employment” as safe as the nature of the employment will reasonably permit, a higher duty than that of ordinary care.⁶ The statute does not make the employer an insurer.⁷ The duty set by the statute is not breached merely because the place could be made safer.⁸ The employer’s duty to furnish a safe place is an absolute one, but the term “safe” is relative, not absolute.⁹ As this court has said, “The point is simply that the statute recognizes a `rule of reason.'"¹⁰ What is a safe place depends upon the facts and conditions present,¹¹ and the use to which the place "was likely to be put." ¹²

This court has made clear that the "safe-place statute deals with unsafe conditions and not with negligent acts as such." ¹³ So the question arises, In what respect or particular was the roadway from the pit area to the parking area unsafe? The plaintiff seeking to keep all options open is less than precise in describing the particular in which the road was unsafe. It is suggested that the bumpiness of the road constituted an unsafe condition. However, there is in this record no causal link between the fact of bumpiness and the occurrence of the accident. It is suggested the absence of a warning to pedestrians that vehicles were using the road constituted an unsafeness of condition. However, applied to the plaintiff, himself a racetrack driver who had previously used the road as a driver as well as a pedestrian, such warning would not have told him anything that he did not already know. The sole basis for holding the road to be in an unsafe condition derives from the fact that the racetrack operator had the required constructive notice,¹⁴ that a narrow roadway was simultaneously used as an exit route by pedestrians (pedestrian traffic on the left side of the road at the time of the accident was "heavy"), and by vehicle drivers (about 75-80 cars were in the pit area of the track on the night involved). The court majority that wrote Gould would hold that such known use to which the narrow road was being put entitled a jury to find that devices reasonably available to the racetrack operator might have been used to meet the standard of care required by the statute.¹⁵ Prohibiting pedestrian traffic or providing a fence separating pedestrian and vehicular traffic are devices that would have made the road as safe as its nature would reasonably permit.

Apportionment of negligence.

The jury apportioned 70 percent of the causal negligence to Midwest, 25 percent to driver-defendant Denow, and five percent to pedestrian-plaintiff Gross. This court has consistently held that the apportionment of negligence is within the special province of the jury and it is “only where it clearly appears that negligence of one party equals or exceeds that of another that the court will interfere.” ¹⁶ This rule and exception apply in safe-place cases as well as in ordinary negligence actions.¹⁷ It follows that “[ajlthough there is judicial reluctance to change the jury’s apportionment and to find a plaintiff at least equally negligent, the court will do so where ‘the evidence of the plaintiff’s negligence is so clear and the quantum so great.’ ” ¹⁸ And where it appears “. . . that the negligence of the plaintiff is as a matter of law equal to or greater than that of the defendant, it is not only within the power of the court but it is the duty of the court to so hold.” ¹⁹

The jury verdict here found the racetrack operator 70 percent negligent for permitting both pedestrian and vehicular traffic on one of three exit routes from the seating area to the parking area. The verdict found the pedestrian plaintiff five percent causally negligent for voluntarily and knowingly choosing to exit by the route where pedestrian and vehicular traffic were permitted. The plaintiff had been a racetrack driver on prior occasions at the racetrack involved. As such, he had used the third exit route as a driver. He knew both pedestrians and vehicles used the road he selected to walk along. He 'knew the other two exit routes — shorter and more direct — did not have vehicular traffic moving on them. The jury verdict that the one who maintained the road was 14 times as causally negligent as the person who chose it as an egress cannot stand.

Frequenters of a public place or building are under an obligation to exercise ordinary care for their own safety.²⁰ While assumption, of risk is not a defense under the safe-place statute, contributory negligence is.²¹ So a fan in the stands, hit by a foul ball, for “failing to take any precaution for her own safety,” has been held by this court to be “at least as negligent as the defendants [baseball club and stadium owner].” ²² Where a pedestrian walked on a street under construction with “full knowledge of this fact,” and there was “an alternate route,” this court held that “the negligence of the plaintiff [who fell] was at least equal to or greater than that of the defendant [construction company] as a matter of law.”²³ When a plaintiff, injured after crawling through a window to get into a locked room, “bad other alternative courses of action which were open to him and which were more reasonable and more safe,” this court upheld a trial court holding that plaintiff’s negligence was “equal to that of the defendant as a matter of law.” ²⁴ Where a plaintiff shopper walked over a length of wire fencing on the floor, “[although the plaintiff easily could have walked around it, he chose to walk over the wire, tripped on it and fell,” this court held as a matter of law that plaintiff’s negligence was equal to that of defendant store owner.²⁵ In the case before us, where the plaintiff selected from among three exit routes the one in which pedestrian and vehicular traffic were commingled, and where he failed to keep a proper lookout for vehicles passing to his right while he proceeded along the route, his negligence in both respects combined was at least equal to that of the racetrack operator who built and maintained the road involved. Setting aside the jury apportionment is required, and the cause is remanded for a new trial on the issue of negligence only.

Award of damages.

The jury awarded damages in the amount of $35,000. This sum did not include an award of $2,777.01 for wages lost and medical expenses set by the trial court and not challenged on this appeal. This is not the more usual high-speed automobile accident with multiple injuries. The plaintiff was walking alongside the road with automobiles and trailers passing him and without looking back to see who was approaching or how close to his line of walking they were moving. The defendant driver testified he was driving five miles an hour as his automobile came abreast of plaintiff and just before the wider trailer caught plaintiff and pulled him to the ground. Apparently the wheel of the trailer went over plaintiff’s foot and he sustained a fractured ankle. For the sole injury of a fractured ankle, an award of $35,000 would be excessive, as defendants-appellants argue this award to be. However, something more than a typical ankle fracture is here involved. As the trial court stated, “this sum [$35,000] includes past pain, suffering and disability, and future pain, suffering and disability and reduced earning capacity.” The plaintiff testified to daily pain and disability, particularly during the working day. As the trial court noted, on motions after verdict, . . the defendant’s own doctor, Dr. James Regan, admitted there was nothing that medical science could do to correct the condition, and the plaintiff would have to live with the pain.” At the time of trial the plaintiff was thirty-one years of age and had a life expectancy of 40.1 years, according to the United States Department of Health, Education and Welfare mortality table. This court has stated that “. . . unless the record discloses a substantial reason for reversing the trial court’s determination that the damage question should not be retried, we should not do so.” ²⁶ We find no such substantial reason here and affirm the trial court holding, on motions after verdict, that “the sum of $35,000 awarded by the jury is not unreasonable taking into consideration the nature of the injury, and the effect that such injuries are calculated to have on the plaintiff during his future life of some forty-plus years.”

By the Court. — Judgment affirmed in part; reversed in part and cause remanded for a new trial on the issue of negligence only.

1 Sec. 101.01 (2) (a), Stats, (then sec. 101.01 (1), Stats. 1967).

2 Mennetti v. West Side Businessmen’s Asso. (1945), 246 Wis. 586, 590, 18 N. W. 2d 487. See also: Schwenn v. Loraine Hotel Co. (1961), 14 Wis. 2d 601, 605, 111 N. W. 2d 495; Ball v. Madison (1957); 1 Wis. 2d 62, 65, 82 N. W. 2d 894.

3 See: Filipiak v. Plombon (1962), 15 Wis. 2d 484, 113 N. W. 2d 365.

4 See: Gordon v. Schultz Savo Stores, Inc. (1972), 54 Wis. 2d 692, 697, 196 N. W. 2d 633; Peppas v. Milwaukee (1966), 29 Wis. 2d 609, 139 N. W. 2d 579, 141 N. W. 2d 228.

5 See. 101.11 (1), Stats, (then sec. 101.06, Stats. 1967).

6 Krause v. Menzner Lumber & Supply Co. (1959), 6 Wis. 2d 615, 622, 95 N. W. 2d 374.

7 Heckendorf v. J. C. Penney Co. (1966), 31 Wis. 2d 346, 350, 142 N. W. 2d 801.

8 Paaske v. Perfex Corp. (1964), 24 Wis. 2d 485, 490, 129 N. W. 2d 198.

9 Zernia v. Capitol Court Corp. (1963), 21 Wis. 2d 164, 170e, 124 N. W. 2d 86, 125 N. W. 2d 705.

10 Id.

11 Powless v. Milwaukee County (1959), 6 Wis. 2d 78, 81, 94 N. W. 2d 187.

12 Gould v. Alistar Ins. Co. (1973), 59 Wis. 2d 355, 362, 208 N. W. 2d 388.

13 Gilson v. Drees Brothers (1963), 19 Wis. 2d 252, 257, 120 N. W. 2d 63 (citing Deaton v. Unit Crane & Shovel Corp. (1953), 265 Wis. 349, 61 N. W. 2d 552).

14 See: Presti v. O'Donahue (1964), 25 Wis. 2d 594, 599, 131 N. W. 2d 273 (citing Longberg v. H. L. Green Co. (1962), 15 Wis. 2d 505, 113 N. W. 2d 129, 114 N. W. 2d 435).

15 Gould v. Allstar Ins. Co., supra, at page 362, stating: “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.” See also: Presti v. O’Donahue, supra, at page 699, stating: “. . . While this does not mean that the employer had a duty to furnish devices that would insure the safety of a frequenter, it does mean that the jury may determine whether the employer might not have supplied devices that would have made the place as safe as its nature would reasonably permit.”

16 Young v. Anaconda American Brass Co. (1969), 43 Wis. 2d 36, 45, 168 N. W. 2d 112. See also: Smith v. St. Paul Fire & Marine Ins. Co. (1973), 66 Wis. 2d 752, 755, 203 N. W. 2d 34.

17 Id. at page 46, citing Klein v. Montgomery Ward & Co. (1953), 263 Wis. 317, 57 N. W. 2d 188, as holding: “A court undoubtedly has authority to overturn a jury’s apportionment of negligence in safe-place cases as well as in ordinary negligence matters.” (Quoted in Rewolinski v. Harley-Davidson Motor Co. (1966), 32 Wis. 2d 680, 684, 146 N. W. 2d 485.)

18 Id. at page 46, citing Schwarz v. Winter (1956), 272 Wis. 303, 309, 75 N. W. 2d 447.

19 Skybrock v. Concrete Construction Co. (1969), 42 Wis. 2d 480, 490, 167 N. W. 2d 209 (citing Peters v. Chicago M., St. P. & P. R. R. (1939), 230 Wis. 299, 301, 283 N. W. 803; Hollie v. Gibertson (1968), 38 Wis. 2d 245, 250, 156 N. W. 2d 462).

20 Powless v. Milwaukee County (1959), 6 Wis. 2d 78, 85, 94 N. W. 2d 187 (citing Du Rocher v. Teutonia Motor Car Co. (1925), 188 Wis. 208, 205 N. W. 921).

21 Id. at page 85, citing Washburn v. Skogg (1931), 204 Wis. 29, 233 N. W. 764, 235 N. W. 437.

22 Id. at page 86, stating: “. . . We are convinced that the plaintiff — in voluntarily going to the game, sitting where she did, ignoring the fact that the batter was at hat, ignoring the noise and excitement after hearing the report of the bat hitting the ball, and in failing to take any precaution for her own safety — was at least as negligent as the defendants, assuming defendants were negligent under the safe-place statute.”

23 Skybrock v. Concrete Construction Co., supra, at page 490, noting: “The plaintiff entered the construction site at her own peril. It was obvious that the street was under construction and the plaintiff had full knowledge of this fact. . . . The availability of the new sidewalk provided an alternate route.”

24 Rewolinski v. Harley-Davidson Motor Co., supra, at page 684.

25 Id. at pages 684, 685, summarizing Klein v. Montgomery Ward & Co., supra, as follows: “In the Klein Case, the plaintiff, who was shopping in the defendant’s store, walked over a length of wire fencing which a salesman had unrolled on the floor. Although the plaintiff easily could have walked around it, he chose to walk over the wire, tripped on it and fell. This court held as a matter of law that the plaintiff’s negligence was equal to that of the defendant.”

26 Korpela v. Redlin (1968), 3 Wis. 2d 591, 597, 89 N. W. 2d 305, this court noting: “A trial judge who has seen and heard the witnesses and observed the injured party has a better opportunity than we to determine whether damages are excessive.” (Citing Koepp v. National Enameling & Stamping Co. (1912), 151 Wis. 302, 322, 139 N. W. 179.)