Patterson v. Silverdale Resort, Inc.

Wisconsin Supreme Court

Patterson v. Silverdale Resort, Inc.

99 N.W.2d 730, 8 Wis. 2d 572

CourtWisconsin Supreme Court

DecidedDecember 1, 1959

StatusPublished

Cited by4 cases

This text of 99 N.W.2d 730 (Patterson v. Silverdale Resort, Inc.) 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

Patterson v. Silverdale Resort, Inc., 99 N.W.2d 730, 8 Wis. 2d 572 (Wis. 1959).

Pincite

Opinion

*574 Martin, C. J.

In the afternoon of July 15, 1957, Mr. and Mrs. Patterson and their two children, Karen and Steve, obtained and paid for accommodations at the defendant resort near Baraboo. The accommodations consisted of a room, commonly known as Room 1, situated in the northwest corner of a building which housed the office, and a sleeping cabin known as the “Shanty,” situated some distance to the west and north. The room was to be occupied by Mrs. Patterson and her daughter; the “Shanty” by Mr. Patterson and the son.

Immediately north and west of Room 1 there is a lawn area covered with grass and containing a number of trees, which area is surrounded by a retaining wall. The wall is constructed of quartzite stones in various sizes and natural shapes, laid up without mortar. According to the plat of the area, which is Exhibit 1 in evidence, the wall is about 20 feet long on the north and 35 feet long on the west. Along the north portion its height varies between three and four feet. The north wall extends east to a workshop building opening on the lower level. The area west and north of the retaining wall is semigrass with a driveway located therein.

Prior to taking the accommodations Mrs. Patterson inspected them. After registering, the family moved their luggage into their respective rooms. Mrs. Patterson testified they spent about twenty minutes there; it was daylight and she noticed the lawn area and the retaining wall, although she did not go into the immediate vicinity of the wall. The family then left to visit friends at another resort nearby and did not return until 11 or 11:30 that night.

After reaching her room Mrs. Patterson decided she wanted something from the car, which was parked in an area between the room and the “Shanty.” Her daughter said that Steve was outside in the driveway and Mrs. Patterson went out to call him. She walked about 25 feet from the door of the room to the north wall, which she knew was *575 there, saw her son on the lower level close to the wall, and while she talked to him she stood either close to or partly upon the stones at the top of the wall. While so standing the wall collapsed and she fell with it, sustaining injury, to her right leg.

The son Steve, aged sixteen, testified that when he heard his mother call he was on the lower ground north of the wall and he went up to two or three feet from the foot of the wall. From that position he saw her approach the wall and he testified her feet were on the grass next to the stones; she had stopped before the collapse occurred.

Mrs. Patterson testified it was dark in the area of the wall at the time of the accident, though she knew the wall was there and she could make out the position of her son because she could see his white shirt. There were lights burning in Room 1 about 25 feet south of where she stood at the wall. The record shows that there is a power pole and a light fixture at the northwest corner of the wall. The fixture is a triple fixture but contained only one 60-watt bulb without reflector. The manager of the resort checked the light at 10:30 that evening and it was burning. At the time of the accident, however, the bulb had burned out.

The jury found that the retaining wall, as constructed and maintained on the date of the accident, constituted a hazard; that in the exercise of ordinary care the defendant, through its agents or officers, should have known of the hazard and was negligent in failing to warn its guests thereof; that the hazardous condition of the wall and defendant’s failure to warn were causes of Mrs. Patterson’s fall and injury. It found that Mrs. Patterson was not negligent as to her own safety.

Defendant contends Mrs. Patterson was causally negligent as a matter of law. We cannot agree. Defendant contends Mrs. Patterson gave three versions of what happened, indicating that she did not know the position of her feet with *576 respect to the wall, was not watching her step, and that this is causal negligence as a matter of law. A reading of the record clearly shows that the question of her negligence was for the jury.

The son’s testimony as to where his mother’s feet were and what she was doing at the time the wall collapsed is clear and precise. The jury could well consider that he was in an excellent position to know the facts since he was then standing close to the wall and with his eye level just above the level of the wall and just above the level of Mrs. Patterson’s feet. He testified she was standing on the grass just behind the stones when the wall collapsed.

The fact that the wall constituted a hazard of which the defendant should have known, as the jury found, does not compel the conclusion that Mrs. Patterson should have known it to be a hazard. We must take the testimony most favorable to her. She had observed the rooms and the surrounding area in daylight, but only in a general way; she had paid no particular attention to the wall and had no occasion to inspect it carefully. The lawn area confined by the retaining wall was meant to be used by guests occupying Room 1; defendant had placed lawn chairs there. While it was dark when Mrs. Patterson went out to call Steve, she could see where she was going and she could see Steve on the driveway area below the wall.

As to the finding that the wall was a hazard, the rule is stated in 65 C. J. S., Negligence, p. 579, sec. 81, as follows:

“As a general rule, the owner or other person in control of premises need exercise only due care with respect to the safe condition of the premises, and may not be held responsible for injuries where such care is exercised. What is reasonable care depends on the nature of the property and the dangers in its use ordinarily to be apprehended, and what constitutes a reasonably safe condition of premises for the protection of persons rightfully using them depends on the *577 nature of the use of, or activities conducted in, the building and the circumstances surrounding the particular situation. So the owner of a building is not responsible for injuries resulting from unusual and unexpected uses of his property, contrary to its purpose and design. Ordinarily due care is exercised where the construction and maintenance of the premises are substantially the same as those which have been in common and general use for a long period of time in similar buildings unless it appears that such general usage is inherently dangerous or obviously improper.”

Even if it is assumed, as defendant maintains, that it was Mrs. Patterson who “disturbed” the wall so as to cause its collapse, it cannot be said as a matter of law that her use of the wall, whether she was walking up to it, standing behind or upon it, was an “unusual or unexpected” use. The lawn area inclosed by the wall was meant for the use of guests in Room 1, and the top of the wall was simply the edge of that area. To be sure, it was a retaining wall designed to maintain the level of the lawn above the area to the north and west of it, and the testimony of one Harold Vile, a professional engineer, is that for the purpose of a retaining wall it was adequately constructed and of a type in common use in the vicinity. On cross-examination Mr.

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