Zelco v. Integrity Mutual Insurance

527 N.W.2d 357, 190 Wis. 2d 74, 1994 Wisc. App. LEXIS 1515

• Court: Court of Appeals of Wisconsin
• Decided: December 6, 1994
• Docket: 93-3378
• Status: Published

Opinions

WEDEMEYER, P.J.

Dean Hitsman and his insurer, Integrity Mutual Insurance Co. (Hitsman) appeal from an order: (1) dismissing their cross-claim against Ann Norenberg and her insurer, Sheboygan Falls Mutual Insurance Company; and (2) dismissing their third-party claim against Kenneth¹ and Bonnie Norenberg (Ann's parents). The issues on appeal are: (1) whether any legal duty exists from a social host to a guest who is injured during his or her intentional confrontation with another guest; and (2) whether the parents of a minor social host owe any legal duty to a guest who is injured in their home by another guest because of their obligation to control their child. On summary judgment, the trial court found that no legal duty exists. Because we conclude that a social host's duty to exercise ordinary care does not impose on a social host the duty to protect one guest from the conduct of another guest, and because Hitsman cannot state a claim for negligent parental control, we affirm.

I. BACKGROUND

On October 27, 1989, Ann Norenberg hosted a party at the Norenberg home where she resided with her parents. Ann was seventeen-years-old and her parents were out-of-town. Guests were to bring their own beverages for consumption. Clifford Zelco, age twenty-two, and Dean Hitsman, age eighteen, were not invited guests, but were allowed into the Norenberg home. Both men admit that during the party they consumed only beer that they had purchased on their own and brought with them to the party. Both men admit that Ann did not provide them with any alcohol. At one point, Hitsman was asked to leave because of his conduct. Hitsman left, but returned a short time later and forced himself into the home. Ann again told Hitsman to leave and went upstairs into a bedroom. Hitsman followed her upstairs. Zelco followed Hitsman upstairs. Zelco "bear hugged" Hitsman. When Zelco released Hitsman, Zelco lost his balance. Before falling, Zelco reached out to grab something and ended up grabbing Hitsman. As a result, both men fell down the stairs together.

Zelco was injured and filed a lawsuit against Hitsman and Ann Norenberg. He alleged that Ann was negligent. Hitsman's insurer filed a cross-claim against Ann and filed a third-party action against Ann's parents. The trial court granted the Norenbergs' motion for summary judgment. Hitsman now appeals.

II. DISCUSSION

In reviewing a summary judgment decision, we apply the standards set forth in § 802.08(2), STATS., in the same manner as the trial court. County of Dane v. Norman, 174 Wis. 2d 683, 686, 497 N.W.2d 714, 715 (1993) (citation omitted). Since that methodology has been set forth in numerous other decisions, we do not repeat it here. See, e.g., Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476 (1980).

A. Negligence claim against Ann Norenberg.

Hitsman claims that Ann, as a social host, owed a duty to her guests to exercise ordinary care and, therefore, had a duty to protect Zelco who was injured when he intentionally confronted Hitsman. Ann claims that a social host does not owe any duty to protect one guest from another, absent a special relationship. The trial court held that since no special relationship exists between a social host and his or her guests, no legal duty exists. We agree with the trial court.

Although "[t]he duty toward all persons who come upon property with consent of the occupier will be that of ordinary care," Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 857, 236 N.W.2d 1, 11 (1975), this duty does not necessarily include a duty to protect one guest who voluntarily confronts another guest.

In this case, Ann had a duty to exercise ordinary care toward the individuals who came into her home with her consent; however, Ann did not have a duty to protect Zelco from injuries he suffered when he voluntarily confronted Hitsman. We base our conclusion on two factors: (1) " 'A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone.'" Lloyd v. S.S. Kresge Co., 85 Wis. 2d 296, 305, 270 N.W.2d 423, 427 (Ct. App. 1978); and (2) "Wisconsin does not generally impose a duty upon persons to protect others from hazardous situations." Erickson v. Prudential Ins. Co., 166 Wis. 2d 82, 88, 479 N.W.2d 552, 554 (Ct. App. 1991).

First, Ann's duty is not established in this case because Zelco's injuries were not foreseeable. Unbeknownst to Ann, Zelco chose to confront Hitsman on his own volition. Second, a duty to protect or aid someone from another's conduct is only imposed in situations where a special relationship exists. See Lloyd, 85 Wis. 2d at 302-04, 270 N.W.2d at 426-28. Wisconsin has not recognized the social host/guest association as a special relationship. Therefore, although Ann had a duty to exercise ordinary care toward her guests, this duty did not include a duty to protect Zelco when he confronted Hitsman.²

B. Failure to control of Kenneth and Bonnie Norenberg.

Hitsman claims that even if Ann does not have any legal duty, Bonnie and Kenneth Norenberg, as Ann's parents, were negligent in controlling their child and that this negligence is a separate, independent act of negligence that does not depend on Ann's actions. Bonnie and Kenneth claim that no legal duty exists that would make them responsible for injuries suffered by Zelco. The trial court found that no duty exists with respect to Bonnie and Kenneth, for the same reasons that no duty exists with respect to Ann. We conclude that, in these particular circumstances, no duty exists with respect to Ann's parents to protect guests from other guests and that Hitsman cannot state a claim for parental liability. Accordingly, we affirm the trial court.

The same analysis applied above with respect to Ann's duty to exercise ordinary care applies with respect to her parents. As noted, the duty to exercise ordinary care towards guests does not impose a duty to protect one guest from an assault by another guest, absent a special relationship. Just as there is no special relationship between Ann and Zelco, there is no special relationship between Ann's parents and Zelco. Consequently, Ann's parents did not owe a duty to protect Zelco when he chose to confront Hitsman.

We now address the parental control issue. Hitsman claims that Bonnie is negligent for leaving Ann home alone because Bonnie knew Ann had previous problems with underage drinking. Hitsman's argument is based on the common law parental liability that "where the parent fails to exercise control over the child, although the parent knows, or should know, that injury to another is a probable consequence," Bankert v. Threshermen's Mutual Insurance Co., 110 Wis. 2d 469, 474, 329 N.W.2d 150, 152 (1983), a parent is liable for the resulting injuries.

We reject Hitsman's argument because a parent who has failed to exercise proper control only becomes liable if the child commits a negligent act. See id. at 477, 329 N.W.2d at 153-54. In the absence of negligence by the child, the parents' failure to exercise proper control is not actionable. Id. Consequently, because Ann did not commit an act of negligence, Hitsman cannot maintain a cause of action for parental liability against Bonnie or Kenneth.³

By the Court. — Order affirmed.

1 Kenneth Norenberg was initially named as a third party defendant; however, the written order granting summary judgment to the Norenbergs does not specifically include Kenneth by name. Although the record is silent as to why Kenneth is not specifically referenced, the record indicates that Kenneth is deceased. Moreover, the transcript from the summary judgment hearing clearly indicates the trial court dismissed any claim against all the Norenbergs. Therefore, this opinion disposes of any issues raised in relation to both Bonnie and Kenneth.

2 We note for purposes of clarity that this case is not governed by Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985). In Koback, an adult couple hosted a party and allegedly knowingly served alcohol to minors. Id. at 262, 366 N.W.2d at 860. Further, the adult couple allegedly knew that one minor was intoxicated and allegedly knew that this minor would be driving his motorcycle home with another guest riding along. Id. at 262, 366 N.W.2d at 858-59. The court held that when a social host negligently serves intoxicating beverages to a minor guest, and the intoxicants cause the minor's driving ability to be impaired, the host will be liable to third persons where the alcohol is a substantial factor in causing injury. Id. at 276, 366 N.W.2d at 865.

The instant case is distinguishable from Koback for several reasons. First, Ann did not "serve" alcohol; the party was a "bring your own beverages" party. Second, this case did not involve drinking and driving. Third, Zelco, who was 22 years old, voluntarily and deliberately confronted Hitsman; Ann could not reasonably foresee that Zelco would confront Hitsman or that such a confrontation would result in a tumble down the staircase.

Moreover, Koback preceded the enactment of the statute granting civil liability immunity to those who provide alcoholic beverages to another person. The immunity statute, § 125.035, Stats., imposes liability on providers who serve alcohol only where alcohol is knowingly provided to underage persons and if the alcohol was a substantial factor in causing injury to a third party. See § 125.035(4)(b), STATS. This statute, however, does not provide a cause of action against a "provider" when the plaintiffs injuries stem in part from personal alcohol consumption. See Kwiatkowski v. Capitol Indem. Corp., 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990).

3 The dissent, in broad and sweeping language, erroneously concludes that because of this decision "parents will believe they can look the other way while their teenage children host drinking parties." Dissent op. at 82. It is the duty of this court to decide only the issues raised by the parties involved. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the narrowest possible grounds). Based on the undisputed facts and circumstances in this particular case, we hold that the trial court's grant of summary judgment must be affirmed. Contrary to the dissent's implication, this opinion does not condone underage drinking nor does this opinion suggest that a parent or teenager can never be negligent when they host a party.

Nevertheless, based on the current state of the law when applied to the facts in this particular case, we conclude that summary judgment in favor of the Norenbergs was the appropriate disposition.