Zernia v. Capitol Court Corp.

21 Wis. 2d 164

• Court: Wisconsin Supreme Court
• Decided: October 29, 1963
• Status: Published

Opinions

Hallows, J.

The issues on appeal are: (1) Whether there was a credible evidence to sustain the verdict; (2) whether the court was in error in denying a new trial; and (3) whether the damages were inadequate.

The first question requires a review of the material facts. The accident occurred approximately 10:30 on December 28, 1957, a Saturday morning, in the east parking lot immediately in front of Schuster’s store at the Capitol Court shopping center in Milwaukee. During the preceding evening rain or snow had fallen. The temperature was a little above freezing and about 1 a. m. the service manager of the defendant became concerned about the weather, called the guard on duty and left instructions to be called if the weather conditions became worse, and also called the weather bureau. The defendant’s maintenance foreman arrived at the parking lot about 5 :30 a. m. At that time there was a freezing drizzle and the parking lot was slippery. He instructed the regular maintenance crew to start salting and sanding the 44-acre parking-lot area. The maintenance crew consisted of five men including a supervisor, and the equipment consisted of a flatbed truck, a jeep, and a three-wheel motor vehicle known as a Cushman carrier. The truck was used on the parking lot, the other equipment elsewhere. The rain stopped shortly after 6 a. m. At 7:30 a. m. the service manager, having been alerted by the guard, ordered an independent contractor to be called to augment the regular maintenance crew. The independent contractor used two trucks and two laborers to spread sand. By 8:30 in the morning the parking lot had been sanded once and a second operation begun. By 4 p. m. when the sanding was completed the parking lot had been gone over three times and 15 tons of salt and sand had been used.

The plaintiffs arrived at the parking lot about 10:30 a. m., parked their car a distance of three to five stalls from the entrance to Schuster’s and proceeded toward Schuster’s up an aisle of the parking lot. There is some conflict in the testimony whether Mrs. Zernia at the time she slipped was alone or whether she was alongside Mr. Zernia attempting to take hold of his arm. She testified the place where she slipped had no sand or salt thereon. An employee of Schuster’s also testified he did not recall seeing any sand at the place Mrs. Zernia slipped. As a result of the fall, Mrs. Zernia fractured her 12th dorsal vertebra, was in the hospital some twenty-two days, and suffered pain and suffering and some permanent disability.

The appellants argue a shopping-center parking lot which is slippery by reason of ice cannot be considered as safe as its nature reasonably permits because there is nothing in its nature which prevents the owner from completely sanding it. The safe-place statute, secs. 101.06 and 101.01(11), Stats., applied to this case required the defendant-owner to maintain the parking lot as free from danger as the nature of the lot reasonably permitted. No doubt such place could be made absolutely safe but that is not the duty of the owner under the safe-place statute. He is not an insurer. Powless v. Milwaukee County (1959), 6 Wis. (2d) 78, 94 N. W. (2d) 187. Whether the owner has fulfilled his higher duty than ordinary care depends upon the facts and circumstances existing at the time of the accident. In Werner v. Gimbel Brothers (1959), 8 Wis. (2d) 491, 99 N. W. (2d) 708, 100 N. W. (2d) 920, we stated it was a question of fact for the jury whether the defendants’ actual or constructive notice of the unsafe condition of a walk next to the parking lot warned them in time to require them to take reasonable precautions to prevent such an accident. No such question is raised in this case.

The real question is whether the defendant’s activities, sanding and salting the parking lot, measured up to its duty of care to make it as safe as its nature would reasonably permit. We must view the evidence most favorable to sustain the verdict; ¹ the evidence shows the defendant was aware of the climatic conditions which could create a dangerous condition on the parking lot and as soon as it started to freeze the regular maintenance crew started to sand and salt and extra help was obtained. If the defendant had stopped with one application of sand and had considered that as the fulfilment of its duty, the question would be a much-closer one. However, the defendant continued to sand in the performance of its duty and resanded and resalted the parking area until approximately 4 o’clock in the afternoon. The jury could find that at 10:30 a. m. when the plaintiff was injured the defendant was maintaining the parking lot as safe as its nature would reasonably permit considering its size, the equipment and manpower used, and the weather. The contention of the plaintiff would require us to hold as a matter of law that by 10:30 in the morning the parking lot should have been sanded and salted in such a way that the plaintiff could not have slipped. That we will not do. The defendant’s duty did not extend to making the parking lot absolutely safe. At the time of the accident, the defendant was using more than ordinary care to fulfil its statutory duty.

The plaintiffs contend the only evidence of sanding the place of the accident was that two men on a truck threw salt and sand over its sides and thus there is no direct testimony the aisles were sanded where plaintiffs necessarily had to walk. We do not consider this a fair interpretation of the evidence, but in any event we cannot say it was the duty of the defendant to sand every square foot of the parking lot by 10:30 on that morning.

The plaintiffs sought a new trial on the ground of newly discovered evidence, pointing out the verdict must stand partially on the testimony of witness Kretlow, the maintenance foreman, as to the sanding of the area where the plaintiff fell. Kretlow’s testimony concerning the sanding on that morning is attacked on the grounds the witness had not previously discussed his day’s activity with anyone until the day of the trial; that he had made no written report and that there were probably 100 times when the same sanding operation was done; all of which raises a question of the witness’ credibility or accuracy of memory. The witness stated he remembered the day in question because, “Them are the worst days working around there.” The newly discovered evidence was set forth in an affidavit of the superintendent of the bureau of street sanitation of the city of Milwaukee and was to the effect that the day in question was one of “moderate icing condition.”

The granting or the refusing of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court.² The conditions for granting the motion are: (1) The evidence must have come to the moving party’s knowledge after the trial, (2) he must not have been negligent in seeking to discover it, (3) the evidence must be material to the issue, (4) the evidence must not be merely cumulative to testimony introduced at the trial, and (5) it must be reasonably probable that a different result would be reached on a new trial.³ The trial court held the plaintiffs had not met points (2) and (5) of the test. There is a question of the correctness of the ruling as to point (2), but we agree the newly discovered evidence would not make it reasonably probable a different result would be reached upon a new trial. The nature of the evidence is more for impeachment than proving any conflicting facts. It may well be the superintendent of the Milwaukee bureau of street sanitation may have considered the day to be one of “moderate icing condition” for his purpose and witness Kretlow could well have considered the same day to be a “worst day” for. the performance of his duties. In any event the newly discovered evidence is not of such probative value as to justify a finding, in view of the other evidence, that the defendant did not sand the parking lot on the morning and prior to the accident. We find no abuse of discretion in the trial court’s denying a new trial.

What we have said makes it unnecessary to extend this opinion by a discussion of the nature of the injuries suffered by Mrs. Zernia and of the adequacy of the damages awarded. Such matters are important only if a new trial were granted.

By the Court. — Judgment and order affirmed.

The following opinion was filed January 23, 1964:

1 Warden v. Miller (1901), 112 Wis. 67, 87 N. W. 828; Kalish v. Milwaukee & S. T. Corp. (1955), 268 Wis. 492, 67 N. W. (2d) 868; Dickman v. Schaeffer (1960), 10 Wis. (2d) 610, 103 N. W. (2d) 922; Bleyer v. Gross (1963), 19 Wis. (2d) 305, 120 N. W. (2d) 156.

2 Birdsall v. Fraenzel (1913), 154 Wis. 48, 142 N. W. 274; Foreman v. Milwaukee E. R. & L. Co. (1934), 214 Wis. 259, 252 N. W. 588; Erickson v. Clifton (1953), 265 Wis. 236, 61 N. W. (2d) 329; Estate of Kemman (1960), 11 Wis. (2d) 392, 105 N. W. (2d) 769.

3 Erickson v. Clifton, supra; Estate of Teasdale (1953), 264 Wis. 1, 58 N. W. (2d) 404; Hoffman v. Buggs (1959), 6 Wis. (2d) 488, 95 N. W. (2d) 237.