Reiter v. Dyken
| Citation | 95 Wis.2d 461,290 N.W.2d 510 |
| Decision Date | 08 April 1980 |
| Docket Number | No. 77-398,77-398 |
| Parties | Marian D. REITER and Harold Reiter, Plaintiffs-Respondents, v. Paul DYKEN and Linda Dyken, Defendants-Appellants and Third-Party Plaintiffs, OGDEN AND COMPANY, INC., Third-Party Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Burton A. Strnad, Milwaukee, for defendants-appellants and third-party plaintiffs.
Clifford C. Kasdorf (argued), Jeffrey A. Schmeckpeper and Kasdorf, Dall, Lewis & Swietlik, S. C., Milwaukee, on brief, for plaintiffs-respondents.
Phillip E. Crump, Milwaukee, for Ogden & Company, Inc.
Plaintiff Marian D. Reiter was injured when she slipped and fell on the rear walkway of a house owned by defendants Paul and Linda Dyken and located in the Village of Shorewood.
At the time of the accident the house was unoccupied. The Dykens had moved out of the state several months earlier and were in the process of selling their former residence. They entered into a listing contract with third-party defendant Ogden & Company, a local real estate brokerage company, who then in turn listed the property with Multiple Listing Service of which it was a member.
Multiple Listing Service (M.L.S.) is an organization of real estate brokers which compiles and distributes information on each of the properties listed individually with its members. Member brokers are then permitted to show any of these properties and, if a sale results, to share in the commission with the original listing broker.
The plaintiff, Marian Reiter, was an employee of Edward A. Purtell & Company, also an M.L.S. realtor, and at the time of the accident was in the process of showing the Dyken home to Anders and Madeline Arnheim, who were prospective purchasers. As she was walking with the Arnheims from the garage to the rear door of the home, she slipped on the snow-covered walkway and fell to the ground. She suffered a fractured right ankle and aggravated a pre-existing back injury as a result of the fall.
On July 18, 1975, the plaintiff and her husband commenced this action against Paul Dyken. They subsequently amended their complaint to include Linda Dyken, his wife, as a defendant. The complaint alleged that the defendants were negligent in failing to remove the snow and ice which had accumulated on the walkways of their premises and in failing to warn persons on the premises that a portion of the walkway from the garage to the house sloped slightly, which fact was concealed by the accumulation of snow and ice. The complaint further alleged that such negligence on the part of the defendants was the proximate cause of plaintiff's injuries.
The Dykens as defendants impleaded Ogden & Company, alleging in a third-party complaint that a listing contract between Ogden and the defendants was in full force and effect at the time of the accident, that Ogden knew that defendants' premises was vacant and unoccupied, but that Ogden had failed to take proper precautions to protect persons invited onto the premises. Defendants demanded judgment for indemnification, or in the alternative, for contribution against Ogden in the event plaintiffs obtained a judgment against them.
Following a trial before a jury, Ogden moved for dismissal on the ground that, as a matter of law, it owed no duty either as to Marian Reiter or the Dykens to remove snow and ice from the back walkway of the premises or to warn persons on the premises of the fact that the walkway sloped. The trial court granted the motion and entered an order to that effect.
The case was then submitted to the jury in the form of a special verdict which included questions as to negligence and cause with respect to the Dykens, Edward A. Purtell & Company and Marian Reiter. Because Purtell & Company was immune from liability under the exclusive remedy provision of the Workers' Compensation Act, questions as to its negligence were submitted for purposes of comparison only. 1
The jury returned a verdict apportioning the causal negligence as follows: Dykens 30 percent; Edward A. Purtell & Company 20 percent; and Marian Reiter 50 percent. The jury awarded Mrs. Reiter $15,000 for personal injuries to date, $16,000 for future personal disability and $28,500 for loss of earning capacity. Her husband was awarded $1,500 for loss of his wife's services, society and companionship, and medical expenses were fixed by the court at $5,883.
Counsel for the Dykens then moved for judgment dismissing the complaint on its merits on the ground that defendants were not liable because plaintiff's negligence was found to be greater than their own.
Plaintiffs' counsel moved the court to change the answers to Questions 5 and 6 of the verdict relating to Marian Reiter's negligence from "Yes" to "No" or, in the alternative, that a new trial be granted because of the trial court's failure to instruct the jury as to defendants' duty under the safe-place statute and its inclusion of Edward A. Purtell & Company in the verdict.
The trial court denied plaintiffs' motions after verdict, but then, in what the court itself described as "a startling fashion," it granted judgment to the plaintiffs. The trial court arrived at this result by adding together the negligence of both the Dykens and Purtell & Company, and then comparing the total to that of Marian Reiter. It concluded that because her negligence was not greater than the combined negligence of the others, she was entitled to recover. However, the trial court limited plaintiffs' recovery to 30 percent of the total damages, representing that portion of the causal negligence which had been attributed to the Dykens. Judgment was entered accordingly.
The principal issue raised on this appeal is whether the trial court erred in combining the negligence of the Dykens with that of Purtell & Company for purposes of determining whether plaintiffs were entitled to recover. Other issues regarding the duty owed by the defendants to the plaintiff, the trial court's dismissal of Ogden from the action, and the amount of damages awarded are also raised but, because of our determination of the principal issue, need not be addressed.
In support of its decision to compare Mrs. Reiter's negligence with the combined negligence of both the defendants and Purtell & Company in determining whether plaintiffs could recover, the trial court relied upon this court's decision in Reber v. Hanson, 260 Wis. 632, 51 N.W.2d 505 (1952). That case established the sole exception to the general rule in this state that the negligence of the parties is to be compared individually for purposes of determining whether liability exists. 2
Plaintiffs contend that the trial court was correct in combining the negligence of the defendants with that of Mrs. Reiter's employer under the rationale of the Reber Case, but that, even if this court concludes that Reber does not apply, it should nevertheless affirm the trial court's decision by modifying its long-standing construction of the comparative negligence statute. We turn first to a consideration of Reber v. Hanson, supra.
Reber involved a wrongful death action brought by the parents of a child who was killed by a truck making deliveries to their family-owned cheese factory. The family lived in the same building out of which they operated their business. Circling the building was a driveway which was used regularly by truckers making deliveries and picking up goods from the factory. The child who was killed was accustomed to playing in the driveway and had often been seen there by frequenters to the factory. The parents knew their child played in the driveway and asked the truck drivers to look out for him, but did nothing to keep the boy away from the drive when deliveries were being made.
In submitting the case to the jury, the trial court included in the special verdict a question which required that the parents' contributory negligence be considered as a unit rather than individually. The jury returned a verdict finding the truck driver 25 percent and the parents 75 percent causally negligent. Judgment was granted for the defendant and the parents appealed claiming that the trial court had erred in combining their negligence.
This court affirmed the judgment and upheld the form of the comparative negligence question submitted by the trial court. It based its holding upon the fact that "the duty to protect was joint, the opportunity to protect was equal, and as a matter of law neither the obligation nor the breach of its was divisible." Reber v. Hanson, supra, 260 Wis. at 638, 51 N.W.2d at 508. Under these circumstances, the court concluded, the trial court was correct in requiring the jury to consider the negligence of the separate parents as a unit.
In the case at hand the trial court held that the Reber rationale controlled because "the identical act, the failure to shovel the snow was the item of negligent conduct on the part of both the Purtell Company and the Dykens." This fact, in the trial court's opinion, justified comparing plaintiff's negligence with the combined negligence of both the other parties to determine whether recovery should be allowed.
Under Reber, however, more is required than identical acts or omissions before the negligence of separate individuals may be combined for comparison purposes in determining liability. In addition, the duty breached and the opportunity to fulfill that duty must be the same, and neither the obligation nor the breach of it may be divisible. Considered in light of these requirements, this was not a proper case in which to apply Reber.
The respective duties of the defendants and plaintiffs' employer were different both in nature and degree. The duty owed by the defendants was the common law duty of ordinary care owed by a landowner to anyone who comes upon his property with consent. 3 Whatever duty Purtell & Company owed, on the other hand, arose under the safe-place sta...
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