Zelco v. Integrity Mut. Ins. Co.

Decision Date06 December 1994
Docket NumberNo. 93-3378,93-3378
Citation527 N.W.2d 357,190 Wis.2d 74
PartiesClifford ZELCO, Plaintiff, v. INTEGRITY MUTUAL INSURANCE CO. and Dean Hitsman, Defendants-Appellants, d ]] Sheboygan Falls Mutual Insurance Company and Ann Norenberg, Defendants-Respondents, Sheboygan Memorial Medical Center, Defendant, INTEGRITY MUTUAL INSURANCE CO., Third Party Plaintiff-Appellant,d v. Kenneth NORENBERG, Third Party Defendant, Bonnie Norenberg, Third Party Defendant-Respondent.
CourtWisconsin Court of Appeals

For the defendants-appellants and third party plaintiff-appellant the cause was submitted on the briefs of James C. Ratzel of Otjen, Van Ert, Stangle, Lieb & Weir, S.C. of Milwaukee.

For the defendants-respondents and third party defendant-respondent the cause was submitted on the briefs of James O. Conway of Olsen, Kloet, Gunderson & Conway of Sheboygan.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

WEDEMEYER, Presiding Judge.

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 Kenneth 1 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

Order affirmed.

SCHUDSON, Judge (dissenting).

The majority decision interrupts the evolution of common law liability principles, and increases the risk that parents will believe they can look the other way while their teenage children host drinking parties. Based on the summary judgment submissions, I conclude that negligence in this case is an issue for the jury.

In Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975), the supreme court held that "[t]he highest duty is owed to the invitee, that of ordinary care under the circumstances." Id. at 843, 236 N.W.2d at 4. The supreme court acknowledged its departure from settled precedent but explained:

It is the tradition of common-law courts to reflect the spirit of their times and discard legal rules when they serve to impede society rather than to advance it. This principle, which has always been the guide of the courts, was well stated by Chief Justice Winslow ...:

"... the conditions and problems surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third. The race moves forward constantly, and no Canute 1 can stay its progress."

Id. at 855, 236 N.W.2d at 10-11 (citations omitted). Thus, the supreme court abolished the long-standing special immunities that had protected property owners from liability for injuries suffered by their guests. Id. at 856-857, 236 N.W.2d at 11.

Ten years later, the supreme court picked up on this very theme in Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985). Determining the potential liability for injuries suffered in a drunk driving crash resulting from a social host...

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