Baker v. Bracker
| Decision Date | 07 May 1968 |
| Citation | 158 N.W.2d 285,39 Wis.2d 142 |
| Court | Wisconsin Supreme Court |
| Parties | Clayton N. BAKER, Appellant, v. Benjamin BRACKER, Defendant, Baumann Oil & Coal Co., and Theodore Bjorkman, d/b/a Ted & Hazel's Bar, Respondents. |
Foley, Capwell, Foley & Seehawer, Racine, for appellant.
La France, Thompson, Greenquist, Evans & Dye, by, Adrian P. Schoone, Racine, for Baumann Oil Co.
Heft, Coates, Heft, Henzl & Bichler, Racine, for Theo. Bjorkman.
The sole question is whether the plaintiff Clayton N. Baker has adduced sufficient evidence to establish a prima facie case of liability upon the part of the defendants. The defendant Theodore Bjorkman is the operator of Ted and Hazel's Bar and a sublessee of the defendant Baumann Oil & Coal Company. The defendant Benjamin Bracker is the owner of the premises which consist of gas station and beer bar.
On a Staturday night in February, 1964, Baker and his wife and several friends were entertaining themselves in the tavern part of the premises. This portion of the building is about 20-feet square, contains a bar, stools, pool table, chairs and tables. On Saturday nights the pool table is pushed against the wall and dancing is permitted in the limited space between the bar and the table; the music being provided by two guitar players and by the juke box when the musicians take a break. At the time of the accident Baker was dancing the twist with his wife to music from the juke box. The floor of the barroom was covered with asphalt tile which contained numerous indentations caused by the legs of the stools and other heavy objects. There were some defects and 'pot holes,' or circular indentations, one being about eight or nine inches in diameter and located midway between the bar stools and the pool table.
It is Baker's contention that while he was dancing his foot stopped at an indentation causing his left knee to buckle out. This resulted in a torn ligament and a fractured patella or knee cap. These injuries resulted in Baker's hospitalization, several operations, wage loss, and some permanent disability, for which Baker sought $65,000. Baker testified he weighed about 215 pounds and did not slip or trip on anything before he fell but that his knee suddenly buckled out; he heard a sharp crack, felt a severe pain and fell to the floor. He also testified the sole of his left foot was on the floor and was sliding when it suddenly came to a stop. At the time in the dance he was turning and shifting his body from the right to the left, had placed all his weight on the left leg, his body was tipped to his left and he was about to twist back to his right.
Baker testified he did not know the exact position of his left foot on the floor when it stopped and it was only his guess that his foot stopped because of an indentation in the floor. In pointing out his position on the floor at the time of the accident, the spot was approximately three feet from any indentation or defect in the floor. The testimony of Mrs. Baker brings him closer to indentations, but there is no testimony which positions his left foot in contact with a defect in the floor at the time of the injury.
The defendants claim the evidence shows the injury was due solely to the violent and wild gyrations of the dance Baker was performing. There is no doubt from testimony that Baker was performing his dance to the best of his ability and with vehement effort. The twist for the uninitiated is defined in the Dictionary of English Language, p. 1530, as 'A Vigorous dance performed by couples and characterized by strongly rhythmic gyrations and flailings of the arms, legs and torso.'
On this appeal we may assume the defendants were negligent in respect to a safe place; the question relates to proof of causation. Baker argues because he was in the area of the defects that he is entitled on this evidence to the benefit of a presumption that one of the indentations caused his knee to buckle. He relies on Umnus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N.W.2d 42. We think not, and that the trial court was right in granting a nonsuit.
Prior to Umnus there was a line of cases in this state which held a jury could find a fall was caused by a defect if: (1) The condition of the premises was sufficient or of such a nature as to cause such a fall, (2) the condition existed at the place of the fall, and (3) no other facts were in the evidence to...
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