Caldwell v. Piggly-Wiggly Madison Co.

• Decision Date: 01 November 1966
• Docket Number: PIGGLY-WIGGLY
• Parties: Marguerite CALDWELL, Plaintiff-Respondent, v.MADISON CO., a Wis. corporation, Defendant-Appellant, James M. Owens d/b/a Portage Glass Co., Impleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 745

145 N.W.2d 745

32 Wis.2d 447

Marguerite CALDWELL, Plaintiff-Respondent, v. PIGGLY-WIGGLY MADISON CO., a Wis. corporation, Defendant-Appellant, James M. Owens d/b/a Portage Glass Co., Impleaded

Defendant-Respondent.

Supreme Court of Wisconsin.

Nov. 1, 1966.

William F. Nelson, of Stafford, Rosenbaum, Rieser & Hansen, Madison, for appellant.

Bennett & Bennett, Portage, for plaintiff-respondent.

Bogue & Sanderson, Portage, for impleaded defendant-respondent.

HEFFERNAN, Justice.

Piggly-Wiggly pursued all of its objections by appropriate motions for nonsuit, mistrial, directed verdict, and for judgment notwithstanding the

verdict, and the issues raised by those motions are before

this court. Was entryway under control of

Piggly-Wiggly as well as under control of Owens?

The initial argument of Piggly-Wiggly is that it cannot be negligent under the safe-place statute because the entry-way was not under its control at the time of the accident and, hence, negligence, if there were any, must be attributed to Owens, to whom control had been surrendered. The jury in its special verdict determined that, at the time and the place of the accident, Piggly-Wiggly had not turned exclusive control over to Owens. The only question for the determination of this court is whether there is any credible evidence that under a reasonable view supports the verdict. The resolution of the question of control is important in this case, for we have held that ownership per se of the premises is not determinative of the liability for an unsafe condition. We have said:

'Legal liability under subd. (13), sec. 101.01, Stats., is not predicated alone on absolute ownership of a place of employment. Where a right to present possession, control or dominion of such place exists, the holder of such right may be held liable, Freimann v. Cumming, 1924, 185 Wis. 88, 200 N.W. 662.' Potter v. City of Kenosha (1955), 268 Wis. 361, 371, 68 N.W.2d 4, 10.

See also Werner v. Gimbel Brothers (1959), 8 Wis.2d 491, 493, 493b, 99 N.W.2d 708, 100 N.W.2d 920; Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 607, 111 N.W.2d 459. This court said in Potter, supra, 268 Wis. page 372, 68 N.W.2d page 10:

'We are constrained to hold that when an owner turns over to an independent contractor the complete control and custody of a safe place, whereon or whereunder the contractor creates a place of employment for the purpose of fulfilling the terms of the contract, the owner reserving no right of supervision or control of the work excepting that of inspection or to change the plan with reference to the construction to be furnished, if thereafter in the performance of the work under the contract the premises are changed by the contractor and as a result a hazardous condition is created, the owner does not become liable to the contractor's employee injured as a consequence of such hazardous condition while acting in the scope of his employment.' (Emphasis supplied)

See also Burmeister v. Damrow (1956), 273 Wis. 568, 582, 79 N.W.2d 87; Weber v. City of Hurley (1961), 13 Wis.2d 560, 569, 109 N.W.2d 65.

We conclude that there is evidence to support the jury's verdict in this regard. Arnold, the manager of Piggly-Wiggly, in answer to a question, stated that he said nothing about giving control or custody of any part of the store to Owens. There was testimony also that when Owens wanted the electricity that operates the foot-treadle door opener turned off, he asked Arnold to disconnect the plug, though the plug was 'just inside' the door. Arnold stated that he continued to be in charge of all the store, including the front entrance where customers were coming in and out during the whole time in question. When the electricity was disconnected, Owens was directed by Arnold to block the other two doors in an open position so customers could get in and out. It is clear that Arnold, as manager of Piggly-Wiggly, was in control of that portion of the store and he, in fact, exercised control during the period relevant in this case. There is credible evidence to support the jury's verdict in this

respect. Is there credible evidence to support the jury

verdict that Piggly-Wiggly had constructive notice

of the danger to frequenters such as

Marguerite Caldwell?

No question is raised in regard to the fact that Owens exercised some considerable control over the immediate area where he was working on the door. There is similarly no dispute in regard to Owens' notice of the danger. Owens left the job knowing the exact condition of the premises. He, therefore, is charged with adctual notice of the unsafe condition. Piggly-Wiggly, however, argues that, even assuming that it was in control of the premises, it nevertheless incurs no liability unless it had notice, constructive or actual, that an unsafe condition existed. The trial judge instructed the jury that Piggly-Wiggly did not have actual notice of the hazard. The appellant urges that there was no constructive notice either.

We have previously said in referring to the duties imposed by the safe-place statute:

'* * * that the statute does not make an owner or employer the insurer of the safety of the frequenter and his duty to repair or maintain does not arise until he has at least constructive notice of the defect. To have notice of a defect, of course the defect must exist and, in order to impose liability, it must exist for so long a time that the party charged with responsibility by the safe-place statute his opportunity not only to discover it but to remedy the situation and avoid the accident.' Boutin v. Cardinal Theatre Co. (1954), 267 Wis. 199, 204, 64 N.W.2d 848, 851.

We have defined constructive notice as follows:

'Constructive notice of course is neither notice nor knowledge, but a mere shorthand expression. We say a person has constructive notice of something when for promotion of sound policy or purpose he is to be treated as if he had actual notice, whether or not he had it in fact. Schoedel v. State Bank of Newburg, 245 Wis. 74, 76, 13 N.W.2d 534.' Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 75, 85 N.W.2d 772.

In Turk v. H. C. Prange Co. (1963), 18 Wis.2d 547, 561, 119 N.W.2d 365, 373, we determined that the following instruction offered by the trial court correctly embodied the recognized principles of law:

'If you find from the evidence that an unsafe condition existed for such a length of time that the defendant * * * by the use of ordinary care, could have become aware of its existence and remedied the situation prior to the time the plaintiff sustained her injury, then the defendant * * * is charged with such knowledge.'

A similar instruction was properly used in this case.

The unsafe condition with which we are concerned was the hazard created by the open, unmarked, unguarded door frame (with its aluminum pushbar lowered to ankle level), which was one of three doors to an outside entrance and exit of a busy supermarket. We are not persuaded that the hazard with which we are concerned was that of the cracked, allegedly bulged-out glass door that might have fallen upon a frequenter. Whatever hazard that constituted was remedied when the broken glass was removed. Potentially, then, a new hazard was created by Owens' removal of the glass and that hazard came into existence when the open door frame was left unguarded. Is there credible evidence to support the jury's verdict that Piggly-Wiggly had constructive notice of this new hazard?

The time during which Piggly-Wiggly could be charged with constructive notice is admittedly short. The critical period--the time from which Owens left the premises to recut the glass to the time Marguerite Caldwell was injured--is, at the maximum, one-half hour and, on the basis of the weight of the evidence adduced at the trial, is somewhat less. The evidence is fairly clear that Owens arrived on the job at approximately 70:00 o'clock. (Arnold testified that Owens arrived to commence the repair work at 7:30 to 8:00 o'clock, but his testimony in this respect is completely uncorroborated by any other evidence.) Arnold's testimony was that he had been talking to Owens while Owens was removing the damaged glass, and that Caldwell had fallen about five minutes later. He later so qualified his statement, that his time estimate could have been disregarded by the jury as having little probative value.

Lapp, Owens' assistant, stated that he and Owens arrived at about 7:00 o'clock, that they spent about fifteen minutes in removing the old glass and ascertaining that the piece they had brought with them was too long. During this period, Arnold talked to Owens, disconnected the electricity, and directed Owens to block the other two doors in an open position. Lapp testified they left the store and that about five minutes was spent going each way to the shop, and about five minutes was spent recutting the glass, exclusive of loading and unloading. Both Owens and Lapp testified that they were gone from fifteen to twenty minutes. Caldwell testified that she walked through the unguarded door at approximately 7:30. It is, therefore, clear, despite Arnold's statement that only five minutes elapsed from the time he talked to Owens to the time of the accident, that there was evidence upon which the jury could have believed that the door, with its glass removed, was left unguarded in a closed position for at least fifteen minutes.

Arnold testified that this was a busy evening, that customers were proceeding in and out of the store at this time of night. Arnold testified that on this night it was his duty and that of another employee to bag the grocery orders and to take them out through the entryway to the car parking area. There was also evidence adduced in the examination of Arnold by Mr. Bennett, attorney for the plaintiff, from which the jury could conclude that, during the entire period of Owens' absense, Arnold was bagging groceries at a position from which he could...