Callan v. Peters Const. Co.
| Decision Date | 11 December 1979 |
| Docket Number | No. 78-153,78-153 |
| Citation | 288 N.W.2d 146,94 Wis.2d 225 |
| Parties | Mary CALLAN and Robert Callan, Plaintiffs-Respondents, v. PETERS CONSTRUCTION CO., a Wisconsin Corporation, Employers Mutual LiabilityIns. Co. of Wisconsin, a Wisconsin Corporation, and Wisconsin PhysicianService, a Division of the State Medical Society of Wis., a WisconsinCorporation, Defendants, Nelson Incorporated of Wisconsin, a Wisconsin Corporation, Defendant-Appellant, Marshal Field Company, a Delaware Corporation, Defendant and Co-Appellant, Froedert Enterprises, Inc., a Delaware Corporation, the Travelers IndemnityCo., a Foreign Corporation, Defendants-Co-Appellants and Respondents, Inland-Robbins Construction, Inc., an Illinois Corporation, the Home IndemnityCo., a Foreign Corporation, Defendants and Co-Appellants. |
| Court | Wisconsin Court of Appeals |
Tom E. Hayes, Edward A. Hannan and Hayes & Hayes, Milwaukee, on brief, for defendant-appellant.
Thomas W. Godfrey and Godfrey & Trump, Milwaukee, on brief, for defendant and co-appellant Marshall Field Co.
Donald H. Carlson and Riordan, Crivello, Sullivan & Carlson, Milwaukee, on brief, for defendants-co-appellants and respondents Froedert Enterprises, Inc., and Travelers Indem. Co.
James P. Brennan and Brennan & Collins, Milwaukee, on brief, for defendants and co-appellants Inland-Robbins Const., Inc., and Home Indem. Co.
James J. Murphy and Habush, Gillick, Habush, Davis & Murphy, Milwaukee, on brief, for plaintiffs-respondents.
Before DECKER, C. J., MOSER, P. J., and BROWN, J.
This is an appeal from an action which was commenced pursuant to the Wisconsin Safe-Place Law, sec. 101.11, Stats. Mary Callan and her husband brought suit after she was injured in a fall near the sidewalk entrance to the Marshall Field store at Mayfair Shopping Center on October 17, 1973. At trial, the various-named defendants were: Froedert Enterprises, Inc. (the owners of the Mayfair Shopping Center); Marshall Field Company (the lessee of premises at Mayfair); Peters Construction Co. (the general contractor hired by Froedert to enclose the mall of the shopping center); Inland-Robbins Construction, Inc. (hired by Marshall Field as general contractor for remodeling Marshall Field's entranceways), and Nelson Incorporated of Wisconsin (employed by Inland-Robbins as mason subcontractor in connection with remodeling of the entranceways to the Marshall Field store). A jury found all the defendants negligent except for Peters Construction Co. Each of the other defendants found negligent have appealed the verdict.
Mary Callan was on her way into the Marshall Field store when she was injured. Her fall occurred approximately twenty feet from one of the Marshall Field entrances known as "vestibule 5." She testified that she stepped on a wedge-shaped object which appeared to be a piece of concrete block about four to five inches long, irregularly shaped and not unlike the color of the sidewalk. She also testified that she noticed other pieces of concrete block and pebbles surrounding her after her fall. At the time of her fall, workmen were engaged in remodeling the nearby entranceways, known as "vestibule 6" and "vestibule 7." This remodeling project was taking place in conjunction with the larger project of converting the then open-air mall to an enclosed mall. "Vestibules 6 and 7" were at the north end of the central mall enclosure project. The enclosure project was in the last stages of completion at the time of Mary Callan's fall.
No actual renovation was being conducted upon "vestibule 5," the approximate site of Mary Callan's fall. However, construction materials, including cement blocks and other masonry materials, were being stored near and on both sides of "vestibule 5." At the time of the fall, the shopping center, including the Marshall Field store was open for business. The sidewalk and vestibule, where Mary Callan was walking, was open for use by the public. There were no barricades, warnings or signs of any kind.
The record shows that not only was the concrete material for the renovation project stored at "vestibule 5," but also that debris from the renovation project was being carried past the "vestibule 5" area by wheelbarrow and deposited in a nearby dumpster. Pieces of debris, from time to time, would fall out of the wheelbarrows and onto the sidewalk area near "vestibule 5."
As a result of her fall, Mary Callan sustained injuries which probably will require a total hip replacement as well as permanent disability. The jury found that Froedert Enterprises, Inc. was 15% Negligent. Marshall Field & Company was also 15% Negligent. Inland-Robbins Construction, Inc. was 30% Negligent. Nelson Incorporated was held to be 40% Negligent.
Because of the number of defendants involved and because each defendant presents different issues for determination, we will discuss the arguments of each defendant separately. Further facts will be set forth as are necessary to the determination of each defendant's appeal. Facts related will be written in a light most favorable to the jury verdict. Coryell v. Conn, 88 Wis.2d 310, 317, 276 N.W.2d 723, 727 (1979).
Froedert-Mayfair first alleges that it was error to admit evidence of an accident which occurred prior to Mary Callan's fall. Froedert-Mayfair argues that evidence of prior accidents are of little probative value Per se And, since admission of such prior accidents would allow trial of matters collateral to the factual issue being tried, they are inadmissible in Wisconsin. For support of this contention, Froedert-Mayfair cites Tiemann v. May, 235 Wis. 100, 292 N.W. 612 (1940).
Froedert-Mayfair is wrong. Prior accidents are admissible as evidence. In Netzel v. State Sand & Gravel Co., 51 Wis.2d 1, 10 n.18, 186 N.W.2d 258, 263 n.18 (1971), the supreme court answered that question by quoting with approval, in a footnote, the following language in 32 C.J.S. Evidence § 578 (1964):
There is no rule of law, however, which prevents the trial of collateral issues, since the objection thereto is purely a practical one, and the general rule is that the admission of evidence of similar acts or occurrences as proof that a particular act was done or that a certain occurrence happened, rests largely in the discretion of the trial court.
Tiemann v. May, Supra, in no way commands our courts to exclude all evidence of prior accidents. Rather, when the prior accident is of little probative value, the trial judge, in his discretion, may refuse to admit such evidence. It is a decision resting with the trial court's discretion. As stated in Netzel, Supra, 51 Wis.2d at 10, 186 N.W.2d at 258, 263 n.17, again in a footnote, quoting with approval 65A C.J.S. Negligence § 234(1) (1966):
The true rule would appear to be that the admissibility of evidence of the existence of similar defects, or of the occurrence of other accidents or injuries of a similar nature or similarly caused, depends on the purpose for which the evidence is offered and on whether the nature of the negligence which is claimed to have caused the accident or injury in question is such that proof of other accidents or defects will tend to throw light on the issue; and, where such is the case, evidence of this character is admissible.
Evidence of prior accidents is allowed in the discretion of the trial judge. Both the purpose for which the evidence of other injuries similarly caused and the nature of the negligence claimed are to be considered in determining whether discretion has been abused.
Froedert-Mayfair next contends that, if the evidence of prior accidents is allowed, the trial court abused its discretion because the purpose for which the evidence was intended was faulty and the nature of the prior act was dissimilar to Mary Callan's accident. In deciding whether the trial court abused its discretion in allowing evidence of the prior accident, we must look to the record to determine the purpose for which the prior-act evidence was offered.
Mary Callan's action against Froedert is based on the allegation that Froedert-Mayfair, as owner, knew or should have known about the unsafe condition of the sidewalk it owned and should have taken steps to protect the people frequenting the shopping center. Therefore, it was incumbent upon Mary Callan to prove that Froedert-Mayfair had notice of the defective condition before Froedert-Mayfair could be held to have been negligent under the safe-place act. To prove notice, evidence was adduced establishing that Froedert had knowledge of a similar fall occurring six days prior to Mary Callan's accident. This prior fall occurred after the masons had gone home, just as in Mary Callan's case. It was argued, by Mary Callan at trial, that Froedert-Mayfair then had an obligation to increase surveillance of the cleaning operation and take remedial action where necessary. She alleged that, after knowledge of the accident, Froedert could have insisted that "vestibule 5" be closed during the construction and could have also insisted that storage of construction materials not be permitted around the "vestibule 5" area.
In this case, it is clear to this court that evidence of a prior accident was necessary to prove notice. We, therefore, hold that the purpose for which this evidence was offered was valid.
Next, we determine whether the nature of the prior act was so probative as to help the jury in its factual determination on the question of notice or was of such little probative value that the admission of such evidence would only serve to confuse and prejudice the jury.
Froedert-Mayfair claims that the prior act was of little probative value. Froedert-Mayfair's analysis is that the prior accident occurred ten to twenty feet away from Mary Callan's accident. It is also argued that the prior accident was caused by slipping on some loose sand, whereas Mary Callan...
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