Cords v. Anderson
| Decision Date | 14 November 1977 |
| Docket Number | 75-141,Nos. 75-140,s. 75-140 |
| Citation | 259 N.W.2d 672,80 Wis.2d 525 |
| Parties | Jane CORDS, Erwin T. Cords, Norina Boyle, and John J. Boyle, Respondents, v. Floyd K. ANDERSON, Individually in his respective capacity as public officer and employee of the State of Wisconsin, Appellant. Jane CORDS, Erwin T. Cords, Norina Boyle and John J. Boyle, Plaintiffs- Respondents, Susan Henry and Roland Henry, Plaintiffs-Appellants, v. Floyd K. ANDERSON, etc., Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Theodore L. Priebe, Asst. Atty. Gen. (argued), for defendant-appellant and defendant-respondent; Bronson C. La Follette, Atty. Gen., on the brief.
John C. Wickhem, Janesville (argued), for plaintiffs-respondents and plaintiffs-appellants; Wickhem, Consigny, Andrews, Hemming & Barton, S.C., Janesville, on brief.
This matter is before the court on appeals and a cross-appeal from three judgments entered on February 25, 1975. In case # 75-140, the defendant-appellant, Floyd K. Anderson, appeals from two judgments entered against him and in favor of plaintiffs-respondents, Jane Cords and Erwin T. Cords, her father and Norina Boyle and John J. Boyle, her father. In case # 75-141, plaintiff-respondents, Jane Cords and Erwin T. Cords, cross-appeal from the judgment in their favor while plaintiffs-appellants, Susan Henry and Roland Henry, her father, appeal from the judgment dismissing their causes of action against the defendant-respondent, Floyd K. Anderson. The cases were consolidated for purposes of briefing and argument.
These cases present several questions.
I. Did the defendant, Floyd K. Anderson, as manager of the state-owned Department of Natural Resources (DNR) operated "scientific area" known as Parfrey's Glen, have a "ministerial duty" to either notify his superiors of dangerous natural features of the land within inches of the path or trail where people were invited to walk or to erect signs warning the public of such dangers within the glen, especially after twilight?
The trial court said there was such a duty. We agree and so hold.
II. Should the rescue doctrine be applied to the actions of Jane Cords and Susan Henry to lessen their duty of due care for their own safety when, within ten to fifteen minutes after Norina Boyle's fall into the gorge, together they attempted to climb down the pathway leading from the top of the cliff to come to her aid.
We hold that the rescue doctrine does apply and reverse the trial court on this issue, and remand for further proceedings.
III. Where the evidence of Jane Cords' future medical expense established her current annual expense of $3,270 and the only economic evidence was that the medical care component of the Consumer Price Index has risen from 1967 through 1973 at 5% per year for a total rise during said years was 37.7%; did the trial court err by refusing to consider that evidence in determining damages?
We hold that the trial court did err and that the reasonable probability of an increase or decrease in medical costs is a proper consideration for the court in the exercise of its discretion in assessing future medical expense and we remand for further proceedings.
IV. Was the trial court's award of general damages in the amount of $300,000 for the injuries sustained by Jane Cords inadequate and without a reasonable basis in the evidence?
We hold that the trial court's damage award of $300,000 was supported by a reasonable basis in the evidence.
Parfrey's Glen, an area approximately eighty-nine acres in size is owned by the State of Wisconsin and located about four miles from Devil's Lake State Park in Sauk county. In it is a preglacial gorge and it contains unique geological features of particular interest to scientists and students. A small stream once utilized to operate a gristmill has cut a canyon ranging from a few feet to nearly a hundred feet deep for a distance of approximately a thousand feet. The state acquired the property in 1947 and it is frequently visited by groups and by individuals. In 1953 and 1963, the state acquired an additional 80 and 151 acre parcels used as buffer zones to protect the unique and delicate plant life found in this area. It is called a "scientific area" because of its terrain and plant life.
On May 2, 1970, the three plaintiffs, Norina Boyle, Jane Cords and Sue Henry were students at the University of Wisconsin-Madison and each visited Parfrey's Glen for the first time. They were part of a group of four couples who had travelled by car from Madison for the purpose of picnicking and hiking in the Glen. The fourth girl, Vicky Helendar and the four young men, Dean Schraufnagel, Tom Tibbits, Jerry Rousseau and Tom Nelson had each been to the Glen at least once before.
A small sign along the entrance drive announced the closing hours of the "Park" from 11:00 p. m. to 4:00 a. m. and prohibiting use of alcoholic beverages during the period of April 1st to May 18th.
North of the parking area, a gravel pathway runs past toilet facilities and numerous picnic tables, barbeque and garbage facilities. The gravel pathway forks a short distance north of the public toilets, one trail leads into the gorge at stream level known as the "lower trail" and the other trail travels upwards along the east side of the gorge leading to high ground over the stream "upper trail." A department "trail" sign consisting of yellow letters on a brown wooden background points to the lower trail. These two trails join some distance to the north near the end of the canyon beyond a waterfall and thereby create a circular trail system. At the north end, the lower trail turns easterly and ascends into the bluff area known as the "ascending-descending trail." Logs pegged into position along the trail facilitate climbing. At the top of the ascending trail is a camp site or picnic area where larger logs adjoin an area near charred remnants of fires. This area is used for picnics and no signs prohibit fires there. From the picnic site the upper trail leads southerly meandering around the high ground with numerous trail offshoots leading easterly to woods. At places, the upper trail comes within inches of the bluff edge or a bluff undercut. The high ground has obvious dropoffs to the west and to the northwest of the picnic area. A main branch of the upper trail running south from the picnic area toward the parking lot comes within a foot of the high bluff where the bluff is undercut obliquely to the southeast. The undercut is narrow, not readily discernible and within forty-five feet of the picnic area. This cutback or "shoot" as it was referred to in the testimony is at a place where one misstep of a foot in a southerly direction would cause an uninterrupted twenty foot slide down a sharp incline to a direct dropoff of approximately eighty feet to the rock bottom of the gorge. This is the point where Norina Boyle fell.
The four young couples arrived at Parfrey's Glen at approximately noon on May 2, 1970. They brought food and sandwiches purchased earlier in the day and also cases of beer and a bottle of wine. They had some conversation about the sign forbidding the use of beer during April and May and concluded that it was an effort to control high-school groups at prom time. Dean Schraufnagel led the group on the lower trail toward the north and he explained some of the rocks and plant life present to the others in the group. At the site of the waterfall, they went up the ascending-descending trail to the picnic area where they deposited their food. Tom Nelson took part of the beer, and wrapped it in his jacket and put it in a separate place to keep cool. Norina Boyle was accompanied by Dean Schraufnagel and they walked to other parts of the Glen west and north of the waterfall. The other couples went on similar walks. They all returned about mid-afternoon to the campsite, ate the food they had brought and drank some of the beer.
While they were having lunch, Park Ranger Schutte, who was making his first patrol ever through Parfrey's Glen, came across the group. He told them beer was prohibited and directed them to empty their beer supply which they did. Later they got the beer that Mr. Nelson had wrapped in his jacket and drank it with their evening meal. When they asked Mr. Schutte if they could continue their lunch and stay, he told them that they could.
He subsequently filed an official report with Mr. Anderson, the Park Manager, in which he stated,
Ms. Boyle testified she had two to four cans of beer the whole day and the testimony of others was that she appeared sober at all times. She testified that none of the beer she drank had any effect upon her. There is no contradicting testimony. Jane Cords had about three cans of beer the entire day and testified that she was unaffected and that testimony was substantiated by the others. Sue Henry was described by some of the party as "giddy" or "silly." Others in the group described her as sober. The trial court found that Ms....
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