Dahl v. K-Mart
| Decision Date | 28 April 1970 |
| Docket Number | No. 171,K-MART,171 |
| Citation | 46 Wis.2d 605,176 N.W.2d 342 |
| Parties | Isadora DAHL, Appellant, v., a division of S. S. Kresge Co., a foreign corporation, et al., Respondents. |
| Court | Wisconsin Supreme Court |
The plaintiff-appellant sustained injuries while she was in a store building in LaCrosse. In one portion of the building, K-Mart runs a discount store; in the other part of the building, Dairy States operates a supermarket. The two store premises are connected by an electric door, constructed of glass, operated by a motor-controlled floormat.
On July 14, 1966, the plaintiff was in the K-Mart portion of the building, looking for a friend. After looking throughout the discount store, she walked down a corridor to the door leading to the supermarket. As she approached the door, according to her testimony, it was open and stayed open as she neared it. She stepped upon the floor mat, she testified, and looked over into the supermarket store for her friend. She stepped onto the mat of the door on her right, which was to be used by a person coming from the supermarket to the discount store. The door suddenly closed, striking the plaintiff and knocking her to the floor.
Plaintiff brought the present action for damages, alleging violations of the safe-place statute by the defendants. Trial was had before a jury. The jury found that the door was not malfunctioning at the time of the accident; that defendant Dairy States was causally negligent in failing to maintain the doorway in as safe a condition as the nature of the place reasonably permitted; that the percentages of negligence were: Dairy States, 75%; plaintiff, 25%. On motions after verdict, the trial court changed the answers as to Dairy States' negligence as inconsistent with the answer as to malfunctioning, and entered judgment dismissing the complaint. Plaintiff appeals.
Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellant.
Heft, Coates, Heft, Henzl & Bichler, Robert H. Bichler, Racine, for K-Mart and Kresge Co.
Johns, Flaherty, Harman & Gillette, La Crosse, for Dairy State Markets.
Plaintiff-appellant alleges errors at the time of trial and thereafter which, it is argued, require reversal. The issues raised ask the following questions:
Was the special question as to malfunctioning of the door properly submitted to the jury?
The verdict submitted to the jury contained the usual short-form special verdict questions as to negligence and causation as to each defendant, contributory negligence and causation as to the plaintiff, comparative degrees of negligence as to plaintiff and as to defendants, and damages. Additionally, the following special question went to the jury for answering:
'Was the plaintiff, Isadora Dahl, injured as a result of the malfunctioning of the door?'
The challenge is to the submission of such special question to the jury. We begin with the fact that the form of the verdict rests in the sound discretion of the trial court, not to be interfered with so long as the issues of fact in the case are covered by appropriate questions. 1 While issues raised by the pleadings are to be considered in drafting the form of verdict, the trial court is to eliminate from the issues thus raised those that are determined by evidence on the trial by admissions, uncontradicted proof or by failure of proof. 2 It is those issues that remain after this process of elimination that are to go to the jury. Here the testimony and proof at the time of the trial clearly were directed to the issue of whether or not the electric door was functioning properly at the time of the accident. Given this near complete preoccupation with the issue of malfunction, it was reasonable for the trial court to put to the jury the special question as to whether the door was or was not functioning properly at the time of the accident and whether its malfunction caused plaintiff's injuries.
Were the jury answers as to negligence inconsistent with the jury answer as to malfunction?
There was evidence upon which the jury could have found that the door in question was not functioning properly at the time of the accident. The plaintiff's expert witness so testified, as did the plaintiff. Obviously, this testimony was not believed by the jury. Instead the jury found that the door was working properly at the time of the accident, and there is ample evidence in the record to sustain this finding. However, the jury nonetheless found defendant Dairy States negligent. The trial court held that, in view of the jury finding that the door was functioning properly, there was no credible evidence upon which the jury could find negligence on the part of the defendant Dairy States. We agree, and sustain the trial court in changing the answers as to the negligence questions. Where there is one answer which completely determines the liability of the defendant, then other inconsistent answers should be stricken. 3 The trial court correctly concluded that, if the door involved did function properly on the day involved, there was no issue as to the negligence of either of the defendants left in the case.
Was the jury entitled to rely upon the doctrine of res ipsa loquitur in answering the questions as to negligence?
The trial court instructed the jury as to the permissible inference which may be drawn under the doctrine of res ipsa loquitur, and the plaintiff claims that the jury's answers concerning Dairy States' negligence may be sustained by this theory. As the trial court correctly pointed out in its opinion on motions after verdict, one of the elements in the application of such doctrine is that the accident be of the type which 'would not occur in the absence of negligence.' 4
In the case before us, a person could be hit by one of these electric doors in the absence of any negligence on the part of the owner or occupier of the premises. If the door is functioning properly, any person stepping upon the entry portion of the floormat causes the door to open and thereafter close. A person stepping upon the exit portion of the mat while the door is in the process of thus opening and closing runs the risk of being struck by the door as it opens or as it closes again. The plaintiff's effort to establish malfunction was intended to eliminate such possibility or probability of the accident occurring without negligence on the part of the proprietors. When the effort failed, the certainty of the accident occurring due to negligence on the part of the defendants evaporated with it. The safe-place statute does establish an increased standard of care, the violation of which means the violator is negligent, but it does not make the owner or occupier of a building an insurer. 5
Did the trial court err in refusing to allow an expert witness to answer certain questions?
An expert witness called by the plaintiff, a professor of mechanical engineering, examined the electric door at the store sixteen months...
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