Delvaux v. Vanden Langenberg

• Decision Date: 04 June 1986
• Docket Number: No. 84-1404,84-1404
• Citation: 130 Wis.2d 464,387 N.W.2d 751
• Parties: Mary DELVAUX, now Mary Karl, individually and as Special Administratix of the Estate of Steven Delvaux, and Candy Ann Delvaux and Melissa Delvaux, by their Guardian ad Litem, Carl W. Kuehne, Plaintiffs-Appellants-Petitioners, v. Leon VANDEN LANGENBERG, d/b/a Van's Bar, The Shelby Mutual Insurance Company of Shelby, Ohio, Thomas Collins, Robert J. Collins, Phyllis J. Collins and the Hanover Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 751

387 N.W.2d 751

130 Wis.2d 464

Mary DELVAUX, now Mary Karl, individually and as Special Administratix of the Estate of Steven Delvaux, and Candy Ann Delvaux and Melissa Delvaux, by their Guardian ad Litem Carl W. Kuehne, Plaintiffs-Appellants-Petitioners, v. Leon VANDEN LANGENBERG, d/b/a Van's Bar, The Shelby Mutual Insurance Company of Shelby, Ohio, Thomas Collins, Robert J Collins, Phyllis J. Collins and the Hanover Insurance Company, Defendants-Respondents.

No. 84-1404.

Supreme Court of Wisconsin.

Argued April 1, 1986.

Opinion Filed June 4, 1986.

Carl W. Kuehne, Green Bay, for plaintiffs-appellants-petitioners.

J. Robert Kaftan, Green Bay, argued, for defendants-respondents, Leon Vanden Langenberg, d/b/a Van's Bar, and Shelby Mut. Ins. Co. of Shelby, Ohio; Lise Lotte Gammeltoft and Kaftan, Kaftan, Van Egeren, Ostrow, Gilson, Geimer & Gammeltoft, S.C., Green Bay, on brief.

Peter J. Hickey, Green Bay, argued, for defendants-respondents, Robert J. Collins, Phyllis J. Collins and Hanover Ins. Co.; Bruce B. Deadman and Everson, Whitney, Everson & Brehm, S.C., Green Bay, on brief.

CECI, Justice.

This is a review of an unpublished decision of the court of appeals dated May 7, 1985, 125 Wis.App. 569, 371 N.W.2d 430. The court of appeals affirmed in part and reversed in part a judgment of the circuit court for Brown county, Alexander R. Grant, circuit judge, which dismissed the plaintiffs' wrongful death claim following a jury trial. The court of appeals remanded the cause to the circuit court with directions to retry the case on the issue of liability. We affirm the court of appeals.

Five substantive issues are raised on this appeal. They are:

(1) Whether this court should adopt pure comparative negligence after a reexamination of our comparative negligence statute, section 895.045, Stats.; or, alternatively, whether this court should permit comparison of a plaintiff's contributory negligence with the combined negligence of all defendant tortfeasors whose negligence was a substantial factor in causing plaintiff's harm;

(2) Whether a jury should be informed of the ultimate effect of its verdict, given the existing comparative negligence law of this jurisdiction;

(3) Whether the duty of a proprietor of a tavern to exercise ordinary care for the safety of his patrons extends beyond the premises of the tavern;

(4) Whether our holding in Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984), should be applied retroactively to the facts of this case; and

(5) Whether the contributory negligence of a plaintiff's decedent is attributed to the decedent's beneficiaries in a wrongful death action, given the interrelationship of section 895.04--the wrongful death statute--and section 895.045.

We hold that this court's prior decisions restrain us from adopting a "pure" form of comparative negligence and that prior interpretation of section 895.045, Stats., dictates that a plaintiff's contributory negligence be compared with the negligence of each defendant individually. We also hold that a jury should not be instructed about the ultimate effect of its verdict in comparative negligence cases; that a proprietor's duty of ordinary care for the safety of patrons does not extend beyond his or her place of business; that the Sorensen holding has no retroactive effect on this case; and that a decedent's contributory negligence is attributable to the beneficiaries for purposes of a wrongful death action.

The plaintiffs' decedent, Steven Delvaux, was pronounced dead on March 28, 1978, after he was involved in a fight early in the morning of March 27, 1978. The fight occurred outside a tavern in Green Bay, Wisconsin. On the evening of March 26, 1978, Delvaux, his wife Mary Delvaux, and his brother Jeff Delvaux went to Van's Bar, owned and operated by defendant Leo Vanden Langenberg. Also in the bar that evening was defendant Thomas Collins, a minor. The record is unclear whether Vanden Langenberg ever asked Collins for proof of his age, although Collins admitted during testimony that he carried a false identification card which showed him to be of majority age. In any event, Collins was present in Van's Bar during the evening in question to practice shooting pool, as he was a member of a pool team sponsored by Van's Bar. Collins' parents apparently were aware of his frequenting Van's Bar to shoot pool.

During the course of the evening, Steven and Jeff Delvaux entered into a series of pool-shooting matches with Collins, who would alternately team up with one of several of his friends. An argument eventually developed among Collins and the Delvauxs, apparently due in part to Jeff Delvaux's frustration over his lack of success in shooting pool that evening. Jeff Delvaux began to use abusive language. He also began to abuse Vanden Langenberg's pool table equipment, and Collins told him to stop the maltreatment of the equipment. Steven Delvaux responded by pushing Collins into a jukebox, at which time Vanden Langenberg interceded by separating Collins from the Delvauxs and by having them sit at opposite ends of the bar. The Delvauxs and Collins continued to verbally abuse one another. The Delvauxs finished what they were drinking and left Van's Bar. Vanden Langenberg insisted that Collins remain at the bar when the Delvauxs left because he did not want Collins and the Delvauxs to get into a fight as the Delvauxs were leaving. Collins, who had consumed about ten to fifteen glasses of beer during his four-and-one-half-hour stay at Van's Bar, left about thirty-five to forty minutes thereafter and went to his home. He then related the evening's events to his older brother, and the two decided to go back to Van's Bar to look for the Delvauxs.

As the Collins brothers were driving and looking for the Delvauxs, they spotted Jeff Delvaux in front of the Dew Drop Inn, a tavern several blocks from Van's Bar. The testimony regarding what happened next is contradictory. Collins testified at trial that his brother dropped him off and that he (Tom) and Jeff Delvaux began to fight. While he was fighting with Jeff Delvaux, Collins testified that he saw Steven Delvaux come out of the Dew Drop Inn and approach Collins in a threatening way. Collins stated that he threw Jeff Delvaux to the ground and proceeded to hit Steven Delvaux twice on the face. When Steven fell to the ground, Tom proceeded to kick him in the head.

Jeff Delvaux also testified about the fighting incident at the Dew Drop Inn. He stated that it would have been impossible for Collins to have killed Steven Delvaux because he (Jeff) was lying on top of Collins at the moment when Collins purportedly was hitting and kicking Steven. Jeff also testified that, while lying on top of Collins as the two wrestled, he heard his brother Steven yell for help and that when he looked up, he saw two pairs of legs running away from where Steven was then lying.

Steven Delvaux died as a result of a cerebral hemorrhage caused by the beating he received in the fight outside the Dew Drop Inn. In the ensuing wrongful death action, the plaintiffs alleged that Vanden Langenberg was negligent in selling intoxicating beverages to a minor and that he breached his duty as a tavern owner to protect his patron from injury from other patrons. The plaintiffs further alleged that defendants Robert and Phyllis Collins were negligent in the supervision of their minor son Thomas and that Thomas Collins intentionally struck and kicked Delvaux. ¹

The special verdict submitted to the jury was in two parts. The first two questions concerned Collins' intentional conduct and asked the jury whether Collins had committed a battery on Delvaux. The remaining questions concerned Delvaux's contributory negligence with respect to his own safety and the negligence of Vanden Langenberg and Collins' parents. ²

The jury found that Collins did not commit a battery upon Delvaux. ³ It also found Delvaux, Vanden Langenberg, and Collins' parents all causally negligent, in the following breakdown: Delvaux--45 percent; Vanden Langenberg--20 percent; Collins' parents--35 percent. The trial court denied plaintiffs' motions after verdict and dismissed the wrongful death complaint.

The court of appeals affirmed the dismissal in favor of Vanden Langenberg because under the law as it existed at the time of the fight and throughout the course of the trial, there could be no recovery under the facts of this case against the bar owner. The court of appeals also held that the trial court did not err in refusing to instruct the jury on the effect of the existing comparative negligence law, that the plaintiffs should not be granted judgment in the amount of fifty-five percent of their damages, and that Delvaux's negligence should not be compared with the combined negligence of the defendants.

The court of appeals concluded, however, that the jury's finding of no negligent or intentional conduct on Collins' part was inconsistent with its finding of negligent supervision on the part of Robert and Phyllis Collins. The court accordingly reversed the judgment in favor of Collins and his parents and remanded for a new trial limited solely to the question of liability on the part of Delvaux, Collins, and Collins' parents. The remand for a new trial was not raised by the plaintiffs as an issue for review. We therefore limit our discussion to the substantive issues listed above.

I.

The plaintiffs first argue that this jurisdiction should adopt a "pure" form of comparative negligence. Under such a rule, a plaintiff's recovery for negligent harm sustained would be only reduced--not barred--in proportion to the percentage of his or her causal contributory negligence. This court expressly considered such a proposition in Vincent v. Pabst Brewing Co., 47 Wis.2d 120, 177 N.W.2d 513 (1970). We decline to change our position from that case.

In Vincent we considered the impact of section 895.045, Stats. 1969, on this court's...