Flintrop v. Lefco
| Decision Date | 05 October 1971 |
| Docket Number | No. 146,146 |
| Citation | 52 Wis.2d 244,190 N.W.2d 140 |
| Parties | Ronald FLINTROP et al., Appellants, v. Seymour LEFCO et al., Respondents. |
| Court | Wisconsin Supreme Court |
This is an action for damages for personal injuries sustained when the plaintiff-appellant (Ronald Flintrop) slipped and fell on the front steps of defendants-respondents' house. The case was tried to a jury. At the conclusion of the trial, the court directed a verdict against the plaintiffs. Plaintiffs have appealed.
Samson & Nash, Robert E. Sutton, Milwaukee, for appellants.
Prosser, Wiedabach, Koppa, Lane & Quale, Milwaukee, for respondents; David M. Quale, Milwaukee, of counsel.
On March 5, 1968, plaintiff-appellant, Ronald Flintrop, and his wife, Beverly, (hereinafter plaintiffs) attended a social gathering at the home of the defendants-respondents, Seymour Lefco, and his wife, Rachael, (hereinafter defendants). He arrived at approximately 9 p.m., at which time he observed that the weather was clear. He also noticed that the front steps were clear and not slippery. During the next two hours a natural accumulation of ice formed on the front steps and sidewalk. Defendant testified that he was aware of this condition because (1) it was apparent from looking outside, (2) guests who had arrived after the plaintiff had informed the defendant of the weather condition, (3) it was one of the topics of conversation during the course of the evening, and (4) defendant's wife was aware of the condition and tried to find an abrasive to cover the steps. Defendant also testified that, as the guests were leaving, he said, 'Be careful, the steps are slippery.' Plaintiff denied that any warning was given, or that he overheard any conversation relating to the weather. He testified that he did not go outside, nor look out, nor become aware that it was raining out.
At approximately 11 p.m. plaintiff left the home of the defendants and in the process of descending the front steps slipped and fell, sustaining a fractured arm. There was no testimony as to whether or not it was raining or snowing at that time. Plaintiff testified that he was not certain whether any of the outside lights were on, but observed only that it was dark. He also testified that he was looking directly ahead and there was enough light to see the porch, the steps and the front sidewalk. However, he was able to see the ice on the steps and sidewalk after he fell. Plaintiff's wife, who had preceded the plaintiff down the steps, testified that, although there was some light, it was dark and she had to feel her way out.
Testimony revealed that at the time of the accident the defendant was standing in the doorway with the front door open. Light was available from the inside hall light, a porch light six or seven feet to the side of the front porch, and a street light approximately fifty feet from the front porch. The light directly over the front steps and porch, however, had been burned out for some time, and the defendant had knowledge of this fact.
ISSUE.
The issue in this case is whether the trial judge erred in directing the verdict against the plaintiffs.
At the time of the accident, the plaintiff was a social guest of the defendant and between them the duty owed was that of licensor to licensee. Kaslo v. Hahn (1967), 36 Wis.2d 87, 153 N.W.2d 33. A licensor may be liable to the licensee for injuries caused by the active negligence of the licensor, or by a trap on the premises. Kaslo v. Hahn, supra; Scheeler v. Bahr (1969), 41 Wis.2d 473, 164 N.W.2d 310; Szafranski v. Radetzky (1966), 31 Wis.2d 119, 141 N.W.2d 902; Kretchman v. Reid (1970), 46 Wis.2d 677, 176 N.W.2d 301. A condition of the premises is not active negligence. Kaslo v. Hahn, supra. To establish liability on the part of the defendants, therefore, it is necessary to decide that the icy condition of defendant's front steps constituted a trap. 'A 'trap' arises when the owner fails to disclose to the licensee a known but concealed danger.' Szafranski v. Radetzky, supra, 31 Wis.2d 126, 141 N.W.2d 905.
In Kaslo v. Hahn, supra, 36 Wis.2d 93, 153 N.W.2d 33, this court held that liability arising from injury caused by a trap is not predicated on any act of the landowner but rather on a failure to warn of the condition. Under Kaslo, a trap envisions known, concealed and dangerous conditions, whether they result from natural conditions or an affirmative act on the part of the landowner. Therefore, it cannot be held categorically that a natural accumulation of ice and snow is not a trap as a matter of law.
The defendant testified that he was aware of the slippery condition of his front steps; therefore, the only question to be decided on review is whether this condition was observable as a matter of law.
We are of the opinion that the trial court erred in ruling as a matter of law that this was not a concealed situation.
Questions to be resolved at trial were: (1) Whether, in fact, plaintiff was adequately warned; and (2) whether there was sufficient illumination, under the facts of this case, so that the condition was obvious to a reasonable man in the exercise of ordinary care. These are questions of fact, and under the evidence presented in this case should have been answered by the jury.
In Phoenix Ins. Co. of Connecticut v. Wisconsin Southern Gas Co. (1970), 45 Wis.2d 471, 484, 485, 173 N.W.2d 610, 616, this court quoted the standard by which decisions on motions for a directed verdict will be reviewed:
Viewing the evidence in its most favorable light to the plaintiffs, we believe there was sufficient credible evidence presented by the plaintiffs to create issues of fact for jury determination.
Respondent argues that since plaintiff was able to see the ice after he fell, he was able, as a matter of law, to see the ice before he fell. Observability after the fact, while of probative value, is not necessarily determinative of the issue of observability before the fact, especially where the observations are made from two different positions. In determining whether or not a trap exists, the question of observability must be decided with reference to the point of the alleged entrapment.
Respondent further argues that inadequate lighting should have warned plaintiff that a dangerous condition might exist and cites Scheeler v. Bahr, supra, in support of this proposition. In Scheeler, plaintiff dove into shallow, murky water and sustained severe injuries. Plaintiff argued the existence of a trap because a murky, roiled condition concealed the true depth of the water. This court held that a trap did not exist because the inability to gauge the depth of the water was an observable danger to a diver or swimmer. In the instant case, plaintiff saw the steps just as the plaintiff in Scheeler saw the water. However, that is where the analogy ends. In Scheeler, plaintiff observed a condition of the water, whereas here plaintiff did not observe a condition of the steps. Whether he should have observed the condition of the steps is a question of fact.
Respondent's final argument is that other jurisdictions have uniformly denied recovery to a licensee who slips and falls on a natural accumulation of ice and snow. Annot., Injury to Social Guest, 25 A.L.R.2d 598, 608, and cases cited therein. A close examination of those cases, and supplemental cases, indicates that a natural accumulation of ice and snow may constitute a trap, given the necessary circumstances. See, for example, Gudwin v. Gudwin (1946), 14 Conn.Supp. 147, 150. However, in most of the cases cited, a necessary element to qualify the condition as a trap was missing. Schmidt v. Langer (1948), 336 Ill.App. 158, 83 N.E.2d 34 (); Gudwin v. Gudwin, supra (observable danger); Quinlan v. Quinlan (1962), 76 N.J.Super. 11, 183 A.2d 712 (); Cesario v. Chiapparine (1964), 21 A.D.2d 272, 250 N.Y.S.2d 584 (actual knowledge of the condition by the licensee); Roberts v. Bradley (1966), 114 Ga.App. 262, 150 S.E.2d 720 ().
At the conclusion of the trial, plaintiffs' counsel requested the trial court to take the defendants' motion for directed verdict under advisement and allow the jury to return a verdict.
The results of the instant case cause us to reiterate the statement contained in the opinion of this court in Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458, and...
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