Fondell v. Lucky Stores, Inc.

• Decision Date: 03 October 1978
• Docket Number: No. 76-057,76-057
• Citation: 270 N.W.2d 205,85 Wis.2d 220
• Parties: Grace M. FONDELL, Plaintiff-Respondent, v. LUCKY STORES, INC., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 205

270 N.W.2d 205

85 Wis.2d 220

Grace M. FONDELL, Plaintiff-Respondent, v. LUCKY STORES, INC., Defendant-Appellant.

No. 76-057.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 7, 1978.

Decided Oct. 3, 1978.

This is an action to recover for personal injuries resulting from a fall in the defendant's supermarket on May 26, 1971. The plaintiff brought this action against the defendant, Lucky Stores, Inc., alleging a violation of the safe-place statute. Sec. 101.11, Stats. The plaintiff alleged that she had slipped as a result of the defendant's failure to remove from the floor the remnants of a glass container which had broken earlier in the day.

The plaintiff entered the defendant's food store in Beloit at approximately 10:00 a. m. She was accompanied by her six-year old daughter. The plaintiff was in the store primarily to pick up some food for the morning's breakfast; the items selected were put into a single shopping bag. The plaintiff was leaving the middle checkout counter in a row of seven and was some five or six steps away from that counter when she fell. The fall resulted in the plaintiff receiving a fractured ankle which required hospitalization.

Prior to her fall, a liquid cleaner had broken on the floor and had been allegedly cleaned up by a store employee. It was not known how long before plaintiff's fall the breakage occurred. The cleanup boy did not testify for either party, nor was his absence explained; the absent witness instruction was given. Plaintiff claims that she did not hear a bottle break while she was in the store. Plaintiff and her daughter testified that there was a wet substance and broken glass on the floor after her fall. Two store employees testified that they could not recall either wetness or glass on the floor and that no further cleanup efforts followed the fall. There was conflicting testimony regarding whether plaintiff was carrying a bag of groceries.

A special verdict was submitted to the jury inquiring as to the defendant's negligence in failing to meet the requirements of the safe-place statute and also the question of the plaintiff's contributory negligence. The verdict returned found both the plaintiff and defendant negligent; however, the negligence of neither party was found to be causal.

The trial court found that it could not accept the returned verdict in its present form. Without a motion from either party, the judge re-read the causation instruction to the jury. He also instructed them that in this case, causation must be found to exist as to one or both of the parties. The jury reconvened for a short period of time before returning a verdict for a second time. The second verdict found the defendant causally negligent and attributed no causal negligence to the plaintiff. Two jurors who had dissented as to the findings of negligence in the first verdict, withdrew their dissent in the second verdict.

Defendant moved for judgment on the first verdict while plaintiff moved for a new trial on the issue of damages and alternatively for a new trial in the interest of justice because the jury was confused. In its Memorandum Decision and its Supplementary Memorandum Decision the trial court denied all of these motions and order judgment on the second verdict in favor of plaintiff.

Campbell, Brennan, Steil & Ryan, S. C., Janesville, submitted brief for defendant-appellant.

Frank X. Kinast, Beloit, submitted brief for plaintiff-respondent.

COFFEY, Justice.

There are three issues presented:

1. Has the defendant waived its right to appeal the trial court's refusal to accept the jury's original verdict by failing to move for a new trial on motions after verdict?

2. Whether it was error to refuse to accept a verdict finding both the plaintiff and defendant negligent without finding either party causally negligent?

3. Whether it was error to reinstruct the jury that once having found negligence on both parties, that causation must be found as to one or both of the parties?

The plaintiff-respondent alleges that the defendant-appellant waived its right to appeal the trial court's refusal to accept the original jury verdict. The plaintiff contends that the right of appeal must be preserved by a timely motion for a new trial on motions after verdict. The authority relied on is Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 80 N.W.2d 380 (1957) and Upton v. Tatro, 68 Wis.2d 562, 229 N.W.2d 691 (1975). In Wells v. Dairyland Mut. Ins. Co., supra, the applicable rule for preservation of appeal was stated 274 Wis. at 518, 80 N.W.2d at 387:

"We deem the correct rule to be that no error of the court should be reviewable As a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial."

The defendant has alleged that it was error for the trial court to refuse to accept the first jury verdict which found both parties negligent but without a finding as to causal negligence. The defendant, by the first verdict, had what they believed was a proper verdict supported by the evidence. If the defendant is correct that the trial court erred by not accepting the form of the first verdict, we will remedy the error by a reinstatement of the first verdict. Therefore, we find that the defendant did not waive its right to appeal the reinstruction and resubmission of the verdict, since the error is of a character which could not be cured by a new trial. The defendant's timely objection to the reinstructing and resubmitting of the verdict and its motion for judgment on the original verdict properly preserved the issue for appeal.

The dual issues framed by the defendant alleging the trial court erred in reinstructing the jury on causation and further erred by refusing to accept the original jury determination, are issues essentially identical in nature. Therefore, this decision shall not treat those issues separately, but shall solely consider whether the trial court erred in resubmitting the verdict to the jury.

The crux of this case arises from the trial court's handling of a verdict where both parties were found negligent, but neither causally negligent. The trial court found this to be a rare and confusing jury determination. The trial judge's comments in the record are cryptic as to the exact reason why the special verdict was resubmitted to the jury. Apparently, the trial court believed that under the evidence introduced where both parties were found negligent that a finding of causation must automatically result when there has been no evidence offered to indicate that the accident was an "Act of God" or a "pure accident." ¹

It is established law in Wisconsin that negligence and causation are separate inquiries ² and that a finding of cause will not automatically flow from a finding of negligence. Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952); Anderson v. Deerswester, 9 Wis.2d 428, 101 N.W.2d 640 (1960); Baker v. Bracker, 39 Wis.2d 142, 158 N.W.2d 285 (1968); Carr v. Amusement, Inc., 47 Wis.2d 368, 177 N.W.2d 388 (1970); Lueck v. City of Janesville, 57 Wis.2d 254, 204 N.W.2d 6 (1973); Greiten v. LaDow, 70 Wis.2d 589, 235 N.W.2d 677 (1975). ³

Negligence is determined to exist when there is a duty owed to a party's person or property and this duty is breached by conduct which is not intentional in nature. A. E. Investment v. Link Builders, Inc., 62 Wis.2d 479, 484, 214 N.W.2d 764 (1974). ⁴

There is no liability upon the failure to meet the required duty until such negligence is found to be the legal cause of the plaintiff's injuries. ⁵ Pfeifer v. Standard Gateway Theater, Inc., supra; The Restatement (Second) of Torts, § 430 at 426 (1965). Causation in its legal sense is a question of whether the breach of the duty is a substantial factor in causing the harm from which damages are claimed. Pfeifer v. Standard Gateway Theater, Inc., supra; Ayala v. Farmers Mut. Auto. Ins. Co., 272 Wis. 629, 76 N.W.2d 563 (1956); Schnabl v. Ford Motor Co., 54 Wis.2d 345, 195 N.W.2d 602 (1972); Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1975); Restatement (Second) of Torts, § 431 at 428 (1965). Whether a party's negligence is a substantial factor in bringing about the harm and thus is the legal cause of the accident; an unbroken sequence of events must be proven wherein the negligence of a party is actively operating at the time of the injury producing accident and this actively operating negligence was a cause in fact of the accident. Pfeifer v. Standard Gateway Theater, Inc., supra ; ⁶ Anderson v. Deerswester, supra ; ⁷ Baker v. Bracker, supra and Carr Amusement, Inc., supra. ⁸

The foregoing authority leaves no doubt that there is nothing inconsistent or irregular in the form of a verdict wherein the parties are found negligent, but such negligence is not causal of the injuries. Cause and negligence are separable legal concepts predicated on distinct legal tests. It should be noted that the trial court and plaintiff's counsel agreed that the first verdict was an "inconsistent verdict." This is a misuse of the term. An inconsistent verdict is a term of art used in describing jury answers which are logically repugnant to one another. The typical situations where inconsistent verdicts arise are set forth in Statz v. Pohl, 266 Wis. 23, 62 N.W.2d 556 (1953) ⁹ and Ollinger v. Grall, 80 Wis.2d 213, 258 N.W.2d 693 (1977). ¹⁰

As previously stated there is no inconsistency in this jury finding of negligence, but without a finding of causal negligence, and this is especially true where the jury properly refrained from answering the comparison question. If it was the trial court's intent to label the original verdict as inconsistent because the jury findings were inconsistent with the evidence, this is an entirely different matter that does not fall within the ambit of the rules stated in Statz v. Pohl, supra, a...