Gerdmann by Habush v. U.S. Fire Ins. Co.

• Decision Date: 22 May 1984
• Docket Number: No. 83-1275,83-1275
• Parties: Nathan GERDMANN, by his Guardian ad Litem Robert L. HABUSH and Terry Gerdmann, Plaintiffs, v. UNITED STATES FIRE INSURANCE COMPANY, Defendant-Appellant, Employers Mutual Liability Insurance Company of Wisconsin, Defendant, Hartford Accident and Indemnity Company, Defendant and Third-Party Plaintiff, Roen Salvage Company, Defendant and Third-Party Plaintiff-Appellant, The Manitowoc Company, Inc., and Employers Mutual Liability Insurance Company of Wisconsin, Third-Party Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 730

350 N.W.2d 730

119 Wis.2d 367

Nathan GERDMANN, by his Guardian ad Litem Robert L. HABUSH and Terry Gerdmann, Plaintiffs, v. UNITED STATES FIRE INSURANCE COMPANY, Defendant-Appellant Employers Mutual Liability Insurance Company of Wisconsin, Defendant Hartford Accident and Indemnity Company, Defendant and Third-Party Plaintiff Roen Salvage Company, Defendant and Third-Party Plaintiff-Appellant The Manitowoc Company, Inc., and Employers Mutual Liability Insurance Company of Wisconsin, Third-Party Defendants-Respondents.

No. 83-1275.

Court of Appeals of Wisconsin.

Submitted on Briefs March 5, 1984.

Opinion Released May 22, 1984.

Opinion Filed May 22, 1984.

L. William Staudenmaier, Bruce A. Olson and Cook & Franke, S.C., Milwaukee, on briefs, for appellants.

Walter S. Davis, and Terrence J. Gaffney, Milwaukee, on brief, for respondents; Davis & Kuelthau, S.C., Milwaukee, of counsel.

Before FOLEY, P.J., and DEAN and CANE, JJ.

DEAN, Judge.

Roen Salvage Company and its insurer, United States Fire Insurance Company, appeal a judgment awarding $40,675.34 to The Manitowoc Company, Inc., and its insurer, Employers Mutual Liability Insurance Company of Wisconsin. Nathan Gerdmann had sued Roen for personal injury damages, and Roen sought contribution from Manitowoc. Based on an indemnification agreement with Roen, Manitowoc counterclaimed for the costs and attorney fees it incurred in defending against Roen's action. Because sec. 895.49, Stats., does not void the indemnity agreement between Roen and Manitowoc, and because we find no trial court errors that require reversal, we affirm the judgment.

Gerdmann, an employee of Bay Shipbuilding, was injured when he was accidently struck by a wooden pole that had been lying beside a haul road on Manitowoc's property. As a Roen dump truck drove down the road past Gerdmann, a cable hanging from the truck became looped around the pole and flipped the pole across the road. Roen and Bay Shipbuilding were doing work for Manitowoc at the time.

Roen and United States Fire settled with Gerdmann for three million dollars, and he is not involved in this appeal. Roen's action against Manitowoc claimed a violation of the safe place statute, sec. 101.11, Stats. A jury found in favor of Manitowoc, and the trial court granted Manitowoc judgment on their counterclaim for indemnification.

Roen contends that the trial court erred (1) by not holding that Manitowoc had constructive notice of the unsafe location of the wooden pole as a matter of law; (2) because the jury instructions on notice were incomplete; and (3) because the form of the special verdict question on notice required the jury to answer two questions. Roen also contends that the indemnity clause in its contract with Manitowoc is void under sec. 895.49 and that, if the clause is not void, it does not require indemnification for the costs of the contribution action. We address each of these contentions separately.

Roen did not conclusively establish that Manitowoc had constructive notice of the unsafe condition. The notice question was therefore properly submitted to the jury. Section 101.11(1) requires employers to provide a safe place of employment for employees and frequenters. An employer is not liable under the statute, however, unless the employer has either actual or constructive notice of the unsafe condition that caused the injury. Topp v. Continental Insurance Co., 83 Wis.2d 780, 789, 266 N.W.2d 397, 402 (1978). An employer has constructive notice of an unsafe condition if it existed long enough before the accident so that the employer, in the exercise of reasonable diligence, should have discovered it in time to take reasonable precautions to remedy the situation. Id. Whether an employer had notice depends upon the surrounding facts and circumstances and is generally a jury question. De Marco v. Braund, 30 Wis.2d 675, 677, 142 N.W.2d 165, 167 (1966).

Roen contends that the testimony of several Bay Shipbuilding employees that they thought they saw or did see a pole alongside the road before the accident, when combined with aerial photos taken twelve days before the accident showing a pole lying along the haul road, requires a holding that Manitowoc had constructive notice as a matter of law. ¹ Roen also contends that the trial court erred by not changing the jury's answer on the notice question from no to yes.

The employees, however, were not certain of the date that they first noticed the pole, and there was no evidence that the pole shown in the photographs was the same pole that injured Gerdmann. There was testimony that there were constantly shifting piles of construction materials and moving vehicles along the haul road. This left open the question of whether Manitowoc had constructive notice of the pole's location. The question therefore was properly left for the jury to decide. A jury's special verdict answer should not be changed if there is any credible evidence to support the answer. Bennett v. Larsen Co., 114 Wis.2d 265, 278, 338 N.W.2d 510, 517 (Ct.App.1983). The testimony that materials were constantly stacked and shifted along the road provides credible evidence to support the jury's verdict.

Roen waived its objections to the trial court's jury instructions because it did not specifically object to the instructions. Roen contends that the trial court erred because it did not instruct the jury that constructive notice can be found when an unsafe condition existed for little or no time if there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted. See Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 28-29, 284 N.W.2d 692, 698 (Ct.App.1979), aff'd, 100 Wis.2d 120, 301 N.W.2d 201 (1981); Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 683-84, 180 N.W.2d 525, 527 (1970); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis.2d 51, 57-58, 150 N.W.2d 361, 364 (1967). At trial, however, Roen objected only to the inclusion of any notice question and did not specifically object to the trial court's standard instruction. See Wis J I--Civil 1900.4 (1981). It therefore waived its right to object to the standard jury instruction's inclusion. See Peeples v. Sargent, 77 Wis.2d 612, 636, 253 N.W.2d 459, 468 (1977). We also note that Manitowoc's business is not similar to the unique operations found in Dykstra, Steinhorst, and Strack, and Roen was not prejudiced by the trial court's failure to include instructions based on these cases.

Roen also did not specifically object to the verdict question on constructive notice and it was not prejudiced by the trial court's error. The court asked the jury if Manitowoc had notice of the pole's location and, in its instructions, it presumed that the location was unsafe. This question, asked before the jury decided if the location was unsafe, was prejudicial to Manitowoc because it presumed that an unsafe condition existed. ² Roen was not prejudiced by this question. See Peeples, 77 Wis.2d at 639, 253 N.W.2d at 470.

Section 895.49 does not void the indemnity clause in Roen's contract with Manitowoc. The interpretation of this statute is a question of law. See Nelson v. Union National Bank, 111 Wis.2d 313, 315, 330...