Gould v. Allstar Ins. Co.

• Decision Date: 29 June 1973
• Docket Number: No. 470,470
• Citation: 59 Wis.2d 355,208 N.W.2d 388
• Parties: Douglas GOULD et al., Respondents, v. ALLSTAR INS. CO. et al., Appellants, Robert Lien et al., Defendants.
• Court: Wisconsin Supreme Court

Page 388

208 N.W.2d 388

59 Wis.2d 355

Douglas GOULD et al., Respondents, v.ALLSTAR INS. CO. et al., AppellantsRobert Lien et al., Defendants.

No. 470.

Supreme Court of Wisconsin.

June 29, 1973.

Hippenmeyer, Reilly & Arenz, Waukesha, for appellants.

S. A. Schapiro, Milwaukee, for respondents.

HEFFERNAN, Justice.

Plaintiff's complaint charged defendantDenoon Beach, Inc., with common law negligence and also with violating its duties under the safe place statute, sec. 101.96, Stats.(renumbered sec. 101.11 by ch. 185, Laws of 1971).The defendant concedes that the defendant's beach was open to the public for the defendant's profit, that the plaintiff paid a fee for admission to the area, and that the location was 'a place of employment' under the safe place statute.It is, accordingly, undisputed that under the facts Gould was a 'frequenter' at a place of employment.Sec. 101.06, Stats., provided:

'Employer's duty to furnish safe employment and place.Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life health, safety, and welfare of such employes and frequenters.Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.'

While, under the common law, Gould would be an 'invitee,' the distinction between licensees and invitees in this case is irrelevant.Richard V. Campbell, Recent Developments of Tort Law in Wisconsin, p. 17(1969), points out:

'Where our Safe Place Statute applies, this distinction (common law) is eliminated.If a person is a user of a place of employment or a public building, as defined by the Safe Place Statute, he is an employee, a frequenter or a trespasser.Frequenters are not subdivided.All receive the same protection.Mlynarksi v. St. Rita's Congregation, 31 Wis.2d 54, 142 N.W.2d 207(1966).'

The safe place statute does not create a new cause of action, but it does establish an increased standard of care, the violation of which is negligence.Baker v. McDel Corp.(1971), 53 Wis.2d 71, 79, 191 N.W.2d 846;Widell v. Holy Trinity Catholic Church(1963), 19 Wis.2d 648, 650, 121 N.W.2d 249.

Under the common law, premises were merely required to be reasonably safe; but under the safe place statute, liability is imposed if the premises are not kept as free from danger as the nature of the place will reasonably permit.Krause v. Menzner Lumber & Supply Co.(1959), 6 Wis.2d 615, 622, 95 N.W.2d 374.

Bunce v. Grand & Sixth Building, Inc.(1931), 206 Wis. 100, 104, 238 N.W. 867, points out that the statute imposes a duty beyond the duty imposed by the common law.

Since the duty on the defendant in this case is higher than that imposed by the common law, there need be no inquiry into the legal basis of liability of an occupier of land to an invitee.If there is liability under the safe place statute, the judgment must be affirmed.The ultimate question, even in the face of the higher safe place duty, remains the same.It is 'whether the defendant was negligent in not maintaining a premise in as safe a condition as the nature thereof would reasonably permit.'Wittka v. Hartnell(1970), 46 Wis.2d 374, 385, 175 N.W.2d 248, 254.

On this appeal it is not argued that the jury was improperly instructed.It is for the jury to determine, under proper instructions, whether the safe place statute has been complied with or violated.Zehren v. F. W. Woolworth Co.(1960), 11 Wis.2d 539, 544, 105 N.W.2d 563;Heiden v. Milwaukee(1937), 226 Wis. 92, 102, 275 N.W. 922.

In the instant case, where the trial judge specifically approved the jury's findings, it is only necessary to consider such testimony as would sustain the verdict; and, if there is any credible evidence which under any reasonable view would support the jury's findings, the verdict is final.Seitz v. Seitz(1967), 35 Wis.2d 282, 289, 151 N.W.2d 86;Kosnar v. J. C. Penney Co.(1959), 6 Wis.2d 238, 240, 94 N.W.2d 642.

The evidence is clear and undisputed that the end of the pier, some 100 feet from shore, was located in a position where it was unsafe to dive.Moreover, the plaintiff relies on the contention that the defendant was negligent in failing to erect a warning sign or in some way warn its customers of the dangers involved in diving from the end of the pier.There is undisputed evidence that the defendant knew of the danger of diving from the pier, that there had been a warning sign at an earlier time, and that a new warning sign had been painted, was in the possession of the defendant, and had not been placed on the pier.

In view of the nature of the use to which the pier was likely to be put, the premises were not safe.There was evidence from which the jury could conclude that the premises were not kept as free from danger as the nature of the place would reasonably permit.

The defendants do not really argue that they were not negligent.In their brief they address themselves to two points.The essence of their first argument is that they had no duty to warn plaintiff of the danger because the danger was obvious to him.He admitted that he could not see the lake bottom.

Principal reliance is placed upon a recent case by this court, Scheeler v. Bahr(1969), 41 Wis.2d 473, 164 N.W.2d 310.In that case, a social guest, a licensee, at a private home was severely injured when he dived into shallow water from the end of a pier on Lake Waubesa.That case came to us on an appeal from an order which sustained the defendant's demurrer.The complaint alleged that a recent rainstorm had muddied the water and had obscured any view of the bottom, preventing any ascertainment of the depth of the lake at that point.We stated, at page 480, 164 N.W.2d at page 313, that the complaint must fail because, 'as a matter of law the plaintiff must be held to knowledge and appreciation of the risk likely to be encountered by plunging headfirst into the unplumbed depths of the murky lake.'We concluded in that case that the 'opaqueness of the water was in itself a notice of danger.'(P. 477, 164 N.W.2d p. 312).Accordingly, there was no obligation upon the owner for his failure to give an actual warning.

The Scheeler case, however, does not control the instant case.The relationship between Scheeler and his host was that of licensor-licensee.There is no duty on the part of the licensor to make the premises safe for the licensee.He had the duty only of disclosing to his social visitor the existence of a trap--a known but concealed danger.Once that obligation was discharged, either by the host's warning or by the guest's seeing a noticeable and observable danger, the duty is satisfied and there can be no liability.In Scheeler, we found it unnecessary to go into the question of the plaintiff's contributory negligence, since the defendant had breached no duty and was not negligent.There was an actual and obvious danger, and once that was apparent, under the physical circumstances of the case, whether or not the defendant was negligent under other possible legal relationships was immaterial.The duty owed to Scheeler was the lowest of the common law duties which an occupier of land owes to one on his premises with permission.The duty owed in the instant case is the higher statutory duty, and the duty of warning in the instant case is merely a part of the statutory obligation of the occupier of the place of employment to: '. . . do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters.'

Had there been a warning sign in the instant case, it would not necessarily have discharged the duty of Denoon Beach to make the place safe.The question would clearly be one for the jury in terms of plaintiff's contributory negligence.Where a safe place violation is alleged, giving of a warning may vitiate a plaintiff's cause of action by reason of his own contributory negligence, but it does not necessarily satisfy the land occupier's duty.

A similar argument was raised in Umnus v. Wisconsin Public Service Corp.(1952), 260 Wis. 433, 51 N.W.2d 42, where it was argued that the plaintiff should clearly have been aware of an open and obvious danger.The court disposed of that argument, pointing out at page 436, 51 N.W.2d at page 44, 'We do not find that the statute distinguishes between obvious and hidden dangers.'

The defendant in Umnus argued also that the open and apparent danger presented a question of contributory negligence.The court agreed but pointed out that this was a matter of defense and had nothing to do with the defendant's duty under the safe place statute, although it clearly had relevance in respect to the plaintiff's obligation to use reasonable care for his own safety.

Accordingly, we conclude that Scheeler offers no solace to the defendants in this case.The plaintiff's faulty appraisal of the depth of the water herein was contributory negligence, a matter of defense only, and would prevent the plaintiff's recovery only if the jury were to find his negligence greater than that of the defendant.

We should also point out that, aside from the different legal relationships in Scheeler and this case, there were factual differences.The plaintiff here testified that he looked at the water before diving and that it appeared to be three or four feet deep, deep enough for a safe dive of the type he attempted.

In the case of Rogers v. Oconomowoc(1964), 24 Wis.2d 308, 128 N.W.2d 640, a common law negligence case not under the safe...