Gross v. Denow

• Decision Date: 12 November 1973
• Docket Number: No. 227,227
• Citation: 212 N.W.2d 2,61 Wis.2d 40
• Parties: George L. GROSS, Respondent, v. David DENOW et al., Appellants.
• Court: Wisconsin Supreme Court

Page 2

212 N.W.2d 2

61 Wis.2d 40

George L. GROSS, Respondent, v. David DENOW et al., Appellants.

No. 227.

Supreme Court of Wisconsin.

Nov. 12, 1973.

Thomas J. Regan, Milwaukee, for Denow & Milw. Mutual.

Otjen, Philipp & McFadyen, Milwaukee, for Midwest Speedways.

Habush, Gillick, Habush, Davis & Murphy, James J. Murphy, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

Issues raised on this appeal relate to: (1) The applicability of the safe-place statute; (2) the apportionment of negligence; and (3) the award of damages. Each is separable from the others, and each will be treated separately on this review.

Applicability of Safe-Place Statute.

As to plaintiff's cause of action against Midwest for violation of the safe-place statute, the initial inquiry is whether the dirt road on which plaintiff was injured was a 'place of employment' under that statute. The safe-place statute provides in pertinent part:

'(a) The phrase 'place of employment' includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in (a) private domestic service which does not involve the use of mechanical power or (b) farming.' ¹

Of this statutory reference to a 'place of employment' this court has observed:

'. . . The words, 'place of employment' are descriptive. They furnish an outline of a definition and, as used in the statute, indicate a purpose to protect employees and lawful frequenters. Those words naturally carry the idea of a place necessarily used by one or more persons engaged in an enterprise for the purpose of gain or profit, direct or indirect. . . .' ² We deal here with a private thoroughfare, on the premises and under the control of the racetrack operator. ³ So we do not have the issue of a public place, not under ownership or control of the employer, being considered a 'place of employment.' ⁴ The racetrack was 'an enterprise for the purpose of gain or profit.' The spectators and drivers using the road from pit area to parking area were 'lawful frequenters.' The permitted use of the road by drivers and spectators was directly related to the business being carried on.

The safe-place statute provides that it is an employer's duty to furnish safe employment and place. The applicable statute, in part, provides:

'(1) 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.' ⁵

Under this statute an employer has a duty to make the 'place of employment' as safe as the nature of the employment will reasonably permit, a higher duty than that of ordinary care. ⁶ The statute does not make the employer an insurer. ⁷ The duty set by the statute is not breached merely because the place could be made safer. ⁸ The employer's duty to furnish a safe place is an absolute one, but the term 'safe' is relative, not absolute. ⁹ As this court has said, 'The point is simply that the statute recognizes a 'rule of reason. " ¹⁰ What is a safe place depends upon the facts and conditions present, ¹¹ and the use to which the place 'was likely to be put.' ¹²

This court has made clear that the 'safe-place statute deals with unsafe conditions and not with negligent acts as such.' ¹³ So the question arises, In what respect or particular was the roadway from the pit area to the parking area unsafe? The plaintiff seeking to keep all options open is less than precise in describing the particular in which the road was unsafe. It is suggested that the bumpiness of the road constituted an unsafe condition. However, there is in this record no causal link between the fact of bumpiness and the occurrence of the accident. It is suggested the absence of a warning to pedestrians that vehicles were using the road constituted an unsafeness of condition. However, applied to the plaintiff, himself a racetrack driver who had previously used the road as a driver as well as a pedestrian, such warning would not have told him anything that he did not already know. The sole basis for holding the road to be in an unsafe condition derives from the fact that the racetrack operator had the required constructive notice, ¹⁴ that a narrow roadway was simultaneously used as an exit route by pedestrians (pedestrian traffic on the left side of the road at the time of the accident was 'heavy'), and by vehicle drivers (about 75--80 cars were in the pit area of the track on the night involved.) The court majority that wrote Gould would hold that such known use to which the narrow road was being put entitled a jury to find that devices reasonably available to the racetrack operator might have been used to meet the standard of care required by the statute. ¹⁵ Prohibiting pedestrian traffic or providing a fence separating pedestrian and vehicular traffic are devices that would have made the road as safe as its nature would reasonably permit.

Apportionment of Negligence.

The jury apportioned 70 percent of the causal negligence to Midwest, 25 percent to driver-defendant Denow, and 5 percent to pedestrian-plaintiff Gross. This court has consistently held that the apportionment of negligence is within the special province of the jury and it is 'only where it clearly appears that negligence of one part equals or exceeds that of another that the court will interfere.' ¹⁶ This rule and exception apply in safe-place cases as well as in ordinary negligence actions. ¹⁷ It follows that '(a)lthough there is judicial reluctance to change the jury's apportionment and to find a plaintiff at least equally negligent, the court will do so where 'the evidence of the plaintiff's negligence is so clear and the quantum so great. " ¹⁸ And where it appears '. . . that the negligence of the plaintiff is as a matter of law equal to or greater than that of the defendant, it is not only within the power of the court but it is the duty of the court to so hold.' ¹⁹

.the jury verdict here found the racetrack operator 70 percent negligent for permitting both pedestrian and vehicular traffic on one of three exit routes from the seating area to the parking area. The verdict found the pedestrian plaintiff 5 percent causally negligent for voluntarily and knowingly choosing to exit by the route where pedestrian and vehicular traffic were permitted. The plaintiff had been a racetrack driver on prior occasions at the racetrack involved. As such, he had used the third exit route as a driver. He knew both pedestrians and vehicles used the road he selected to walk along. He knew the other two exit routes--shorter and more direct--did not have vehicular traffic moving on them. The jury verdict that the one who maintained the road was fourteen times as causally negligent as the person who chose it as an egress cannot stand.

Frequenters of a public place or building are under an obligation to exercise ordinary care for their own safety. ²⁰ While assumption of risk is not a defense under the safe-place statute, contributory negligence is. ²¹ So a fan in the stands, hit by a foul ball, for 'failing to take any precaution for her own safety,' has been held by this court to be 'at least as negligent as the defendants (baseball club and stadium owner).' ²² Where a pedestrian walked on a street under construction with 'full knowledge of this fact,' and there was 'an alternate route,' this court held that 'the negligence of the plaintiff (who fell) was at least equal to or greater than that of the defendant, (construction company) as a matter of law.' ²³ When a plaintiff, injured after crawling through a window to get into a locked room, 'had other alternative courses of action which were open to him and which were more reasonable and more safe,' this court upheld a trial court holding that plaintiff's negligence was 'equal to that of the defendant as a matter of law.' ²⁴ Where a plaintiff shopper walked over a length of wire fencing on the floor, '(a)though the plaintiff easily could have walked around it, he chose to walk over the wire, tripped on it and fell,' this court held as a matter of law that plaintiff's negligence was equal to that of defendant store owner. ²⁵ In the case before us, where the plaintiff selected from among three exit routes the one in which pedestrian and vehicular traffic were commingled, and where he failed to keep a proper lookout for vehicles passing to his right while he proceeded along the route, his negligence in both respects combined was at least equal to that of the racetrack operator who built and maintained the road involved. Setting aside the jury apportionment is required, and the cause is remanded for a new trial on the issue of negligence only.

Award of Damages.

The jury awarded damages in the amount of $35,000. This sum did not include an award of $2,777.01 for wages lost and medical expenses set by the trial court and not challenged on this appeal. This is not the more usual high-speed automobile accident with multiple injuries. The plaintiff was walking alongside the road with automobiles and trailers passing...