Gustavson v. Home Ins. Co.
| Decision Date | 12 January 1993 |
| Docket Number | No. 91-1600,91-1600 |
| Citation | 173 Wis.2d 906,499 N.W.2d 300 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Arthur E. Gustavson, Plaintiff-Respondent, v. HOME INSURANCE COMPANY, and Menards, Inc., Defendants-Appellants, Blue Corss & Blue Sheild United of Wisconsin, Compcare Health Services Insurance Corp., Maxicare Helath Insurance Co., and Family Health Plan Cooperative, Defendants. |
| Court | Wisconsin Court of Appeals |
Before Wedemeyer, P.J., Sullivan and Fine, JJ.
Menards, Inc. and its liability insurer, Home Insurance Company (collectively "Menards") appeal from a damages judgment for Arthur E. Gustavson (Gustavson) arising from his slip and fall while shopping in the building materials department of Menards' retail store located on Bluemound Road in New Berlin on May 20, 1985.
Menards argues that the trial court: (1) improperly instructed the jury as to contributory negligence and safety code violations; (2) erroneously excluded evidence of Menards perfect post-accident safety record; (3) erroneously submitted to the jury the issue of whether Menards violated the safe place statute; and (4) failed to find that Gustavson was negligent as a matter of law. Menards also contends that it is entitled to a new trial in the interest of justice. We affirm.
Gustavson entered the Menards store through the front door and proceeded to the building materials department. In this department, the aisles were approximately four and one-half feet wide. On both sides of the aisle were six-inch-high carpeted platforms on which merchandise was displayed. Gustavson walked up and down the display aisles. As he turned to continue down the next aisle, Gustavson saw a four by four foot pallet that was used by fork lifts to transport merchandise throughout the store. The pallet partially blocked his entrance into the next aisle but there was a two foot clearance between the pallet, on his right, and the display platform, on his left. As Gustavson turned the corner and attempted to walk through the two foot space, his left foot stepped on an object and slipped, and when he put his right foot forward, it also came into contact with an object and became entangled. Gustavson fell and sustained injuries. A Menards employee came to Gustavson and asked if he were all right. Gustavson observed the employee pick up several metal bands or rings from the floor. Gustavson testified that he had not seen the bands when he turned the corner because his view was obstructed by the display platform and merchandise stacked on it.
According to a Menards employee, shelves are stocked throughout the day and aisles are often blocked by stocking activities. The metal bands found on the floor had been cut from merchandise that was being shelved. The bands had been set aside while the stockperson went to help a customer.
Menards contends that the trial court did not properly instruct the jury as to contributory negligence and safety code violations. We conclude that the trial court did not err in its instructions. A trial court possesses wide discretion in instructing a jury. White v. Leeder, 149 Wis.2d 948, 954, 440 N.W.2d 557, 559 (1989). On appeal, no grounds for reversal exist if the instruction as a whole communicates a correct statement of the law and is consistent with the facts of the case. Id. at 954-55, 440 N.W.2d at 559-60.
At trial, Menards objected to the court's editing of two jury instructions that explain a plaintiff's contributory negligence. The court used portions of Wis J I--Civil 1007, Contributory Negligence: Defined, and Wis J I--Civil 1902, Safe-Place Statute: Negligence of Plaintiff Frequenter. However, the court did not use all of the paragraphs contained in those instructions. Menards argues that the truncated instructions failed to adequately inform the jury of the law of contributory negligence. Menards concludes that as a result of these errors, the jury exonerated Gustavson of any negligence. We disagree.
A trial court is not required to give a particular instruction requested by a party so long as the instruction that is given by the court adequately addresses the issues. Fischer v. Ganju, 168 Wis.2d 834, 855, 485 N.W.2d 10, 18 (1992). This is true even when the requested instruction could properly be given. Id. Menards argues that the trial court erred when it refused to include an optional paragraph contained in Wis J I--Civil 1007. We determine that the court's instruction was adequate, and therefore, the court did not err in its refusal to include the additional paragraph requested by Menards.
In defining Gustavson's common law duty to exercise reasonable care for his own safety, the court chose the standard contributory negligence paragraph and three of the four additional or optional paragraphs from Wis J I--Civil 1007. 1 The court instructed the jury that a person must "exercise ordinary care for his own safety," that the exercise of ordinary care includes the use of a person's "sense of sight so as to become aware of the existence of danger," and that a person is not required to see every danger but must act as would a reasonably prudent person under the circumstances.
Over Menards' objection, the trial court declined to submit one optional paragraph of instruction 1007 which states that a person has a duty of ordinary care to "recognize and appreciate" obvious dangers under the circumstances. It states further that a person who looks and fails to see a "warning of danger" that a reasonably prudent person would have seen is as guilty of negligence as a person who does not look at all. Menards claims that the court erred in refusing to include this portion of the contributory negligence instruction.
We reject Menards' argument. The instructions submitted by the trial court fairly and adequately apprised the jury of Gustavson's duty of care for his own safety. Although not utilizing the particular optional paragraph of instruction 1007 that Menards requested, the jury instruction, as given, communicated the same message--that Gustavson was required to watch for danger and if he did not see danger that an ordinary person would have seen under the circumstances, he was negligent. Thus, the instruction properly submitted to the jury the issue of whether, under the circumstances, an ordinary person would have seen the bands that Gustavson did not see.
Menards also claims that the court erred when it declined to include an alternative paragraph contained in Wis J I-Civil 1902 2 which defined Gustavson's duty of care for his own safety in the context of the safe place statute. 3 Menards argues that the trial court should have submitted the "special circumstances" paragraph of instruction 1902 because: (1) Menards' practice of stocking shelves during shopping hours puts the self-service customer on notice that upon occasion debris may be left on the floors and that aisles may be blocked; and (2) the condition of the aisle was a special circumstance requiring Gustavson's increased vigilance.
Regardless of whether special circumstances did or did not exist, the trial court did not abuse its discretion when it rejected Menards' modified "special circumstance" instruction. The trial court's instruction on contributory negligence, as applied to the safe-place statute, adequately informed the jury of the law. The court instructed the jury that Gustavson had a duty to use reasonable care under the surrounding conditions and circumstances. The instruction, as given, conveyed the message that reasonable care is determined, not in a vacuum, but in light of the situation. Implicit in this instruction is the principle that when a reasonably prudent person confronts a more dangerous condition, he or she might believe that a heightened level of care is required. Because we determine that the jury was adequately instructed that the surrounding circumstances should be considered, we cannot say that the trial court erroneously exercised its discretion when it declined to instruct the jury on the special circumstance portion of instruction 1907.
Menards further asserts that the court erroneously exercised its discretion when it delivered Wis J I--Civil 1005 with an addendum pertaining to an administrative rule for mechanical handling equipment. 4 Menards contends that a submission of this administrative rule was improper because the record contains no evidence that mechanical handling equipment caused Gustavson's injury. Menards further argues that because the charge, based on Wis. Adm.Code sec. Ind 1910.22(b)(1), 5 is an absolute proscription containing no reasonableness standard, it was particularly prejudicial. 6 We reject Menards' argument.
A violation of Wisconsin administrative rules designed to preserve safety and health is negligence per se and is a basis for civil liability under the safe place statute. See Nordeen v. Hammerlund, 132 Wis.2d 164, 166-69, 389 N.W.2d 828, 829-30 (Ct.App.1986). Thus, a violation of Wis. Adm.Code sec. Ind 1910.22(b)(1) is a violation of the safe place statute.
Gustavson's safety engineer, Robert Schoof, testified that this code provision applied to Menards, that Menards violated it, and that this violation was a cause of Gustavson's injuries. However, Menards contends that the evidence fails to show that the use of any mechanical handling equipment caused Gustavson's fall and injury. Menards' reading of the record is too constrictive. Menards conceded that, during shopping hours, fork lifts moved and shelved merchandise that was sometimes secured by metal bands. From this evidence, an inference arises that the bands and pallet were left on the floor at the site of Gustavson's fall through the use of a forklift. The possibility of other inferences from ...
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