Hertelendy v. Agway Ins. Co., 92-2852
| Decision Date | 25 May 1993 |
| Docket Number | No. 92-2852,92-2852 |
| Citation | 501 N.W.2d 903,177 Wis.2d 329 |
| Parties | David HERTELENDY, Plaintiff-Appellant, d v. AGWAY INSURANCE COMPANY, Defendant-Respondent, Blue Cross and Blue Shield of Kentucky, Inc., Defendant. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
David Hertelendy appeals a summary judgment dismissing his personal injury complaint against Agway Insurance Company. David contends that the trial court erred by concluding that his father, Clarence Hertelendy, owed David no duty at the time of the accident because David voluntarily confronted an open and obvious hazard. We conclude that the trial court erroneously concluded that Clarence owed David no duty. However, because the trial court correctly determined that David was more negligent than Clarence as a matter of law, we affirm the judgment.
The facts, as asserted by David, are as follows: In 1988, David, a forty-year-old dentist, was helping Clarence cut down a tree at Clarence's cottage. An electrical wire ran parallel to the road approximately twenty feet away from the tree. Clarence made cuts on both sides of the tree, and David pushed the tree from one side so that it would not fall on the power line. Before Clarence had cut all the way through the tree, it fell on the power line. Clarence then cut four feet off the bottom of the tree, causing the tree to swing on the wire until it was perpendicular to the ground. David noticed that the part of the tree touching the wire was on fire. Because the tree was hollow, the inside was also on fire and fire shot from inside the tree to the ground. David took off his sweatshirt and beat the ground with it, attempting to put out the fire.
David then stopped a passerby in a vehicle, DNR warden Stephen Matula. The Hertelendys asked Matula for a rope or a shovel, and David asked Matula to call the fire department. When Matula saw the tree on the wire and the sparks and fire, he told the Hertelendys to stay away from the tree several times. Clarence ignored Matula's warnings and started tying the rope around the tree's base. Clarence started pulling on the rope and asked David to help him. When David started pulling on the rope, he noticed he "began to get electrocuted." Almost immediately, the wire broke and the tree fell to the ground. Clarence was killed and David was injured.
David filed a personal injury complaint against Clarence's insurance carrier, Agway Insurance Company. David alleged that Clarence negligently felled the tree and negligently attempted to remove it from the power line, causing David's injuries. Agway moved for summary judgment. Based on the undisputed facts concerning the sequence of the accident, the trial court concluded that Clarence owed no duty to guarantee David's safety because the arcing electricity and fires were an open and obvious danger, reasoning that:
[I]n the case where [the open and obvious danger rule] is used, the facts are so slanted in one direction that the court recognizes that there is no way a verdict could be sustained ... if the jury came down against that set of facts.
....
You're saying that the plaintiff's move was so foolish that any juror or every jury is going to say that the plaintiff was more negligent, was more than 51 percent negligent....
....
It's my feeling in this case based on the information in the file to date that a jury would find that this was an open and obvious danger to both David Hertelendy and to his father. When you have a tree against a power line, I think in this day and age everybody should know that's a very dangerous situation. When that tree is then conducting electricity and there is arcing and fires are being started ... it's very obvious that that's a dangerous situation.
....
So I am granting the motion for summary judgment, but not really on the sole issue of finding that the negligence is determined as a matter of law. It's a ruling that combines both the open and obvious danger doctrine and, looking at these facts, the finding that one of these very foolish individuals in the face of a danger of this sort didn't owe any particular duty to the other.
When reviewing a grant of summary judgment, appellate courts independently apply the same methodology as the trial court. Kloes v. Eau Claire Cavalier Baseball Ass'n, 170 Wis.2d 77, 83, 487 N.W.2d 77, 79-80 (Ct.App.1992). That methodology has been set forth numerous times, and we need not repeat it here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).
David argues that the trial court erred by concluding that Clarence owed no duty to David as a matter of law. We agree. Our supreme court has repeatedly held that all persons have a duty to conduct themselves in a manner that will not harm or endanger others. See, e.g., A.E. Invest. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483, 214 N.W.2d 764, 766 (1974). In this case, Clarence had a duty to conduct his tree-felling in a manner that would not harm or endanger David. Our inquiry, however, does not end here.
David also contends that the court erred by concluding that his negligence exceeded Clarence's as a matter of law. He argues that the degree of the parties' negligence is a question of fact for the jury and not a question of law for the court. While the apportionment of negligence is ordinarily a jury question, where the plaintiff's negligence clearly exceeds the defendant's, courts may so hold as a matter of law. Kloes, 170 Wis.2d at 86, 487 N.W.2d at 81. Before addressing David's arguments in more detail, we believe a discussion of the open and obvious danger rule is helpful.
In Wisconsin, the term "open and obvious danger" has assumed two separate and distinct meanings. Because these meanings have no relationship to one another, the use of that phrase has generated a great deal of confusion. In the case before us, it is impossible to identify which legal doctrine the trial court relied upon when it dismissed David's complaint. For purposes of our analysis, we must explore each of the distinct meanings that has been attached to this doctrine and separate them.
The common-law origin of the open and obvious danger doctrine flows from the recognition that landowners are immune from liability for injuries caused to invitees by conditions or activities that present dangers obvious to the invitees, because invitees are, in most circumstances, expected to protect themselves from obvious dangers. See RESTATEMENT (SECOND) OF TORTS § 343A(1) (1965). The landowner's duty to keep the premises safe for invitees extends only to dangers that the landowner knows about and the invitee does not. See AM.JUR.2D NEGLIGENCE § 1211 (1989). Accordingly, this doctrine has stood for the proposition that the landowner has no duty to protect an invitee from open and obvious dangers inherent in the land's condition and in certain activities undertaken by the invitee. In some jurisdictions, including jurisdictions utilizing a comparative negligence tort system, this application of the open and obvious danger doctrine means that the landowner's conduct is not examined or compared to the invitee's conduct for the purpose of apportioning negligence.
Wisconsin recognized and appeared to adopt this doctrine in Scheeler v. Bahr, 41 Wis.2d 473, 164 N.W.2d 310 (1969). In Scheeler, a guest sued the land owner for injuries he sustained when he dove into a lake of an unknown depth. The court determined that the land owner had no duty to the plaintiff because diving into water of unknown depth presents an obvious hazard. The court held that "the defendant [landowner] is relieved of that duty [to warn invitees of a hazard] if the hazard is obvious or where it is reasonable to assume that it will be understood and appreciated." Id. at 480, 164 N.W.2d at 313.
Wisconsin courts have continued to use the open and obvious danger doctrine to absolve landowners of the duty to warn invitees of the hazard associated with diving into shallow water or water of unknown depth. See, e.g., Davenport v. Gillmore, 146 Wis.2d 498, 508, 431 N.W.2d 701, 706 (Ct.App.1988); Colip v. Travelers Ins. Co., 141 Wis.2d 363, 367, 415 N.W.2d 525, 527 (Ct.App.1987). In each of these cases, the court concluded that the plaintiff voluntarily confronted a danger so open and obvious that the defendant had no duty to warn or otherwise protect ...
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