Kaslo v. Hahn

• Decision Date: 03 October 1967
• Citation: 36 Wis.2d 87,153 N.W.2d 33
• Parties: Ellen KASLO, Appellant, v. Herbert HAHN, Respondent.
• Court: Wisconsin Supreme Court

Page 33

153 N.W.2d 33

36 Wis.2d 87

Ellen KASLO, Appellant, v. Herbert HAHN, Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Kersten & McKinnon, Milwaukee, for appellant, George P. Kersten, Milwaukee, of counsel.

Hoffman, Cannon, McLaughlin & Herbon, Milwaukee, for respondent, David M. Quale, Milwaukee, of counsel.

BEILFUSS, Justice.

The parties agree that at the time of the accident the plaintiff was a social guest of the defendant and as such that the legal status between the parties was that of licensee-licensor.

In Szafranski v. Radetzky (1966), 31 Wis.2d 119, 126, 141 N.W.2d 902, 905, this court said:

'The decisions of this court hold that the possessor or occupier of premises may be liable for injuries to the licensee in two situations. The licensor may be liable because the injury was caused by a 'trap' on the premises. Greenfield v. Miller (1921), 173 Wis. 184, 187, 180 N.W. 834, 12 A.L.R. 982; Cordula v. Dietrich (1960), 9 Wis.2d 211, 213, 101 N.W.2d 126; Brinilson v. Chicago & N.W.R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664, 32 L.R.A., N.S. 359. He has, however, no obligation to the licensee in regard to dangers that are unknown to him. (Emphasis supplied.)

'The licensor may, also, be liable for injury to the licensee when the injury is caused by the active negligence of the licensor. Cermak v. Milwaukee Air Power Pump Co. (1927), 192 Wis. 44, 50, 211 N.W. 354; Taylor v. Northern Coal & Dock Co. (1915), 161 Wis. 223, 229, 152 N.W. 465; Muench v. Heinemann (1903) 119 Wis. 441, 447, 96 N.W. 880; Brinilson v. Chicago & N.W.R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664, 32 L.R.A.,N.S., 359.' (Emphasis supplied.)

The trial court at the conclusion of the testimony determined as a matter of law that the shoe scraper was not a trap and that the defendant was not guilty of active negligence in placing the scraper on the patio. ¹

The issues then are: Is there any credible evidence which would sustain a verdict to the effect (1) that the shoe scraper was a trap, or (2) that the placing of the shoe scraper on the patio was active negligence.

The shoe scraper consisted of a strip of metal about 10 inches long supported at each end by metal standards or brackets five inches high. The top of the metal strip or blade was approximately three and one-half inches from the patio floor, with a narrow space between the bottom of the blade and the floor. This device was affixed to the concrete patio floor parallel to, and about two or three inches in from the patio's edge. It was about two inches from one of the wooden posts supporting the patio roof. The scraper had been in this position since the defendant himself had installed it in 1952 or 1953.

It appears that at the time of the accident the sun was shining but the patio was somewhat shaded.

A conflict appears in the testimony as to whether there was untrimmed grass along the patio's southern edge immediately behind the scraper. Plaintiff's witnesses, her daughter and her son-in-law, testified that the grass behind the scraper was untrimmed and coming to the top of the scraper effecting a camouflaged appearance. The defendant testified that the edge of the patio was trimmed. In any event, it is clear that the grass did not cover the scraper but at most was only growing behind it and at most was only even in height to the top of the scraper. The trial court pointed out: 'That condition didn't exist from the way she (plaintiff) went.' She approached the scraper from the patio. From that side it was open and observable, with no grass to obscure its presence. Plaintiff's own testimony indicates she was looking at the defendant at the time she fell, not at her feet or the ground. Had she looked she would have seen the scraper.

'A 'trap' arises when the owner fails to disclose to the licensee a known but concealed danger.' Szafranski, supra, 31 Wis.2d p. 126, 141 N.W.2d p. 905. ²

The trial court stated:

'There was nothing concealed, in the court's opinion, about this foot scraper, it was perfectly obvious and open and unconcealed, and any one using, making reasonable use of his faculties would have observed it, and it was, in the court's opinion, perfectly obvious and perceptive to anyone using one's senses.'

The facts presented here bring this case within the court's holding in Cordula v. Dietrich (1960), 9 Wis.2d 211, 101 N.W.2d 126, where the court held that a garden hose left by the defendant across the sidewalk leading to his house should have been obvious to the plaintiff and, therefore, did not constitute a 'trap.'

Since a trap exists only if there is a 'concealed' danger, and since the shoe scraper here was not 'concealed' from the view of the plaintiff, we agree with the trial court that the scraper was not a trap as a matter of law.

Plaintiff contends that the defendant's act of placing and affixing the scraper to the patio some eleven or twelve years prior to the accident constitutes 'active negligence.' This court recently considered the term 'active negligence' in Szafranski v. Radetzky, supra, 31 Wis.2d p. 127, 141 N.W.2d p. 906:

'The question remains: Was the conduct alleged 'active' negligence? In Cermak supra, the licensee was negligently hit on the head by a pipe wielded by the licensor's employee. In Taylor, supra, the licensee was struck by a coal hoist operated by defendant's agents. In Brinilson, supra, the licensee fell through a grating over a pit used for the discharge of steam in the conduct of the licensor's business.

'The central thread of these cases carries the connotation expressed in Prosser, supra, page 388, sec. 60, of 'operations' carried on by the owner or occupier of the land:

"It is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee. He must run his train, operate his machinery, or back his truck with due regard * * * that * * * the licensee may be present.'

'2 Harper and James, The Law of Torts, p. 1476, sec. 27.11, expresses the rule:

"'* * * in cases involving * * * active conduct, as distinguished from conditions of the premises, the landowner or possessor may be liable for failure to exercise ordinary care towards a licensee whose presence on the land is known or should reasonably be known to the owner or possessor.''

'Applying the tests of the cases and text referred to above, it appears that the negligence complained of was of an active or operational type. The defendants are charged with negligence in the storing of gunpowder and in handling it without exercising ordinary care. This is active negligence. It should also be emphasized that while nonactive or nonoperational types of conduct do not give rise to liability, that once the conduct is determined to be of the active or operational kind, the standard of care is 'ordinary care.' Harper and James, supra, p. 1476; Prosser, supra, p. 388.'

The term 'active negligence,' then, as used in licensor-licensee cases, connotes the carrying on of some operation or activity in a negligent manner. Harper and James use the term 'active intervention' to distinguish between the carrying on of a hazardous activity and a condition of the premises whether created by natural causes or by an affirmative act of a defendant. ³

A condition of the premises whether created through an affirmative act of a defendant or through natural causes is not an activity. An act, then, which creates a dangerous 'condition of the premises' is not an 'activity,' nor is it 'active conduct,' 'operational conduct' or 'active intervention.' Consequently, a licensor cannot be held liable for an act which creates a dangerous 'condition of the premises.' In such a case liability can be established if the condition is a trap and the defendant fails to warn, but the liability then is based on the defendant's failure to warn rather than his act in creating a dangerous condition.

Most of the Wisconsin cases in this area support this conclusion. Some of the cases involving active negligence are summarized in Szafranski, supra. As the opinion indicates, these all involved activities carried on on the premises as distinguished from a single act creating a condition of the premises. In line with these cases is Szafranski itself. There the activity was the negligent storing and handling ⁴ of gunpowder. This was an activity, not a single act creating a dangerous condition of the premises.

Conversely, in most Wisconsin cases where a condition of the premises results from an act of the owner or occupier, no activity is found and consequently no active negligence.

In Brady v. Chicago & N.W.R. Co. (1954), 265 Wis. 618, 625, 62 N.W.2d 415, 418, where a boy fell from a catwalk across the defendant's bridge, this court said:

'The danger arose solely from the manner in which defendant constructed and maintained its premises and it was open and...