Kull v. Sears, Roebuck & Co.

• Decision Date: 01 December 1970
• Docket Number: No. 148,148
• Citation: 49 Wis.2d 1,181 N.W.2d 393
• Parties: Nola KULL et al., Plaintiffs-Respondents, v. SEARS, ROEBUCK & CO., a foreign corporation, Defendant-Appellant, Hugh G. Dardis, Defendant-Respondent, Fred Poritz et al., Impleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 393

181 N.W.2d 393

49 Wis.2d 1

Nola KULL et al., Plaintiffs-Respondents, v. SEARS, ROEBUCK & CO., a foreign corporation, Defendant-Appellant Hugh G. Dardis, Defendant-Respondent Fred Poritz et al., Impleaded Defendants-Respondents.

No. 148.

Supreme Court of Wisconsin.

Dec. 1, 1970.

On August 20, 1963, the plaintiff, Nola Kull, together with her two children, went to the Sears store in Burlington, Wisconsin, for the purpose of picking up two suitcases she had ordered. Jefferson street runs in an east-west direction. The Sears store is on the north side of Jefferson street. The entire area between the store and the north curb line of Jefferson street is paved as a sidewalk. Starting at the east edge of the store and continuing east there is a five foot sidewalk and a four and one-half foot grass or boulevard area between the sidewalk and the curb.

Sears did not have a parking lot. When the plaintiff arrived she parked her car close to the store at the north curb line of Jefferson street adjacent to the grass area between the curb and the sidewalk. Mrs. Kull got out of her car on the left side, walked to the front of the store and entered.

When Mrs. Kull left the store she was carrying one of the suitcases which was still in the packing box. She intended to put the box in the trunk of her car. On this occasion she approached her car from its right side and in order to do so she left the sidewalk and crossed the grass area. When she was near the side of her car she stepped into a depression in the grass area with her left foot, fell and sustained personal injuries which are the basis for this action. This depression or hole was covered with weeds which tended to spread horizontally and to lay close or flat on the ground. After the accident the weeds were pulled aside to examine the depression. It was about 12 inches wide, six to eight inches long, and eight to 10 inches deep. The weeds and grass had been cut with a rotary-type lawnmower. There is a dispute in the evidence as to whether the depression was visible. The pictures introduced into evidence indicate the depression was hard to see even when you knew it was there.

Sears had entered into two leases with the defendant, Hugh Dardis; the first on January 31, 1961, and the second on September 21, 1962. The second lease was for the vacant lot located directly east of the Sears store and adjacent to the sidewalk and grass area where the accident occurred. Pursuant to the terms of this lease Dardis was required to improve the lot by installing a drain in the center of the lot to run to or empty into the sewer on Jefferson street. The lot was be graded and blacktopped. At the time of the accident the blacktop had not been put on the surface but the drain had been installed. The drain was made of drain tile placed a few inches under the surface and covered with soil. The drain, of course, ran under the sidewalk and grass area to reach the sewer in Jefferson street. Mr. Dardis employed a contractor, Poritz Plumbing & Heating, to do the work, ¹ and it was done in the fall of 1962. The depression was directly over the drain tile and adjacent to the curb.

The testimony indicates the grass area was usually mowed by employees of the city of Burlington Water Department. However, in some instances it was moved by a handyman-employee of Sears' when the water department employees failed to do so.

Both the manager and assistant manager made cursory inspections of the area but were unaware the depression was there. After the accident the hole was filled by Dardis with blacktop.

The lot in question was formerly owned by the city of Burlington. The city sold the lot (excepting a small portion of the extreme east end upon which a city water utility building has been erected) to Dardis, and Dardis leased it to Sears. The evidence clearly shows that the area where the accident occurred was not within the description of the lot. The city still had title to this area. The roadway was 66 feet wide and extended to a line about one foot north of the north edge of the sidewalk. The city is not a party to this action.

The plaintiffs, Mrs. Kull and her husband, brought this action against Sears and Dardis. The jury found that the condition of the grass area was dangerous to persons walking in the area and that both Sears and Dardis were causally negligent 'in failing to have eliminated the dangerous condition prior to the injury to the plaintiff Nola Kull.' The negligence was apportioned 56 percent to Sears and 44 percent to Dardis.

Appropriate motions after verdict were made and heard by the trial court. Judgments were entered against Sears for all the damages for the plaintiffs, and Dardis for contribution to Sears for 44 percent of the amount. Judgment was also entered denying Sears' claim for indemnification against Dardis. Sears has appealed from both judgments.

Additional facts will be stated in the opinion.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt H. Frauen, and George N. Kotsonis, Milwaukee, of counsel, for appellant.

Adrian P. Schoone, Joseph J. Muratore, Racine, for plaintiffs-respondents.

BEILFUSS, Justice.

The appellant's contentions raise four issues:

1. Was Sears entitled to a directed verdict as a matter of law in that it had no duty to maintain or repair the border area beyond its lot lines?

2. Did the trial court err in instructing the jury not to consider the ownership of the area in answering the special verdict?

3. Did the trial court err in refusing to include a question concerning plaintiffs' contributory negligence in the special verdict?

4. Was Sears entitled to indemnification on its cross-complaint against the defendant Hugh G. Dardis?

The appellant-Sears' principal argument is that its motion for a directed verdict should have been granted for the reason that it owed no duty to maintain the grass area located in a public way. In support of this contention the appellant relies primarily on the cases of Peppas v. Milwaukee (1966), 29 Wis.2d 609, 139 N.W.2d 579, 141 N.W.2d 228, and Hansen v. Schmidman Properties, Inc. (1962), 16 Wis.2d 639, 115 N.W.2d 495.

In both cases the plaintiffs were injured by falls caused by defects in driveways located in the area between a public sidewalk and the street. The defect in the Peppas Case was a deterioration of the concrete driveway and a depression in its surface, and in Hansen an accumulation of ice. In both, the driveways were, as here, not within the lot lines of the property owned or leased by the defendants but were a part of an area dedicated to the city as a street.

The defendant-lessee in Peppas was an auto dealer and used the driveway to enter the adjacent lot to park cars left for repairs. In Hansen the driveway was used primarily as an entrance to a parking lot for the defendant's tavern.

The jury found Peppas allowed a nuisance to exist. We reversed the judgment. In Hansen the trial court set aside the jury verdict for the plaintiff and granted the defendant's motion for a directed verdict. We affirmed. In both cases the court found as a matter of law that the defendants were not liable for the plaintiffs' injuries. The Peppas decision stated 29 Wis.2d at p. 617, 139 N.W.2d at p. 583:

'The jury found appellants Har-Van and Gardner to be liable on a nuisance theory because each knew of the dangerous condition of the driveway. The general rule in Wisconsin is that abutting landowners (or lessees) are liable for only such defects or dangerous conditions in a public way as are created by active negligence on their part. It is undisputed that the depression in the driveway was caused solely by natural deterioration of the concrete and that appellants did not contribute to the condition in any manner.'

The injured plaintiff in Peppas relied on Brown v. Milwaukee Terminal R. Co. (1929), 199 Wis. 575, 224 N.W. 748, 227 N.W. 385, and Plesko v. Allied Investment Co. (1961), 12 Wis.2d 168, 107 N.W.2d 201, arguing for liability on a nuisance theory for knowingly permitting the driveway to remain in a dangerous condition. In finding that those cases which imposed liability on the property owner because of falling tree limbs were not controlling, the court noted that they were expressly distinguished in Hei v. Durand (1963), 22 Wis.2d 101, 125 N.W.2d 341, which involved a sidewalk defect 'for the reason that in such cases the question of keeping a street or highway in repair is not involved, and the matter is wholly within the control of the property owner.'

Plaintiffs in the present case argue that ownership of the land where the accident occurred is not essential here since appellant contributed to the defect and should be liable on the theory of nuisance. In addition to the Brown and Plesko Cases, respondents rely on several cases where the abutting owners were found liable for the creation or maintenance of a nuisance within the public roadway.

In Holl v. Merrill (1947), 251 Wis. 203, 28 N.W.2d 363, the court found that the abutting landowner had excavated under and around the sidewalk on several occasions in the maintenance of its lawn sprinkling system, and that this 'active interference' with the sidewalk constituted a nuisance sufficient to render it liable when the sidewalk tilted and the plaintiff fell and was injured.

In First Nat. Bank & Trust Co. v. S. C. Johnson & Sons, Inc. (1953), 264 Wis. 404, 59 N.W.2d 445, the defendant had employed a contractor to install a driveway leading onto its property. In order to do this the contractor had to break out a section of the city curb and then join it to a new one which it put in. The city curb crumbled at this point causing the plaintiff to fall. The court found the evidence sufficient to establish that the defendant's activities had caused the defect, that it was noticed by one of defendant's officers about a year before the injury occurred, and that defendant was liable on the theory of nuisance.

'We conclude...