LePoidevin by Dye v. Wilson

• Decision Date: 01 March 1983
• Citation: 111 Wis.2d 116,330 N.W.2d 555
• Parties: , 47 A.L.R.4th 247 Linda J. LePOIDEVIN, a minor, By William E. DYE, her guardian ad litem, and John S. LePoidevin, Plaintiffs-Appellants-Petitioners, v. Robert G. WILSON, Jr., Western Casualty & Surety Company, a foreign insurance corporation, and Maryland Casualty Company, a foreign insurance corporation, Defendants-Respondents. 81-014.
• Court: Wisconsin Supreme Court

Page 555

330 N.W.2d 555

111 Wis.2d 116, 47 A.L.R.4th 247

Linda J. LePOIDEVIN, a minor, By William E. DYE, her guardian ad litem, and John S. LePoidevin Plaintiffs-Appellants-Petitioners, v. Robert G. WILSON, Jr., Western Casualty & Surety Company, a foreign insurance corporation, and Maryland Casualty Company, a foreign insurance corporation, Defendants-Respondents.

81-014.

Supreme Court of Wisconsin.

Argued Feb. 4, 1983.

Decided March 1, 1983.

John V. Whaley (argued), Racine, for plaintiffs-petitioners; William E. Dye, Racine, on brief.

Dexter D. Black and Brown & Black, Racine, on brief for Robert G. Wilson, Jr., and Western Cas. & Sur.

Michael Lund (argued), Milwaukee, for Robert G. Wilson, Jr., and Maryland Cas Co.; Robert D. Scott and Frisch, Dudek & Slattery, Ltd., Milwaukee, on brief.

ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed May 24, 1982, affirming a judgment of the circuit court for Racine county, James Wilbershide, circuit judge. The circuit court sustained a demurrer to the amended complaint and dismissed plaintiff's action seeking damages for personal injuries suffered when plaintiff dived from a defendant's pier into shallow water. The circuit court held that the amended complaint did not state a cause of action for negligence because a landowner does not owe a duty of ordinary care to a licensee and that the amended complaint did not allege facts constituting a cause of action for active negligence which is required to render a landowner liable to a licensee. The court of appeals affirmed the judgment of the circuit court holding that the conduct described in the complaint does not constitute active negligence and that the shallow water was not a "trap" triggering a duty to warn on the part of the landowner. We hold that the complaint states a cause of action, and accordingly we reverse the decision of the court of appeals, 107 Wis.2d 745, 322 N.W.2d 699, and the judgment of the circuit court and remand the cause to the circuit court.

On July 20, 1974, plaintiff Linda LePoidevin, nearly 17 years of age, was injured when she dived into water three feet deep from a pier along the property owned by Robert G. Wilson, Jr. (hereafter referred to as Wilson), and several other persons. Plaintiff commenced the action in 1975 against Wilson and six others, who jointly owned, kept, and maintained the 60-foot pier on the lake, and their insurers. ¹

Because this case is here at the pleading stage, the relevant facts are those stated in the amended complaint. The amended complaint alleges that on July 20, 1974, Wilson's 17-year-old son Bob brought the plaintiff to Wilson's cottage near Bohner's Lake in Racine County. Wilson and six other property owners owned an easement leading to the lake and a pier extending 60 feet into the lake. Bob's mother (to whom, according to the complaint, Wilson had delegated the authority to permit guests to visit and to select chaperones) had given Bob permission to take plaintiff swimming on condition that Wilson's adult son-in-law Larry and his wife, who were occupying the Wilson cottage as residents, would act as chaperones. The plaintiff had not previously been swimming in this lake.

On arrival at the cottage, Bob and Larry went down to the lake, and the plaintiff followed shortly. For some 15 or 20 minutes the plaintiff stood or sat on the pier, holding a towel in front of her to conceal her bikini bathing suit, while Bob and Larry ridiculed, taunted, and challenged her to enter the water. Larry allegedly approached Linda from behind and without warning grabbed the towel from her. Larry's act caused the plaintiff to become "surprised, startled, frightened, distracted, and greatly embarrassed," and being unaware of the shallow water, she plunged immediately and instinctively headfirst into Bohner's Lake, struck bottom, and was seriously injured.

The amended complaint alleges that Wilson and the other owners were negligent in failing to erect any signs warning of shallow water. The amended complaint further asserts that Larry and Bob were negligent in taunting and challenging the plaintiff to enter the water without warning her of its shallowness, that Larry was negligent in grabbing her towel and so startling and embarrassing her as to prompt her to plunge instinctively into shallow water when he knew or should have known the consequences of his act, and that Bob acted negligently when he failed to warn plaintiff of Larry's approach and failed to admonish Larry to refrain from grabbing the towel. And finally, the amended complaint alleges that as chaperone Larry was an agent of Wilson, ² that Wilson is vicariously liable for Larry's negligence, and that Larry and Bob were additional insureds under Wilson's insurance policy. ³ Neither Bob nor Larry is named as a defendant. Wilson and Wilson's insurers are the defendants.

In briefs and in oral argument before this court the plaintiff discussed the duty of care owed by Wilson to plaintiff and whether the acts of Larry and Bob as set forth in the complaint constituted active negligence. None of the parties argued in briefs before this court whether Larry was an agent of Wilson, whether Larry and Bob were additional insureds under Wilson's policy, or whether the shallow water into which plaintiff dived was a "trap". This court will accordingly confine its review to the issues raised by the parties, that is, whether the amended complaint sets forth a cause of action for personal injury based on acts constituting either active negligence or negligence ⁴ and whether sec. 29.68, Stats. 1975, bars plaintiff's claim.

The purpose of a demurrer is to test the legal sufficiency of the complaint. The demurrer admits all facts pleaded and on review of a complaint upon demurrer, the court will determine whether the complaint states facts which constitute a cause of action as a matter of law. Because on demurrer the issue before the court is one of law, this court need not give special deference to the determination of the circuit court or the court of appeals. First National Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977). The complaint will be construed liberally, and the court will uphold the complaint if it expressly or by reasonable inference states any cause of action. Scheeler v. Bahr, 41 Wis.2d 473, 476, 164 N.W.2d 310 (1969).

In 1974 when the injury in this case occurred the duty of a landowner or occupier (hereafter referred to as landowner) to a person injured on the land varied with the status of the person who suffered the injury--that is, whether the person was a trespasser, licensee, or invitee. In stating her cause of action the plaintiff here recognizes that she was on the land as a social guest and that, in the parlance of tort law, she was a licensee. Szafranski v. Radetsky, 31 Wis.2d 119, 126, 141 N.W.2d 902 (1966). The landowner or occupier might be liable for injuries to a licensee in two situations--when the injury was caused by a "trap" on the premises concealed from the licensee but known to the landowner or when the injury was caused by the active negligence of the landowner. Szafranski v. Radetzky, 31 Wis.2d 119, 125, 126, 127, 141 N.W.2d 902 (1966).

As we explained before, we will not discuss the question of "trap," because it is not raised or briefed in this court. The question therefore is whether the conduct alleged in the complaint constitutes "active negligence" making Wilson or the insureds liable for injury to the plaintiff licensee.

In landowner-licensee cases "active negligence" is to be distinguished from a condition of the premises. Although a landowner does not owe a duty of ordinary care to a licensee as to the condition of the premises, a landowner who carries on an affirmative act, an active operation or activity, does have an obligation to exercise ordinary care for the protection of a licensee. ⁵ In Kaslo v. Hahn, 36 Wis.2d 87, 153 N.W.2d 33 (1967), a case involving a hip injury caused by a licensee's falling over a shoe scraper attached to a patio, the question arose whether the defendant's act of affixing the shoe scraper to the patio eleven years before the injury constituted "active negligence." In holding that the act of affixing the shoe scraper was not active negligence, the court explained the distinction between "active negligence" and a condition of the premises as follows:

"The term 'active negligence' then, as used in licensor-licensee cases, connotes the carrying on of some operation or activity in a negligent manner....

"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." Kaslo v. Hahn, 36 Wis.2d 87, 92-93, 153 N.W.2d 33 (1967).

The court has said that the following activities were "active negligence" triggering the landowner's duty to exercise ordinary care for the protection of the licensee: storage and handling of explosives resulting in an explosion injuring guests, Szafranski v. Radetzky, 31 Wis.2d 119, 141 N.W.2d 902 (1966); the owner's employee hitting a licensee in the head with a pipe, Cermak v. Milwaukee Air Power Pump Co., 192 Wis. 44, 211 N.W. 354 (1927); coal hoist operated by owner's agents striking a licensee, Taylor v. Northern Coal Dock Co., 161 Wis. 223, 152 N.W. 465 (1915); landowner injuring licensee while driving truck on own land, Baumgart v. Spierings, 2 Wis.2d 289, 86...