Lloyd v. S. S. Kresge Co.

• Decision Date: 16 August 1978
• Docket Number: K-MART,No. 77-359,77-359
• Citation: 85 Wis.2d 296,270 N.W.2d 423
• Parties: Willie Mae LLOYD, Plaintiff-Appellant, v. S. S. KRESGE COMPANY, d/b/a, a Foreign Corporation, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 423

270 N.W.2d 423

85 Wis.2d 296

Willie Mae LLOYD, Plaintiff-Appellant, v. S. S. KRESGE COMPANY, d/b/a K-MART, a Foreign Corporation Defendant-Respondent.

No. 77-359.

Court of Appeals of Wisconsin.

Submitted on Briefs July 5, 1978.

Opinion Released Aug. 16, 1978.

Opinion Filed Aug. 16, 1978.

Action for personal injuries commenced by appellant Willie Mae Lloyd (hereinafter Lloyd) against respondent, S. S. Kresge Company doing business as K-Mart (hereinafter K-Mart or defendant).

On November 27, 1974, Willie Mae Lloyd was a shopping customer at defendant's store located at 4601 South 27th Street, Milwaukee, Wisconsin. Lloyd's affidavit stated that at the time she entered the K-Mart, she had a cold and was feeling poorly, but not poorly enough not to go out. However, while in the store and near closing time, she was taken with a chill and fever. Lloyd's daughter was to pick her up at the store around closing time.

As the store was closing, Lloyd was still in the store as her ride had not yet arrived. As Lloyd stood between the exit doors and the inner doors, she was approached by K-Mart personnel who requested she leave. Lloyd asked to be allowed to stay in that area until her daughter arrived, as she was not feeling well and was running a temperature. Lloyd further stated that if she went outside to wait, there was a possibility she would be chilled to the bone and become seriously ill. Lloyd stated that because she was threatened with physical removal, she stood outside the exit doors 5 or 10 minutes until her daughter picked her up. During this period of time, the store lights were on and people were still in the store. Lloyd further states that as a result of being forced out of the store, she was required to seek medical treatment for upper respiratory infection, subsequently was hospitalized for the same from December 12, 1974 to January 15, 1975 for acute bronchitis.

The temperature, according to the U.S. Department of Commerce, National Weather Service, Local Climatological Data Sheet for Milwaukee, Wisconsin, November 27, 1974, ranged from a maximum of 37 degrees Fahrenheit to a minimum of 28 degrees Fahrenheit.

Shirley Pierce, personnel supervisor of the K-Mart store on duty at the time involved, states in her affidavit that it is a rule of K-Mart that cash registers may not be closed until all the customers leave the store; that Lloyd did not leave the store when requested but stayed in the vestibule between the inner and outer doors of the store; that there are no locks on the inner doors. She further stated that all non-employees had left the store with the exception of Lloyd, who refused to leave when asked; that after several requests to leave and after being advised of the store rules Lloyd left; that Lloyd did not appear to be ill, in distress, or otherwise disabled.

Robert A. Cowels, a K-Mart area supervisor and merchandising manager of the store, tendered an affidavit, that he was present when the store manager, on several occasions, requested Lloyd to leave; that when Lloyd left she did not appear to be ill, in distress, or otherwise disabled.

The defendant moved to dismiss the amended complaint, pursuant to sec. 802.06(2)(f), Stats., on the grounds that the complaint failed to state a claim upon which relief can be granted. Counsel for the parties were advised that the trial court would treat the motion as a motion for summary judgment under secs. 802.06(2) and 802.08, Stats. Affidavits and written briefs were filed pursuant to a schedule. Summary judgment was granted to the defendant on an oral decision. There is no transcript of the oral decision as the court reporter could not be located. The parties to this appeal have agreed to limit themselves to the facts as they appear in the record.

Marvin Resnick and Richard H. Hart, Jr., Milwaukee, on the briefs, for the appellant.

Kluwin, Dunphy, Hankin & McNulty, Milwaukee, on the brief, for respondent.

Before DECKER, C. J., CANNON, P. J. and MOSER, J.

MOSER, Judge.

The sole issue presented on this appeal is whether the trial court erred in granting defendant's motion for summary judgment.

The Supreme Court of Wisconsin has repeatedly stated the methodology which should be employed by the courts in determining whether the case before them should be disposed of by summary judgment procedure.

" . . . That 'precise methodology' has been set out in Marshall v. Miles (1972), 54 Wis.2d 155, 160, 161, 194 N.W.2d 630, . . . as follows:

" 'Summary judgment is a drastic remedy that should not be granted where material evidentiary facts are in dispute, or, where reasonable inferences can be drawn from undisputed facts that would lead to alternative and opposite results. The summary-judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. However, the allegations of the pleadings may not be considered as evidence or other proof on a disposition of the motion. Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendant's) affidavits and other proof to determine whether a prima facie defense has been established. If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. The summary judgment procedure is not a trial on affidavits.' " Ricchio v. Oberst, 76 Wis.2d 545, 550-551, 251 N.W.2d 781, 784 (1977).

See also Hammes v. First Nat'l Bank & Trust Co., 79 Wis.2d 355, 370, 255 N.W.2d 555 (1977); Howard v. Village of Elm Grove, 80 Wis.2d 33, 37, 257 N.W.2d 850 (1977).

Applying this methodology to the instant case, it is clear that the plaintiff's amended complaint states a cause of action for damages for injuries resulting from negligence. In order to constitute a cause of action in negligence there must exist: (1) a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury, and (4) an actual loss or damage as a result of the injury. Coffey v. Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132 (1976).

The amended complaint herein states that Lloyd, an invitee shopper, remained in the store vestibule rather than go outside to wait for a ride home as she had a cold and felt ill; that store personnel told her she had to wait outside even though she advised them of her problems; that store personnel negligently insisted on Lloyd's waiting outside the building; and that as a direct and proximate result of such negligence she contracted a respiratory ailment and other injuries to her damage. The complaint meets the test of Coffey v. Milwaukee, supra.

The defendant contends that the trial court ruled as a matter of law that there was no duty of care in that the acts of the defendant's employees were such that there was no foreseeability of harm in ejecting the plaintiff from the premises. We do not have the advantage of a transcript of such ruling. We hold that a storekeeper is under a duty to his customer to render aid to the customer after he knows or has reason to know that the customer is ill or injured and to care for the customer until she can be cared for by others. Restatement (Second) of Torts sec. 314A (1965) states:

314A Special Relations Giving Rise to a Duty to Aid or Protect

"(1) A common carrier is under a duty to his passengers to take reasonable action,

"(a) To protect them against unreasonable risk of physical harm, and

"(b) To give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others . . .

"(3) A possessor of lands who holds it open to the public is under a similar duty to members of the public who enter in response to its invitation."

The defendant's employees were informed of plaintiff's condition. Once an employee becomes aware of illness of an invitee, the duty of care espoused in Restatement (Second) of Torts sec. 314A (1965) is applicable.

We believe that sec. 314A states a valid rule of law, one whose adoption is warranted by previous decisions of the Wisconsin Supreme Court.

The general rule of law which is applicable to the present case is stated in 65 C.J.S. Negligence § 63(106) (1966):

"One who sees another in peril, for which he is in no way responsible and which is entirely disconnected from any agency or instrumentality with whose control he is concerned, is not under any legal obligation to attempt to rescue or assist such person, and he need not exercise care to protect such person against the hazards of the perilous situation. However, when some special relation exists between the parties, social policy may justify the imposition of a duty to Assist or rescue one in peril." (emphasis added)

See also Restatement (Second) of Torts sec. 314 (1965); Mercy Medical Center v. Winnebago County, 58 Wis.2d 260, 266, 206 N.W.2d 198 (1973).

Section 314A defined some of those special relations giving rise to the affirmative duty to render assistance. We believe that there are two social policy considerations justifying imposition of the duty when the denominated relationships exist between parties.

First, when the relationship of passenger and carrier exists, the movement of the conveyance involved precludes the passenger from seeking out assistance from anyone other than his fellow passengers and the employees of the carrier. See Lakeshore & M. S. R. Co. v. Salzman, 52 Ohio St. 558, 565-566, 40 N.E. 891 (1895). However, this rationale has limited applicability to the relationship of storeowner and customer and we do not rely upon it.

We believe that the second social...