Low v. Siewert

• Decision Date: 28 March 1972
• Docket Number: No. 1,1
• Citation: Low v. Siewert, 54 Wis.2d 251, 195 N.W.2d 451 (Wis. 1972)
• Parties: , 66 A.L.R.3d 198 Ruth W. LOW, Appellant, v. Helmut SLEWERT and Helga Siewert, Respondents.
• Court: Wisconsin Supreme Court

Page 451

195 N.W.2d 451

54 Wis.2d 251, 66 A.L.R.3d 198

Ruth W. LOW, Appellant, v.Helmut SLEWERT and Helga Siewert, Respondents.

No. 1.

Supreme Court of Wisconsin.

March 28, 1972.

Rehearing Denied June 6, 1972.

Ruth W. Low, the plaintiff, was injured when she fell in a parking lot at 10:00 o'clock p.m. on May 3d, 1967.She had worked late that evening for her employer, Advanced Appraisal & Real Estate, Inc., a tenant in a small office building in the city of Brookfield.On leaving she reached the front door of the building and noticed the adjacent parking lot was unlighted.Her car was parked a few feet from the door so she proceeded to her car in the darkness.She was carrying a large manilla envelope, a two-pound can of coffee, a thermos bottle, and her purse.When she neared the left-front door of her car, she fell or stumbled over some unknown object and injured her hip.

At the trial, the owners of the building, Helmut Siewert and Helga Siewert, the defendants, moved for a directed verdict which was taken under advisement by the court.After the jury returned a verdict in which it found the plaintiff 10 percent causally negligent and the defendant 90 percent, the court granted the motion and dismissed the complaint, stating the defendant owners had no notice of any lighting defect and as a matter of law the plaintiff was at least 50 percent causally negligent.Mrs. Low appeals.

Petrie, Stocking, Meixner & Zeisig, John A. Stocking, Milwaukee, for appellant.

Ames, Riordan, Crivello & Sullivan, Milwaukee, for respondent.

HALLOWS, Chief Justice.

The procedure of reserving the disposition of a motion to direct a verdict until after the jury returns its verdict is the preferred procedure.¹Although such procedure allows some hindslight with a jury's verdict and while an appeal is almost inevitable when the court differs with the verdict, at least a retrial is avoided if there is a reversal.In reviewing the granting of a motion to direct a verdict, this court must examine the evidence most favorable to the party against whom the motion is directed and if there is any evidence which will sustain his cause of action, the motion should have been denied.Kielich v. Whittaker(1924), 183 Wis. 470, 198 N.W. 270;Mueller v. O'Leary(1935), 216 Wis. 585, 257 N.W. 161;Flintrop v. Lefco(1971), 52 Wis.2d 244, 190 N.W.2d 140.

The first question is whether there was sufficient evidence of notice of the danger or defect to charge the owners of the building with negligence.There is testimony the light in the parking lot was to be left on 24 hours a day.The part-time janitor left the building in daylight at 5:30 p.m. and did not notice whether the light was on or off.Ruth Low came to work at 7:00 o'clock p.m., but the record does not show whether the light was on or off at that time, although on May 3rd it would still be light at 7:00 p.m.The light was off at 10:00 p.m.The next morning the switch was found in an off position but the light bulb was also burned out.

This is a type of defect of which an owner of a building should have some notice before he is charged with liability.Mrs. Low claims the owners have a duty to care for her safety both at common law and under the safe-place law.This is not disputed or an issue in this case.But even under the safe-place law, an owner is not an insurer of the safety of the building.Pettric v. Gridley Dairy Co.(1930), 202 Wis. 289, 232 N.W. 595;Zernia v. Capitol Court Corp.(1963), 21 Wis.2d 164, 170a, 125 N.W.2d 705;Carr v. Amusement, Inc.(1970), 47 Wis.2d 368, 177 N.W.2d 388.

The failure of the light is not such a defect as results from the active negligence of the owner or his agent, or of third persons; rather, it is a defect which results from passive negligence or an omission to act on the part of the owner or his agent.Where the faulty condition exists for an unreasonable time because of the failure to discover it by the owner when he should have or a failure to correct the condition after actual notice, negligence is predicated upon failure to correct the defect.Kosnar v. J. C. Penney Co.(1959), 6 Wis.2d 238, 94 N.W.2d 642;Lundgren v. Gimbel Bros.(1927), 191 Wis. 521, 210 N.W. 678;Pettric v. Gridley Dairy Co., supra;Sposito v. Seitz(1964), 23 Wis.2d 159, 127 N.W.2d 43;Merriman v. Cash-Way, Inc.(1967), 35 Wis.2d 112, 150 N.W.2d 472.Of course, where a defect or a dangerous condition is caused by the affirmative acts of the owner or his agent, he needs no notice because he has knowledge of his acts creating the hazard.Pettric v. Gridley Dairy Co., supra;Kosnar v. J. C. Penney Co., supra;Merriman v. Cash-Way, Inc., supra;Turk v. H. C. Prange Co.(1963), 18 Wis.2d 547, 119 N.W.2d 365.

The instant case is distinguished from Strack v. Great Atlantic & Pacific Tea Co.(1967), 35 Wis.2d 51, 150 N.W.2d 361, andSteinhorst v. H. C. Prange Co.(1970), 48 Wis.2d 679, 180 N.W.2d 525.In those cases the owner of the premises was conducting his business in such a manner the defect or dangerous condition occasioned by customers should have been anticipated.In such cases an owner may rightly be charged with notice after a very short period of time, while defects arising out of failure of electric lights to burn and other similar conditions of neglectful maintenance must exist for a longer period of time before the owner should be charged with notice.

Here, there is no evidence of how long the light remained out; it may have failed during the day or shortly before 10:00 p.m.This court is not prepared to hold that an owner of property must make an hourly inspection to discover burned out light bulbs on a parking lot.²This is not a case in which the owner had reason to expect the bulb to burn out or to be turned out by third par...