Mariuzza v. Kenower

• Decision Date: 06 May 1975
• Docket Number: No. 388,388
• Citation: 228 N.W.2d 702,68 Wis.2d 321
• Parties: Theresa MARIUZZA, Appellant, v. Sharon Mae KENOWER, Individually and as the special admnx. of the Estate ofJames Sanford Kenower, Deceased, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 702

228 N.W.2d 702

68 Wis.2d 321

Theresa MARIUZZA, Appellant, v. Sharon Mae KENOWER, Individually and as the special admnx of the Estate ofJames Sanford Kenower, Deceased et al., Respondents.

No. 388.

Supreme Court of Wisconsin.

May 6, 1975.

On February 21, 1970, the plaintiff-appellant, Theresa Mariuzza, was invited to a card party at the rented home of James and Sharon Kenower. Upon attempting to descend a flight of steps to the kitchen entrance, the plaintiff, carrying a folded chair under one arm and a purse under the other, slipped on a patch of ice and sustained injuries to her leg.

On October 11, 1971, plaintiff filed a negligence action against Sharon Mae Kenower, individually and as special administratrix of the estate of her husband, James Sanford Kenower, deceased; Milwaukee Mutual Insurance Company, issuer of an insurance policy to Sharon and James Kenower; Edward Braun, the owner and lessor of the premises involved in the accident; and United States Fidelity and Guaranty Company, the issuer of an insurance policy to Edward Braun. Defendants answered, denying liability and asserting contributory negligence on the part of the plaintiff as a defense. Additionally, defendants Kenower and Milwaukee Mutual cross-complained against defendants Braun and United States Fidelity for contribution and for indemnification.

The evidence adduced at trial may be summarized as follows: Plaintiff was in Sturgeon Bay as a weekend guest of Mr. and Mrs. Blaine Dreutzer who, along with the plaintiff, had been invited to the Kenower home for a card party. When the Dreutzers and plaintiff arrived at the Kenower home at approximately 9:00 p.m., plaintiff observed that there was snow on the ground, that it had been clear and thawing during the day, and that it had gotten cooler during the evening so that '. . . the water wasn't running like it had been during the day.' The enterance to the home consisted of a cement landing with two steps up to the front door and three steps, another platform, and one or two more steps leading down to the kitchen door. As plaintiff started to walk down these steps, with the folded chair under one arm and her purse under the other, she slipped and fell.

As to plaintiff's observing the ice on the stairway, she gave varying testimony. She testified that she didn't look to see if there was ice or snow and that she looked at the steps and didn't see anything. At trial she testified that she '. . . did not see the ice until after I had fallen and felt the ice.' An insurance claims adjuster testified that, on March 10, 1970, plaintiff gave him a statement concerning the fall wherein she stated: '. . . I just saw the little bit of ice and I started placing my one foot there. . . .' Asked whether she noticed the ice on the one step, the adjuster testified that plaintiff answered 'Yes.'

As to the lighting of the rear stairway, plaintiff testified that there was only a dim light from a bare bulb that was located about twenty feet from the steps and that it did not completely illuminate the steps. Defendant Sharon Kenower testified that a 60 or 100 watt bulb was used, and that the steps were also illuminated by light from the kitchen windows.

As to the tenants' knowledge of the ice on the steps, defendant Sharon Kenower testified that her husband chipped ice from the stairs and spread salt several times during the day. At approximately 8:15 p.m., Donald Haglin, brother of defendant Sharon Kenower, arrived and noticed ice on the rear steps, and, at the request of James Kenower, he chipped it off and salted the stairs. About a half-hour later, Haglin checked the stairs again, found no ice on them but again put salt on the steps. Sometime between 8:00 and 9:00 p.m., James Kenower telephoned the Dreutzers, asking them to bring some folding chairs, and warning them of the slippery conditions.

As to the reason for the ice forming on the rear steps, it appears that the ice formed either from water dripping off the roof or from water running out of a crack in the retaining wall next to the rear stairway. The Kenowers first noticed the crack on the day of the accident. Sharon Kenower testified that there were no gutters on the roof, and that it was usual for water to drip down. The Kenowers had rented or leased the property from Edward Braun approximately one year prior to the accident. Mr. Braun, who lived in California, did some maintenance work on the property during the summer months when he returned to Door county from California.

Trial to a jury resulted in a special verdict finding the plaintiff, as well as defendants James and Sharon Kenower and Edward Braun, to be causally negligent. The negligence was apportioned by the jury as follows: 40 percent to the Kenowers, 40 percent to the plaintiff, and 20 percent to defendant Edward Braun. Pursuant to the provisions of sec. 895.045, Stats., 1969, in effect at the time of the accident, judgment on the verdict was entered by the trial court, dismissing both the complaint of plaintiff and the cross-complaint of defendants Kenower and Milwaukee Mutual. Plaintiff appeals from the judgment dismissing her complaint.

Herbert L. Usow, S.C., Milwaukee, for appellant.

Jury, Nelson & Bayorgeon, Appleton, for Sharon Mae Kenower, and others and Milwaukee Mut. Ins. Co.

James C. Pankratz, Sturgeon Bay, for Sharon Mae Kenower, and others.

Everson, Whitney, Everson, Brehm & Pfankuch, Green Bay, for Braun and United States Fidelity & Guaranty Co.

ROBERT W. HANSEN, Justice.

Two issues are raised by this appeal.

COMBINED NEGLIGENCES. Appellant's contention that the negligence of the tenant and landowner should have been combined for purposes of comparison with the negligence of the plaintiff fails for two reasons:

(1) The required basis for such combinging does not here exist. The general rule in this state is that the comparison of negligence in a multiple-defendant case is 'required to be between the plaintiff and the individual defendants.' ¹ The sole exception arising in a case where the negligence of parents was involved, ² is limited to situations where the duty involved '. . . was joint, the opportunity to protect was equal, and as a matter of law neither the obligation nor the breach of it was divisible.' ³ It is not only the duty to maintain the driveway, this court said in Schwenn, but also the opportunity to maintain it in a safe condition that must be equal for the exception to apply. ⁴ In the case before, us, not only would the duties, particularly as to warning a guest of ice on the rear steps, be different as between tenant and landlord, but the opportunities to remove the ice or warn the guest were not equal between the tenant on the premises and the landlord living in California. There was no error here in not combining the negligence of tenant and landlord for purposes of comparison with the negligence of the plaintiff. Under Schwenn, it would have been error to do so.

(2) The request for a combining of negligence was not timely made. It was on motions after verdict that plaintiff's counsel first claimed that the negligence of tenant and landlord related to their single and joint act of maintaining a trap on the premises. The trial court then said: 'The case was not tried or submitted to the jury under such theory of negligence. Plaintiff's counsel never made any request to have the jury apportion negligence only between the defendants, combined, and the plaintiff. It was not claimed by plaintiff's counsel when the Special Verdict was being considered and framed by the Court, and counsel, upon conclusion of the trial, that the negligence of all defendants combined should be compared with the negligence of the plaintiff.' Where there was agreement between court and counsel, or where there is an absence of objection, as to instructions and form of verdict, the cases goes to the jury under such instructions and for the return of such verdict. ⁵ Here the case went to the jury, following instructions as to duties owed by the landlord and the tenant, and with directions to the jury to determine whether or not such several duties had been separately breached by the tenant or the landlord or both. Plaintiff here was not entitled to change his game plan after the verdict was returned and argue a theory of the case different from that contained in the complaint, instructions and form of verdict. On the instructions given and form of verdict used, plaintiff had no right to have the negligence of the two defendants combined, and, on the theory of a single act and duty being alone involved, the claim of right to have the negligence of tenant and landlord combined was belatedly raised.

CONTRIBUTORY NEGLIGENCE. Appellant's contention that the jury was not entitled to find her guilty of contributory negligence fails in two particulars:

(1) As a matter of law, plaintiff could be found guilty of contributory negligence. Even under the instructions given and form of verdict used, plaintiff's counsel contends that the jury verdict, finding plaintiff guilty of 40 percent causal negligence, cannot stand. The argument goes as follows: The plaintiff was a social guest of the tenant, so the relationship between the parties was that of licensee-licensor. ⁶ As a licensor, the liability of the host is for 'active negligence' or for injuries caused by a 'trap' on the premises. ⁷ Here there is no allegation of 'active negligence,' nor basis for such claim. ⁸ So liability of the licensor here must be predicated upon the 'trap' theory of liability. A 'trap' arises when the licensor ". . . fails to disclose to the licensee a known but concealed danger." ⁹ Therefore, counsel argues, if the ice on the rear steps was not a concealed danger, it was not a 'trap.' If the ice on the steps was cuch concealed danger, the guest could not know it was there and cannot be found contributorily negligent. The logic carries plaintiff a ways, but not far enough to...