Ollhoff v. Peck
| Decision Date | 15 June 1993 |
| Docket Number | No. 92-2900,92-2900 |
| Citation | 177 Wis.2d 719,503 N.W.2d 323 |
| Parties | David OLLHOFF and Kathy Ollhoff, Plaintiffs-Appellants, d v. Jim PECK d/b/a Jim Peck's Wildwood, Peck's Wildwood, Inc., and Essex Insurance Company, Defendants-Respondents, Employers Insurance of Wausau, a Mutual Company, Defendant. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
David and Kathy Ollhoff appeal a judgment and orders denying them summary judgment, refusing to allow evidence of remedial measures and refusing to set aside the jury verdict. They argue that (1) strict liability should have applied against the defendants because they housed "wild" animals, (2) the trial court erred by refusing to allow the Ollhoffs to present evidence of remedial measures and (3) the trial court should have set aside the verdict as perverse. We reject these arguments and affirm.
David Ollhoff and his family visited Jim Peck's Wildwood, Inc., a nature park that includes a petting zoo and a musky pond. During this trip, Ollhoff was bitten while reaching into the musky pond to pet a musky. Ollhoff sued Wildwood under negligence, safe place and strict liability theories. Before trial, the court denied summary judgment to both sides and dismissed Ollhoff's strict liability claim with prejudice. The case proceeded to trial, during which the court granted Wildwood's motion in limine excluding evidence that Wildwood placed warning signs near the musky pond after the accident. The jury returned a verdict finding Wildwood 10% causally negligent and Ollhoff 90% causally negligent. Ollhoff's postverdict motions were heard and denied and he appealed.
When we review a decision to grant or deny summary judgment, we apply the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Thus, summary judgment should be granted if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats.
Ollhoff argues that Wildwood should be held to a standard of strict liability, and thus Ollhoff is entitled to judgment as a matter of law. He cites treatises and foreign state case law that indicates the possessors of wild animals are strictly liable for physical harm caused by the animals. W. PAGE, KEETON, ET AL., PROSSER AND KEATON ON THE LAW OF TORTS, § 77, at 542 (5th ed. 1984); Briley v. Mitchell, 115 So.2d 851 (La.1959), on remand, 119 So.2d 668 (La.App.1960). The Wisconsin legislature has not adopted a strict liability rule for all "wild animals." Rather, it has established strict liability causes of action only for particular types of animals. See sec. 172.01, Stats. (stallions, bulls, boars, rams and billy goats allowed to run at large); sec. 174.02, Stats. (dogs). It has not established strict liability for damages caused by other animals, such as a musky.
Wildwood argues that the liability of the owner or keeper of an animal is controlled by Wis Jury Instruction--Civil 1391, which states:
An owner (keeper) of a(n) (insert name of animal ) is deemed to be aware of the natural traits and habits which are usual to a(n) (animal ), and must use ordinary care to restrain and control the animal so that it will not in the exercise of its natural traits and habits cause injury or damage to the person or property of another.
In addition, if an owner (keeper) is aware or in the exercise of ordinary care should be aware that the animal possesses any unusual traits or habits that would be likely to result in injury or damage, then the owner (keeper) must Wildwood asserts that this instruction appropriately establishes a duty of care that expands or contracts depending on the specific traits of the particular animal involved and the general characteristics of the class to which the animal belongs. We agree. Although we are not bound by the jury instructions, we view them as persuasive. State v. O'Neil, 141 Wis.2d 535, 541 n. 1, 416 N.W.2d 77, 80 n. 1 (Ct.App.1987). In the absence of statutorily created strict liability, the liability of owners or keepers of all animals should be governed by the law as stated in Wis. Jury Instruction--Civil 1391. The instruction correctly does not distinguish between domesticated and wild animals, but rather instructs the jury to hold owners of animals to the appropriate standard of care given the nature of the animal involved.
use ordinary care to [177 Wis.2d 724] restrain the animal as necessary to prevent the injury or damage.
Whether Wildwood violated that standard of care was a jury issue. Therefore, the trial court correctly denied Ollhoff's motion for summary judgment.
At the time of the accident, there were no warning signs at the musky pond. After the accident, Wildwood placed warning signs at the pond. The trial court granted Wildwood's motion in limine and prohibited Ollhoff from mentioning at trial the subsequent placement of the signs. Our review of an evidentiary ruling is limited to determining whether the trial court properly exercised its discretion. Chomicki v. Wittekind, 128 Wis.2d 188, 195, 381 N.W.2d 561, 564 (Ct.App.1985). We will affirm the trial court if it (1) examined the relevant facts, (2) applied a proper standard of law and (3) using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).
Ollhoff argues that this subsequent remedial act could have been admitted under sec. 904.07, Stats. This section states:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another...
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