Pagelsdorf v. Safeco Ins. Co. of America, 76-229

• Decision Date: 09 October 1979
• Docket Number: No. 76-229,76-229
• Citation: 91 Wis.2d 734,284 N.W.2d 55
• Parties: James O. PAGELSDORF and Carol L. Pagelsdorf, Plaintiffs-Appellants, v. SAFECO INSURANCE COMPANY OF AMERICA and Richard J. Mahnke, Defendants- Respondents.
• Court: Wisconsin Supreme Court

Page 55

284 N.W.2d 55

91 Wis.2d 734

James O. PAGELSDORF and Carol L. Pagelsdorf, Plaintiffs-Appellants, v. SAFECO INSURANCE COMPANY OF AMERICA and Richard J. Mahnke Defendants- Respondents.

No. 76-229.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 12, 1979.

Decided Oct. 9, 1979.

Larry B. Brueggeman, Virginia M. Antoine and Goldberg, Previant & Uelmen, S. C., Milwaukee, for plaintiffs-appellants.

Douglas J. Carroll and Arnold, Murray, O'Neill & Schimmel, Milwaukee, for defendants-respondents.

CALLOW, Justice.

We dispose of this appeal by addressing the single issue of the scope of a landlord's duty toward his tenant's invitee who in injured as a result of defective premises. Abrogating the landlord's general cloak of immunity at common law, we hold that a landlord must exercise ordinary care toward his tenant and others on the premises with permission.

The defendant Richard J. Mahnke owned a two-story, two-family duplex. There were four balcony porches: one in front and one in back of each flat. Mahnke rented the upper unit to John and Mary Katherine Blattner who lived there with their three children until Mr. Blattner left the family. Mahnke and his wife lived in the lower unit. The Blattners held the flat under an oral lease which included an agreement that Mahnke would make all necessary repairs on the premises. Mahnke worked as a mechanic for Wisconsin Electric Power Company and considered himself a good handyman.

All the railings on the porches were originally wooden, but Mahnke had begun to replace them with wrought iron as the wooden railings began to deteriorate. By May 10, 1974, wrought iron railings had been placed on the lower back porch, but the wooden railing on the upper back porch had not been replaced. The wooden railing consisted of 2 X 4's running parallel to the floor of the porch connected by 2 X 2 spacers running perpendicular to the floor. The railing sections were approximately 3 feet from top to bottom and were between 4 and 6 feet long. They were attached to upright 4 X 4's by means of nails driven at approximately a 45o angle; none of them were held in place by screws, bolts, or braces.

Mr. Blattner left the family, and in April, 1974, Mrs. Blattner left the apartment and moved with her children to Kansas. She left her furniture in the apartment and paid her rent for the month of May, having arranged with the Mahnkes to have her brothers move the furniture on May 11. On May 10, 1974, Mrs. Blattner's two brothers arrived to move her belongings to Kansas. They rented a truck and parked it behind the duplex. While moving the furniture out of the duplex, they felt they would need help with the heavier items. They asked Carol Pagelsdorf, a next-door neighbor who had been packing Mrs. Blattner's belongings, to ask her husband James to help them. He agreed to help.

While moving the bedroom furniture, Pagelsdorf and one of Mrs. Blattner's brothers felt that the box spring was too cumbersome to be taken down the back stairway. The Blattner brother decided that the best way to remove it from the apartment would be to lower it from the rear balcony to the ground. Pagelsdorf and a Blattner brother went out on the porch and visually inspected it for safety, but Pagelsdorf did not touch or shake the railings before taking the box spring out. The railings, which had been painted by Mahnke within the past two years, appeared safe. The Blattner brother and Pagelsdorf took the box spring out onto the balcony and leaned it on a railing section. They picked up the spring and leaned over the railing while passing it down to the other brother. While letting the spring down, Pagelsdorf applied pressure straight down on the railing with his body. After both men released the box spring, Pagelsdorf began to straighten up, placing his hands on the railing, and bending his knees slightly. His knees then touched the 2 X 2 spokes in the railing, and the bottom swung out as if on a hinge. The entire railing section came loose, and Pagelsdorf fell to the ground below, suffering injuries.

Mahnke testified that after the incident he examined the 4 X 4 posts and the railing section which gave way and found that the railing ends had dry rot in them. He stated that wood with dry rot would retain its form but not its strength and that this condition would not be readily visible if the wood had been painted over.

Mrs. Blattner testified that Mahnke had warned her of the railing's rotting condition prior to painting the railing. She also testified that several times she had asked Mahnke to repair the railing because it was rotting; she stated that each time Mahnke responded by telling her that he was busy and would make the repair when he had time to do so. Mahnke testified that prior to the accident he had no knowledge of the rotting condition in the railing and that neither Mrs. Blattner nor her husband ever complained to him about the condition of the railing on the back porch. However, on June 7, 1974, Mahnke gave a statement to an investigator in which he related that several times he had warned Mrs. Blattner to be careful of the upstairs porch railing because he did not trust its strength. Mahnke also testified in a deposition taken April 29, 1976, that he had warned Mrs. Blattner to keep her children off the porch because of his concerns that they would crawl over the railing and that the railing would give way. At trial, Mahnke testified that these warnings merely reflected his distrust of railings in general.

After testimony was closed, the plaintiffs contended that Pagelsdorf's status was that of an invitee of Mahnke and that the jury should be instructed that Mahnke owed him a duty to exercise ordinary care. The plaintiffs proposed a special verdict inquiring whether Mahnke was "negligent in failing to keep the guardrail in question in a reasonably good state of repair." The trial court gave Wis. J I Civil, Part I, 1005, defining negligence, but qualified that instruction as follows:

"A possessor of premises upon which he has permitted a licensee to come or remain, must exercise ordinary care to the end that proper and timely warning may be given to the licensee of hidden dangers within or upon such premises.

"A possessor has no duty to discover dangers of which he is himself unaware. His duty only is to give proper and timely warning of those dangers which are known to him, and then only as to those dangers which he realizes or, in the exercise of ordinary care, should realize, involve an unreasonable risk of causing bodily harm to the licensee."

Answering the special verdict's questions, the jury found that Mahnke had no knowledge of the railing's defective condition and, hence, apportioned no negligence to Mahnke. Following motions after verdict, the trial court entered judgment on the verdict, dismissing the Pagelsdorfs' complaint. The plaintiffs appeal.

The question on which the appeal turns is whether the trial court erred in failing to instruct the jury that Mahnke owed Pagelsdorf a duty to exercise ordinary care in maintaining the premises.

Prior to December 10, 1975, the duty of an occupier of land toward visitors on the premises was determined in Wisconsin law on a sliding scale according to the status of the visitor. To trespassers, land occupiers owed only the duty of refraining from willful and intentional injury. Copeland v. Larson, 46 Wis.2d 337, 341, 174 N.W.2d 745 (1970). A person who had permission to enter the land, but who went upon it for his own purposes rather than to further an interest of the possessor, was labeled a licensee. Toward a licensee, the occupier owed the limited duty of keeping the property safe from traps and avoiding active negligence. There was no obligation regarding dangers unknown to the possessor. Id. The highest duty that of ordinary care was owed to an invitee, one who entered the land upon business concerning the possessor and at his invitation. Id. at 342, 174 N.W.2d 745. In Antoniewicz v. Reszczynski, 70 Wis.2d 836, 854-55, 236 N.W.2d 1, 10 (1975), we abolished, prospectively the distinction between the different duties owed by an occupier to licensees and to invitees:

"It would appear, therefore, that there is little to commend the continued use of the categories of licensee or invitee in respect to the liability of the occupier of property. As we have noted, the factual distinctions between licensees and invitees are hazy and the law blurred. There is no reason why one who invites a guest to a party at his home should have less concern for that guest's safety than he has for the welfare of an insurance man who may come to the home to deliver a policy. Is the life or welfare of a friend who comes as a guest to be more lightly regarded than the life or welfare of a casual business acquaintance? To state the question is to answer it. There is no good reason why the business guest should be afforded greater protection than the social guest. Particularly in Wisconsin, where the economic-benefit theory has been discarded in respect to invitees, no logical basis for any dichotomy remains.

"While the common-law categories may have had some virtue under the feudal system of land tenures, when the lord of the land had complete and autocratic control of his property irrespective of harm to the community, such concept of land holding has long since vanished. We recognize numerous limitations upon the right to use real property, most of which are imposed by the police power."

The facts of the instant case arose before the Antoniewicz decision; the parties agree that the extent of Mahnke's duty toward Pagelsdorf turns on whether Pagelsdorf was an invitee or a licensee with respect to Mahnke. Pagelsdorf maintains he was Mahnke's invitee; if he was, the jury should have been instructed that Mahnke owed him a duty of ordinary care. The defendants contend that the trial court properly determined that Pagelsdorf was Mahnke's licensee...