Rockweit by Donohue v. Senecal

Decision Date06 September 1995
Docket NumberNo. 93-1130,93-1130
Citation541 N.W.2d 742,197 Wis.2d 409
PartiesAnthony C. ROCKWEIT, a minor, by Jerald P. DONOHUE, his guardian ad litem, Plaintiffs-Appellants-Cross Respondents, United Wisconsin Proservices, Inc., Plaintiff, v. William SENECAL, d/b/a Evergreen Campgrounds, Truck Insurance Exchange and Keith Rockweit, Defendants, Mary Rockweit, Defendant-Respondent. Ann TYNAN and Wisconsin Farmers Mutual Insurance Group, Defendants-Third Party Plaintiffs-Respondents-Cross Appellants-Petitioners, v. Christine ROCKWEIT, Third Party Defendant. . Oral Argument
CourtWisconsin Supreme Court

For the defendants-third party plaintiffs-respondents-cross appellants-petitioners there were briefs by Thomas A. Lorenson, David J. Colwin and Colwin & Lorenson, S.C., Fond du Lac, and oral argument by Thomas A. Lorenson.

For the plaintiffs-appellants-cross respondents there was a brief by Jerald P. Donohue and Donohue, Sharpe & Casper, S.C., Fond du Lac and oral argument by Jerald P. Donohue.

WILCOX, Justice.

This case involves a review of a published decision by the court of appeals which reversed in part a judgment of the circuit court for Fond du Lac County, Peter L. Grimm, Judge. See Rockweit v. Senecal, 187 Wis.2d 170, 522 N.W.2d 575 (Ct.App.1994). The plaintiff-cross-respondent Anthony C. Rockweit (Anthony), by his guardian ad litem, alleged that the defendant-petitioner Ann Tynan (Tynan) was negligent in failing to extinguish hot embers from a campfire contained in a fire pit into which he subsequently fell, causing severe injuries. Following a trial, a jury determined that Tynan was seven percent causally negligent. On motions after verdict, the trial court granted a directed verdict to Tynan and her insurer on the ground that she had no duty to warn of or remedy the hazard presented by the fire pit. The court of appeals reversed, concluding that Tynan owed a common law duty to Anthony and sufficient credible evidence existed for the jury to conclude that Tynan was negligent in failing to extinguish the campfire.

On review, we consider the following issue: Whether a guest at a campfire, who did not participate in the creation or maintenance of the fire, could be held negligent in failing to extinguish it.

We conclude that although Tynan owed Anthony a duty of ordinary care which the jury determined was breached, we find that imposing liability on Tynan in this case would contravene public policy. We therefore reverse the court of appeals on this issue.


The relevant facts are as follows. The minor, eighteen month old Anthony, sustained injuries when he fell into a fire pit at the Evergreen Campgrounds located in Wild Rose, Wisconsin, on June 26, 1988. The campground was owned and operated by William Senecal. Anthony and his parents, Keith and Christine Rockweit, were camping at the Evergreen Campgrounds during the weekend of June 24-26, 1988. The camping group consisted of various members of the extended Rockweit family, as well as several other families that were friends of the Rockweits. Several Rockweit family members were camped in contiguous campsites at the Evergreen. Tynan, a family friend of the Rockweits, was present at the same campground with her husband and children. The Tynans, however, occupied their own campsite several sites away from the Rockweits and on the opposite side of the road.

All of the members of the camping group, except the plaintiff Anthony and his family, arrived at the Evergreen Campgrounds on Friday, June 24, 1988. The Rockweit families selected one of the fire pits centrally located among the campsites to be utilized by the group throughout the weekend. Although the court of appeals termed this particular campfire a "communal fire pit," it should be noted that Tynan was not part of this communal camping group. 1 She did not participate in selecting this site, nor did she exercise any control or maintenance over starting and managing the fire itself. That night, Tynan and her family stayed in their own campsite and maintained their own, independent fire pit. Throughout the weekend, Tynan and her family prepared all of their meals at their own campsite, utilizing their own fire pit. On Saturday, the Tynans spent a large portion of the day at the beach, socializing with the Rockweits, most of whom they had known for several years. At some point during the day, a member of the Rockweit family invited the Tynans to their campsite that evening.

The Keith Rockweit family arrived at Evergreen on Saturday afternoon. Due to the overcrowded nature of the campground that weekend, he shared a campsite with his brother's family. Keith Rockweit pitched the family tent approximately 15-to-20 feet from the communal fire pit, which was already burning upon their arrival.

While some of the families cooked their dinner over the communal fire pit that night, Tynan had dinner at her own campsite and later joined the rest of the Rockweit group around the fire pit. She had no connection to the communal fire pit other than as a guest of the Rockweits that evening. Tynan did not maintain the fire pit in any manner, nor provide any necessary materials to fuel it at any time during her visit. Tynan remained at the Rockweit campsite playing cards and socializing until nearly 4:00 a.m. on Sunday. At this point, the only campers remaining around the fire pit were Tynan, Keith Rockweit and the defendant-respondent Mary Rockweit. When Keith Rockweit announced that he was going to bed, the others also left to return to their respective tents. Tynan's campsite was a short walk down the road. As noted by the court of appeals, 2 it was unclear as to the condition of the embers in the fire pit. Regardless, the three individuals left without extinguishing the smoldering embers.

Several hours later, Anthony got up with his mother, Christine Rockweit. As they walked across the campsite, he slid into the fire pit and was severely injured. The circular fire pit had been built into the ground, its rim flush to the ground. There were no rocks or other barriers around the fire pit for protective purposes.

A personal injury action was brought against the Evergreen Campgrounds and its insurer Truck Insurance Exchange, Keith Rockweit, Mary Rockweit, and Tynan and her insurer, Wisconsin Farmers Mutual Insurance Group. Christine, Anthony's mother, was impleaded as a third-party defendant by Tynan and her insurer. Prior to trial, Anthony executed a Pierringer release with Evergreen and its insurer, settling the claim for maintaining an unsafe fire pit for $50,000, releasing the campground from any further liability. See Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963).

Following the trial, the defendants were found causally negligent, with liability apportioned by the jury as follows:

                William Senecal (Evergreen Campgrounds)   16%
                Keith Rockweit                            36%
                Christine Rockweit                        35%
                Ann Tynan                                  7%
                Mary Rockweit                              6%

The jury also found that the fire pit constituted an open and obvious danger at the time of the accident.

Tynan requested a directed verdict on the grounds that neither Wisconsin common law nor statutory law imposed any duty to extinguish the embers in the fire pit. Although it found that no duty existed under the common law, the circuit court concluded that Wis.Stat. § 895.525 (1987-88), the Recreational Use Statute, imposed a duty on Tynan, and therefore Anthony could sustain an action in negligence. 3 See Rockweit, 187 Wis.2d at 179, 522 N.W.2d at 579. The court of appeals disagreed with the circuit court's interpretation that § 895.525 went beyond the common law to impose a greater duty of care. We agree that the statute does not impose a greater duty on an individual than that which exists under the common law. Id. at 194, 522 N.W.2d at 585.

The court of appeals held that Tynan owed a common law duty of ordinary care to Anthony. Depicting her failure to extinguish the hot embers in the fire pit as an affirmative act, the court of appeals found that such conduct constituted negligent management or control of a fire. Id. at 188-90, 522 N.W.2d at 583.

On appeal, Tynan disputes the court of appeals' finding of a common law duty as well as the holding that sufficient credible evidence existed to support the jury's determination that such duty had been breached by failing to extinguish the campfire. 4


In order to maintain a cause of action for negligence in this state, 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. City of Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132, 135 (1976) (citing Falk v. City of Whitewater, 65 Wis.2d 83, 85, 221 N.W.2d 915, 916 (1974)). In Olson v. Ratzel, 89 Wis.2d 227, 251-52, 278 N.W.2d 238, 250 (Ct.App.1979), the court articulated that:

Where the facts alleged to give rise to a duty are agreed upon, the question of the existence of a duty is one of law. This question is closely related to the question of whether a defendant is not negligent as a matter of law, i.e., based on the facts presented, no properly instructed, reasonable jury could find the defendant failed to exercise ordinary care. Generally, this question is for the jury and should be decided as a matter of law before trial only in rare cases.

The first issue to be discussed is whether Tynan owed Anthony a duty of care. 5 "Each individual is held, at the very least, to a standard of ordinary care in all activities." Coffey, 74 Wis.2d at 537, 247 N.W.2d at 138. As this court stated in A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483-84, 214 N.W.2d 764, 766 (1974), the proper analysis of...

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