Rockweit by Donohue v. Senecal

• Decision Date: 24 August 1994
• Docket Number: No. 93-1130,93-1130
• Citation: 187 Wis.2d 170,522 N.W.2d 575
• Parties: Anthony 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, d v. Christine ROCKWEIT, Third Party Defendant.
• Court: Wisconsin Court of Appeals

Page 575

522 N.W.2d 575

187 Wis.2d 170

Anthony 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, d v. Christine ROCKWEIT, Third Party Defendant.

No. 93-1130.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 1, 1993.

Opinion Released Aug. 24, 1994.

Opinion Filed Aug. 24, 1994.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

SNYDER, Judge.

This is a personal injury case where Anthony C. Rockweit, by his guardian ad litem, appeals from a judgment dismissing his negligence claim against Ann Tynan and Mary Rockweit. Anthony alleged that Tynan and Rockweit were negligent in failing to extinguish hot embers from a campfire contained in a fire pit which he subsequently fell into, causing severe injuries. Anthony argues that the trial court erred in applying the open and obvious danger defense as a bar to his negligence claim. We agree; therefore, we reverse that portion of the judgment dismissing Anthony's negligence claim against Tynan and Rockweit.

Tynan and Rockweit cross-appeal on the grounds that the dismissal of Anthony's negligence claim was appropriate regardless of the applicability of the open and obvious danger defense because they were not negligent as a matter of law. The trial court rejected this argument during motions after verdict. In the alternative, they argue that there was insufficient evidence for the jury to have found them causally negligent. Because we conclude that Tynan and Rockweit owed a common law duty to Anthony and there was sufficient credible evidence for the jury to conclude that Tynan and Rockweit were negligent in failing to extinguish the campfire, we affirm the trial court's denial of Tynan and Rockweit's motions after verdict.

I. FACTS

The following facts are undisputed. Anthony Rockweit was eighteen months old when he sustained injuries after falling into a fire pit containing hot embers at Evergreen Campgrounds, which was owned and operated by William Senecal. Anthony's father and mother, Keith and Christine Rockweit, and various extended family members and friends were part of a large group of weekend campers sharing a group of sites at Evergreen. Tynan and her family, neighbors of Keith's brother, Kurt, also joined the group, although their campsite was located a short distance from the larger group.

All of the campers except the Keith Rockweit family arrived at Evergreen on Friday evening, June 24, 1988. Upon arriving, the families selected one of the fire pits among the various campsites to be what they termed a "communal fire pit." Since the fire pit was used as a central gathering place available to all of the campers, no single person exercised exclusive control over it and any of the campers were free to tend the fire or add wood to it.

When the Keith Rockweit family arrived on Saturday afternoon, they shared a site with another family and pitched their tent approximately fifteen to twenty feet from the communal fire pit. A fire was already lit by the time they arrived, and it remained burning the rest of the day and night.

At some point between 7:00 and 8:00 p.m. on Saturday night, Tynan joined the Rockweit group to sit around the campfire. By 4:00 a.m. on Sunday, all of the campers had gone to bed except for Tynan, Mary Rockweit and Keith Rockweit, who were admittedly intoxicated by that time. Around 4:00 a.m., Keith announced that he was going to bed, and Tynan and Rockweit left at virtually the same time. By that time, the fire in the pit was reduced to smoldering embers. ¹ Although water and a bucket were available nearby, none of the three discussed using water or any other means to extinguish what was left of the campfire.

At approximately 9:00 a.m. on Sunday, Christine awoke with Anthony and left their tent. Christine walked toward a cooler on the opposite side of the fire pit, with Anthony slightly behind her. Anthony then fell into the fire pit, causing severe burns. ² The fire pit was circular and built into the ground so that its rim was flush to the ground. There were no rocks or other barriers around the fire pit for protection.

Anthony, through his guardian ad litem, initiated a personal injury suit against Evergreen Campgrounds and its insurer Truck Insurance Exchange, Keith Rockweit, Mary Rockweit, and Tynan and her insurer, Wisconsin Farmers Mutual Insurance Group. Tynan and Wisconsin Farmers impleaded Christine, Anthony's mother, as a third-party defendant.

Prior to trial, Anthony settled his claims against Evergreen and its insurer, for maintaining an unsafe fire pit, by way of a Pierringer ³ release in the amount of $50,000. On January 15, 1993, a twelve-person jury returned a verdict finding all of the defendants causally negligent, apportioning liability as follows:

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

Tynan and Rockweit filed the following postverdict motions: (1) motion for directed verdict, (2) motion for judgment notwithstanding the verdict, and (3) motion to change the answers to the special verdict questions finding them negligent, on the ground that there was insufficient evidence to sustain the answers. See § 805.14(5)(b)-(d), STATS. Tynan and Rockweit requested a directed verdict on the ground that neither Wisconsin common law nor statutory law imposed any duty to extinguish the embers in the fire pit. The trial court concluded that although there was no common law duty, such a duty existed under § 895.525, STATS., and therefore Anthony could sustain an action in negligence. The trial court also denied their motions for judgment notwithstanding the verdict and to change the special verdict questions related to negligence.

Tynan and Rockweit also requested a directed verdict dismissing Anthony's negligence claim based upon the jury's finding that the fire pit constituted an open and obvious danger. After some confusion, the trial court dismissed the case against Tynan and Rockweit on the ground that the jury's open and obvious danger finding barred Anthony's negligence claim. ⁴ Anthony appeals from that portion of the trial court's judgment dismissing his claims against Tynan, Wisconsin Farmers and Rockweit.

Tynan and Rockweit's cross-appeal is based on the trial court's denial of their motions after verdict. They contend that the dismissal of Anthony's claims is appropriate regardless of the application of the open and obvious defense because they were not negligent as a matter of law, either common law or § 895.525, STATS. In the alternative, they seek a new trial on liability based on the trial court's refusal to grant their requested jury instruction pertaining to the open and obvious danger defense.

II. APPEAL

On appeal, Anthony argues that the trial court erroneously entered judgment dismissing his case against Tynan, her insurer Wisconsin Farmers and Mary Rockweit ("Tynan"). ⁵ Anthony contends that the open and obvious danger defense cannot be used to bar his negligence action because an infant minor is incapable of negligence under § 891.44, STATS. We agree.

Because the facts underpinning the open and obvious danger defense are undisputed, the issue is whether the trial court properly applied the defense in light of § 891.44, STATS. Whether undisputed facts give rise to a legal defense and whether a particular statute applies to undisputed facts are questions of law that we review de novo. See Bantz v. Montgomery Estates, Inc., 163 Wis.2d 973, 978, 473 N.W.2d 506, 508 (Ct.App.1991) (whether facts fulfill a particular legal standard is a question of law); see also Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis.2d 549, 560, 514 N.W.2d 399, 403 (1994) (application of law or statute to a set of undisputed facts is resolved as a matter of law).

The issue of whether the open and obvious danger defense acts as a bar to Anthony's negligence claim was addressed by the trial court in arguments over the proposed jury instructions. Despite Anthony's objection, the court ruled that an open and obvious danger instruction was appropriate in this case, but only to reflect the responsibility of Anthony's mother because the court did not believe it could bar Anthony's negligence claim. ⁶ Curiously, the court reversed its position in granting Tynan's motion after verdict and ruled that the jury's finding that the fire pit constituted an open and obvious danger to Anthony's mother barred Anthony's cause of action. We conclude that the trial court erred in doing so.

At the outset, we recognize that Wisconsin courts have applied the open and obvious danger doctrine in two distinct situations, which has caused considerable confusion. Hertelendy v. Agway Ins. Co., 177 Wis.2d329, 334,501N.W.2d903,906 (Ct.App.1993). First, if a plaintiff knowingly confronts an open and obvious danger and the parties stand in the relationship of landowner-invitee or manufacturer-consumer, the landowner or manufacturer is absolved of any duty to warn the plaintiff of danger. Id. at 335-36, 501 N.W.2d at 906. The second situation involves the application of the open and obvious danger doctrine in ordinary negligence cases; namely, those not involving a special legal relationship. In such cases, the open and obvious danger doctrine involves nothing more than the determination, within the context of comparative negligence, that the plaintiff's negligence exceeds another's as a matter of law, precluding recovery. Id. at 338-39, 501 N.W.2d at 907-08. We conclude that neither application of the open and obvious danger doctrine bars Anthony's negligence action here.

The open and obvious danger doctrine is...