Scheeler v. Bahr
| Citation | 164 N.W.2d 310,41 Wis.2d 473 |
| Decision Date | 04 February 1969 |
| Docket Number | No. 115,115 |
| Parties | Charles SCHEELER, Appellant, v. Richard BAHR et al., Respondents. |
| Court | United States State Supreme Court of Wisconsin |
Harry F. Peck, Jr., Hayes & Peck, Milwaukee, for appellant; Gary A. Gerlach, Milwaukee, of counsel.
Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for respondents.
The plaintiff correctly asserts that a social guest has the legal status of a licensee when he goes on the property of his host. In Wisconsin the duty owed by the possessor of land to a licensee is a limited one. We have said in Szafranski v. Radetzky (1966), 31 Wis.2d 119, 126, 141 N.W.2d 902:
'* * * that the possessor or occupier of premises may be liable for injuries to the licensee in two situations. The licensor may be liable because the injury was caused by a 'trap' on the premises (citing cases). He has, however, no obligation to the licensee in regard to dangers that are unknown to him.
'The licensor may, also, be liable for injury to the licensee when the injury is caused by the active negligence of the licensor (citing cases).
'* * * A 'trap' arises when the owner fails to disclose to the licensee a known but concealed danger.'
In this case the plaintiff asserts the trap doctrine--that he was injured because the defendant failed to warn of a known but concealed danger, i.e., the shallowness of the water, that was known to defendant but, because of the roiled condition of the water, was not apparent to the plaintiff.
On demurrer it is the duty of this court to accept the allegations of the complaint as true. A demurrer to a complaint admits all facts well pleaded, but denies that those facts have the legal consequences asserted by the plaintiff. When this court reviews a trial court's order on demurrer, it is obliged to construe the complaint liberally and to uphold it if it expressly or by reasonable inference states any cause of action. Sec. 263.07, Stats.; sec. 263.27; Estate of Mayer (1965), 26 Wis.2d 671, 677, 133 N.W.2d 322.
The plaintiff argues that he has alleged all the elements of a trap. To the defemdant's assertion that, as an adult person, the plaintiff is charged with the duty of knowing that water depth varies from place to place and must be charged with that knowledge, the plaintiff contends that this is an assertion of the plaintiff's contributory negligence and has nothing to do with the legal determination of whether or not the complaint states a cause of action.
There is a certain plausability to the plaintiff's position, but we cannot agree with it. The water was shallow. It was dangerous for diving and the defendant knew of the danger, but was the hazard a concealed one as contemplated by law? The plaintiff asserts that the danger was concealed because the murkiness of the water prevented a visual gauging of the depth. This assertion, we conclude, is pregnant with the conclusion that the opaqueness of the water was in itself a notice of danger. It appears to this court that the failure to see the bottom of a lake or other body of water constitutes an observable danger. For a nonswimmer, it should serve as a clear warning that he may be venturing into waters beyond his depth. For a diver, it is a signal that the water may be too shallow for safe diving.
This situation is determinative of the duty imposed upon the defendant. 'Duty' is defined by Prosser, Torts (3d ed.), p. 331, sec. 53, as:
'* * * a question of whether the defendant is under any obligation for the benefit of the particular plaintiff * * *.
'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'
Thus, the first question imposed upon a court is to determine the duty placed upon the defendant by the facts as alleged. The general statement of a licensor's duty, except as to active negligence, is to warn of concealed but known hazards--traps--but if there is no concealed hazard no duty is imposed upon the licensor to protect the licensee.
Under most circumstances, whether a hazard is concealed or apparent would be for the jury to decide, and an assertion that the hazard is a hidden one would suffice to state a cause of action in the face of a demurrer. In the instant case the plaintiff alleges, however, that the murkiness of the water obscured the view and concealed the hazard of a bottom only three feet below the surface.
This very murkiness upon which the plaintiff relies should signal a danger that should be comprehended by any person, except one of the most tender years.
Even as to a trespassing child, it is doubtful, though we do not decide the point, that the circumstances here would impose a duty upon the defendant. Restatement, 2 Torts (2d), p. 203, sec. 339, comment j, states in part that:
'There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.'
Harper and James, 2 Law of Torts, p. 1455, sec. 27.5, points out:
'People usually avoid obvious and appreciated dangers, and others may reasonably assume that they will.'
Harper and James, supra, pp. 1472, 1473, in discussing the duty owed a licensee, says:
'He (the licensor) would not, of course, be negligent * * * if he might reasonably assume that the licensee, knowing he has no right to expect premises to be prepared for his safety, would observe the danger * * *.
'Even where the occupier knows of a danger, he owes the licensee no duty of...
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...only where there is a high degree of probability that the condition or danger confronted will result in harm. See Scheeler v. Bahr , 41 Wis. 2d 473, 480, 164 N.W.2d 310 (1969) (danger is likely to be encountered by plunging headfirst into the unknown depths of a murky lake); Schilling v. Bl......
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...further that there can be no liability on the part of a municipality for the breach of such a 'public duty.' In Scheeler v. Bahr, 41 Wis.2d 473, 477, 164 N.W.2d 310, 312 (1969), this court 'This situation is determinative of the duty imposed upon the defendant. 'Duty' is defined by Prosser,......
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