Schlicht v. Thesing

• Decision Date: 27 October 1964
• Citation: 130 N.W.2d 763,25 Wis.2d 436
• Parties: Herman SCHLIGHT et al., Appellants, v. George THESING et al., Respondents.
• Court: Wisconsin Supreme Court

Page 763

130 N.W.2d 763

25 Wis.2d 436

Herman SCHLIGHT et al., Appellants, v. George THESING et al., Respondents.

Supreme Court of Wisconsin.

Oct. 27, 1964.

Rehearing Denied Dec. 21, 1964.

Leonard R. Chojnacki, Moen, Sheehan & Meyer, La Crosse, for appellants.

Lawrence M. Engelhard, La Crosse, for respondents.

CURRIE, Chief Justice.

On this appeal we only find it necessary to consider plaintiff's cause of action grounded on the theory that at the time of the accident she was an invitee and not a mere licensee. In determining whether this portion of the complaint states facts sufficient to constitute a cause of action, we must resolve these two questions:

(1) Was plaintiff an invitee?

(2) If she was, does the complaint allege any breach of duty by defendants to her?

Plaintiff an Invitee.

While the amended complaint does not state that plaintiff was a relative of either defendant, the parties concede that Mrs. Thesing is plaintiff's daughter so that the children with whom plaintiff was baby-sitting were her grandchildren. Neither does the amended complaint state whether plaintiff's services were gratuitous or whether they were to be compensated by defendants. We deem these factors to be immaterial on the issue of whether plaintiff was an invitee.

In Smith v. Shuda (1964), 22 Wis.2d 629, 126 N.W.2d 498, plaintiff, a married daughter, was helping her mother, the defendant, paint a kitchen in defendant's home at the latter's request. This court approved an instruction which stated the defendant's duties toward plaintiff to be that of an inviter. This holding completely negatives defendant's contention that a business relationship is essential to an inviterinvitee relationship, if by business relationship in meant a commercial enterprise.

A similar contention was expressly rejected by the Nevada court in Murdock v. Petersen (1958), 74 Nev. 363, 332 P.2d 649. There the injured plaintiff was gratuitously performing services in the home of a neighbor at the latter's request. In its opinion the court stated (at page 365, 332 P.2d at page 650):

'In our view the existence of a business relationship cannot today be held to be essential to the status of invitee. It would, we feel, be grossly unjust to place plaintiff in an inferior position because she was willing, out of the goodness of her heart, to respond to defendant's call for help and to perform needed services for defendant's benefit without demanding compensation. She was a servant in fact, albeit a gratuitous one, and was as much justified in expecting a safe place to work as a servant for hire would have been. She is, then, entitled to occupy the same status.'

See also Restatement, Torts (2d), Tentative Draft No. 5, p. 59, sec. 332, Note to Institute; 2 Harper and James, Law of Torts, p. 1478, sec 27.12; Prosser, Business Visitors and Invitees; 26 Minnesota Law Review (1942) 573.

We conclude that the allegation of the complaint that plaintiff was performing the baby-sitting services at the request of defendants was sufficient to establish her as their invitee, and not a mere social guest who would be a licensee.

Breach of Duty Owed Plaintiff.

The plaintiff being an invitee, defendants owed her the duty of exercising ordinary care for her safety. Gorr v. Mittlestaedt (1897), 96 Wis, 296, 298, 71 N.W. 656. This court has long held that a landowner is liable for injuries to an invitee caused by reason of the unsafe condition of the premises known to the owner and which he negligently suffers to exist and of which the injuried invitee has no notice or knowledge. Flood v. Pabst Brewing Co. (1914), 158 Wis. 626, 633, 146 N.W. 489, L.R.A. 1916F. 1101; Hupfer v. National Distilling Co. (1902), 114 Wis. 279, 284, 90 N.W. 191; Gorr v. Mittlestaedt, supra.

In light of these general principles we search the complaint to ascertain if there are any allegations which spell out negligence on defendants' part. We start with the premise that plaintiff was unaware that one of the four doors in the hallway in the new addition to defendants' home opened on a flight of stairs descending to the basement. Three specific acts of negligence are charged against defendants in paragraph 12 of the amended complaint which reads:

'That the defendants were negligent toward the plaintiffs, particularly in the following respects:

'(a) In failing to warn tthe plaintiff, Edna Schlicht, of the existence of such basement stairway in close proximity to the bedroom and other doors in the hallway.

'(b) In failing to have said basement door locked.

'(c) In failing to have said hallway and the basement stairs sufficiently lighted.'

We eliminate from consideration the allegation of subparagraph (b) that defendants were negligent in failing to lock the basement door. It would be imposing an unreasonable requirement on homeowners to require them to lock basement doors every time a baby-sitter is employed in the household.

This leaves for consideration the allegations of subparagraphs (a) and (c). Because we must interpret the amended complaint liberally in favor of stating a cause of action, we construe the allegation of subparagraph (c) with respect to lighting as meaning that no adequate lighting facility was installed in the hallway, rather than a mere failure of defendants to have had an existing light turned on. This is crucial because if the hallway was equipped with an adequate electric light activated by a switch or pull cord, no negligence could be predicated on defendants' failure to have switched on shch light before turning the premises over to plaintiff.

The owner of premises owes his invitee the alternative...