Shannon v. Shannon

• Decision Date: 19 July 1988
• Docket Number: No. 87-1478,87-1478
• Citation: 145 Wis.2d 763,429 N.W.2d 525
• Parties: Christen Michaela SHANNON, a minor, by her Guardian ad Litem, Plaintiff-Co- Appellant, v. James P. SHANNON and Edith Ann Shannon, Defendants-Appellants, United Services Automobile Association, Commercial Union Insurance Companies, Steven Schultz and Donna Schultz, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 525

429 N.W.2d 525

145 Wis.2d 763

Christen Michaela SHANNON, a minor, by her Guardian ad Litem, Plaintiff-Co- Appellant, v. James P. SHANNON and Edith Ann Shannon, Defendants-Appellants United Services Automobile Association, Commercial Union Insurance Companies, Steven Schultz and Donna Schultz, Defendants-Respondents.

No. 87-1478.

Court of Appeals of Wisconsin.

Submitted on Briefs May 3, 1988.

Opinion Released July 19, 1988.

Opinion Filed July 19, 1988.

Review Granted.

Peck & Carey by Lynn Carey, Milwaukee, for plaintiff-co-appellant.

Sullivan & Associates, Ltd. by Daniel C. Sullivan, of Chicago, Ill., and of Minahan & Peterson, S.C. by Eric J. Van Vugt, Milwaukee, for defendants-appellants.

Peterson, Johnson & Murray by Terry E. Johnson and Janet E. Kolar, Milwaukee, for defendant-respondent United Services Auto. Ass'n.

Piette, Nelson, Zimmerman & Dries by Ronald L. Piette, Mark S. Nelson and Michael T. Steber, Milwaukee, for defendants-respondents Commercial Union Ins. Companies, Steven Schultz and Donna Schultz.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

SULLIVAN, Judge.

Christen Michaela Shannon (Christen) appeals a judgment dismissing her action against Steven Schultz and Donna Schultz (Schultzes) and their insurers, United Services Automobile Association (USAA) and Commercial Union Insurance Companies (Commercial). James Shannon and Edith Shannon (Shannons) appeal the judgment dismissing their cross-complaint against the Schultzes and their insurers. Both Christen and the Shannons appeal the judgment On July 1, 1984, Christen, born May 17, 1981, was found unconscious in Lauderdale Lake near the Schultz pier. Her parents and the Schultzes are adjoining property owners fronting the lake. Each had a pier extending into it. It is unknown where Christen entered the water. That afternoon both the Schultzes and the Shannons entertained guests. When Christen went over to the Schultzes, Mrs. Shannon called her home. Mrs. Schultz responded, "[i]t's OK. She's not hurting anything. She'll be all right." Shortly thereafter Christen was found in the lake. Christen has suffered severe injuries and is permanently and extensively disabled. There was no defect on the Schultz property, nor was any dangerous activity carried on there.

which dismissed the Shannons' insurer, USAA, from the action.

The circuit court dismissed the claim against the Shannons' insurer, USAA, because Christen was subject to a policy provision excluding family members from coverage. It granted the motions of the Schultzes and their insurers for summary judgment against Christen and the Shannons holding that the undisputed facts failed to establish any duty owed to Christen. ¹

The pertinent issues raised by the appellants are: (1) Whether the trial court erred in granting summary judgment to the Schultzes and their insurers, USAA and Commercial; (2) whether the trial court erred in holding that the issue of whether USAA had waived its family exclusion clause was a question of fact for the jury; (3) whether the trial court erred when it failed to grant Christen's partial summary judgment motion, since USAA had waived the exclusion; and (4) whether the Schultzes were immune from liability under sec. 895.52, Stats.

We reverse the grant of summary judgment to the Schultzes because material issues of fact bearing on their negligence are presented. Because USAA waived the family exclusion defense, as a matter of law, we reverse the dismissal of the claims against USAA. We also determine that sec. 895.52, Stats. does not provide immunity to the Schultzes. The disposition of these issues make it unnecessary for us to consider other issues raised by the parties.

SUMMARY JUDGMENT DISMISSING CAUSE OF ACTION AGAINST THE SCHULTZES

We review the circuit court's grant of summary judgment by applying the standards set forth in sec. 802.08(2), Stats., in the same manner as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Under sec. 802.08(2), summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court should not grant summary judgment "unless the moving party demonstrates a right to judgment with such clarity as to leave no room for controversy." Waters v. United States Fidelity & Guar. Co., 124 Wis.2d 275, 279, 369 N.W.2d 755, 757 (Ct.App.1985).

Christen's amended complaint alleges that the Schultzes were negligent in failing to protect her from the dangers presented by the lake. She and her parents argue that her presence on the Schultzes' patio, Mrs. Schultz's assurance that Christen would be all right on their premises, and the Schultzes' subsequent failure to supervise Christen, taken together, raised an issue of negligence on the part of the Schultzes. Christen and her parents rely on Antoniewicz v. Reszczynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975), to impose liability.

Antoniewicz abolished the common law distinctions between a licensee and an invitee vis-a-vis the land occupier or landowner (hereinafter land occupier). Id. at 856-57, 236 N.W.2d at 11. Prior to 1975, the land occupier's duty to a person on his land depended on the status of the person Before Antoniewicz, the land occupier's duty toward a licensee was the same as the duty owed to a trespasser except that the land occupier had an additional duty to exercise ordinary care to prevent traps, "a dangerous condition that is known to the landowner but concealed from the licensee," and active negligence on his property. Antoniewicz, 70 Wis.2d at 842, 236 N.W.2d at 4.

trespasser, licensee, or invitee. ² LEPOIdEvin v. wilsOn, 111 Wis.2d 116, 121, [145 Wis.2d 769] 330 N.W.2d 555, 558 (1983). Toward a trespasser, the land occupier only has the duty to refrain from willful and intentional injury. Szafranski v. Radetzky, 31 Wis.2d 119, 125, 141 N.W.2d 902, 905 (1966). This remains the law of Wisconsin today. See Anderson v. Green Bay & W.R.R., 99 Wis.2d 514, 518, 299 N.W.2d 615, 618 (Ct.App.1980).

Unlike the licensee, the invitee was not required to allege a trap or active negligence to impose liability against a negligent land occupier. The land occupier had a duty to exercise ordinary care under the circumstances, which included the duty to refrain from setting traps or committing active negligence.

Landowners are under a duty to exercise reasonable care to avoid creating an unreasonable risk of harm to visitors through active negligence.... [T]his duty [is owed] to all [persons] who are consensually upon their land whether they would have been classified as invitees or as licensees at common law.

Lloyd v. S.S. Kresge Co., 85 Wis.2d 296, 304, 270 N.W.2d 423, 427 (Ct.App.1978) (citations omitted) (emphasis added).

Thus, prior to Antoniewicz, the land occupier owed no duty of ordinary care to a licensee for defects and conditions on the premises except to prevent traps. The only duty of ordinary care was to prevent negligent activities committed on the land. However, the land occupier had a general duty to exercise ordinary care toward invitees which included preventing defects and conditions on the land, as well as preventing injuries arising from activities on the land.

In abolishing the common law distinctions between licensees and invitees, Antoniewicz, held that:

The duty toward all persons who come upon property with the consent of the occupier will be that of ordinary care. By such standard of ordinary care, we mean the standard that is used in all other negligence cases in Wisconsin.... Under that test, as we have repeatedly stated, negligence is to be determined by ascertaining whether the defendant's exercise of care foreseeably created an unreasonable risk to others.

70 Wis.2d at 857, 236 N.W.2d at 11 (citations omitted). Antoniewicz involved a defect on the premises. The plaintiff, a licensee, fell on a patch of ice on the defendant's porch. Because there was no trap or active negligence, under the old law the plaintiff would not have been able to recover. The Antoniewicz court concluded that the common law distinctions were irrational and unwarranted. See id. at 854, 236 N.W.2d at 10.

The Schultzes allege, and the trial court agreed, that under Antoniewicz, land occupier liability was limited to the duty to exercise ordinary care to prevent defects and conditions which were dangerous to the nontrespasser. The trial court found that the Schultzes were not liable, as a matter of law, because Christen's injuries had not been caused by a defect or a condition on the premises. The trial court's holding, in effect, made land occupiers immune from liability for all acts of negligence not resulting from conditions and defects on the premises. We disagree with Although Antoniewicz itself involved a defect on the defendants' land, a land occupier may still be held liable for negligence arising out of activities conducted on the land. See Christians v. Homestake Enter., Ltd., 101 Wis.2d 25, 35, 303 N.W.2d 608, 613 (1981) (there is a distinction between activities conducted on the land and conditions of the land). Before Antoniewicz, a land occupier had a duty to exercise ordinary care to refrain from active negligence against a nontrespasser on his premises. Lloyd, 85 Wis.2d at 304, 270 N.W.2d at 427. Antoniewicz did not eliminate this duty nor did it limit the liability of landowners to defects and conditions on the premises, it merely abolished the distinctions between a licensee and an invitee. See Waters, 124 Wis.2d at 281, 369 N.W.2d at 758.

the trial court's conclusion and its analysis of Antoniewicz.

In Christians the supreme court stated that "[d]ifferent rules have developed regarding the possessor's liability arising out of activities conducted on the land...