Steinhorst v. H. C. Prange Co.
| Decision Date | 06 November 1970 |
| Docket Number | No. 215,215 |
| Citation | 48 Wis.2d 679,180 N.W.2d 525 |
| Parties | Eva V. STEINHORST, Appellant, v. H. C. PRANGE COMPANY, Respondent. |
| Court | Wisconsin Supreme Court |
Eva V. Steinhorst brought this action against H. C. Prange (Prange) to recover damages for injuries she sustained when she slipped and fell in Prange's store in the city of Fond du Lac. The action alleges the violation of the Safe-Place Statute, sec. 101.06, and the jury found Prange 100 percent causally negligent in maintaining the floor of the aisle in its store as safe as the nature of the place would reasonably permit. Miss Steinhorst was awarded $13,500 damages for personal injuries and the medicals were stipulated at $1,903.52. The trial court sustained the verdict as to damages but ordered a new trial in the interest of justice on the question of negligence. Miss Steinhorst appeals from this order and requests judgment on the verdict; Prange seeks a review.
Allan & Storck, Mayville, for appellant.
Joseph D. Donohue, Fond du Lac, for respondent.
On August 28, 1968, Miss Steinhorst, while walking in Prange's store on a white vinyl floor in an aisle next to the men's cosmetic counter, slipped and fell. She slipped on white shaving foam which came from an aerosol can on a self-serve men's cosmetic counter. This counter displayed various brands of aerosol shaving foams; a companion counter displayed colognes and after-shaving lotions, including 'testor bottles' which Prange encouraged the public to sample. Miss Steinhorst, who was 70 years of age, sustained a fracture of her right wrist and of both the tibia and fibula in her right leg. She was confined to her bed for over three months and is now required to use crutches to walk.
The trial court granted a new trial in the interest of justice because it thought the evidence, exclusive of Exhibit 10 (a report to Prange's insurance company), did not show that Prange had constructive notice of the shaving foam on the floor and that the accident report, without being explained, could totally influence the jury to the point where it had to conjecture and speculate on the question of constructive notice. Ordinarily, an order for a new trial in the interest of justice will be affirmed unless there is a showing of an abuse of discretion on the part of the trial court. McPhillips v. Blomgren (1966), 30 Wis.2d 134, 140 N.W.2d 267; Quick v. American Legion 1960 Conv. Corp. (1967), 36 Wis.2d 130, 152 N.W.2d 919. An erroneous view of the law is also a ground for reversal or, as is said in some cases, amounts to an abuse of discretion. Lambrecht v. State Highway Comm. (1967), 34 Wis.2d 218, 225, 148 N.W.2d 732. Consequently, if the trial court was in error, and we think it was, in its view of the law of constructive notice, the order granting the new trial must be reversed.
The safe-place statute, sec. 101.06, requires the place of employment to be kept as safe for frequenters as the nature of the premises will reasonably permit. There is no question that Miss Steinhorst was a frequenter, that the retail store was a place of employment, that she slipped on shaving foam on the floor and that she received injuries. The issue is whether Prange had sufficient notice of the shaving foam on the floor to warrant being held negligent for failing to correct the dangerous condition. While an operator of a retail store catering to the public is not an insurer of the premises, nevertheless he is required to keep such premises as safe as their nature will reasonably permit. Paaske v. Perfex Corp. (1964), 24 Wis.2d 485, 129 N.W.2d 198; Zernia v. Capital Court Corp. (1963), 21 Wis.2d 164, 124 N.W.2d 86, 125 N.W.2d 705. The balance between the concepts of requiring safety for the public but not requiring absolute liability without fault is sometimes hard to determine and is influenced by the nature of the premises and the type of use made of the premises by modern-business operations. The doctrine of constructive notice was adopted by the courts to inject the basis of fault in the statute which was framed in absolute terms. Caldwell v. Piggly Wiggly Madison Co. (1966), 32 Wis.2d 447, 145 N.W.2d 745; Boutin v. Cardinal Theater Co. (1954), 267 Wis. 199, 64 N.W.2d 848; Pettric v. Gridley Dairy Co. (1930), 202 Wis. 289, 232 N.W. 595.
The doctrine first dealt with obvious failures to repair defects in the physical structure of the premises or its equipment. For example, Boutin involved the lack of the seat cushion of a theater seat which had been removed. Sometimes, the unsafe condition was created in part by climatic conditions beyond the control of the owner as in Zernia v. Capital Court Corp., supra; or the unsafe condition was a temporary or transitory condition as in Krause v. Veterans of Foreign Wars Post No. 6498 (1960), 9 Wis.2d 547, 101 N.W.2d 645.
In these cases a longer length of time has been allowed to discover and correct the unsafe condition under the doctrine of constructive notice than in the more recent cases where the unsafe condition is caused or occasioned by the method of doing business and therefore under more control of the occupant of the premises. In this age of super markets of every description with their self-serve counters, the increase in accidents, like increased thefts, have come to be looked upon as a hazard of doing a self-serve business.
We have pointed out that when an unsafe condition, although temporary or transitory, arises out of the manner of doing business by the occupant of the premises or may be reasonably expected to occur from his method of operation, a short period of time and possibly no appreciable period of time under some circumstances need exist to constitute constructive notice. Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 85 N.W.2d 772; Strack v. Great Atlantic & Pacific Tea Company (1967), 35 Wis.2d 51, 150 N.W.2d 361.
The trial court was in error in his requirement of proof to establish constructive notice. The unsafe condition here was substantially caused by the method used to...
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