Stroede v. Soc'y Ins.

• Citation: 939 N.W.2d 614,390 Wis.2d 817,2020 WI App 8
• Decision Date: 14 January 2020
• Docket Number: 2018AP2371,Appeal Nos. 2018AP1880
• Parties: David STROEDE, Plaintiff-Appellant, v. SOCIETY INSURANCE, a Mutual Company and Railroad Station, LLC, Defendants-Respondents, Jacob D. Tetting, ABC Insurance Company and West Bend Mutual Insurance Company, Defendants.
• Court: Court of Appeals of Wisconsin

390 Wis.2d 817
939 N.W.2d 614
2020 WI App 8

David STROEDE, Plaintiff-Appellant,
v.
SOCIETY INSURANCE, a Mutual Company and Railroad Station, LLC, Defendants-Respondents,

Jacob D. Tetting, ABC Insurance Company and West Bend Mutual Insurance Company, Defendants.^†

Appeal Nos. 2018AP1880
2018AP2371

Court of Appeals of Wisconsin.

Submitted on Briefs: September 9, 2019
Opinion Filed: January 14, 2020

On behalf of the plaintiff-appellant/plaintiff-respondent, the cause was submitted on the briefs of Keith E. Trower and Krista G. LaFave Rosolino of Warshafsky, Rotter, Tarnoff & Bloch, S.C. in Milwaukee.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eric S. Darling and John Wilson of Schmidt, Darling & Erwin in Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Arthur P. Simpson and Kelsey R.S. Kerr of Simpson & Deardorff, S.C. in Milwaukee.

Before Kessler, Dugan and Fitzpatrick, JJ.

DUGAN, J.

390 Wis.2d 821

¶1 David Stroede appeals the order granting summary judgment to Society Insurance and Railroad Station, LLC, based on Jacob Tetting’s actions. Tetting and West Bend Mutual also appeal the nonfinal order denying their motion for summary judgment on the question of statutory immunity pursuant to WIS. STAT. § 895.529 (2017-18).¹ We affirm the circuit court’s grant of summary judgment to Society Insurance and Railroad Station, LLC, but reverse the circuit court’s order denying Tetting and West Bend Mutual’s summary judgment motion.

390 Wis.2d 822

BACKGROUND

¶2 This case arises out of an incident that took place at the Railroad Station Bar in Saukville. The material facts are not in dispute. On September 20, 2014, Stroede was drinking at the Railroad Station Bar (Railroad) when he became intoxicated. Stroede urinated on himself and punched another patron, at which point Railroad staff ordered Stroede out of the bar. Tetting, an employee of Railroad, was also at the bar that night with his family. Tetting witnessed Stroede reenter the bar after bar staff ordered Stroede to leave. Stroede, still highly intoxicated, knocked over a

939 N.W.2d 617

table and glasses after he reentered. Tetting then approached Stroede, grabbed Stroede by the shoulders, and began walking Stroede backwards towards the stairway in front of the bar’s exit. Stroede fell down the stairs and hit his head. Tetting then picked Stoede up and took him outside of the bar, placing him on the grass. Bar staff called the police. Stroede sustained multiple head injuries as a result of the incident.

¶3 Stroede filed a civil complaint, and later an amended complaint, against Tetting; West Bend Mutual (Tetting’s homeowner’s insurer); Railroad; and the bar’s liability insurer, Society Insurance. Stroede alleged that Tetting was negligent in the manner in which he removed Stroede from the bar. The complaint² alleged that Tetting used excessive force, resulting in Stroede’s injuries; and that Railroad, as Tetting’s employer, was negligent in allowing Stroede to be removed by excessive force.

¶4 Railroad, Society Insurance, Tetting and West Bend Mutual all filed motions for summary judgment. As relevant to this appeal, Railroad and

390 Wis.2d 823

Society Insurance argued that Stroede was a trespasser at the time of the incident; therefore, they argued, there was no basis for Stroede’s negligence claim as the only duty Railroad and Society Insurance owed Stroede was to refrain from willful, wanton, or reckless conduct.³ Society also argued that Tetting was not acting as an employee of Railroad at the time of the incident, therefore, Society was not liable for any of Tetting’s actions.

¶5 Tetting’s motion argued that he was entitled to immunity pursuant to WIS. STAT. § 895.529 because as a patron of Railroad, he did not owe a duty of care to a trespasser. The statute states that a lawful occupant of real property owes no duty of care to a trespasser. See § 895.529(2). As relevant to this appeal, West Bend joined Tetting’s motion, but opposed Railroad and Society Insurance’s argument that Tetting was not acting as a Railroad employee at the time of the incident.

¶6 At a hearing on the summary judgment motions, the circuit court concluded that Stroede was a trespasser at the time of the incident, thereby granting Railroad and Society Insurance’s summary judgment motion. Stroede, through counsel, argued that even if Stroede was a trespasser, Tetting engaged in "reckless conduct," precluding Railroad and Society Insurance’s trespasser defense. Stroede argued that the "reckless conduct" was the equivalent of the willful, wanton, or reckless conduct necessary to preclude a trespasser defense. The circuit court rejected the argument, stating

390 Wis.2d 824

that Stroede’s complaints only pled negligence, not willful, wanton, or reckless conduct. Stroede then requested the opportunity to amend his complaint to add a claim of willful, wanton, and reckless conduct. The circuit court denied the request.

¶7 The circuit court also denied Tetting’s motion, finding that pursuant to WIS. STAT. § 895.529, Tetting was not entitled to immunity as a lawful occupant of Railroad. Section 895.529(1)(a) defines "[p]ossessor of real property" as "an owner, lessee, tenant, or other lawful occupant of real property." Id. Tetting and West Bend Mutual argued that Tetting’s lawful presence at Railroad, as a patron, qualified him as a "lawful occupant" under the statute. The

939 N.W.2d 618

circuit court disagreed, concluding that a "lawful occupant" is one with "power to consent or revoke permission to enter," thereby excluding patrons.

¶8 Stroede, Tetting, and West Bend Mutual now appeal. Stroede argues that his complaint adequately raised a claim of wanton, willful, or reckless conduct, or, alternatively, that the circuit court should have allowed him to amend his pleadings. Tetting and West Bend Mutual contend that the circuit court misinterpreted WIS. STAT. § 895.529, therefore, erroneously determining that Tetting was not entitled to statutory immunity for his role in the incident. We address each appeal separately.

DISCUSSION

¶9 We note at the outset that Stroede does not challenge the circuit court’s conclusion that he was a trespasser at the time of the incident. We address two limited questions on appeal: (1) whether Stroede’s complaint raised a claim of wanton, willful, or reckless

390 Wis.2d 825

conduct, and if not, whether the circuit court erroneously exercised its discretion in not allowing him to amend his complaint; and (2) whether WIS. STAT. § 895.529 grants Tetting immunity as an "other lawful occupant" of real property.

Summary Judgment Standard

¶10 We review a grant of summary judgment de novo , using the same methodology as the circuit court. See Water Well Sols. Serv. Grp. Inc. v. Consolidated Ins. Co. , 2016 WI 54, ¶11, 369 Wis. 2d 607, 881 N.W.2d 285. "Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented." Preloznik v. City of Madison , 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so, we then examine the moving party’s submissions to determine whether they sufficiently establish a prima facie case for summary judgment. See id. If the defendant has made such a prima facie showing, we examine the opposing party’s affidavits for evidentiary facts to determine whether a genuine issue exists as to any material fact. See id. "Summary judgment materials, including pleadings, depositions, answers to interrogatories, and admissions on file are viewed in the light most favorable to the nonmoving party." AccuWeb, Inc. v. Foley & Lardner , 2008 WI 24, ¶16, 308 Wis. 2d 258, 746 N.W.2d 447.

Stroede’s Appeal

¶11 On appeal Stroede contends that his complaint alleged "conduct beyond mere negligence by

390 Wis.2d 826

alleging that Tetting engaged in excessive...