Szep v. Robinson

• Decision Date: 04 June 1963
• Citation: 121 N.W.2d 753,20 Wis.2d 284
• Parties: Ruth SZEP et al. by gdn. ad litem, T. F. Wasielewski, Appellants, v. Gerald ROBINSON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 753

121 N.W.2d 753

20 Wis.2d 284

Ruth SZEP et al. by gdn. ad litem, T. F. Wasielewski, Appellants, v. Gerald ROBINSON et al., Respondents.

Supreme Court of Wisconsin.

June 4, 1963.

Henry L. Arnold, Milwaukee, for appellants.

Kivett & Kasdorf, Milwaukee; Nonald J. Lewis and John R. Henderson, Milwaukee, of counsel, for respondents.

WILKIE, Justice.

There are two issues raised on this appeal:

1. Was there an employer-employee relationship existing between the defendants and Susan Szep?

2. If so, did the complaint state facts sufficient to state a cause of action?

The first point on which the defendants quarrel with the plaintiffs' complaint concerns the use of the word 'hired,' presumably to establish that the legal relationship of Susan to the defendants was that of an employee rather than that of an independent contractor.

By demurring to the complaint the defendants have not admitted that an employer-employee relationship existed between the defendants and Susan. ¹ The complaint assumes a master-servant relationship in terms of which the master's alleged duties and negligence towards Susan are asserted. But the question on demurrer is not to settle as a matter of law that an employer-employee relationship existed, but to determine whether as a matter of law it could be ruled under the facts alleged that there was no such relationship.

We are convinced that the facts alleged establish an employer-employee relationship, and that as far as this point is concerned there is no basis for sustaining the demurrer.

In St. Mary's Congregation v. Industrial Comm. (1953), 265 Wis. 525, 529, 62 N.W.2d 19, 21, it was stated:

'This court has repeatedly held that the principal test for determining whether the relationship of employer and employee exists is whether the alleged employer has the right to control the details of the work.' ²

Although the baby-sitter, by definition, is left alone, no one can dispute the fact that the parents have the 'right to control' the details of their baby-sitter's work and that this gives the parents the degree of control necessary to establish an employer-employee relationship.

We conclude that Susan was an employee of the defendants. But assuming that the relationship of employer and employee existed here as between Susan and the defendants, did the complaint state facts sufficient to state a cause of action?

The duty that an employer owes an employee is best summarized by Prosser, Law of Torts (2d ed.), p. 373, sec. 67:

'67. At common law the duty of an employer to protect his servants was limited to certain more or less specific obligations, beyond which the servant was expected to assume all the risks of his employment. The master was required only to use reasonable care to:

'a. Provide a safe place to work.

'b. Provide safe appliances and equipment.

'c. Warn and instruct the servant as to dangers of which he might be expected to remain in ignorance.

'd. Provide a sufficient number of suitable and competent fellow servants.

'e. Make reasonable rules for the conduct of the work.'

Prosser, supra, also states at pages 375 and 376 of sec. 67:

'Safe Appliances The master was under a very similar obligation to provide safe appliances, tools and equipment for the work. He would be liable for any defects of which he knew, or which he might have discovered by reasonable inspection, and the care he was required to exercise must be proportionate to the danger. Once provided, he must make reasonable inspections to see that the appliances continued safe. But he was liable only for lack of proper care, and he was under no obligation to provide the best and safest or newest equipment, so long as that which he furnished might with reasonable care be used in safety. * * * [Emphasis added.]

'Warning and Instruction A further obligation was to warn the servant of any dangers connected with the work of which the master knew, or which he might discover with proper care, and of which the servant might reasonably be expected to remain in ignorance. This was particularly true in the case of young or inexperienced employees, who must be given instructions suitable to their age, intelligence and knowledge, and to the risk to be encountered. But the employer was 'only required to do what a prudent master would do under like circumstances.' No warning need be given of a danger which should be obvious to the servant, such as that of revolving rollers, of stepping out of a cinder pit when trains are passing, or of standing on a bench likely to tip. * * *' (Emphasis added.)

Baby-sitting is a recognized institution in almost every American home. Girls, and even boys, who reach the age where a source of pocket money (other than their parents) is desired hire themselves out to 'sit' with the neighbors' children. Although this presents a marvelous opportunity for watching TV, listening to the radio, and hanging on the phone with a friend, there is usually a variety of work to be done, including dish washing, carpet sweeping, gardening, and just plain sitting and playing with the tiny tots. It is common knowledge that one of the assigned chores in many cases is to prepare a meal and feed the hungry children.

Over the years no doubt baby-sitters have received injuries while baby-sitting, and as is pointed out in Anno. 49 A.L.R.2d 359:

'Attempts by baby sitters to hold employers liable for injuries allegedly caused by the condition of the property have met with little success.'

This annotation cites cases holding an employer of a baby-sitter liable for any injuries sustained by the baby-sitter in the performance of her services, when it is reasonable to foresee that harm will result. In most cases the baby-sitter was not able to recover because the injury was too remote for the employer to anticipate.

As we have reaffirmed in Radloff v. National Foods Stores, Inc. (1963), Wis., 121 N.W.2d 865, also decided today, harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence. ³

We hold that the complaint does not state a cause of action and that the demurrer was properly sustained.

There was no allegation that the electric stove was defective and that any defect led to the injury to Susan; neither was there any allegation that the terrycloth towel was defective. The items of alleged negligence on the part of the defendants were:

a. Failing to provide a hot pad for Susan's use.

b. Failing to place the two pots on small burners, or to turn the large burners to a low position so that the outer exposed rings were not heated up.

c. Failing to properly and adequately instruct Susan in the use of the stove and warn her of the dangers in the use thereof.

d. Failing to lock the door leading to the basement.

Under each item of alleged negligence we conclude that the harm resulting to Susan could not have been reasonably foreseen as a probable consequence of the defendants' conduct in each respect so as to constitute such conduct, if proved, negligence and a breach of the defendants' duty towards Susan.

Although the Robinsons did not furnish a pot holder, they did furnish another item which, although concededly not the best, was suitable to move a pot from the stove. Even though Susan was only 16, she did not need to be told that a terrycloth towel should not be touched to a burner.

Neither was there any breach of duty to the plaintiff by the defendants in putting the two small pots on large burners thereby exposing the outer ring. Perhaps this was not the safest thing to do, but the pots with reasonable care could have been used in safety.

The allegation that Susan should have been instructed on the proper use of the stove and warned of the dangers in its use...