Thomas v. Kells
| Decision Date | 02 December 1971 |
| Docket Number | No. 227,227 |
| Citation | 191 N.W.2d 872,53 Wis.2d 141 |
| Parties | Arthur C. THOMAS et al., Plaintiffs, v. Harold C. KELLS et al., Defendants and Third-Party Plaintiffs-Appellants, Betty Ann THOMAS, Third-Party Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
The plaintiffs, Arthur C. Thomas and his minor son, Michael Thomas, seek to recover damages incurred when the son was injured in a fall on July 25, 1965. The appellants, defendants-third party plaintiffs, Harold C. Kells and Mary E. Kells, are owners of a duplex flat in the city of Milwaukee. The Thomas family rented the first-floor flat of the duplex. In the rear of the two-family dwelling is a stairway, used in common by first-floor and second-floor tenants, running from the basement to the second floor and attic. The complaint alleges that the minor plaintiff, then three or four years old, fell and cut his nose and face at a point on such stairway between the rear door of the first-floor apartment and the outside door of the building. Negligence alleged is in allowing such stairway to become out of repair and in falling to provide a handrail. The answer of defendants denies negligence and denies knowledge or information sufficient to form a belief as to where and how the injury took place, and puts the plaintiffs to proof thereon.
Additionally, defendants, Harold C. and Mary E. Kells, counterclaimed against the father, Arthur C. Thomas, and served a third party complaint on the mother, Betty Ann Thomas, alleging that at the time and place of the accident the child was or should have been in the immediate control of his parents, and, if there was a defective condition on the rear stairway, the parents knew or should have known of such condition. A claim for contribution was made against Betty Ann Thomas alleging she failed to properly supervise the child and failed to exercise ordinary care for the child's safety.
Respondent-third party defendant demurred to appellants-defendants third party complaint on grounds that it failed to constitute a cause of action. The trial court sustained the demurrer, finding that the pleading demurred to established the affirmative defense of parental immunity. Appeal is taken from the order sustaining the demurrer.
Cannon, McLaughlin, Herbon & Staudenmaier, Milwaukee, Ellis R. Herbon and Heiner Giese, Milwaukee, of counsel, for appellants.
Borgelt, Powell, Peterson & Frauen, Milwaukee, Joseph D. McCevitt, Milwaukee, of counsel, for respondent.
Putting aside for the moment the question of whether the third party complaint itself establishes an affirmative defense, it is to be noted that nowhere in this case is it contended that such third party complaint fails to state a cause of action. It clearly does.
To constitute a cause of action for negligence there must be: (1) A duty to conform to a certain standard of conduct to protect others against unreasonable risks; (2) a failure to conform to the required standard; (3) a causal connection between the conduct and the injury; and (4) actual loss or damage as a result of the injury. 1 The third party complaint, particularly in its paragraph 3, 2 does allege a cause of action and does adequately apprise the opposing party of the matters to be tried. 3
All this is prologue, necessary prologue, but prologue. For the trial court here sustained the demurrer, holding, that even if the third party complaint otherwise stated a cause of action, it levelled what it had erected by also establishing an affirmative defense to its allegations. While a complaint need not specifically deny the existence of any and all affirmative defense, 4 it can, by inadvertence or otherwise, create or concede an affirmative defense fatal to its validity. Does the third party complaint here to this?
The trial court appears to have found that it did by finding in it an inescapable conclusion that the accident occurred 'in the home' of the parents as well as 'in the ordinary course of taking care of children and maintaining a family.' That conclusion requires reexamination. The trial court correctly cites Goller v. White 5 as abrogating the general parental immunity in negligence cases in Wisconsin. It correctly notes two specific exceptions to the abrogation. 6 It states the reason for abrogation of general immunity by this court to be, '* * * primarily because it wanted to take from the parents immunity for any negligence on their part which occurred outside of the home and outside of their ordinary supervision in the exercise of parental authority. * * *'
However, we are the here required to deal with what the court did, rather than with reasons suggested for the result reached. Parental immunity was abolished in negligence cases in Wisconsin with two specific exceptions. The sole question on this appeal is whether the third party complaint places this case as to the demurring third party defendant within the rule or the exceptions to it.
Cases since Goller have dealt with the two exceptions to the ending of parental immunity in negligence actions, 7 but neither Goller nor the subsequent decisions have answered all questions about the exact meaning and outer limits of the two exceptions.
As one writer has commented, '* * * many questions are left unanswered and many problems remain in the area of parental immunity. * * *' 8 One such is the reference in the second exception to 'an exercise of ordinary parental discretion' with respect to the provision of 'housing.' Does such reference under all circumstances include a basement to attic stairway used in common with other tenants and not under the parents' control? Is it material whether or not the stairway is an only or an alternative method of ingress and egress to the parental premises? Is a rear stairway part of the parental home only as to that portion that leads to the outside door of the duplex? Or, is the portion of the stairway leading to the apartments of other tenants or to the attic also to be included in the definition of parental home or housing? If so, what are the limits, if any, to the 'exercise of ordinary parental discretion' in parental permission allowing a three-year-old to proceed down a defective stairway? 9 Does the availability of additional routes of ingress or egress narrow or affect the area of parental discretion? Is choosing or continuing to live in a building where it is necessary or convenient to use a defective stairway 'an exercise of ordinary...
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