Topp v. Continental Ins. Co.
| Decision Date | 06 June 1978 |
| Docket Number | No. 76-018,76-018 |
| Citation | 83 Wis.2d 780,266 N.W.2d 397 |
| Parties | Robert TOPP and Jean Topp, Appellants, v. The CONTINENTAL INSURANCE COMPANY, a Foreign Insurance Corporation, James Vitale, Jr., and Joseph Vitale, partners, d/b/a Mr. V's, Defendants, American States Insurance Company, a Foreign Insurance Corporation and James C. Vitale, Sr., Respondents, Ervin Hunt, d/b/a Hunt Construction Company, and Town of Madison, a Municipal Corporation, Third-Party Defendants. |
| Court | Wisconsin Supreme Court |
Daniel G. Sandell (argued), and Johnson, Bieber & Swingen, Madison, on brief, for appellants.
Bruce K. Kaufmann (argued), and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief, for respondents.
At approximately 9:00 p. m. on January 11, 1973, Robert Topp got out of a taxicab on West Badger Road in front of Mr. V's tavern-restaurant. As Topp walked across the gravel shoulder of Badger Road to the blacktop parking lot in front of Mr. V's, he apparently tripped or slipped on a ridge created by the height disparity between the edge of the blacktop parking lot and the abutting gravel strip. Topp fell to the ground, fracturing his arm.
Topp and his wife (hereinafter Topp) subsequently brought action against James Vitale, Sr. (hereinafter Vitale), owner of the property upon which Mr. V's was located, and against Joseph Vitale and James Vitale, Jr., owner-operators of Mr. V's.
Vitale impleaded the Town of Madison, on the theory that the Town rather than Vitale had control over the gravel shoulder of Badger Road, and Ervin Hunt, the contractor who installed the blacktop parking lot.
Prior to trial, Topp settled his claim against Joseph Vitale and James Vitale, Jr. The trial court dismissed the defendant Town of Madison and the defendant Irvin Hunt from the action on the merits, with prejudice. The dismissal of the third party defendants was not appealed.
The special verdict answers returned by the jury found that Topp fell on property over which Vitale exercised control, but that Vitale had not been negligent with respect to his maintenance of the property. Judgment was entered on the verdict dismissing Topp's complaint. We affirm.
Topp contends that the trial court committed prejudicial error by submitting its special verdict question No. 5 to the jury. This question, he argues, failed to present to the jury the crucial issue of Vitale's duty under sec. 101.11(1), Stats., the safe place statute, 1 to maintain and repair his property.
Special verdict question No. 5 inquired:
"Question No. 5: At the time of the accident and immediately prior thereto, was the defendant James Vitale, Sr. negligent with respect to maintaining the parking lot in a condition as structurally safe as the nature thereof would reasonably permit?" (Emphasis added.)
Topp argues on appeal that the evidence was undisputed that the blacktop of the parking lot had been properly installed, that the blacktop was flush with the abutting gravel at the time of installation but not at the time of Topp's fall, that the blacktop was still structurally sound at the time of trial, and that the evidence established that proper repair or maintenance was required to keep the surface of a blacktopped parking lot flush with abutting gravel. A jury question was therefore presented, asserts Topp, with respect to maintenance and repair rather than with respect to construction.
The trial court properly instructed the jury that the owner of a place of employment has the duty to "so construct, repair or maintain such place of employment as to render the same safe." 2 Topp contends that special verdict question No. 5 should have been framed in conformity with the trial court's instruction concerning the duty of an owner of a place of employment to maintain and repair his premises. Topp asserts that question No. 5 dealt with construction rather than maintenance and that the trial court "literally tied the jury's hands by restricting (question No. 5) with the phrase 'structurally safe.' "
We do not agree that it was prejudicially erroneous for the trial court to have used the term "structurally safe" in the special verdict. This court has frequently stated that the form of the special verdict rests in the discretion of the trial court, and the court's chosen form will not be rejected unless the inquiry, taken with the applicable instruction, does not fairly present the material issues of fact to the jury for determination. Carson v. Beloit, 32 Wis.2d 282, 287, 145 N.W.2d 112 (1966); Sheldon v. Singer, 61 Wis.2d 443, 453, 213 N.W.2d 5 (1973); Wirsing v. Krzeminski, 61 Wis.2d 513, 523, 213 N.W.2d 37 (1973).
Structurally means "in regard to the structure." Structure is defined as something constructed or built; something made up of more or less interdependent elements or parts. Webster's Third New International Dictionary, Unabridged (1961). The junction of the edge of the blacktop and the abutting gravel is thus a part of a "structure." The phrase "structurally safe" was neither incorrect nor misleading. 3 Question No. 5 inquired whether Vitale had been negligent with respect to maintaining the parking lot in a "structurally safe" condition. The question properly understood asked whether Vitale had been negligent in maintaining the junction of the edge of the blacktop and the edge of the gravel in a condition as safe as the nature thereof permitted. There is no merit to Topp's contention that the effect of question No. 5 was to "negate the evidence . . . regarding the maintenance deficiency."
By motions after verdict, Topp asked the trial court (1) to change from "no" to "yes" the jury's answer to the question whether Vitale had been negligent with respect to maintaining the parking lot, and (2) to insert "yes" in answer to the question whether Vitale's negligence had been a cause of Topp's accident.
Because there was "no evidence to contradict the evidence that the blacktop/gravel border was in disrepair and in need of maintenance," argues Topp on appeal, the jury's finding on the issue of liability "was contrary to the evidence and law." Topp claims that it follows that the trial court erred in refusing to change the answers in the verdict on the issue of liability.
The rules governing when it is proper for a trial court to change the answer of a jury verdict are well settled. If there is any credible evidence which, under any reasonable view, fairly admits of an inference that supports the jury's finding, the trial court has no authority to change the jury's answer. Only if the record is devoid of evidence that would sustain the verdict, or if the evidence is incredible, is it within the prerogative of the trial court to substitute its view of the evidence for that of the jury. In determining whether there is any credible evidence to support the jury's verdict, the evidence must be viewed in the light most favorable to the jury's verdict. Maichle v. Jonovic, 69 Wis.2d 622, 626, 230 N.W.2d 789 (1975).
Topp appears to assert that the uncontradicted evidence that the gravel shoulder of West Badger Road was not flush with the blacktop of Mr. V's parking lot was a sufficient basis for holding Vitale liable under the safe place statute, sec. 101.11(1), Stats., as a matter of law. However, there are three elements necessary to liability under the safe place statute: "the existence of a hazardous condition, that such condition caused the injury, and that the (owner or) employer knew or should have known of the condition." Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis.2d 321, 326, 227 N.W.2d 444, 446 (1975).
All defects are not necessarily "unsafe" within the meaning of sec. 101.11(1), Stats. Although the statute imposes a duty more stringent than the duty of ordinary care, the owner or employer is not an insurer. Gross v. Denow, 61 Wis.2d 40, 46, 212 N.W.2d 2 (1973). Whether or not a place is safe depends upon the facts and conditions...
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