Warner v. Lieberman, 56-C-237.
Decision Date | 17 September 1957 |
Docket Number | No. 56-C-237.,56-C-237. |
Citation | 154 F. Supp. 362 |
Parties | Ann WARNER, Plaintiff, v. Leo LIEBERMAN and Eleanor Lieberman, Defendants. |
Court | U.S. District Court — Eastern District of Wisconsin |
N. Paley Phillips, Milwaukee, Wis., for plaintiff.
John F. Zimmermann and Shaw, Muskat & Paulsen, Milwaukee, Wis., for defendants.
This matter is before the court on defendants' motion for summary judgment, pursuant to Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A., based upon the records, files, depositions and affidavit of the defendant Eleanor Lieberman. There have been filed in opposition to the motion, an affidavit of the plaintiff and an affidavit of Aaron Starobin, one of her attorneys.
On this motion only the facts most favorable to the plaintiff and the most permissible inferences from those facts need be considered. The court is not authorized to determine issues of fact or permissible inferences in considering this motion.
There is some conflict and inconsistencies between the testimony of plaintiff in her deposition and her affidavit filed in opposition to this motion. The court can consider on this motion only the portions most favorable to her, regardless of how much of her testimony in the deposition may be in conflict or inconsistent with her affidavit.
Taking the portions of the record by way of depositions and affidavits most favorable to the plaintiff, it appears that she was the gratuitous house guest of defendants, she being a sister of the defendant, Leo Lieberman. She arrived at the home of the defendants on July 1, 1956 from California. On July 12, 1956 she sustained the injuries for which she brings this suit. She had been seated on a chaise longue in the yard of the defendants. Defendant Leo Lieberman was grilling steaks. Defendant Eleanor Lieberman was in the house. This chaise longue had never previously been used by the plaintiff. She had seen it but did not observe anything wrong with it. The back of the chair portion of the chaise longue was toward the south and the footstool portion was to the north. Plaintiff was facing west with her back toward the home of the defendants. She sat on the chaise longue for a short period of time and then heard her brother, Leo Lieberman, call for her to come and eat. The portion of the chaise longue where one sits is considerably lower than the average chair, and in order to get up, one has to push on the edge of the longue in order to get the body up. As she pushed herself off and walked around the front of the chaise longue, or to the north, she had taken only a step or two when she fell because her right foot became entangled in the leg of the chaise longue which was loose and not fastened and "which apparently was pushed to the west" as she got off the chaise longue. As she sat on the chaise longue, she could not notice that the leg was loose. The loose leg of the chaise longue swiveled in a clockwise direction and pulled away from the seat as she was walking around the front and it caught her right leg, tripping her. At the time she was seated on the chaise longue, its leg was in a normal position. In her affidavit, plaintiff states that there was no opportunity to see the defective leg which had swiveled from the front of the chair before she tripped. Photographs of the chaise longue are attached to and made a part of plaintiff's affidavit, which photographs indicate that it is a very common type of aluminum and plastic garden chaise longue.
The affidavit of Aaron Starobin states that he examined the chaise longue on August 20, 1957; that there were a total of three screws missing from the stool portion of it, that originally the front legs were attached by four screws, two on each side, and that at the time of his examination, thirteen months after the injury, only one screw remained which was on the right-hand side; that he sat on it and in getting up, the stool portion could be seen to swing out from the chair portion in a clockwise fashion.
The testimony of defendant Leo Lieberman in his deposition indicates, among other things, that during the winter prior to the accident, the chaise longue had been stored in the basement; that when he took it out in late May or early June, the front portion of the front leg was not fastened to the footstool portion of the chaise longue; that the support should have been fastened to the footstool portion on the left side and the right side; that the left front side was not fastened, that a screw and bolt were missing; that when it had been stored the previous fall, it was in bad shape; that he noticed that it needed fixing but that he had not fixed it. That when he took it out in the spring, he again noticed that it was not working and that it required repair. That if he would put the support underneath the frame, it would stay there and hold, but that it wouldn't hold solidly; that if the footstool portion was pushed slightly, the support leg would come loose; that he knew a person could fall on the leg that was loose and that it would move when a person was either about to sit in it or get up from it.
The affidavit of Eleanor Lieberman set forth that she knew there were several screws missing from the chaise longue in the summer of 1956 and prior to the accident; that she and the child of the defendants used the chaise longue during that time with the screws missing, and to the best of her knowledge no one had ever been injured because of the condition of the chaise longue before plaintiff's accident. That she did not see the legs of the chaise longue protruding or extending beyond the front or side of the chaise longue before the accident, although she did see the legs of the chaise longue protrude after the accident when the plaintiff was entangled in the chaise longue. That prior to the accident she had used the chair carefully, being aware of its condition, and that she had never told the plaintiff of its damaged condition.
The ultimate facts most favorable to the plaintiff which could be found by a jury may be summarized as—
(a) A chaise longue with three missing screws or bolts on the part that the occupant uses as a foot rest so that on occasion and given the right impetus, that part would swing out.
(b) This condition existed for two summer seasons.
(c) There had been no previous injury or untoward incident in the use of this chaise longue.
(d) Defendants were aware of this condition and, notwithstanding that condition, used the chaise longue.
(e) Plaintiff was not aware of that condition.
(f) Defendants did not inform plaintiff of that condition.
(g) Plaintiff was a gratuitous guest of defendants.
This question must be tested by the law in Wisconsin, it being a diversity case, and the acts having happened in Wisconsin.
The leading case involving host and guest in Wisconsin is the case of Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 836, 12 A.L.R. 982. In that case plaintiff was defendant's gratuitous guest. Defendant's floors had been recently finished, were highly polished and had had oriental rugs thereon. While walking through the house, plaintiff slipped on a small rug about four feet square and sustained injuries. On motion of defendant, the trial court directed a verdict in defendant's favor. The Supreme Court affirmed. Plaintiff's counsel urged that the question was whether defendant was negligent, a question of ordinary care. Plaintiff urged that it was defendant's duty to render the premises reasonably safe for guests. The court points out that plaintiff's counsel was endeavoring to bring the case within the legal definition of invitor and invitee or licensor and licensee where there would be liability for active negligence.
After reviewing cases in Wisconsin and elsewhere, the court points out that the legal distinction between implied invitor and invitee and a mere licensor and licensee is well-marked by the decisions, "the general rule being that there is no liability on the part of the licensor for injury sustained by those coming on his premises as mere licensees, unless there is something on the premises in the nature of a trap, which fact proximately caused the injury, or the licensor was guilty of active negligence." And, again on page 189 of 173 Wis., on page 836 of 180 N.W. the court states:
"* * * He (a guest) stands on no better footing than the bare licensee, and must take the premises as he finds them, subject, however, to the limitation that the licensor must not set a trap or be guilty of active negligence which contributed to the injury." (Parenthesis supplied.)
The court quotes with approval from Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, as follows:
"`* * * The principle of the decision seems to be that a guest, who is receiving the gratuitous favors of another, has no such relation to him as to create a duty to make the place where hospitality is tendered safer or better than it is. * * *'"
And, again at page 190 of 173 Wis., at page 837 of 180 N.W. the court states:
The rule of Wisconsin Courts in relation to the duties owed by a host to a gratuitous guest have been applied in automobile cases even though Wisconsin has no "guest" statute. Thus, speaking of the duty owed to the guest by the host in an automobile case, Cleary v. Eckart, 191 Wis....
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