Waters by Murphy v. U.S. Fidelity & Guar. Co., 84-573

Decision Date10 April 1985
Docket NumberNo. 84-573,84-573
Citation369 N.W.2d 755,124 Wis.2d 275
PartiesChad WATERS, a minor, by his Guardian ad Litem, James J. MURPHY, Gilbert Waters and Kathleen Waters, Plaintiffs-Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign corporation, and Alice Ann Mainus, Defendants, Thresherman's Mutual Insurance Company, a Wisconsin corporation, Stanley J. Mainus, Great American Insurance Company, a foreign corporation, and James Mainus, Defendants-Respondents. GREAT AMERICAN INSURANCE COMPANY and James Mainus, Defendants and Third-Party Plaintiffs, v. BADGER MUTUAL INSURANCE COMPANY, Third-Party Defendant.
CourtWisconsin Court of Appeals

Review Denied.

James J. Murphy of Gillick, Murphy, Gillick & Wicht, Milwaukee, for plaintiffs-appellants.

Margaret Grabowski of Brennan, Steil, Ryan, Basting & MacDougall, S.C., Janesville, for Stanley J. Mainus and Thresherman's Mut. Ins. Co.

Ted W. Tornehl of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, for James Mainus and Great American Ins. Co.


BROWN, Presiding Judge.

In this appeal, we are asked to decide whether the Wisconsin Supreme Court's decision in Antoniewicz v. Reszczynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975), abolished all former Wisconsin case law involving the open and obvious danger exception to ordinary negligence. We hold that it did not. We conclude the Antoniewicz decision simply eliminated the distinction in duty owed by an owner or possessor of land to invitees and licensees. Therefore, we affirm the trial court's granting of the summary judgment since the landowners had no obligation to protect people coming upon a natural pond of water situated on their land.

In early April of 1982, ten-year-old Chad Waters and a friend went to the Mainuses' farm to retrieve a sled that was on the land. The land is bowl-shaped, and in the spring, melting snow creates a pond with a depth of up to six to ten feet in the middle. 1 This pond had frozen, and the sled was sitting on the ice. After several unsuccessful attempts to reach the sled, 2 Chad decided that he, being the lighter of the two, would walk out onto the ice and get the sled. As Chad neared the sled, he fell through the ice. He remained submerged for fifteen to twenty minutes and has suffered severe permanent brain damage.

Chad, by his guardian ad litem and his parents (the Waters), instituted this action against the owners of the land, James and Stanley Mainus. The complaint alleged that the Mainuses were negligent in failing to prevent injury on their land and that the children were lured onto the land by an "attractive nuisance." The trial court dismissed the action on a motion for summary judgment holding, as a matter of law, that the Mainuses could not be held liable for the child's injury. The Waters appeal.

The granting of a summary judgment is a question of law which we review ab initio. See Grams v. Boss, 97 Wis.2d 332, 337, 294 N.W.2d 473, 476 (1980). An appellate court, when reviewing the granting of a summary judgment, must apply the standards set forth in sec. 802.08, Stats., in the same manner as the trial court. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834 (1980). Summary judgment should not be granted unless the moving party demonstrates a right to judgment with such clarity as to leave no room for controversy. Grams, 97 Wis.2d at 338, 294 N.W.2d at 477.

The Waters allege that there are two potential grounds for recovery: (1) assuming Chad was an invitee/licensee, the Mainuses were negligent in failing to take precautions to protect him from hazards posed by the accumulation of water, or (2) assuming Chad was a trespasser, a sledding trail on the property was an artificial condition which lured him onto the land and, once on the land, he was injured. We hold that even assuming the veracity of these claims, the pond constituted an open and obvious danger which exempts the Mainuses from liability, and the Antoniewicz case has not abrogated this exemption.

Antoniewicz abolished the old distinctions that applied to licensees and invitees upon the land. Antoniewicz held that:

[t]he duty toward all persons who come upon property with the consent of the occupier will be that of ordinary care.... Under that test, as we have repeatedly stated, negligence is to be determined by ascertaining whether the defendant's exercise of care foreseeably created an unreasonable risk to others.

Antoniewicz, 70 Wis.2d at 857, 236 N.W.2d at 11.

It is conceded on this appeal that the Mainuses did not change or alter the condition of their land--they essentially left their land "as is." The Waters, relying on Wis J I--Civil 8020, assert that the performance of ordinary care includes care in discovering conditions or defects on the premises which expose a person to an unreasonable risk of harm. Once recognizing that the pond was a dangerous condition, the Waters assert that it was the Mainuses' duty to either correct the danger or warn others of the existence of such danger. By failing to fence in the pond or post a warning sign, the Waters maintain that a question of material fact arises concerning the potential breach of this duty.

The Waters acknowledge the various pre-Antoniewicz cases that created an exception to the rule that there is a duty to warn of or correct a dangerous condition. These cases, known as the "open and obvious" danger cases, allow owners of natural ponds and the like the freedom from having to exercise ordinary care over those particular confines. The Waters insist, however, that the above-quoted language in Antoniewicz mandates that owners of these natural conditions must now exercise ordinary care with respect to them, thus overruling all the previous cases. The Waters argue that as long as an owner can foresee danger, Antoniewicz demands that the owner affirmatively act to prevent it. We disagree.

Owners and occupiers of land have a privilege to make use of the land according to their own desires. Owners, however, must have due regard for the interest of others who may be affected by it. This is because the owner is in a position of control and is normally best able to prevent any harm to others. One important limitation to the responsibilities placed upon these owners has been the traditional rule that there is no affirmative duty to remedy conditions of purely natural origin upon the owner's land, although these conditions may be highly dangerous or inconvenient to others. See Schilz v. Walter Kassuba, Inc., 27 Wis.2d 390, 395, 134 N.W.2d 453, 456 (1965), quoting with approval Restatement (Second) of Torts § 339 at 83 (Tent.Draft No. 5). These natural conditions may reasonably be expected to be fully understood and appreciated as open and obvious dangers. Id. This is why bodies of water have long been included in the category of an open and obvious danger. See generally Fiel v. City of Racine, 203 Wis. 149, 156-57, 233 N.W. 611, 614 (1930); Klix v. Nieman, 68 Wis. 271, 274, 32 N.W. 223, 224 (1887).

When Antoniewicz abrogated the distinction between licensees and invitees, it was merely affording the same protection to any person who came upon the land with consent, whether by invitation or otherwise. To all of these people, the owner now has an affirmative duty to protect them--not only against the dangers of which the owner knows but also against the dangers which, with reasonable care, the owner might discover. Whether as an invitee or licensee, however, the open and obvious danger exception still exists. As Prosser has stated, "there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them." W. Prosser, The Law of Torts, § 61 at 394 (4th ed. 1971) (footnotes omitted). Against such conditions, it may normally be expected that the visitor will protect himself. While it is doubtless true that the owner may, generally speaking, foresee danger in a natural pond,...

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