Wright v. Coleman

• Decision Date: 27 March 1989
• Docket Number: No. 87-1094,87-1094
• Citation: 148 Wis.2d 897,436 N.W.2d 864
• Parties: Bud D. WRIGHT and Joanne J. Wright, Plaintiffs-Appellants-Petitioners, v. Thomas COLEMAN and American Family Mutual Insurance Company, a domestic corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 864

436 N.W.2d 864

148 Wis.2d 897

Bud D. WRIGHT and Joanne J. Wright, Plaintiffs-Appellants-Petitioners, v. Thomas COLEMAN and American Family Mutual Insurance Company a domestic corporation, Defendants-Respondents.

No. 87-1094.

Supreme Court of Wisconsin.

Argued Nov. 2, 1988.

Decided March 27, 1989.

John K. Brendel, Brookfield, on briefs, for plaintiffs-appellants-petitioners.

James R. Sommers (argued) and Hunter, Sommers & Lavin, Waukesha, on brief, for defendants-respondents.

HEFFERNAN, Chief Justice.

This is a review of a decision of the court of appeals which affirmed a judgment of the circuit court for Waukesha county, Harold J. Wollenzien, circuit judge, that dismissed the cause of action of Bud D. Wright, a city of Brookfield firefighter, and Joanne J. Wright (hereinafter Wright), following a jury verdict finding that the landowner Thomas Coleman was not negligent in respect to conditions which allegedly caused personal injuries to Wright.

Because we conclude that the jury was erroneously instructed, we reverse the decision of the court of appeals and remand to the circuit court for a new trial. We direct that the standard of care to which the landowner Coleman must conform is that of ordinary care under the circumstances--the same standard of care which all persons must exercise. Antoniewicz v. Reszcznski, 70 Wis.2d 836, 236 N.W.2d 1 (1975).

On this review and on the appeal at the court of appeals level, the reviewing courts did not have the benefit of a transcript. Because the question, what jury instructions were appropriate, is fact based, it is apparent that the appellants initially ought to have supplied the transcript. However, as was technically his option under the rules, appellant Wright filed a statement that a transcript was not necessary for the appeal. Rule 809.11(4), Stats. Respondent Coleman responded by stating that a transcript was necessary but did not move for the production of a transcript under rule 809.16(1) or order a transcript at his own expense, the cost of which could have been recoverable in the event of respondent's success on appeal. As Walther, Grove, and Heffernan, Appellate Practice and Procedure in Wisconsin, sec. 7-2 (1986), point out, "In most appeals, a complete or partial transcript will be necessary." Thus, we proceed, as did the court of appeals, to discuss evidentiary facts without the benefit of a transcript. We find it appropriate to do so under the circumstances set forth below.

Coleman on this appeal objects to the statement of facts appearing in Wright's brief and the facts asserted at oral argument, stating that almost all the material facts were contested. Counsel for Coleman at oral argument acknowledged, however, that there was some evidence of record from which a jury could conclude that the facts were as stated by Wright, although he asserted that the weight of the evidence was to the contrary. For the purpose of this review, therefore, we accept the resume of facts stated by Wright, for the factual predicate for jury instructions is simply whether there was evidence of record which the jury could, although it need not, believe. Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d 743, 750, 235 N.W.2d 426 (1975). Thus, the facts, although disputed are acknowledged to be of record. The facts are those taken from Wright's brief and pose the legal question for which we accepted this review. That question is whether the only liability of a landowner to a firefighter is predicated on the "hidden hazard" standard referred to in Clark v. Corby, 75 Wis.2d 292, 249 N.W.2d567 (1977), or whether the duty of an owner or occupier of land is ordinary care under the circumstances, subject to the narrow exceptions to liability set forth in Hass v. Chicago & North Western Ry. Co., 48 Wis.2d 321, 179 N.W.2d 885 (1970). As stated above, the appropriate standard is ordinary or reasonable care.

Bud Wright, the plaintiff and petitioner before this court, was employed as a firefighter by the city of Brookfield when, on January 8, 1983, at about three o'clock in the morning, he, with his fire company, responded to a report of a fire on the property of Thomas Coleman. The first officer at the scene was a police officer, who ordered Coleman, the landowner, into the house and away from the detached garage, where the fire was blazing. After Wright arrived at the scene, he was attempting to bring a hose line up to the garage when he fell on "glare ice" on the driveway. There were assertions at trial that this ice was the result of Coleman's son using a garden hose late in the preceding afternoon to wash a car. There was some evidence that, on the particular evening, there was no ice anywhere else in the city of Brookfield--only this artificially created icy area. It is asserted that Wright so severely injured his knee that he was obliged to retire as a firefighter.

While it is asserted that the "facts" recited above were controverted, nevertheless the court implicitly found there was some support for those facts, because it instructed on both the negligence of the plaintiff Wright and the negligence of defendant-landowner Coleman.

Wright asked for an instruction that would have told the jury no liability was incurred by a homeowner for negligence in starting a fire or for negligence in failing to curb its spread, but "an owner or occupier for all other purposes owes the firefighter the same duty of reasonable care as such owner/occupier would owe to any other person, except a trespasser. A firefighter ... is not a trespasser...."

He further asked for an instruction explaining that "[a] possessor of premises does, however, have the duty to exercise ordinary care under all of the existing circumstances to maintain his premises so as to avoid exposing persons on his premises with his consent to an unreasonable risk of harm."

Judge Wollenzien gave these instructions in substantially the same form as requested by the plaintiff. Somewhat similar instructions were also submitted by defendant Coleman.

The defendant, however, asked for a special instruction based on Clark v. Corby, supra. Over the objection of plaintiff Wright, that instruction was given. It provided:

"The negligence referred to is based upon the duty of property owners or occupiers to warn a firefighter of hidden hazards known to the owner or occupier but not known to the firefighter. In order for the owner or occupier to be negligent, four factors must co-exist:

(1) A hidden hazard exists on the property--a concealed danger that foreseeably created an unreasonable risk to others; and

(2) Which hidden hazard is known to the property owner or occupier; and

(3) Which hidden hazard is not known and not observable by the firefighter; and

(4) There existed a clear opportunity for the property owner or occupier to give a warning of the hidden hazard.

"Only if you find all four facts to co-exist can you find the Defendant Thomas Coleman negligent."

We conclude that this latter instruction was erroneous. The ordinary negligence instructions were appropriate and should have been given. The error was in that portion of the above instruction which limited the negligence of the landowner to only that which defined hidden hazards. ¹

To put this case in perspective, we briefly review the earlier Wisconsin cases which are instructive in respect to the case before us.

The first case of direct relevance is Hass v. Chicago & North Western Ry Co., 48 Wis.2d 321, 179 N.W.2d 885 (1970). Therein, this court adopted the "fireman's rule" as a policy exception to liability of a landowner for negligence causing injury to a firefighter. We stated that the duty of a landowner is simply that of reasonable care in respect to a firefighter who comes upon his property to fight a fire. We treated that negligence in the same way as any negligence in respect to one who comes upon the land by invitation. Hence, in the ordinary course of duty, breach, injury, and proximate cause analysis, we would have imposed liability upon a landowner for negligence in starting a fire or properly failing to curtail its spread--except for public policy factors that are incorporated in the concept of proximate cause. We said:

It is obvious that starting a fire under the circumstances alleged is negligence irrespective of who is eventually injured thereby.

To impose liability it must also be determined that the negligence was a "substantial factor" in causing the injury. Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 237, 55 N.W.2d 29. The plaintiff has pleaded the negligence of the railroad and that it is a "substantial factor" in causing the injuries. These are factual allegations that must be treated as verities on demurrer. However, negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that the defendant is liable for the plaintiff's injuries. The determination to not impose liability in instances where a negligent act has been committed and the act is a "substantial factor" in causing the injury rests upon considerations of public policy.

In Colla v. Mandella (1957), 1 Wis.2d 594, 598, 599, 85 N.W.2d 345, we said:

'It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy because the injury is too remote from the negligence or too "wholly out of proportion to the culpability of the negligent tort-feasor," or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden upon users of the highway, or be too likely to open the way for fraudulent claims, or would 'enter a field that has no sensible or just stopping point.' '

Hass v. Chicago & North Western Ry. Co., 48 Wis.2d at 326, 179 N.W.2d 885.

We...