Zinter, Jr. v. Oswskey

• Decision Date: 17 July 2001
• Docket Number: 00-2643
• Citation: 247 Wis.2d 497,633 N.W.2d 277
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. John Zinter, Jr., a minor, by his Guardian Ad Litem, Thomas J. Lyons, Plaintiff-Appellant, v. Darlene Oswskey, Robert Oswskey and American States Insurance Company, a Wisconsin corporation, Defendants-Respondents.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III
• Court: Wisconsin Court of Appeals

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62

John Zinter, Jr., a minor, by his Guardian Ad Litem, Thomas J. Lyons, Plaintiff-Appellant v Darlene Oswskey, Robert Oswskey and American States Insurance Company, a Wisconsin corporation, Defendants-Respondents

No. 00-2643

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

July 17, 2001

APPEAL from a judgment of the circuit court for Douglas County: JOSEPH A. MCDONALD, Judge. Reversed and cause remanded.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1. CANE, C.J.

John Zinter, Jr., a minor, appeals a summary judgment in favor of Darlene Oswskey, Robert Oswskey and American States Insurance Company (collectively, the Oswskeys). Zinter severed the tip of his finger while a guest at the Oswskey home. Zinter sued the Oswskeys, alleging that his finger was injured by the Oswskeys' rabbit "or some other mechanism of injury." The circuit court dismissed Zinter's claim after concluding that the Oswskeys were immune from liability pursuant to Wis. Stat. §895.52(2)(b),¹ the recreational immunity statute.

¶2. Zinter contends that there are disputed issues of fact that preclude summary judgment and that the recreational immunity statute is inapplicable to his claims. We conclude that the statute is inapplicable to one of his claims, and may apply to his second claim, depending on the resolution of disputed material facts. We reverse the summary judgment and remand for further proceedings.

Background

¶3. Many of the facts are undisputed. Zinter's father, John, Sr., asked the Oswskeys to watch his two children, John, Jr., age three, and Lindsay, age four, so that he could attend a funeral. Darlene Oswskey and her friend, Kay Bartz, were at home with John, Lindsay and Darlene's two children, ages twelve and three. While Darlene was making dinner in the kitchen, Bartz and the three youngest children were outside the house.

¶4. Bartz heard a scream and looked toward the source of the sound. She ran toward the scream and within three seconds, reached Zinter. He was walking toward her from an area by a rabbit cage and the garage. Zinter was holding out his right hand and crying. Bartz saw that Zinter's finger was bleeding and that the fingertip appeared to be missing. She carried him to the house where she met Darlene, who called the paramedics.

¶5. In her deposition Bartz testified that after Zinter was injured, he told her that "the rabbit did it" or "the rabbit bit it." Several adults, including law enforcement personnel, looked for the tip of Zinter's finger in and around the rabbit cage, but did not find it. Zinter was eventually taken to the hospital, where he underwent surgery to repair his finger. At the hospital, he again told at least one doctor that a rabbit had bit his finger.

¶6. Zinter, acting through his guardian ad litem, brought this action. His complaint alleged three claims: (1) the Oswskeys negligently supervised Zinter while he was in their care and custody; (2) the Oswskeys as landowners negligently kept the rabbit; and (3) the Oswskeys' liability insurance policy provided coverage for the Oswskeys' negligent acts.

¶7. The Oswskeys moved for summary judgment, contending that Zinter could not prove negligence. Specifically, they argued first that there was no evidence Darlene had negligently supervised Zinter. They explained:

At the time the incident occurred, Ms. Oswskey was in the kitchen preparing dinner for the children. Ms. Oswskey had entrusted the children's supervision to her adult friend, Kay Bartz. The children were being supervised by a responsible adult while Ms. Oswskey was preparing dinner. Ms. Oswskey can in no way be found negligent in entrusting another adult to supervise the children for a short period of time while she made them dinner. [Zinter] cannot prove that this entrustment was a breach of her supervisory duties. Therefore, [Zinter] cannot show that Ms. Oswskey breached her duty of ordinary care to him. ...

¶8. Second, the Oswskeys argued that they had not breached a duty to Zinter by keeping a rabbit on the property. They stated:

At no time relative to the incident in question was the rabbit out of its cage. Additionally, [Zinter] has offered no proof that the rabbit itself inflicted the injury, other than what the three-year-old [Zinter] said following the incident. Defendants had no prior notice of any problems whatsoever with the rabbit biting or causing any problems to anyone.

In support of their contention that there was no proof the rabbit bit Zinter, the Oswskeys submitted medical reports that included statements from Zinter's doctors questioning whether a rabbit bite could have caused Zinter's specific injury. These reports suggested the injury could have been caused by a rabbit cage hinge or other mechanism.

¶9. Third, the Oswskeys argued that with respect to both claims, Zinter was implicitly seeking application of the res ipsa loquitur doctrine. The Oswskeys disagreed that the doctrine was applicable, noting that children often injure themselves and those injuries are not necessarily caused by anyone's negligence.

¶10. Finally, the Oswskeys argued that public policy considerations preclude Zinter from recovering, stating that if Zinter was allowed to recover, the court "would be essentially holding a landowner strictly liable for any injury to any child on their land."

¶11. Zinter opposed the summary judgment motion, arguing that the Oswskeys had negligently left him unsupervised while he played in the yard. He also contended that he had been injured either by a rabbit bite or by cutting himself on the rabbit cage, and that the doctrine of res ipsa loquitur applied. He explained, "Regardless of which agent caused the injury ... both of the agents were in the exclusive control of [the Oswskeys] at the time of loss." Finally, Zinter submitted evidence and a veterinarian's opinion that his injury could have been caused by a rabbit bite.

¶12. The trial court considered the parties' arguments and issued an oral ruling, deciding the Oswskeys' motion on an issue not raised by the parties: application of the recreational immunity statute. The court explained that for purposes of deciding the summary judgment motion, it would assume those facts most beneficial to the plaintiff. The pertinent facts, the court concluded, were: (1)Zinter was a young child; (2) the caged rabbit severed the distal end of Zinter's finger; (3) Zinter's father placed him in the Oswskeys' custody for safekeeping; (4) Darlene was cooking supper with Bartz, who entered the kitchen, asked Darlene if she wanted help, and then returned outside when Darlene indicated no help was needed; and (5) the Oswskeys had kept the rabbit, along with some of its siblings, as a family pet for five or six years.

¶13. The trial court concluded that based on our supreme court's decision inHudson v. Janesville Conservation Club, 168 Wis. 2d 436, 484 N.W.2d 132 (1992), the Oswskeys were immune from liability. Specifically, the court held that Zinter had been injured by the rabbit, a "wild animal" pursuant to Wis. Stat. §895.52(2)(b). The court granted summary judgment for the Oswskeys on all counts. This appeal followed.

Standard of review

¶14. We review the trial court's grant of summary judgment de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). When reviewing the trial court's decision, we apply the same standards as the trial court. See id. Wisconsin Stat. § 802.08(2) sets forth the standard by which summary judgment motions are to be judged:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Id. The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion, L.L.N. v. Clauder, 209 Wis.2d 674, 684, 563 N.W.2d 434 (1997); Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980), and doubts as to the existence of a genuine issue of material fact are resolved against the moving party. L.L.N., 209 Wis.2d at 684. The court takes evidentiary facts in the record as true if not contradicted by opposing proof. Id.

Discussion

I. Negligence claims

A. Negligence principles

¶15. Zinter's complaint alleges that the Oswskeys were negligent as babysitters and as landowners. In order to constitute a claim for negligence, there must exist: (1) a duty of due care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the plaintiff's injury; and (4) an actual loss or damage as a result of the injury. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶28, 241 Wis.2d 804, 623 N.W.2d 751.

¶16. Negligence is ordinarily an issue for the fact-finder and not for summary judgment. Id. at ¶2. Summary judgment is uncommon in negligence actions, because the court must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that the defendant failed to exercise ordinary care. See id. Ordinarily a court cannot so state. Id. Even where historical facts are concededly undisputed, the peculiarly elusive nature of the term "negligence" and the necessity that the trier of fact pass upon the reasonableness of the conduct makes it uncommon for personal injury cases to be decided on summary judgment. See id. (citing Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965)).

B. Negligence as babysitters

¶17. Zinter's complaint alleges that the Oswskeys...