Summary
In Krause v. Veterans of Foreign Wars Post No. 6498 (1960), 9 Wis.2d 547, 554, 101 N.W.2d 645, this court suggested in negligence cases that trial courts frame the questions relating to all parties in terms of negligence so as to make it easier for the jury to compare the negligence of the parties.
Summary of this case from Carson v. BeloitOpinion
February 4, 1960 —
March 8, 1960.
APPEAL from a judgment of the circuit court for Milwaukee county: MICHAEL T. SULLIVAN, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Irvin B. Charney and Marvin Resnick, both of Milwaukee.
For the respondent there was a brief by Moore Moore of Milwaukee, and oral argument by Raymond J. Moore.
Action by the plaintiffs Lora Krause and Otto Krause, her husband, to recover damages against the defendant Post of the Veterans of Foreign Wars by reason of a personal injury received by Lora Krause as a result of a fall on the dance floor in the defendant's clubhouse.
The accident occurred on the evening of July 14, 1956. The plaintiffs were attending a public dance at such clubhouse to which they had paid an admission charge. The dance floor was constructed of asphalt tile which had been waxed. The dancing area was encircled by chairs and small tables at which the patrons sat while not dancing. While Mrs. Krause was dancing with one Lazzell she fell and fractured her ankle. According to her testimony, the fall was occasioned by her stepping on some hard object which caused her foot to slip.
Immediately after such fall, one of the other men comprising the group with which the Krauses were associating that evening picked up from the floor a chromium "acorn" nut having a diameter of approximately half an inch. Upon examining the nearby chairs he found one having a bolt protruding through the back upon which such nut fitted. Other chairs were found with nuts missing and some with nuts loose.
The chairs in use in the dance hall had been purchased by the defendant in 1949 and had been in continuous use since such purchase. The chair backs and seats are upholstered with a plastic material resembling leather. The back interiors are of wood and, as originally manufactured, each back was attached to the two chromium-plated metal uprights with four screws which passed through openings in the uprights and screwed into the wooden interior. After a period of time, many of such backs became loose as a result of these screws no longer holding. The defendant then repaired a number of such chairs by boring holes through the backs at the point where the screws had been inserted, and then inserting bolts which passed through both the openings in the backs and in the metal uprights. Lock washers were then placed over the protruding bolt ends and acorn nuts screwed on so as to hold the backs firmly in place. After the chairs were so repaired it was noticed from time to time that nuts and bolts would become loose and sometimes the nuts would be missing.
One Nelson, the defendant's employee who had charge of the maintenance of the dance hall, testified that when he would discover a chair with a loose nut he would tighten the same. He also stated that before each dance lie would inspect the floor and make sure there were no foreign objects on the floor.
The action was tried to the court and a jury. The jury returned a special verdict, the first four questions and answers thereto being as follows:
"Question No. 1: Did Lora Krause fall by reason of slipping on the nut?
"Answer: Yes.
"Question No. 2: If you answer question No. 1 `Yes,' then answer this question: At the time and place in question did defendant fail to maintain the dance hall as safe as the nature of the place reasonably permitted?
"Answer: Yes.
"Question No. 3: If you answer question No. 2 `Yes,' then answer this question: Was such negligence on the part of defendant a cause of Lora Krause's injuries?
"Answer: Yes.
"Question No. 4: Ought defendant in the exercise of ordinary care to have known of the nut?
"Answer: No."
In other answers of the verdict the jury found Mrs. Krause guilty of contributory negligence and apportioned the total aggregate negligence 75 per cent to the defendant and 25 per cent to Mrs. Krause.
The trial court granted the defendant's motion after verdict for judgment upon the verdict dismissing the complaint. Judgment was entered accordingly on March 26, 1959. From such judgment the plaintiffs have appealed.
The plaintiffs' complaint alleges that the defendant violated the safe-place statute (sec. 101.06). The evidence did not disclose any structural defect in defendant's building but rather a temporary condition wholly disassociated from the structure. Therefore, there could be no liability imposed upon the defendant as an owner of a public building, but any liability would have to be predicated upon the defendant's failure to safely maintain a place of employment. Jaeger v. Evangelical Lutheran Holy Ghost Congregation (1935), 219 Wis. 209, 212, 262 N.W. 585, and Harnett v. St. Mary's Congregation (1956), 271 Wis. 603, 610, 74 N.W.2d 382. It is conceded that defendant's clubhouse did constitute a place of employment.
Sec. 101.06 provides:
"EMPLOYER'S DUTY TO FURNISH SAFE EMPLOYMENT AND PLACE. Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair, or maintain such place of employment or public building as to render the same safe."
The plaintiffs contend on this appeal that question 4 of the special verdict was unnecessary and, therefore, the jury's answer thereto should have been disregarded by the trial court, and judgment should have been rendered in plaintiffs' behalf for 75 per cent of the damages found by the jury. In support of such contention the plaintiffs maintain that question 2 is the question which inquires as to the defendant's negligence, and, therefore, it necessarily embodies within it the element of the defendant's knowledge of the unsafe condition of the dance floor, or of facts which should have put it on notice thereof.
It is well established in Wisconsin that the safe-place statute does not create a cause of action. "It merely lays down a standard of care and if those to whom it applies violate the provisions thereof they are negligent." Ermis v. Federal Windows Mfg. Co. (1959), 7 Wis.2d 549, 555, 97 N.W.2d 485. The learned trial judge undoubtedly had this principle in mind when he framed question 3 of the special verdict. This is because such question inquires, "Was such negligence on the part of defendant a cause of Lora Krause's injuries?" It is the violation of the safe-place statute which constitutes negligence on the part of an owner of a place of employment. In this respect such statute does not differ from any other safety statute which imposes a duty to exercise a certain prescribed type of care, such as those rules of the road which are embodied in statutes.
In order for the owner of a place of employment to be found to have violated the safe-place statute with respect to a defect due to a failure of maintenance or repair, he must have had either actual or constructive notice of such defect. Shumway v. Milwaukee Athletic Club (1945), 247 Wis. 393, 398, 20 N.W.2d 123; Boutin v. Cardinal Theatre Co. (1954), 267 Wis. 199, 204, 64 N.W.2d 848; and Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 75, 85 N.W.2d 772. The rationale of such rule is stated in Pettric v. Gridley Dairy Co. (1930), 202 Wis. 289, 292, 232 N.W. 595, as follows:
"In terms, the statute [sec. 101.06] imposes the absolute duty upon the employer to repair and maintain the place of employment so as to render the same safe. We have given consideration to the question of whether this statutory provision does impose an absolute duty on the employer so as to make him practically an insurer of the safety of his premises so far as repair and maintenance is concerned. It would seem that in order to make an, employer liable for defects in the nature of repair or maintenance he should have either actual or constructive notice of such defects. Natural principles of justice would seem to require that. . . . We therefore consider that the legislative purpose will be given full scope if the language of the statute be interpreted in accordance with these natural principles of justice, and hold that the duty of the employer to repair or maintain his place of employment does not arise until he has either actual or constructive notice of the defect." (Emphasis supplied.)
We would agree with plaintiffs' contention that question 2 of the verdict made question 4 superfluous, if the trial court would have charged the jury with respect to the necessity of the jury's finding that the defendant had either actual or constructive notice of the alleged unsafe condition in order for the jury to answer question 2 "Yes." However, the trial court gave no such instruction with respect to question 2, but instructed the jury with respect to the element of notice only as to question 4. The objection to use of a separate question covering the element of notice is that because, in the absence of such element in the case of a temporary or transitory defect, there can be no violation of the safe-place statute, and consequently no negligence. Therefore, the use of such additional question is liable to confuse the jury when it comes to consider and answer the comparative-negligence question, as apparently happened in the instant case.
We deem the answers given by the jury to the questions of the special verdict to have resulted in an inconsistent verdict. This is because the "Yes" answer to question 2, together with the answer to the comparative-negligence question which attributed 75 per cent of the aggregate negligence to the defendant, found the defendant to have been negligent, while the "No" answer to question 4 contradicts such finding. One of the plaintiffs' alternative motions after verdict requested a new trial because the verdict was inconsistent. It was error not to have granted such motion.
The "No" answer to question 4 cannot be treated as surplusage, and judgment be entered upon the verdict in behalf of the plaintiffs, unless it can be determined as a matter of law that the defendant did have actual or constructive knowledge of the unsafe condition which the jury found caused the plaintiff wife's injury. While the defendant may have been chargeable with constructive knowledge that some of the nuts on the repaired chairs did become loose and some came off, the testimony of the employee Nelson tended to show that steps were taken to remedy this, and to inspect the dance floor to see that no foreign objects were present upon it. A jury issue, therefore, was presented as to whether the defendant had constructive knowledge of the unsafe condition which it was found caused the plaintiff wife's injury.
We recommend that trial courts, in framing the question of the special verdict which inquires as to whether a defendant violated the safe-place statute, employ the word it negligent." The reason for this is in order to better correlate this question in the minds of the jury with the comparative-negligence question of the verdict. In line with such recommendation, question 2 of the instant verdict, would have been worded substantially as follows:
"At the time and place in question [or at the time and place of Lora Krause's injury] was the defendant negligent with respect to maintaining the dance hall as safe as the nature of the place reasonably permitted?"
In a situation where the defect is temporary or transitory, and consists in a failure to repair or maintain a place of employment in a condition as safe as the nature of the premises reasonably permitted, the instruction to the jury should make it clear that the defendant owner is not negligent if he had no knowledge of the defect or notice of facts which should have caused him to know of its existence.
By the Court. — Judgment reversed, and cause remanded for a new trial.