In Merriman, the plaintiff claimed to have slipped and fallen on a patch of ice due to a defectively constructed downspout, which allowed water emerging from it to run under a protective fence and onto the parking lot.Summary of this case from Humphrey v. Love's Travel Stops & Country Stores, Inc.
April 13, 1967. —
May 9, 1967.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there was a brief by Kennedy Savage and K. Thomas Savage, all of Kenosha, and oral argument by K. Thomas Savage.
For the respondent there was a brief by Vaudreuil Vaudreuil and L. E. Vaudreuil, all of Kenosha, and oral argument by L. E. Vaudreuil.
On Saturday, December 21, 1963, plaintiff Artie Merriman went with her brother to Cash-Way, Inc., to purchase some underpinning for her house trailer. Snow had fallen since early morning so that the Cash-Way parking lot was covered with snow when plaintiff and her brother arrived there about noon. They parked near the entrance to the store and plaintiff remained in the car for several minutes while her brother went into the store. Plaintiff then left the car and attempted to go into the store. As she walked toward the entrance she slipped and fell, injuring herself. As she lay on the ground, plaintiff noted a small patch of ice under the snow on which she had slipped.
Plaintiff's brother came out of the store and helped her. No notification of the accident was given to any of the employees of Cash-Way. On the following Monday, plaintiff's brother took pictures of the scene of the accident. More than two years after the accident, on March 26, 1965, plaintiff commenced suit against Cash-Way, Inc., based on a violation of the safe-place statute.
At the trial, upon the close of plaintiff's case, defendant moved for a directed verdict. The motion was reserved and the case was submitted to the jury. The jury found the defendant negligent with respect to maintaining the area surrounding the doorway entrance by failing to apply sand or salt to any icy spots on the premises and awarded damages to the plaintiff. Plaintiff was found to be contributorily negligent and the jury apportioned negligence 75 percent to the defendant and 25 percent to the plaintiff. On motions after verdict, the trial court set aside the jury's finding of negligence on the part of defendant on the ground that there was no credible evidence that the defendant knew or should have known of the dangerous condition of the area where the plaintiff fell. Plaintiff appeals.
The lone issue presented on this appeal is whether there is any credible evidence to sustain the jury's finding that the defendant was negligent with respect to maintaining the area surrounding the doorway entrance as safe as the nature of the premises would reasonably permit.
The safe-place statute (sec. 101.06) does not impose an absolute duty on an owner or employer so as to make him an insurer of the safety of his premises so far as repair or maintenance is concerned. In order for an employer or owner to be liable for such defects, he must have either actual or constructive notice of such defects.
Presti v. O'Donahue (1964), 25 Wis.2d 594, 131 N.W.2d 273; Sposito v. Zeitz (1964), 23 Wis.2d 159, 127 N.W.2d 43; Turk v. H.C. Prange Co. (1963), 18 Wis.2d 547, 119 N.W.2d 365; Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 85 N.W.2d 772; Boutin v. Cardinal Theatre Co. (1954), 267 Wis. 199, 64 N.W.2d 848.
In the case at bar there was no evidence introduced that defendant had actual knowledge of the patch of ice. The issue, properly phrased by the trial court, was whether there was any evidence of constructive notice of the icy condition near the entrance. Constructive notice is imposed on a person "when for the promotion of sound policy or purpose he is to be treated as if he had actual notice, whether or not he had it in fact." 39 Am. Jur., Notice and Notices, p. 236, sec. 7, states the considerations for imposing constructive notice as follows:
Uhrman v. Cutler-Hammer, Inc., supra, footnote 2, at page 75; see also Turk v. H.C. Prange Co., supra, footnote 2, at page 561.
"[F]irst, that certain things existing in the relation or the conduct of parties, or in the case between them, beget a presumption so strong of actual knowledge that the law holds the knowledge to exist because it is highly improbable it should not; and next, that the policy and the safety of the public forbid a person to deny knowledge while he is so dealing as to keep himself ignorant, or so that he may keep himself ignorant."
The proof is insufficient to impose constructive notice on the defendant in the case at bar. In contrast, in Uhrman v. Cutler-Hammer, Inc., the defendant-employer was held to have constructive notice of the unsafe way in which the loading ramps were stored when not in use. In Uhrman, the evidence showed that this method of storing the ramps by visiting truck drivers had been used for some time. The evidence also showed that defendant's employees had instructed truck drivers on the proper method of storing the ramps. In the case at bar, there is no evidence as to how long the ice condition had existed prior to the plaintiff's fall. There is no evidence as to the extent of the ice patch on the day of the accident or as to whether there were additional patches of ice in the parking lot. There is no evidence of weather conditions which would have precipitated the formation of this ice patch. Without evidence as to how long the hazard had existed, so as to warrant the assumption that a vigilant owner would reasonably have discovered it and repaired it, the defendant cannot be held to have had constructive notice of the defect.
Supra, footnote 2.
Boutin v. Cardinal Theatre Co., supra, footnote 2, at page 205.
Plaintiff also seeks to establish liability showing that the downspout was defectively constructed and water emerging from the downspout ran under the protective fence and onto the parking lot, forming the patch of ice in question. If such a hypothesis could be established, there would be no need to prove actual or constructive notice since this would be actual negligence by the defendant which led to the hazardous condition. However, there is a complete lack of proof to establish this hypothesis. At trial, the defendant's manager testified that the slope of the land where the downspout poured out water was to the west, or away from the parking lot. Thus, the patch of ice would not occur from defectively placing the downspout too close to the parking lot, since any water emerging would flow away from the parking lot.
Sposito v. Zeitz, supra, footnote 2, at page 162.
In addition, there was no evidence produced to show that the patch of ice resulted from water which emerged from the downspout. There was no proof of melting of snow or ice in previous days. Plaintiff is attempting to infer both that the water emerged from the downspout and that the formation of ice was caused by negligent construction of the downspout. Such conclusions could only be speculations.
The trial court refused to receive in evidence two photographs submitted by plaintiff which showed close-up pictures of a patch of ice in the parking lot. The pictures were taken by plaintiff's brother two days after the accident. Judge BAKER refused to receive the pictures in evidence because the time when the pictures were taken was too remote and because there was no evidence that the ice shown in the pictures was the same as the ice patch on the day of the accident. Plaintiff challenges this ruling as reversible error.
Whether a picture may be used advantageously and properly in placing the facts before a jury rests in the discretion of the trial judge. Photographs of the place of an accident have been held inadmissible where they were taken at a time which was remote from that in controversy. Such photographs will be admitted, however, where a foundation is laid by evidence showing that the photographs were a correct representation of the conditions existing at the time of the injury.
3 Jones, Evidence (5th ed.), p. 1196, sec. 630; 29 Am.Jur.2d Evidence, p. 865, sec. 789.
Mahar v. Montello Granite Co. (1911), 146 Wis. 46, 130 N.W. 949; Forseth v. Iron River Lumber Co. (1910), 142 Wis. 87, 124 N.W. 1036.
In the case at bar, the subject of the photographs was a very temporary and transitory thing. Ice present on a given day during December may not have been present two days before. No evidence of static weather conditions was shown to eliminate the possibility that the patch of ice in the picture could have formed after the accident. Moreover, the size of the ice patch could easily have changed. In the absence of a showing that conditions shown in the photographs were similar to conditions on the day of the accident, the trial court did not abuse its discretion by refusing to admit the photographs.
Even if the trial court's ruling in excluding the photographs was error, we deem that such error was not prejudicial. The photographs in question did not demonstrate how long the patch of ice had existed so as to prove that the defendant knew or should have known about it. The pictures also do not show any way that the drainage system was defective.
By the Court. — Judgment affirmed.