discussing the rule stated in SellSummary of this case from White v. Rasner
Argued December 1, 1969. —
Decided December 19, 1969.
APPEAL from a judgment of the circuit court for Kenosha county: HAROLD M. BODE, Circuit Judge. Affirmed.
For the appellants there was a brief by Shearer Shearer of Kenosha, and oral argument by Conrad J. Shearer.
For the respondent there was a brief by Heide, Sheldon, Hartley, Thom Wilk and S. Michael Wilk, all of Kenosha, and oral argument by S. Michael Wilk.
This is an action for personal injuries suffered by the plaintiff, Abigail Voeltzke, as a result of a fall by Mrs. Voeltzke in the parking lot of the defendant, Kenosha Memorial Hospital, Inc. The complaint of the plaintiffs (Mrs. Voeltzke is joined by her husband in his claim for loss of services) alleges causes of action in common-law negligence and a violation of the safe-place statute.
On November 9, 1965, Mr. and Mrs. Voeltzke intended to visit a fellow employee of Mr. Voeltzke who was a patient at the Kenosha Memorial Hospital in the city of Kenosha.
The hospital constructed, owns and maintains a parking lot for the benefit of its employees, patients and visitors. The lot is directly north of the hospital; it abuts Eighth avenue and a service driveway next to the hospital.
The hospital was comprised of two wings which formed an "L" structure. The older wing extended in a north-south attitude with the northernmost end abutting a service driveway which ran east and west between the hospital and parking lot. The newer wing, called the "Cooper wing," ran eastward from the south end of the old wing. The main entrance to the hospital was located at the juncture point of the two wings. One means of access to the main entrance was a sidewalk running parallel to the older wing extending from the hospital entrance to the paved service drive.
Immediately adjacent to the service drive, and at the south end of the parking lot, angle parking spaces were provided for a single line of cars indicated by yellow marking on the blacktop and concrete bumpers set at an angle. Within the interior of the lot three double rows of angle parking were provided, also equipped with concrete bumpers.
The bumpers were described as seven feet six inches in length, six and one-half inches high, 10 inches wide at the base and beveled to a width of five inches at the top. They were described by the plaintiff-husband as being grayish-white in color and placed on blacktop pavement. The testimony differed regarding the distance between the bumpers. The assistant to the hospital president stated they were four feet apart. The plaintiff-husband said the ends of the bumpers were only two feet apart, while the chief maintenance engineer for the hospital indicated they were about three feet apart.
Mr. and Mrs. Voeltzke arrived at the hospital about 6:50 p.m. It was dark and the blacktop was dry. They parked their automobile in the northwest portion of the lot, almost straight north of the sidewalk adjacent to the old wing. From their car they walked through the western portion of the lot in a southerly direction toward this sidewalk. The assistant to the hospital president, Mr. Stefani, stated that this was the most direct route from the west half of the lot to the main entrance. Mrs. Voeltzke stated she saw other people ahead of her leaving the lot by the same route. The southernmost line of parking, immediately abutting the service drive, was filled with cars. Mrs. Voeltzke preceded her husband between two cars in this line, stating that there was enough room to walk without touching either car. Her husband said the cars were about four feet apart. As she reached the front of the cars her right foot hit the concrete bumper on the right side and she fell into the service driveway. As a result of the fall she suffered a fractured right wrist and facial cuts and bruises. She was in the hospital for about a week and suffered quite severe pain during that time; for several weeks after she left the hospital she returned three days a week for physical therapy treatments. Mrs. Voeltzke was fifty-eight years old and still suffers pain and disability in the use of her right arm and hand.
There was considerable testimony respecting the degree of lighting of the parking lot. Witnesses for defendant stated that there were floodlights located at the east, west and north boundaries of the lot. In addition, there were two 150-watt lights located at the north end of the old wing adjacent to the sidewalk and almost directly across the drive from the point where Mrs. Voeltzke fell. The total wattage of the floodlights was 8,000 watts plus the 300 watts from the two bulbs near the sidewalk. The parking lot area was 73,000 square feet. An ordinance of the city of Kenosha required lighting of 7,300 watts for a parking lot of that size. Mrs. Voeltzke testified that she recalled the presence of the two lights at the north end of the hospital, but she stated that the cars between which she passed cast shadows that obscured her view of the concrete bumpers.
The trial court ruled that the safe-place statute did not apply because the hospital was a nonprofit corporation and submitted the matter to the jury on common-law negligence. The jury found that Mrs. Voeltzke was a licensee as distinguished from an invitee; that the hospital was not negligent; that Mrs. Voeltzke was causally negligent and answered the damage questions, "None."
The court denied plaintiffs' motions after verdict and entered judgment dismissing the complaint. Plaintiffs appeal.
The issues are:
(1) Does the Wisconsin safe-place statute apply to the parking lot of the defendant hospital?
(2) Is a social visitor of a patient in a hospital an invitee or a licensee of the hospital?
(3) Are the plaintiffs entitled to a new trial in the interest of justice?
Our safe-place statute, 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 employes 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 employes 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."
In Jaeger v. Evangelical Lutheran Holy Ghost Congregation (1935), 219 Wis. 209, 211, 212, 262 N.W. 585, it is said:
"There is a plain distinction between the obligation of an employer and the obligation of the owner of a building. The employer's duty to furnish safe employment includes the furnishing of a safe place of employment, and the employer has a broad duty not only with respect to the structure, which constitutes the place of employment, but with reference to the devices and other property installed or placed in such place. The employer's duty is carefully and specifically set forth in the first half of the section. The last portion of the section defines the duty of employers and owners with respect to the structure of the building. The duty in this respect is to construct, repair, and maintain such place of employment or such building in such a manner as to render the same safe."
The liability of the hospital under the safe-place statute, if any, for a parking lot injury must be based upon a determination that the hospital was an employer within the meaning of the statute.
The definitional provisions of ch. 101, Stats., applying to the employment relation, state:
Sec. 101.01. "(1) The phrase `place of employment' includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, . . .
". . .
"(3) The term `employer' shall mean and include every person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employe.
". . .
"(13) The term `owner' shall mean and include every person, firm, corporation, . . . having ownership, control or custody of any place of employment or public building, or of the construction, repair or maintenance of any place of employment or public building, . . ."
The critical factor here, place of employment, is dependent on the profit motive of the defendant hospital. This court has said that absent a showing the activities of an organization are carried on in whole or in part in pursuit of the profit motive that organization cannot be said to be a place of employment under sec. 101.01(1), Stats. See Haerter v. West Allis (1964), 23 Wis.2d 567, 127 N.W.2d 768. The court also stated in Haerter, at page 570:
"The existence or nonexistence of an actual profit, of course, is not material."
In a case in which it was contended a public beach was a place of employment because the lifeguards earned a gain or profit, this court said:
"Plaintiff contends that the definition of place of employment applies because the employees work for gain, and asks us to change our previous construction that the absence of the profit motive on the part of the city prevents the place being treated as a place of employment.
"We expressly decided on the earlier appeal that `Plaintiff's conclusion that these facilities constitute a place of employment cannot be sustained.' In so holding we followed a statutory construction of long standing that it is the profit motive of the employer to which the statute refers, not to that of the employee." Rogers v. Oconomowoc, supra, page 315.
"The differences in scope between the duties of employers and owners of public buildings under the safe-place statute are pointed out in Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 219 Wis. 209, 262 N.W. 585, and cases there cited. Under these decisions it is apparent that the defendant is not an employer as defined in the safe-place statute, nor is its hospital such a place of employment as referred to therein. It is, however, the owner of its hospital, which is a public building. The duty of the defendant as an owner of a public building to maintain the same has no application to temporary conditions unrelated to the structure of the building or the material of which it is composed. Waldman v. Young Men's Christian Asso., supra; Jaeger v. Evangelical Lutheran Holy Ghost Congregation, supra; Holcomb v. Szymczyk, 186 Wis. 99, 202 N.W. 188."
The Voeltzkes assert they should have been allowed to submit proof of the profit and employment activities of Kenosha Memorial Hospital, Inc., in order to bring the hospital within the scope of the statute. Their offer of proof consisted of the following presentation by Attorney Shearer:
" Mr. Shearer: All right. Well, my request and offer are these: That for the purpose of making a basis for application of the safe-place statutes to this accident, I would recall Mr. Stefani to the stand adversely, for the purpose of showing the use of the parking lot by employees of drug companies, food companies, hospital supply companies, and other companies operating for profit — concededly operating for profit — on the theory that the hospital is an owner of a place of employment used by the employees of another, for pecuniary or whatever the precise language is.
"Secondly, I would offer, through Mr. Stefani, the financial statements that he was subpoenaed to bring with him today, and which I assume he has, showing operations of Kenosha Hospital for the five years immediately preceding this accident. Those financial statements and testimony which I would expect to elicit from Mr. Stefani would show that it is the objective of Kenosha Hospital to end the fiscal year with net earnings, to earn a profit, if I may use the word in the sense of an objective of a corporation, which has no stock and which is probably — and we have so alleged — organized under the nonprofit corporation laws of this state.
"By a pattern of operations it expects and tries, through the fixing of their charges for rooms, drugs, dressings, operating facilities, X rays, all operations of the hospital, to end up the fiscal year with earnings in excess of expenditures, for the purpose of not being dependent upon the United Fund for donations to operate.
"And I would show that for the past several years the hospital has not been dependent on the United Fund to subsidize its operations, that it does in fact end up with net earnings, which it plows back into the business and into an expansion of its facilities.
"And I would submit that proof of this sort would distinguish the Kenosha Hospital from nonprofit corporations which make no charges and which do not have that objective. So that the hospital would be an employer in charge of a place of employment, within the meaning of the safe-place statutes."
The fact that employees of other employers, such as the salesmen described in the offer of proof, use the parking lot does not make the hospital an owner of a place of employment. If the extremes of this contention were recognized as the law, a person's home would become a place of employment under the safe-place statute.
In Waldman v. Young Men's Christian Asso. (1938), 227 Wis. 43, 277 N.W. 632, the court indicated there might be cases in which a profit motive could be demonstrated even for charitable organizations. In noting the bifurcated objectives such an organization could possess, it was stated at pages 46, 47:
"It is our conclusion, that since the section includes within the definition of `place of employment' only places where `any industry, trade or business, is carried on' and `where any person is directly or indirectly, employed by another for direct or indirect gain or profit,' is does not apply to the premises here involved. The Young Men's Christian Association is a religious and charitable institution, and that portion of its building in which the accident happened is devoted to the charitable purposes which the organization exists to carry out. It is quite immaterial that fees are charged to cover a portion of the charitable purposes of the organization. It is likewise immaterial that a hotel or dormitory is operated for profit in another portion of the building. It may well be that as to such portion the statute applies, although it is unnecessary to pass upon that here."
The fact that the hospital organized as a nonprofit corporation did (pursuant to offer of proof) operate so as to have earnings in excess of its expenditures "which it plows back into the business and into an expansion of its facilities" does not in our opinion make it a business employing others for direct or indirect profit or gain, nor make it an employer maintaining a place of employment within the meaning of the safe-place statute.
The trial court did not err in not submitting a safe-place statute instruction to the jury.
The plaintiffs contend, as a matter of law, they were business invitees as distinguished from licensees. The court submitted the question to the jury with appropriate instructions defining the terms and duties owed to them.
See Wis J I — Civil, Part II, 8010, 8011, 8015 and 8020.
There is, of course, the greater duty to inspect and warn an invitee than a licensee. See Cordula v. Dietrich (1960), 9 Wis.2d 211, 101 N.W.2d 126. The definition of the duty owed to an invitee as set forth in Wis J I — Civil, Part 11, 8020 was recently approved in Smith v. Shuda (1964), 22 Wis.2d 629, 126 N.W.2d 498. That instruction, 8020, provides in part:
"An (owner) (occupant-possessor) must exercise ordinary care to the end that he discover such dangerous conditions as may exist upon his premises. If an owner fails to discover a dangerous condition which was discoverable by an owner of ordinary intelligence and prudence, using that care and caution usually exercised by one in like or similar circumstances, such owner then has failed to exercise ordinary care.
"An owner having knowledge of a dangerous condition upon his premises must either correct such condition or give to an invitee coming thereon an adequate and timely warning of its existence. A failure to correct a dangerous condition, coupled with a failure to warn an invitee thereof, is a failure to exercise ordinary care."
"In the instant case, the Szafranskis were the social guests of the Radetzkys, and between them the duty owed was that of licensor to licensee. Cordula v. Dietrich (1960), 9 Wis.2d 211, 212, 101 N.W.2d 126.
"The decisions of this court hold that the possessor or occupier of premises may be liable for injuries to the licensee in two situations. The licensor may be liable because the injury was caused by a `trap' on the premises. Greenfield v. Miller (1921), 173 Wis. 184, 187, 180 N.W. 834, 12 A.L.R. 982; Cordula v. Dietrich (1960), 9 Wis.2d 211, 213, 101 N.W.2d 126; Brinilson v. Chicago N.W. R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664. He has, however, no obligation to the licensee in regard to dangers that are unknown to him.
"The licensor may, also, be liable for injury to the licensee when the injury is caused by the active negligence of the licensor. Cermak v. Milwaukee Air Power Pump Co. (1927), 192 Wis. 44, 50, 211 N.W. 354; Taylor v. Northern Coal Dock Co. (1915), 161 Wis. 223, 229, 152 N.W. 465; Muench v. Heinemann (1903), 119 Wis. 441, 447, 96 N.W. 800; Brinilson v. Chicago N.W. R. Co. (1911), 144 Wis. 614, 618, 129 N.W. 664."
The instructions, as given in part, define an invitee and licensee as follows:
". . . One who, by virtue of an invitation, either express or implied, goes upon the premises of another for the purpose of aiding, transacting, assisting, or furthering the business of such other, or is on such premises for a purpose of mutual advantage or benefit both to the owner of the premises and to the person entering, is in law an invitee." Wis J I — Civil, Part II, 8010.
". . . One who goes upon the premises of another with such other's permission or consent, either express or implied, for a purpose unconnected with the business of the owner, and which is of advantage or benefit only to the person coming upon the premises, or to some third person not the owner, is a licensee. One who goes upon the premises of another for a social visit, whether it be in a home or elsewhere, is a licensee." Wis J I — Civil, Part II, 8011.
The plaintiffs contend the verdict is perverse because the jury awarded no damages. There is no question but that Mrs. Voeltzke was injured and did sustain some damages.
This court has indicated some displeasure with jury verdicts that fail to follow the instructions requiring them to find damages when it would be against the great weight and clear preponderance of evidence not to assess some damage figure. In Odya v. Quade (1958), 4 Wis.2d 63, 73, 90 N.W.2d 96, it was stated:
"In its order granting a new trial the court stated that the `Verdict is perverse and reflects bias and prejudice of the jury.' It has been held that a jury's violation of instructions by not answering damage questions in a verdict where they have answered other questions so as to determine that there is no liability does not compel a trial court to treat the verdict as perverse. Parmentier v. McGinnis (1914), 157 Wis. 596, 147 N.W. 1007; London G. A. Co. v. Great Northern R. Co. (1928), 197 Wis. 241, 248, 221 N.W. 762; Frings v. Donovan (1954), 266 Wis. 277, 282, 63 N.W.2d 105. An order granting a new trial on the ground of perversity has been reversed where based on a failure to answer damage questions. Goelz v. Knoblauch (1943), 242 Wis. 186, 7 N.W.2d 420. Because of the opportunity the trial court has to observe the trial and to sense any atmosphere of prejudice, we have some doubt about the soundness of the Goelz decision. Because, however, there must be a new trial in this case upon several other grounds, it is not necessary to consider the matter of perversity in this case."
"The existence and extent of injury caused by Mr. Schulze's fall were largely questions for the jury. They may properly have considered that his damages were minor. Because Schulze admittedly sustained at least some bruises and sought medical attention for them, a wholly negative answer as to damages could not, however, be justified. `It has been held that a jury's violation of instructions by not answering damage questions in a verdict where they have answered other questions so as to determine that there is no liability does not compel a trial court to treat the verdict as perverse.' Odya v. Quade (1958), 4 Wis.2d 63, 73, 90 N.W.2d 96. See Dickman v. Schaeffer, post, p. 610, 103 N.W.2d 922. Although as suggested in Odya v. Quade, supra, we we would now be inclined to sustain an order granting a new trial on the ground of perversity where based on a failure to answer damage questions, the circuit court did not grant a new trial here."
"Although there may be exceptions based on the facts, the rule generally applied is when the jury finds no negligence on the part of the defendant and there is credible evidence to support that finding, a finding of inadequate damage or no damages to the plaintiff does not necessarily show prejudice or render the verdict perverse. Sell v. Milwaukee Automobile Ins. Co. (1962), 17 Wis.2d 510, 117 N.W.2d 719; Dickman v. Schaeffer (1960), 10 Wis.2d 610, 103 N.W.2d 922. In Schulze v. Kleeber (1960), 10 Wis.2d 540, 103 N.W.2d 560, in discussing this rule, we pointed out a possible exception suggested in Odya v. Quade (1958), 4 Wis.2d 63, 90 N.W.2d 96."
In this instance the trial court passed upon the issue of perversity and declined to order a new trial.
We do not conclude, as a matter of law, that the verdict was perverse nor do we conclude the trial court abused its discretion in not ordering a new trial because of error or in the interest of justice.
By the Court. — Judgment affirmed.