David Stroede, Plaintiff-Respondent-Petitioner, v. Society Insurance and Railroad Station, LLC, Defendants, Jacob D. Tetting and West Bend Mutual Insurance Company, Defendants-Appellants.
CASE NO.: 2018AP1880 & 18AP2371
SUPREME COURT OF WISCONSIN
May 18, 2021
2021 WI 43 | 390 Wis. 2d 817 | 939 N.W.2d 614
Ellen R. Brostrom
Oral Argument: December 9, 2020. SOURCE OF APPEAL: Circuit Court, Milwaukee County. JUSTICES: KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., DALLET, and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING: ROGGENSACK, J., did not participate. ANN WALSH BRADLEY, J., withdrew from participation.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 390 Wis. 2d 817, 939 N.W.2d 614 PDC No:2020 WI App 8 - Published
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Keith E. Trower, Krista G. LaFave Rosolino, and Warshafsky, Rotter, Tarnoff & Bloch, S.C., Milwaukee. There was an oral argument by Keith E. Trower.
For the defendant-appellant Jacob D. Tetting, there was a brief filed by Eric S. Darling, John Wilson, and Schmidt, Darling & Erwin, Milwaukee. There was an oral argument by Eric S. Darling.
For the defendant-appellant West Bend Mutual Insurance Company, there was a brief filed by Monte E. Weiss and Weiss Law Office, S.C., Mequon. There was an oral argument by Monte Weiss.
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
Nos. 2018AP1880 & 18AP2371 (L.C. No. 2017CV11072)
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
¶2 The circuit court denied summary judgment to Tetting and to his insurer, West Bend Mutual, concluding that Tetting did not fit within the definition of a “[p]ossessor of real property” in
¶3 We reverse the decision of the court of appeals because Tetting was not an “other lawful occupant of real property” under
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On September 20, 2014, David Stroede was drinking at the Railroad Station bar in Saukville, became extremely intoxicated, and punched another patron. A bartender ordered Stroede to leave, and Stroede was escorted out of the bar. Tetting, an employee of the Railroad Station who was patronizing the bar with his family, saw Stroede being escorted out of the bar. Several minutes later, after Tetting observed Stroede re-enter the bar, he approached Stroede, grabbed him by the shoulders, and walked him backwards towards the stairway at the entrance of the bar.4 Upon reaching the stairway, Tetting released Stroede, who fell down the concrete stairs and suffered serious injuries.
¶5 Stroede filed this lawsuit against Tetting, the Railroad Station, and the Railroad Station‘s insurer, Society Insurance. Stroede alleged that Tetting used excessive force and was negligent in the way he walked Stroede out of the bar. Stroede later amended the complaint to add West Bend Mutual, Tetting‘s homeowner‘s insurance provider.
¶6 The defendants filed two sets of summary judgment motions against Stroede. The first set of motions, not before us on appeal, was filed by Railroad Station and Society Insurance. The circuit court concluded that Stroede was a trespasser at the time of the incident and that there was no basis for Stroede‘s negligence claim against the two parties. Accordingly, the circuit court dismissed all claims against both parties. The other set of motions, which are the basis for this appeal, was comprised of motions for summary judgment filed by Tetting and West Bend Mutual, in which those parties asserted Tetting was entitled to immunity and did not owe a duty of care to Stroede, a trespasser. After oral argument on these motions, the circuit court accepted further briefing from Tetting and West Bend Mutual regarding whether Tetting was a “possessor of real property” under
¶7 The circuit court conducted a second hearing in which it denied Tetting and West Bend Mutual‘s motions. The circuit court decided that Tetting was not a “possessor of real property” because he was not an “owner, lessee, tenant, or other lawful occupant of real property.” Specifically, the circuit court concluded that Tetting was not an “other lawful occupant” of Railroad Station because lawful occupants must exert some degree of control over the property and must possess a right to exclude others.
¶8 Tetting and West Bend Mutual each filed an interlocutory appeal, asserting that the circuit court misinterpreted
II. STANDARD OF REVIEW
¶9 “We review a grant of summary judgment independently, applying the same methodology as the circuit court.” Pinter v. Village of Stetsonville, 2019 WI 74, ¶26, 387 Wis. 2d 475, 929 N.W.2d 547. Summary judgment shall be granted where the record demonstrates “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.”
III. ANALYSIS
¶10 There are no genuine issues of material fact as it relates to this appeal,7 and the parties agree that Stroede was a trespasser at the time of the incident. The narrow statutory interpretation question presented to this court is whether Tetting was an “other lawful occupant of real property” within the definition of “[p]ossessor of real property” found at
¶11 Analysis of a statute begins with the language of the adopted text. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. “Statutory language is given its common, ordinary, and accepted meaning, except technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id., ¶45. This language is “interpreted in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46. Where statutory language is unambiguous, we do not consult extrinsic sources of interpretation, such as legislative history. Id.
¶12 The statute at issue,
¶13 Simply looking to dictionary definitions of the word “occupant,” however, will not conclusively resolve the question of statutory interpretation posed in this case.9 Instead, we must look at the phrase “other lawful occupant of real property” in the context in which it is used, including the definitional list provided in
¶14
¶16 Reviewing the subsection as a whole further supports this conclusion.
¶17 This conclusion is further bolstered when we consider that we seek to interpret the term “possessor of real property.” Black‘s Law Dictionary defines “possession” as “[t]he fact of having or holding property in one‘s power; the exercise of dominion over property” and the “right under which one may exercise control over something to the exclusion of all others.” Possession, Black‘s Law Dictionary 1408. This definition supports the conclusion that an “other lawful occupant of real property” must have some control or dominion over the real property; mere presence is not enough.
¶18 Reading the statute so broadly as to categorize anyone and everyone who is present on a property to be an “other lawful occupant of real property” would negate the other specific terms provided (owner, lessee, and tenant) because it would swallow those terms whole. Such a broad definition of “other lawful occupant of real property” would also render the legislature‘s selected terms and the word “possessor” meaningless because no actual possession would be required.13 Reading the statutory language this way would lead to absurd results. Kalal, 271 Wis. 2d 633, ¶46 (“[S]tatutory language is interpreted in the context in which it is used . . . and reasonably, to avoid absurd or unreasonable results.” (Emphasis added.)) As the circuit court
¶19 To summarize, reading the phrase “other lawful occupant of real property” in context demonstrates that such a person must have some degree of possession or control over the property and the ability to give and withdraw consent to enter or remain on the property.14 In this case, nothing in the record indicates that Tetting, as a bar patron at the time Stroede was injured, had any possession or control over Railroad Station or that he had the ability to give or withdraw consent. For this reason, the circuit court was correct in concluding that Tetting was not an “other lawful occupant of real property.”
IV. CONCLUSION
¶20 We reverse the decision of the court of appeals because Tetting was not an “other lawful occupant of real property” under
By the Court.——The decision of the court of appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.
¶21 ANN WALSH BRADLEY, J., withdrew from participation.
¶22 ROGGENSACK, J., did not participate.
David Stroede, Plaintiff-Respondent-Petitioner, v. Society Insurance and Railroad Station, LLC, Defendants, Jacob D. Tetting and West Bend Mutual Insurance Company, Defendants-Appellants.
No. 2018AP1880 & 2018AP2371
SUPREME COURT OF WISCONSIN
May 18, 2021
¶23 REBECCA GRASSL BRADLEY, J. (dissenting). “Courts have sometimes ignored plain meaning in astonishing ways.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 72 (2012). The majority opinion in this case presents yet another example. The majority misreads
I
¶24 On September 20, 2014, Stroede visited Railroad Station Bar in Saukville, Wisconsin. Stroede became highly intoxicated, punched another patron in the face, and urinated on himself. An employee at
¶25 Stroede sued Tetting and his insurer, West Bend Mutual Insurance Company, arguing that Tetting negligently used excessive force in removing him from the bar.1 Stroede did not assert that Tetting acted willfully, wantonly, or recklessly.2 Tetting and West Bend Mutual filed motions for summary judgment, arguing that Tetting was entitled to immunity under
owe a duty of care to a trespasser.3 Under
¶26 The circuit court denied Tetting‘s and West Bend Mutual‘s motions for summary judgment, holding that Tetting owed Stroede a duty of care, despite the fact that Stroede was a trespasser at the time of his injury. According to the circuit court, Tetting was not a “lawful occupant of real property,” limiting the meaning of this phrase to people who have the right to exclude others from the premises, thereby denying immunity to mere patrons. The court of appeals reversed the circuit court‘s decision, holding that the phrase “lawful occupant” means “lawfully present,” and concluding that
II
¶27
(1) In this section:
(a) “Possessor of real property” means an owner, lessee, tenant, or other lawful occupant of real property.
(b) “Trespasser” means a natural person who enters or remains upon property in possession of another without express or implied consent.
(2) Except as provided in sub. (3), a possessor of real property owes no duty of care to a trespasser.
(Emphasis added.) Subsection (3) provides, in relevant part, that possessors of real property may be liable for willful, wanton, or reckless conduct toward trespassers. Reading these provisions together, a “possessor of real property” is immune from the negligence claims of trespassers. In this case, the circuit court found that Stroede was a “trespasser,” and this finding is undisputed on appeal. Stroede asserts only negligence against Tetting. The only question before this court, then, is whether Tetting was a “possessor of real property.” If so, he is statutorily immune from Stroede‘s negligence claim.
¶28 Under the plain text of
¶29 Dictionary definitions of the phrase “lawful” and “occupant” support this conclusion. Id., ¶¶53-54 (instructing courts to turn to dictionary definitions to help ascertain the plain meaning of statutory language); see also Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350, 760 N.W.2d 156 (“A dictionary may be utilized to guide the common, ordinary meaning of words.“). “Lawful” means what the average person would reasonably understand it to mean: something that is “within the law” or “allowed by law.” Lawful, American Heritage Dictionary 996 (5th ed. 2011). “Occupant” likewise bears a common, ordinary meaning: “one that resides in or uses a physical space,” such as someone who is an “occupant of a car.” Occupant, American Heritage Dictionary 1218 (5th ed. 2011); see also Occupant, Oxford English Dictionary 1978 (6th ed. 2007) (“[a] person who occupies, resides in, or is in a place“); Occupant, Random House Unabridged Dictionary 1339 (2d ed. 1996) (“a person, family, group, or organization, that lives in, occupies, or has quarters, or space in or on something, [such as] occupant of a taxicab.“).
¶30 Accordingly, the plain meaning of “lawful occupant” is someone who has permission or a right to be physically present on the premises. This meaning fully comports with our everyday understanding of these terms. Just as an individual is an “occupant” in a car, so too is an individual an “occupant” of a business while patronizing it. Similarly, when setting maximum occupancy limits in fire and building codes, states and municipalities use the term “occupants” to refer to individuals occupying space. See, e.g., Wis. Admin. § SPS 314.01(g)1.b (applying statewide fire code mandates to facilities containing inflammable conditions endangering the “occupants” of buildings); City of Greenfield, Wis., Ordinance § 18.02 (for purposes of the city‘s fire code, defining “occupant” as “[t]he person or persons, who physically reside, work or are present in a facility“). It is the job of courts to interpret statutes “in accordance with their plain and obvious meaning,” and the phrase “lawful occupant” means exactly what it says. State v. Smith, 184 Wis. 664, 668, 200 N.W. 638 (1924); see also Scalia & Garner, supra, at 69 (“Words are to be understood in their ordinary, everyday meanings[.]“).
¶31 Other statutes also use the phrase “occupant” to refer to individuals physically present in a place. For example,
¶32 As a lawful patron of Railroad Station on the night Stroede was injured, Tetting was a “lawful occupant” for purposes of
¶33 Contrary to the majority‘s opinion, see majority op., ¶18, interpreting the phrase “lawful occupant” to encompass patrons visiting a bar affords full meaning to the other terms in
¶34 Despite the plain meaning of “lawful occupant,” the majority concludes that “lawful occupant” refers to “a person . . . [who] [has] some degree of possession or control over the property and the ability to give and withdraw consent.” Majority op., ¶19. None of this language appears in the text of the statute nor does any of it reflect the common, ordinary understanding of “lawful” or “occupant.” The majority improperly rewrites the statute, arbitrarily limiting its scope in order to reach the absurd conclusion that a person lawfully occupying a place is not a “lawful occupant.” This is akin to holding that roosters
¶35 In adopting its constrictive definition of “lawful occupant,” the majority applies the ejusdem generis canon “with a rigidity that hamper[s] rather than help[s] the search for genuine textual meaning.” Id. at 212. Courts must be mindful that “the doctrine often gives rise to the question how broadly or narrowly to define the class delineated by the specific items listed,” which underlies the question the parties ask us to resolve. Id. at 207. The canon “does not specify that the court must identify the genus that is at the lowest possible level of generality” as the majority in this case elects to do. Id. Instead, “[t]he court has broad latitude in determining how much or how little is embraced by the general term.” Id. In making that determination, courts should consider each of the items in the list “and ask what category would come into the reasonable person‘s mind.” Id. at 208. Only a lawyer would exclude roosters from the general term “animals” and only a lawyer would exclude permitted patrons from “lawful occupants” of property. If “lawful occupant” means “a person . . . [who] [has] some degree of possession or control over the property and the ability to give and withdraw consent to enter or remain on the property” as the majority says, majority op., ¶19, “words in themselves plain have been construed as bearing a meaning which they have not, and which ought not to have been ascribed to them.” Scalia & Garner, supra, at 212 (quoting Anderson v. Anderson, [1895] 1 Q.B. 749, 755 (per Rigby, L.J.)).
¶36 The majority briefly mentions the associated-words canon, noscitur a sociis, accompanied by no analysis of it. Majority op., ¶14. Under this canon, “[t]he common quality suggested by a listing should be its most general quality——the least common denominator, so to speak——relevant to the context.” Scalia & Garner, supra, at 196. The majority‘s construction does exactly the opposite, applying the most restrictive reading of “other lawful occupant” to mean someone with “possession or control over the property and the ability to give and withdraw consent to enter or remain on the property” rather than its most general quality——someone with a lawful right to be there. Rather than mechanically reciting Kalal, the majority should have applied the ordinary-meaning canon it espouses, “the most fundamental semantic rule of interpretation” under which “[w]ords are to be understood in their ordinary, everyday meanings——unless the context indicates that they bear a technical sense.” Id. at 69.
¶37 Rejecting the ordinary, everyday meaning of “lawful occupant,” the majority imposes on anyone with a lawful right to be present in a place (but who does not own or control it) a duty of care toward a trespasser whose presence is unlawful. Invitees——individuals who “by virtue of an invitation . . . go[] upon the premises of another for the purpose of aiding, transacting, assisting, or furthering the business of such other“——are categorically excluded from
¶38 The absurdity of the majority‘s statutory interpretation becomes even more apparent upon extension to other circumstances. Under the majority‘s construction of
¶39 The majority inexplicably draws the same distinction between patrons of businesses and their owners. By definition, an invitee is someone who enters a premises “for a purpose of mutual advantage or benefit both to the owner of the premises and to the person entering.” Voeltzke, 45 Wis. 2d at 282. According to the majority, only the latter is categorically liable to trespassers despite both individuals having the lawful and mutually beneficial right to be on the premises. For example, if a patron negligently spills a drink on the floor and a trespasser on the property slips and sustain injuries as a result, the majority would allow the trespasser to collect damages against the patron but not the owner, despite no appreciable difference between the negligent acts of the business owner and the patron. But for the trespasser‘s unlawful entry, the trespasser‘s injury would not have occurred; nevertheless, the majority overlooks the trespasser‘s misconduct in order to allow him recovery. Had the legislature drawn this distinction, the majority‘s conclusion in this case would comport with the law, assuming no constitutional infirmity in the statute. But in this case, the majority steps beyond proper judicial boundaries to recast the law in accordance with its own apparent policy preferences, rather than applying the law the legislature actually enacted.
¶40 “Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner.” Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 620, 563 N.W.2d 154 (1997) (emphasis added). Doing so helps to “preserv[e] the integrity of the legal system.” Id. In this case, the majority abandons this well-established principle, elevating the interests of trespassers over individuals lawfully on the premises. “[B]oth the individual and society have significant interests in deterring intentional trespass to land[.]” Id. at 617. As such, “our laws seek to encourage the [lawful use of land] and discourage the [trespass to land].” Mackenzie v. Miller Brewing Co., 2000 WI App 48, ¶92, 234 Wis. 2d 1, 608 N.W.2d 331. The plain language of “lawful occupant” in
¶41 Under the plain language of