*1 position in the best is so. In decide whether this denying contrast, suppress an order a motion to evi- guilt dence does not determine the defendant. may The finder of fact still determine that the evidence guilt beyond prove does not and, a reasonable doubt most right importantly, appeal he has con- before a equal viction becomes There no pro- final. denial of tection to the defendant.
By appeal the Court. —The is dismissed. Gross, Respondent, others, Appellants. v. Denow Argued No. 227. October 1973. Decided November (Also reported 2.) in 212 N. W. 2d *4 appellants For the by there Philipp was a Otjen, brief McFadyen & of Milwaukee, for defendant-appellant; by Began a brief Thomas J. Milwaukee, for the cross appellants; argument by and Philipp oral Ernest J. and Regan. Thomas J. respondent
For the there was a brief James J. Murphy Habush, Gillick, Habush, Davis Murphy, & argument all of Milwaukee, Murphy. and oral James J. Egbert Hansen, W. J. Issues appeal raised on this (1) applicability relate to: safe-place statute; (2) apportionment negligence; (3) the award damages. separable Each is others, from the and each separately will be treated on this review.
Applicability safe-place statute. plaintiff’s
As to against cause of action Midwest for safe-place violation of the inquiry statute, initial is whether the dirt road on which injured “place was a employment” under that statute. safe-place provides statute pertinent part:
45
every
employment’ includes
‘place
“(a)
phrase
underground and
out or
indoors or
place, whether
temporarily
either
thereto where
premises appurtenant
car-
industry,
trade
business
permanently any
or
or
ried
directly or
any
operation,
process or
on,
or where
business,
any industry,
trade or
indirectly related to
directly
is,
or indirect-
any person
on,
carried
and where
gain or
or indirect
ly, employed
profit,
another
for direct
persons are
any place where
not include
but does
does
employed
(a) private domestic service which
in
(b)
farm-
power or
involve the use of mechanical
ing.
1
...”
“place
employment”
to a
statutory reference
Of this
l
court has observed:
descriptive.
employment’are
words,‘place of
“.
. The
.
used
They
and,
an outline
definition
furnish
a
employees and
protect
purpose to
statute,
indicate a
naturally
idea
carry the
frequenters.
lawful
of
Those words
en-
necessarily
persons
place
one or more
used
gain
profit,
gaged
purpose of
or
enterprise for the
in an
2
direct or indirect.
...”
private thoroughfare,
on
deal
with a
We
here
oper-
racetrack
premises and under
control
public
place,
have the issue of
do not
ator.3 So we
being
ownership
of the employer,
or control'
not under
4
employment.”
The racetrack
“place of
considered a
gain
profit.”
purpose
enterprise
“an
using
pit area
road from
spectators and drivers
Stats,
(then
(1),
(2) (a),
101.01
Stats.
Sec. 101.01
sec.
(1945), 246
Asso.
Wis.
Side Businessmen’s
Mennetti v. West
Hotel
also:
Loraine
Schwenn v.
18 W. 2d 487. See
N.
601, 605,
495; Ball v. Madison
111 W. 2d
2d
N.
Wis.
62, 65,
(1957);
2d
The that it statute is an duty employment place. to ap- furnish safe and plicable statute, part, provides: in “(1) Every employer employment shall furnish which employes shall be safe for the therein and shall furnish place employment a employes which shall be safe for frequenters therein and for thereof and shall furnish and safety use devices and safeguards, adopt and shall and processes use reasonably methods and adequate to render employment do such places employment and safe, and every thing reasonably shall necessary pro other to tect the life, health, safety, employes and welfare of such frequenters. Every employer and every owner
place
after
employment
of
constructed shall
public building
or a
now or here
construct,
repair
so
or maintain
place
employment
such
public
building
or
as to render
the same safe.”
Under this
employer
statute an
duty
has a
to make the
“place
employment”
as safe as the nature of the em
ployment
reasonably
will
permit,
higher duty
than
ordinary
that of
care.6 The statute does not make the
employer an
duty
insurer.7 The
set
the statute is not
merely
place
breached
because the
could be made safer.8
employer’s duty
place
furnish a safe
is an absolute
one, but the term
relative,
“safe” is
not absolute.9 As
this court
point
has
“The
said,
simply
that the statute
Stats,
(1),
(then
See. 101.11
101.06,
sec.
Stats.
6 Krause
Supply
v. Menzner Lumber
&
Co.
6 Wis. 2d
615, 622,
75-80 cars in the of the were area track on the involved). majority The court wrote Gould that would that hold such known use to which the narrow road was being put jury reasonably entitled a to that find devices operator might available to the racetrack have been used required to meet the standard of care the statute.15 Prohibiting pedestrian providing traffic a fence separating pedestrian and vehicular traffic are devices that would have made the road as safe as its nature reasonably permit. would
Apportionment
negligence.
jury apportioned
percent
negli-
of the causal
gence Midwest,
percent
to driver-defendant Denow,
percent
and five
pedestrian-plaintiff
Gross. This
consistently
court has
apportionment
held that
special
province
within
jury
of the
“only
it
clearly
it
appears
where
party equals
one
or exceeds that of another
court will interfere.”
This rule and exception apply
safe-place
cases as well
in ordinary negligence
as
ac-
It
“[ajlthough
tions.17
follows that
judicial
there is
Co., supra,
Gould v. Allstar
Ins.
page 362, stating:
at
“In
view
the nature
pier
likely
use to which the
to be
put,
premises
were not safe. There was evidence from which
jury
premises
could conclude that
kept
were not
free
as
danger
place
from
reasonably
nature of the
permit.”
would
*8
also:
O’Donahue,
See
Presti
supra,
v.
page 699, stating:
at
“. . . While this
employer
does not mean that
duty
the
had a
to
safety
furnish devices that would insure the
of a frequenter,
it
jury may
does mean that
the
determine
employer
whether
the
might
supplied
not have
devices that would
place
have made the
as
reasonably
safe as its
permit.”
nature would
16 Young v. Anaconda American
(1969),
Brass Co.
43 Wis. 2d
36, 45, 168 N. W. 2d 112. See also: Smith v. St. Paul Fire &
Marine
(1973),
752,
Ins. Co.
755,
66
2dWis.
49 change apportionment jury’s to find and to reluctance negligent, equally will do the court a at least plaintiff’s is so ‘the evidence of so where ” 18 ap- great.’ quantum it And where clear and the so pears a is as “. . . that greater equal the de- than to matter of law or only power the court but it is not within fendant, 19 duty court to it is so hold.” operator jury found the racetrack The verdict here negligent pedestrian percent permitting and both 70 for from the three exit routes vehicular traffic on one of seating parking The verdict found area area. causally negligent pedestrian plaintiff percent for five voluntarily knowingly choosing exit the route and permitted. pedestrian traffic where vehicular were prior on been racetrack driver occa- had he such, at the racetrack As had used sions the third exit route involved. pedestrians a driver. He knew as both along. He the road he to walk vehicles used selected the other exit and more 'knew two routes—shorter moving them. traffic on direct—did have vehicular jury road that the one who maintained the verdict causally negligent person 14 who times as egress it cannot as an stand. chose place building
Frequenters
public
an
are under
ordinary
obligation
to exercise
care
their
safet
own
y.20
assumption,
not a
of risk is
defense under the
While
ordinary negligence
safe-place
in
cases as well as
Harley-Davidson
(Quoted
Motor
in Rewolinski v.
matters.”
680, 684, 146
485.)
(1966), 32
W. 2d
Wis.
N.
citing
page 46,
(1956),
Id. at
Schwarz v. Winter
272 Wis.
303, 309,
Award of jury damages The $35,000. awarded in the amount of wages This did $2,777.01 sum not include an award of expenses lost and medical court set trial and challenged appeal. on this This is not the more usual high-speed multiple injuries. automobile accident with plaintiff walking alongside was auto- road with looking passing mobiles and trailers him and without to approaching back see who was line or how close his walking they moving. of were The defendant driver driving he testified was five miles an hour auto- as his just mobile came of abreast and before the caught plaintiff trailer pulled wider to the and him ground. Apparently the wheel the trailer went over plaintiff’s foot and he sustained a For fractured ankle. injury $35,000 sole of a fractured an ankle, award argue excessive, defendants-appellants would be However, something typical award to be. more than a ankle fracture is here involved. As trial court stated, [$35,000] past suffering pain, sum “this includes and shopping store, length in the was defendant’s walked over a fencing wire which salesman had unrolled on the Al- floor. though plaintiff easily it, could have walked around he chose wire, tripped to walk over the on it and fell. This court held as plaintiff’s negligence equal a matter of law that was to that of the defendant.” disability, pain, suffering disability and future and earning capacity.” and reduced testified daily pain during disability, particularly working day. noted, As trial court on motions after . doctor, . the verdict, defendant’s own Dr. nothing Regan, James there admitted was medical plain- science do to condition, could correct the and the pain.” tiff would have to live with At the time of thirty-one years age trial the had a expectancy years, according life of 40.1 to the United Department Health, States Education and Welfare *11 mortality table. This court has stated that .“. . unless reversing the record discloses substantial reason for damage question the trial court’s determination that the retried, should not be we should not do so.” We find no such substantial reason here and affirm the trial holding, court $35,000 on motions after verdict, “the sum of by jury taking
awarded is not unreasonable injury, into consideration the nature of the and the effect injuries that such are calculated have to on the during years.” forty-plus his future life of some By Judgment part; affirmed in reversed Court.— part in and cause remanded for a new trial on the issue negligence only. (concurring). principal difficulty The Wilkie, J. many involving multiple here, as with accident cases de- proposition is the fendants, fundamental that the com- parison negligence always is made as between the individual and each individual defendant rather than the individual with the several defendants 26 Korpela v. Redlin Wis. 2d 89 N. W. 2d noting: judge this court “A trial who has seen and heard the injured party witnesses and observed the opportunity has a better than we to damages determine whether (Citing are excessive.” Koepp Enameling v. National Stamping & 151 Wis. 302, 322, 179.) 139 W.N. may, collectively their negligence, have contrib- injuries. approach uted to his unfairness of this grows may from fact that one or more defendants yet only have contributed to his he can recover injuries, in those he his situations where demonstrate that can negligence great greater less than or as but not either negligence than of one more or defendants considered separately. statutory language provided This is comparative negligence 895.045, under sec. law Stats., which, recently pro- as in 1971, still amended vides:
“Contributory negligence. Contributory negligence recovery by any person shall bar in an action his or legal representative damages negligence to recover for resulting injury person in death property, or in if negligence greater such was not than the against person recovery any sought, whom but damages allowed proportion shall be in diminished to the amount of person attributable to the recovering.” legislature should further compara- amend the basic inequity tive law Wisconsin to correct this provide recovery comparison so on based negligence, any, person injured causal if with *12 negligence negli- persons the of total all of the whose gence injuries. contributed to the If the con- is negligence negligent, or sidered less his is considered great only negligence as as combined of all of the the defendants, then be he should recover able to from the contributing proportion to defendants their causal ill negligence.
I am to that authorized state Mr. Justice Beilfuss concurring joins opinion. in 'part). in (dissenting, C. J. I think this
Hallows, good why example is a of case this court apply should 54 1 negligence apportionment the
the Powers rule application of the damages. proposed it does to This Park Lawver v. Powers rule first advocated in was 68, 308, 314, 151 2d in 35 2d N. W. Falls Wis. concurring it in opinion, I reiterated the and have 155 N. W. 539, 546, v. Strube 2d (1968), Wis. Pruss Brewing again Pabst 650, and 2d in Vincent (dissent- 120, 2d 177 W. 2d 139, N. Wis. Gateway ing opinion) Inc. Erectors, Bourassa v. and 2d 602. If 2d Wis. n. determining capable this case this court is negligence pedestrian, apportionment the the of causal prem- driver, to the to the of the automobile and owner at pedestrian the ises was error to decide and negligent of the then racetrack, least as as the owner capable determining apportionment this court is negligence parties of causal between three with option apportion- proper for a new trial in the event the accepted not A trial court ment is and should do so. negligence apportions in a trial to the court and I see no ability of the trial court difference in the to review and negligence by apportionment jury. correct apportionment of causal is more no jury peculiarly province damages. than keep present comparative If this state is to its form of Stats.), (sec. 895.045, then the rule should comparison plaintiff’s negli- provide for the causal gence of all the with combined other negligent causally compared persons who were negligence separately. each tort-feasor’s causal with present rule, percent if Under negligent negligent percent A 33 and defendant percent negligent, cannot B is 33 defendant Powers v. Allstate Ins. Co. 102 N. W. Wis. 2d 393. *13 against although negligence
recover A or B his either great negligence; not as is un their combined negligence comparing fair. The rule of the of the causal negligence with the causal of each defendant separately originated by the construction of the statute Kroger Grocery Baking in Walker v. & 519, 252 In
Wis. N. W. that case the court held that 721. plaintiff’s negligence while the to be a factor in the had comparison negligence contributing of all the the damages in plaintiff’s a multi-tort-feasor the case, re covery comparison negligence was based on a of his with negligence the separately. of each tort-feasor This doc in Schwenn trine was Loraine Hotel Co. followed 2d 601, 609, Wis. In neither of these cases did the court consider sec. predecessor 990.001 nor its section. This section to the relates rules for construction pro of laws and singular plural vides the includes the plural and the singular. includes I would overrule Walker Schwenn compare negligence of the negligence with the persons combined of all other negligence whose is causal to determine whether can Arkansas,2 This is rule in recover. Connecticut, Nevada, and Texas.3 2 Comparative negligence provided in Arkansas is for statute. Annot., (Repl. 1962) Ark. provides Stat. sec. 27-1730.1 that “Con tributory negligence recovery any damages shall not bar injury, property damage negligence or death where the person injured degree or killed is of less than the any person, firm, corporation causing damage.” or such Sec. contributory 27-1730.2 states the rule that “where such part person injured, damaged shown on the of the killed, recovery amount proportion shall be diminished in to such contributory negligence.” Supreme The Arkansas Court con has contributorily negligent strued sec. 27—1730.1 to mean that plaintiff may recover if his is less than that of all defendants v. Tull combined. Walton 234 Ark.
56 Brewing dissenting opinion Pabst
In the in Vincent v. 131, 513, it 177 2d 120, 47 2d Wis. suggested adopt pure the court was this should negligence many comparative time, doctrine. Since negligence adopted comparative have some form of states by by court rule. Annot. either statute See Negligence-Comparative-Contributory, 32 A. 3d L. R. 463; Injury Commentator Personal 380-383.4 (sec. by present 895.045), statute amended Wisconsin provides 1971, 47, Case, Laws ch. after Vincent negligence greater plaintiff can recover if his is “not negligence against person than” of the whom re sought. covery There have are six other states which negligence.5 1971, comparative Prior to this formula of 891-894, 20; (Ark. 1972), 488 356 W. 2d Riddell v. Little S. W. S. 34, purpose Walton, In that the the court observed basic damages among the statute “is to distribute the total those who legislature are meant caused them ... We not convinced that go any deny recovery farther than to to a whose damage.” negligence percent at of the cause of his own was least that, Walton, Supreme It be noted in Court should Arkansas Grocery specifically Kroger rejected reasoning v. & of Walker Baking Co., supra, unsatisfactory. notably, court, as Arkansas comparable. considered the Arkansas and statutes Wisconsin Special Acts, XXXVI, Public and Vol. Public Act Conn. No. 273, (a) (effective 1, 1973, 1973); sec. 6 Jan. Nevada Laws (Senate May 624) (approved 3, 1973); Bill No. Texas ch. 1973, Laws of ch. 28. Comparative Negligence Hogan, also: 4 See Ghiardi —The Procedure, Journal, Rule and 18 Defense Wisconsin Law No. by (October, 1969), reprinted the Defense Research Institute Monograph Series. (a) (effective Connecticut —Public Act sec. 6 Jan. No. Stats., 896.046, The Connecticut rule differs from sec. Wis. Kroger, supra, that, statute, as construed Walker in negligence Connecticut has declared that of the defendants should be combined order to determine whether the can recover. Hampshire New H. Rev. Stats. Annot. 507:7-a. sec. —N. provided comparative statute Wisconsin’s only “not if his could recover against great person whom as” recovery sought. 1969. There 895.045, See Stats. sec. adopted are formula.6 There ten states which have Annot. title sec. Vermont —Vermont Stats. July (effective 1, 1970). Jersey 146; New ch. J. S. A. 2A:15-5.1 N. —Laws 2A: 16-5.3. amending *15 (Senate 1973, 524), Bill Nevada —Laws of ch. 787 No. May 1973). (Approved 3, The of Nevada Revised ch. Statutes approximates formula the Connecticut formula. Nevada Nevada contributory negligence plaintiff provides of the shall not that “the person seeking recovery recovery negligence a of the bar if the greater negligence gross negligence person not than the or of the recovery sought judge may, persons against the or whom is . . . by any requested party jury the that: and shall instruct when may contributory negligence (a) not recover if his The injury negligence than the of the has contributed more to multiple negligence of defendants.” defendant or the combined 1, 1973, (H. 88) (effective Sept. of ch. 28 B. Texas —Laws No. patterned 1973). on the Connecticut formula is also Texas contributory negligence provides approach. “shall Texas negligence greater recovery is than not bar ... if such against party persons parties negligence person or or recovery sought whom . . . .” is (Repl. Annot., sec. 27-1730.1 Stat. Arkansas —Ark. 2, supra, previously in formula As noted footnote Arkansas may negligence provides than recover if is less his negligence the combined of all defendants. Stats., (1963) (Cum. Supp. sec. 41-2-14 Colorado —Colo. Rev. July (effective 1, 1971). 1971) May 1971, (effective 20, 1971), Idaho Idaho —Laws ch. 1973) (Cum. Supp. 6-801. Code sec. 227, 1, Stats., ch. sec. Hawaii —Laws sec. Hawaii Rev. 14, 1969). (effective 663-31 June (effective Laws, Annot. Massachusetts —Mass. ch. sec. January 1,1971). Annot., (effective Maine —Maine Rev. Stat. title sec. 156 1, 1969). October (effective July (1) 604.01 Minnesota —Minn. Stats. sec. 1, 1969). are states which have taken modified views com four parative negligence.7
By logical just comparative far more rule of negligence supplant the harsh common-law doctrine contributory negligence is doctrine known as “pure comparative negligence.” doctrine, Under every injured person recovers the amount of dam- his ages percentage reduced of his causal every person causing damage to another is ultimate- ly only percentage liable appor- for the may tioned to applicable It that under the him. be rule joint one tort-feasors, tort-feasor liable for damage total to which a entitled and under pure comparative negligence doctrine as under other comparative may initially doctrines pay one defendant more proportionate share; than his nevertheless, he right then should have of contribution based on com- parative negligence overpayment. to recover See Bielski Schulze (1962), Wis. 2d N. W. 2d pure comparative doctrine has been adopted by jurisdictions.8 five Oregon (effective Rev. Sept. 9, Stats. sec. 18.470 —Ore. *16 North (1973), of 78, 1, Dakota —Laws Dakota North ch. sec. 9-10-07, approved sec. 13, March 1973. (1963), Utah —Utah (1973 Code pocket Annot. sec. 78-27-37 part). 7 Nebraska adopted “slight-gross” Dakota South have comparative negligence variation of (Neb. 1943), Rev. Stats. sec. 26-1151; Compiled South (1967), Dakota 20-9-2); Laws sec. Georgia engrafted has last clear great chance onto a “not as as” comparative negligence (Ga. formulation of Annot., Code secs. Conaway 105-603; McCrory 94 — 703 and Corp. (1950), v. Stores App. 97, 82 Ga. 631) 60 engrafted S. 2dE. and Tennessee has
last clear
contributory
chance
negligence”
onto a “remote
rule.
Ferguson
Hansard v.
App. 306,
23 Tenn.
If the bent Wisconsin part as a liability, form of no-fault then some adopt pure negligence legislative plan for it should good Certainly plan. it is gaps left the no-fault if regardless of fault to re- public policy his for damages in- up amount of for certain cover to a limited juries, just logical, recover so, it if more he injuries all to their full amount reduced for his negligence injuries. percentage his which caused such legislature suggest that, in the I absence would adopt comparative action, pure it court form of this beyond negligence provi- the area the no-fault for which grant plan This is what Rhode of its does not relief. sion recently adopting plan.11 done in a no-fault has Island power adopt court the doc- But I has believe pure comparative all trine legislature so; go if desires to cases and should do Rhode sec. 9-20-4. Island —R. I. Gen. Laws 1973), (Fla. App. 2d v. Ct. So. Florida — Jones Dist. Hoffman 529. (Senate Washington Leg. Serv., ch. Laws — Wash. April 1, 1974), 2045) (effective sec. 1. Bill No. supra, Hoffman, v. note 8. Jones 01 (1972), 30 2d 282 N. E. Dole v. Dow Chemical Co. N. Y. Kelly Long Lighting 288; Island 2d N. Y. E. 2d 286 N. Laws, (1969). R. I. 9-20 - 4 Gen. sec. legal major prevents adopting the courts from No obstacle Prosser, (3d ed.), p. 445; comparative Torts See rule. *17 regardless change recovery provide farther and it to powér. it, course, has such of fault in instances, some Company, Appellant, Abrasive Jagmin, v. Simonds Respondent. Argued November 1973.
No. 173. October 1973. Decided 810.) (Also reported in 211 Continuity Keeton, Torts, in the Law Creative 75 Harv. L. Rev. 463, 506,