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COURT OF APPEALS DECISION DATED AND RELEASED September 12, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1757
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
DIANE JESSUP,
Plaintiff-Appellant,
BLUE CROSS AND BLUE
SHIELD
OF WISCONSIN and
KANSAS CITY FIRE &
MARINE
INSURANCE COMPANY,
Plaintiffs,
v.
BANC ONE BUILDING
MANAGEMENT CORPORATION,
and CONTINENTAL
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Reversed
and cause remanded with directions.
Before Fine and
Schudson, JJ., and Michael T. Sullivan, Reserve Judge.
PER
CURIAM. Diane Jessup appeals from a judgment granting Banc One
Building Management Corporation's motion for a judgment notwithstanding the
verdict and dismissing her negligence and safe place suit. Jessup slipped and fell on the wet floor of
the Banc One Plaza Building in downtown Milwaukee. She sued Banc One and went to trial. The jury returned a verdict in her favor, but the trial court
granted Banc One's motion for judgment notwithstanding the verdict and
dismissed the suit on the merits. We
agree with Jessup that there was credible evidence to support the jury verdict
and therefore the trial court was clearly wrong when it overturned that
verdict. Accordingly, we reverse the
judgment and remand the matter with directions for the trial court to reinstate
the jury verdict.
I.
Background.
Jessup's action arose
from a slip-and-fall injury which occurred in the Banc One Plaza in April
1991. She sued Banc One, alleging causes
of action in both negligence and a safe place statute violation. See generally Chapter 101, Stats. The following facts were presented at
trial. Jessup had just ridden the
elevator down from her place of employment when she exited on the first floor
and fell within eight feet of the elevator.
Jessup testified that she did not notice a “wet floor” sign until after
she fell. She also testified that the
floor was not merely wet, but was more like a puddle of water.
A surveillance video
camera at the Banc One Plaza captured the incident on tape. The tape was admitted into evidence at
trial. The tape shows the “wet floor”
sign to the left of Jessup at the time she fell. Testimony at the trial also established that Wesley Bruce, an
employee of the American Building Maintenance Company, mopped the area prior to
Jessup's fall. The surveillance tape
also captured three people in the area of the accident about twenty minutes
prior to Jessup's fall. From the tape,
it could be inferred that one of the people slipped momentarily. A security guard, Kenneth Krueger, witnessed
Jessup's fall as it happened. He was
employed by American Building at the time of the accident. He testified that before Jessup fell, he
observed the floor to be wet and/or slippery.
At the close of the
evidence, the jury determined that Banc One was negligent in the maintenance of
the floor area and awarded damages in the amount of $40,890.01. Following the verdict, Banc One moved for a
judgment notwithstanding the verdict on the ground that Jessup failed to
establish a prima facie case against Banc One for safe place violations.[1] Banc One argued that a non-party to the
suit, American Building, was providing maintenance and janitorial services to
Banc One pursuant to a service contract, and that the evidence produced at
trial by Jessup had “at most suggested a possible negligence case against
American” Building. Banc One also
argued:
There has been no evidence (1) that Banc
One personnel were negligent in maintaining a safe place, (2) that Banc One was
responsible for the creation of a dangerous condition, (3) that Banc One had
constructive notice of any dangerous condition, or (4) that Banc One had a non-delegable
duty to make sure that its independent contractor, American [Building], carried
out its duty with reasonable care.
Finally, Banc One
maintained that Jessup had failed to “establish a prima facia case
against Banc One for safe place violations as negligence of an independent
contractor cannot be imputed to the principal.” Further, because “Banc One had no actual or constructive notice
of any unsafe condition created by the independent contractor,” it could not be
liable “under safe-place law.”
In support of its decision, the trial court
noted that American Building and Banc One had entered into a contract to
provide Banc One with maintenance and janitorial services; that the evidence
and its reasonable inferences proved that American Building was an independent
contractor of Banc One; that American Building employees were not controlled by
Banc One nor was their method, manner, time or compensation controlled by Banc
One; and that American Building provided equipment for its employees and was
solely responsible for their activities.
In addition, the trial
court concluded that the act of mopping a floor is not an extrahazardous
activity against which a principal would be duty-bound to protect. Finally, the trial court concluded that the
evidentiary record was devoid of evidence that Banc One had notice of the
hazardous condition. Based on these
conclusions, the trial court entered the judgment notwithstanding the verdict
for Banc One and dismissed the complaint.
Jessup appeals from that judgment.
II.
Analysis.
On appeal, Jessup
concedes that American Building was an independent contractor. Jessup contends, however, that Banc One's
duty of care under the safe place statute is not delegable and that there was
credible evidence to support the jury verdict finding that Banc One had notice
of the dangerous condition. She
therefore argues that the trial court erred when it upset the jury
verdict. Banc One's counsel stated at
oral argument that Banc One's position was “relatively simple”—“there was no
credible evidence to support either the negligence cause of action or the safe
place action.” We disagree with Banc
One.
When
a circuit court overturns a verdict supported by “any credible evidence,” then
the circuit court is “clearly wrong” in doing so. When there is any credible evidence to support a jury's
verdict, “even though it be contradicted and the contradictory evidence be
stronger and more convincing, nevertheless the verdict ... must stand.”
Weiss
v. United Fire & Casualty Co., 197 Wis.2d 365, 389-90, 541
N.W.2d 753, 761-62 (1995) (ellipses in original) (citations omitted). Hence, we must reverse a trial court when it
commits error “in overturning a jury verdict which is supported by any credible
evidence.” Id. at 389
n.9, 541 N.W.2d at 762 n.9.
The elements of a safe
place action are: (1) the existence of a hazardous condition at a place of
employment; (2) the condition must be a cause of injury; and (3) the owner
or employer either knew or should have known of the condition. Topp v. Continental Ins., 83
Wis.2d 780, 787, 266 N.W.2d 397, 402 (1978).
It is undisputed that Banc One was a place of employment within the
meaning of § 101.01, Stats.,
and that Jessup was a person other than an employee and not a trespasser.
The crux of this case is
whether Banc One had notice of the hazardous condition, that is, the wet
floor. Absent a structural defect,
Jessup was required to prove that Banc One had either actual or constructive
notice of the wet floor condition. Fitzgerald
v. Badger State Mut. Cas. Co., 67 Wis.2d 321, 330, 227 N.W.2d 444, 448
(1975). Ordinarily, this is a fact
issue for the jury. See Krause
v. V.F.W. Post No. 6498, 9 Wis.2d 547, 554, 101 N.W.2d 645, 649
(1960). Here, there was evidence
presented that an American Building janitor had mopped the area before Jessup's
fall; that about twenty minutes previously another person slipped in the area;
and that Jessup described the wetness as a “bunch of water.” We conclude that this was credible evidence
from which the jury could find that Banc One had constructive notice of the
hazardous condition.
In Steinhorst v.
H.C. Prange Co., 48 Wis.2d 679, 684, 180 N.W.2d 525, 527-28 (1970), a
customer slipped and fell on shaving foam on a department store floor. Evidence that boys had been playing around
the self-serve shaving cream counter fifteen minutes before the accident and
that previously foam had been found on the floor was sufficient to support a
finding of constructive notice.[2]
Banc One also argues
that it delegated its duty to keep its premises reasonably safe to American
Building. To the contrary, Wisconsin
jurisprudence has maintained a rule that an owner's duty to comply with Chapter
101, Stats., is
nondelegable. Dykstra v. McKee
& Co., 100 Wis.2d 120, 130‑32, 301 N.W.2d 201, 206‑07 (1981). All that is necessary to impose the duty is
a right to possession or control of the premises. See Novak v. City of Delavan, 31 Wis.2d 200,
207, 143 N.W.2d 6, 10 (1966). It is
without dispute that the evidence showed that Banc One had control of the
premises. It was duty-bound to comply
with the safe place statute.
In addition, Banc One
contends that by virtue of its maintenance contract with independent contractor
American Building, it is insulated from liability for the negligence of
American Building's employees. The
fault with this argument is that the owner's control or custody need not
be exclusive or for all purposes to invoke the strictures of the safe place
statute. Schwenn v. Loraine Hotel
Co., 14 Wis.2d 601, 607, 111 N.W.2d 495, 498 (1961). Its exercise of control over the building
was manifest from its power to discharge American Building, to delegate work to
American Building, and to direct American Building to pull and submit Banc
One's lobby videotape to its security person in event of an accident. Further, accident forms were prescribed by
Banc One, which reviewed them before forwarding them to insurers. The evidence supports a conclusion that Banc
One's control of the premises was sufficient to invoke its liability under
Chapter 101, Stats.
Finally, Banc One argues
that the jury was “utterly confused” and misunderstood the trial court's
instructions. Banc One contends that
the questions sent by the jury to the judge during deliberations confirm this confusion. The jury sent the following questions:
Is “Banc One” responsible for any
negligence on the part of American Building Maintenance Corp.?
Is this suit filed against the owner of
the building “Bank One” [sic] or the cleaning company who we presume now
is Banc One Building Management Corporation?
How does Banc one Building Management tie
in with the cleaning (ABM) company at the time of the accident.
(Letter
case altered from original.)
The trial court gave the
following respective responses:
No.
This suit is filed against the owner of
the building Banc One Building Management Corporation.
Bank One [sic] Building Management
contracted with ABM for cleaning services.
Both
parties conceded at oral argument that the trial court's answers were correct.[3] Given that the jury received accurate
answers to their questions, we do not see how this evinces the jury's confusion
as to the issues in this case. Thus,
based on the record before us, we cannot conclude that the jury's verdict
should be impeached because of its exposure to what Banc One terms “extraneous
prejudicial information.” E.g., State
v. Marhal, 172 Wis.2d 491, 497 n.4, 493 N.W.2d 758, 761 n.4 (Ct. App.
1992) (discussing impeachment of jury verdict).
In short, we conclude
that the trial court was “clearly wrong” in overturning the jury verdict
because the record is replete with credible evidence to support the jury's
finding that Banc One was “negligent in maintaining and keeping its premises
safe for” Jessup. Accordingly, we must
reverse the judgment and remand the matter with directions for the trial court
to reinstate the jury verdict.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Banc One also moved both at the close of Jessup's evidence and at the conclusion of the evidentiary portion of the trial for dismissal of the suit; the trial court took the motions under advisement.
We have pointed
out that when an unsafe condition, although temporary or transitory, arises out
of the manner of doing business by the occupant of the premises or may be
reasonably expected to occur from his method of operation, a short period of
time and possibly no appreciable period of time under some circumstances need
exist to constitute constructive notice.
Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 683‑84, 180 N.W.2d 525, 527 (1970).