Smith v. Goshaw

387 Wis.2d 620

928 N.W.2d 619

2019 WI App 23

Nevin L. SMITH, Plaintiff-Respondent,

Aspirus, Inc. Group Benefit Plan, Involuntary-Plaintiff,

v.Dale GOSHAW and Auto-Owners Insurance Company, Defendants-Appellants.

Appeal No. 2017AP2008

Court of Appeals of Wisconsin.

Submitted on Briefs: October 2, 2018

Opinion Filed: April 4, 2019

On behalf of the defendants-appellants, the cause was submitted on the briefs of Fred L. Morris and Ryan J. Steffes of Weld Riley, S.C., Eau Claire.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Steven L. Miller of Miller Appellate Practice, LLC, River Falls.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Dale Goshaw and Auto-Owners Insurance Company appeal a money judgment entered in favor of Nevin Smith in this negligence action. Smith, a tenant at an apartment building owned by Goshaw, sustained injuries when the fire escape he was standing on outside the building collapsed.

¶2 At trial, Smith requested a modification to the standard jury instruction regarding a landlord’s duty of ordinary care to a tenant, WIS JI— CIVIL 8020 (2013). The modification added: "Every building and all parts thereof shall be kept in good repair." After being given this modified instruction over Goshaw’s objection, the jury found Goshaw negligent with respect to the inspection, maintenance and repair of the premises, and it awarded Smith damages.

¶3 We conclude the modification to the 8020 instruction was erroneous and had the likely effect of misleading the jury regarding the correct legal standard for negligence. We also conclude Goshaw was prejudiced by the erroneous instruction because the instruction invited the jury to apply an incorrect legal standard and because it was highlighted by Smith’s counsel during his closing argument. Accordingly, we reverse the judgment and remand for a new trial.¹

BACKGROUND

¶4 Smith was injured in October 2013 when a fire escape outside of his apartment unit collapsed. Smith was standing on the fire escape when it gave way, and he fell to the ground. He suffered several injuries as a result of the fall, including a hip injury that required surgery. Smith was a tenant residing in the building, which Goshaw owned.

¶5 Smith filed this negligence action against Goshaw and his liability insurer.² The matter was tried to a jury over four days. Smith’s theory at trial was that Goshaw was negligent for failing to inspect the bolts that attached the fire escape to the structure and for failing to repair a known issue regarding a doorway area near the fire escape that was affected by water infiltration and dry rot in some areas.³ Goshaw’s position was that he had no reason to believe there were any structural issues with the fire escape and that dry rot in other areas was not the cause of the fire escape’s failure. At the conclusion of the trial, the jury returned a special verdict finding that Goshaw had been "negligent with respect to inspection, maintenance, or repair of the fire escape," and that such negligence was the cause of Smith’s injuries.

¶6 Goshaw filed a postverdict motion for a new trial. Goshaw argued that the jury was instructed on an incorrect legal standard based upon the circuit court’s decision to modify WIS JI— CIVIL 8020 (2013). In general, and as relevant to this case, the 8020 instruction states that an owner of real property must use ordinary care to maintain his or her premises so as to avoid exposing persons lawfully on the property to an unreasonable risk of harm under the circumstances.

¶7 During the jury instruction conference, Smith had requested that the circuit court add the following language at the beginning of the 8020 instruction: "Every building and all parts thereof shall be kept in good repair." The court granted the modification over Goshaw’s objection. Goshaw’s subsequent motion for a new trial asserted the modification effectively subjected him to strict liability for any unsafe condition, regardless of whether he had actual or constructive knowledge of the condition. Goshaw argued the error was compounded by Smith’s attorney emphasizing the "good repair" instruction during closing argument.

¶8 The circuit court denied the motion for a new trial, noting the added language mimicked a provision in the Wisconsin Administrative Code. The court stated the instruction "does not read to me to create a strict liability requirement," and it concluded the jury would reasonably understand the "good repair" instruction as merely a component of the other standards articulated in the 8020 instruction. For those reasons, the court also concluded any error in modifying the 8020 instruction did not prejudice Goshaw. Goshaw now appeals.

DISCUSSION

¶9 A circuit court has broad discretion to craft jury instructions based upon the facts and circumstances of the case. Dakter v. Cavallino , 2015 WI 67, ¶31, 363 Wis. 2d 738, 866 N.W.2d 656. The court must, however, exercise that discretion in a way that fully and fairly informs the jury of the rules of law applicable to the case and that assists the jury in making a reasonable analysis of the evidence. Id. Whether the circuit court erred by stating the law incorrectly or in a misleading manner is a question of law this court reviews de novo. Id. , ¶32. ¶10 Goshaw contends the "good repair" modification to the 8020 instruction had the effect of heightening the applicable standard of care from ordinary negligence to that of strict liability. In Pagelsdorf v. Safeco Insurance Co. of America , 91 Wis. 2d 734, 284 N.W.2d 55 (1979), our supreme court "[a]brogat[ed] the landlord’s general cloak of immunity at common law" and held "that a landlord must exercise ordinary care toward his tenant and others on the premises with permission." Id. at 735, 284 N.W.2d 55. This rule permits a person who is lawfully on the premises, and who is injured as a result of the landlord’s failure to exercise ordinary care in inspecting or maintaining the property, to recover from the landlord "under general negligence principles." Id. at 745, 284 N.W.2d 55.

¶11 The "general negligence principle" at play in this case is the duty of care a landlord owes to a tenant. See Antwaun A. ex rel. Muwonge v. Heritage Mut. Ins. Co. , 228 Wis. 2d 44, 55, 596 N.W.2d 456 (1999). Wisconsin law generally imposes on all persons a "duty of reasonable care to refrain from those acts that unreasonably threaten the safety of others." Id. In determining whether a person had a duty in relation to a particular risk of harm, we focus on the foreseeability that the act or omission would cause harm to someone. Id. The ultimate question of whether a landlord has exercised ordinary care in the maintenance of the premises requires an examination of the totality of the circumstances, including "[i]ssues of notice of the defect, its obviousness, [the landlord’s] control of the premises," and other relevant factors. Pagelsdorf , 91 Wis. 2d at 745, 284 N.W.2d 55.

¶12 We agree with Goshaw that the "good repair" instruction given to the jury operates contrary to the required "totality of the circumstances" analysis in ascertaining the scope of Goshaw’s duty regarding the fire escape. The jury was told that the landlord has a duty to keep "[e]very building and all parts thereof ... in good repair." Focusing strictly on this additional language, there is no qualification of the duty of "good repair"; rather, the instruction presents the duty as being absolute. Thus, the jury could have reasonably understood this instruction to allow a negligence finding merely because the fire escape experienced a structural failure. Such a finding would have obviated the need for the jury to answer the more difficult question of whether Goshaw’s conduct in inspecting or maintaining the building and its structures unreasonably threatened the safety of his tenants, including the subsidiary question of whether he had actual or constructive knowledge of the unsafe condition. Again, the standard of ordinary care is an objective standard; "it is the care that would be exercised by a reasonable actor under the circumstances. " Dakter , 363 Wis. 2d 738, ¶41, 866 N.W.2d 656.

¶13 "We review jury instructions as a whole to determine whether ‘the overall meaning communicated by the instructions was a correct statement of the law ....’ " Id. , ¶32 (quoting Fischer v. Ganju , 168 Wis. 2d 834, 850, 485 N.W.2d 10 (1992) (ellipses in Dakter )). Smith argues this contextual approach requires us to reject Goshaw’s argument, because the jury was given proper instructions regarding the duty of ordinary care immediately after receiving the "good repair" instruction. The entirety of the court’s instructions relevant to this appeal was as follows:

Question 1 of the verdict form asks if Dale Goshaw was negligent. A person is negligent when he fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances.

A person is not using ordinary care and is negligent if the person, without intending to do harm, does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

....

Every building and all parts thereof shall be kept in good repair. An owner of property must use ordinary care under the existing circumstances to inspect, repair, and maintain his or her premises to avoid exposing ... persons on the property with consent to an unreasonable risk of harm.

"Ordinary care" is the degree of care which the great mass of people ordinarily use under the same or similar circumstances. A person fails to use ordinary care when, without intending to do any wrong, he or she ... does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence should reasonably foresee that the act or omission ... will subject another person or property ... to an unreasonable risk of injury or damage.

In performing this duty, an owner

...