Opinion
No. 194.
Argued March 31, 1970. —
Decided April 28, 1970.
APPEAL from an order of the county court of Rock county: MARK J. FARNUM, Judge. Affirmed.
For the appellant there was a brief by Block Summers, attorneys, and Richard E. Rosenberg of counsel, all of Janesville, and oral argument by Mr. Rosenberg.
For the respondent there was a brief and oral argument by Jack McManus of Madison.
Facts.
On the night of June 30, 1965, the defendant-appellant was sitting in a tavern in Janesville. The plaintiff-respondent approached him to inquire about the rental of a certain piece of property owned by defendant. He stated that the property was for rent, and that the rent was $85 per month. She offered $75 per month. He refused the offer.
As to what then transpired, the defendant's affidavit in support of his motion for summary judgment states:
". . . that there was no further discussion between the plaintiff and your affiant of renting this house or of any other business matter; that no arrangement was made for any subsequent meeting between your affiant and the plaintiff, either for that day or any other day, either at the Evergreen or at any other place; that at no time on that evening or at any other time did your affiant invite or request, or suggest, either directly or by implication, that plaintiff was invited or requested to come to the private residential premises of your affiant for any purpose whatever, either on that evening or at any other time." (Emphasis supplied.)
As to the discussion of the parties in the tavern, plaintiffs affidavit in opposition to the summary judgment motion states:
". . . that plaintiff and defendant discussed the price of the rental unit . . . and that said negotiations ended with defendant saying `when you change your mind, let me know' . . . that pursuant to that decision and defendant's invitation to `let him know when she changed her mind,' that plaintiff then proceeded across the tavern parking lot to defendant's residence in order to complete negotiations for the rental of defendant's apartment . . . ." (Emphasis supplied.)
Following the conversation, the defendant left the tavern to go to his residence, which was on the same property as the tavern. He watched television and went to bed. Meanwhile, the plaintiff decided to offer the defendant a house trailer in exchange for the property defendant desired to rent. She went to defendant's house, knocked on the front door, and, when no one answered the knock, went to the right side of the house, turned the corner and fell into an unlighted basement stairwell.
The plaintiff brought this action for negligence, alleging a breach of duty on the part of defendant and alleging the plaintiff to have been either an invitee or licensee at the time of the accident. Defendant answered, affirmatively alleging the status of the plaintiff at the time of the injury to have been that of trespasser. Defendant moved for summary judgment on the basis of the pleadings and affidavits attached to the motion. The trial court entered an order denying the motion for summary judgment, and set the case for trial. Defendant appeals.
What was the legal status of the plaintiff at the time she fell down an unlighted, unguarded basement stairwell on defendant's home premises?
If she was an invitee, as the complaint alleges, the defendant owed to her the duty of ordinary care.
Szafranski v. Radetzky (1966), 31 Wis.2d 119, 125, 141 N.W.2d 902; Stamberger v. Matthaidess (1967), 37 Wis.2d 186, 191, 155 N.W.2d 88.
If she is considered to have been a licensee, as plaintiff's complaint conceded she may have been, the defendant had the duty to protect her from known traps on the premises and to refrain from any active negligence.
Voeltzke v. Kenosha Memorial Hospital (1969), 45 Wis.2d 271, 282, 172 N.W.2d 673; Scheeler v. Bahr (1969), 41 Wis.2d 473, 476, 164 N.W.2d 310; Kaslo v. Hahn (1967), 36 Wis.2d 87, 89, 153 N.W.2d 33.
If her status was that of trespasser, as defendant contends, the defendant would owe her the duty to refrain from any intentional acts causing injury, but would not be liable. for failure to exercise ordinary care.
Shea v. Chicago, Milwaukee, St. Paul Pacific Railroad Co. (1943), 243 Wis. 253, 10 N.W.2d 135; Szafranski v. Radetzky, supra.
The trial court denied the motion for summary judgment and set the case for trial. This was the prudent and proper course to take. Both the pleadings and the affidavits contain a substantial issue or dispute as to the legal status of the plaintiff at the time of the accident. The factual basis which determines the duty owed by the defendant to the plaintiff is in dispute. To decide that issue on a motion for summary judgment would substitute trial by affidavit for trial by testimony.
Shifting ground on oral argument, the defendant argues that, even if he were to concede that plaintiff did have permission to enter upon the premises, it is clear from the affidavits and adverse examinations incorporated by reference, that her status was at best that of a licensee. It follows, it is argued, that, as a matter of law, this court could and should find that the defendant did not breach his duty as licensor; or that plaintiff was at least fifty percent negligent as a matter of law. This. shifts, but does not remove, the area of dispute as to facts. If status and duty alike were clear, there would remain the issue of whether or not such duty was fulfilled. The remedy of summary judgment is not to be made available ". . . to obtain quick relief at the expense of a searching determination for the truth," as to cases or issues ". . . which are basically factual and depend to a large extent upon oral testimony."
Schandelmeier v. Brown (1968), 37 Wis.2d 656, 658, 155 N.W.2d 659.
It is not necessary to review and it ought not here be necessary to reiterate the repeated holdings of this court that the denial of a motion for summary judgment is a discretionary act of the trial court, not to be reversed on appeal unless there is a clear abuse of such discretion, with summary judgment to be granted only ". . . when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried."
Zimmer v. Daun (1968), 40 Wis.2d 627, 162 N.W.2d 626; Cadden v. Milwaukee County (1969), 44 Wis.2d 341, 171 N.W.2d 360; Kemp v. Wisconsin Electric Power Co. (1969), 44 Wis.2d 571, 172 N.W.2d 161.
Hardscrabble Ski Area v. First Nat. Bank (1969), 42 Wis.2d 334, 338, 166 N.W.2d 191.
Skyline Construction, Inc. v. Sentry Realty, Inc. (1966), 31 Wis.2d 1, 5, 141 N.W.2d 909. See also: Jahns v. Milwaukee Mut. Ins. Co. (1968), 37 Wis.2d 524, 527, 155 N.W.2d 674; Kemp v. Wisconsin Electric Power Co., supra.
These decisions give great weight to the finding of a trial court in denying a motion for summary judgment that there are issues of fact best determined at the time trial. Here it is apparent that both the pleadings and the affidavits place in dispute substantial issues of fact. So the trial court was well within the outer limits of judicial discretion in denying the motion for summary judgment.
By the Court. — Order affirmed.