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Home / Case Digests / 99-1702 Waters v. Pertzborn

99-1702 Waters v. Pertzborn

“We conclude that there are two statutory impediments to the circuit court’s order for separate trials on the issues of liability and damages before different juries. First, a review of the history of sec. 805.05(2) reveals that the omission of a provision that would allow for the bifurcation of separate issues was deliberate and was intended to disallow such bifurcation. Second, sec. 805.09(2) effectively bars the bifurcation of issues before different juries, because that statute requires that the same five-sixths of the jury must agree on all the questions before a valid verdict can be entered. …

“We believe that the circuit court’s order to bifurcate the issues of liability and damages and to try them before different juries cannot be reconciled with the requirements of the sec. 805.09(2) five-sixths verdict protection. In the context of a negligence claim, in order for a jury to render a valid verdict under the plain language of sec. 805.09(2), the same five-sixths of the jury must agree on all questions necessary to sustain that claim of negligence. Because the requirement that the same five-sixths of the jury must agree on all questions cannot be met where the questions are answered by an entirely different jury panel, we conclude that the circuit court’s order in this case is invalid.”

The defendants contest the applicability of the social guest exception on several grounds.

“The Pertzborns maintain that Kathleen had no authority to invite Christopher and trigger the social guest exception because she was merely 11 years old. Their position is not supported by the statute. The statute requires only that an ‘owner of the property invite the injured party. An ‘owner’ under sec. 895.52(1)(d)1 includes an ‘occupant.’ The statute contains no age limitation, and we will not read one into the statute. …

“Christopher’s testimony establishes that the children went to the Pertzborns at Kathleen’s behest. He testified that Kathleen wanted to go to the Pertzborns from the Waters and that she ‘brought’ Christopher to her house, saying ‘let’s go over to my house or something.’ On summary judgment we are required to draw all reasonable inferences in favor of the non-moving party. …

“[Finally], … while Diane Pertzborn was unaware that Christopher remained on the property, there is an issue of fact as to whether the specific occasion of Kathleen’s invitation included the time and circumstances of Christopher’s injury, and therefore summary judgment is inappropriate. …

“In sum, our answer to the certified issue is that the circuit court is precluded by statute from ordering separate trials before different juries on the issues of liability and damages arising from the same claim. We also conclude that because there are numerous disputed issues of material fact as to whether the sec. 895.52(6)(d) social guest exception to recreational immunity applies, the circuit court appropriately denied summary judgment.”

Affirmed in part, reversed in part and remanded for further proceedings.

CONCURRING OPINION: Abrahamson, Ch. J. “I join Part I of this opinion relating to the bifurcation of the issues of liability and damages. As to Part II, I agree that the plain meaning of the statute leads to an absurd result in this case. Statutory interpretation is necessary. In contrast, a plain meaning of the statute does not lead to an absurd result in Urban v. Grasser, 2001 WI 63, ___ Wis. 2d ___, ___ N.W.2d ___.

“This case once again demonstrates that the recreational immunity statute needs legislative attention.”

Barron County, Brunner, J., Bradley, J.


For Appellant: Ardell W. Skow, Martha J. Heidt, Baldwin

For Respondent: Kay Nord Hunt, James R. Johnson, Brent R. Johnson, Hudson

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