The majority decision can be viewed as a silent but impermissible attempt to recreate the abolished doctrine of assumption of risk.
As the dissent notes, the facts of the case fit very comfortably within the three elements for application of the Strack exception. Thus, there is an appearance that this decision is driven wholly by public policy.
As a public policy matter, the majoritys concerns are not without basis. No one concerned with the appearance of the legal system wants to see a newspaper headline touting, Woman slips on french fry; recovers $24 million from Lambeau Field.
Furthermore, in one sense, this case can be distinguished from Strack and Steinhorst. The court in Steinhorst wrote, The displays of merchandise in modern stores are so arranged and are intended to catch the customers attention and divert him from watching the floor. … Steinhorst was walking through the store … and had no reason to look at the floor in front of the mens shaving-cream counter. The public does not expect to shop at its own risk and it is unreasonable to expect a person in a retail store to use the same degree of lookout as he would on a public street. Steinhorst, 48 Wis.2d at 685-686.
In contrast, it is reasonable to expect a person at an arena attending a sporting event or rock concert to use an even higher degree of lookout for debris on the floor than he would on a public street, because such venues consistently have more spills and debris than are found on streets.
A shopper at a grocery store who sees a broken jar of baby food on the floor expects it will be cleaned up soon. In contrast, at an arena or stadium, the patron expects that the food and beer spills he sees will still be there when he leaves.
However, the above-quoted portion of Steinhorst is not contained in its discussion of the safe-place statute and whether to apply the Strack exception. Instead, it is found in that portion of the decision considering the common law negligence claim.
Thus, it is irrelevant that the quotation cannot be paraphrased to fit an arena. Regardless of the publics minimal expectations that spilled beer and food will be promptly cleaned at an arena, this goes to the question of comparative negligence which is properly for the jury to decide and not the legal question of whether the Strack exception applies.
Thus, at its heart, the majority opinion ultimately rests on a conclusion that a person who attends a sporting event assumes the risk that food and beer will litter the floor.
It may be a reasonable assumption, but ultimately, given Wisconsins abrogation of the assumption of risk doctrine, it is one which Wisconsin law does not permit, and this case should have been permitted to go to a jury.
– David Ziemer
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David Ziemer can be reached by email.