Issue of Material Fact – Child Trespasser Exception

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WI Court of Appeals – District III

Case Name: Khiley M. Johnson v. Marshfield Clinic Health System, Inc., et al.,

Case No.: 2020AP1777; 2020AP1892

Officials: Stark, P.J., Hruz and Nashold, JJ.

Focus: Issue of Material Fact – Child Trespasser Exception

Khiley Johnson appeals a summary judgment granted in favor of Marshfield Clinic Health System, Inc. (Marshfield Clinic) and its insurer, Proassurance Casualty Company. Johnson was injured after a concrete bollard fell on her big toe in a vacant parking lot of Marshfield Clinic; she was twelve years old at the time. The circuit court concluded that Marshfield Clinic did not owe a duty of care to Johnson because she was a trespasser and no exceptions to that rule applied. On appeal, Johnson argues that genuine issues of material fact exist as to whether she had implied consent to enter the parking lot. She also argues that genuine issues of material fact exist on each condition of the child trespasser exception under WIS. STAT. § 895.529(3)(b) (2019-20).

We agree with both of Johnson’s arguments. We first conclude that genuine issues of material fact exist as to whether Johnson had implied consent to enter the parking lot because there is evidence that: (1) children used the lot; (2) Marshfield Clinic acquiesced to such use; and (3) Johnson entered the lot to catch her younger brother. We also conclude that genuine issues of material fact exist on each condition of the child trespasser exception. We therefore reverse the judgment in favor of Marshfield Clinic and remand for further proceedings consistent with this opinion.

Johnson also appeals a grant of summary judgment in favor of Nate’s Lawn Service, LLC (Nate’s) and its insurer, Society Insurance, a mutual company. At the direction of Marshfield Clinic, Nate’s placed the concrete bollards at the entrance of the parking lot several months before Johnson’s injury. The circuit court concluded that Nate’s was not negligent, and even if it was, public policy considerations precluded liability. Assuming without deciding that Nate’s was negligent, we conclude that public policy factors preclude holding Nate’s liable, and we therefore affirm the grant of summary judgment in favor of Nate’s.

Finally, Marshfield Clinic appeals a grant of summary judgment on its third-party claim of negligent supervision against Johnson’s grandmother, Judy Balog. The circuit court concluded that Johnson’s injury was not foreseeable, therefore barring Balog’s potential liability. Marshfield Clinic argues on appeal that Balog had a duty of care because leaving children unsupervised near public streets creates a foreseeable risk of harm. It also argues that public policy considerations do not preclude Balog’s potential liability. We conclude that genuine issues of material fact exist as to whether Johnson’s injury was foreseeable and that public policy considerations do not preclude her liability. Accordingly, we reverse the judgment in favor of Balog as part of our remand for further proceedings.

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Derek A Hawkins is Corporate Counsel, at Salesforce.