No Immunity for Drunken Patron’s Fall Down Stairs, Wisconsin Supreme Court Rules

By Jim Sams | May 19, 2021

Under Wisconsin law, a property owner owes no duty of care to a trespasser. If someone enters a home or business without permission and then hurts himself by, say, falling down a flight of stairs, the owner is immune from any negligence claim unless the harm was intentional.

That immunity also applies to any “other lawful occupant” of a property, but nobody knew what that meant until Tuesday, when a divided Wisconsin Supreme Court provided a definition.

“Reading the phrase within the context of the other terms provided in the definition of ‘possessor of real property,’ an ‘other lawful occupant of real property’ must be someone who has possession of or control over a premises,” the court said.

Two insurance carriers were hoping the immunity provided by Section 895.529 would save them the cost of defending their insureds, the Railroad Station bar, and one of its employees. A former patron sued the bar and the employee after he was severely injured when he tumbled down the stairs after being kicked out of the bar for a second time.

Tuesday’s split decision denies one of the insurers the immunity given to “other lawful occupant(s).” The court said it was the first time it had interpreted the meaning of the words.

David Stroede had at least one too many on Sept. 20, 2014 while drinking at the Railroad Station, a neighborhood bar in the Milwaukee suburb of Saukville. He became extremely intoxicated, urinated on himself and knocked over a table and glasses.

After Stroede punched another customer, a bartender told him to leave. He was escorted out of the bar.

John D. Tetting, an employee of the bar, happened to be at his workplace with his family that night while off duty. When Tetting spotted Stroede returning, he grabbed him by the shoulders and walked him backward to the stairs, which led to the exterior door. When Tetting released, Stroede took a step backwards and fell down the concrete steps. Tetting dragged him to the grass outside.

The complaint says Stroede suffered cuts on his skull, a subdural hematoma and blunt head trauma. He also suffered hypothermia from being left outside on a chilly September night.

Stroede sued Tetting, Railroad Station and Society Insurance alleging that Tetting used excessive force and was negligent. He later added Tetting’s home insurer, West Bend Mutual Insurance Co., as a defendant.

The insurers filed motions for summary judgment. The circuit court in Milwaukee County ruled that Stroede was a trespasser, so Section 895.529 protected Railroad Station and Society Insurance from his claims. But the judge ruled Tetting was not an “other lawful occupant” and had no immunity from a negligence claim.

Tetting and West Bend appealed. The Court of Appeals accepted their argument that Tetting was an “other lawful occupant” and immune from liability. The appellate court said the dictionary definition of the words “lawful” and “occupant” supported its finding.

The Supreme Court majority opinion, however, says that in this case the placement of the words within the statute provide important context.

The statute provides immunity for negligence actions to “possessors of real property.” The statute then goes on to define that term, stating that it includes “an owner, lessee, tenant or other lawful occupant.”

The court said a canon of statutory construction holds that when general words follow specific words, the general rules should be construed in light of the specific words listed. A second canon holds that “words are known for their associates.”

The court said the words “owner, lessee, and tenant” signify some degree of control and responsibility for a property. The statute as a whole also supports an interpretation that gives meaning to the words.

“Reading the statute so broadly as to categorize anyone and everyone who is present on a property to be an ‘other lawful occupant of real property’ would negate the other specific terms provided (owner, lessee, and tenant) because it would swallow those terms whole,” the majority opinion says.

“Such a broad definition of ‘other lawful occupant of real property’ would also render the legislature’s selected terms and the word ‘possessor’ meaningless because no actual possession would be required.”

Justice Rebecca Grassl Bradley dissented, saying she prefers to interpret statutes according to their plain dictionary definition.

In her dissenting opinion, Bradley quoted a textbook co-written by the late Supreme Court Justice Antonin Scalia: “Courts have sometimes ignored plain meaning in astonishing ways.”

“Lawful occupant of real property” means precisely what it says: an individual who lawfully occupies the property—that is, an individual who is lawfully present on the premises,” she wrote. “The majority’s contrary interpretation privileges trespassers while erasing the statutory rights of individuals who are lawfully present on real property.”

It remains to be seen whether Stroede will be rewarded with an award for damages for the injury he suffered after trespassing at the Railroad Station. The Supreme Court remanded the case back to Milwaukee County to resolve numerous remaining issues, including whether Tetting was acting as an employee when he escorted Schroede to the exit stairs.

Plaintiff’s attorney Keith Trower, with the Warshafksy law firm, said he is pleased with the decision. Trower said he expects the case to settle eventually, if only because most cases end up with a settlement.

Eric S. Darling with Schmidt, Darling & Erwin, who represented Society, could not be reached for comment.

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