A Wisconsin state appeals court has held that a golfer, who sued a golf course after a fence gave way during a round, must be given a chance to prove that the course did not conduct “an adequate inspection.”
In so ruling, the court reversed a trial court’s grant of summary judgment.
Six years ago, David P. Gennrich was golfing at the Highlands Golf Course owned by Grand Geneva, LLC when he approached an elevated tee box for the 14th hole. To get to the tee, the golfer had to park his cart along an asphalt path and ascend five feet of stairs. The top of the stairs was flanked by a split-rail fence on both sides. There were no plants, signs or other obstructions warning golfers not to lean or sit on the fence, according to the court. The tee area also did not have a bench or other place for golfers to lean or sit on. While Gennrich was waiting his turn, he leaned against the top rail of the split-rail fence. The fence gave way, and Gennrich fell to the asphalt golf cart path below. Gennrich reported the incident to Grand Geneva, declined medical treatment and finished his round. Later, however, he discovered that the fall injured his back. He sued Grand Geneva in 2007, asserting that Grand Geneva was negligent in maintaining and repairing the fence under the safe place statute, WIS. STAT. § 101.11 (2007-08), 1 and negligent under common law.
Grand Geneva moved for summary judgment on both the safe place statute and common law negligence causes of action. Regarding the safe place statute, it argued that it was not in violation because it lacked the required actual or constructive notice that the split-rail fence was defective and needed to be repaired. It included an affidavit stating that one of its employees inspected the golf course from “tee to green” every day and that the employee’s supervisor inspected the golf course at least once a week. Grand Geneva also claimed that it assumed golfers would lean against the fence, and since there had been no previous accident, it had no reason to believe that the fence was defective and thus no actual or constructive notice of the defect. It also claimed that since it cannot be found in violation of the safe place statute, it also cannot have been negligent under the common law.
“The circuit court concluded, as to the safe place statute, that it was unknown when the fence became defective and held that Gennrich failed to prove that the defect existed for ‘a sufficient length of time’ to provide constructive notice,” wrote the appeals court. The trial court, in granting the defendant’s motion, also agreed that that a common law negligence action cannot be maintained when a safe place claim fails.
The Safe Place Statute reads as follows: “Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
WIS. STAT. § 101.11(1).”
The appeals court continued, noting that the “initial question” to be considered is whether Grand Geneva is an employer regarding the golf course.
“Having determined that Grand Geneva is an employer and that the golf course is a place of employment, we apply the safe place statute as it pertains to employers. We quoted the safe place statute earlier, and now we highlight that the relevant language, as applied to this case, places a duty on Grand Geneva to make the golf course safe for frequenters such as Gennrich. See WIS. STAT. § 101.11(1). And as part of keeping the golf course safe, the statute commands Grand Geneva to ‘adopt and use methods and processes reasonably adequate to render such … place of employment safe,’ to ‘do every other thing reasonably necessary to protect the life, health, safety, and welfare of such … frequenters,’ and to ‘construct, repair or maintain’ the golf course to render it safe. See id.
“The circuit court concluded that judgment could be granted as a matter of law because Gennrich could not prove that the defect existed for ‘a sufficient length of time’ to provide constructive notice to trigger Grand Geneva’s duty. It is true that actual or constructive notice is required to trigger the duty in the safe place statute to repair or maintain. See Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 330-31, 227 N.W.2d 444 (1975). But we note that if, as Gennrich alleges, Grand Geneva inadequately inspected the fence, then Grand Geneva’s faulty inspection may suffice as its constructive notice.”
The court concluded that “Grand Geneva as an employer and as an owner of a place of employment had a duty to inspect the fence. Because it is up to the fact finder to evaluate the evidence in determining whether Grand Geneva’s inspection was inadequate and whether an adequate inspection would have notified it of the defective fence, we must reverse the circuit court’s grant of summary judgment for Grand Geneva on the safe place statute.”
While the court didn’t have to address the other point that a common law negligence claim would fail automatically if “a safe place violation cannot be established,” it did so anyway, and disagreed with the trial court. “Our supreme court held that the safe place and common law standards of care address different types of negligence–the safe place statute addresses unsafe conditions and common law addresses negligent acts,” it wrote.
David P. Gennrich et al. v. Zurich American Insurance Company and Grand Geneva, LLC et al.; Ct. App. Wis., Dist. 2; Appeal No. 2009 AP2111, 2010 Wisc. App. LEXIS 560; 7/21/10
