David Stroede v. Society Insurance, A Mutual Company

2020 WI APP 8
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2018AP1880
Case Nos.:
2018AP2371
†Petition for review filed

Complete Title of Case:

DAVID STROEDE,

PLAINTIFF-APPELLANT,

V.

SOCIETY INSURANCE, A MUTUAL COMPANY AND RAILROAD
STATION, LLC,

DEFENDANTS-RESPONDENTS,

JACOB D. TETTING, ABC INSURANCE COMPANY AND WEST BEND
MUTUAL INSURANCE COMPANY,

DEFENDANTS.

Opinion Filed: January 14, 2020
Submitted on Briefs: September 9, 2019
Oral Argument:
JUDGES: Kessler, Dugan and Fitzpatrick, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant/plaintiff-respondent, the cause was
submitted on the briefs of Keith E. Trower and Krista G. LaFave
Rosolino of Warshafsky, Rotter, Tarnoff & Bloch, S.C. in Milwaukee.

On behalf of the defendant-appellant, the cause was submitted on the
briefs of Eric S. Darling and John Wilson of Schmidt, Darling & Erwin
in Milwaukee.
Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on
the brief of Arthur P. Simpson and Kelsey R.S. Kerr of Simpson &
Deardorff, S.C. in Milwaukee.
2020 WI App 8

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2018AP1880 Cir. Ct. No. 2017CV11072

2018AP2371

STATE OF WISCONSIN IN COURT OF APPEALS

DAVID STROEDE,

PLAINTIFF-APPELLANT,

V.

SOCIETY INSURANCE, A MUTUAL COMPANY AND RAILROAD STATION,
LLC,

DEFENDANTS-RESPONDENTS,

JACOB D. TETTING, ABC INSURANCE COMPANY AND WEST BEND
MUTUAL INSURANCE COMPANY,

DEFENDANTS.

APPEALS from a judgment and order of the circuit court for
Milwaukee County: ELLEN R. BROSTROM, Judge. Affirmed in part, reversed in
part.
Nos. 2018AP1880
2018AP2371

Before Kessler, Dugan and Fitzpatrick, JJ.

¶1 DUGAN, J. David Stroede appeals the order granting summary
judgment to Society Insurance and Railroad Station, LLC, based on Jacob Tetting’s
actions. Tetting and West Bend Mutual also appeal the nonfinal order denying their
motion for summary judgment on the question of statutory immunity pursuant to
WIS. STAT. § 895.529 (2017-18).1 We affirm the circuit court’s grant of summary
judgment to Society Insurance and Railroad Station, LLC, but reverse the circuit
court’s order denying Tetting and West Bend Mutual’s summary judgment motion.

BACKGROUND

¶2 This case arises out of an incident that took place at the Railroad
Station Bar in Saukville. The material facts are not in dispute. On September 20,
2014, Stroede was drinking at the Railroad Station Bar (Railroad) when he became
intoxicated. Stroede urinated on himself and punched another patron, at which point
Railroad staff ordered Stroede out of the bar. Tetting, an employee of Railroad, was
also at the bar that night with his family. Tetting witnessed Stroede reenter the bar
after bar staff ordered Stroede to leave. Stroede, still highly intoxicated, knocked
over a table and glasses after he reentered. Tetting then approached Stroede,
grabbed Stroede by the shoulders, and began walking Stroede backwards towards
the stairway in front of the bar’s exit. Stroede fell down the stairs and hit his head.
Tetting then picked Stoede up and took him outside of the bar, placing him on the
grass. Bar staff called the police. Stroede sustained multiple head injuries as a result
of the incident.

1
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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¶3 Stroede filed a civil complaint, and later an amended complaint,
against Tetting; West Bend Mutual (Tetting’s homeowner’s insurer); Railroad; and
the bar’s liability insurer, Society Insurance. Stroede alleged that Tetting was
negligent in the manner in which he removed Stroede from the bar. The complaint2
alleged that Tetting used excessive force, resulting in Stroede’s injuries; and that
Railroad, as Tetting’s employer, was negligent in allowing Stroede to be removed
by excessive force.

¶4 Railroad, Society Insurance, Tetting and West Bend Mutual all filed
motions for summary judgment. As relevant to this appeal, Railroad and Society
Insurance argued that Stroede was a trespasser at the time of the incident; therefore,
they argued, there was no basis for Stroede’s negligence claim as the only duty
Railroad and Society Insurance owed Stroede was to refrain from willful, wanton,
or reckless conduct.3 Society also argued that Tetting was not acting as an employee
of Railroad at the time of the incident, therefore, Society was not liable for any of
Tetting’s actions.

¶5 Tetting’s motion argued that he was entitled to immunity pursuant to
WIS. STAT. § 895.529 because as a patron of Railroad, he did not owe a duty of care
to a trespasser. The statute states that a lawful occupant of real property owes no
duty of care to a trespasser. See §895.529(2). As relevant to this appeal, West Bend
joined Tetting’s motion, but opposed Railroad and Society Insurance’s argument
that Tetting was not acting as a Railroad employee at the time of the incident.

2
We reference the amended complaint.
3
WISCONSIN STAT. § 895.529(3)(a) provides, in part, “[a] possessor of real property may
be liable for injury or death to a trespasser under the following circumstances: (a) The possessor of
real property willfully, wantonly, or recklessly caused the injury or death.”

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¶6 At a hearing on the summary judgment motions, the circuit court
concluded that Stroede was a trespasser at the time of the incident, thereby granting
Railroad and Society Insurance’s summary judgment motion. Stroede, through
counsel, argued that even if Stroede was a trespasser, Tetting engaged in “reckless
conduct,” precluding Railroad and Society Insurance’s trespasser defense. Stroede
argued that the “reckless conduct” was the equivalent of the willful, wanton, or
reckless conduct necessary to preclude a trespasser defense. The circuit court
rejected the argument, stating that Stroede’s complaints only pled negligence, not
willful, wanton, or reckless conduct. Stroede then requested the opportunity to
amend his complaint to add a claim of willful, wanton, and reckless conduct. The
circuit court denied the request.

¶7 The circuit court also denied Tetting’s motion, finding that pursuant
to WIS. STAT. § 895.529, Tetting was not entitled to immunity as a lawful occupant
of Railroad. Section 895.529(1)(a) defines “[p]ossessor of real property” as “an
owner, lessee, tenant, or other lawful occupant of real property.” Id. Tetting and
West Bend Mutual argued that Tetting’s lawful presence at Railroad, as a patron,
qualified him as a “lawful occupant” under the statute. The circuit court disagreed,
concluding that a “lawful occupant” is one with “power to consent or revoke
permission to enter,” thereby excluding patrons.

¶8 Stroede, Tetting, and West Bend Mutual now appeal. Stroede argues
that his complaint adequately raised a claim of wanton, willful, or reckless conduct,
or, alternatively, that the circuit court should have allowed him to amend his
pleadings. Tetting and West Bend Mutual contend that the circuit court
misinterpreted WIS. STAT. § 895.529, therefore, erroneously determining that

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Tetting was not entitled to statutory immunity for his role in the incident. We
address each appeal separately.

DISCUSSION

¶9 We note at the outset that Stroede does not challenge the circuit
court’s conclusion that he was a trespasser at the time of the incident. We address
two limited questions on appeal: (1) whether Stroede’s complaint raised a claim of
wanton, willful, or reckless conduct, and if not, whether the circuit court erroneously
exercised its discretion in not allowing him to amend his complaint; and (2) whether
WIS. STAT. § 895.529 grants Tetting immunity as an “other lawful occupant” of
real property.

Summary Judgment Standard

¶10 We review a grant of summary judgment de novo, using the same
methodology as the circuit court. See Water Well Sols. Serv. Grp. Inc. v.
Consolidated Ins. Co., 2016 WI 54, ¶11, 369 Wis. 2d 607, 881 N.W.2d 285. “Under
that methodology, the court, trial or appellate, first examines the pleadings to
determine whether claims have been stated and a material factual issue is
presented.” Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580
(Ct. App. 1983). If so, we then examine the moving party’s submissions to
determine whether they sufficiently establish a prima facie case for summary
judgment. See id. If the defendant has made such a prima facie showing, we
examine the opposing party’s affidavits for evidentiary facts to determine whether
a genuine issue exists as to any material fact. See id. “Summary judgment materials,
including pleadings, depositions, answers to interrogatories, and admissions on file

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are viewed in the light most favorable to the nonmoving party.” AccuWeb, Inc. v.
Foley & Lardner, 2008 WI 24, ¶16, 308 Wis. 2d 258, 746 N.W.2d 447.

Stroede’s Appeal

¶11 On appeal Stroede contends that his complaint alleged “conduct
beyond mere negligence by alleging that Tetting engaged in excessive force in
removing Stroede from [the] bar,” thus putting the defendants on notice of a claim
for wanton, willful, or reckless conduct. Stroede alternatively contends that the
circuit court should have allowed him to amend his complaint at the summary
judgment hearing. We disagree on both points.

¶12 To establish a negligence claim, a plaintiff must prove: “(1) the
existence of a duty of care on the part of the defendant, (2) a breach of that duty of
care, (3) a causal connection between the defendant’s breach of the duty of care and
the plaintiff’s injury, and (4) actual loss or damage resulting from the injury.”
Smaxwell v. Bayard, 2004 WI 101, ¶32, 274 Wis. 2d 278, 682 N.W.2d 923 (citation
omitted). Injuries resulting from wanton, willful, or reckless conduct, on the other
hand, either require a plaintiff to prove an element of intent (willful conduct) or that
the conduct was “so unreasonable and dangerous that the actor knows or should
know that it is highly probable harm to another will result” (wanton or reckless
conduct). See WIS JI—CIVIL 8025. In short, negligence and wanton, willful, or
reckless conduct constitute different claims.

¶13 Stroede’s complaint does not allege a claim of wanton, willful, or
reckless conduct. The complaint alleged:

[t]hat defendant, Jacob Tetting, was negligent in the manner
in which he prevented the plaintiff from reentering the
tavern, using excessive force to do so; as a result of his

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negligence, plaintiff sustained very severe injuries; that
Railroad Station LLC was the employer of Jacob Tetting and
was additionally negligent in allowing patrons to be
excluded from the tavern by use of excessive force.

(Emphasis added.) Although Stroede contends that he was not required to use
“magic words” to raise a claim of wanton, willful, or reckless conduct, and that he
put the defendants on notice of such a claim by alleging “excessive force,” the
complaint does not state two causes of action—one of negligence and one of
wanton, willful, or reckless conduct. Whereas negligence claims address a broad
duty of care, a lesser duty of care exists for trespassers.

¶14 Property owners are merely required to “refrain from willful, wanton,
or reckless conduct directed towards the trespasser.” Hofflander v. St. Catherine’s
Hosp., Inc., 2003 WI 77, ¶103, 262 Wis. 2d 539, 664 N.W.2d 545. Although
specific definitions of the terms “willful,” “wanton,” and “reckless” vary among
case law, the overarching principle is that “willful, wanton, or reckless” conduct
requires a plaintiff to allege facts establishing that the wrongdoer “acted maliciously
toward the plaintiff or in an intentional disregard of the rights of the plaintiff.” See
Wosinski v. Advance Cast Stone Co., 2017 WI App 51, ¶75, 377 Wis. 2d 596, 901
N.W.2d 797 (explaining that, in the context of punitive damages, the terms “willful,
wanton or reckless” require a plaintiff to show the wrongdoer’s “heightened state of
mind” in intentionally disregarding the plaintiff’s rights) (citations omitted).
Stroede’s complaint alleges excessive force only in the context of negligent conduct.

¶15 The facts alleged do not support a claim that Tetting exhibited the
state of mind necessary to intentionally disregard Stroede’s limited rights as a
trespasser by engaging in conduct Tetting knew, or should have known, would cause
harm to Stroede. We, therefore, conclude that Stroede’s complaint does not

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sufficiently raise a claim for wanton, willful, or reckless conduct. Accordingly,
Stroede fails the first step in summary judgment methodology, and we affirm the
circuit court’s grant of summary judgment to Railroad and Society Insurance.

¶16 We also conclude that the circuit court did not erroneously exercise
its discretion in refusing to allow Stroede to amend his complaint at the close of the
summary judgment hearing. After the circuit court found that Stroede only alleged
a claim of negligence and granted summary judgment in favor of Railroad and
Society Insurance, Stroede requested an opportunity to amend his complaint to add
a claim for wanton, willful, or reckless conduct. The circuit court denied the request.

¶17 Whether to allow an amendment to a complaint when the party does
not have a right to amend under WIS. STAT. § 802.09(1)4 is a matter within the
discretion of the circuit court. Mach v. Allison, 2003 WI App 11, ¶20, 259 Wis. 2d
686, 656 N.W.2d 766. We affirm a circuit court’s discretionary decision, if it
applies the correct legal standard to the facts of record in a reasonable manner. See
id.

¶18 “[W]hen a motion to amend a complaint is filed after a motion for
summary judgment has been granted, there is no presumption in favor of allowing
the amendment.” Id., ¶27. “Rather, the party seeking leave to amend must present
a reason for granting the motion that is sufficient, when considered by the [circuit]

4
WISCONSIN STAT. § 802.09(1) provides in part:

(1) Amendments. A party may amend the party’s pleading once
as a matter of course at any time within 6 months after the
summons and complaint are filed or within the time set in a
scheduling order under s. 802.10. Otherwise a party may amend
the pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given at any stage of the
action when justice so requires.

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court in the sound exercise of its discretion, to overcome the value of the finality of
judgment.” Id. Stroede did not present a reason for seeking an amendment—rather,
he sought an amendment after the circuit court made a finding that Stroede was a
trespasser and after finding that Stroede did not adequately plead wanton, willful,
or reckless conduct. Indeed Stroede had already amended his complaint once during
the course of litigation and failed to add the language necessary for a claim of
wanton, willful, or reckless conduct. Stroede’s request for a second amendment
came more than one year after the commencement of litigation and at the summary
judgment hearing that was based on his specific pleadings. The circuit court
properly exercised its discretion.

Tetting and West Bend’s Appeal

¶19 The next question we address is whether WIS. STAT. § 895.529 grants
Tetting immunity as a “lawful occupant” of Railroad at the time of the incident. The
statute, titled “Civil liability limitation; duty of care owed to trespassers,” provides:

(1) In this section:

(a) “Possessor of real property” means an owner, lessee,
tenant, or other lawful occupant of real property.

(b) “Trespasser” means a natural person who enters or
remains upon property in possession of another without
express or implied consent.

(2) Except as provided in sub. (3), a possessor of real
property owes no duty of care to a trespasser.

¶20 The circuit court concluded that Tetting did not qualify for immunity
under the statute because as a customer of Railroad, he was not an “other lawful
occupant” of the bar. The circuit court determined that lawful occupants must exert

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some level of permanency over the property and must possess a right to exclude.
We disagree.

¶21 “When we interpret a statute, we begin with the statute’s plain
language, as we assume the legislature’s intent is expressed in the words it used.”
See Mayo v. Boyd, 2014 WI App 37, ¶8, 353 Wis. 2d 162, 844 N.W.2d 652 (citation
omitted). “‘[W]e interpret statutory language in the context in which it is used, [and]
in relation to the language of surrounding or closely-related statutes.’ If this process
of interpretation yields a plain meaning, the statute is unambiguous, and we apply
its plain meaning.” See id. (citations omitted).

¶22 Tetting and West Bend contend that the circuit court added
requirements to the plain language of the statute, which simply states that those
lawfully occupying a property do not owe a duty of care to a trespasser. They
contend that, because Tetting was lawfully present as a patron or as an employee of
the bar, he was, therefore, a lawful occupant at the time of the incident, thus owing
a lesser duty of care to Stroede as a trespasser. We agree.

¶23 There is no dispute that Stroede was a trespasser at the time of the
incident, therefore, the only issue is whether Tetting is entitled to immunity as a
lawful occupant of Railroad. Using the plain, ordinary meaning of the term
“occupant,” we conclude that occupancy, in this context, is the equivalent of lawful
presence. Dictionary definitions of the term “occupant” center on the occupant’s

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use of, or presence in, a particular place.5 Neither the dictionary definitions, nor the
statute, define an occupant in terms of his or her ownership, control, or exclusion
rights over a property. The legislature is presumed to have chosen its words
carefully. See Mallo v. Wisconsin DOR, 2002 WI 70, ¶26, 253 Wis. 2d 391, 645
N.W.2d 853. The legislature chose a broad term—“other lawful occupant”—to
signify that those who are lawfully present on real property cannot be held liable for
violations of ordinary care to a trespasser. Indeed, by separating the term “other
lawful occupant” from the terms owner, lessee, and tenant, the legislature clearly
created a category of “possessors of real property” who do not possess the type of
control exerted by owners, lessees, and tenants. We conclude that WIS. STAT.
§ 895.529 is unambiguous and that anyone who is lawfully present on the premises
at the time of the incident was an “other lawful occupant.” Therefore, Tetting was
entitled to the benefit of the trespasser defense whether he was a patron of the bar
or an employee at the time of the incident. Based upon our conclusion, the trial
court need not address the issue of whether Tetting was a patron or an employee at
the time of the incident—under either status Tetting is entitled to immunity pursuant
to the statute.

5
See Occupant, DICTIONARY.COM, https://www.dictionary.com/browse/occupant (last
visited Jan. 6, 2020) (defining “occupant” as a “person … that lives in, occupies, or has quarters or
space in or on something); Occupant, THE FREE DICTIONARY,
https://www.thefreedictionary.com/occupant (last visited Jan. 6, 2020) (defining “occupant” as
“[o]ne that resides in or uses a physical space); Occupant, MACMILLAN DICTIONARY,
https://www.macmillandictionary.com/us/dictionary/american/occupant (last visited Jan. 6, 2020)
(defining “occupant” as “someone who uses a room, building, area of land, seat, bed, or other place
during a period of time); Occupant, CAMBRIDGE DICTIONARY,
https://dictionary.cambridge.org/us/dictionary/english/occupant (last visited Jan. 6, 2020)
(defining “occupant” as “[a]n occupant of a car, room, seat, or other space is a person who is in it);
and Occupant, LEXICO, https://www.lexico.com/en/definition/occupant (last visited Jan. 6, 2020)
(defining “occupant” as [a] person who resides or is present in a house, vehicle, seat, place, etc., at
a given time).

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CONCLUSION

¶24 For the foregoing reasons, we affirm the circuit court’s grant of
summary judgment to Railroad and Society Insurance, and we reverse the circuit
court’s denial of Tetting and West Bend’s summary judgment motion. We remand
with directions to grant Tetting and West Bend’s motions for summary judgment.

By the Court.—Judgment affirmed and order reversed.

2