David Stroede v. Society Insurance, A Mutual Company

D
                                                                          

2021 WI 43

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:                 2018AP1880 & 18AP2371


COMPLETE TITLE:           David Stroede,
                                    Plaintiff-Respondent-Petitioner,
                               v.
                          Society Insurance and Railroad Station, LLC,
                                    Defendants,
                          Jacob D. Tetting and West Bend Mutual Insurance
                          Company,
                                    Defendants-Appellants.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                             Reported at 

390 Wis. 2d 817

,

939 N.W.2d 614

                                  PDC No:

2020 WI App 8

- Published

OPINION FILED:            May 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            December 9, 2020

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Milwaukee
   JUDGE:                 Ellen R. Brostrom

JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., DALLET, and HAGEDORN, JJ., joined. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ROGGENSACK, J., did not participate.                 ANN WALSH BRADLEY, J.,
withdrew from participation.

ATTORNEYS:


       For the plaintiff-respondent-petitioner, there were briefs
filed        by   Keith    E.     Trower,   Krista    G.    LaFave    Rosolino,   and
Warshafsky, Rotter, Tarnoff & Bloch, S.C., Milwaukee. There was
an oral argument by Keith E. Trower.


       For the defendant-appellant Jacob D. Tetting, there was a
brief       filed    by    Eric    S.   Darling,     John   Wilson,    and   Schmidt,
Darling & Erwin, Milwaukee. There was an oral argument by Eric
S. Darling.


    For   the   defendant-appellant   West   Bend   Mutual   Insurance
Company, there was a brief filed by Monte E. Weiss and Weiss Law
Office, S.C., Mequon. There was an oral argument by Monte Weiss.




                                 2
                                                                        

2021 WI 43

                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
Nos.       2018AP1880 & 2018AP2371
(L.C. No.     2017CV11072)

STATE OF WISCONSIN                            :            IN SUPREME COURT

David Stroede,

              Plaintiff-Respondent-Petitioner,

       v.                                                            FILED
Society Insurance and Railroad Station, LLC,                    MAY 18, 2021
              Defendants,                                          Sheila T. Reiff
                                                                Clerk of Supreme Court
Jacob D. Tetting and West Bend Mutual Insurance
Company,

              Defendants-Appellants.


KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., DALLET, and HAGEDORN, JJ., joined. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.

ROGGENSACK, J., did not participate.               ANN WALSH BRADLEY, J.,
withdrew from participation.


       REVIEW of a decision of the Court of Appeals.                 Reversed and

cause remanded.



       ¶1     JILL J. KAROFSKY, J.      The focus of this case is Wis.

Stat.       § 895.529   (2017-18),1   which   immunizes        and    protects       a


       All subsequent references to the Wisconsin Statutes are to
       1

the 2017-18 version unless otherwise indicated.
                                                           Nos.    2018AP1880 & 2018AP2371



"possessor   of       real     property"     from     claims       of       trespassers      for

certain conduct.            Under § 895.529(1)(a), a "[p]ossessor of real

property" is defined as an "owner, lessee, tenant, or other

lawful occupant of real property."                    We must determine whether

Jacob Tetting's presence in a bar meets that definition.

      ¶2    The circuit court denied summary judgment to Tetting

and to his insurer, West Bend Mutual, concluding that Tetting

did not fit within the definition of a "[p]ossessor of real

property"    in      Wis.    Stat.    § 895.529(1)(a).                 Specifically,         the

circuit court concluded that Tetting was not an "other lawful

occupant of real property."2               The court of appeals reversed the

circuit court's decision, relying on dictionary definitions of

"occupant"      to    determine       that    Tetting        was       an    "other     lawful

occupant" and consequently entitled to immunity.3

      ¶3    We       reverse    the    decision       of     the       court      of    appeals

because    Tetting      was     not   an     "other      lawful        occupant        of   real

property" under Wis. Stat. § 895.529.                        Accordingly, we uphold

the   circuit     court's       denial       of   both     Tetting          and    West     Bend
Mutual's motions for summary judgment and remand the case for

further proceedings.




      2The Honorable Ellen R. Brostrom of the Milwaukee County
Circuit Court presided.
      3Stroede   v.   Soc'y   Ins.,                   2020        WI        App    8,       ¶23,

390 Wis. 2d 817

, 

939 N.W.2d 614

.

                                              2
                                                                Nos.     2018AP1880 & 2018AP2371



                   I.     FACTUAL BACKGROUND AND PROCEDURAL POSTURE

       ¶4         On September 20, 2014, David Stroede was drinking at

the     Railroad          Station        bar     in      Saukville,         became       extremely

intoxicated, and punched another patron.                               A bartender ordered

Stroede       to    leave,         and   Stroede        was   escorted      out   of     the    bar.

Tetting, an employee of the Railroad Station who was patronizing

the bar with his family, saw Stroede being escorted out of the

bar.        Several minutes later, after Tetting observed Stroede re-

enter       the     bar,      he    approached          Stroede,     grabbed       him     by    the

shoulders, and walked him backwards towards the stairway at the

entrance       of       the    bar.4      Upon      reaching       the      stairway,      Tetting

released Stroede, who fell down the concrete stairs and suffered

serious injuries.

       ¶5         Stroede      filed      this        lawsuit      against        Tetting,       the

Railroad Station, and the Railroad Station's insurer, Society

Insurance.              Stroede alleged that Tetting used excessive force

and was negligent in the way he walked Stroede out of the bar.

Stroede later amended the complaint to add West Bend Mutual,
Tetting's homeowner's insurance provider.

       ¶6         The    defendants       filed         two   sets     of   summary      judgment

motions against Stroede.                   The first set of motions, not before

us     on    appeal,          was    filed     by       Railroad     Station       and     Society

Insurance.              The   circuit      court        concluded      that    Stroede      was    a

trespasser at the time of the incident and that there was no

       The bar's entrance had an exterior door at ground level
       4

and several steps that ascended to a doorway that led into the
bar area.

                                                    3
                                                     Nos.      2018AP1880 & 2018AP2371



basis for Stroede's negligence claim against the two parties.

Accordingly, the circuit court dismissed all claims against both

parties.     The other set of motions, which are the basis for this

appeal, was comprised of motions for summary judgment filed by

Tetting and West Bend Mutual, in which those parties asserted

Tetting was entitled to immunity and did not owe a duty of care

to Stroede, a trespasser.          After oral argument on these motions,

the circuit court accepted further briefing from Tetting and

West Bend Mutual regarding whether Tetting was a "possessor of

real property" under Wis. Stat. § 895.529.5

     ¶7     The circuit court conducted a second hearing in which

it denied Tetting and West Bend Mutual's motions.                        The circuit

court     decided   that    Tetting      was   not      a     "possessor      of    real

property" because he was not an "owner, lessee, tenant, or other

lawful occupant of real property."                Specifically, the circuit

court concluded that Tetting was not an "other lawful occupant"

of Railroad Station because lawful occupants must exert some

degree of control over the property and must possess a right to
exclude others.

     ¶8     Tetting      and      West    Bend    Mutual          each     filed      an

interlocutory       appeal,       asserting      that       the     circuit        court

misinterpreted      Wis.   Stat.    § 895.529.          The     court    of    appeals

granted    leave    to   appeal    and   reversed       the    denial    of    summary

judgment, concluding that Tetting was an "other lawful occupant"


     5 West Bend Mutual joined in the arguments presented in
"Tetting's Ongoing Motion for Summary Judgment."

                                         4
                                                     Nos.    2018AP1880 & 2018AP2371



and thus entitled to immunity.6             Stroede v. Soc'y Ins., 2020 WI

App 8, ¶23, 

390 Wis. 2d 817

, 

939 N.W.2d 614

.                  Stroede petitioned

this court for review, which we granted.

                           II.   STANDARD OF REVIEW

    ¶9      "We review a grant of summary judgment independently,

applying the same methodology as the circuit court."                         Pinter v.

Village    of   Stetsonville,    

2019 WI 74

,   ¶26,     387     Wis.    2d    475,

929 N.W.2d 547

.       Summary judgment shall be granted where the

record demonstrates "that there is no genuine issue as to any

material    fact    and   that   the    moving     party      is    entitled       to   a

judgment as a matter of law."               Wis. Stat. § 802.08(2).                 This

case requires us to interpret several provisions of Wis. Stat.

§ 895.529, which presents a question of law that we review de

novo.      Noffke   ex    rel.   Swenson      v.   Bakke,      

2009 WI 10

,    ¶9,

315 Wis. 2d 350

, 

760 N.W.2d 156

.

                                 III. ANALYSIS

    ¶10     There are no genuine issues of material fact as it

relates to this appeal,7 and the parties agree that Stroede was a
trespasser at the time of the incident.                     The narrow statutory

    6  The court of appeals also affirmed the circuit court's
grant of summary judgment to Railroad Station and Society
Insurance. Stroede, 

390 Wis. 2d 817

, ¶15. Stroede does not ask
this court to review that determination.
    7  Whether Tetting was acting in the scope of employment,
despite being a patron at the Railroad Station at the time
Stroede was injured, is an open question.        At the summary
judgment hearing, the circuit court ruled that "there are enough
competing facts on the issue of scope of employment that I just
don't think as a matter of law I can find it either way."      We
take no position on the matter, as it is a live issue on remand.

                                        5
                                                          Nos.    2018AP1880 & 2018AP2371



interpretation       question     presented        to     this     court    is    whether

Tetting was an "other lawful occupant of real property" within

the definition of "[p]ossessor of real property" found at Wis.

Stat. § 895.529(1)(a).

      ¶11     Analysis of a statute begins with the language of the

adopted text.        State ex rel. Kalal v. Circuit Court for Dane

Cnty.,      

2004 WI 58

,    ¶45,     

271 Wis. 2d 633

,         

681 N.W.2d 110

.

"Statutory language is given its common, ordinary, and accepted

meaning, except technical or specially-defined words or phrases

are   given    their      technical    or       special    definitional       meaning."

Id., ¶45.

     This language is "interpreted in the context in which

it is used, not in isolation but as part of a whole, in relation

to the language of surrounding or closely-related statutes; and

reasonably, to avoid absurd or unreasonable results."

Id., ¶46.

Where    statutory     language       is    unambiguous,         we   do    not   consult

extrinsic      sources       of   interpretation,           such      as    legislative

history.

Id.

¶12

    The statute at issue, Wis. Stat. § 895.529, defines a
"[p]ossessor of real property" as "an owner, lessee, tenant, or

other lawful occupant of real property."                     It is undisputed that

Tetting is not an owner, lessee, or tenant of Railroad Station.

Therefore, we are focused on the phrase "other lawful occupant

of real property," of which there is no statutory definition and

this court has never provided an interpretation.                        Without such a

definition, we look to the common meaning of the phrase.                              To

that end, we often consult a dictionary in order to guide our
interpretation       of    the    common,        ordinary        meanings    of   words.
                                            6
                                                       Nos.   2018AP1880 & 2018AP2371



Noffke, 

315 Wis. 2d 350

, ¶10.             The court of appeals, relying on

several dictionary definitions of the word "occupant," reversed

the circuit court and concluded that the phrase "other lawful

occupant" means "anyone who is lawfully present on the premises

at the time of the incident."                 Stroede, 

390 Wis. 2d 817

, ¶23.

The     dictionaries      cited   by    the        court    of   appeals      do   not

unequivocally support its conclusion, because while the first

definition in many of these online dictionaries aligns with the

court     of   appeals'   summation,      other      definitions,       specifically

those     denoted   as    the   meaning       in   "Law,"     support    a   narrower

understanding.8      Further, legal dictionaries such as Black's Law

Dictionary define "occupant" in a way that supports only the

circuit court's conclusion:            "Someone who has possessory rights

in, or control over, certain property or premises."                          Occupant,

Black's Law Dictionary 1298 (11th ed. 2019).

      ¶13      Simply looking to dictionary definitions of the word

"occupant," however, will not conclusively resolve the question




      8See, e.g., https://www.dictionary.com/browse/occupant?s=t
(stating the "Law" definition of "occupant" as "an owner though
occupancy"   or    "one   who   is   in    actual   possession");
https://www.thefreedictionary.com/occupant (observing the "Law"
definition as "a person who has possession of something, esp an
estate, house, etc; tenant" or "a person who acquires by
occupancy the title to something previously without an owner");
https://www.lexico.com/en/definition/occupant (stating the "Law"
definition of "occupant" as "a person holding property,
especially land, in actual possession").

                                          7
                                                        Nos.     2018AP1880 & 2018AP2371



of statutory interpretation posed in this case.9                             Instead, we

must look at the phrase "other lawful occupant of real property"

in the context in which it is used, including the definitional

list provided in Wis. Stat. § 895.529(1)(a) and in relation to

surrounding       subsections.      See       Kalal,    271      Wis.    2d    633,   ¶46

("[S]tatutory language is interpreted in the context in which it

is used; not in isolation but as part of a whole; in relation to

the        language        of      surrounding              or        closely-related

statutes . . . .").10           Considering       the       phrase      "other    lawful

occupant of real property" in this context answers the question

of statutory interpretation definitively and unambiguously.

      ¶14    Wisconsin Stat. § 895.529(1)(a) defines a "[p]ossessor

of real property" as an "owner, lessee, tenant, or other lawful

occupant     of     real    property."           Two        canons      of     statutory

construction       are     particularly       useful        in     interpreting       the

definition     provided      for   "possessor          of      real     property"     and



      9As then-Chief Justice Abrahamson noted in her Noffke
concurrence, "resort to a dictionary can be, as Justice Scalia
has written of the use of legislative history, 'the equivalent
of entering a crowded cocktail party and looking over the heads
of the guests for one's friends.'"     Noffke ex rel. Swenson v.
Bakke, 

2009 WI 10

, ¶60, 

315 Wis. 2d 350

, 

760 N.W.2d 156

(Abrahamson, C.J., concurring)(quoted source omitted).

       The dissent's reliance on standard dictionary definitions
      10

of "lawful" and "occupant" fares no better.    The dissent also
points to Wis. Stat. ch. 30 and 350 for uses of the term
"occupant," as well as administrative code provisions and
municipal ordinances regarding fire code mandates.      Dissent,
¶¶30-31.   It is unclear how any of this information is related
to, or helpful in interpreting, the relevant text in Wis. Stat.
§ 895.529.

                                          8
                                                             Nos.      2018AP1880 & 2018AP2371



specifically         the     phrase      "other          lawful        occupant        of    real

property."       The first canon, ejusdem generis, instructs us that

"when general words follow specific words in the statutory text,

the general words should be construed in light of the specific

words listed.         Thus, the general word or phrase will encompass

only things of the same type as those specific words listed."11

State    v.      Quintana,        

2008 WI 33

,         ¶27,         

308 Wis. 2d 615

,

748 N.W.2d 447

.           The second canon, noscitur a sociis, similarly

instructs     us     that    "words    are     known       from     their       associates."12

Id., ¶35.

¶15

      Both    of    these     canons           instruct     us    that    the       phrase

"other lawful occupant of real property" should be limited by

the terms that precede it:                owner, lessee, and tenant.                         Those

terms describe very specific groups of people and signify some

degree of control and responsibility for the real property.                                    See

Owner, Black's Law Dictionary 1331, ("Someone who has the right

to possess, use, and convey something; a person in whom one or

more interests are vested.");

id. at 1769

(defining "lessee" as
"Someone    who      has    a   possessory         interest       in     real    or    personal

property under a lease.");

id. at 1086

(defining "tenant" as

"Someone who holds or possesses lands or tenements by any kind

of right or title.").            Those terms suggest that an "other lawful

occupant    of     real     property"     is       a    person    who,     like       an    owner,

    11 Ejusdem generis is Latin for "of the same kind or class."
Ejusdem generis, Black's Law Dictionary 654 (11th ed. 2019).
    12 Noscitur a sociis is Latin for "it is known by its
associates." Noscitur a sociis, Black's Law Dictionary 1274.

                                               9
                                                            Nos.     2018AP1880 & 2018AP2371



lessee,      or    tenant,      has    possession          or    control      of   the     real

property.         Further, the word "other" connects "lawful occupant"

to the previous three terms.                       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.

       ¶16     Reviewing the subsection as a whole further supports

this     conclusion.            Wisconsin          Stat.    § 895.529(1)(b)           defines

"trespasser" as "a natural person who enters or remains upon

property in possession of another without express or implied

consent."         (Emphasis added.)               This definition suggests that a

possessor of real property, including an "other lawful occupant

of real property," is someone who has the ability to give and

withdraw consent.

       ¶17     This conclusion is further bolstered when we consider

that we seek to interpret the term "possessor of real property."

Black's Law Dictionary defines "possession" as "[t]he fact of
having    or      holding    property        in    one's    power;      the     exercise    of

dominion       over    property"       and    the    "right      under     which     one    may

exercise control over something to the exclusion of all others."

Possession,        Black's      Law     Dictionary         1408.         This      definition

supports the conclusion that an "other lawful occupant of real

property"       must     have   some    control       or    dominion       over     the    real

property; mere presence is not enough.

       ¶18     Reading the statute so broadly as to categorize anyone
and everyone who is present on a property to be an "other lawful
                                              10
                                                         Nos.   2018AP1880 & 2018AP2371



occupant of real property" would negate the other specific terms

provided (owner, lessee, and tenant) because it would swallow

those terms whole.           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.13                     Reading the statutory

language    this    way     would     lead       to    absurd     results.       Kalal,

271 Wis. 2d 633

,         ¶46 ("[S]tatutory language               is interpreted     in

the context in which it is used . . . and reasonably, to avoid

absurd or unreasonable results."                      (Emphasis added.))        As the

circuit     court        commented     in        recognizing        this     absurdity,

"effectively what Tetting is asking me to do is to divide the

world     into     two     camps;      trespassers          and     non-trespassers,

right? . . . Tetting is asking me to explode this statute wide

open to cover anyone lawfully on the property which basically

means anyone that is not a trespasser."

    ¶19     To     summarize,        reading       the     phrase     "other     lawful

occupant of real property" in context demonstrates that such a
person must have some degree of possession or control over the

property and the ability to give and withdraw consent to enter

    13 The dissent's analysis fails, in part, because it
disregards most of the terms in Wis. Stat. § 895.529, focusing
exclusively on the term "lawful occupant." The dissent neglects
to address the placement of the term "other" before "lawful
occupant," and the fact that it precedes the three specific
terms "owner, lessee, tenant."    Our role is to interpret and
apply the plain language of the statute as a whole, not only
particular words and read them without context.     Further, the
dissent's analysis is void of any discussion about the term we
are seeking to interpret: "possessor of real property."

                                            11
                                                        Nos.   2018AP1880 & 2018AP2371



or remain on the property.14             In this case, nothing in the record

indicates that Tetting, as a bar patron at the time Stroede was

injured, had any possession or control over Railroad Station or

that he had the ability to give or withdraw consent.                           For this

reason, the circuit court was correct in concluding that Tetting

was not an "other lawful occupant of real property."

                                   IV.    CONCLUSION

      ¶20    We    reverse   the     decision      of    the    court     of    appeals

because     Tetting   was    not    an    "other     lawful      occupant      of   real

property"    under    Wis.     Stat.     § 895.529       and    was     therefore    not

entitled     to    immunity.        Accordingly,        we     uphold    the    circuit

court's denial of both Tetting and West Bend Mutual's motions

for   summary       judgment       and    remand        the    case      for    further

proceedings.

      By the Court.——The decision              of the court of appeals is

reversed,    and    the   cause     is    remanded      for    further    proceedings

consistent with this opinion.

      ¶21    ANN WALSH BRADLEY, J., withdrew from participation.
      ¶22    ROGGENSACK, J., did not participate.




       The parties provided the most apt example of a "lawful
      14

occupant" as a family member, like a grandparent, who moves in
with her family. She is not a tenant, lessee, or owner, but she
is residing at the residence and has the authority to invite
guests to visit. That is, she has some degree of possession or
control of the property.

                                          12
                                                           No.    2018AP1880 & 2018AP2371.rgb


       ¶23    REBECCA       GRASSL    BRADLEY,        J.         (dissenting).        "Courts

have   sometimes          ignored    plain      meaning          in    astonishing     ways."

Antonin      Scalia        &     Bryan     A.       Garner,       Reading     Law:         The

Interpretation of Legal Texts 72 (2012).                              The majority opinion

in   this     case       presents    yet    another         example.         The     majority

misreads      Wis.       Stat.   § 895.529          and    impermissibly      narrows      the

meaning      of    the    phrase     "lawful        occupant."           According    to   the

majority,          the     phrase        "lawful          occupant"       refers      to    "a

person . . . [who] [has] some degree of possession or control

over the property and the ability to give and withdraw consent

to enter or remain on the property."                         Majority op., ¶19.            None

of the majority's limiting language appears in the text of the

statute and this strained interpretation of the phrase is belied

by its plain meaning.              "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.          The    majority's       contrary         interpretation         privileges

trespassers while erasing the statutory rights of individuals
who are lawfully present on real property.                            The defendant, Jacob

Tetting, was entitled to immunity under § 895.529 as a lawful

occupant of the premises where David Stroede, a trespasser, was

injured.      I respectfully dissent.

                                                I

       ¶24    On     September       20,     2014,         Stroede       visited     Railroad

Station      Bar    in    Saukville,       Wisconsin.             Stroede   became     highly

intoxicated, punched another patron in the face, and urinated on
himself.      An employee at the bar instructed Stroede to leave and

                                                1
                                                 No.   2018AP1880 & 2018AP2371.rgb


escorted    him     outside.         Shortly     thereafter,      without     the

permission of staff, Stroede reentered the bar, knocking over a

table and shattering glasses.           Tetting, an employee of Railroad

Station visiting the bar with his family that night, witnessed

Stroede return.         Tetting approached Stroede and grabbed him by

the shoulders, telling him that he was not allowed to be in the

bar anymore.      Tetting walked Stroede backwards towards the exit

door,   which     was   preceded   by    a     short   descending    stairwell.

Tetting released his grip on Stroede before reaching the stairs.

Stroede took a step backward and fell down the stairs, suffering

serious head injuries.

    ¶25     Stroede sued Tetting and his insurer, West Bend Mutual

Insurance    Company,      arguing      that     Tetting    negligently      used

excessive force in removing him from the bar.1                 Stroede did not

assert that Tetting acted willfully, wantonly, or recklessly.2

Tetting and West Bend Mutual filed motions for summary judgment,

arguing that Tetting was entitled to immunity under Wis. Stat.

§ 895.529 because, as a patron of Railroad Station, he did not

    1  Stroede also sued Railroad Station Bar and its insurer,
Society Insurance, arguing that Railroad Station negligently
allowed Tetting to use excessive force on its premises.
Railroad Station and Society Insurance filed motions for summary
judgment.    The Milwaukee County Circuit Court granted both
motions, finding that Stroede was a trespasser and that Railroad
Station did not owe Stroede a heightened duty of care.
    2  Stroede moved the circuit court to amend his complaint to
add a claim for willful, wanton, or reckless conduct.        The
circuit court denied Stroede's motion.    Stroede appealed this
issue to the court of appeals, which affirmed the denial of
Stroede's motion to amend his complaint. Stroede v. Soc'y Ins.,

2020 WI App 8

, ¶11, 

390 Wis. 2d 817

, 

939 N.W.2d 614

.     Stroede
did not appeal this issue to this court.

                                        2
                                                 No.    2018AP1880 & 2018AP2371.rgb


owe a duty of care to a trespasser.3             Under § 895.529(1) and (2),

a "lawful occupant of real property" "owes no duty of care to a

trespasser," but may be liable to a trespasser if his conduct

willfully, wantonly, or recklessly causes injury or death.

     ¶26    The   circuit     court    denied     Tetting's        and   West     Bend

Mutual's motions for summary judgment, holding that Tetting owed

Stroede a duty of care, despite the fact that Stroede was a

trespasser at the time of his injury.              According to the circuit

court, Tetting was not a "lawful occupant of real property,"

limiting the meaning of this phrase to people who have the right

to exclude others from the premises, thereby denying immunity to

mere patrons.     The court of appeals reversed the circuit court's

decision,    holding    that     the    phrase    "lawful       occupant"        means

"lawfully   present,"    and     concluding      that    Wis.   Stat.      § 895.529

provides    immunity    to    patrons    for     alleged     negligent      conduct

toward trespassers.      Stroede petitioned this court for review of

the court of appeals' decision.

                                        II
     ¶27    Wisconsin   Stat.     § 895.529      governs     the    duty    of    care

owed to trespassers.         In relevant part, the statute reads:

     (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

     3 On appeal, the parties do not raise the issue of whether
Tetting acted as an employee at Railroad Station on the night in
question. This writing assumes that Tetting was a patron.

                                        3
                                                     No.   2018AP1880 & 2018AP2371.rgb

                      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.
(Emphasis added.)             Subsection (3) provides, in relevant part,

that possessors of real property may be liable for willful,

wanton, or reckless conduct toward trespassers.                           Reading these

provisions together, a "possessor of real property" is immune

from the negligence claims of trespassers.                        In this case, the

circuit court found that Stroede was a "trespasser," and this

finding    is     undisputed        on     appeal.         Stroede        asserts    only

negligence      against       Tetting.       The   only        question    before    this

court,    then,    is     whether        Tetting   was     a    "possessor     of    real

property."        If    so,    he   is    statutorily      immune    from     Stroede's

negligence claim.

    ¶28     Under the plain text of Wis. Stat. § 895.529(1)(a),

Tetting qualifies as a "possessor of real property."                           There is

no dispute that Tetting is not an "owner, lessee, [or] tenant"

of Railroad Station; however, at the time of Stroede's injury,

Tetting was a "lawful occupant."                   "[S]tatutory interpretation

'begins with the language of the statute,'" which is "given its

common, ordinary, and accepted meaning."                   State ex rel. Kalal v.

Circuit Court for Dane Cnty., 

2004 WI 58

, ¶45, 

271 Wis. 2d 633

,

681 N.W.2d 110

(quoted source omitted).                    "If the meaning of the

statute is plain, we ordinarily stop the inquiry."

Id. The

phrase “lawful

occupant" plainly means just what it says:                              an

individual      who     is    lawfully      occupying      property——that       is,    an
individual who is present on the premises in a lawful manner.

                                             4
                                                           No.    2018AP1880 & 2018AP2371.rgb


      ¶29    Dictionary         definitions          of    the     phrase     "lawful"     and

"occupant" support this conclusion.

Id., ¶¶53-54

(instructing

courts to turn to dictionary definitions to help ascertain the

plain meaning of statutory language); see also Noffke ex rel.

Swenson     v.    Bakke,        

2009 WI 10

,    ¶10,        

315 Wis. 2d 350

,       

760

N.W.2d 156

("A dictionary may be utilized to guide the common,

ordinary meaning of words.").                   "Lawful" means what the average

person would reasonably understand it to mean:                              something that

is   "within      the    law"    or    "allowed       by    law."       Lawful,    American

Heritage Dictionary 996 (5th ed. 2011).                              "Occupant" likewise

bears a common, ordinary meaning:                     "one that resides in or uses

a physical space," such as someone who is an "occupant of a

car."       Occupant,      American      Heritage          Dictionary       1218   (5th    ed.

2011); see also Occupant, Oxford English Dictionary 1978 (6th

ed. 2007) ("[a] person who occupies, resides in, or is in a

place"); Occupant, Random House Unabridged Dictionary 1339 (2d

ed. 1996) ("a person, family, group, or organization, that lives

in, occupies, or has quarters, or space in or on something,
[such as] occupant of a taxicab.").

      ¶30    Accordingly, the plain meaning of "lawful occupant" is

someone who has permission or a right to be physically present

on the premises.          This meaning fully comports with our everyday

understanding       of    these       terms.        Just     as    an   individual    is    an

"occupant" in a car, so too is an individual an "occupant" of a

business while patronizing it.                     Similarly, when setting maximum

occupancy        limits    in     fire       and     building        codes,    states      and
municipalities use the term "occupants" to refer to individuals

                                               5
                                                             No.    2018AP1880 & 2018AP2371.rgb


occupying     space.         See,     e.g.,       Wis.       Admin.       § SPS       314.01(g)1.b

(applying statewide fire code mandates to facilities containing

inflammable        conditions           endangering                 the        "occupants"           of

buildings);     City       of     Greenfield,          Wis.,       Ordinance          § 18.02    (for

purposes of the city's fire code, defining "occupant" as "[t]he

person or persons, who physically reside, work or are present in

a facility").        It is the job of courts to interpret statutes "in

accordance with their plain and obvious meaning," and the phrase

"lawful occupant" means exactly what it says.                                   State v. Smith,

184 Wis. 664

,    668,      

200 N.W. 638

   (1924);          see    also    Scalia       &

Garner, supra, at 69

   ("Words        are    to        be    understood      in     their

ordinary, everyday meanings[.]").

      ¶31    Other statutes also use the phrase "occupant" to refer

to individuals physically present in a place.                                  For example, Wis.

Stat.   § 30.67      mandates         any    "occupant"             of    a    boat     to    file   a

written      accident        report     when           the     operator          is     physically

incapable     of     doing      so.         The       same    is        true    for    Wis.     Stat.

§ 350.15, which requires any "occupant" of a snowmobile to file
a written report in the event of an accident when the operator

is incapable of doing so.               Neither of those provisions limit the

word "occupant" to only those with an ownership or possessory

interest in the property; to the contrary, each encompasses any

individual who is physically present and using the property,

along with the operator.                See §§ 30.67 and 350.15.                         "When the

legislature enacts a statute, it is presumed to act with full

knowledge of the existing laws, including statutes."                                         Mack v.
Joint Sch. Dist. No. 3, 

92 Wis. 2d 476

, 489, 

285 N.W.2d 604

                                                  6
                                                         No.    2018AP1880 & 2018AP2371.rgb


(1979).       The legislature uses "occupant" in its ordinary sense

throughout the Wisconsin Statutes so that the citizens bound by

the law may understand what it means.

       ¶32    As a lawful patron of Railroad Station on the night

Stroede      was       injured,      Tetting       was   a     "lawful     occupant"        for

purposes of Wis. Stat. § 895.529(1)(a).                             Accordingly, Tetting

qualified as a "possessor of real property" under subsection (2)

and was therefore entitled to a lower standard of care with

respect to trespassers on the premises.                         § 895.529(2).         Because

the circuit court concluded (and no party disputes) that Stroede

was    a   trespasser          at    the   time     he   was        injured,      Tetting    is

statutorily immune from liability for negligence.

       ¶33    Contrary to the majority's opinion, see majority op.,

¶18,   interpreting            the   phrase    "lawful         occupant"       to   encompass

patrons visiting a bar affords full meaning to the other terms

in    Wis.    Stat.      § 895.529(1)(a),           thereby         "giv[ing]       reasonable

effect       to    every       word . . . in        order      to    avoid     surplusage."

Kalal, 

271 Wis. 2d 633

, ¶46.                 Under the statute, "a possessor of
real property" means "owner, lessee, tenant, or other lawful

occupant of real property."                    § 895.529(1)(a).            Giving "lawful

occupant" its plain meaning does not deprive the words "owner,"

"lessee,"         or   "tenant"      of    their    meaning         even   though     "lawful

occupant" applies to any person lawfully occupying space on real

property.         Even though an "owner" may also qualify as an "other

lawful occupant" when physically present on his own property, an

"owner"——unlike            a    "lawful      occupant"         without       an     ownership
interest——will remain immune from trespasser negligence suits

                                               7
                                                  No.    2018AP1880 & 2018AP2371.rgb


even when the owner is not present on the property.                       The same is

true   for   both    lessees    and    tenants.         In   this    way,     § 895.529

affords greater protection to "owners," lessees," and "tenants"

than mere "lawful occupants."            The statute immunizes the former

categories of persons whether they are present or absent from

the premises at the time the trespasser is injured, whereas

"lawful occupants," logically, must occupy the premises in order

for immunity to apply.

       ¶34   Despite the plain meaning of "lawful occupant," the

majority     concludes        that    "lawful     occupant"          refers     to   "a

person . . . [who] [has] some degree of possession or control

over the property and the ability to give and withdraw consent."

Majority op., ¶19.       None of this language appears in the text of

the statute nor does any of it reflect the common, ordinary

understanding       of   "lawful"       or    "occupant."             The      majority

improperly rewrites the statute, arbitrarily limiting its scope

in order to reach the absurd conclusion that a person lawfully

occupying a place is not a "lawful occupant."                       This is akin to
holding that roosters are not "animals" in order to protect

purveyors     of    cockfighting       from   prosecution           for   cruelty    to

animals.     Scalia & 

Garner, supra, at 72

(citing State ex rel.

Miller v. Claiborne, 

505 P.2d 732

, 733 (Kan. 1973)).

       ¶35   In    adopting    its    constrictive       definition       of    "lawful

occupant," the majority applies the ejusdem generis canon "with

a rigidity that hamper[s] rather than help[s] the search for

genuine textual meaning."

Id. at 212.

       Courts must be mindful
that "the doctrine often gives rise to the question how broadly

                                         8
                                               No.    2018AP1880 & 2018AP2371.rgb


or narrowly to define the class delineated by the specific items

listed," which underlies the question the parties ask us to

resolve.

Id. at 207.

     The canon "does not specify that the

court must identify the genus that is at the lowest possible

level of generality" as the majority in this case elects to do.

Id. Instead, “[t]he court

has broad latitude in determining how

much or how little is embraced by the general term."

Id. In

making that

determination, courts should consider each of the

items in the list "and ask what category would come into the

reasonable person's mind."

Id. at 208.

           Only a lawyer would

exclude roosters from the general term "animals"                   and only a

lawyer would exclude permitted patrons from "lawful occupants"

of property.      If "lawful occupant" means "a person . . . [who]

[has] some degree of possession or control over the property and

the ability to give and withdraw consent to enter or remain on

the property" as the majority says, majority op., ¶19, "words in

themselves plain have been construed as bearing a meaning which

they have not, and which ought not to have been ascribed to
them."      Scalia & 

Garner, supra, at 212

(quoting Anderson v.

Anderson, [1895] 1 Q.B. 749, 755 (per Rigby, L.J.)).

      ¶36   The   majority   briefly       mentions    the   associated-words

canon, noscitur a sociis, accompanied by no analysis of it.

Majority op., ¶14.       Under this canon, "[t]he common quality

suggested by a listing should be its most general quality——the

least common denominator, so to speak——relevant to the context."

Scalia & 

Garner, supra, at 196

.              The majority's construction
does exactly the opposite, applying the most restrictive reading

                                       9
                                                               No.   2018AP1880 & 2018AP2371.rgb


of "other lawful occupant" to mean someone with "possession or

control over the property and the ability to give and withdraw

consent to enter or remain on the property" rather than its most

general      quality——someone             with       a    lawful       right       to    be       there.

Rather    than       mechanically         reciting        Kalal,       the        majority        should

have applied the ordinary-meaning canon it espouses, "the most

fundamental          semantic          rule    of        interpretation"             under        which

"[w]ords       are    to    be     understood            in    their       ordinary,         everyday

meanings——unless            the        context       indicates         that        they       bear     a

technical sense."

Id. at 69.

¶37

    Rejecting the ordinary, everyday meaning of "lawful

occupant," the majority imposes on anyone with a lawful right to

be present in a place (but who does not own or control it) a

duty of care toward a trespasser whose presence is unlawful.

Invitees——individuals who "by virtue of an invitation . . . go[]

upon     the    premises          of     another         for the       purpose          of     aiding,

transacting,          assisting,         or    furthering            the    business         of     such

other"——are categorically excluded from Wis. Stat. § 895.529.
Voeltzke v. Kenosha Mem'l Hosp., Inc., 

45 Wis. 2d 271

, 282, 

172

N.W.2d 673

(1969).              So, too, are house guests and frequenters——

individuals who have "a right to be in or about the place in

question       under       circumstances         which         do     not    render          [them]    a

trespasser."               Wilson       v.     Evangelical            Lutheran           Church       of

Reformation          of    Milwaukee,         

202 Wis. 111

,            115,    

230 N.W. 708

(1930); see also Wis. Stat. § 101.01(6).                               As a result of this

misinterpretation of the law, a person present on property owned
and    controlled         by    others        must       now    conform       his       conduct       in

                                                 10
                                                                  No.   2018AP1880 & 2018AP2371.rgb


anticipation           of     a    trespasser's             intrusion.           For    example,      the

delivery man who leaves packages outside the door of a closed

store must devise a different drop off location in order to

protect the trespasser from tripping over the packages as he

exits the store into which he intruded.

       ¶38       The        absurdity             of            the     majority's          statutory

interpretation              becomes    even        more          apparent    upon       extension     to

other circumstances.                 Under the majority's construction of Wis.

Stat. § 895.529, the owner of a home would not owe a duty of

care    to        a     trespasser,              but        a     grandmother           visiting      her

grandchildren at the same house would.                                  If a trespasser enters

the property and trips on a child's toy left in the yard, the

trespasser could recover damages against the grandmother, but

not against the homeowner.                        Why would the visiting grandmother

owe any duty to a trespasser, who had no lawful right to be

there       in   the     first      place        and        whose     intrusion         could   not    be

anticipated?             Why       would    § 895.529             expose     the       grandmother     to

liability        but     immunize          the    homeowner?               The    majority      doesn't
explain.

       ¶39       The majority inexplicably draws the same distinction

between patrons of businesses and their owners.                                        By definition,

an invitee is someone who enters a premises "for a purpose of

mutual advantage or benefit both to the owner of the premises

and    to    the       person      entering."               

Voeltzke, 45 Wis. 2d at 282

.

According        to     the       majority,       only          the   latter      is    categorically

liable to trespassers despite both individuals having the lawful
and    mutually         beneficial          right       to       be   on    the    premises.          For

                                                       11
                                                       No.    2018AP1880 & 2018AP2371.rgb


example, if a patron negligently spills a drink on the floor and

a trespasser on the property slips and sustain injuries as a

result,      the   majority      would    allow       the     trespasser      to     collect

damages      against      the    patron    but    not        the    owner,    despite      no

appreciable        difference         between    the     negligent          acts   of     the

business      owner    and      the    patron.         But     for    the    trespasser's

unlawful entry, the trespasser's injury would not have occurred;

nevertheless, the majority overlooks the trespasser's misconduct

in order to allow him recovery.                  Had the legislature drawn this

distinction,        the    majority's      conclusion          in    this     case      would

comport with the law, assuming no constitutional infirmity in

the statute.        But in this case, the majority steps beyond proper

judicial boundaries to recast the law in accordance with its own

apparent policy preferences, rather than applying the law the

legislature actually enacted.

       ¶40    "Society has an interest in punishing and deterring

intentional trespassers beyond that of protecting the interests

of the individual landowner."                  Jacque v. Steenberg Homes, Inc.,

209 Wis. 2d 605

, 620, 

563 N.W.2d 154

(1997) (emphasis added).

Doing   so     helps      to    "preserv[e]      the    integrity       of     the      legal

system."

Id. In this case,

the majority abandons this well-

established principle, elevating the interests of trespassers

over    individuals        lawfully       on    the     premises.            "[B]oth      the

individual and society have significant interests in deterring

intentional trespass to land[.]"

Id. at 617.

             As such, "our

laws seek to encourage the [lawful use of land] and discourage
the [trespass to land]."               Mackenzie v. Miller Brewing Co., 2000

                                           12
                                                     No.    2018AP1880 & 2018AP2371.rgb


WI   App    48,    ¶92,    

234 Wis. 2d 1

,        

608 N.W.2d 331

.            The   plain

language of "lawful occupant" in Wis. Stat. § 895.529 does just

that:      it protects individuals lawfully on premises, regardless

of whether they own or control the land, and discourages the

unlawful conduct of trespassers.

      ¶41       Under   the    plain    language     of     Wis.    Stat.        § 895.529,

Tetting was a "lawful occupant" of Railroad Station on the night

Stroede was injured and should be afforded statutory immunity

from Stroede's negligence claim.                  Tetting was physically present

on the property as a patron and had a lawful right to be there.

According to Stroede's complaint, Tetting did not act willfully,

wantonly, or recklessly; the force he used in removing Stroede

from the bar was merely negligent.                  As the circuit court found,

Stroede     was    a    trespasser     at    Railroad      Station;       therefore,      no

lawful     occupant      of   the    premises     owed     him    any     duty    of   care,

except     to    refrain      from   conduct      that    willfully,       wantonly,      or

recklessly causes injury or death.                  The majority's misreading of

§ 895.529       impermissibly        gives   Stroede       an    avenue    for     recovery
against individuals lawfully on the premises despite Stroede's

unlawful intrusion.           I respectfully dissent.




                                             13
    No.   2018AP1880 & 2018AP2371.rgb




1

Add comment

By

Recent Posts

Recent Comments