Pagelsdorf v. Safeco Insurance Co. Of America,

91 Wis.2d 734, 284 N.W.2d 55 (1979)


Mahnke (D) owned a two-story, two-family duplex. There were four balcony porches: one in front and one in back of each flat. D rented the upper unit to John and Mary Katherine Blattner who lived there with their three children until Mr. Blattner left the family. D and his wife lived in the lower unit. The Blattners held the flat under an oral lease which included an agreement that D would make all necessary repairs on the premises. D worked as a mechanic for Wisconsin Electric Power Company and considered himself a good handyman. All the railings on the porches were originally wooden, but D had begun to replace them with wrought iron as the wooden railings began to deteriorate. The wooden railing on the upper back porch had not been replaced. On May 10, 1974, Mrs. Blattner's two brothers arrived to move her belongings to Kansas. They rented a truck and parked it behind the duplex. While moving the furniture, they felt they would need help with the heavier items. They asked Carol Pagelsdorf, a next-door neighbor who had been packing Mrs. Blattner's belongings, to ask her husband James (P) to help them. He agreed to help. They decided that the best way to remove it from the apartment would be to lower it from the rear balcony to the ground. P and a Blattner brother went out on the porch and visually inspected it for safety, but P did not touch or shake the railings before taking the box spring out. The railings appeared safe. But, the entire railing section came loose, and P fell to the ground below, suffering injuries. The railing ends had dry rot in them. D stated that wood with dry rot would retain its form but not its strength and that this condition would not be readily visible if the wood had been painted over. P sued D. Mrs. Blattner testified that D had warned her of the railing's rotting condition prior to painting the railing. She also testified that several times she had asked D to repair the railing because it was rotting; she stated that each time D responded by telling her that he was busy and would make the repair when he had time to do so. D claimed he had no knowledge of the rotting condition in the railing and that neither Mrs. Blattner nor her husband ever complained to him about the condition of the railing on the back porch. D did give a statement to an investigator in which he related that several times he had warned Mrs. Blattner to be careful of the upstairs porch railing because he did not trust its strength. P contends that he was an invitee of D and that the jury should be instructed that D owed him a duty to exercise ordinary care. The jury found that D had no knowledge of the railing's defective condition and, hence, apportioned no negligence to D. P appealed.