May 25, 2021 – A man who was patronizing the Saukville tavern where he worked does not have immunity from liability after he physically ejected a drunk patron and caused severe injuries, the Wisconsin Supreme Court has held.

In Stroede v. Society Insurance and Railroad Station, LLC, 2021 WI 43 (May 18, 2021), a majority (4-1) ruled that Jacob Tetting did not have immunity under Wis. Stat. section 895.529, which says “possessors of real property” have no duty of care to trespassers and are only liable for injury or death to trespassers under certain circumstances.

David Stroede punched another patron after becoming intoxicated at the Railroad Station Bar, and was kicked out. Tetting, an employee of the tavern who was there as a patron with his family, observed Stroede reenter, grabbed him and escorted him out.

As Tetting walked him out, Stroede then fell down some stairs and suffered serious injuries. Stroede sued, alleging that Tetting was negligent in physically ejecting him.

The circuit court ultimately ruled that Tetting did not have immunity because he was not a “possessor of real property” at the time the incident occurred.  That is, he was not an “owner, lessee, tenant, or other lawful occupant of real property.”

An appeals court reversed, concluding Tetting did have immunity as an “other lawful occupant” and Stroede was a trespasser. But a supreme court majority recently reversed the appeals court, concluding that Tetting did not have immunity.

The majority applied two canons of statutory construction, noting the phrase “other lawful occupant” was not defined in the statute.

“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,” wrote Justice Jill Karofsy. “Those terms describe very specific groups of people and signify some degree of control and responsibility for the real property.”

Justice Karofsky said “other lawful occupant” could not be read to include anyone who was lawfully on the premises. There must be a degree of possession or control.

“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,” wrote Justice Karofsky.

Karofsky was joined by Chief Justice Annette Ziegler, Justice Rebecca Dallet, and Justice Brian Hagedorn. Justice Patience Roggensack did not participate and Justice Ann Walsh Bradley withdrew from participation.

Dissent

Justice Rebecca Bradley was the lone dissenter, concluding the majority opinion “impermissibly narrows the meaning of the phrase ‘lawful occupant’” by requiring that a person have some degree of possession or control over the property.

“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,” R. Bradley wrote.

“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.”