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Law School Case Brief

Heims v. Hanke - 5 Wis. 2d 465, 93 N.W.2d 455 (1958)

Rule:

A servant is one employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control. One volunteering service without any agreement for or expectation of reward may be a servant of the one accepting such services.

Facts:

Plaintiff was injured when she slipped on ice that had formed on a public sidewalk. The evidence showed that the ice formed after defendant Henry Hanke's nephew, William Hanke, spilled water on the sidewalk. He was helping his uncle wash his car. Nothing was done to alleviate the hazardous, icy condition or to warn people of it. The lower court determined that plaintiff was 10 percent responsible in negligence for the injuries and that defendant was responsible for the remainder.

Issue:

Was Henry responsible in negligence for plaintiff's injuries caused by his nephew?

Answer:

Yes

Conclusion:

The court affirmed the lower court's judgment, concluding that Henry was responsible for William’s acts because he sent his nephew as an agent to carry water across the public sidewalk. Accordingly, Henry was responsible for his nephew's negligent creation of an artificial accumulation of ice on a public sidewalk. As to the issue of apportionment, plaintiff's inattentiveness was understandable in light of the moderate weather conditions and the fact that she was on a public sidewalk. She was under no obligation to constantly scrutinize the sidewalk for defects. Finally, there was no error in the exclusion of malpractice evidence because Henry's attorney did not explain its materiality.

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