## Facts

- Henry Hanke owned property abutting a public sidewalk in Milwaukee and washed his car at the curb in below-freezing weather.
- Water was carried from an outdoor faucet located across the sidewalk; Hanke’s 16-year-old nephew, William, helped by fetching water as an unpaid volunteer.
- The trial court found Hanke repeatedly requested or directed William to obtain more water and that William spilled some water on the sidewalk while carrying it.
- The spilled water froze on the sidewalk shortly after the washing ended.
- William M. Heims walked on the sidewalk, did not see the ice, slipped, and sustained injuries.
- After a bench trial, the court found both parties causally negligent, attributing 90% to Hanke and 10% to Heims, and entered judgment for Heims.

## Issues

1. Whether sufficient evidence supported a finding that defendant’s conduct caused a dangerous icy condition on a public sidewalk and constituted actionable negligence.
2. Whether negligence of an unpaid volunteer helper could be imputed to the defendant under respondeat superior or agency principles based on defendant’s control or right of control.
3. Whether plaintiff’s failure to observe the ice was the sole cause of the accident or required changing the trial court’s comparative-negligence apportionment.
4. Whether exclusion of evidence suggesting malpractice by plaintiff’s physician required reversal or reduction of damages.

## Decision

- The Wisconsin Supreme Court affirmed the judgment for the plaintiff.
- The evidence permitted findings that water spilled during the car-washing activity froze on the sidewalk and created the hazard that caused the fall.
- The court upheld the determination that spilling water on a sidewalk in freezing conditions without protective measures (removal, sanding, or warning) was negligent and foreseeably dangerous.
- The nephew’s negligence was imputable to Hanke because the nephew acted as a servant or, at minimum, as an agent while performing tasks subject to Hanke’s direction and control, despite being unpaid.
- The trial court’s 90/10 apportionment of causal negligence was supported by the evidence and was not disturbed on appeal.
- Excluding the proffered malpractice-related evidence was not reversible error.

## Legal Principles

- A person who, through affirmative conduct, creates an artificial hazard on a public sidewalk in freezing weather must exercise ordinary care to prevent or address foreseeable icing dangers, including taking reasonable protective measures or providing warning.
- Under respondeat superior and agency principles, an unpaid volunteer may be treated as a servant, or at least an agent, if the volunteer performs services for another’s purposes while subject to the other’s control or right to control the volunteer’s physical conduct.
- Appellate review of negligence findings and comparative-negligence apportionment in a bench trial is deferential; findings supported by sufficient evidence will not be reversed as against the great weight and clear preponderance of the evidence.
- Evidentiary rulings warrant reversal only when the exclusion constitutes prejudicial error affecting the outcome.

## Conclusion

The court held that creating an icy sidewalk condition by spilled water in below-freezing weather supported negligence liability and that the negligence of an unpaid helper acting under the defendant’s direction could be imputed to the defendant; the comparative-negligence allocation and judgment for the injured pedestrian were affirmed.


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