Opinion
February 7, 1957 —
March 5, 1957.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. Fox, Circuit judge. Affirmed.
For the appellant there was a brief by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Louis D. Gage, Jr., all of Janesville.
For the respondent there was a brief by Dougherty, Ryan Campbell of Janesville, and oral argument by Glen R. Campbell and William H. Dougherty.
Plaintiff sought damages for injuries sustained when he fell on the premises of the Janesville high school. The circuit court granted summary judgment dismissing the complaint and plaintiff appeals.
The pleadings, affidavits, and exhibits upon which the motion for summary judgment was determined reveal the following facts (taken from the trial court's statement of facts)
"To the rear of, the high-school building and near the southwest corner of the school grounds there is a parking lot situated along the east bank of Rock river. The plaintiff had parked his car and was proceeding toward the building, where he intended to witness a basketball game for which he had purchased a ticket. To the east of the parking area there is an inclined ramp which leads to an area paved with cement, which is adjacent to the high-school building. This area is several feet higher than the parking lot. Between it and the parking lot there is a retaining wall. From this area there is no access to the high-school building, excepting through a door which leads to the boiler room.
"Beneath this elevated area there are some coalbins and manholes have been installed in the cement surface to permit coal trucks to deliver coal into the bins.
"The entrance to the gymnasium, which was the plaintiff's destination, is on the north side of the building.
"Between the retaining wall and the river there is a roadway by means of which the north entrance of the gymnasium can be reached from the parking area. There was also a public walk surrounding the school grounds and leading to the gymnasium door. This walk could have been used by the plaintiff.
"In proceeding from the parking area to the gymnasium door, whether by means of the sidewalk route or the roadway route, there would be no purpose in going up the ramp to the elevated paved area."
After parking his automobile the plaintiff went on foot up the ramp to the upper level and then fell off the edge of that to the level of the roadway. He contends in so constructing and maintaining these premises the city has violated the safe-place statute and that he is within the protection afforded the public by that statute. The applicable statutory provisions are:
Sec. 101.01 "(11) The term `safe' or `safety' as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety, or welfare of employees or frequenters, or the public, or tenants, or firemen, and such reasonable means of notification, egress, and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.
"(12) The term `public building' as used in sections 101.01 to 101.29 shall mean and include any structure used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public, or by three or more tenants."
"101.06 EMPLOYER'S DUTY TO FURNISH SAFE EMPLOYMENT AND PLACE. Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair, or maintain such place of employment or public building, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe."
Appellant does not contend that the area where he was hurt is a place of employment but rests his argument upon the proposition that such area is a public building within the definition given by sec. 101.01 (12), Stats., supra. There is little for us to say except that our prior decisions in appeals presenting analogous facts bring us now to a contrary conclusion.
In Hanlon v. St. Francis Seminary (1953), 264 Wis. 603, 60 N.W.2d 381, a deputy sheriff patrolling defendant's grounds fell over the edge of a retaining wall and landed in a driveway several feet below. The wall was attached to a garage and was intended to keep dirt from the adjoining higher ground from washing into the driveway. While the wall was clearly a structure we said that the character of the use or intended use made or to be made of the structure is the determining factor. The wall was not a structure used or intended to be used by three or more tenants or by the public as a place of resort, occupancy, etc., and we held that it was not a public building.
In the instant case neither the retaining wall nor the ramp was intended for public use or so used. The ramp led only to the boiler room and the coal bunkers, both of which were closed to the public. "The duty of the owner of a public building under the provisions of that chapter [the safe-place chapter] to maintain it in safe condition extends only to such portions as are used or held out to be used by the public. . . ." Bauhs v. St. James Congregation (1949), 255 Wis. 108, 110, 37 N.W.2d 842.
Although the physical facts concerning the ramp belie a contention that the ramp was actually used or held out for use by the public as a sidewalk or thoroughfare, which is what appellant was using it for, an acceptance by the court of that use would merely bring before the court the numerous cases in which it has been held that sidewalks and structural approaches to public buildings which lie outside the lines of such buildings are not structures constituting them public buildings within the terms and intent of the safe-place statute. See Meyers v. St. Bernard's Congregation (1954), 268 Wis. 285, 67 N.W.2d 302; Moore v. Milwaukee (1954), 267 Wis. 166, 65 N.W.2d 3. In Lawyer v. Joint District (1939), 232 Wis. 608, 612, 288 N.W. 192, we stated: "Clearly, the school grounds and the sidewalk area cannot be considered a public building by any stretch of the imagination."
We conclude that no duty of the defendant to the plaintiff imposed by the safe-place statute was breached by the construction or maintenance of the ramp and elevated level. We acknowledge the help we have had from the briefs of the parties and particularly from the comprehensive study of the subject contained in the memorandum decision by the learned trial judge.
By the Court. — Judgment affirmed.