McNallyv.Goodenough

Supreme Court of WisconsinNov 5, 1958
5 Wis. 2d 293 (Wis. 1958)
5 Wis. 2d 29392 N.W.2d 890

October 8, 1958 —

November 5, 1958.

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 Thronson, Roethe Agnew, attorneys, and Jeffris, Mouat, Oestreich, Wood Cunningham of counsel, and oral argument by Louis D. Gage, Jr., and John T. Roethe, all of Janesville.

For the respondents Goodenough there was a brief by Geffs, Geffs, Block Geffs of Janesville, and oral argument by Eli Block.

For the respondent Aubrey H. Pember there was a brief by Schubring, Ryan, Petersen Sutherland of Madison, and oral argument by R. J. Sutherland.



Plaintiff was injured by falling down the basement stairs of a building. He sued both the owner and the tenants for his damages, alleging violation of the safe-place statute and common-law negligence on the part of each, in that both of them failed to provide a warning sign on the door leading to the stairway and failed to provide proper lighting on the landing at the head of the stairs, that the owner failed to install a handrail at the top of the stairs, and that the tenant failed to warn plaintiff of the dangerous condition. On motion of the defendants the court granted summary judgment dismissing the complaint, and plaintiff appeals.

The facts disclosed by the pleadings and affidavits are largely undisputed. The building was owned by defendant Pember. Its first floor was occupied as a music store by defendants Goodenough. It was long and narrow, had a frontage of 22 feet on the north side of an east-west street, and extended back to an alley. On the ground floor the main music store was in the front or south end, behind it was a room known as the display room, and behind that another room referred to as the piano room. Then came a narrow transverse hallway, at the west end of which was a door leading to a small vestibule at the top of a flight of stairs to the basement, and at the east end an opening to an unloading or stockroom at the north end of the building adjoining the alley. This stockroom was entered from the alley through a small vestibule having a door on the alley and another door into the stockroom.

The approximate position of these features is shown in the accompanying diagram, which is not drawn to scale.

Plaintiff was a roofer in the employ of the Durfee Roofing Company. The tenants Goodenough having notified the owner, Pember, that the roof was leaking and requested its repair, Pember engaged the Durfee Company to make the necessary repairs, and Durfee dispatched the plaintiff to do the work. At the time of the accident the Goodenoughs did not know that anyone had yet been engaged for that purpose.

When plaintiff arrived at the premises about 9 a.m., he ascended to the roof on the outside of the building, and found there some flowerpots, a barrel, and other articles that would have to be moved. In order to ask Mr. Goodenough what to do with those things plaintiff descended to the ground, entered the alley door at the rear of the building, and walked through the stockroom, the transverse hallway, the piano room, and the display room to the main store, where he found that Mr. Goodenough was absent and the clerk in charge could not tell him what to do with the things on the roof. Plaintiff then started to retrace his steps to the alley. His approximate path is shown on the diagram by arrows. When he entered the transverse hallway back of the piano room, where he should have turned to the right to reach the stockroom, he saw the open door on his left, mistook it for the door from the stockroom into the rear vestibule leading to the alley, through which he had entered, turned left through the door, found the vestibule dark, turned to his

right, took a step forward, and fell down the steps into the basement, sustaining serious injuries.

It is further undisputed that the Goodenoughs were in sole possession and control of the area where the accident occurred; that there was no "Keep Out" sign on the door leading from the alley into the rear of the building, and no "Keep Out," "Employees Only," or other warning sign or device on the door leading from the transverse hallway to the basement steps; that the clerk in the store did not give plaintiff any notice of any kind that he should not go back through the rear part of the building; that no sign announced any such prohibition; that there was an electric-light fixture in the shall vestibule at the head of the basement stairs but the lamp was unlighted; that plaintiff did not intend to go into the basement, but rather intended to go to the alley door through the stockroom, and became confused and made the wrong turn in the transverse hallway; that the door to the cellar stairway was open, and that there was a handrail on the lower part of the basement stairs, but it did not extend to the top of the stairway.

There was a dispute as to the amount of light in the critical area. For present purposes plaintiff's statements in his affidavit and adverse examination are to be taken as true, that there was no artificial light in the transverse hallway, that the hall was dark, that there was no light in the vestibule at the head of the basement stairs, that it was dark there and plaintiff could not see anything.

Mr. Goodenough stated in his affidavit that the only entrance to the premises through which the public was permitted to enter was through the front of the store; that persons other than clerks were not permitted access north of the display room except when accompanied by clerks; that access to the basement was permitted only to clerks and the owner. On the other hand, plaintiff's affidavit stated, on information and belief, that persons not employed by the Goodenoughs used the rear door of the store and were allowed to enter and pass through the stockroom, piano room, and display room, and that they were not informed that this is improper or prohibited.

The motion for summary judgment was heard on the pleadings and affidavits and the adverse examinations of plaintiff and Mr. Goodenough incorporated by affidavit. The court held as a matter of law that plaintiff was a trespasser in the area beyond the doorway to the basement stairs and that therefore he could not recover. Accordingly defendants were granted summary judgment.


The judgment of dismissal will be affirmed.

Owner not liable. Dr. Pember, the owner of the building, had leased all portions here involved to the Goodenoughs, and retained no control or possession thereof. Hence his liability under the safe-place statute was limited to structural defects.

The vestibule at the head of the basement stairs was provided with an electric light which was in operating condition, but it was turned off at the time of the accident. Any obligation to keep the light turned on rested solely upon the tenants, and the owner cannot be held liable for their failure in that respect. Kinney v. Luebkeman, 214 Wis. 1, 4, 5, 252 N.W. 282.

By the same token, the owner is not responsible for the tenants' failure to keep the door to the basement steps closed, or to have a warning sign on or near the door.

The absence of a handrail on the upper part of the steps may have been a structural defect attributable to the landlord, but on the facts of this case it was not a contributing cause of the injury. Plaintiff, moving ahead in the dark, stepped off the top step without knowing there was a stairway, and would not have seen or used the rail if one had been there. He admitted he could not see anything. The suggestion that he might have grasped a proper rail blindly during his fall and thereby reduced his injuries is too speculative. Schoonmaker v. Kaltenbach, 236 Wis. 138, 294 N.W. 794.

Tenants not liable under safe-place statute. The part of the building occupied by the Goodenoughs was a place of employment. Therefore they were required by sec. 101.06, Stats., to "furnish a place of employment which shall be safe for employees therein and for frequenters thereof" and to "do every other thing reasonably necessary to protect the . . . safety, . . . of such employees and frequenters."

The term "frequenter" includes every person, other than an employee, who is on the premises under circumstances which render him other than a trespasser (sec. 101.01 (5), Stats.). An employee of an independent contractor, doing work on the building, is a frequenter of that part of the premises where his work reasonably takes him. Frankovis v. Klug Smith Co. 275 Wis. 156, 161, 81 N.W.2d 495. Therefore when plaintiff was working on the roof he was within the protection of the statute.

On the other hand, the safe-place statute does not protect one who is merely a trespasser. Harder v. Maloney, 250 Wis. 233, 26 N.W.2d 830; Newell v. Schultz Brothers Co. 239 Wis. 415, 421, 1 N.W.2d 769.

We need not determine whether the facts might warrant a finding that plaintiff was a frequenter when he was walking on the direct route from the roof through the back door to the front of the store to consult Mr. Goodenough, and on the direct way back to the alley and roof. For present purposes we may assume that he was then a frequenter, on the theory that he reasonably took that route as an incident to the repair job requested by Goodenough.

When plaintiff deviated from the direct path and turned into the vestibule at the head of the stairs he became a trespasser as a matter of law and he was a trespasser when hurt on the stairway. On no theory did plaintiff have any right to be in the vestibule or to use the stairway. Nothing connected with his work required or justified his presence there. He had no privilege to be there created by the Goodenoughs' consent or otherwise, and hence was a trespasser. Restatement, 2 Torts, p. 891, sec. 329. The fact that he did not intend to use the stairway, but was confused and did so by mistake, does not prevent its being a trespass. See Grossenbach v. Devonshire Realty Co. 218 Wis. 633, 635, 261 N.W. 742.

The case just cited is very similar to the one at bar and controls it. There the plaintiff, a resident in an apartment house, went to the basement where there was a locker room and a laundry for the use of the tenants. She was unfamiliar with the basement, and entered the boiler room, mistaking it for the locker room. The room was dark; while feeling for a light switch plaintiff stepped off the platform at the entrance of the boiler room and was injured. Reversing a judgment of the circuit court, this court held that plaintiff was a trespasser in the boiler room as a matter of law, since tenants were not invited into that room either expressly or by implication although free to use the other rooms and the passageways (p. 638).

Other cases illustrating the same principle, but not so close to the instant case on the facts, are Klemens v. Morrow Milling Co. 171 Wis. 614, 177 N.W. 903; Newell v. Schultz Brothers Co. 239 Wis. 415, 1 N.W.2d 769; and Ryan v. O'Hara, 241 Wis. 389, 6 N.W.2d 209.

In Grossenbach it was held immaterial that a previous tenant had gone into the boiler room every two weeks to empty a vacuum cleaner, while there had met the janitor, and was never told to stay out, as that practice was not so frequent and well established as to raise an inference of acquiescence ( 218 Wis. at p. 639).

It is suggested that on plaintiff's version of the facts, which we must accept for present purposes, the transverse hallway was so dark that a jury could find it unsafe while the door was open to the dark vestibule leading to the basement stairway; and that while in the hallway plaintiff was a frequenter, not a trespasser. Even on that hypothesis, we think that plaintiff's negligence in proceeding as he did was at least equal as a matter of law to that of the Goodenoughs in failing to have the hallway better lit and the door shut, and thus defeats recovery. Plaintiff had just been through the hallway, its darkness was apparent, and, if as great as he claims, it called upon him to proceed with great care. Instead, walking at a fast pace into the hallway, he took no pains at all to retrace his previous steps, but went ahead blindly in the opposite direction into an unfamiliar area where he said he could see nothing. In essence this aspect of the case is like Klein v. Montgomery Ward Co. 263 Wis. 317, 57 N.W.2d 188. In unfamiliar buildings as well as on highways, one whose vision is completely obscured must proceed cautiously. Cf., Heine v. Oswald Jaeger Baking Co. 275 Wis. 26, 29, 80 N.W.2d 791, and cases cited.

Plaintiff's affidavit referred to the condition of the hallway variously as "a dark. unlighted hall" and "semidarkness" but on adverse examination he testified that he could see his way when he came through the hallway the first time.

Tenants not liable for common-law negligence. It remains to consider whether the facts taken in the light most favorable to plaintiff might warrant a finding that the Goodenoughs were negligent in permitting him to go back into the transverse hallway without warning him of the risk of making a left turn instead of a right turn and falling into the dark stairway, and in not turning on the light in that area; and that their negligence was greater than that of plaintiff.

It is undisputed that the Goodenoughs' clerk temporarily in charge of the store knew that plaintiff was there and had come from the rear, and it would be a permissible inference that she knew he was about to return the same way. She neither informed him that the area was forbidden to outsiders, nor gave him any warning of the stairway, nor turned on the light. Assuming that plaintiff was a frequenter on his visit to the store, and was a business visitor within the terminology of the Restatement of the Law of Torts, then the following rule would apply:

A somewhat greater duty is owed to business visitors than to gratuitous licensees or known trespassers. Restatement, 2 Torts pp. 917, 932, 939, secs. 337, 342, 343, comment a.

"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

(c) invites or permits them to enter or remain upon the land without exercising reasonable care

(i) to make the condition reasonably safe, or

(ii) to give a warning adequate to enable them to avoid the harm. . . ." (Restatement, 2 Torts, p. 938, sec. 343.)

In the present case there is no evidence upon which a finding could be made that Goodenoughs or their clerk had no reason to believe that plaintiff would discover the condition (an open doorway into the dark vestibule and stairway) or realize the risk involved therein. Plaintiff had just come in from the rear of the building through the transverse hallway and passed the open door into the stairway vestibule without entering it, and we see no reason why the clerk should have suspected that he who had so recently found his way successfully would lose it on the return trip, or would persist in walking blindly forward without precaution when he found himself in darkness.

Furthermore, we are satisfied that if the facts would warrant a finding of negligence on the part of the store clerk, they would compel a finding that plaintiff's negligence was at least as great as hers. Plaintiff traversed three rooms on the way from the rear vestibule to the front room, yet on his return he expected to find the exit door after crossing only two rooms. He turned left through a dark doorway when he should have turned right along the hallway he had traversed only a few minutes before. Finding himself in darkness he nevertheless stepped brashly forward into the void without feeling for the door that he knew would have been there had this been the vestibule by the alley.

It follows that there could be no recovery for common-law negligence. This conclusion is not affected by the statement made on information and belief in plaintiff's affidavit in opposition to summary judgment, that prior to plaintiff's accident another person had similarly become confused by the series of rooms and the similarity of the two doors on the west side of the building and had also fallen down the stairs, thereby giving the defendants notice of the unsafe condition of the premises. An affidavit on information and belief is not alone sufficient to prevent summary judgment.

It does not satisfy the requirement of sec. 270.635 (2), Stats., that the affidavits must set forth evidentiary facts and must be made by persons who have knowledge thereof. Edwards v. Gross, 4 Wis.2d 90, 95, 90 N.W.2d 142; Todorovich v. Kinnickinnic Federal S. L. Asso. 253 Wis. 44, 47, 33 N.W.2d 171. This rule need not cause hardship where the asserted fact is peculiarly within the knowledge of the opposite party, for in such a case the party relying on the suspected fact may have an adverse examination of the other party to obtain the desired information, and if necessary may obtain leave from the court to defer action on the motion for summary judgment pending such examination. In the case at bar plaintiff did examine Mr. Goodenough adversely, but did not question him about the alleged prior accident. Special circumstances might warrant relaxation of the rule in exceptional cases, but no cause for its relaxation is shown here.

Diagrams. Counsel for the Goodenoughs are to be commended for attaching diagrams to their brief, one of which is reproduced herewith. Where the position of physical features is important to the understanding of a case, a map or diagram is often a great help to the court by showing at a glance what could otherwise be explained only at considerable length and with possibility of confusion.

By the Court. — Judgment affirmed.

MARTIN, C.J., and BROWN, J., took no part.


FAIRCHILD, J. (dissenting in part).

I agree with the conclusions as to the owner's freedom from liability. As to the tenant, however, the affidavits did not conclusively resolve the issue of whether the transverse hallway was dark and therefore unsafe. If it was unsafe because of the darkness and the fact that an open door led to the stairway landing which was also dark, then the plaintiff could ground his action upon the condition of the hallway. In my opinion he was a frequenter as he passed through the hallway.