Summary
In Haerter v. West Allis, 23 Wis.2d 567, 127 N.W.2d 768 (1964), the plaintiff brought an action against the city under the safe place statute for injuries the plaintiff sustained during a dart ball game held in the gymnasium of the city high school.
Summary of this case from Leitner v. Milwaukee CountyOpinion
March 31, 1964 —
April 28, 1964.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed.
For the appellant the cause was submitted on the brief of George D. Young of Milwaukee.
For the respondent there was a brief by Tilg Koch, and oral argument by Robert Vaneska, all of Milwaukee.
Plaintiff-respondent brought suit against defendant-appellant for injuries suffered as a result of an accident which took place on February 18, 1960, while plaintiff was competing in a dart-ball league conducted under the auspices of defendant's board of education.
The competition was carried on in the gymnasium of Horace Mann high school. Plaintiff was a reserve player on his team and was not involved in the first game. He went over to inspect the "averages board," on which team standings and individual averages were kept. The board, which was stored away when dart-ball competition was not in progress, was standing on two benches 18 inches high and leaning against the tile wail of the gymnasium. No one else was in the immediate area when plaintiff approached the board. He did not touch the board or otherwise disturb its balance. The board fell on plaintiff's foot, breaking a toe.
The complaint alleged two causes of action. The first cause proceeded on the theory of common-law negligence and the second cause on the theory of negligence per se based on a violation of the safe-place statute, sec. 101.06. The answer raised the defense of municipal immunity to the first cause of action.
At the close of plaintiff's case defendant moved for involuntary nonsuit on the first cause of action. Its ground was that no evidence had been adduced which would support a conclusion that the events were operated by the city in a proprietary capacity. The motion was granted. Defendant also moved for an involuntary nonsuit on the second cause of action. This motion was denied.
At the close of defendant's case it moved for directed verdict. This motion was also denied. The case was submitted to a jury on a special verdict. Question 1 of the verdict inquired:
"At the time and place in question, did the defendant fail to have the bulletin board, used as the league averages board, as it was placed upon the benches, as safe for frequenters as the nature of the place reasonably permitted?"
The jury answered this question "Yes." They also found the negligence causal and found plaintiff not negligent. After verdict defendant moved for judgment notwithstanding the verdict and moved to change answers. The motions were denied. From a judgment on the verdict defendant appeals.
The gist of defendant's argument is that its motion for involuntary nonsuit on the safe-place cause of action should have been granted because the averages board was not associated with the structure of the gymnasium.
The trial court reasoned that our decisions in Zimmers v. St. Sebastian's Congregation (1951), 258 Wis. 496, 46 N.W.2d 820, and Zehren v. F. W. Woolworth (1960), 11 Wis.2d 539, 105 N.W.2d 563, support his conclusion that the averages board was associated with the structure. Stress was laid on the nontemporary relationship of the board to the league activity and the fact that the board was leaning against a wall of the building rather than being held erect.
The Zehren Case involved a weighing scale in a store. Since a store is a place of employment under the statute, liability exists for conditions unassociated with the structure However, unless the Horace Mann gymnasium was a place of employment the defendant can be liable only as an owner of a public building. Since the plaintiff is a frequenter rather than an employee the city cannot be held liable under the portion of the statute requiring that a safe employment be furnished. Niedfelt v. Joint School Dist., post, p. 641, 127 N.W.2d 800. As the owner of a public building defendant's liability for maintenance is limited to conditions associated with the structure. Baldwin v. St. Peter's Congregation (1953), 264 Wis. 626, 60 N.W.2d 349.
The gymnasium is not a place of employment for the reason that the record will not support a conclusion that the activities carried on were sponsored, in whole or in part, by the city because of the profit motive. See Waldman v. Young Men's Christian Asso. (1938), 227 Wis. 43, 277 N.W. 632. The existence or nonexistence of an actual profit, of course, is not material.
It will be noticed that this interpretation of the definition of place of employment limits the abrogation of municipal tort immunity in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618. This is not to say that the city would not since the Holytz Case be liable on the theory of common-law negligence; it is to say, however, that in the absence of a showing of the profit motive on the part of the city, the city will not be held to the higher standard of care required by the safe-place law.
With regard to the trial court's determination that the board was not a temporary condition, the word "temporary," as used in the public building cases, is one way of stating the conclusion that a condition is not associated with the structure. In this case the board was stored away when not in use.
The fact that the board was leaning against the wall is not sufficient to show association with the structure. This case is much closer to Waldman v. Young Men's Christian Asso., supra, in which a swimming-pool diving board was removed for repair and a loose plank was inserted into the brackets designed to hold the board, than it is to the Zimmers Case relied on by the trial court. The condition in the Waldman Case was held unassociated with the structure.
By the Court. — Judgment reversed; cause remanded with directions to dismiss the complaint.