Summary
In Miller, the plaintiff alleged that she was injured due to the defective condition of the public sidewalk in front of the defendant's theater, and that because the patrons of the theater were required to traverse this section of sidewalk after purchasing their tickets in order to enter the theater, this portion of sidewalk became a part of the theater's place of business and subject to sec. 101.06, Stats. (1955).
Summary of this case from Hagerty v. Village of BruceOpinion
February 9, 1956 —
March 6, 1956.
APPEAL from an order of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit Judge. Reversed.
For the appellant there was a brief by Lees Bunge and James C. McKenzie, and oral argument by Mr. McKenzie and by Mr. John S. Coleman, all of La Crosse.
For the respondent there was a brief by Johns, Roraff, Pappas Flaherty of La Crosse, and oral argument by Robert D. Johns.
An action was begun March 9, 1955, by Elva Miller against the Welworth Theatres of Wisconsin, a foreign corporation, to recover damages.
The complaint alleges in substance that the defendant is a corporation authorized to do business in the state of Wisconsin and is engaged in the business of operating a theater at Fifth avenue and Jay street in the city of La Crosse. That Fifth avenue and Jay street are public thoroughfares in said city, intersecting each other at right angles. That a concrete public sidewalk covers the entire area of this northeast corner of said intersection from the curb to the lotline, and that the theater building occupies the northeast corner of said intersection and is contiguous with said lotline. That the defendant maintains a window at which theater tickets are purchased by patrons standing on the public sidewalk adjacent to said building. That on February 27, 1954, the sidewalk adjacent to the ticket window was defective and unsafe by reason of a crack extending from the southwest corner of said building in a southwesterly direction completely across the sidewalk to the east curb of Fifth avenue. That as the plaintiff stood on the public sidewalk in front of the ticket window purchasing a ticket and turned to walk north to the theater entrance she caught the heel of her left shoe in the defect described and was thrown to the concrete sidewalk, sustaining injuries described in the complaint. That the area described was appropriated and used by the defendant as a part of its place of business, and that said area was so located and constructed that all business invitees and patrons of the theater were required to use such sidewalk or area to gain admission to said theater. That the defendant failed to construct and maintain said area in a condition safe for use by the plaintiff and other invitees, all in violation of sec. 101.06, Stats.
The defendant interposed a demurrer and specified as grounds of objection the following:
"First: That the liability to persons injured because of a defect on a public sidewalk rests upon whoever has the obligation to make repairs to said public sidewalk. That by virtue of the laws of the state of Wisconsin, the obligation to make repairs on a public sidewalk is a duty placed upon the municipal corporation.
"Second: Because the person allegedly injured in this action may be called an `invitee' according to paragraph Five of plaintiff's complaint, it does not render to him any different degree of care or place the duty to make repairs upon the owner or occupant of the premises which abut on a public sidewalk. His status is no different than that of any passer-by or traveler on the public sidewalk.
"Third: That paragraph Four of the plaintiff's complaint does not allege that the difference in elevation between the surface of the walk to the south of the crack was the proximate cause of the injuries sustained by the plaintiff.
"Fourth: That the defect complained of by the plaintiff in paragraph Four of the complaint is neither deep enough, long enough, or wide enough to be actionable under the laws of the state of Wisconsin.
"Fifth: That a sidewalk area outside of a public building is not a part of a building so that it must be maintained and in a safe condition for use by the person alleged injured in this matter or any other person, or traveler on the public way, and is not in violation of section 101.06, Wisconsin statutes, pursuant to the allegations contained in paragraph Six and paragraph Seven of the plaintiff's complaint.
"That it appears on the face of said complaint, that the same does not state facts sufficient to constitute a cause of action."
Defendant's demurrer was overruled by an order of the trial court dated September 1, 1955. Defendant appeals from that order.
The complaint of respondent, Elva Miller, alleges that the sidewalk was a place of employment, and the cause of action depends upon the presence of essential facts. Those facts, from which a plaintiff's primary right and a defendant's corresponding duty arise must appear in the statement of facts, together with the facts showing a wrong by defendant. In considering the sufficiency of the allegations of a complaint, the presumptions of law that surround an event must be taken into consideration and given due weight. When, under the rules applicable, the facts stated show that the plaintiff cannot recover, no cause of action has been stated. Sullivan v. Baker, 217 Wis. 306, 258 N.W. 617.
A demurrer, of course, admits all facts well pleaded in the complaint to which it is interposed, but it does not admit mere propositions of law which may be set forth therein. State ex rel. Veeder v. Collins, 5 Wis. 339. The rule is stated in Northwestern Mut. Life Ins. Co. v. State, 173 Wis. 119, 125, 180 N.W. 138, as follows:
"A demurrer to a complaint admits all the facts therein well pleaded, but it does not admit erroneous conclusions drawn from such facts by the pleader even though the conclusions bear the semblance of statements of fact." See also Olsen v. Ortell, 264 Wis. 468, 59 N.W.2d 473.
The allegations in the respondent's complaint do no more than claim that, because a patron of the theater must stand on the public sidewalk adjacent to said building in order to purchase an admission ticket and because it is then necessary for said purchaser to walk approximately 10 feet to the north on said public sidewalk to reach the entrance of said theater, the result is that the sidewalk becomes a part of the theater's place of business, and the owner is required "to construct and maintain said area in a condition safe for use by the plaintiff." The conclusion rests on a nonexisting duty. The complaint is demurrable because it does not state facts sufficient to constitute a cause of action. The effort to make it appear that the described area is a place of employment may be prompted by a wish, but it cannot rise above a conclusion on the pleader's part. The public sidewalk described cannot be translated into an employer's place of employment, because the responsibility of maintaining the sidewalk is not that of defendant; the care and maintenance clearly rests upon the municipality. Sec. 62.17, Stats. It must be recognized that in a state where there is no obligation on the abutting landowner to keep the sidewalk in front of his premises in repair or in a safe condition for public travel, in the absence of a statute or ordinance imposing such duty upon him a defect in the sidewalk not caused by him cannot be charged against him. We find in the case of Daly v. Mathews, 49 Cal.App.2d 545, 548, 122 P.2d 81, the following cases cited to this point: Eustace v. Jahns, 38 Cal. 3; Martinovich v. Wooley, 128 Cal. 141, 60 P. 760; Bolles v. Hilton Paley, Inc., 119 Cal.App. 126, 6 P.2d 335.
There is no claim that the defendant caused any defect, if one existed, and because of sec. 81.17, Stats., the allegation with respect to responsibility of defendant is wholly unsupported. The essential elements of a business and place of employment on a public street are not present. One of the basic elements, that of control over the area by defendant, is completely lacking. The municipality is responsible for the maintenance and repair of the sidewalk. We hold that the fact that in entering a store or place of business, in stopping to admire an attractive display in a show window, a patron approaches or stands on a public sidewalk does not make that pathway a part of the merchant's place of business or place of employment.
As there is no such obligation on the abutting owner to keep the public sidewalk in front of his store in repair or in safe condition, in the absence of a statute or ordinance imposing such a duty upon him, the demurrer to the complaint should have been sustained. The facts alleged being inherently insufficient to create or constitute a right in favor of the respondent and against the appellant based on a duty owed by the appellant, the order overruling the demurrer must be reversed.
By the Court. — Order reversed, and cause remanded for further proceedings according to law.