This is an action brought by James Hansen, plaintiff, against the defendants to recover damages for personal injuries sustained by him at 9:30 p.m. on February 11, 1958. Hansen alleged that defendants owned and operated a tavern and liquor store in the city of Milwaukee; that while leaving these premises after making a purchase, Hansen slipped and fell on some ice which had accumulated on the driveway apron leading to the defendants' parking lot for customers.

In the first cause of action, it was alleged that by reason of defendants' failure to provide lighting, and failure with respect to the condition of the surface, the premises were not as safe for frequenters as the nature of the place would reasonably permit.

In the second cause of action, it was alleged that defendants were negligent in failing to provide a safe surface for customer traffic, in failing to provide adequate lighting, in allowing an accumulation of ice to exist after they knew, or should have known of it, in failing to inspect, and in failing to use abrasive materials.

In the third cause of action, it was alleged that defendants maintained a nuisance in that they permitted a slippery condition to exist after they knew, or ought to have known of it, and in that they failed to provide adequate lighting.

Defendants denied that the driveway apron is on their property; that the premises were not safe; that defendants violated the safe-place statute, sec. 101.06; that they were negligent; and that they maintained a nuisance.

Defendants made a motion for summary judgment, supported by an affidavit of defendants' counsel, containing the following:

(1) An assertion that the driveway apron lies between the curb line and the public sidewalk;

(2) An assertion that the public records on file in the register of deeds' office indicate that the area between the public sidewalk and the curbing of the roadway is part of the area dedicated as a public highway;

(3) Portions of plaintiff's testimony on adverse examination indicating that he was walking down the apron when he slipped; that it was not covered with snow; that there was water in the gutter, and it appeared that cars had driven into the lot, splashing and carrying water onto the apron; that the tire tracks became icy; that he saw this condition after the accident; that the day had been warm and that, in his opinion, the icy tracks could not have been there throughout the day; that there was no other ice on the parking lot, sidewalk, or the driveway; that he did not notice, or look for any icy tracks on the driveway apron on his approach to the tavern, and that he was in the tavern a half hour, or less.

Plaintiff's counsel filed his affidavit which contained the following:

(1) An assertion that the defendants, as owners of the lots in question, had title to the center of the adjoining street subject only to the public easement of the use of the traveled portion of the street and the public sidewalk;

(2) Excerpts from the testimony of one of the defendants on adverse examination indicating that trucks bringing supplies to the tavern would drive in on the apron; that customers were invited to park in the parking lot; that various people were hired to clear snow from the parking lot, as well as from the sidewalk and driveway apron, and that one or two employees ordinarily put sand or salt on the driveway apron if it was slippery.

On April 7, 1960, the circuit court denied the defendants' motion for summary judgment. Two of the defendants appealed.

FAIRCHILD, J.

Even if we assume that defendants had the same duties with respect to the driveway apron as they did with respect to the customer-parking lot, plaintiff's description of the icy tire tracks on which he fell, and his surmise that they had not been icy for very long, makes it doubtful, whether, upon trial, he can establish that the surface was not as safe as the nature of the place would reasonably permit; that defendants were negligent in inspection or maintenance, or that any of their omissions constituted a nuisance. Defendants did not, however, supply any evidentiary facts to refute the allegation that the lighting was inadequate. They appear to pursue this appeal on the theory that they have shown that the driveway apron was part of the highway; that defendants did not have the duties of owner or employer with respect thereto, and that this is a defense sufficient to defeat the plaintiff.

The affidavit filed on behalf of defendants on this issue merely sets forth the conclusion of defense counsel that public records indicate dedication of the area between the sidewalk and the curb. Ownership is an issue under the pleadings, and the affidavit does not set forth evidentiary facts sufficient to establish the alleged dedication. Becker v. La Crosse (1960), 9 Wis.2d 540, 546, 101 N.W.2d 677.

It is defendants' position that the driveway apron could not be a place of employment if it is part of the highway, and that defendants' duties with respect to conditions thereon would be no greater than they are with respect to conditions on the public sidewalk or the street between the curb lines. They suggest that under sec. 81.15, Stats., the city was primarily responsible for maintenance of the driveway apron as part of the highway. We deem it unwise to attempt, upon the present record and the briefs which have been submitted, to decide what the result would be if defendants had established that the area between the walk and the curb had been dedicated as part of the public highway.

By the Court. — Order affirmed.