Summary
In Bradstrom, this court held that the combination of a step and a fall, that and nothing more, does not create a cause of action under the safe-place statute.
Summary of this case from Prelipp v. Wausau Memorial HospitalOpinion
May 10, 1951 —
June 15, 1951.
APPEALS from orders of the circuit court for Eau Claire county: CLARENCE E. RINEHARD, Circuit Judge. Affirmed.
For the appellants there was a brief by Cavanagh, Mittelstaed, Sheldon Heide of Kenosha, attorneys, and Hansen, Kaiser Steinbring of Eau Claire of counsel, and oral argument by William A. Sheldon.
For the respondents there was a brief by Ramsdell, King Carroll of Eau Claire, for the Eau Claire Hotel Company, and by Farr Brown of Eau Claire, for the Lasker Jewelers and Reynolds Hotel Company, and oral argument by Bailey E. Ramsdell and Donald R. Farr.
On September 22, 1950, plaintiffs began the actions by service of complaints to which the defendants demurred on the ground that they did not state facts sufficient to constitute causes of action. On November 30, 1950, the court entered orders sustaining the demurrers and the plaintiffs have appealed.
The plaintiffs are husband and wife. Their actions are to recover their separate damages growing out of personal injuries sustained by Mrs. Bradstrom. Their complaints differ only in the names and relationship of the plaintiffs and in the elements of damage. The defendants are the owner, tenant, and subtenant of the business premises where Mrs. Bradstrom was injured. The complaints allege that the premises in question constitute a public building and a place of employment within the meaning of sec. 101.01(1), Stats., and consist of the recessed vestibule or entry to a jewelry store, "so arranged, lighted, and maintained as to invite members of the public to enter the same, both to examine the display windows and to enter the salesroom;" also, that between 7 and 8 p.m., October 9, 1948, Mrs. Bradstrom was attracted to the display of jewelry in the vestibule window and in returning to the sidewalk "she fell from the platform terrazzo to the sidewalk" and was injured. The complaint then alleges that the defendants did not construct and maintain the premises in a safe condition because they failed —
a. to provide a ramp from sidewalk level to store level.
b. to provide a ramp similar to that used at the entrances to other parts of the same building.
c. to provide warning signs.
d. to provide grooves or nonslip tread in the entrance.
e. to provide louver lights.
f. and that they constructed and maintained a step of two and three-fourths inches from the entry down to the sidewalk level.
It is then alleged that Mrs. Bradstrom's injuries were the proximate result of the aforesaid derelictions.
The safe-place statute under which the actions are brought provides:
"101.01 . . . (11) The term `safe' or `safety' as applied to . . . a public building, shall mean such freedom from danger to the life, health, safety, or welfare of . . . frequenters, or the public, . . . as the nature of the . . . public building, will reasonably permit."
It is conceded for the purposes of this appeal that the .duty imposed by the statute is owed by defendants to plaintiffs. The issue is whether a finding by a jury that the place was not as safe as its nature would reasonably permit could be sustained if there was proof of the facts alleged in the complaint respecting the premises and proof of those facts only.
When there is a difference in levels between two parts of premises owned or controlled by one person he is confronted by a dilemma ii he wishes to maintain communication between them. He may have a step which permits each of the adjacent areas to be level but which produces an abrupt difference of elevation, conducive to tripping or stumbling; or he may have a ramp which dispenses with so abrupt a change but results in an inclined floor with its own disadvantages tending to promote slipping and sliding. We take judicial notice that a step is a usual and reasonable device employed to facilitate foot passage from one level to another. In itself it does not violate the requirement of reasonable safety. It has been held to be such a violation where there were present factors which prevented the frequenter of the place from noticing the step, as where a door was interposed within a few inches of the step, Helms v. Fox Badger Theatres Corp. (1948), 253 Wis. 113, 33 N.W.2d 210, or where a pronounced change in light occurred, Helms Case, supra, or where the purpose of the place was such that proprietors should expect frequenters to be inattentive to difference of levels in the absence of special warning. Bunce v. Grand Sixth Building, Inc. (1931), 206 Wis. 100, 238 N.W. 867.
Plaintiffs plead no particular in which this step, because its construction or situation, is more hazardous than the safest of steps. If the present allegations raise a jury question it is raised by the bare combination of a step and a fall. If lack of a warning sign or device breaches the duty owed to premises as they are described in these complaints, such warnings must be required for all steps in public places. We cannot reach such a conclusion. In Prehn v. C. Niss Sons, Inc. (1939), 233 Wis. 155, 288 N.W. 736, the plaintiff stumbled over a platform eight inches high located on the floor of defendant's store in full view and used as a lecture platform. There was no evidence of a trap and nothing except the fall to indicate that the plaintiff was not aware of the general condition of the premises and the presence of the platform. In Erbe v. Maes (1938), 226 Wis. 484, 277 N.W. 111, plaintiff tripped over a rubber mat, which was not itself defective, in the vestibule of a store. It was argued that the mat should have been different or that there should have been no mat at all. In both cases we held that there was no issue of fact which could be submitted to the jury of defendants' negligence under the safe-place statute.
Appellants' brief contains many allegations of fact which the complaints do not contain. In consideration of demurrers we are limited to those facts alone which are pleaded. Upon such facts we cannot hold that the safety of this place containing a step is a jury question under the safe-place statute unless we are ready to hold that by itself the presence of a step or steps in any public place is a potential breach of the duty owed by the custodian or owner of the premises to an employee, frequenter, or member of the public. We have not gone to that length in the past and are not ready to do so now.
We conclude that the complaints fail to state causes of action and the learned trial court properly sustained the demurrers to them.
By the Court. — Orders affirmed.