Coffey v. City of Milwaukee

Decision Date30 November 1976
Docket NumberNo. 75--213,75--213
Citation74 Wis.2d 526,247 N.W.2d 132
CourtWisconsin Supreme Court
PartiesWilliam COFFEY and The St. Paul Insurance Companies, Plaintiffs-Respondents, v. The CITY OF MILWAUKEE and Alex P. LeGrand, inspector of buildings of the City of Milwaukee, Defendants-Appellants, and One Fifty Two, Inc., and Royal Globe Insurance Companies, Defendants-Respondents.

James B. Brennan, City Atty., and Charles R. Theis, Asst. City Atty. (argued), on brief, for defendants-appellants.

Robert E. Sutton, Milwaukee, on brief, for plaintiffs-respondents.

Reginald W. Nelson (argued), and Whyte & Hirschboeck, S.C., Milwaukee, on brief, for defendants-respondents.


William Coffey was a tenant in an office building owned by One Fifty Two, Inc. While such tenant, he sustained a loss as a result of a fire in the building. The St. Paul Insurance Companies (hereinafter St. Paul) insured Coffey against loss or damage by fire. Apparently the liability of St. Paul to Coffey has been settled.

Coffey and St. Paul commenced an action for damages against the City of Milwaukee, LeGrand, One Fifty Two, Inc., and Royal Globe. One Fifty Two and Royal Globe cross-complained against the City of Milwaukee and LeGrand for contribution in the event One Fifty Two and Royal should be determined to be liable to Coffey and St. Paul.

The complaint alleges that the City and LeGrand were negligent in that certain standpipes provided to furnish the necessary water to fight the fire on the floor where Coffey's offices were located were defective and had not been properly inspected. The cross-complaint of One Fifty Two and Globe against the City and LeGrand reasserts the same allegations, and in each instance it is alleged that such negligence was the proximate cause of any loss or damage alleged to have been sustained by the respective parties.

The City and LeGrand demurred to the complaint of Coffey and St. Paul and to the cross-complaint of One Fifty Two and Royal Globe. The demurrers were overruled and this appeal followed.

The complaint of Coffey and St. Paul also alleges a safe-place cause of action for the recovery of damages against the owners of the building. This appeal does not directly concern that cause of action.

We are of the opinion that this appeal presents two issues for resolution:

1. Do the complaint and cross-complaint state facts sufficient to constitute a cause of action?

2. If so, should the demurrers nevertheless be sustained on the ground that under the facts alleged, as a matter of public policy, the City and LeGrand should not be held liable?

The pertinent allegations of the pleadings are:

'9. That on January 21, 1974 the Milwaukee Fire Department was notified of a fire in progress at the said Caswell Building and did respond in ample time to control and extinguish said fire except that when the fire department appeared on the premises it was unable to furnish the necessary water to fight the fire on the floor where the offices of the plaintiff were located because the standpipes by which the water was to be distributed were defective and water in necessary quantities and force was not able to be utilized in time to extinguish the fire in the offices of the plaintiff, COFFEY.

'10. That the defendants ALEX P. LeGRAND and the CITY OF MILWAUKEE were negligent in that agents of said defendants had at periodic intervals prior to January 21, 1974 been obliged to and did inspect the Caswell Building for the purpose of examination of the building and the standpipes thereon for safety purposes and that despite said inspections the defendants failed and englected to detect the defective standpipes and/or to order replacement of said defective standpipes all to the damage of the plaintiff as further described in paragraph 14.'

The rules for a trial court to apply in ruling on demurrers, and those followed by this court in reviewing orders overruling demurrers, have been stated many times. Recently they have been reviewed in International Foundation of Employee Benefit Plans, Inc. v. Brookfield, Wis., 247 N.W.2d 129 (1976). We do not restate them here.


For the purposes of these proceedings, the following facts must be accepted as true: (1) That the building inspector, LeGrand, was obligated to inspect the standpipes in the Caswell Building and that he actually undertook to inspect such standpipes periodically for safety purposes; (2) that because such inspections were performed in a negligent manner, the building inspector failed to detect the fact that the standpipes were defective and/or failed to order replacement of the same; and (3) that Coffey's damages were proximately caused and contributed to by such defective standpipes.

In order to constitute a cause of action for negligence there must exist: (1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury. Falk v. Whitewater, 65 Wis.2d 83, 85, 221 N.W.2d 915 (1974); Padilla v. Bydalek, 56 Wis.2d 772, 776, 203 N.W.2d 15 (1973).

On the face of the complaint and cross-complaint, it is readily apparent that the necessary elements were properly pleaded. Yet that alone does not wholly validate the complaint and cross-complaint. The allegation of duty, involving a conclusion of law, is not admitted as true. Whether a duty to the plaintiff-Coffey existed is a question of law for this court to properly decide on demurrer. Furthermore, the City of Milwaukee and LeGrand assert that even if such a duty existed, LeGrand would not be liable by virtue of the doctrine of governmental immunity as it exists in Wisconsin today.

If a duty did not exist, or if the City of Milwaukee and LeGrand were cloaked in the doctrine of governmental immunity, then the demurrers should have been sustained. If a duty did exist and if governmental immunity was not applicable, the demurrers were properly overruled.

In Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), this court abrogated the doctrine of governmental immunity, holding that the abrogation should apply broadly to torts, whether by commission or omission. In Holytz, supra, the court stated at pages 39, 40, 115 N.W.2d at page 625:

'Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability--the exception is immunity. In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental. Our decision does not broaden the government's obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision.

'This decision is not to be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions. . . .

' '. . . By reason of the rule of respondeat superior a public body shall be liable for damages for the torts of its officers, agents, and employees occurring in the course of the business of such public body.'

The portion of the Holytz decision dealing with legislative, judicial or quasi-legislative or quasi-judicial functions, was codified in sec. 895.43(3), Stats. 1

The City of Milwaukee and LeGrand contend that a building inspector's functions are quasi-judicial in nature, and as such, in the exercise of those functions, the building inspector is immune from liability for torts under the provisions of sec. 895.43(3), Stats. They cite as their sole support Lindemann v. Kenosha, 206 Wis. 364, 240 N.W. 373 (1932).

The reliance on Lindemann is misplaced. That case was decided long before the Holytz decision and it dealt with the action of a building inspector in revoking a building permit which had previously been issued. There the court held that since the issuance or revocation of a building permit was a governmental function, the building inspector was immune from tort liability under the law as it then existed. The court, in citing several foreign jurisdiction cases, indicated that the action to issue or revoke a building permit was of a judicial or a quasijudicial character. Lindemann, supra, 373, 240 N.W. 373.

The facts also distinguish this case from Lindemann. The concern here is not with the issuance or revocation of a building permit, an action which admittedly may be characterized as quasi-judicial, but with the inspection of buildings under the provisions of sec. 101.14(2)(a), (b) and (c), Stats. The question is whether such inspection can properly be categorized as involving a quasi-judicial act.

The City of Milwaukee and LeGrand argue that the overall enforcement of the building code is quasi-judicial in nature. However, it is the categorization of the specific act upon which negligence is based and not the categorization of the overall general duties of a public officer which will dictate whether or not the provisions of sec. 895.43(3), Stats., apply to enable the municipality to escape liability.

Whether the inspection of buildings for safety and fire prevention purposes under sec. 101.14, Stats., involves a quasi-judicial function has not been specifically addressed by this court. This court has, however, in Salerno v. Racine, 62 Wis.2d 243, 214 N.W.2d 446 (1974), held that the removal of a police officer from duty involved a quasi-judicial action. In determining that proceedings under sec. 62.13(5), were quasi-judicial in nature, this court noted the following characteristics as pertinent: (1) The exercise of discretion on the part of a public officer to file or not to file charges; (2) the requirement that there be a public hearing on the charges before a specially designated board; and (3) the...

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