Goelz v. City of Milwaukee

• Decision Date: 07 June 1960
• Citation: 10 Wis.2d 491,103 N.W.2d 551
• Parties: Gertrude GOELZ, Appellant, v. CITY OF MILWAUKEE, a Municipal Corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 551

103 N.W.2d 551

10 Wis.2d 491

Gertrude GOELZ, Appellant, v. CITY OF MILWAUKEE, a Municipal Corporation, et al., Respondents.

Supreme Court of Wisconsin.

June 7, 1960.

Will C. Gobel, Milwaukee, Clyde E. Sheets, Milwaukee, of counsel, for appellant.

John J. Fleming, City Atty., Peter M. Stupar, Asst. City Atty., Milwaukee, for respondent.

DIETERICH, Justice.

The complaint alleges that defendants Zeroths are the owners of premises located at 1503 East Oklahoma avenue in the city of Milwaukee, leased to defendant Gregory, who operates a tavern therein. East Oklahoma is a public street in the city of Milwaukee, traveled by the public in front of the premises.

The complaint further alleges that on August 1, 1956, and for sometime prior thereto, the sidewalk in front of, and adjoining the premises, was insufficient and in want of repair. Access to the tavern building for ingress and egress between the building and the public sidewalk is gained by two steps leading from the sidewalk to the tavern premises. (For the purposes of this opinion in identification of the two steps, we will refer to the first step from the sidewalk as the bottom step and the second step as the top step.) The riser from the tread of the bottom step to the existing level of the public sidewalk was uneven, being ten and one-half inches high on the west end of the bottom step and twelve and one-fourth inches high on the east end of the bottom step. The sidewalk slab in front of the premises was uneven, sunken, buckled and below the established building grade of the area in question. The complaint further alleges that it was the duty of the city of Milwaukee to maintain said sidewalk at an even and proper level, and safe for the public traveling thereon, entering thereon, or leaving said public highway to adjoining private property.

On August 1, 1956, plaintiff was an invitee of the public building and tavern and in the course of leaving the premises during the dark hours of the evening she fell and sustained serious personal injuries.

On August 27, 1956, the plaintiff filed her claim with the city which was disallowed on May 28, 1957.

The answer of the city denies that the sidewalk at the place alleged was insufficient and in want of repair.

The motion for summary judgment of the defendant city is supported by the affidavit of the assistant city attorney and sets forth portions of the deposition of the adverse examination of the plaintiff taken in this action on November 1, 1957. The adverse examination reveals the following testimony:

'Q. What caused you to fall? A. I don't know.

'Q. You hadn't reached the sidewalk when you fell? A. No.

'Q. Stepped down one and fell forward? A. Yes.

'Q. Out onto the sidewalk? A. Yes.

'Q. You hadn't stepped onto the sidewalk as yet? A. No.

'Q. And as you stepped down you held the door open? A. Yes.

'Q. Had the door closed behind you when you started to fall? A. No.

'Q. Well, will you describe what happened after you opened the door to leave the tavern? A. I walked out the door and went down a step and went from that step and fell.'

She further testified, 'I stepped down one step and fell forward onto the sidewalk. I had not stepped onto the sidewalk as yet.'

Plaintiff's responding affidavit in opposition to the motion avers that the exit from the tavern is enclosed by a screen door which swings outwardly towards the west, the hinge being fastened to the west door jamb, and the latch closing on the east door jamb, so when the plaintiff left the premises the screen door through which she made her exit swung outwardly toward her left in a westerly direction; that upon proceeding to descend the steps to the public sidewalk on the east side of the entryway; she safely negotiated the descent of the top step, which is a standard riser of approximately seven and three-fourths inches, and that while stepping down from the bottom step to the sidewalk she fell; that the bottom step is approximately five feet four inches wide made of poured concrete of seven and three-fourths inches thickness; that the distance between the base of the bottom step to the public sidewalk is an additional two and three-fourths inches on the west end and four and one-half inches on the east end, thus making a total riser from the sidewalk level to the tread of the bottom step of ten and one-half inches on the west end and twelve and one-fourth inches on the east end; that the high and uneven distance from the bottom step to the sidewalk level was the reason the plaintiff lost her balance and fell in descending from the bottom step to the sidewalk. The plaintiff further states in her affidavit that any seeming contradictions between the testimony given at the adverse examination and her affidavit is the result of a misunderstanding and ambiguity of the meaning of the questions propounded, and that the statements contained in her affidavit correctly and truly set forth the facts pertaining to her case.

The plaintiff upon the hearing of the motion for summary judgment offered in further opposition to the motion of the defendant, city of Milwaukee, three pictures as exhibits one, two and three. These pictures show the recessed doorway, the two steps, and the comparative elevation lines of the public sidewalk and the steps in question.

The trial court concluded the plaintiff fell in stepping from the top step and, therefore, there was no causal connection between the fall and the alleged defective sidewalk. Whether the plaintiff fell from the top step or the bottom step is in dispute and is a question for the jury to determine, and cannot be decided on summary judgment. But there is a further question to be resolved,--assuming the plaintiff fell from the bottom step as she attempted to place her foot on the sidewalk, was the sidewalk defective and insufficient so as to be a cause of the fall? This presents a question of fact for the jury.

Sec. 81.15, Stats., 1955, provides:

'Damages caused by highway defects; liability of town and county. If damages happen to any person or his property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining such damages shall have a right to recover the same from such town, city or village, * * *'

The defendant, city of Milwaukee, is not entitled to summary judgment unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained. Kluth v. Crosby, 1957, 275 Wis. 251, 81 N.W.2d 515.

Schroth v. City of Prescott, 1885, 63 Wis. 652, 24 N.W. 405, 406, was an action for personal injuries received by the plaintiff by reason of a defective wooden sidewalk. The complaint alleged that the walk was defective in that it was improperly constructed, so that its surface was uneven and sloped sharply downward, thus forming a steep inclined plane, and has no slats nailed crosswise thereon to prevent travelers from slipping, while passing along the same. It further alleged insufficiency in that there was a dangerous hole or opening through the planks, about twelve inches long and four inches wide, in which hole the plaintiff's right foot was caught and she was thrown down and injured. The evidence on both sides as to the slant in the walk was that there was a decline of about three and three-fourths inches in a distance of two and one-half feet. The decline or slant came to within about eight inches of the hole in the walk. This...