Halama v. Department of Industry, Labor and Human Relations, 126

• Decision Date: 09 October 1970
• Docket Number: No. 126,126
• Citation: 179 N.W.2d 784,48 Wis.2d 328
• Parties: Raymond HALAMA, Respondent, v. DEPT. OF INDUSTRY, LABOR & HUMAN RELATIONS (formerly Industrial Comm. of Wis.), Bucyrus Erie Co., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 784

179 N.W.2d 784

48 Wis.2d 328

Raymond HALAMA, Respondent, v. DEPT. OF INDUSTRY, LABOR & HUMAN RELATIONS (formerly Industrial Comm. of Wis.), Bucyrus Erie Co., et al., Appellants.

No. 126.

Supreme Court of Wisconsin.

Oct. 9, 1970.

On the morning of December 5, 1966, the claimant-respondent, Raymond Halama, on his way to work, fell while walking on a public sidewalk outside the fence-enclosed work premises of his employer. He had parked his automobile in the employer-owned parking lot across the street from the plant premises. It is undisputed that the area in which the claimant fell is part of the 66-foot right-of-way used for public street and sidewalk purposes by the city of South Milwaukee.

Claimant applied for benefits under the Workmen's Compensation Act, which covers: '* * * Every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, * * *' (Sec. 102.03(1)(c) 1, Stats.) The Department of Industry, Labor and Human Relations (hereinafter termed the commission) dismissed the application finding that '* * * the sidewalk where the applicant fell * * * did not constitute the premises of the respondent employer * * *.' On appeal the circuit court set aside this commission order of dismissal and remanded the case for further proceedings. From the circuit court judgment, this appeal is taken.

Robert W. Warren, Atty. Gen., Donald P. Johns, Asst. Atty. Gen., Madison, for Dept. of ILHR.

Schlotthauer, Johnson & Mohs, Madison, for Bucyrus Erie and Lumberman's Mut. Cas. Co.

S. A. Schapiro, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

Here, as in a very recently decided case, ¹ the claimant parked his car in an employer- owned parking lot, crossed a public street separating the parking lot from a fence-enclosed work premises and fell while walking on a public sidewalk outside the factory fence. Here, as was in part the issue in the recent case, the sole issue is whether the employee was 'on the premises of his employer' at the time of injury. Here, as in the earlier case, the commission held the employee not to have been 'on the premises' at the time and place of injury. Here, as in the other case, the circuit court for Dane county reversed, holding the employee to have been 'on the premises.' In both cases, the circuit court urged this court to reverse earlier decisions holding an injury on a public street or sidewalk between plant and parking lot not to have occurred 'on the premises' of the employer. In the case decided earlier, this court upheld the commission's interpretation of the 'on the premises' requirement of the Wisconsin statute, holding: '* * * Where injury is sustained while the employee, going to or from work, is on a public street or walk, not controlled by the employer, coverage is denied even though such street or walkway lies between two portions of the employer's premises.' ²

Abandoning contentions specifically rejected in the Frisbie case, the claimant here relies entirely on the argument that since the employer owned both sides of the roadway, it had fee title to the public road and public sidewalks, making both a part of the employer's 'premises.' This is termed a 'real property concept' and presented as a new approach to a not-so-new conflict. It cannot be held to be that entirely new. It is true this court has recognized that the '* * * fee to the highway remains in the abutting owners, and that they may make such use of the highway as may be reasonable which does not interfere in any way with the public's right in the highway.' ³ This fact is recognized in the Frisbie case in the comment: '* * * Where an employer has effectively converted a street into a part of its premises, using it for its private use and treating it as its private premises, such employer-controlled area may be considered a part of the premises of the employer even though it is still open to public use.' ⁴ This recognizes er to make noninterfering use of public roads and walks, and in any given case 'the precise test' is whether the employer-abutting owner has 'in fact exercised' any such 'dominion and control over the situs of the injury.' ⁵ As to public sidewalks and highways, it is the degree of control or dominion by the abutting land-owner that is determinative in applying the 'on the premises' requirement. Where the employer exercised full control over the property, it has been held to be part of the premises even when the situs of injury was outside an enclosed place of employment, ⁶ and even upon property not owned by the employer. ⁷ The right to compensation has been denied even where the employer owned the property but did not control its use. ⁸ It is employer control, not the property rights of abutting owner, that can make a public street or sidewalk a part of an employer's premises. Here there is no proof, in fact no claim, that the employer exercised the dominion and...