Harnett v. St. Mary's Congregation

• Decision Date: 10 January 1956
• Citation: 74 N.W.2d 382,271 Wis. 603
• Parties: Edna Teresa HARNETT, Appellant, v. ST. MARY'S CONGREGATION, a religious corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 382

74 N.W.2d 382

271 Wis. 603

Edna Teresa HARNETT, Appellant, v. ST. MARY'S CONGREGATION, a religious corporation, Respondent.

Supreme Court of Wisconsin.

Jan. 10, 1956.

Baumblatt & Goodman, Racine, for appellant.

Emmet Horan, Jr., Milwaukee, for respondent.

CURRIE, Justice.

The sole question on this appeal is whether the amended complaint sets forth a cause of action based upon violation of the safe-place statute, sec. 101.06, Stats. This is because counsel for plaintiff concedes that recovery cannot be had in Wisconsin against a religious corporation upon a cause of action grounded upon common-law negligence. Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 1935, 219 Wis. 209, 262 N.W. 585, and Smith v. Congregation of St. Rose, 1953, 265 Wis. 393, 61 N.W.2d 896. The safe-place statute is applicable to religious corporations. Wilson v. Evangelical Lutheran Church, 1930, 202 Wis. 111, 230 N.W. 708, and Jaeger v. Evangelical Lutheran Holy Ghost Congregation, supra.

The pertinent provisions of sec. 101.06, Stats., provide:

'* * * Every * * * owner of a * * * public building now or hereafter constructed shall so construct, repair or maintain such * * * public building * * * as to render the same safe.'

The Wisconsin Industrial Commission is empowered by sec. 101.10(5), Stats., to promulgate orders prescribing reasonable standards applicable to the construction, repair and maintenance of public buildings to render them safe. Sec. 101.01(8), Stats., provides that any such orders of the commission which are made applicable generally throughout the state are termed 'general orders'. Pursuant to such authority, the commission has issued a large number of general orders setting forth certain safety requirements to be incorporated in the construction of new buildings and the repair and maintenance of existing buildings. Those general orders applicable to the construction of new buildings have been published by the commission in a pamphlet entitled 'Building Code for the State of Wisconsin', and those pertaining to existing buildings have been published by the commission in a pamphlet entitled 'General Orders on Existing Buildings'. Sec. 328.021, Stats., expressly empowers all courts of the state, including this court, to take judicial notice of such orders.

Order 6103 of such General Orders on Existing Buildings provides in part as follows:

'All stairways and steps of more than 3 risers shall have at least one handrail. Stairways and steps which are 5 feet or more in width, or which are open on both sides, shall have a handrail on each side.'

Paragraph 3 of Order 5116 of the Building Code contains identical provisions with respect to hand rails.

This court has referred to a general order of this type issued by the commission pursuant to sec. 101.10(5), Stats., as a 'safety order', the violation of which by an owner of a public building may subject such owner to liability under the safe-place statute. Burling v. Schroeder Hotel Co., 1940, 235 Wis. 403, 409, 291 N.W. 810, and Wannmacher v. Baldauf Corp., 1953, 262 Wis. 532, 539c, 55 N.W.2d 895, 57 N.W.2d 745.

The photograph constituting Exhibit 'A' of the amended complaint clearly discloses that the steps upon which plaintiff sustained her fall were more than five feet in width so that the provisions of the above quoted safety order with respect to the requiring of hand rails were applicable thereto. When both front doors of defendant's church opening upon this flight of six steps were wide open and hooked tight in such position, the rails on the inside of these doors connected with the stationary hand rails shown in the photograph to provide hand rails which complied with the safety order of the commission. However, when these two doors were closed the top three steps on the north side and the top two steps on the south side were without a hand rail.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

, The amended complaint alleges that the plaintiff's injuries were the 'proximate result of the unsafe manner in which said hand rails were installed, in that they did not come up to the top of the stairway when the entrance doors were closed'. It is further alleged that the accident occurred in January when the north door was closed and locked; that plaintiff was not able to open the south door to its full width and hook it to the outer wall because of its great weight; and that as she reached out with her right hand for the hand rail on the north side after passing through the partly opened south door she fell down the steps because of there being no hand rail there.

We deem that such allegations are sufficient to set forth a cause of action against the defendant as an owner of a public building for failing to install hand rails necessary to render the building 'safe' within the meaning of sec. 101.06, Stats., as amplified by the portion of the safety order of the Industrial Commission quoted above. This is because the top three steps on the north side and the top two steps on the south side of a six-step flight of steps were without the protection of a hand rail except when the door on each of said sides was fully opened and hooked to the outer wall. The defendant was chargeable with knowledge, when it installed such hand rails on the inside of such two doors, that they would not likely be kept fully open and hooked to the outer walls in the winter months. At the very least, the allegations of the complaint are sufficient to raise a jury issue as to whether such method of providing the top steps with hand rails complied with the safe-place statute.

Counsel for the defendant contends that the failure to have the doors open and hooked to the outer wall at the time of the accident was a mere temporary condition having nothing to do with the structure of the building. It is, therefore, urged that defendant is not liable under the safe-place statute. Jaeger v. Evangelical Lutheran Holy Ghost Congregation, supra, is cited as authority supporting such contention. In that case plaintiff was injured as a result of a pile of folding chairs falling upon her as she attempted to remove one of them from the pile. The court held that there could be no recovery under the safe-place statute because plaintiff's injury was due to a temporary condition 'wholly disassociated from the structure' of the building. However, Mr. Justice Wickham was careful to point out in the opinion the distinction between the facts in the Jaeger case and those in Kinney v. Luebkeman, 1934, 214 Wis. 1, 252 N.W. 282. In the last mentioned case the owner of a public building had installed an electric light for lighting a stairway, but someone had failed to turn on the light, which lack of light was a cause of the fall for which damages were sought. The court held that since provisions for artificial light are structural in character, a failure to have the light burning is such a defect in maintenance as to make the tenant in possession and control of the premises liable under the safe-place statute. In the more recent case of Zimmers v. St. Sebastian's Congregation, 1951, 258 Wis. 496, 46 N.W.2d 820, the defendant religious corporation was held liable under the safe-place statute for failure to have a light in the lavatory in the church building turned on.

However, we find it unnecessary in the instant case to decide whether the failure to have the...