Lealiou v. Quatsoe

• Decision Date: 28 November 1961
• Citation: 112 N.W.2d 193,15 Wis.2d 128
• Parties: Marie LEALIOU, Appellant, v. John E. QUATSOE, Respondent.
• Court: Wisconsin Supreme Court

Page 193

112 N.W.2d 193

15 Wis.2d 128

Marie LEALIOU, Appellant, v. John E. QUATSOE, Respondent.

Supreme Court of Wisconsin.

Nov. 28, 1961.

This appeal is from a summary judgment dismissing the complaint on the ground the safe-place statute did not require the defendant-owner John E. Quatsoe to maintain in a safe condition that part of the building where the accident happened. The plaintiff Marie Lealiou, a frequenter, sustained injuries on December 9, 1957, as the result of a fall while attempting to descend a stairway connecting the first and second floors of the defendant's building. It is alleged the handrail was in disrepair and gave way, causing the plaintiff to fall. The building is a two-story apartment building containing three apartments on the first floor, two of which had separate entrances. The second floor contained two apartments, one in the rear occupied by Mercedes Leanna and her small son and the other in the front occupied by a brother of Mercedes Leanna. The front entrance of the building served the second floor and one apartment on the first floor. From the entranceway, the stairway led to the second floor.

After an answer was served, the complaint was amended to allege violations of the safe-place statute and specific safety rules of the building code of the industrial commission. The amended answer denied the allegations and alleged the plaintiff's negligence as an affirmative defense. Defendant moved for summary judgment upon affidavits and parts of adverse examinations taken of the plaintiff. Counteraffidavits were submitted by the plaintiff. While the motion for summary judgment was pending, the plaintiff moved for permission to file a second amended complaint setting forth in the alternative allegations of the defendant's common-law negligence. This motion to amend was denied, partly on the ground that alleging defendant's common-law negligence stated a new and distinct cause of action which was then barred by the three-year statute of limitations and partly on the ground the motion should not be granted while the summary judgment motion was pending. Later, the court granted the motion for summary judgment. Plaintiff appeals.

Robert P. Stebbins, Green Bay, for appellant.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for respondent.

HALLOWS, Justice.

Only a question of law is presented, there being no material issue of fact. The appellant contends defendant's building was a public building within the meaning of the safe-place statute because three tenants occupied it and the defendant thereby was obligated to maintain safe the second floor hallway and stairs which were used by the two tenants in common. The respondent's contention is that the particular place in the building where the accident occurred was not a public building because such area was not used by three or more tenants but only by the two upstairs tenants.

The safe-place statute requires every owner of a public building to construct and to repair or maintain such building so as to render it safe. ¹ Safe, in the context of this case, means such freedom from danger to life, health, safety, or welfare of frequenters as the nature of the public building will reasonably permit. Sec. 101.01(11), Stats. What constitutes a public building is defined in sec. 101.01(12), Stats., ² as including any structure used by three or more tenants. These sections have been construed numerous times by this court and the language in some of the cases lends support to the contention of the respondent. However, such language is not controlling when read in the light of the holding of those cases.

In construing the safe-place statute, at least two fundamental different approaches have been taken. The owner's duty to maintain the building safe has been said not to exist because either the building, as a whole or that part of the building where the accident happened, was not a public building or maintained as a public building or used by tenants in common or by three tenants. An example of this approach is Flynn v. Chippewa County (1944), 244 Wis. 455, 12 N.W.2d 683, relied on by the trial court and the respondent. In that case, recovery was denied a prisoner in a jail who was injured when he fell down a stairway in that part of the jail which was not open to the public or maintained for general use by the prisoners. The court said the jail was not a public building. This language is misleading. The court assumed the duty of the owner to repair or maintain was co-extensive with the physical limits of a public building. Because this result was not intended by the legislature, the court confined the term 'public building' to only those parts of the jail which were maintained for use by the public. This method of reasoning localizes the owner's duty to repair in terms of a definition of a public building applied only to part of a structure and, consequently, requires that part of the building to be either used by the public or by three or more tenants. This reasoning entirely overlooks the owner's duty to construct the entire building free from structural defects as render the building unsafe.

The other underlying approach was to apply the phrase 'public building' to the building as a whole, as the statute requires, and determine, first, whether the structure was a public building and, second, if so, then determine the nature of the owner's duty to the particular plaintiff, either to construct or to repair or to maintain the particular location in a safe condition as the nature of that location would reasonably permit. This approach was taken in Grossenbach v. Devonshire Realty Co. (1935), 218 Wis. 633, 261 N.W. 742, which also denied recovery to a person injured in that part of a public building not maintained for general use by the public or the tenants. In that case, the plaintiff lived with the tenant in an apartment building containing 40 tenants and was injured when she fell in the boiler room. Recovery was denied on the ground that plaintiff was a trespasser and not a frequenter when in the boiler room because such room was not being maintained or intended for the use of the tenants or the public. The court, at page 637, 261 N.W. at page 744, stated:

'But the duty of the owner to maintain in a safe condition a building that is a public building under the statute extends only to such parts as are used by the public or by tenants in common.'

This statement of the duty of the owner of a public building is not the equivalent of holding three or more tenants must actually use and have a right to use in common that part of a building where an accident happens in order to constitute that location a 'public building.'

We believe the latter approach of first determining whether the structure is a public building and then determining the owner's particular duty to the plaintiff to be the better method of analysis and more accurately determines the intent of the legislature. It likewise clarifies and brings in sharper focus the distinction which this court has made in the duty of the owner concerning structural defects in the building and his duties to maintain and repair in a safe condition those parts which are not leased to tenants or reserved for his own use. Of course, a landlord may assume by lease a duty to repair to a defined standard, but such duty would be contractual, not statutory. In Bewley v. Kipp, (1930), 202 Wis. 411, at page 414, 233 N.W. 71, at page 72, it was said in reference...