Niedfelt v. Joint School Dist. No. 1 of City of Viroqua

• Decision Date: 28 April 1964
• Parties: Clair NIEDFELT by Olga Bennett, his Gdn. ad Litem, et al., Appellants, v. JOINT SCHOOL DIST. NO. 1 OF the CITY OF VIROQUA, etc., Respondent.
• Court: Wisconsin Supreme Court

Page 800

127 N.W.2d 800

23 Wis.2d 641

Clair NIEDFELT by Olga Bennett, his Gdn. ad Litem, et al., Appellants, v. JOINT SCHOOL DIST. NO. 1 OF the CITY OF VIROQUA, etc., Respondent.

Supreme Court of Wisconsin.

April 28, 1964.

Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellants.

Schlintz & Gulbrandsen, Viroqua, Johns, Pappas & Flaherty, La Crosse, for respondent.

GORDON, Justice.

The trial court sustained the demurrer to the complaint. There are three separate theories upon which the appellants seek to have the order reversed, and they will be discussed seriatim.

1. An Extension of Holytz v. Milwaukee.

Since the accident in question occurred before July 15, 1962, the defense of sovereign immunity as it existed before Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, is available to the defendants. In the trial court it was claimed that the defendants could be held liable for having maintained a nuisance. However, this theory of recovery is unavailing to Clair Niedfelt because, as a pupil in a public school, there was a relationship of governor to governed between the pupil and the school district which was providing instruction. The school district acted in a governmental capacity and not in a proprietary capacity. Wohlleben v. Park Falls (1964), Wis., 127 N.W.2d 35; Sullivan v. School District No. 1 of City of Tomah (1923), 179 Wis. 502, 503, 191 N.W. 1020.

Although governmental immunity was abrogated prospectively in the Holytz case, immunity was also removed as to the child who was the actual plaintiff in the Holytz case. Because the injury to the instant plaintiff occurred after the injury to the Holytz child and because the accident in the instant case occurred only five months before our decision in the Holytz case, it is urged that 'equal justice' requires that Clair Niedfelt be afforded a right of recovery.

'This Court, unlike the House of Lords, has * * * rejected a doctrine of disability at self-correction.' This comment by Mr. Justice Frankfurter with reference to the supreme court of the United States in Helvering v. Hallock (1940), 309 U.S. 106, 121, 60 S.Ct. 444, 84 L.Ed. 604, would undoubtedly apply with equal force to the supreme court of Wisconsin. However, we do not believe that the change proposed by the appellants herein would be a desirable one. In deciding the Holytz case, we fully recognized that in abolishing governmental immunity prospectively we would necessarily exclude a number of claims which would arise before July 15, 1962. We adhere to that determination.

2. An Extension of Marshall v. Green Bay.

With reference to a municipality that had taken out liability insurance containing an express agreement which barred the insurer from raising the defense of governmental immunity, this court held in Marshall v. Green Bay (1963), 18 Wis.2d 496, 118 N.W.2d 715, that the defense of governmental immunity was waived. In the instant case, the amended complaint included an allegation that the defendant carried a comprehensive liability insurance policy, but there is no allegation that the policy required the carrier to forego the defense of governmental immunity.

The mere presence of liability insurance does not constitute a waiver of the defense of governmental immunity, as the Marshall case, 18 Wis.2d at page 502, 118 N.W.2d 715, clearly asserted. We conclude that an extension of the holding in the Marshall case, as urged by the appellants, would be unwise.

3. Safe Place Statute.

The appellants have attempted to bring the claim of Clair Niedfelt under the provisions of the safe place statute notwithstanding the admitted presence of several substantial barriers.

The first obstacle is a previous holding of this court that a pupil at a public school does not qualify as a frequenter. Sullivan v. School District No. 1 of City of Tomah (1923), 179 Wis. 502, 507, 191 N.W. 1020. The appellants recognize the hurdle of the Sullivan case and attempt to surmount it by pointing out that secs. 101.01(3) and (13), Stats., which define an employer and an owner, were amended by the legislature after the Sullivan case. Ch. 161, Laws of 1931. The amendment included a school district within the statutory definitions of an employer and an owner.

However, the legislature's amendment does not purport to modify the judicial determination that a pupil is beyond the definition of a frequenter. It was noted in the Sullivan case that a school district was not an owner, but this was only one of the reasons for the rejection of the claim in that case. It is our opinion that the amendment of the statute did not serve to alter the ruling of the Sullivan case that a pupil at a public school is not a frequenter.

On two occasions after the amendment of 1931, this court has noted that a school child is not a frequenter in a school building. In Heiden v. Milwaukee (1937), 226 Wis. 92, 100, 275 N.W. 922, 925, 114 A.L.R. 420, we quoted the Sullivan case and then added: 'The conclusion reached by the court at the time it decided that case (1923) was that a pupil attending a school is not a frequenter.' There is nothing in the Heiden case which retreats from the full impact of that determination. Again, in Kirchoff v. Janesville (1949), 255 Wis. 202, 206, 38 N.W.2d 698, 700, the court said:

'If the contention of the plaintiff is sound then every schoolroom is a place of employment and every pupil is a frequenter, and the city or state maintaining the school, although acting in a governmental capacity, is liable for injuries sustained while in the course of receiving instruction. There is nothing in the safe place statute which indicates that the legislature intended any such result.'

Notwithstanding the Sullivan case and the two cases which thereafter recognized its holding, the legislature has not, as yet, seen fit to revise the statute in this regard. While one may doubt the desirability of the interpretation reached in the Sullivan case, we prefer to leave any revision of the status of a school child in this regard to the legislature.

If the legislature were to amend sec. 101.01(5), Stats., so as to permit a pupil to be included within the definition of a frequenter (and thereby change the ruling of the Sullivan case), it would at least permit recovery by a school child who might be injured as a result of a structural defect in a school building. However, even such a legislative amelioration of the statute would not permit recovery to the instant plaintiff, since the defect here is nonstructural.

A school building is a public building, but, as an owner, a school district is liable under sec. 101.06 only for structural defects and unsafe conditions associated with the structure. Watry v. Carmelite Sisters of the Divine Heart of Jesus (1957), 274 Wis. 415, 419, 80 N.W.2d 397; Williams v. International Oil Co. (1954), 267 Wis. 227, 229, 64 N.W.2d 817; Waldman v. Young Men's Christian Asso. (1938), 227 Wis. 43, 47, 277 N.W. 632. In our opinion, the...