Novak v. City of Delavan

• Decision Date: 07 June 1966
• Parties: Anton NOVAK et al., Plaintiffs-Respondents, v. The CITY OF DELAVAN, Defendant-Respondent, Delavan-Darien Union High School District, etc., County of Rock, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 6

143 N.W.2d 6

31 Wis.2d 200

Anton NOVAK et al., Plaintiffs-Respondents, v. The CITY OF DELAVAN, Defendant-Respondent Delavan-Darien Union High School District, etc., County of Rock, Defendant-Appellant.

Supreme Court of Wisconsin.

June 7, 1966.

Godfrey, Godfrey, Neshek & Conway, Elkhorn, for appellant.

Kenney, Korf & Pfeil, East Troy, for plaintiffs-respondents.

Heide, Sheldon, Hartley & Thom, by W. A. Sheldon, Kenosha, for defendant-respondent.

GORDON, Justice.

The School District as an 'Owner.'

The jury found that the school district was not negligent in failing to construct the bleachers so as to render them safe. Nevertheless, the learned trial court concluded as a matter of law that the school district was an owner, finding that it had the necessary control or custody of the premises so as to be chargeable with the non-delegable duty of constructing the bleachers in a safe manner.

The trial judge reasoned that the bleachers constituted a public building, and we share that portion of his analysis. Bent v. Jonet (1934), 213 Wis. 635, 252 N.W. 290, 126 A.L.R. 1245. It is also true that a school district may fall within the definition of an owner as that word is used in sec. 101.06, Stats. Heiden v. City of Milwaukee, (1937), 226 Wis. 92, 275 N.W. 922, 114 A.L.R. 420.

If it can be said that the appellant school district is an 'owner' upon the facts of this case, then it is impressed with a nondelegable duty to make the bleachers safe under sec. 101.06, Stats. Mickelson v. Cities Service Oil Co. (1947), 250 Wis. 1, 26 N.W.2d 264; Tiemann v. May (1940), 235 Wis. 100, 292 N.W. 612. We differ with the learned trial judge, however, in his conclusion that upon the undisputed facts of the instant case the school district is an 'owner.' The school district was clearly not the legal title owner of the athletic field or the bleachers, and its liability could only rest upon the conclusion that it had 'control or custody' of the bleachers.

Mere possession is not the equivalent of control or custody. In Freimann v. Cumming (1924), 185 Wis. 88, 91, 200 N.W. 662, 663, the court discussed the character of control and custody and stated:

'Considering the language and general purpose of this statute we now hold that, in order to place such a liability as is here claimed against one as the 'owner' of such premises there must exist in such person the right to present possession or present control or dominion thereover so that such person may lawfully exercise the rights necessary to permit him to properly enter upon the premises in order to perform such an ever present duty as is fixed by this statute. A present right of possession is necessarily involved in the idea of a present duty to make repairs or changes.'

The nature of control or custody was also examined in Lee v. Junkans (1962), 18 Wis.2d 56, 117 N.W.2d 614, and in Wannmacher v. Baldauf Corp. (1953), 262 Wis. 523, 55 N.W.2d 895, 57 N.W.2d 745.

In our opinion, the school district cannot be said to have had control or custody of the bleachers within the contemplation of sec. 101.06, Stats. The facts of this case persuasively demonstrate that the school district did not have such dominion over the bleachers so as to entitle it to enter the premises in order to rebuild or to perform repairs upon the bleachers. The only use that the school district made of the athletic field was for seven football games. This was accomplished under an arrangement with the city whereby the school district paid $30 per game for the use of the premises. Although the school district's employees supervised the athletic events, its employees did not purport to inspect the bleachers or to perform any maintenance services with reference to them. When any problems arose concerning the bleachers, it was the city's employees who attended to them.

We recognize that in Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 607, 111 N.W.2d 495, 498, it was pointed out that one's control or custody of premises 'need not be exclusive, nor is it necessary to have control for all purposes' as a requisite of liability for injuries. Nevertheless, in order to find liability on the part of a temporary user there must exist in such alleged 'owner' at least a modest degree of dominion over the premises so that such temporary user might have an opportunity to perform the necessary repairs or rebuilding.

Upon the facts of the instant case it is clear that the Delavan-Darien Union High School District was at no time in such control of the facilities as to give it even a scant opportunity to make repairs to the bleachers. When the use of the premises is as temporary and informal as that involved in the case at bar, the safe-place statute was not intended to create liability.

The jury's finding that the school district was not negligent probably reflects its conclusion that the school district did not have control or custody of the bleachers. However, the jury's finding is not controlling because the issue is really one of law. This is true because the facts concerning control or custody were not in dispute at the trial. In Rehse v. Industrial Comm. (1957), 1 Wis.2d 621, 626, 85 N.W.2d 378, this court asserted the principle that if the facts are not controverted a question of law is presented.

We conclude that the school district's use of the facilities was so temporary and sporadic as to require the conclusion, as a matter of law, that its use of the athletic facilities did not carry with it the obligation as an 'owner' to repair or rebuild the bleachers.

The Motion to Review.

The city of Delavan has challenged the plaintiffs' right to recovery against the city because of the alleged untimeliness of the plaintiffs' action under sec. 62.25, Stats.

The city has raised this issue via a motion to review under sec. 274.12(1), Stats., and it is contended by the plaintiffs that this issue could only be raised by a cross-appeal under subsections (3) and (4) of sec. 274.12 rather than by a motion to review. A motion to review under the statute may be brought by 'a respondent adverse to the appellant upon the latter's appeal' to review 'any rulings prejudicial to him.'

Upon this appeal, the city is not a party adverse to the appellant. This is true notwithstanding the fact that there is an adverse relationship between the city and the school district insofar as the judgment provides for contribution between them....