Plasa v. Logan

• Decision Date: 03 June 1952
• Citation: 53 N.W.2d 720,261 Wis. 640
• Parties: PLASA, v. LOGAN et al.
• Court: Wisconsin Supreme Court

Page 720

53 N.W.2d 720

261 Wis. 640

PLASA, v. LOGAN et al.

Supreme Court of Wisconsin.

June 3, 1952.

Action brought by plaintiff, Orvilla Plasa, against defendants, J. A. Logan and associates operating a hospital to recover damages for personal injuries sustained by plaintiff while walking on an accumulation of ice, covered with snow, on a public sidewalk adjacent to the hospital premises. Defendants demurred to a second complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and judgment was entered dismissing the complaint. Plaintiff appealed from the judgment.

Ethan B. Lemke, Milwaukee (Nathanael A. Lemke, Milwaukee, of counsel), for appellant.

Toebaas, Hart, Kraege & Jackman, Madison, for respondents.

FRITZ, Chief Justice.

As far as here material the allegations in plaintiff's complaint are to the following effect: that on premises leased to defendants they operated a hospital located on the west side of a public street and sidewalk. That said sidewalk extended north and south on the east side of the hospital building and across a driveway which entered the premises from the east and extended westerly along the south side of the building. That on February 21, 1949 at 8:30 A.M., plaintiff while walking carefully upon said sidewalk, slipped upon an accumulation of ice covered with a thin coat of flaky snow adjacent to and on the east side of the building and on part of the sidewalk across the driveway.

That said accumulation of ice was caused by defendants' negligence in discharging water artificially collected by them in such manner that it naturally and probably ran to and over the public sidewalk with substantially the same effect as if discharged directly on the public sidewalk; and water from melting snow on the roof of the hospital building was artificially caught and collected in drains and gutters on said building and discharged through drainpipes directly upon the surface of the ground at the rear and southwesterly part of the premises adjoining said building, whence such artificially collected and discharged water ran easterly in a perceptible stream along the hospital driveway onto and over the public sidewalk, where, upon a drop in temperature below freezing, it froze and left a slippery patch of ice on said sidewalk which made said sidewalk unsafe and treacherous to persons walking thereon. That the winter snow had accumulated on said hospital building roof from December 1, 1948, down to the time that plaintiff slipped on the ice formed on the sidewalk adjacent to the hospital building. That defendants knew or ought to have known of such accumulation of snow, and that on warm days said snow would thaw and that the water therefrom, as artificially collected and discharged by them, would run to and over the public sidewalk, where, upon a drop in temperature below freezing, it would freeze and render the sidewalk unsafe; and that the ice on which plaintiff slipped was caused by the freezing of water thus negligently discharged from the roof of said hospital building.

Upon defendants' demurrer to the amended complaint, plaintiff's attorneys contended that the case is governed by the decision in Adlington v. City of Viroqua, 155 Wis. 472, 144 N.W. 1130, 1131. In that case the jury found that the public sidewalk was defective by reason of the ice thereon; such accumulation was formed from water discharged near the walk by way of a conveyor pipe leading to and taking water from the building in question; ordinary care was not exercised in respect to the pipe and gutter and the culvert leading therefrom; and such fault was the proximate cause of plaintiff's injury. On that verdict judgment was granted in favor of plaintiff. On defendants' appeal they contended that the facts found by the jury did not indicate any violation of duty on the part of defendant. This court stated:

'It was a fair question for the jury as to whether appellants did not act unreasonably and so, negligently, in discharging the water from their conveyor pipe in such a manner as to render natural and probable, an unsafe condition of the sidewalk where that could have been avoided without any great inconvenience by keeping clear the conduit under the walk * * *. But it was the duty of the abutting owners to act reasonably to prevent and remedy a situation rendering the walk unsuitable for use. With the duty to act reasonably in ridding the premises of surface water, and duty as regards the safety of the walk, there was evidence to carry the question of negligent breach to the jury.' Plaintiff relies upon this statement in the Adlington case that: 'The principle is that ordinary care for the safety of others is not consistent with such conduct as that of a person accumulating water falling upon his premises into a body and discharging the same so as to naturally and probably result in rendering the premises receiving the flow in the artificial way, unsuitable for their ordinary use. * * * The fact that accumulated water is not discharged directly on the lower premises but is released nearby and reaches such premises with substantially the same effect as if discharged thereon, makes no difference (citation). So here the fact that the water was discharged from defendants' conveyor pipe a few feet from the edge of the sidewalk, is of little consequence, so long as the natural and probable result was that it would reach the sidewalk with substantially the same...