Schwenn v. Loraine Hotel Co.

• Decision Date: 31 October 1961
• Citation: 111 N.W.2d 495,14 Wis.2d 601
• Parties: Lorraine SCHWENN et al., Respondents, v. LORAINE HOTEL CO., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 495

111 N.W.2d 495

14 Wis.2d 601

Lorraine SCHWENN et al., Respondents, v. LORAINE HOTEL CO., et al., Appellants.

Supreme Court of Wisconsin.

Oct. 31, 1961.

Further facts will be stated in the opinion.

Aberg, Bell, Blake & Metzner, Madison, for appellant Loraine Hotel Co. Petersen, Sutherland, Axley & Brynelson, James C. Herrick, Madison, for appellant Yellow Cab & Transfer Co.

Lawton & Cates, Madison, for respondents.

MARTIN, Chief Justice.

The first question raised on appeal is whether the safe-place statute applies, specifically, whether the driveway in question constituted a 'place of employment' as to the hotel and the cab company under sec. 101.01(1), Stats., which it was their duty to maintain in a safe condition under sec. 101.06, Stats.

This is a semi-circular driveway lying between the sidewalk in front of the hotel and the south curb line of West Washington avenue. There is a concrete island between West Washington and the middle part of the drive which is 47 feet long at the curb of the street and 68 feet along the curve of the drive. The length of the drive along the curve of the sidewalk is 210 feet and it is approximately 20 feet wide directly in front of the hotel. There are openings to the street, about 43 feet wide, at the east and west ends of the drive.

It was stipulated by counsel that the land on which the driveway is built is owned by the city of Madison, being dedicated to it for street purposes. The evidence shows, however, that it was not used for general public vehicular or pedestrian travel, but almost exclusively for the loading and unloading of guests and luggage from taxis and private autos. There was evidence that the city had never removed snow from the driveway; that the city had no signs posted in and along the driveway; that the city police never ticketed cars parked in that area.

A full-time doorman was employed by the hotel to assist arriving and departing guests at vehicles in the driveway. The doorman was so assisting a guest of the hotel when the accident happened. The hotel kept two private 'no parking' signs on the drive. It also owned and maintained a 'no parking, taxi stand' sign. One of the doorman's duties was to keep unauthorized vehicles out of the driveway. Officers of the hotel sometimes parked there. The doorman and other hotel employees occasionally cleaned the driveway of snow and the hotel permitted other private parties to plow it.

For over thirty years the only cabs which parked at the cab stand were Yellow cabs, and driver employees of the cab company had orders to keep the stand occupied at all times, day and night. The cab company also had a direct telephone to its office in the lobby of the hotel. The evidence shows that the cab company had sometimes in the past plowed out the drive and that on occasion the taxi drivers would shovel and sand the driveway. There was no formal agreement between the hotel and Yellow Cab as to the use of the driveway or the taxi stands. Hertz Rent-A-Car also had a direct line telephone inside the front door of the hotel. The Checker Cab Company, which operated an air line limousine service, maintained a service desk in the hotel lobby. Taxis owned by cab companies other than the Yellow Cab, although they delivered guests to the hotel, neither parked at the taxi stand nor solicited business from that area. The Checker air line limousine picked up and discharged passengers not at the driveway but at the West Washington curb of the island in the center of the driveway.

Sec. 101.01(1), Stats. defines a 'place of employment' as:

'* * * every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit * * *.'

As recognized in Ball v. Madison, 1956, 1 Wis.2d 62, 82 N.W.2d 894, the statute is very broad--a place of employment can be almost any place. As outlined above, the evidence in this case clearly indicates that both defendants conducted some business operations in the driveway and both employed personnel to work there. Both had employees actually engaged in work there at the time the plaintiff fell.

Under sec. 101.01(3), Stats. an employer is a person or entity having control or custody of a place of employment.

Control by the hotel is shown by the evidence that it maintained a doorman whose work included keeping the driveway free of unauthorized vehicles. He had done this many times. The only parking permitted by the hotel was by the Yellow cabs, by hotel guests who had temporary permission from the hotel, and by officers of the hotel. There is evidence that the doorman and other employees of the hotel cleaned the driveway in winter. Private agencies plowed it with the express or tacit approval of the hotel.

Yellow cabs had the exclusive use of the taxi stand in the driveway. The cab company kept cabs there at all times and had, just juside the hotel door, a direct wire telephone to its dispatcher. The evidence showed that employees of the cab company sometimes shoveled and sanded the drivway and that the company on some occasions used its own snowplow to clean the drive.

On the other hand, the city exercised no control over the driveway which interfered with the control exercised by the defendants. It maintained no parking or cab stand signs in the area; it did not control parking there; it never plowed snow from the driveway. Testimony by the hotel manager that he saw city plows in the driveway on infrequent occasions carried little weight in view of the testimony of the doorman and many cab drivers that they never saw a city plow there, and the testimony of the assistant commissioner of streets that city employees were instructed not to plow driveways unless they constituted access to property which the city operated.

Cases cited by defendants to the effect that city streets and sidewalks are not places of employment are distinguishable on the ground that the premises in each case did not meet the statutory requisites of a place of employment in that they were used by the general public, precluding any control on the part of the employer. It is undisputed that general vehicular traffic never used the driveway here in question, but traveled on West Washington avenue. The hotel manager himself testified that those who made use of the drive were 'Everyone who enters or leaves the hotel via cab, car or limousine.'

The safe-place statute does not, by its terms, require an employer to own the premises in order to maintain a place of employment. Nor do cases on the subject require ownership as a requisite of liability. Werner v. Gimbel Brothers, 1959, 8 Wis.2d 491, 99 N.W.2d 708, 100 N.W.2d 920. Thus, control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes. Criswell v. Seaman Body Corp., 1940, 233 Wis. 606, 290 N.W. 177.

Upon the record in this case the two defendants exercised control over this driveway for the purposes of snow removal.

In Cross v. Leuenberger, 1954, 267 Wis. 232, 234, 65 N.W.2d 35, 37, 66 N.W.2d 168, this court, quoting from Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 1935, 219 Wis. 209, 212, 262 N.W. 585, said:

"The permitting of temporary conditions wholly dissociated from the structure does not constitute a violation of the safe-place statute by the owner of a [public] building, although it may, and undoubtedly does, constitute a violation if permitted by an employer.' (Emphasis supplied.)'

Under the statute an employer has the duty to...