Stamberger v. Matthaidess

• Decision Date: 22 December 1967
• Parties: Larry STAMBERGER et al., Plaintiffs-Appellants, v. Gayle Kruescher MATTHAIDESS et al., Defendants-Appellants, Carthage College, a foreign non-profit educational corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 88

155 N.W.2d 88

37 Wis.2d 186

Larry STAMBERGER et al., Plaintiffs-Appellants, v. Gayle Kruescher MATTHAIDESS et al., Defendants-Appellants Carthage College, a foreign non-profit educational corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Dec. 22, 1967.

Frank M. Coyne, Madison, for plaintiffs.

Charles Cape, Milwaukee, Joseph J. Muratore, Racine, for defendants-appellants.

Foley, Capwell & Foley, Racine, for respondent.

BEILFUSS, Justice.

The issue is: Are the allegations of the complaints sufficient to state a cause of action for negligent breach of a duty by the defendant, Carthage College?

It is conceded, as it must be, that the legal relationship of Carthage College and the plaintiff, Larry Stamberger, and the defendant, Gayle Kruescher, was that of invitor-invitee. The duty owed to an invitee by an invitor has been stated to be as follows:

"A possessor of land is subject to liability to others who are privileged to enter it for a public or private purpose, irrespective of his consent, for bodily harm there caused to them by his failure, after he knows or from facts within his knowledge should know of their presence on the land, to conduct his activities thereon with reasonable care for their safety.'

'* * * "'The obligation of those who collect numbers of people in one place, for gain and profit, to be vigilant in their efforts to protect such people, has long been recognized.' Platt v. Erie County Agricultural Society, 164 App.Div. 99, 149 N.Y.S. 520, 523; Tantillo v. Goldstein Brothers Amusement Co., 248 N.Y. 286, 290, 162 N.E. 82. * * *

"When one assembles a crowd or a large number of people upon his property for purposes of financial gain to himself he assumes the responsibility of 'using all reasonable care to protect the individuals from injury from causes reasonably to be anticipated.' In the exercise of this duty it is incumbent upon him to furnish a sufficient number of guards or attendants and to take other necessary precautions to control the actions of the crowd; and whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine under all the circumstances. Reschke v. Syracuse, Lake Shore & N.R. Co., 155App.Div. 48, 139 N.Y.S. 555, affirmed 211 N.Y. 602, 105 N.E. 1097; Platt v. Erie County Agricultural Society, 164 App.Div. 99, 103, 149 N.Y.S. 520.' Schubart v. Hotel Astor, Inc., 168 Misc. 431, 5 N.Y.S.2d 203, affirmed in (255 App.Div. 1012, 8 N.Y.S.2d 567), affirmed 281 N.Y. 597, 22 N.E.2d 167. See also Fortier v. Hibernian Bldg. Asso., 315 Mass. 446, 53 N.E.2d 110.' Pfeifer v. Standard Gateway Theater, Inc., (1951), 259 Wis. 333, 335, 336, 48 N.W.2d 505, 506, 507. (Emphasis supplied.)

'This court has long held that a landowner is liable for injuries to an invitee caused by reason of the unsafe condition of the premises known to the owner and which he negligently suffers to exist and of which the injured invitee has no notice or knowledge.' Schlicht v. Thesing (1964), 25 Wis.2d 436, 440, 130 N.W.2d 763, 766.

'* * * where the owner of land invites another expressly or by implication to come upon his land, as by passing over a private way thereon, * * * He owes to such other the positive duty to use ordinary care to maintain such way in a reasonably safe condition for such use by persons in the exercise of ordinary care.' Gorr v. Mittlestaedt (1897), 96 Wis. 296, 298, 71 N.W. 656, 657.

'Business Premises Open to Public: Acts of Third Persons or Animals

'A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

'(a) discover that such acts are being done or are likely to be done, or

'(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.' Restatement, 2 Torts 2d, pp. 223, 224, sec. 344.

From these citations it is apparent that the invitor, while not an insurer, does owe a duty of ordinary care to an invitee not only as to the physical condition of the premises but also as to the known hazardous conduct of other persons upon the premises.

The complaint against Carthage College, reduced to its simplest terms and giving it the liberal construction it is entitled to upon a challenge by demurrer, alleges that the college provided a road for vehicular traffic; that it permitted two-way traffic; that it knowingly permitted left-hand parking; that left-hand parking constituted a hazard to users of the highway; that it did not promulgate regulations nor post parking restrictions against left-hand parking; and that the plaintiff was injured when Gayle Kruescher negligently started from her left-hand parking position.

It is undisputed that Entrance road is a private road. Consequently, the Wisconsin Motor Vehicle Code does not apply. Patterson v. Edgerton Sand & Gravel Co. (1938), 227 Wis. 11, 18, 277 N.W. 636. It is therefore incumbent upon the court to apply the common law without regard to the present statute (sec. 346.54(1)(a)) prohibiting left-hand parking on two-way streets. ¹

Before the enactment of sec. 346.54(1)(a), Stats., this court held that it was not negligent for one to park on the left side of a public highway:

'It was claimed by the defendant during the trial and especially during the argument to the jury, that the deceased was negligent because he stopped on the left-hand side of the road or because he did not go into a private driveway to examine or make repairs on his engine. Neither claim has any basis in law. A traveler has the right to make reasonable use of the highway for the examination or repairs of his car while traveling, and he is not confined to the right-hand side of the road. He may use the left-hand side if he does not thereby unreasonably interfere with others. Smoak v. Martin, 108 S.C. 472, 94 S.E. 869.' Schacht v. Quick (1922), 178 Wis. 330, 332, 190 N.W. 87, 25 A.L.R. 130.

Consequently, unless the allowance of parking on the left under the circumstances presented a hazardous condition to invitees, the pleadings are insufficient to allege a breach of duty of ordinary care by failure to prohibit the left-hand parking.

The complaint and cross complaint allege that the college was negligent in...