Voeltzke v. Kenosha Memorial Hospital, Inc.

• Decision Date: 19 December 1969
• Docket Number: No. 25,25
• Citation: 45 Wis.2d 271,172 N.W.2d 673
• Parties: Abigail VOELTZKE et al., Appellants, v. KENOSHA MEMORIAL HOSPITAL, INC., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 673

172 N.W.2d 673

45 Wis.2d 271

Abigail VOELTZKE et al., Appellants, v. KENOSHA MEMORIAL HOSPITAL, INC., a Wis. corporation, Respondent.

No. 25.

Supreme Court of Wisconsin.

Dec. 19, 1969.

This is an action for personal injuries suffered by the plaintiff, Abigail Voeltzke, as a result of a fall by Mrs. Voeltzke in the parking lot of the defendant, Kenosha Memorial Hospital, Inc. The complaint of the plaintiffs (Mrs. Voeltzke is joined by her husband in his claim for loss of services) alleges causes of action in common-law negligence and a violation of the safe-place statute.

On November 9, 1965, Mr. and Mrs. Voeltzke intended to visit a fellow employee of Mr. Voeltzke who was a patient at the Kenosha Memorial Hospital in the city of Kenosha.

The hospital constructed, owns and maintains a parking lot for the benefit of its employees, patients and visitors. The lot is directly north of the hospital; it abuts 8th avenue and a service driveway next to the hospital.

The hospital was comprised of two wings which formed an 'L' structure. The older wing extended in a north -south attitude with the northernmost end abutting a service driveway which ran east and west between the hospital and parking lot. The newer wing, called the 'Cooper wing,' ran eastward from the south end of the old wing. The main entrance to the hospital was located at the juncture point of the two wings. One means of access to the main entrance was a sidewalk running parallel to the older wing extending from the hospital entrance to the paved service drive.

Immediately adjacent to the service drive, and at the south end of the parking lot, angle parking spaces were provided for a single line of cars indicated by yellow marking on the blacktop and concrete bumpers set at an angle. Within the interior of the lot three double rows of angle parking were provided, also equipped with concrete bumpers.

The bumpers were described as seven feet six inches in length, six and one-half inches high, 10 inches wide at the base and bevelled to a width of five inches at the top. They were described by the plaintiff-husband as being greyish-white in color and placed on blacktop pavement. The testimony differed regarding the distance between the bumpers. The assistant to the hospital president stated they were four feet apart. The plaintiff-husband said the ends of the bumpers were only two feet apart, while the chief maintenance engineer for the hospital indicated they were about three feet apart.

Mr. and Mrs. Voeltzke arrived at the hospital about 6:50 p.m. It was dark and the blacktop was dry. They parked their automobile in the northwest portion of the lot, almost straight north of the sidewalk adjacent to the old wing. From their car they walked through the western portion of the lot in a southerly direction toward this sidewalk. The assistant to the hospital president, Mr. Stefani, stated that this was the most direct route from the west half of the lot to the main entrance. Mrs. Voeltzke stated she saw other people ahead of her leaving the lot by the same route. The southernmost line of parking immediately abutting the service drive, was filled with cars. Mrs. Voeltzke preceded her husband between two cars in this line, stating that there was enough room to walk without touching either car. Her husband said the cars were about four feet apart. As she reached the front of the cars her right foot hit the concrete bumper on the right side and she fell into the service driveway. As a result of the fall she suffered a fractured right wrist and facial cuts and bruises. She was in the hospital for about a week and suffered quite severe pain during that time; for several weeks after she left the hospital she returned three days a week for physical therapy treatments. Mrs. Voeltzke was fifty-eight years old and still suffers pain and disability in the use of her right arm and hand.

There was considerable testimony respecting the degree of lighting of the parking lot. Witnesses for defendant stated that there were floodlights located at the east, west and north boundaries of the lot. In addition, there were two 150 watt lights located at the north end of the old wing adjacent to the sidewalk and almost directly across the drive from the point where Mrs. Voeltzke fell. The total wattage of the floodlights was 8,000 watts plus the 300 watts from the two bulbs near the sidewalk. The parking lot area was 73,000 square feet. An ordinance of the city of Kenosha required lighting of 7,300 watts for a parking lot of that size. Mrs. Voeltzke testified that she recalled the presence of the two lights at the north end of the hospital, but she stated that the cars between which she passed cast shadows that obscured her view of the concrete bumpers.

The trial court ruled that the safe-place statute did not apply because the hospital was a nonprofit corporation and submitted the matter to the jury on common-law negligence. The jury found that Mrs. Voeltzke was a licensee as distinguished from an invitee; that the hospital was not negligent; that Mrs. Voeltzke was causally negligent and answered the damage questions, 'None.'

The court denied plaintiffs' motions after verdict and entered judgment dismissing the complaint. Plaintiffs appeal.

Shearer & Shearer, Kenosha, for appellants.

Heide, Sheldon, Hartley, Thom & Wilk, Kenosha, for respondent.

BEILFUSS, Justice.

The issues are:

(1) Does the Wisconsin safe-place statute apply to the parking lot of the defendant hospital?

(2) Is a social visitor of a patient in a hospital an invitee or a licensee of the hospital?

(3) Are the plaintiffs entitled to a new trial in the interests of justice?

Our safe-place statute, sec. 101.06, provides:

'Employer's duty to furnish safe employment and place. Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.'

The plaintiffs do not contend that the parking lot falls within the definition of a public building or structure nor, in our opinion, could they successfully do so. ¹

In Jaeger v. Evangelical Lutheran Holy Ghost Congregation (1935), 219 Wis. 209, 211, 212, 262 N.W. 585, 586, it is said:

'There is a plain distinction between the obligation of an employer and the obligation of the owner of a building. The employer's duty to furnish safe employment includes the furnishing of a safe place of employment, and the employer has a broad duty not only with respect to the structure, which constitutes the place of employment, but with reference to the devices and other property installed or placed in such place. The employer's duty is carefully and specifically set forth in the first half of the section. The last portion of the section defines the duty of employers and owners with respect to the structure of the building. The duty in this respect is to construct, repair, and maintain such place of employment or such building in such a manner as to render the same safe.'

The liability of the hospital under the safe-place statute, if any, for a parking lot injury must be based upon a determination that the hospital was an employer within the meaning of the statute.

The definitional provisions of ch. 101, Stats., applying to the employment relation, state:

'(1) The phrase 'place of employment' includes 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, * * *.

'* * *

'(3) The term 'employer' shall mean and include every person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employe.

'* * *

'(13) The term 'owner' shall mean and include every person, firm, corporation, * * * having ownership, control or custody of any place of employment or public building, or of the construction, repair or maintenance of any place of employment or public building, * * *.'

The critical factor here, place of employment, is dependent on the profit motive of the defendant hospital. This court has said that absent a showing the activities of an organization are carried on in whole or in part in pursuit of the profit motive that organization cannot be said to be a place of employment under sec. 101.01(1), Stats. See Haerter v. West Allis (1964), 23 Wis.2d 567, 127 N.W.2d 768. The court also stated in Haerter, at p. 570, 127 N.W.2d at 770:

'The existence or nonexistence of an actual profit, of course, is not material.'

In a case in which it was contended a public beach was a place of employment because the lifeguards earned a gain or profit, this court said:

'Plaintiff contends that the definition of place of employment applies because the employees work for gain, and asks us to change our previous construction that the absence of the profit motive on the part of the city prevents the place being treated as a place of employment.

'We expressly decided on...