Waldman v. Young Men's Christian Ass'n of Janesville
| Decision Date | 15 February 1938 |
| Citation | 227 Wis. 43,277 N.W. 632 |
| Parties | WALDMAN v. YOUNG MEN'S CHRISTIAN ASS'N OF JANESVILLE, WIS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Rock County; Jesse A. Earle, Judge.
Reversed, with directions.
Action by William Waldman, by John Waldman, his guardian ad litem, plaintiff, against Y. M. C. A. of Janesville, Wis., a corporation, defendant, commenced on March 23, 1937, to recover damages sustained by William Waldman, a minor, as a result of the alleged failure of defendant to maintain its premises in a safe condition. The action was tried to the court and a jury, and the latter returned a general verdict for plaintiff in which his damages were assessed at $2,500. From a judgment entered on May 19, 1937, in favor of plaintiff upon the verdict, defendant appeals. The material facts will be stated in the opinion.
Regan & McCue, of Milwaukee (J. H. Johnston, of Beloit, of counsel), for appellant.
Nolan, Dougherty, Grubb & Ryan, of Janesville, for respondent.
[1] On December 27, 1936, plaintiff, ten years old, was a member of a swimming class for boys at the Janesville Y. M. C. A. The class was under the supervision of employees of defendant. The swimming pool had been equipped with a diving board permanently attached and fixed, never removed except for repairs. This board was held in place by two U-shaped iron braces fastened onto bolts which were anchored in the cement foundation, one near the edge of the pool, and the other 3 or 4 feet back from the edge. The diving board was laid on top of these braces, and another U-shaped iron brace was fitted over the top of the board and bolted at the sides to the lower brace. This is conceded to be standard construction. Two or three weeks previous to the date of the accident the diving board became defective and was removed. This was done by loosening the top braces, the latter being left in position ready for insertion of a new board. Removal of the board left the pool without diving facilities, and on at least one occasion the physical director had used a bleacher board to replace it. When this was done, the board was inserted into the permanent braces and fastened by tightening the bolts. On this occasion, however, the employee in charge of the class allowed the boys to put a loose board into the permanent brackets without bolting or fastening it. The employee stood on the board to steady it. The boys were warned not to jump sidewise off the board, but one of them did, and plaintiff, who was standing with the instructor on the board or near it, was struck by the side motion of the board. The facts are not in dispute, and the question is whether there is liability under the safe place statute. There was originally a charge of negligence, but this cause of action was abandoned for the reason that the Y. M. C. A., being an eleemosynary institution, was not liable for negligence. Bachman v. Young Women's Christian Ass'n, 179 Wis. 178, 191 N.W. 751, 30 A.L. R. 448. This left the action to proceed under the safe place statute.
[2] Here, as in the case of Erbe v. Maes, Wis., 277 N.W. 111, plaintiff asserts that whenever the owner of a public building is also an employer, and the building or so much of it as is material to the action is a place of employment, the owner sustains the more extensive duties and liabilities of an employer under the safe place statute rather than the more limited duties and liabilities of an owner. The difference in scope between the duties of employers and owners under the safe place statute is pointed out in Jaeger v....
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