Wannmacher v. Baldauf Corp.

• Decision Date: 02 December 1952
• Citation: 55 N.W.2d 895,262 Wis. 523
• Parties: WANNMACHER et al. v. BALDAUF CORP. et al.
• Court: Wisconsin Supreme Court

Page 895

55 N.W.2d 895

262 Wis. 523

WANNMACHER et al. v. BALDAUF CORP. et al.

Supreme Court of Wisconsin.

Dec. 2, 1952.

Rehearing Granted Feb. 3, 1953.

This is an action brought by a wife and husband for damages arising from personal injuries sustained by the wife as a result of falling through an open trapdoor in a shoeshine parlor and cleaning establishment located on the north side of West North Avenue near its intersection with North 35th Street in the city of Milwaukee.

The defendant Pulos, in 1924, leased a store space on the first floor of a two-story building, together with the basement below, from one George Baldauf under a written lease for a term of one and one-half years. At the expiration of such term there was at least one, and possibly two more, renewals of said lease entered into between the parties, each for an additional term of one and one-half years. However, for many years prior to the accident there was no written lease between the owner and Pulos, and the latter's tenancy was either one from year to year, or month to month. In 1938, Baldauf and wife conveyed the premises, subject to Pulos' tenancy, to the defendant Baldauf Corporation.

At about the time the first lease was entered into in 1924, Baldauf installed a trapdoor in the floor of the first story of the building in order that Pulos might have access to toilet facilities located in the basement, and in order to make use of the basement for storage purposes. The leased store space is only about 18 X 18 feet in size with the entrance from the street in in the south wall. The dimensions of the trapdoor are 2 feet 4 inches wide by 4 feet 8 3/4 inches long, and it is located lengthwise along the east wall somewhat toward the rear of the store. The door opens lengthwise so that when opened it rests against the east wall.

Pulos used the store premises as a shoeshine parlor and cleaning establishment and arranged his fixtures, including partition walls, to suit himself without interference from the landlord. Pulos erected a partition wall and counter in front of and to the west of the trapdoor in such manner that all but the north 8 inches of the trapdoor opening was behind such counter and partition.

The accident happened about 6:30 p. m. on August 2, 1947. Mrs. Wannmacher came into the store to pick up a pair of trousers left there for cleaning some time before. Pulos was not in the store at the time and his son was in charge during his absence. Mrs. Wannmacher first handed the claim check for the trousers to another employee who searched for them and could not find them. Pulos' son, who was waiting on a customer, then told Mrs. Wannmacher to wait and he would take care of her as soon as he was finished with his customer. She apparently went behind the partition to locate the trousers herself as the clothing of the customers was hung on a pole or rod which ran lengthwise above the trapdoor. The trapdoor was open and she fell down into the opening severely injuring herself. As a result of the accident, Mrs. Wannmacher suffered retrograde amnesia and could not recall to memory anything which had happened leading up to the fall, so there was no explanation by her as to just how she fell into the opening or what she was doing when she fell.

The case was tried to a jury and a special verdict was submitted and returned. By this verdict the jury found that the defendant landlord (Baldauf Corporation) failed to have the premises in the vicinity of the trapdoor as safe as the nature of the building would reasonably permit in respect to providing an adequate railing around said trapdoor; that there was no failure of the defendant landlord with respect to the location of the trapdoor; that the defendant Pulos failed to have the premises as safe as the nature of the building would reasonably permit both with respect to location of the trapdoor and in failing to provide an adequate railing around the same; that the plaintiff, Mrs. Wannmacher, was contributorily negligent with respect to keeping an adequate lookout for her own safety but not with respect to going behind the counter in the vicinity of the trapdoor; and in answering the comparative negligence question the jury attributed 10% of the negligence to Mrs. Wannmacher. The verdict also determined the plaintiffs' damages.

Upon such verdict the trial court entered judgment against both the defendant Baldauf Corporation and the defendant Pulos under date of November 5, 1951. The defendant Baldauf Corporation has appealed to this court from such judgment, but Pulos has not appealed therefrom.

Quarles, Spence & Quarles, Milwaukee, Raymond H. Kleis, Arthur Wickham and Richard S. Gibbs, Milwaukee, of counsel, for appellant.

George Timmerman, Milwaukee, Austin W. Kivett and Kent W. Michaelson, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

This appeal presents the question of whether the plaintiffs are entitled to maintain their causes of action against the defendant landlord, it being the contention of counsel for said defendant that there is no liability on the part of the landlord as a matter of law.

While appellant's counsel contends that Mrs. Wannmacher at the time of accident was a trespasser and not a licensee or frequenter, we will assume for the purposes of this opinion, without deciding such issue, that she was not a trespasser but a frequenter, and had a lawful right to be where she was at the time she fell through the trapdoor opening.

It is clear that at common law the existence of a trapdoor does not constitute a nuisance or defect in the premises and a landlord cannot be held liable to one who falls through the trapdoor opening and is injured in premises in the possession and under the control of a tenant. Morrison v. McAvoy, 1902, 7 Cal.Unrep. 37, 70 P. 626; Lyman v. Hermann, 1938, 203 Minn. 225, 280 N.W. 862; and Torpey v. Sanders, 1936, 248 App.Div. 303, 289 N.Y.S. 532.

However, counsel for plaintiffs contend that the defendant landlord in the instant case, by failure to enclose the trapdoor opening with a railing, violated the safe place statute, sec. 101.06, Stats., certain safety orders of the Wisconsin industrial commission, and provisions of the building code ordinances of the city of Milwaukee, and predicated the plaintiffs' right to recover against the landlord upon these grounds.

We will first approach the problem from the standpoint of whether the safe place statute, sec. 101.06, Stats., independently of any safety order of the Wisconsin industrial commission or city ordinance, does impose liability on the defendant landlord in this instance.

Sec. 101.06, Stats., reads as follows:

'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, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe.' (Emphasis supplied.)

While a trapdoor when closed presents no hazard to patrons of a store or other business establishment, the situation resulting from the door being left open in a floor area to which frequenters are permitted access is highly dangerous and renders the premises unsafe. So far as a tenant in possession, such as the defendant Pulos, is concerned there is no doubt but that he may be held liable on the ground of violation of the safe place statute if a frequenter falls into the unguarded opening. Is the landlord owner also liable? While at first blush the words of sec. 101.06 requiring an 'owner' to so 'maintain' a place of employment or public building 'as to render the same safe' would seem to be inclusive enough to impose liability on the landlord for damages sustained by a patron of the tenant falling into such an unguarded opening, nevertheless, such a result would seem most harsh in view of the fact that the landlord was out of possession and had no control over the action of the tenant in failing either to keep the door closed when patrons were about, or to effectively guard the opening. A review of the earlier decisions of this court construing the statute is necessary in order to reach the correct conclusion.

Opposing counsel disagree as to whether the tenancy at the time of the accident was one from year to year, or month to month. We deem it to be immaterial which of these two types of tenancy existed inasmuch as the landlord at the time of the accident was not only out of possession but had no right to possession because no notice to terminate the tenancy under either sec. 234.03, or sec. 234.07, Stats. had been given. While we held in Johnson v. Prange-Geussenhainer Co., 1942, 240 Wis. 363, 2 N.W.2d 723, that a duty on the part of the landlord to make repairs carries with it a right of entry and control over the leased premises, there is no claim made that the landlord in the instant case had any duty to repair imposed by the terms of the leasing arrangement. In the absence of such duty to repair, the landlord had no right of entry or control. 32 Am.Jur., Landlord and Tenant, p. 186, sec. 196.

In Freimann v. Cumming, 1924, 185 Wis. 88, 91, 200 N.W. 662, 663, the plaintiff sought to recover from the defendant for personal injury aused by the defective condition of the top stair in a two-story office building, on the ground that the defendant was liable therefor as an 'owner' under the safe place sta...