Wannmacher v. Baldauf Corp.

57 N.W.2d 745, 262 Wis. 523, 1953 Wisc. LEXIS 452

• Court: Wisconsin Supreme Court
• Decided: March 31, 1953
• Status: Published

Opinions

Currie, J.

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 trap-door opening.

It is clear that at common law the existence of a trap door does not constitute a nuisance or defect in the premises and a landlord cannot be held liable to one who falls through the trap-door 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 Pac. 626; Lyman v. Hermann (1938), 203 Minn. 225, 280 N. W. 862; and Torpey v. Sanders (1936), 248 App. Div. 303, 289 N. Y. Supp. 532.

However, counsel for plaintiffs contend that the defendant landlord in the instant case, by failure to enclose the trap-door 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 employees therein and shall furnish a place of employment which shall be safe for employees 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 employees 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.1’ (Emphasis supplied.)

While a trap door 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, Stats., 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, 200 N. W. 662, the plaintiff sought to recover from the defendant for personal injury caused 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 statute. Prior to the accident the defendant had sold the premises under land contract and the vendee was in possession when plaintiff was injured. This court held that the defendant was not liable under the safe-place statute, and stated (p. 91) :

“Considering the language and general purpose of this statute, we now hold that in order to place such a liability as is here claimed against one as the owner of such premises there must exist in such person the right to present possession or present control or dominion thereover so that such person may lawfully exercise the rights necessary to permit him to properly enter upon the premises in order to perform such an ever-present duty as is fixed by this statute. A present right of possession is necessarily involved in the idea of a present duty to make repairs or changes.”

While the case of Freimann v. Cumming, supra, passed upon the liability of a vendor and not a landlord, under the safe-place statute, the same principle would seem to apply in cases involving liability of a landlord. In Kinney v. Luebkeman (1934), 214 Wis. 1, 252 N. W. 282, this court did rely upon the principle announced in Freimann v. Cumming in denying recovery to a plaintiff who sought to hold a landlord liable for personal injuries under the safe-place statute. In the latter case the plaintiff, a patron of a restaurant operated by a tenant, fell down basement stairs while on her way to a toilet, and the defect relied upon to establish liability was the failure to have an electric light turned on. The landlord had provided a light in the ceiling and there was no dispute but that, if the light had been turned on at the stairhead, the stairway would have been sufficiently lighted to render it safe. This court in its opinion said (pp. 4, 5) :

“. . . where the only thing required to render a place safe is the turning on or continuous maintenance of an electric current to an electric light that is sufficient to render the place safe when the current is on, and the premises are occupied by a tenant who is conducting business therein such as to make the place within a public building within the meaning of the statute, the performance of this duty rests upon the tenant and not upon the landlord. . . .

“The owners in the instant case had no such possession of the premises, and no such ever-present right of control or dominion thereover as to render them responsible for either constant maintenance of the light or for turning on the light whenever the stair was in use.”

In Holcomb v. Szymczyk (1925), 186 Wis. 99, 202 N. W. 188, the plaintiff was injured by falling on a wooden platform at the second-story level upon which the rear entrance of a flat of a four-apartment two-story building opened. The jury found that the plaintiff’s fall was caused by slipping upon ice formed on the platform and that the building, as it existed at the time of the accident, was not constructed so as to be as safe to tenants occupying it as the nature of the building would permit. The jury further found the building on such day was not in a reasonably safe condition, and such fact was the proximate cause of plaintiff’s injury. The question before the court was the liability of the defendant landlord. It was contended in behalf of plaintiff that the platform could have been rendered safe by constructing a roof extending over it. The court, in holding the landlord not liable under the safe-place statute, stated (p. 104) :

“It is well known to every one and must have been known to the legislature that there are thousands of buildings in the state of Wisconsin constructed in just the manner that this building was constructed, used, and occupied so as to bring them within the classification of public buildings as defined in the statute. It is difficult to believe that the legislature intended to throw upon these owners the burden of practically insuring the occupants thereof against possible injury by compelling them to cover every part of the premises so as to protect the same against snow, ice, and rain. It is considered that a building is safe, within the meaning of the statute, which is composed of proper materials and is structurally safe, and that the statute does not apply to temporary conditions having no relation to the structure of the building or the materials of which it is composed. Juul v. School Dist. 168 Wis. 111, 169 N. W. 309.” (Emphasis supplied.)

Applying the principles of the foregoing decisions to the instant case, it is well known that there are thousands of buildings in the state of Wisconsin constructed with trap doors. A trap door in itself does not constitute a structural defect in the premises. It presents a danger only when the door is left open, and the opening and closing of the door in this case was entirely within the exclusive control of Pulos, the tenant. The leaving of the door open by Pulos, or his employees, was a temporary condition, such as the failure to have the light turned on in the Kinney v. Luebkeman Case, and the tenant Pulos alone would be liable for Mrs. Wann-macher’s injury, unless there existed some safety order of the industrial commission or city ordinance which required the landlord to construct a railing around the trap door.

Plaintiffs’ counsel contend that even in the absence of any such safety order or ordinance the plaintiffs would be entitled to recovery against the defendant landlord upon the finding of the jury that the landlord violated the safe-place statute by failing to provide an adequate railing around the trap door. Plaintiffs called as expert witnesses a civil engineer and two architects who testified that the premises could have been rendered safer by construction of a guardrail around the trap door. This court in Bunce v. Grand & Sixth Building, Inc. (1931), 206 Wis. 100, 238 N. W. 867, held that a jury question was presented as to whether steps in a toilet room were reasonably safe within the safe-place statute, notwithstanding the fact that it was conceded that there was no city ordinance or safety order of the industrial commission which was applicable to the situation there presented. However, Mr. Chief Justice Rosenberry, in the decision of Heckel v. Standard Gateway Theater (1938), 229 Wis. 80, 84, 281 N. W. 640, in construing the safe-place statute, declared:

“The safe-place statute (sec. 101.06) does not require the owner of the premises resorted to by the public to do the impossible or the unreasonable in maintaining its premises in a safe condition.” (Emphasis supplied.)

In the light of such holding in Heckel v. Standard Gateway Theater, supra, and our decision in Holcomb v. Szymczyk, supra, would it be requiring “the unreasonable’’ to have required the defendant landlord in the instant case to have constructed a railing around the trap door? In passing on this question we must take cognizance of the fact that trap doors are widely used in those locations in which sufficient floor space cannot be sacrificed to provide a permanently open well for a staircase to attain access to the basement below. A trap door when closed entails no loss of floor space. In the instant case, for example, the leased store was only 18 x 18 feet in size and floor space was at a premium so that the installation of a trap door was an ideal solution of the problem of how to provide access to the basement without loss of the use of valuable floor space. To require the installation of a permanent railing around a trap door would totally destroy its utility because it would render useless as floor space the area of the door when closed, such being the very objective for which it was installed in the first place.

In Torpey v. Sanders, supra, the appellate division of the New York supreme court declared (248 App. Div. 305) :

“A trap door is designed for temporary and expeditious use, with as little interference with the use of the floor space which it occupies as possible. Its construction shows that it is not intended to be kept open for any length of time. The free use of the floor space is of much greater importance than the stairway during business hours. No possible danger could be feared from the opening or the trap door in this case when the door was in place.”

In view of the fact that a permanent railing around a trap door would destroy its intended utility of having the door when closed serve as useful floor space, we cannot resist the conclusion that to require such a railing would be to require “the unreasonable” of the landlord-owner in absence of any ordinance or safety order specifically so providing. We, therefore, are of the opinion that it does not lie within the province of a jury to find that a landlord-owner violated the safe-place statute by failing to install such a railing.

We now come to the consideration of the contention by plaintiffs’ counsel that there were specific safety orders of the industrial commission, and provisions of ordinances of the city of Milwaukee, which required the defendant landlord to have installed a railing around the trap door.

Order No. 55 of the General Orders on Safety issued by the industrial commission, effective March 13, 1935, provides :

“Pits, manholes, and openings in floors, platforms, and sidewalks shall be guarded in accordance with the requirements of Order B-l. If a trap door is used the door and hinges shall be flush with the floor and the door shall have a rough and nonslip surface.”

Order B relates to standards and specifications and is an attempt on the part of the commission to specify the manner in which various protective devices are to be constructed and their materials. Thus, Order B-l, relating to railings and toeboards, provides:

“Where standard railings and toeboards are called for in these orders, they shall conform to the following specifications

There is no specific order called to our attention, or which we have been able to find, providing that railings and toe-boards are required around a trap-door opening. In construing the orders on safety, the general definition contained in Order A must govern. It is provided therein:

“Guarded. When used in these orders, the term ‘guarded,’ unless otherwise specifically provided, shall mean so covered, fenced, or enclosed that a person in the course of employment is not liable to come in contact with the point of danger and be injured.” (Emphasis supplied.)

It will be noted that one may “guard” an opening by enclosing it, fencing it, or covering it. This is the explanation of the latter part of the provision of Order 55 relating to a trap door. It is a recognition that the use of a trap door with hinges flush with the floor and with a nonslip surface is a complete compliance with Order 55, under the definitions contained in the General Orders on Safety. There was no showing that the trap-door hinges were not flush with the floor or that the door when closed did not have a nonslip surface, and there is no claim made that the accident was caused by the plaintiff tripping over the hinges or slipping upon a slippery surface.

Plaintiffs also rely upon Order 5410 of the Wisconsin state building code, which order was promulgated by the industrial commission so as to be effective July 29, 1942. Such order reads as follows:

“Order 5410. Trap doors and floor openings. Every opening through any floor or through any roof used by the public or by employees shall be guarded by a substantial enclosure or rail not less than three feet six inches high. . .

At the time the defendant Baldauf Corporation acquired title to the leased premises in 1938, subject to the tenancy of the defendant Pulos, Order 5410 was not in effect, and was not adopted until approximately four years later. Failure to comply with a general safety order of the industrial commission applying to places of employment, or public buildings, constitutes a violation of the safe-place statute.

A landlord at common law is under no obligation to enter and make repairs, or alterations, unless such duty is imposed upon him by the provisions of the lease. Johnson v. Prange-Geussenhainer Co., supra; Kinney v. Luebkeman, supra; and 51 C. J. S., Landlord and Tenant, p. 1071, sec. 366. Does the safe-place statute effect a change in this common-law rule and impose a duty upon a landlord to make repairs, or alterations, in premises which were structurally safe at the time of leasing even though the landlord has no duty under the leasing arrangement to make repairs? This court has answered this question in the negative. In Bewley v. Kipp (1930), 202 Wis. 411, 414, 233 N. W. 71, this court, speaking through Mr. Chief Justice Rosenberry, stated:

“Under the principles of the common law the lessor was under no obligation to repair unless he assumed such obligation by the terms of the lease. Concededly this statute [safe-place statute] was not intended to, and does not, affect the relative duties of landlord and tenant in this' respect in cases where there is a single tenant of a demised building. While this is not conclusive, it is a most significant indication that by this legislation the legislature was not intending to regulate or modify the common-law relation of landlord and tenant." (Emphasis supplied.)

The holding in Bewley v. Kipp, supra, is in accord with the principle that this court announced in Freimann v. Cumming, supra, that in order to hold an “owner” liable under the safe-place statute, he must possess the right of entry so as to be able to do that which is necessary to make the premises reasonably safe.

It is therefore our conclusion that while Order 5410 may have been applicable to the defendant Pulos, it had no application to the defendant landlord because at all times since it was adopted in 1942, the landlord was out of possession with no right of entry to the leased premises.

Plaintiffs’ brief cites Schaefer v. Fond du Lac (1898), 99 Wis. 333, 340, 74 N. W. 810, as holding that an owner who purchases premises in a defective condition and then leases the same to a tenant, or allows the tenant to continue possession under such conditions as to indicate permission to continue the defects, may be held liable for injuries to a third person resulting from such defects. That case involved a defect in a street-railway track in a public street which already existed when the new owner acquired title and entered into a new arrangement with the street-railway company permitting it to continue in possession with an option to purchase. The Schaefer Case is readily distinguishable from the instant case because in 1938, when the defendant Baldauf Corporation acquired title, the trap door did not constitute a structural defect in the leased premises.

There remains but the question of whether there was in existence an applicable ordinance of the city of Milwaukee requiring the defendant landlord to erect a permanent railing around the trap door. Ordinance 13-15 (c) comes the closest to having any application, and states as follows:

“All new or existing pits for boilers, furnaces, greasing, meters, stairwells and all other new or existing floor pits or depressions or where there is a change in floor level shall be provided at all sides, except where such protection may be waived or irfodified by the inspector of buildings, with railing as required in paragraph (b) of this section. All such railings shall be securely anchored to the floors.” (Emphasis supplied.)

In the case of Staples v. Senders (1940), 164 Or. 244, 96 Pac. (2d) 215, 101 Pac. (2d) 232, the plaintiff was a patron of an antique and secondhand shop operated by a tenant of the defendant landlord, and fell through an opening in the floor caused by a trap door covering a stairway leading down into the basement having been left open. A .section of the building-code ordinance of the city of Portland provided as follows (p. 252) :

“All stairways over three (3) risers in height shall have a substantial railing along the outside of same and if stairs are over four (4) feet or more in width, a railing shall be provided on both sides. Substantial railings shall be provided for wellholes of stairs and all handrails to be used by the public shall be at least thirty (30) inches in height measured vertically in the center of treads or in the center of platform landings.”

The Oregon court came to the conclusion that the landlord was not liable and in reaching such conclusion it was necessary to construe the above-quoted ordinance. The pertinent portion of the court’s opinion on this point is as follows (p. 261):

“Ordinarily trap doors in buildings cover a flight of stairs, and about the only purpose they serve is to form a part of the floor when not open and thus permit the free use of that portion of the floor space. See Torpey v. Sanders, 248 App. Div. 303, 289 N. Y. S. 532. If they must be surrounded by railings this utility is lost, and the trap doors themselves might as well be abolished. We are not now questioning the power of the city council to enact a regulation abolishing them, but only calling attention to the consequences of attaching to the ordinance the meaning insisted upon by the plaintiff.

“The regulations do not refer specifically to trap doors, but to wellholes of stairs. A wellhole is defined as ‘the open space in a floor, to accommodate a staircase’ (Funk and Wagnall’s New Standard Dictionary), and in a literal sense that definition may be said to fit the case when the trap door is open, though obviously it does not when the trap door is closed. We are, therefore, faced with an ambiguity in the ordinance as it is attempted to be applied here, and we think it accords more with common sense to take the view that the city council had no intention of requiring property owners to build handrails around what most of the time is, to all intentions and purposes, a part of the floor of the building, and thus to destroy the only utility that a trap door possesses. This also holds true with respect to a stair railing extended through a trap door and above the floor.” (Emphasis supplied.)

While the Milwaukee city ordinance uses the term “stairwells” and the Portland ordinance employs the phrase “well-holes of stairs,” the two expressions are synonymous and we therefore hold that ordinance 13-15 (c) of the city of Milwaukee must be construed as not applying to trap doors covering a flight of stairs.

It is our conclusion that the defendant landlord Baldauf Corporation cannot be held liable by the plaintiffs in this action on any of the grounds advanced by plaintiffs’ counsel and considered in this opinion, and that the judgment as to such defendant must be reversed and the action dismissed as to it.

By the Court. — Judgment reversed as to the defendant Baldauf Corporation only and cause remanded with directions to dismiss the action as to said defendant.

A motion for rehearing was granted on February 3, 1953, and oral argument was heard March 6, 1953.

For the appellant there were briefs by Quarles, Spence & Quarles and Raymond H. Kleis, attorneys, and Arthur Wick-ham and Richard S. Gibbs of counsel, all of Milwaukee, and oral argument by Mr. Gibbs, Mr. Wickham, and Mr. Kleis.

For the respondents there was a brief by George Timmer-man, attorney, and Austin W. Kivett and Kent W. Michael-son of counsel, all of Milwaukee, and oral argument by Mr. Timmerman and Mr. Kivett.