PUBLISHED OPINION
Case No.: 95-2294-FT
† Petition
for Review Filed
Complete Title
of Case:
TONY A. HENDERSON, DEPARTMENT
OF HEALTH AND SOCIAL SERVICES
and DEPARTMENT OF VETERAN AFFAIRS,
Plaintiffs-Appellants,
v.
MILWAUKEE COUNTY,
Defendant-Respondent.†
Submitted on Briefs: November 21, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: December 19, 1995
Opinion Filed: December
19, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: MICHAEL GUOLEE
so indicate)
JUDGES: Wedemeyer, P.J., Fine and Schudson, JJ.
Concurred: ---
Dissented: ---
Appellants
ATTORNEYSFor the plaintiffs-appellants the cause was submitted on
the briefs of Hausmann-McNally, S.C., with Nancy E. LeMarbre, and
Timothy J. Cesar, of Milwaukee.
Respondent
ATTORNEYSFor the defendants-respondents the cause was submitted
on the briefs of Office of Corporation Counsel, with Louis Edward
Elder, of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED December
19, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2294-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
TONY
A. HENDERSON, DEPARTMENT
OF
HEALTH AND SOCIAL SERVICES
and
DEPARTMENT OF VETERAN AFFAIRS,
Plaintiffs-Appellants,
v.
MILWAUKEE
COUNTY,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Milwaukee County: MICHAEL GUOLEE, Judge. Reversed.
Before
Wedemeyer, P.J., Fine and Schudson, JJ.
SCHUDSON,
J. Tony A. Henderson appeals from the
trial court final order granting summary judgment to Milwaukee County and
dismissing his complaint. Henderson
argues that the trial court erred in concluding that § 81.15, Stats., immunized Milwaukee County from
liability for injuries allegedly suffered as a result of a fall on a stairway
connecting sidewalks located on the grounds of the Milwaukee County House of
Correction. Henderson is correct. Because § 81.15 does not apply to
stairway and because material factual issues remain for trial, we reverse.
Henderson
brought an action alleging that on the afternoon of February 16, 1993, while he
was an inmate at the Milwaukee County House of Correction, he broke his ankle
when he “slipped and fell on an accumulation of ice on the concrete steps which
are located between the H Dorm and the Recreation Center” on the House of
Correction grounds. He presented claims
under theories of both common law negligence and the safe-place statute,
§ 101.11(1), Stats.
According
to the summary judgment submissions, as Henderson and other inmates were
walking from a dormitory to the recreation center, Henderson slipped while he
was going down a flight of eight concrete steps connecting two sidewalks. He attempted to regain his balance, slipped
again and broke his ankle. Henderson
alleged that drainage problems had caused the accumulation of ice and that
there were no handrails on the stairway.
Granting
Milwaukee County's motion for summary judgment, the trial court concluded that
the County was immunized from liability under § 81.15, Stats., which provides, “No action may
be maintained to recover damages for injuries sustained by reason of an
accumulation of snow or ice upon any bridge or highway, unless the accumulation
existed for three weeks.” The parties
acknowledge that case law has extended the meaning of “highways” in § 81.15, Stats., to include sidewalks. See Damaschke v. City of Racine,
150 Wis.2d 279, 283, 441 N.W.2d 332, 334 (Ct. App. 1989). The question remains, however, whether the
statute also includes stairways connecting sidewalks. The trial court concluded that “there is no question that a
sidewalk was involved here, no question that the steps were a part of that
sidewalk.”
“In
reviewing a grant of summary judgment, this court applies the same standards as
the trial court. A motion for summary
judgment should be granted if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.” Thompson v. Threshermen's Mut. Ins.
Co., 172 Wis.2d 275, 280, 493 N.W.2d 734, 736 (Ct. App. 1992). “[S]ummary judgment is not appropriate,”
however, “if there is a material issue of fact or if different inferences may
be drawn from the facts.” Kohl v.
F.J.A. Christiansen Roofing Co., 95 Wis.2d 27, 32, 289 N.W.2d 329, 332
(Ct. App. 1980). Whether the County is
entitled to immunity pursuant to § 81.15, Stats.,
under the summary judgment submissions in this case presents a question of law
subject to our de novo review. See
Damaschke, 150 Wis.2d at 283, 441 N.W.2d at 334.
The
express language of § 81.15, Stats.,
immunizes the County from liability that otherwise might result from the
accumulation of ice on “bridges” or “highways” and, as we have noted, case law
has allowed “highways” to encompass sidewalks. None of the cases, however, considered whether “highways”
could also include stairways connecting sidewalks.[1] Henderson argues that common sense dictates
a distinction between sidewalks and stairways.
He invokes Wis. Adm. Code
§ ILHR 51.161.,[2]
establishing safety standards for stairways that are connected to
buildings. Referring to these
standards, Henderson contends that “[t]he dissimilarity between sidewalks and
stairways is evidenced by the creation of administrative standards such as
those promulgated by the Department of Industry, Labor and Human Relations ...
which regulate the necessity for handrails on stairs over three risers high.”
Without
reaching any conclusion regarding whether the specific safety standards for
stairways that are “an integral part” of a building should apply to stairways
connecting sidewalks, we do agree that common sense dictates a distinction
between sidewalks and stairways.[3] The distinction is obvious to any person who
has ever stumbled, slipped or tripped going up or down a stairway. Case law has not extended § 81.15, Stats., to stairways, and Milwaukee
County has offered no authority to suggest why we should do so. A rose is a rose, but an eight-step stairway
is not a sidewalk.
The
County also argues that the safe-place statute is inapplicable to the House of
Correction because a correctional facility is not a place of employment “in the
traditional sense,” and because it is not open to the public.[4] The County is wrong. Section 101.11(1) Stats., provides:
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.
In Lealiou v. Quatsoe, 15 Wis.2d 128, 131-132,
112 N.W.2d 193, 195 (1961), the supreme court commented:
In construing the
safe-place statute, at least two fundamental different approaches have been
taken. The owner's duty to maintain the
building safe has been said not to exist because either the building, as a
whole or that part of the building where the accident happened, was not a
public building or maintained as a public building.... An example of this approach is Flynn v.
Chippewa County (1944), 244 Wis. 455, 12 N.W.2d 683.... In that case, recovery was denied a prisoner
in a jail who was injured when he fell down a stairway in that part of the jail
which was not open to the public or maintained for general use by the
prisoners. The court said the jail was
not a public building. This language is
misleading. The court assumed the duty
of the owner to repair or maintain was coextensive with the physical limits of
a public building. Because this result
was not intended by the legislature, the court confined the term “public
building” to only those parts of the jail which were maintained for use by the
public. This method of reasoning
localizes the owner's duty to repair in terms of a definition of a public
building applied only to part of a structure and, consequently, requires that
part of the building to be either used by the public.... This reasoning entirely overlooks the
owner's duty to construct the entire building free from structural defects as
render the building unsafe.
Although somewhat elliptical, the supreme court's
comments support Henderson's contention that the safe-place statute applies to
a stairway on the grounds of the House of Correction. The County has offered no authority to suggest why the House of
Correction would be excluded from the reach of the safe-place statute, and we
can discern no legal or logical basis for doing so.
Under
the safe-place statute, “whether the place is reasonably safe is dependent upon
the facts and circumstances of the particular case.” McGuire v. Stein's Gift & Garden Ctr., 178
Wis.2d 379, 398, 504 N.W.2d 385, 393 (Ct. App. 1993). This presents a question of fact for the jury in all but the
exceptional case. Id. Henderson contends that under the
circumstances in this case factual issues remain regarding whether the County
acted negligently in not maintaining proper drainage to keep the stairway clear
of ice, and in not placing hand rails on this eight-step stairway. Thus, whether the County failed to provide a
safe stairway at the House of Correction, and whether any such failure caused
injury to Henderson will depend on the facts and circumstances developed at
trial. Clearly, material factual issues
remain.[5]
By
the Court.—Order reversed.
[1] Damaschke
v. City of Racine, 150 Wis.2d 279, 441 N.W.2d 332 (Ct. App. 1989),
dealt with a slip and fall on a driveway apron. Webster v. Klug & Smith, 81 Wis.2d 334, 260
N.W.2d 686 (1978), dealt with a slip and fall on a temporary sidewalk in a
construction area adjacent to a building.
Smith v. City of Jefferson, 8 Wis.2d 378, 99 N.W.2d 119
(1959), involved injuries suffered by a child who was burned when her dress was
ignited by kerosene flarepots being used to mark a sidewalk defect. Trobaugh v. City of Milwaukee,
265 Wis. 475, 61 N.W.2d 866 (1953), involved a slip and fall on a city
sidewalk.
[2] Wis. Adm. Code § ILHR 51.161 provides:
Handrails. (1) WHERE REQUIRED. Handrails shall be provided in all of the
following conditions unless otherwise specified in the occupancy chapters of
this code.
....
(e) On both sides
of exterior stairways with more than 3 risers and on both sides of exterior
ramps overcoming a change of elevation of more than 24 inches, either of which
are an integral part of the building.
[3] Henderson
acknowledges that the stairway involved in this case was not “an integral part
of [a] building” and, therefore, this regulation does not specifically
apply. By the same token, our decision
should not be interpreted as one imposing this regulatory requirement beyond
its specified parameters. We do agree,
however, that this regulation is instructive in supporting Henderson's
argument.
[4] We note,
however, that the County's answer to Henderson's original complaint admitted
that the County “was an employer and owner of a public building as defined by
Chapter 101 of the Wisconsin Statutes, and as such, it was the duty [of the
County] to keep the place of employment and public building where Plaintiff
fell safe for inmates, guests and/or frequenters ... and to use such methods
and procedures to render such place of employment safe, and to do everything
reasonably necessary to protect the health, safety, and welfare of inmates,
guests and/or frequenters of such place of employment and public building
pursuant to the provisions of Chapter 101 of the Wisconsin Statutes.” Henderson subsequently filed an amended complaint,
simply adding the Department of Veteran Affairs as a subrogated party. The appellate record, however, does not
reflect that the County ever filed an amended answer.