Moore v. City of Milwaukee , 1954 Wisc. LEXIS 285 ( 1954 )

Gehl, J.

The actions were tried upon the theory that there had been a violation of the safe-place statute, sec. 101.06, Stats., which provides that,

“. . . Every . . . owner of a . . . public building now or hereafter constructed shall so construct, repair, or maintain such . . . public building, ... as to render the same safe.”

Two contentions are made by the city, (1) that the platform may not be considered a part of the public building, and (2) that the city is not a proper party defendant.

Sec. 101.01(12), Stats., defines a public building as "any structure used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public, or by three or more tenants.” We have held consistently that a sidewalk area leading to a public building, although used by the public for access to and from the building, is not a structure within the meaning of the statute. Lawver v. Joint District, 232 Wis. 608, 288 N. W. 192; Banks v. St. James Congregation, 255 Wis. 108, 37 N. W. (2d) 842; Baldwin v. St. Peter’s Congregation, 264 Wis. 626, 60 N. W. (2d) 349; Mistele v. Board of Education, ante, p. 28, 64 N. W. (2d) 428.

Plaintiffs Exhibit No. 1

Plaintiffs’ Exhibit 1, which accompanies this opinion, is a photograph showing the west exit from the booth and the platform in question. It will be observed that the platform was really no more than a pathway from the public sidewalk to the door, and that although at its south end it was at an elevation slightly higher than the sidewalk (the testimony indicates that the difference was two or three inches) it was in reality only an extension of the public sidewalk providing access to the sidewalk from the booth. It was employed by those leaving the booth just as is a sidewalk of permanent construction designed to provide convenient access from any building to a public sidewalk. A sidewalk does not necessarily consist of a walk made of concrete; it may be any place set apart at the side of a public walk for the use of pedestrians.

It is sought to distinguish the instant case from those cited by denominating the platform as a step instead of a sidewalk, and suggested that we hold that a step or steps immediately adjacent to but outside the building line is a part of a public building. The platform was flush with the threshhold of the door of the booth. It was not necessary to descend to reach it, nor was it necessary to step down until the public sidewalk was reached, and then only a matter of two or three inches.

Assume, however, without conceding, that it might be considered that the platform was a step instead of a sidewalk. The duty of the owner under the statute is to construct and maintain a public building as to render the same safe. Certainly the platform was a structure, but so were the flagstaff and the sidewalks involved in the cases which we have cited, and in each of which recovery was denied. They were not, nor was the platform in the instant case, a building or a part of one; they were not structures within the meaning of the statute.

Plaintiffs rely upon Zeininger v. Preble, 173 Wis. 243, 180 N. W. 844; Holcomb v. Szymczyk, 186 Wis. 99, 202 N. W. 188; and Kesar v. Northern States Power Co. 246 Wis. 19, 16 N. W. (2d) 364. We said in Hanlon v. St. Francis Seminary, 264 Wis. 603, 608, 60 N. W. (2d) 381, with specific reference to those cases:

“In each of them there was involved a rear porch or platform and steps, all integral parts of the building and intended for use and used by three or more common tenants. These cases are distinguishable upon the facts and are not controlling here.”

Certainly it cannot be said that the platform here involved, unattached to the booth, was an integral part of the building.

We find no authority in the statutes or in the precedents for requiring or permitting us to hold that a step or steps, immediately adjacent to but outside the building, is a part of a building. To so hold would be an arbitrary determination, judicial legislation. The statutes do not impose upon the owner any duty to maintain the premises adjacent to his building so as to render the same safe.

“While it was held in Sadowski v. Thomas Furnace Co. (1914), 157 Wis. 443, 146 N. W. 770, that the legislative language, where open to construction, should be read liberally in favor of the purpose of the statute, this court has on numerous occasions held that the safe-place statutes are not to be extended so as to impose any duty beyond that imposed by the common law unless such statute clearly and beyond any reasonable doubt expresses such purpose by language that is clear, unambiguous, and peremptory.” Delaney v. Supreme Investment Co. 251 Wis. 374, 380, 29 N. W. (2d) 754.

It might be considered desirable to extend the duty of the owner of a public building so as to require him to maintain and render safe the area surrounding his building. We consider ourselves bound, however, by the plain language of the statute and by what we have held, and if there is to be an extension or broadening of the responsibility that is a matter for the legislature.

Having determined that no violation of the safe-place statute was established, there is no occasion for considering the city’s second contention.

By the Court. — Judgments reversed, with directions to dismiss the complaint.