(b) Public Building

The safe-place coverage of "public building" does not include the premises on which the building is situated, nor appurtenances to the building [64] excepting those which are expressly included in the definition of "public building" ("exterior parts of such building, such as a porch, exterior platform or steps providing means of ingress or egress"), [65] and which are an integral part of the buildings. [66] Therefore, the general exterior of a public building is not considered part of the building, [67] nor is a public or private sidewalk leading to the building, [68] nor an adjacent retaining wall. [69] Fixtures are considered to be structurally part of a public building, [70] as also are outside balconies. [71]

The "public building" statute by its terms covers not only buildings where the public gathers, but also buildings used "by 3 or more tenants", [72] "It was the purpose of the legislature to secure the safety of buildings where the public gathered or to which persons resorted in numbers." [73] [Emphasis added] "To this end, and to this end only, was included within the term 'public building' any structure used by three or more tenants. [74] The term "tenants" in this statute has been construed broadly to mean persons in possession, rather than strictly according to the common-law definition of tenancy. [75] Thus an owner in possession is regarded as a tenant. [76] A "rooming house" is regarded as a public building under safe-place law. [77] There is judicial indication that temporary vacancy has no bearing on the question of whether a building is used by three or more tenants. [78] It is believed that children placed by child welfare agencies in a foster home are not tenants. [79] Where a building is used by less than three tenants but also contains stores, it is classified as a public building. [80]

In addition to the usual public building and apartment house, the following have qualified as "public building": a hotel, [81] a baseball stadium, [82] a warehouse, [83] a theater, [84] a tavern, [85] a jail, [86] a public school, [87] a church, [88] and a hospital. [89]

The fact that the building was erected prior to the enactment of the safe-place statute does not remove such building from the purview of safe-place law. [90]

Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W.

45. Wis. Stat. Sec. 101.01(2)(h), Stats. As to mere use of something by three or more tenants not constituting same a "public building" see Hoepner v. Eau Claire, 264 Wis. 608 (1953). Concluding sentence of "public building" definition states: "When used in relation to building codes, 'public building' does not include a previously constructed building used as a community-based residential facility as defined in s. 50.01(l) which serves 20 or fewer unrelated residents."

46. Ball v. Madison, 1 Wis. 2d 62, 65 (1957). But see Bent v. Jonet, 213 Wis. 635 (1934), regarding statutory definition of public building, [639], "The words of the statute are very broad." See also Bewley v. Kipp, 202 Wis. 411 (1930), which stated [413]: "The language used in this statute is very broad", but then refused to make literal interpretation thereof.

47. Hoepner v. Eau Claire, 264 Wis. 608, 612 (1953): "[Italics by court] The word 'structure' is the key word in such definition of public building as applied to the fact situation here confronting us. Our safe-place statute was enacted by the legislature in 1913. Ch. 588, Laws of 1913, which so enacted it, repealed sec. 1636-81, Stats., which had been in force and effect since 1901. Sec. 1636-81 provided in part as follows: 'A person employing or directing another to perform labor of any kind in the erection, repairing, altering, or painting of a house, building, or structure shall not furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, or other mechanical contrivances, which are unsafe, unsuitable, or improper, and which are not so constructed, placed, and operated as to give proper protection, to the life and limb of a person so employed or engaged.' ..." In the case of Kosidowski v. Milwaukee, (1913), 152 Wis. 223, 193 N.W. 187, this court construed the word 'structure' contained in sec. 1636-81, Stats., as embracing a water main. The court pointed out that this statute had originated in New York, and cited with approval from the opinion of the New York Court of Appeals in Caddy v. Interborough Rapid Transit Co., (1909), 195 N.Y. 415, 420, 88 N.E. 747, 749, wherein the New York Court declared:

"'... We incline to view that the rule of ejusdem generis does not apply [to restrict the word "structure" by reference to the word "building"] ... the word "structure" in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner, ...'

"When our legislature enacted the safe-place statute in 1913, it was made very much broader in scope than former sec. 1636-81 in protecting the rights of employees by reason of the use of the phrase 'place of employment' and by elimination'of any reference to a building or structure. Such part of the statute was also made applicable to frequenters as well as employees. An additional provision in the safe-place statute made the same applicable to a 'public building' and we think the choice of the legislature of the word 'building' is particularly significant. While a public building is defined 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,' it must be kept in mind that the term 'structure' was employed in defining the words 'public building'.

"In view of this, we do not consider the definitions of the word 'structure' contained in decisions, such as Kosidowski v. Milwaukee, supra, and Caddy v. Interborough Rapid Transit Co., supra, and decisions of other jurisdictions, wherein structure is defined without reference to a building, are applicable in determining what structures are embraced within the term 'public building' as used in our safe-place statute."

48. Ball v. Madison, 1 Wis. 2d 62, 66 (1957); Rogers v. Oconomowoc, 24 Wis. 2d 308 (1964).

49. Cegelski v. Green Bay, 231 Wis. 89, 92 (1939), involving a slide which followed the natural slope of a hill where the only constructed part was a railing erected to guide the direction of travel; Ball v. Madison, 1 Wis. 2d 62 (1957), involving the wooden platform from which slide was commenced. For another toboggan case see Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616 (1961).

50. Lawver v. Joint District, 232 Wis. 608, 612 (1939), although the court reasoned thus: "... We cannot hold that the flagpole is a 'public building' within the safe-place statute. True, the flagpole is a 'structure' within the meaning of sec. 101.01(12), Stats., but the structure there referred to must be used as a place of resort, assemblage, lodging, trade, traffic, occupancy or use by the public, or by three or more tenants." The court here also pointed out that [614], "... Had the flag pole been on the school building and fallen off the building, we would have the case of an unsafe public building."

51. Grinde v. Watertown, 232 Wis. 551 (1939).

52. Hanlon v. St. Francis Seminary, 264 Wis. 603 (1953). See Mullen v. Larson-Morgan Co., 212 Wis. 52 (1933), for retaining wall as place of employment.

53. Hoepner v. Eau Claire, 264 Wis. 608 (1953); Paykel v. Rose, 265 Wis. 471 (1953).

54. Weiss v. Milwaukee, 268 Wis. 377 (1955).

55. Herrick v. Luberts, 230 Wis. 387 (1939).

56. Waldman v. Young Men's Christian Asso., 227 Wis. 43, 47 (1938), although the case was disposed of on the ground that the faulty diving board was a temporary condition unassociated with the building. See Kuhlman v. Vandercook, 241 Wis. 418 (1942), to same effect as to "shuffleboard" court.

57. Lawver v. Joint District, 232 Wis. 608, 612 (1939); Mlynarski v. St. Rita's Cong., 31 Wis. 2d 54 (1966).

58. Harnett v. St. Mary's Congregation, 271 Wis. 603, 614 (1956).

59. Bauhs v. St. James Congregation, 255 Wis. 108, 110 (1949); Baldwin v. St. Peter's Congregation, 264 Wis. 626, 629 (1953); Mistele v. Board of Education, 267 Wis. 28, 29 (1954); Moore v. Milwaukee, 267 Wis. 166, 168 (1954); Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954); Davis v. Lindau, 270 Wis. 218, 220 (1955).

59a. Powell v. Milwaukee Area Technical College, 225 Wis. 2d 794, 594 N.W. 2d 403, 410-411 (Ct. App. 1999).

60. Bent v. Jonet, 213 Wis. 635, 639 (1934). But see Novak v. Delavan, 31 Wis. 2d 200, 209 (1966): "... the school district's use of the facilities was so temporary and sporadic as to require the conclusion, as a matter of law, that its use of the athletic facilities did not carry with it the obligation as an 'owner' to repair or rebuild the bleachers."

61. Bent v. Jonet, 213 Wis. 635 (1934). Other "bleacher" cases are Connor v. Meuer, 232 Wis. 656 (1939) and Holzworth v. State, 238 Wis. 63 (1941); Novak v. Delavan, 31 Wis. 2d 200 (1966).

62. Feirn v. Shorewood Hills, 253 Wis. 418, 421 (1948): In the case at bar, under and in view of the above-stated allegations in the complaint as to the nature and manner of construction and the defendant's intended and actual purposes and uses of the pier and platform as a place of resort, assemblage, occupancy and use by the public, it was clearly a 'structure' and 'public building' under the safe-place statute. But see different swimming arrangement in Rogers v. Oconomowoc, 24 Wis. 2d 308, 314 (1964); see also Copeland v. Larson, 46 Wis. 2d 337 (1970); Gould v. Allstar Ins. Co., 59 Wis. 2d 355 (1973).

63. Flesch v. Lancaster, 264 Wis. 234 (1953).

64. Delaney v. Supreme Investment Company, 251 Wis. 374 381 (1947): "While the building in question was a public building, the duty of the owner of such building under the safe-place statute to maintain the building in a safe condition extends only to such portions as are used or held out to be used by the public or tenants in common.... Thus we have only limited portions of the interior of a building that must be rendered safe by the owner, which is wholly inconsistent with the contention that the entire exterior of the building must be rendered safe as against the public wherever they may be upon a highway."; Lawver v. Joint District, 232 Wis. 608 (1939); Bauhs v. St. James Congregation, 255 Wis. 108, 109 (1949): "... sidewalk in front of and appurtenant to the premises ..."; Baldwin v. St. Peter's Congregation, 264 Wis. 626 (1953); Hanlon v. St. Francis Seminary, 264 Wis. 603 (1953); Moore v. Milwaukee, 267 Wis. 166, 171 (1954): "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."; Cross v. Leuenberger, 267 Wis. 232 (1954); Mistele v. Board of Education, 267 Wis. 28 (1954); Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954); Weiss v. Milwaukee, 268 Wis. 377 (1955); Candell v. Skaar, 3 Wis. 2d 544 (1958). But see Rogers v. Oconomowoc, 16 Wis. 2d 621 (1962), wherein the court indicated that unconnected components of a structure might be considered as part of the public building. In the Rogers case the plaintiff was injured on a sea-wall which was part of bathing beach facilities consisting also of a bathhouse, concession building, a pier attached to sea-wall, a floating pier, lifeguard stands and artificial beaches. Plaintiff alleged that all such things were connected and constituted a single structure. The court said [634]: "The complaint does allege that all the installations mentioned were connected and as so connected constituted an integral physical unit, reasonably described as a public building within the meaning of the statute." [That Rogers v. Oconomowoc, 16 Wis. 2d 621 (1962) did not presage a departure from well-settled law see Rogers v. Oconomowoc, 24 Wis. 2d 308 (1964)]. Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969): "The plaintiffs do not contend that the parking lot falls within the definition of a public building or structure nor, in our opinion, could they successfully do so."

65. Wis. Stat. Sec. 101.01(2)(h). It is not deemed that paraphrase of these words in Hintz v. Zion Evangelical U. B. Church, 13 Wis. 2d 439, 445 (1961): -- "The legislature, in 1957, amended sec. 101.01(12), Stats., so as to declare that exterior porches, approaches, and steps to a public building are parts of the public building" -- has the effect of extending such words.

66. Bradstrom v. Lasker Jewelers, 259 Wis. 366 (1951) (a step from the recessed vestibule between shop windows); Hardware Mut. Cas. Co. v. Rasmussen Drug Co., 261 Wis. 1 (1952) (entranceway); Perry v. Labor Temple Asso., 264 Wis. 36 (1953) (recessed entrance platform); Harnett v. St. Mary's Congregation, 271 Wis. 603, 614 (1956): "'In those cases involving steps in which the owner of a public building was held liable under the safe-place statute, considerable weight has been given to the matter of whether or not such steps were an "integral part" of a concededly public building.'" [This case preceded the amendment to Wis. Stat. Sec. 101.01(2)(h) regarding steps.] Ruplinger v. Theiler, 6 Wis. 2d 493 (1959) (entrance stairs); Hintz v. Zion Evangelical U. B. Church, 13 Wis. 2d 439 (1961). See Moore v. Milwaukee, 267 Wis. 166, 171 (1954) re: platform not being "integral" part of the building. Other "step" cases: Parchem v. St. Cecilia's Congregation, 28 Wis. 2d 227 (1965); Carr v. Amusement, Inc., 47 Wis. 2d 368 (1970); Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429 (1970); Prelipp v. Wausau Memorial Hospital, 50 Wis. 2d 27, 30 (1971): "... the combination of a step and a fall, that and nothing more, does not create a cause of action under the safe-place statute. The court refused to find the use of a step, instead of a ramp or incline, to be an unsafe or unreasonable accommodation to a difference in floor levels..."; Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692 (1972).

67. Delaney v. Supreme Investment Co., 251 Wis. 374, 381 (1947); Candell v. Skaar, 3 Wis. 2d 544, 551 (1958): "It has been considered that the safe-place statute, sec. 101.06, does not require protection of exterior portions of premises from the elements." But see Gupton v. Wauwatosa, 9 Wis. 2d 217, 224c (1960).

68. Lawver v. Joint District, 232 Wis. 608 (1939); Bauhs v. St. James Congregation, 255 Wis. 108 (1949); Baldwin v. St. Peter's Cong., 264 Wis. 626 (1953); Mistele v. Board of Education, 267 Wis. 28, 29 (1954): "It has been held by this court that a sidewalk area outside the building cannot be considered a part of the building"; Weiss v. Milwaukee, 268 Wis. 377, 380 (1955): "It has been consistently held 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 and is not governed by the safe-place statute either as a part of the building or by itself."; Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954) (concourse); Buckley v. Park Building Corp., 31 Wis. 2d 626 (1966).

69. Hanlon v. St. Francis Seminary, 264 Wis. 603 (1953); Rogers v. Oconomowoc, 24 Wis. 2d 308 (1964).

70. Gokey v. Elec. Household Utilities Corp., 241 Wis. 385, 388 (1942): "It is clear that this washing machine, of use in the building only when power was carried to it by a cord plugged into a wall socket, was not a fixture and was not structurally a part of the building so as to come under the statute." See also Spote v. Aliota, 254 Wis. 403 (1949) (bowling alley runway) and Wright v. St. Mary's Hospital, 265 Wis. 502 (1953) (window screen).

71. Gobar v. Val. Blatz Brewing Co., 179 Wis. 256 (1923); Holcomb v. Szymczyk, 186 Wis. 99 (1925); Skrzypczak v. Konieczka, 224Wis. 455 (1937); Frion v. Coren, 13 Wis. 2d 300 (1961).

72. Wis. Stat. Sec. 101.01(2)(h), Stats.

73. Bewley v. Kipp, 202. Wis. 411, 414 (1930).

74. Frion v. Coren, 13 Wis. 2d 300, 303 (1961).

75. Skrzypczak v. Konieczka, 224 Wis. 455, 461 (1937): "It would seem that liability for injury to a lessee should be made to depend on the plan of the building and the purpose for which it was built; and that if dependent on occupancy, occupancy of the building rather than tenancy as the term 'tenancy' is used in the phrase 'landlord and tenant' should control. The word 'tenant' is not limited to the latter sense. The more general use of the word is in the broader sense of one in possession of the premises whether as owner or otherwise."

76. Skrzypczak v. Konieczka, 224 Wis. 455, 461 (1937).

77. Batson v. Nichols, 258 Wis. 356, 358 (1951).

78. Kelenic v. Berndt, 185 Wis. 240, 242 (1924): "If a building is intended to accommodate more than four families, the mere fact that one part of it may be temporarily vacant does not make the rule of the industrial commission inapplicable." See also Gobar v. Val Blatz Brewing Co., 179 Wis. 256 (1923) re: "arranged" for x tenants.

79. 38 A.G. 31 (1949).

80. Gobar v. Val. Blatz Brewing Co., 179 Wis. 256 (1923); Skrzypczak v. Konieczka, 224 Wis. 455 (1937). For safe-place duties in the landlord-tenant situation see Persons Liable, Employer, Extent of Owner of Place of Employment Duty, footnote 85, infra.

81. Erickson v. McKay, 207 Wis. 497 (1932); Burling v. Schroeder Hotel Co., 235 Wis. 403 (1940).

82. Powless v. Milwaukee County, 6 Wis. 2d 78 (1959).

83. Tomlin v. Chicago, M., St. P. & P. R. Co., 220 Wis. 325 (1936). See also Saxhaug v. Forsyth Leather Co., 252 Wis. 376 (1948) regarding warehouse.

84. Heckel v. Standard Gateway Theater, 229 Wis. 80 (1938); Helms v. Fox Badger Theatres Corp., 253 Wis. 113 (1948) (involving restroom); for other restroom cases see Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100 (1931); Zimmers v. St. Sebastian's Cong., 258 Wis. 496 (1951); Heiden v. Milwaukee, 226 Wis. 92 (1937); Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333 (1951); Boutin v. Cardinal Theatre Co., 267 Wis. 199 (1954); Prelipp v. Wausau Memorial Hospital, 50 Wis. 2d 27 (1971). See also Miller v. Welworth Theatres, 272 Wis. 355 (1956).

85. Ryan v. O'Hara, 241 Wis. 389 (1942); Harder v. Maloney, 250 Wis. 233 (1947); Bobrowski v. Henne, 270 Wis. 173 (1955); Candell v. Skaar, 3 Wis. 2d 544 (1958).

86. Lealiou v. Quatsoe, 15 Wis. 2d 128 (1961), where the court overruled holding to the contrary in Flynn v. Chippewa County, 244 Wis. 455 (1944), saying [131]: "The court said the jail was not a public building. This language, is misleading."

87. Heiden v. Milwaukee, 226 Wis. 92, 98 (1937); Lawver v. Joint District, 232 Wis. 608, 612 (1939); Mistele v. Board of Education, 267 Wis. 28 (1954); Powell v. Milwaukee Area Technical College, 225 Wis. 2d 794, 594 N.W. 2d 403, 410 (Ct. App. 1999). (For contrary holding prior to 1931 statutory amendment which added "school districts" to Wis. Stat. Sec. 101.01(13), see Srnka v. Joint District No. 3, 174 Wis. 38, 41 (1921) and Sullivan v. School District, 179 Wis. 502, 508 (1923). Mlynarski v. St. Rita's Cong., 31 Wis. 2d 54, 57 (1966). See also Wis. Stat. Sec. 101.02(15)(a), excepting "rural school buildings" from ILHR Dept. supervision.

88. Wilson v. Evangelical Lutheran Church, 202 Wis. 111 (1930); Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209 (1935); Zimmers v. St. Sebastian Cong., 258 Wis. 496 (1951); Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954); Harnett v. St. Niary's Congregation, 271 Wis. 603 (1956); Hintz v. Zion Evang. U. B. Church, 13 Wis. 2d 439 (1961).

89. Wright v. St. Mary's Hospital, '265 Wis. 502 (1953); Grabinski v. St. Francis Hospital, 266 Wis. 339 (1954); Watry v. Carmelite Sisters, 274 Wis. 415 (1957); Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969). 1

90. Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 387 (1948): "It cannot be said that the statute does not apply to buildings which were already erected when it was adopted." See also sec. 101.11, Stats.: public building now or hereafter constructed ... But see Parchem v. St. Cecilia's Congregation, 28 Wis. 2d 227, 231 (1965): "No provision applicable to this stairway required any handrails except along the sides. The building code, 3 Wis. Adm. Code, secs. Ind. 50.001-59.75, does not apply to this stairway because the church was built, and the stairway put into its present form, before October 9, 1914."