Opinion
October 31, 1967. —
December 22, 1967.
APPEALS from an order of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the plaintiffs-appellants there was a brief by Frank M. Coyne, and oral argument by Robert C. Evans, both of Madison.
For the defendants-appellants there were briefs by Charles Cape of Milwaukee and Joseph J. Muratore of Racine, and oral argument by Mr. Muratore.
For the defendant-respondent there was a brief by Foley, Capwell Foley of Racine, and oral argument by Rex Capwell.
The action is for damages for personal injuries sustained as a result of a motorbike-automobile collision on a private road provided and maintained by the defendant-respondent, Carthage College. The order appealed from sustained demurrers to the complaint of the plaintiffs-appellants, Larry Stamberger and his father, and to the cross complaint of defendants-appellants, Gayle Kruescher Matthaidess, her father, and their insurance carrier as against Carthage College. The demurrers of Carthage College were upon the ground that the complaint and the cross complaint failed to state a cause of action.
Carthage College is a private nonprofit educational institution located at Kenosha, Wisconsin. The college provides and maintains a private roadway system on its campus which is used by students and others. The principal street, Entrance road, is a blacktop roadway providing access from a public highway. This road runs north and south and traffic is permitted to travel in both directions.
The plaintiff, Larry Stamberger, and the defendant, Gayle Kruescher (she has since been married and her name is now Matthaidess) were both students of the college on the day of the accident, October 7, 1963.
On the day in question and prior to the time of the accident, several cars were parked on the east side of Entrance road. Most of the cars, if not all, except the car driven by Gayle Kruescher, were parked on the east side facing north which, of course, is right-hand parking. Gayle Kruescher's vehicle was parked on the east side facing south. She was parking on her left-hand side of the roadway.
At about 1:30 in the afternoon the plaintiff, Stamberger, was operating his motorbike in a northerly direction on his right-hand side of the roadway. The Kruescher vehicle emerged from the line of parked cars to proceed in a southerly direction. A head-on collision occurred and Stamberger was seriously injured.
The plaintiffs' complaint alleged Gayle Kruescher was negligent in several respects. Both the plaintiffs' complaint and the cross complaint of the Krueschers and their insurance carrier allege that Carthage was negligent as follows:
"(15) Alleges that under common law it was the duty of Carthage College to do all such things as are necessary, in the exercise of ordinary care, to protect lawful users of the roadways on its campus from unnecessary harm and injury while lawfully using the same; that the accident and resultant injuries to this plaintiff as aforedescribed were caused in part by negligence on the part of Carthage College through its officers and officials as follows:
"a. In maintaining and operating a roadway system upon its campus without providing regulations governing the use of said roadways and the parking of said vehicles on said roadways, specifically in failing to promulgate and post parking restrictions prohibiting parking on the easterly side of Entrance Roadway by automobiles facing in a southerly direction.
"b. In, with knowledge of such practice, permitting vehicles facing southerly to park on the easterly side of Entrance Roadway in the face of normal oncoming traffic."
The plaintiffs' complaint was subsequently amended to include this additional allegation:
"(c) That the aforedescribed practice of permitting vehicles to park facing southerly on the easterly side of Entrance Roadway constituted a hazard to users of said roadway; that the existence of said practice was not known to plaintiff Larry Stamberger prior to the accident in question nor was it a condition that was open and apparent to him."
The trial court sustained the demurrers to the complaint and cross complaint and ordered the action dismissed as to Carthage College but with leave to plead over.
The plaintiffs, and the defendants Krueschers and their insurance carrier, appeal.
The issue is: Are the allegations of the complaints sufficient to state a cause of action for negligent breach of a duty by the defendant, Carthage College?
It is conceded, as it must be, that the legal relationship of Carthage College and the plaintiff, Larry Stamberger, and the defendant, Gayle Kruescher, was that of invitor-invitee. The duty owed to an invitee by an invitor has been stated to be as follows:
"`A possessor of land is subject to liability to others who are privileged to enter it for a public or private purpose, irrespective of his consent, for bodily harm there caused to them by his failure, after he knows or from facts within his knowledge should know of their presence on the land, to conduct his activities thereon with reasonable care for their safety.'
". . .
"`"The obligation of those who collect numbers of people in one place, for gain and profit, to be vigilant in their efforts to protect such people, has long been recognized." Platt v. Erie County Agricultural Society, 164 App. Div. 99, 149 N.Y.S. 520, 523; Tantillo v. Goldstein Brothers Amusement Co. 248 N.Y. 286, 290, 162 N.E. 82. . . .
"`When one assembles a crowd or a large number of people upon his property for purposes of financial gain to himself he assumes the responsibility of "using all reasonable care to protect the individuals from injury from causes reasonably to be anticipated." In the exercise of this duty it is incumbent upon him to furnish a sufficient number of guards or attendants and to take other necessary precautions to control the actions of the crowd; and whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine under all the circumstances. Reschke v. Syracuse, Lake Shore N. R. Co. 155 App. Div. 48, 139 N YS. 555, affirmed 211 N.Y. 602, 105 N.E. 1097; Platt v. Erie County Agricultural Society, 164 App. Div. 99, 103, 149 N.Y.S. 520.' Schubart v. Hotel Astor, Inc., 168 Misc. 431, 5 N.Y.Supp.2d 203, affirmed in 255 App. Div. 1012, 22 N.E.2d 167. See also Fortier v. Hibernian Bldg. Asso. 315 Mass. 446, 53 N.E.2d 110." Pfeifer v. Standard Gateway Theater, Inc. (1951), 259 Wis. 333, 335, 336, 48 N.W.2d 505. (Emphasis supplied.)
"This court has long held that a landowner is liable for injuries to an invitee caused by reason of the unsafe condition of the premises known to the owner and which he negligently suffers to exist and of which the injured invitee has no notice or knowledge." Schlicht v. Thesing (1964), 25 Wis.2d 436, 440, 130 N.W.2d 763.
". . . where the owner of land invites another expressly or by implication to come upon his land, as by passing over a private way thereon, . . . He owes to such other the positive duty to use ordinary care to maintain such way in a reasonably safe condition for such use by persons in the exercise of ordinary care." Gorr v. Mittlestaedt (1897), 96 Wis. 296, 298, 71 N.W. 656.
" Business Premises Open to Public: Acts of Third Persons or Animals
"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
"(a) discover that such acts are being done or are likely to be done, or
"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." Restatement, 2 Torts 2d, pp. 223, 224, sec. 344.
From these citations it is apparent that the invitor, while not an insurer, does owe a duty of ordinary care to an invitee not only as to the physical condition of the premises but also as to the known hazardous conduct of other persons upon the premises.
The complaint against Carthage College, reduced to its simplest terms and giving it the liberal construction it is entitled to upon a challenge by demurrer, alleges that the college provided a road for vehicular traffic; that it permitted two-way traffic; that it knowingly permitted left-hand parking; that left-hand parking constituted a hazard to users of the highway; that it did not promulgate regulations nor post parking restrictions against left-hand parking; and that the plaintiff was injured when Gayle Kruescher negligently started from her left-hand parking position.
It is undisputed that Entrance road is a private road. Consequently, the Wisconsin Motor Vehicle Code does not apply. Patterson v. Edgerton Sand Gravel Co. (1938), 227 Wis. 11, 18, 277 N.W. 636. It is therefore incumbent upon the court to apply the common law without regard to the present statute (sec. 346.54(1)(a)) prohibiting left-hand parking on two-way streets.
Sec. 346.55(3), Stats., does not require the owners or occupants of private property to regulate parking but such owner or occupant has statutory authority to prohibit or regulate such parking if he so desires.
Before the enactment of sec. 346.54(1)(a), Stats., this court held that it was not negligent for one to park on the left side of a public highway:
"It was claimed by the defendant during the trial and especially during the argument to the jury that the deceased was negligent because he stopped on the left-hand side of the road or because he did not go into a private driveway to examine or make repairs on his engine. Neither claim has any basis in law. A traveler has the right to make reasonable use of the highway for the examination or repairs of his car while traveling, and he is not confined to the right-hand side of the road. He may use the left-hand side if he does not thereby unreasonably interfere with others. Smoak v. Martin, 108 S.C. 472, 94 S.E. 869." Schacht v. Quick (1922), 178 Wis. 330, 332, 190 N.W. 87.
Consequently, unless the allowance of parking on the left under the circumstances presented a hazardous condition to invitees, the pleadings are insufficient to allege a breach of duty of ordinary care by failure to prohibit the left-hand parking.
The complaint and cross complaint allege that the college was negligent in failing to prohibit left-hand parking. If the existence of a car parked "the wrong way" is hazardous, it would be a hazardous condition of the premises. However, as a matter of law, the mere presence of a car parked "the wrong way" is no more hazardous than the existence or presence of a car parked "the right way."
"The mere circumstance of parking on his left side, because of which the truck faced southward on the east half of the roadway instead of facing northward, as it would have if Teske had parked it there while driving in that direction, cannot in and of itself be considered a cause of the collision." Guderyon v. Wisconsin Telephone Co. (1942), 240 Wis. 215, 225, 2 N.W.2d 242.
We conclude, therefore, that neither the complaint nor the cross complaint state a cause of action against Carthage College upon the ground of permitting an unsafe or hazardous condition of the premises.
Appellants cite several cases involving parking on private premises where the proprietor was held negligent. The cases cited are not analogous. In Holdshoe v. Whinery (1966), 8 Ohio App.2d 305, 222 N.E.2d 435, a private owner of a picnic ground who provided a parking space on an incline and took no precaution against the force of gravity was held liable when one car rolled down the incline and struck a picnicking customer. Kolb v. George (1966), 17 N.Y.2d 837, 218 N.E.2d 319, affirming 24 App. Div. 2d 703, 261 N.Y. Supp. 2d 1001, presented a similar fact situation. The owner of a parking lot was held negligent in allowing the parking of cars on an 11 to 12 percent slope. The owner was liable for injuries to a person when a car rolled down the slope after a child had released the emergency brake. Marquardt v. Cernocky (1958), 18 Ill. App.2d 135, 151 N.E.2d 109, 67 A.L.R. 2d 956, involved an accident of the same nature. There the plaintiff was seriously injured when struck by an automobile which had rolled down a steep incline on which it had been parked at defendant Cernocky's picnic grounds after an infant had set it in motion. In Gresser v. Taylor (1967), 276 Minn. 2d 440, 150 N.W.2d 869, an auto also parked on an incline started rolling and injured a person.
In these cases the conditions under which the cars were parked were hazardous because the parking facility itself was inherently dangerous. As has been shown, merely because a car is parked facing one way rather than the other does not constitute an inherently dangerous situation.
By virtue of the authority of Pfeifer v. Standard Gateway Theater, Inc., supra, and rule of Restatement, 2 Torts 2d, pp. 223, 224, sec. 344, supra, an invitor has the additional duty to protect invitees from physical harm caused by negligent or intentional acts of third persons. To legally comply with that duty the invitor must exercise reasonable or ordinary care to "(a) discover that such acts are being done or are likely to be done," or "(b) give a warning adequate to enable the visitors [here invitee] to avoid the harm, or otherwise to protect them against it."
As stated above, the mere presence of a parked car on the left side of the road on private premises did not constitute a hazardous condition of the premises. From the allegations of the complaint, we assume it was the negligence of Gayle Kruescher in moving her vehicle from its parked position into the traveled portion of the roadway so as to confront and collide with the plaintiff that caused the collision and the resulting damage and injury. In order to state a valid cause of action against Carthage College resulting from the assumed negligence of Gayle Kruescher, the complaint and cross complaint would have to allege facts from which it could be concluded that this type of negligence was occurring or was likely to occur; that Carthage failed to use ordinary care to discover that drivers were negligently subjecting others to an unreasonable risk of harm or were likely to do so; and that Carthage, knowing of these dangerous acts by others, failed to exercise ordinary care to warn the plaintiff of the danger or to take other steps to protect him from it.
Neither the complaint nor the cross complaint state facts which constitute a violation of the duty Carthage owed to the plaintiff as an invitee in the maintenance of its private driveway and, therefore, do not state facts sufficient to constitute a cause of action.
The trial court correctly sustained the demurrers to the complaint and cross complaint.
By the Court. — Order affirmed, with leave to plead over pursuant to the order within twenty days after remittitur.