Wis. Stat. § 101.11
Wis. Stat. § 101.11
Ordinary negligence can be compared with negligence founded upon the safe place statute. In making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 173 N.W.2d 196 (1970). When an apartment complex was managed for a fee by a management company, the company was carrying on a business there. Reduction of rent to one of the tenants for caretaking services constituted employment on the premises. A tenant who fell on the icy parking lot after the caretaker knew of the condition need only prove negligence in maintaining the premises. Wittka v. Hartnell, 46 Wis. 2d 374, 175 N.W.2d 248 (1970). A public sidewalk is not made a place of employment merely because an employer constructed it and kept it free of ice and snow. Petroski v. Eaton Yale & Towne, Inc., 47 Wis. 2d 617, 178 N.W.2d 53 (1970). The fact that a violation of the safe place statute is found puts the burden on the owner to rebut the presumption of causation but does not establish as a matter of law that the defendant's negligence was greater than the plaintiff's. Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 180 N.W.2d 562 (1970). A store must be held to have had constructive notice of a dangerous condition when it displayed shaving cream in spray cans on a counter and a 70-year old woman fell in cream sprayed on the white floor. Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 180 N.W.2d 525 (1970). The mere existence of a step up into a hospital lavatory was not an unsafe condition. Prelipp v. Wausau Memorial Hospital, 50 Wis. 2d 27, 183 N.W.2d 24 (1971). Failure to light a parking lot can support a safe place action, but the evidence must show how long the light was burned out to constitute constructive notice. Low v. Siewert, 54 Wis. 2d 251, 195 N.W.2d 451 (1972). A parking lot owned by a city that is a continuation of a store parking lot used by the public for attending the city zoo and the store, even though maintained by the private property owner, is not a place of employment. Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692, 196 N.W.2d 633 (1972). Detailed construction specifications and the presence of engineers to insure compliance does not manifest control over the project so as to make the commission liable. Berger v. Metropolitan Sewerage Commission of Milwaukee, 56 Wis. 2d 741, 203 N.W.2d 87 (1973). In a safe place action the employee's contributory negligence is less when his or her act or omission has been committed in the performance of job duties. McCrossen v. Nekoosa-Edwards Paper Co., 59 Wis. 2d 245, 208 N.W.2d 148 (1973). A pier at a beach open to the public for a fee constitutes a place of employment. Any distinction between licensees and invitees is irrelevant, and the statute imposes a higher duty as to safety than the common law. Gould v. Allstar Insurance Co., 59 Wis. 2d 355, 208 N.W.2d 388 (1973). A private road on the ground of a private racetrack that connected the track and a parking lot was subject to this section as to frequenters. Gross v. Denow, 61 Wis. 2d 40, 212 N.W.2d 2 (1973). A one-eighth-inch variance in elevation between the sides of a ramp joint was too slight, as a matter of law, to constitute a violation of the safe place statute. Balas v. St. Sebastian's Congregation, 66 Wis. 2d 421, 225 N.W.2d 428 (1975). An employer may be held liable under the safe place statute not only for failing to construct or maintain safety structures such as fences, but also for knowingly permitting employees or frequenters to venture into a dangerous area. Kaiser v. Cook, 67 Wis. 2d 460, 227 N.W.2d 50 (1975). The safe place statute applies only to unsafe physical conditions, not to activities conducted on a premises. Korenak v. Curative Workshop Adult Rehabilitation Center, 71 Wis. 2d 77, 237 N.W.2d 43 (1976). The duty to furnish a safe place of employment to employees does not impose a duty on a contractor for subcontractor's employees. A contractor can owe a duty to a frequenter, but only when a hazardous condition is under the supervision or control of the contractor. Barth v. Downey Co., Inc., 71 Wis. 2d 775, 239 N.W.2d 92 (1976). Retention of control and supervision is required for recovery against a general contractor by a subcontractor's employee. Lemacher v. Circle Construction Co., Inc., 72 Wis. 2d 245, 240 N.W.2d 179 (1976). The length of time a safe place defect must exist, in order to impose constructive notice of it on an owner, varies according to the nature of the business, the nature of the defect, and the public policy involved. May v. Skelley Oil Co., 83 Wis. 2d 30, 264 N.W.2d 574 (1978). In safe place cases, comparative negligence instructions need not direct the jury to consider the defendant's higher duty of care. Brons v. Bischoff, 89 Wis. 2d 80, 277 N.W.2d 854 (1979). Indemnity in a safe place action creates an effect identical to that of contribution. Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 278 N.W.2d 827 (1979). A non-negligent indemnitor was liable to an indemnitee whose breach of a safe place duty was solely responsible for damages under the circumstances of the case. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 284 N.W.2d 692 (Ct. App. 1979). Affirmed. 100 Wis. 2d 120, 301 N.W.2d 201 (1981). Architects have liability under the safe place statute only if they have a right of supervision and control, which must be determined from the agreement between the owner and the architect. If the duty exists, it is nondelagable. Hortman v. Becker Construction Co., Inc., 92 Wis. 2d 210, 284 N.W.2d 621 (1979). Evidence of a prior accident was admissible to prove notice of an unsafe condition. Callan v. Peters Construction Co., 94 Wis. 2d 225, 288 N.W.2d 146 (Ct. App. 1979). "Safe employment" and "safe place of employment" are distinguished. There is a duty to provide safe employment to employees that does not extend to frequenters, while the duty to provide a safe place of employment does extend to frequenters. Leitner v. Milwaukee County, 94 Wis. 2d 186, 287 N.W.2d 803 (1980). That a lease allocates safe place duties between an owner and an employer/tenant does not nullify mutually shared statutory duties. Hannebaum v. Dirienzo & Bomier, 162 Wis. 2d 488, 469 N.W.2d 900 (Ct. App. 1991). The safe place duty to keep a swimming pool in a condition to protect customers from injury was overcome when a person unreasonably dove into a pool of unknown depth. Wisnicky v. Fox Hills Inn, 163 Wis. 2d 1023, 473 N.W.2d 523 (Ct. App. 1991). A county house of correction is subject to the safe place statute. Henderson v. Milwaukee County, 198 Wis. 2d 748, 543 N.W.2d 544 (Ct. App. 1995). An alarm system does not relate to the structure of a building and therefore does not relate to a safe place of employment. It is a safety device that is the responsibility of the employer and not the building owner. Naaj v. Aetna Insurance Co., 218 Wis. 2d 121, 579 N.W.2d 815 (Ct. App. 1998), 96-3640. The obligation of a lessor of a building is limited to structural or physical defects. A temporary condition maintained by the lessee does not impose safe place liability on the lessor. Powell v. Milwaukee Area Technical College District Board, 225 Wis. 2d 794, 594 N.W.2d 403 (Ct. App. 1999), 97-3040. A defect is "structural" if it resulted from materials used in its construction or from improper layout or construction. Conditions associated with the "structure" are those that involve the structure being out of repair or not being maintained in a safe manner. An owner sustains safe place liability for a structural defect regardless of knowledge of the defect, but with conditions related to the structure, no liability attaches without actual or constructive notice. Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W.2d 517, 98-2557. See also Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289. The duties imposed on employers and property owners under this section are nondelegable. Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W.2d 517, 98-2557. This section does not apply to unsafe conditions caused by an injured party's own negligence or recklessness. If a structure's alleged disrepair requires reckless or negligent conduct by the plaintiff for the plaintiff to injure herself or himself, the initial disrepair may not be construed as having caused the injury. Hofflander v. St. Catherine's Hospital, 2003 WI 77, 262 Wis. 2d 539, 664 N.W.2d 545, 00-2467. Land that is merely appurtenant to a place where business is carried on is not a place of employment under s. 101.01(11). An owner must have ownership, custody, or control of the place of employment and the premises appurtenant thereto. An owner of appurtenant land who does not also have ownership, custody, or control of the place cannot be liable for injuries sustained at the place. Binsfeld v. Conrad, 2004 WI App 77, 272 Wis. 2d 341, 679 N.W.2d 341, 03-1077. If constructive notice is relied on, generally, evidence of the length of time that the unsafe condition existed is required to establish it. Constructive notice, without a showing of temporal evidence of the unsafe condition, may be imputed in a narrow class of cases where the method of merchandizing articles for sale to the public in the area where the harm occurred should have made that harm reasonably foreseeable at that location. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857, 02-2932. Ten [now seven] years after a structure is substantially completed, s. 893.89 bars safe place claims under this section resulting from injuries caused by structural defects, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252. The owner of a public building is liable for: 1) structural defects; and 2) unsafe conditions associated with the structure of the building. A structural defect is a hazardous condition inherent in the structure by reason of its design or construction. An unsafe condition arises from the failure to keep an originally safe structure in proper repair or properly maintained. A property owner is liable for injuries caused by a structural defect regardless of whether it had notice of the defect, but only liable for an unsafe condition when it had actual or constructive notice of the condition. Rosario v. Acuity, 2007 WI App 194, 304 Wis. 2d 713, 738 N.W.2d 608, 06-2421. Safe is a relative term that does not mean completely free of any hazards. What constitutes a safe place depends on the facts and conditions present and the use to which the place is likely to be put. That a place could be made more safe does not mean that an owner has breached the duty of care established by sub. (1). When the agency having power to adopt orders to secure the safety of employees and frequenters of public buildings has issued a safety order concerning a particular situation, it establishes what is safe, and a jury or court cannot establish any other standard. Szalacinski v. Campbell, 2008 WI App 150, 314 Wis. 2d 286, 760 N.W.2d 420, 07-0667. The trial court erred in finding no unsafe condition under the safe place statute when it applied a height requirement to a sidewalk crack. There is no mathematical deviation rule that is a standard for a safe sidewalk. The ultimate question is not what is a defect, or how many inches high was the obstruction or deep the depression, but solely whether under all circumstances affecting the sidewalk it was in a reasonably safe condition for public travel by persons exercising ordinary care for their own safety. Gulbrandsen v. H&D, Inc., 2009 WI App 138, 321 Wis. 2d 410, 773 N.W.2d 506, 08-2990. The safe place statute includes a duty on employers to inspect premises to ensure that they are safe. Failure to comply renders the employer liable for the violation of the safe place statute. The duty to maintain does not arise until constructive knowledge of the defect exists, but if an adequate inspection would have revealed the defect and that inspection was not performed, the jury may infer constructive notice of the defect. The safe place statute applies the duty to maintain to both owners and employers alike. Gennrich v. Zurich American Insurance Co., 2010 WI App 117, 329 Wis. 2d 91, 789 N.W.2d 106, 09-2111. A "structural defect" for which an owner sustains safe place liability for the defect regardless of knowledge of the defect arises from design or construction flaws when a building element is put in place, whether as an original part of a structure or as a replacement. This contrasts with features of a structure that were installed safely and then developed into a hazard. Wagner v. Cincinnati Casualty Co., 2011 WI App 85, 334 Wis. 2d 516, 800 N.W.2d 27, 10-1195. The presence of asbestos in the air during and following routine repairs to defendant's buildings constituted an unsafe condition associated with the premises. Viola v. Wisconsin Electric Power Co., 2014 WI App 5, 352 Wis. 2d 541, 842 N.W.2d 515, 13-0022. The safe place statute is a negligence statute that imposes a heightened duty on owners of public buildings to construct, repair, and maintain their buildings safely. The statute does not address negligent acts; instead, it addresses unsafe property conditions. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063. A plaintiff need not prove the exact moment an unsafe condition commenced, so long as the evidence is sufficient to prove the unsafe condition existed long enough to give the defendant constructive notice of its presence. Correa v. Woodman's Food Market, 2020 WI 43, 391 Wis. 2d 651, 943 N.W.2d 535, 18-1165. The safe place statute does not extend to vehicles. Hopkins v. Ros Stores, Inc., 750 F. Supp. 379 (1990). Under the safe place statute, an owner is only absolved of its statutory duty if it relinquishes complete control of the premises to a contractor, and the premises are in a safe condition at that time. The owner must have control over the place such that it can carry out its duty to furnish a safe place of employment, but the control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes. Anderson v. P&G Paper Products Co., (2013).