An Overview of Wisconsin’s Safe Place Statute and Confusion Over Its Inconsistent Application
Although Wisconsin’s Safe Place Statute is more than a century old, attorneys still struggle to understand the breadth of its application. This Article provides an overview of the Safe Place Statute and then analyzes two cases that illustrate the ongoing confusion regarding the statute’s application. Finally, the Article concludes by emphasizing the need for further clarification from the courts.
The History of Wisconsin’s Safe Place Statute
Recent case law does not discuss the origin or intended scope of the Safe Place Statute. Most people are familiar with the expression “how can we know where we’re going if we don’t know where we’ve been?” With that axiom in mind, it helps to start from the beginning. For the Safe Place Statute, that means going back to the early 1900s.
The original Safe Place Statute was enacted in 1911, when the increase of mechanical devices and electric power caused “innumerable accidents”; thus, it “dawned upon the lawmaking power that life, limb, and health must not be sacrificed for the benefit of utility.”1 It was a time of widespread disapproval regarding a worker’s inability to obtain compensation for injuries sustained in the course of his or her employment. That said, the original language applied only to employers and dealt only with the conditions of employment.2 Further, there was initial confusion regarding whether the statute applied only to equipment used by an employee or also to the building in which he or she was employed. So, the statute was amended in 1913 to extend its applicability to owners of a place of employment and to owners of public buildings.3 The legislature’s purpose in making these changes was to “secure the safety of buildings where the public gathered or to which persons resorted in numbers.”4
From the beginning, courts were careful with their application of the Safe Place Statute, and, when confronted with facts outside the plain language of the statute, would return to and study the legislative purpose before allowing a claim to proceed. Early decisions involving safe place claims illustrate a commitment to protecting public safety, but doing so in a limited and controlled manner.
For example, in Dugenske v. Wyse, the court found that the Safe Place Statute applied to a claim brought by a farmer who lost the fingers and thumb on his right hand because of a malfunctioning piece of equipment.5
In Delaney v. Supreme Investment Company, the plaintiff was injured when a sixteen-pound glass block fell from the front of the building she was walking past. Significantly, the court found that the statute did not apply in that instance because the statute was intended to provide greater protection to those within the building, and did not extend to persons on the street.6
Finally, in Bewley v. Kipp, the plaintiff was a tenant who was injured outside her apartment unit when the stairway’s guard rail gave way. In dismissing the plaintiff’s claims, the court explained: “[w]e discover no legislative purpose in the enactment of this statute to change in any respect the mutual obligations of lessor and lessee at common law.”7 Going one step further, the Bewley court explained that the defective guard rail at issue in the case was the result of ordinary wear and tear and that the Safe Place Statute imposed no duty on the landlord, as property owner, to keep the guard rail in repair.8 While appreciating the difference between the landlord-tenant relationship and the employeremployee relationship, the rationale in Bewley reinforced the concept that a property owner’s duty under the Safe Place Statute is limited to structural defects.9
Although the statute’s original legislative purpose was, and remains, significant, the statute’s current application has become confusing, expansive, and has arguably strayed outside the intended area of protection as set forth in these early cases.
The Current Application of the Statute
A customer slips on a grape in the grocery store produce aisle. A patient walks into a glass dooroutside a doctor’s office. A frequenter trips on a “hidden” hole in a cemetery. The foregoing scenarios often result in litigation, and it is in this context that attorneys typically encounter the Safe Place Statute. As an aid to attorneys who defend against alleged safe place violations, it is worthwhile to address the basics before examining some of the more recent holdings that have made the statute’s application so confusing.
The current language of the Safe Place Statute, Wis. Stat. § 101.11(1), provides as follows:
Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees 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 employees 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.
Although section 101.11(1) is only a short paragraph, the application of the statute and the balance between public protection and certain liability remain in flux. The following is a basic “cheat sheet” of the statutory requirements:
Who has a duty? Employers and owners of places of employment or public buildings.10
What is the duty? The statute imposes three duties on employers and owners of places of employment or public buildings: the duty to construct, to repair, and to maintain a safe place of employment or public building.11 However, as set forth below, the duty of owners of places of employment or public buildings is very limited compared to the duty of an employer, which, in addition to the duty of an owner, includes the duty to furnish “safe employment.” As established by the case law, some of which is summarized below, safe employment appears to include almost anything.
What constitutes a violation? Safe place cases recognize two broad categories of unsafe property conditions: (1) structural defects and (2) unsafe conditions. Unsafe conditions are further broken down into two subcategories—those associated with the structure and those unassociated with the structure.12
What constitutes a structural defect? A defect is structural if it resulted from materials used in the building’s construction or from an improper layout or construction.13 Because of the nature of structural defects, they typically do not arise over time. That is, structural defects are generally present from day one, though they may not immediately be recognized.
Examples of structural defects: Structural defects include a handrail not being installed along a staircase14; a balcony railing that was not high enough15; a false ceiling that did not support a worker’s weight16; a poorly designed floor drain17; and a hazardous office window, although recentlyinstalled.18
What constitutes an unsafe condition? An unsafe condition arises from the failure to keep an originally safe structure in proper repair or properly maintained.19 Unsafe conditions associated with the structure are those that involve the structure (or the materials with which it is composed) becoming out of repair or not being maintained in a safe manner.20 Unsafe conditions unassociated with the structure are conditions that would result in unsafe employment, including but not limited to, unsafe physical conditions, improper safety devices, and unsafe processes.21
Examples of unsafe conditions associated with the structure: Unsafe conditions associated with the structure include a missing theatre seat22; improper lighting, including failing to keep a restroom light turned on while the building is in use23; a loose window screen24; and an improperly connected elevator motor.25
Examples of unsafe conditions unassociated with the structure26: Unsafe conditions unassociated with the structure include a banana in a drugstore parking lot27; an Italian prune in a grocery store aisle28; chairs that were stacked haphazardly29; and an “averages board” leaning against the wall of a gymnasium.30
What if the employer or owner was unaware of the condition? Liability for injuries caused by structural defects are imposed regardless of notice of the defect, but liability for an unsafe condition occurs only when there was actual or constructive notice of the condition.31
Who is liable? The owner of a public building is liable for structural defects and unsafe conditions associated with the structure when the unsafe conditions affect areas used by tenants in common or the public.32 The owner of a place of employment has the same liability as the owner of a public building and is also liable for unsafe conditions unassociated with the structure if the owner has substantial control over the place of employment.33 Finally, the employer is liable for the conditions of employment (including safety devices, equipment, etc.) and for all unsafe conditions, whether or not associated with the structure.34
The Safe Place Duties are Non-Delegable
The duties imposed on employers and property owners under the Safe Place Statute are nondelegable.35 “[T]he person who has [the duty under the Safe Place Statute] cannot assert that another to whom he has allegedly delegated the duty is to be substituted as the primary defendant in his stead for a violation of safe place provisions. Under any circumstance, it is the owner or the employer who must answer to the injured party.”36 Significantly, if you are the owner of a place of employment and the employer, wearing “multiple hats,” you are responsible for multiple duties under the Safe Place Statute.37
Although a safe place duty cannot be delegated, the statute is intended to impose liability on whomever breached their duty—whether the owner of a public building, the owner of a place of employment, the employer, all of the above, or any combination of the above.
A Discussion of the Statute’s Expanding Application
Determining whether a condition is a structural defect vs. an unsafe condition, and whether an unsafe condition is one associated with the structure vs. unassociated with the structure, is factually intensive. The classification is critical, and often not as straightforward as one would expect after 100 years of jurisprudence. Further, as straightforward as the concept of a “non-delegable duty” might seem, determining who owes the duty is similarly opaque because the case law assigns a great deal of import to the issue of control of the jobsite. These issues are demonstrated in the cases below.
In Powell v. Milwaukee Area Technical College District Bd., a student fell from a utility pole during a line mechanic class that was offered by a technical college. The electric power company owned the property and the building on the property, but leased a portion of the building and garage and loaned two of its employees to the college for teaching purposes.38 The property owner was responsible for janitorial services as well as the maintenance and repair of the property.39 The property owner provided the utility pole from which the student fell, but the students were the ones who dug holes for the poles and then erected them for purposes of class instruction. The students were also the ones who were responsible for removing the poles when instruction was completed.40 The court held that, “while the safe place statute standard of care for places of employment is broad, it does not extend to non-structural areas and temporary conditions which are not under the control of the owner.”41 Thus, the power company had no duty to maintain the utility pole because it was a “temporary condition, for which [the school] had exclusive control and maintenance responsibility.”42 Applying the Powell analysis, an owner of a public building or place of employment that relinquishes control of the premises should not be held liable when the injury occurs because of an unsafe condition unassociated with the structure.43
There are two significant questions in the analysis of most safe place claims, and both are highlighted in Powell. The first question is the classification of the condition—the court’s finding of an unsafe condition unassociated with the structure immediately removed potential liability for the owner of the public building, leaving potential liability for only the owner of the place of employment and the employer. The property owner was not acting as an employer; thus, it was only potentially liable as the owner of the place of employment.
The second question is the question of control—the owner of a place of employment is only liable for unsafe conditions unassociated with the structure if the owner had the requisite control. Thus, the owner’s decision to relinquish control of the premises in Powell helped it escape liability. Unfortunately, things are not always as clear as they were in Powell.
In Barry v. Employers Mutual Casualty Company,44 the plaintiff was injured after he fell down a set of stairs at a corporate building. The building had a “winding” stairway that was carpeted, and this became a problem when the glue that was holding the carpet to the stairway came loose. The building owner hired an independent contractor to install vinyl strips, called “nosings,” on the front of each step to hold the carpeting in place. A few months after the nosings were installed, the building owner received complaints from women who had caught their heels on the edges of the nosings due to a height discrepancy between the nosings and the carpet. The building owner contacted the plaintiff, who was employed as a project manager for a small general contractor, to propose a solution for the problem. Plaintiff’s employer was in a longstanding construction contract with the property owner, and approximately 70% of plaintiff’s work was dedicated to various projects for the property owner. Nonetheless, the building owner ultimately did not accept the plaintiff’s proposal. Ironically, on the date of the incident, approximately four months after the proposal was rejected, the plaintiff, who was not at the job site that day for work related to the stairs, fell and was injured on the very stairs that he had previously proposed to fix.
Plaintiff sued the building owner, and the building owner commenced a third-party action for contribution against the company that installed the nosings and for indemnification from the plaintiff’s employer under the ongoing construction contract.
The trial judge ruled that the nosing was a structural defect, removing the plaintiff’s burden of establishing notice, and the jury apportioned negligence as follows: 45 percent to the building owner, 45 percent to the “nosing” installer, and 10 percent to plaintiff. The court of appeals reversed on the ground that the loose nosing constituted an “unsafe condition associated with the structure,” but refused to remand the case for a new trial on the notice issue. The Wisconsin Supreme Court disagreed with the court of appeals, holding that a new trial on notice was appropriate.
Significant to this Article’s analysis of the developing case law are three things from Barry: first, the court held that the loose nosing constituted an unsafe condition associated with the structure; second, the court reiterated that the duties under the Safe Place Statute are non-delegable; and third, the court stated that because the duties are nondelegable, the independent contractor’s negligence should be imputed to the property owner.
Regarding the condition’s classification, the court found that the defect was an unsafe condition associated with the structure because the loose stairway nosing “resulted from a failure to repair or maintain the stairway, not a failure to safely construct the stairway.”45 Additionally, the supreme court agreed with the court of appeals that the “nosings added to the original stairway are not part of the original structure, but rather are ‘associated with the structure.’ To conclude otherwise would be to accept ... ‘circular reasoning,’ effectively ‘transmogrify[ing] all maintenance and repair defects into structural defects.’”46
Sticking with the classification of the condition for a moment, compare the Barry holding to Wagner v. Cincinnati Casualty Company, in which the court of appeals relied on Barry to find that a recently-installed window that blew in and injured an employee was a structural defect.47 In its reasoning, the Wagner court explained that, unlike the stair nosings in Barry, the window “was not an addition to an existing feature of the building—it fully replaced the prior window.”48 Going further, the Wagner court added that relying on the concept of “addition” is misleading because it is often too “difficult to distinguish between an addition that is part of a repair and an addition that adds an entirely new building element.”49 This determination is very fact-intensive, and only additional case law will shed light on the future of the classification of conditions under the Safe Place Statute.
Considerable Uncertainty Remains Since Barry
On the one hand, Barry is consistent with prior case law regarding the non-delegability of the safe place duties because the owner of the building in that case wore all of the statutory hats—it was the owner of both the building and place of employment, and was also the employer. As set forth above, the question of liability is inextricably linked to the question of control.
On the other hand, Barry also leaves much to be desired. For example, what result could we expect if the injury occurred during the nosings’ installation—e.g., if the independent contractor’s employees began working, but before completing the installation went out for lunch, failed to rope off the stairway, and someone was injured as a result? Would the independent contractor be solely liable for its employees’ failure to secure the area? Would the owner of the place of employment avoid liability for relinquishing control of the area to the independent contractor? Or would the owner of the place of employment share liability for failing to inspect the premises and notice that the area was not roped off? These questions can only be answered by analyzing the contract between the parties and determining who had control of the area in which the unsafe condition existed. Turning to the contract does not conflict with the statute’s non-delegable duty, because both the owner of the building and the independent contractor, as employers, have duties under the Safe Place Statute. In this scenario, the contract does not delegate the duty, it serves to clarify the roles of the contracting parties, which brings us to our final point.
The Barry court’s holding appears to extend the nondelegable safe place duty to complete liability for the owner, which is inconsistent with the statute’s legislative purpose and probably not what the court actually intended with its ruling. Case law has long held that the negligence founded in safe place claims is comparable to ordinary negligence.50 Based on the facts of Barry, it seems likely that the court’s ruling was based on a concern about the pending claims—plaintiff only had a negligence claim against the building owner—rather than an attempt to create a new legal principle.51 In particular, had the court not imputed the independent contractor’s liability to the owner, the plaintiff would have been prevented from being made whole. As a result, Barry should not be read to create a blanket ruling for all cases alleging a safe place violation.52 Thus, in a case in which the plaintiff has claims of negligence against multiple defendants, at least one of which is founded in safe place, each defendant should still be expected to be responsible for its own liability. That said, as the case law, and Barry in particular, demonstrates, the statute’s application remains unpredictable.
Despite its old age, the application of the Safe Place Statute is still evolving and the last twenty years of case law illustrate the challenges faced by both litigators and courts alike. Defense counsel are encouraged to stay informed regarding the nuances of the statute, as there still remains much uncertainty regarding how courts will apply it to the facts in each particular case.
Travis Rhoades is a shareholder at Crivello Carlson, S.C., where he has spent his entire career. Much of his practice involves the defense of individual product liability claims for consumer, commercial, and industrial products manufacturers and their insurers. He represents site owners, manufacturers, distributors, and sellers of products, and business owners and their insurers in injury, death, and property damage claims. Travis is responsible for the development of national and regional strategies for manufacturing and contracting clients in product liability and toxic tort cases, and has represented clients in formal and informal meetings with governmental agencies responsible for product safety. He has trial experience in product liability cases in Wisconsin, Kansas, Alabama, and Massachusetts, and has litigated claims and cases to resolution in 43 states.
Ashley E. Webber joined Crivello Carlson, S.C., as an associate in 2012. She works as a litigator in state, federal, and administrative forums. While at Marquette Law, Ashley served as Articles Editor for the Marquette Sports Law Review and was a representative in the Pepperdine University School of Law National Entertainment Law Moot Court Competition. She was also a recipient of the National Sports Law Institute Certificate and an inductee to the Posner Pro Bono Society. Ashley currently serves as a Board Member for the Sports & Entertainment Law Section of the State Bar of Wisconsin.
1 Dugenske v. Wyse, 194 Wis. 159, 215 N.W.2d 829, 831 (1927).
2 Delaney v. Supr. Inv. Co., 251 Wis. 374, 378, 29 N.W.2d 754 (1947).
3 Id. at 379.
4 Bewley v. Kipp, 202 Wis. 411, 233 N.W. 71 (1930).
5 Dugenske, 215 N.W.2d at 829.
6 Delaney, 251 Wis. at 382.
7 Bewley, 233 N.W. at 72.
10 See Wis. Stat. § 101.11(1).
11 Id.; see also Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 20, 245 Wis. 2d 560, 630 N.W.2d 517.
12 See Barry, 245 Wis. 2d 560, ¶ 21.
13 Id., ¶ 28.
14 See Harnett v. St. Mary’s Congregation, 271 Wis. 603, 74 N.W.2d 382 (1956); Burling v. Schroeder Hotel Co., 235 Wis. 403, 291 N.W. 810 (1940); Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764 (1930). Significantly, in all three of these cases, the injury occurred in a public building. This is in contrast to Bewley, where the court ruled that the Safe Place Statute did not apply because the injury occurred in an area exclusively controlled by the tenant. Bewley, 233 N.W. at 72.
15 See Frion v. Coren, 13 Wis. 2d 300, 108 N.W.2d 563 (1961).
16 See Bellmann v. Nat’l Container Corp. of Mich., 5 Wis. 2d 318, 92 N.W.2d 762 (1958).
17 Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶¶ 24-26, 291 Wis. 2d 132, 715 N.W.2d 598.
18 Wagner v. Cincinnati Cas. Co., 2011 WI App 85, 334 Wis. 2d 516, 800 N.W.2d 27.
19 Barry, 245 Wis. 2d 560, ¶ 27.
20 Id., ¶ 25 (citations omitted).
21 See Wis. Stat. § 101.11.
22 See Boutin v. Cardinal Theatre Co., 267 Wis. 199, 202, 64 N.W.2d 848 (1954).
23 See Zimmers v. St. Sebastian’s Congregation of Milwaukee, 258 Wis. 496, 501, 46 N.W.2d 820 (1951); Helms v. Fox Badger Theatres Corp., 253 Wis. 113, 118, 33 N.W.2d 210 (1948); Heiden v. City of Milwaukee, 226 Wis. 92, 102, 275 N.W. 922 (1937); Pettric v. Gridley Dairy Co., 202 Wis. 289, 290, 232 N.W. 595 (1930).
24 Wright v. St. Mary’s Hosp. of Franciscan Sisters, Racine, 265 Wis. 502, 503, 61 N.W.2d 900 (1954).
25 See Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 257 N.W. 598 (1934).
26 An employer has many obligations to its employees that fall within the classification of an “unsafe condition unassociated with the structure,” but these obligations will not be addressed in detail in this Article because the worker’s compensation statute serves as the exclusive remedy for employees against their employers. See Wis. Stat. § 102.29.
27 See Kaufman v. State St. Ltd. Partn., 187 Wis. 2d 54, 65, 522 N.W.2d 249 (Ct. App. 1994) (imposing no liability due to lack of notice).
28 See Strack v. Great A. & Pac. Tea Co., 35 Wis. 2d 51, 53, 150 N.W.2d 361 (1967).
29 Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 219 Wis. 209, 262 N.W. 585 (1935).
30 Haerter v. City of W. Allis, 23 Wis. 2d 567, 571, 127 N.W.2d 768 (1964).
31 See Rosario v. Acuity, 2007 WI App 194, 304 Wis. 2d 713, 738 N.W.2d 608. The notice requirement is a challenge of its own, and a full discussion of its nuances is beyond the scope of this Article. For this reason, the notice requirement will not be addressed in great detail here. The articles written by Attorney Howard H. Boyle are a great reference point for attorneys who want to gain an in-depth understanding of the Safe Place Statute.
32 Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 261 N.W. 742 (1935).
33 See Anderson v. P&G Paper Products Co., 924 F. Supp. 2d 996 (E.D. Wis. 2013) (holding that, under the Safe Place Statute, an owner is released from its statutory duty only if it relinquishes complete control of the premises to a contractor and the premises are in a safe condition at the time control is relinquished); see also Barth v. Downey Co., Inc., 71 Wis. 2d 775, 239 N.W.2d 92 (1976) (holding that the duty to furnish a safe place of employment to employees does not impose a duty on a contractor for a 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); Tryba v. Petcoff, 10 Wis. 2d 308, 103 N.W. 2d 14 (1960); Krause v. Veterans of Foreign Wars, 9 Wis. 2d 547, 101 N.W. 2d 645 (1960).
34 See Barry, 245 Wis. 2d 560, ¶ 21 n.4.
35 Id., ¶ 42.
36 Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 132, 301 N.W.2d 201 (1981).
37 Gennrich v. Zurich Am. Ins. Co., 2010 WI App 117, ¶ 17, 329 Wis. 2d 91, 789 N.W.2d 106.
38 Powell v. Milwaukee Area Tech. College Dist. Bd., 225 Wis. 2d 794, 798, 594 N.W.2d 403 (Ct. App. 1999).
40 Id. at 813.
41 Id. at 812.
42 Id. at 814.
43 Id. at 813 (“Before a person has a duty to furnish a safe place of employment the person must have the right to present control over the place so that the person can perform the duty to furnish a safe place of employment.”) (citing Freimann v. Cumming, 185 Wis. 88, 91, 200 N.W. 662 (1924)).
44 Barry, 245 Wis. 2d 560.
45 Id., ¶ 30.
47 Wagner, 334 Wis. 2d 516.
48 Id., ¶ 33.
50 Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 173 N.W.2d 196 (1970).
51 Barry, 334 Wis. 2d 516, ¶ 9.
52 Id. ¶¶ 43-44.