Non-delegability of duty

Boyle's Wisconsin Safe-Place Law

Chapter One: Nature of Safe-Place Law

(2) Non-delegability of duty

The above designated persons are liable absolutely in the sense that they cannot escape liability by delegating their safe-place duty to others. [4] Thus where a manufacturing concern engaged a contractor to construct a building on its premises and left the mechanics of construction to the contractor's discretion, the manufacturing concern was still liable for injuries to an employee of a subcontractor sustained when a steel construction beam was moved too close to high tension wires running over the premises. [5] So also as to an employer whose employee was injured by a machine which the employer purchased on the open market even though such machine was equipped with safety devices devised by the manufacturer and was commonly sold and used for the purposes to which it was put. [6] This is not to say, however, that an employer or owner sustains liability where control of a safe-place is relinquished to an Independent Contractor, and thereafter an injury-causing safe-place violation occurs without fault of such employer or owner. No delegation of duty is present under such circumstances because the employer or owner has fully performed his duty by having the place safe at the time control was relinquished. [7]

4. Mickelson v. Cities Service Oil Co., 250 Wis. 1, 6 (1947): "This duty it could not delegate"; Tiemann v. May, 235 Wis. 100, 106 (1940): "nondelegable"; Criswell v. Seaman Body Corp., 233 Wis. 606, 617 (1940): "... nor could [defendant] ... delegate ... so as to absolve itself therefrom, its duty and obligation under sec. 101.06, stats."; American Mut. L. Ins. Co. v. Chain Belt Co., 224 Wis. 155, 162 (1937): "... duty is an absolute and nondelegable one"; Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 103 (1931) re duty being "positively placed". The doctrine of nondelegability of an employer's duty was imported from the common law into the safe-place law. The American Mut. L. Ins. Co. case supports the rule by citation of two common law cases -- Driscoll v. Allis-Chalmers Co., 144 Wis. 451, 458 (1911) and Wnek v. Superior Shipbuilding Co., 148 Wis. 618, 621 (1912). Under safe-place law, however, the doctrine is not limited to employers but applies also to owners of public buildings (Bunce) and to owners of places of employment (Criswell and Tiemann). See also Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 103 (1931): "... The duty of rendering the place safe is primarily and positively placed on the owner, and that he procures an architect does not relieve him from his obligation in that regard." To same effect, Tomlin v. Chicago, M., St. P. & P. R. Co., 220 Wis. 325, 332 (1936); Tiemann v. May, 235 Wis. 100, 107 (1940). See also Novak v. Delavan, 31 Wis. 2d 200, 207 (1966): "... non-delegable duty ..."; Larson v. J. 1. Case Co., 37 Wis. 2d 516, 522 (1965); Wasley v. Kosmatka, 50 Wis. 2d 738, 744 (1971); Pitrowski v. Taylor, 55 Wis. 2d 615, 627 (1972); Laffin v. Chemical Supply Co., 77 Wis. 2d 353, 358 (1977); Barrons v. J. H. Findorff & Sons, Inc., 89 Wis. 2d 444, 458 (1979); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 31 (Ct. App. 1979); Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210, 225 (1979). An employer or owner may indemnify himself against loss by reason of a safe-place law violation, but such indemnity agreement does not affect the rights of an injured person against him, Umnus v. Wis. Public Service Corp., 260 Wis. 433, 442 (1952), see also Barrons, supra.; Hannebaum v. Direnzo and Bomier, 162 Wis. 448, 469 N.W. 2d 900, 904 (Ct. App. 1991) "The fact that a lease allocates safe place duties between an owner and an employer/tenant does not nullify the mutually shared duties of the owner and the employer under the statute."

5. Criswell v. Seaman Body Corp., 233 Wis. 606 (1940). But see Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594 (1960), and Paaske v. Perfex Corp., 24 Wis. 2d 485 (1964), where owner escaped liability for structural oddity causing injury on ground that duty to provide device to make place safe was on employee's immediate employer.

6. Tiemann v. May, 235 Wis. 100 (1940). In this case the defendant argued to no avail that to permit a finding of unsafe as to a standard and commonly used machine would put an intolerable burden on the employer who must then make purchases of expertly devised machines at his peril and that [105], "He must change models as new safeguards are developed in order to avoid the risk of a later jury finding that his safety devices are obsolete and that even if he does, the jury may consider the older method and appliance superior and find the new model to be unsafe." It was further pointed out in this case that other makes of such machine had more adequate safeguards and [108]: "the machinery was not complicated". See also Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964).

7. See Independent Contractor. See also Landlord and Tenant.

Revised October 6, 2001

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