(i) Effect of Law

(3) Safe-Place Duty

Not only does safe-place law impose a greater duty upon employers and owners than at common law, but it also extends the duty further. Whereas at common-law the employer and owner were required to provide a reasonably safe place only as to invitees; under safe-place law both invitees and licensees are covered. Both categories of persons come within the definition of frequenter, i.e. "every person, other than an eniploye, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser." [38] "The [safe-place] law recognizes that persons licensed or permitted to go upon the premises of another have certain rights which the owner is bound to respect. In other words, it put into the statutes the humane doctrine of the courts, and wiped out the Draconian doctrine so far as licensees or invitees are concerned. [39] Further, safe-place law abolishes the defense of Assumption of Risk both as to employees [40] and as to frequenters. [41]

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

31. Sec. 101.11, Stats.; McGuire v. Stein's Gift & Garden Center, 178 Wis. 2d 379, 504 N.W. 2d 385, 393 (Ct. App. 1993); Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 251 (Ct. App. 1994).

32. Rosholt v. Worden-Allen Co., 155 Wis. 168. 174 (1913): "It is also apparent that the employer no longer fulfils his duty by furnishing a 'reasonably' safe place. Instead, he must furnish one which is as free from danger as 'the nature of the employment will reasonably permit.'"; Sadowski v. Thomas Furnace Co., 157 Wis. 443, 448 (1914): "The legislature, quite clearly, intended to substitute for the ordinary rule requiring the master to come up to the standard of reasonable safety as to working place and working conditions, -- often tested by the customary practice under the same or similar circumstances, and efficiency as to all dangers reasonably to be apprehended from the viewpoint of ordinary care, -- the absolute duty to make the employment and place of employment of employees, not reasonably safe merely, but as safe as the nature of the employment will reasonably permit. In the plainest of mandatory language that was done..." Lu May v. Van Drisse Motors, Inc., 199 Wis. 310, 314 (1929): "Other questions were likewise based on the theory of ordinary care that does not meet the test under the safe-place statute. Under that statute it is the positive duty to furnish a safe place of employment. It is not a question of ordinary care."; Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 104 (1931): ...The statute imposes a duty beyond the duty imposed by common-law."; Mullen v. Larson-Morgan Co., 212 Wis. 52, 57 (1933): "Performance of the common-law duty to make it reasonably safe does not suffice."; Tomlin v. Chicago, M., St. P. & P. R. Co., 220 Wis. 325, 329 (1936): "A place must not only be reasonably safe, as it was required to be by our common-law decisions, but it must be as free from danger as the nature of the place will reasonably permit."; Paepcke v. Sears, Roebuck & Co., 263 Wis. 290, 299 (1953): "Here we deal with sec. 101.06, Stats.[now sec. 101.11], which imposes upon an employer a greater burden, an absolute duty to make the place as free from danger as the nature of the employment will reasonably permit, and not merely a reasonably safe place as at common law."; Krause v. Menzner Lumber & Supply Co., 6 Wis. 2d 615, 622 (1959): "A place must not only be reasonably safe, as it was required to be by our common-law decisions, but it must be as 'free from danger as the nature of the place will reasonably permit.'" See also Wright v. St. Mary's Hospital, 265 Wis. 502 (1953); Presser v. Siesel Construction Co., 19 Wis. 2d 54, 65 (1963); Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 170 (1963); Petosky v. Schmidt, 21 Wis. 2d 323 (1963); Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964); Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶ 7, 238 Wis. 2d 125, 130-131, 617 N.W. 2d 493, 496 (Ct. App. 2000).

33. Puza v. C. Hennecke Co., 158 Wis. 482, 483 (1914); Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 104 (1931); Allison v. Wm. Doerflinger Co., 208 Wis. 206, 210 (1932); Mullen v. Larson-Morgan Co., 212 Wis. 52, 56 (1933); Tiemann v. May, 235 Wis. 100, 106 (1940); Delaney v. Supreme Investment Co., 251 Wis. 374, 381 (1947); Paepcke v. Sears, Roebuck & Co., 263 Wis. 290, 299 (1953); Fitzpatrick v. Rice, 273 Wis. 201, 207 (1956); Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960); Petoskey v. Schmidt, 21 Wis. 2d 323 (1963); Carr v. Amusement, Inc., 47 Wis. 2d 368, 373 (1970); Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 361 (1973); Gross v. Denow, 61 Wis. 2d 40, 46. (1973).

Further, as to concept of actionable defect being inappropriate in connection with a violation of safe-place statute, see Wittka v. Hartnell, 46 Wis. 2d 374, 384 (1970).

34. Langos v. Menasha Paper Co., 156 Wis. 418, 424 (1914).

35. Rosholt v. Worden-Allen Co., 155 Wis. 168, 175 (1913); Puza v. C. Hennecke Co., 158 Wis. 482, 486 (1914); Tiemann v. May, 235 Wis. 100, 106 (1940).

36. Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, 588 (1916).

37. Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978).

38. "Sec. 101.01(2)(e), Stats. Klemens v. Morrow Milling Co., 171 Wis. 614, 618 (1920): "The safe-place employment statutes ... have undoubtedly broadened the field of those to whom there is and was a common-law duty to keep such premises as are here involved reasonably safe so as to now protect and include those upon such premises under the rights belonging to the class escribed under the somewhat vague and indefinite term of 'licensees'."; Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 360 (1973); Antoniewicz v. Reszczynski, 70 Wis. 2d 836 (1975).

39. Lewko v. Chas. A. Krause Milling Co., 179 Wis. 83, 94 (1922); Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 853 (1975).

40. Besnys v. Herman Zohrlaut L. Co., 157 Wis. 203, 214 (1914): "The Legislature had a right to take into consideration that employees, under the stress and condition of existing industrial life, had but little choice to refuse the employment offered them under such conditions of danger as the employers saw fit to adopt, and deemed it good policy to impose the burden of all risks and hazards attending such business methods and processes on the employer, though they were open and obvious to an employee in the course of his employment." See Assumption of Risk.

41. See Assumption of Risk.