Boyle's Wisconsin Safe-Place Law



Chapter One: Nature of Safe-Place Law
    (i) Effect of Law
      (4)Degree of Safe-Place Duty
The employers and owner's duty under the safe-place law has been summarized in these words: "Safe, suitable, and proper, so far as human foresight devoted to the matter, not with ordinary attention merely, but with a purpose to accomplish just what the legislature intended, a place so safe as to render personal injury so remote as to be, at most, merely within the realm of possibility." [42] The employer or owner "cannot escape liability by showing that he exercised ordinary or even extraordinary care to make ... [the place] safe." [43] And it is no excuse for noncompliance that the duty is burdensome, [44] difficult or impractical. [45] When a dangerous instrument is present, there is a duty "to reduce to a minimum the possibility of danger from that instrumentality." [46] It makes no difference insofar as the duty of the employer and owner is concerned, whether the defect causing injury is open and obvious, such as a large open space in a roof under construction, [47] or is obscure, such as a hole in a roof which was covered by tarpaulin and a layer of snow so as to make it indiscernible. [48]

The statute imposes more duties on an "employer" than on an "owner". [49] An employer not only has the duty of providing a safe "place", in common with an owner, but also must furnish (a) "employment which shall be safe", (b) "safety devices and safeguards," and (c) safe "methods and processes and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters"). [50] "The difference between obligations arising out of the relation of employer and employee and frequenters of the employer's place of employment as declared in the statutes and the obligations of the owner of a public building is plain and has long been recognized by the law in this state. The law is that the employer's duty to furnish safe employment includes the furnishing of a safe place of employment. The employer has a broad duty not only with respect to the structure which constitutes the place of employment but with reference to the devices and other property installed or placed in such place. [51]

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

42. Kendzewski v. Wausau S. F. Co., 156 Wis. 452, 455 (1914).

43. Olson v. Whitney Bros. Co., 160 Wis. 606. 610 (1915); Maryland Casualty Co. v. Thomas F. Co., 185 Wis. 98, 103 (1924); Mullen v. Larson-Morgan Co., 212 Wis. 52, 57 (1933); Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 387 (1948). See also Lu May v. Van Drisse Motors, Inc., 199 Wis. 310, 314 (1929). Sweitzer v. Fox, 226 Wis. 26, 34 (1937): "...If any injury is caused by a condition due to failure to comply with those provisions, then the mere fact that the failure was not due to negligence on the part of the employer is not sufficient to excuse him from liability under the statutes, because under them that failure is actionable, regardless of whether or not it was due to negligence on his part, if the place of employment or method used is not as free from danger to the safety of employees or frequenters as the nature of the employment or place will reasonably permit." See also Petoskey v. Schmidt, 21 Wis. 2d 323 (1963). But see Zernia v. Capitol Court Corp., 21 Wis. 2d 164 (1963) where degree of care exercised, rather than condition of the premises, was determinative: (169) "At the time of the accident, the defendant was using more than ordinary care to fulfill the statutory duty"; and Presser v. Siesel Construction Co., 19 Wis. 2d 54, 65 (1963) mentioning degree of care as standard rather than condition of premises.

44. Wis. Bridge & Iron Co. v. Ind. Comm., 8 Wis. 2d 612, 618 (1959); But see Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964) "[Jury] could have considered the relatively low cost at which a more efficient and safer dock-board might have been provided."

45. Krueck v. Phoenix Chair Co., 157 Wis. 266, 271 (1914): "Mere difficulty, or inconvenience, or impracticality falling short of preventing the practical operation of the machine, is not sufficient excuse for failure to comply with the statutory duty."

46. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 446 (1934).

47. Umnus v. Wisconsin Public Service Corp., 260 Wis. 433, 436 (1952): "We do not find that the statute distinguishes between obvious and hidden dangers."; Emberg v. Great Northern R. Co., 156 Wis. 396, 398 (1914); Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 364 (1973). But see Baker v. Janesville Traction Co., 204 Wis. 452 (1931) and Prehn v. C. Niss & Sons, Inc., 233 Wis. 155, 157 (1939): "When an employer erects a suitable instrument necessary for the conduct of his business in open view to all so that anyone exercising ordinary care will know of its presence, he is acting within his rights."

48. Wis. Bridge & Iron Co. v. Ind. Comm., 8 Wis. 2d 612 (1959); but see Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553 (1934), where plaintiffs injuries were occasioned by defective elevator mechanism and the court said [560], "It should not be presumed that the legislature by the safe-place statute intended to impose on owners of a building acts impossible of performance or discovery of defects entirely latent in machines or appliances placed in the building by contractors or tenants." See also Notice of Knowledge or Defect.

49. Wis. Stat. Sec. 101.11.

50. Wis. Stat. Sec. 101.11. Court appears to regard the excluding of frequenters from dangerous area as "device" mandated by safe-place statute in Gross v. Denow, 61 Wis. 2d 40, 48 (1973): "Prohibiting pedestrian traffic or providing a fence separating pedestrian and vehicular traffic are devices that would have made the road as safe as its nature would reasonably permit."

51. Baldwin v. St. Peter's Congregation, 264 Wis. 626, 628 (1953). For other specific safe-place duties, see Extent of Employer Duty and Extent of Owner of Place of Employment Duty.


Revised October 15, 2001

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