Boyle's Wisconsin Safe-Place Law



Chapter One: Nature of Safe-Place Law
    (a) What Is Safe-Place Law
      (5) Limits of Duty
Although the duty created by the safe-place law is absolute, [52] it is not a duty to make the place absolutely safe. [53] An employer or owner might make his place as safe as the nature of the same will reasonably permit, and so comply with the safe-place law, but still have an "unsafe" place in the common sense of the term. It is the nature of the place which determines the degree of the duty. [54] An injury "may result from a place of employment that is not safe in the technical sense and yet the employer may not be liable because his place of employment may have conformed to the statutory requirement. It may have been as free from danger as the place of employment would reasonably permit and yet have been far from actually safe, because there are many places of employment that are dangerous notwithstanding they have been made as free from danger as the nature of the employment will reasonably permit..." [55] Thus it has been held that an employer or owner was not subject to safe-place liability where injury was caused by slipping on wet beet pulp on the floor of a sugar beet factory; [56] where injury was caused by icy elevated passageway between two buildings, [57] where plaintiff slipped on floor in the process of being mopped; [58] where injury resulted from a flash-fire in a combed cotton, rayon and wool waste bin; [59] and where plaintiff slipped on a waxed ballroom floor. [60] (On the other hand the owner of an artificial ice plant was liable to a person who slipped on the icy floor where it was shown that such ice had accumulated for several days.) [61] The court has many times said that "Our present statute recognizes the 'rule of reason' and does not impose upon an employer [or owner] an impossibility or an unreasonable burden."; [62] and that, "The mere fact that an accident happens does not prove that the place was not safe." [63] Not only does the law not require absolute safety where the nature of the place or of the employment does not reasonably permit such condition, but the court has further refused to impose liabilit where the defect was inconsequential, [64] and has also required the element of "foreseeability" as a condition of liability. [65] Where the occurrence of a fire was not reasonably foreseen or anticipated, the court refused to impose safe-place liability; [66] so too where a child running with her head down struck a glass door, [67] and where an unskilled frequenter's use of compressed air equipment caused a tire to explode. [68] Furthermore, the court has held that an employer is not responsible for the safety of a place in which conditions are constantly changing by reason of the nature of the work being performed. [69] Nor does the statute require an employer to desist using premises even though such use may give rise to a situation which creates a temporary hazard, [70] nor to discard any appliance which cannot be securely guarded or fenced. [71]

Accordingly, the court has held that safe-place law does not make the employer or owner an "insurer" or "guarantor" of safety. [72]

The statement has been made in several cases that the argument that something might be more safe is held to be no argument at all. [73] It is deemed that application of such view beyond the limited circumstances which evoked it cannot be reconciled with the mandatory language of the statute.

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

52. Rosholt v. Worden-Allen Co., 155 Wis. 168, 175 (1913); Langos v. Menasha Paper Co., 156 Wis. 418, 424 (1914); Kendzewski v. Wausau S. F. Co., 156 Wis. 452, 454 (1914); Sadowski v. Thomas Furnace Co., 157 Wis. 443, 448 (1914); Olson v. Whitney Bros. Co., 160 Wis. 606, 610 (1915); Van de Zande v. Chicago & N. W. R. Co., 168 Wis. 628, 630 (1919); Maryland Casualty Co. v. Thomas F. Co., 185 Wis. 98, 103 (1924); Washburn v. Skogg, 204 Wis. 29, 40 (1931); Mullen v. Larson-Morgan Co., 212 Wis. 52, 60 (1933); Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 382 (1948); Guse v. A. 0. Smith Corp., 260 Wis. 403 (1952); Paepcke v. Sears, Roebuck & Co., 263 Wis. -290, 299 (1953). But see Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960), and Paaske v. Perfex Corp., 24 Wis. 2d 485, 488 (1964): "The duty under the statute is not absolute and the term 'safe' as therein defined is relative," see also cases cited in Note 72 infra.

53. Tallman v. Chippewa Sugar Co., 155 Wis. 36, 39 (1913); Kendzewski v. Wausau S. F. Co., 156 Wis. 452, 454 (1914); Cronce v. Schuetz, 239 Wis. 425, 430 (1942); Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960); Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 170c,d (1963): "Absolute duty is not absolute liability"; Paaske v. Perfex Corp., 24 Wis. 2d 485, 488 (1964); Gross v. Denow, 61 Wis. 2d 40, 46 (1973).

54. Rosholt v. Worden-Allen Co., 155 Wis. 168, 174 (1913); Powless v. Milwaukee County, 6 Wis. 2d 78, 83 (1959). Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960); Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 608 (1961); Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 170e (1963); Paaske v. Perfex Corp., 24 Wis. 2d 485, 488 (1964); DeMarco v. Braund, 30 Wis. 2d 675 (1966) where plaintiff fell on floor of garage which was being used for car-washing, and Court said [680]: "Even assuming that there was a significant amount of water on the floor, the jury was. nonetheless free to have concluded that the place was as safe as its nature would permit. After all, a car was being washed, as was customary, in the general area where appellant fell and the floor would naturally be wet there."; Heckendorf v. J. C. Penney Co., 31 Wis. 2d 346 (1966) where making swinging door more safe by providing finger guards was held not reasonably required; Skybrock v. Concrete Construction Co., 42 Wis. 2d 480, 488 (1969) where street was under construction. But see Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 56 (1967): "More importantly, we think supermarkets which display their produce and fruit in such a way that thev may be handled by customers and dropped or knocked to the floor unintentionally is a way of doing business which requires the storekeeper to use reasonable measures to discover and remove such debris from the floor."; and Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 682 (1970): "The balance between the concepts of requiring safety for the public but not requiring absolute liability without fault is sometimes hard to determine and is influenced by the nature of the premises and the type of use made of the premises by modern business operations. Gross v. Denow, 61 Wis. 2d 40, 47 (1973); Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978).

55. Olson v. Whitney Bros. Co., 160 Wis. 606, 610, 611 (1915). See also Mullen v. Larson-Morgan Co., 212 Wis. 52, 62 (1933); Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 446 (1934); Manitowoc Company, Inc. v. Ind. Comm., 273 Wis. 293 (1956). See Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960) re: nature of variety store business requiring unsafe placement of display in order to attract attention of customers. Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978): "All defects are not necessarily 'unsafe' within the meaning of sec. 101.11(i), Stats."

56. Tallman v. Chippewa Sugar Co., 155 Wis. 36 (1913).

57. Kendzewski v. Wausau S. F. Co., 156 Wis. 452 (1914). For injury due to slipping on ice, see Chapter 4, notes 36 and.42. For slipping on grease, see Young v. Anaconda American Brass Co., 43 Wis. 2d 36 (1969); for tripping over mop leaning against display counter, see Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408 (1970).

58. Cronce v. Schuetz, 239 Wis. 425 (1942). In the Cronce Case the court, referring to a common-law negligence case, said: [431] "The distinction is recognized in Mohl v. Chase Nat. Bank, 294 N.Y. Supp. 534, 536, 162 Misc. 771. In that case the court said: 'It seems to be established that liability cannot be predicated on a wet or soapy or slippery floor while the act of cleaning is in process. Liability may be shown where the lobby, the floor, or the stairs were left in a wet, slippery, and dangerous condition after the washing had been completed. Liability in such a case, of course, will depend upon the care or lack of it used in the cleaning and mopping up, and upon the length of time that elapses between the washing and the drying.'" In the Cronce Case the court went on to say [431], "Granting as we must that the scrubbing or mopping of the hallways in a public building is an indispensable act in the maintenance of the building, we think it cannot be held that the temporary wetting of the floor in the process of scrubbing or mopping even though such a wet condition may tend to make the floor for a time being slippery, can be made the basis of liability against the owner." and [430], "The argument that the mopping of the hallways should have been deferred until after the close of business hours is without merit." As a possible point of distinction for an case that might later arise, the court did mention that [428], "It is not claimed that there was any unusual amount of water on the floor at the time and place where plaintiff fell ... It was a wooden floor and there was no soap or soap chips upon the floor." The stare decisis effect of this case is deemed uncertain in view of its reliance on a common-law negligence case and its possible disregard of the spirit of the safe-place law. See also Juul v. School District, 168 Wis. 111 (1918).

59. Voll v. Ind. Comm., 239 Wis. 71 (1941).

60. Brown v. Appleton Masonic Temple Assn., 243 Wis. 147 (1943).

61. Sweitzer v. Fox, 226 Wis. 26 (1937).

62. Olson v. Whitney Bros. Co., 160 Wis. 606, 610 (1915); Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 560 (1934); Heckel v. Standard Gateway Theater, 229 Wis. 80, 84 (1938); Voll v. Ind. Comm., 239 Wis. 71, 73 (1941); Cronce v. Schuetz, 239 Wis. 425, 429 (1942); Brown v. Appleton Masonic Temple Assn., 243 Wis. 147, 150 (1943); Thoni v. Bancroft Dairy Co., 255 Wis. 577, 582 (1949); Watry v. Carmelite Sisters, 274 Wis. 415, 417 (1957); Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 170d, e (1963); Paaske v. Perfex Corp., 24 Wis. 2d 485, 490 (1964); Heckendorf v. J. C. Penney Co., 31 Wis. 2d 346, 350 (1966); Gross v. Denow, 61 Wis. 2d 40, 46 (1973).

63. Heckel v. Standard Gateway Theater, 229 Wis. 80, 85 (1938); Thoni v. Bancroft Dairy Co., 255 Wis. 577, 582 (1949); Manitowoc Company, Inc. v. Ind. Comm., 273 Wis. 293, 301 (1956); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960). See also remark in Manitowoc Company case that [301], "But where a reasonable and good-faith effort to comply with a statute has been made, an accident does not become the premise of an argument that the occasion for imposing a penalty exists." Zernia v. Capitol Court Corp., 21 Wis. 2d 170e (1963). But see also Anderson v. Joint School Dist., 24 Wis. 2d 580, 586b (1964): "... inference of insufficiency of the glass which could be drawn from the fact that it broke when subjected to a use which could be deemed a normal use, without extraordinary force"; DeMarco v. Braund, 30 Wis. 2d 675, 680 (1966); Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 433 (1970): "finding the piece of marble on the steps did not give rise to an inference that improper or defective materials were used in construction."; Kaiser v. Cook, 67 Wis. 2d 460, 464 (1975); Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26 (Ct. App. 1979); McGuire v. Stein's Gift & Garden Center, 178 Wis. 2d 379, 504 N.W. 2d 385, 392-393 (Ct. App. 1993). But see Lang v. Findorff, 185 Wis. 545, 549 (1925) "The fact that thehoist collapsed raises a presumption that it was not safe. We must take judicial knowledge that a hoist may be reasonably built, maintained, and operated so that it will be entirely safe against the danger of collapse. A presumption of negligence follows from the fact that the hoist did collapse under the circumstances."

64. Erbe v. Maes, 226 Wis. 484, 486 (1938) (slight thickness of rubber mat); Schoonmaker v. Kaltenbach, 236 Wis. 138 (1940) (1/16 inch strip held stairway mat); Shumway v. Milwaukee Athletic Club, 247 Wis. 393, 399 (1945); Thoni v. Bancroft Dairy Co., 255 Wis. 577 (1949) (1/4 inch bulge in floor); Heckendorf v. J. C. Penney Co., 31 Wis. 2d 346 (1966) where the court held that to require finger guards at edge of swinging door would not be reasonable. Balas v. St. Sebastian's Congregation, 66 Wis. 2d 421, 425 (1975). But see Schoonmaker v. Kaltenbach, 236 Wis. 138, 143 (1940): "Courts have been hesitant to sustain findings that walking surfaces are unsafe or defective by reason of slight irregularities or projections. The situation is not quite the same with respect to stairways, and a condition which might not be considered a defect upon an ordinary walking surface might conceivably be held to be such upon a stairway, because tripping or stumbling may obviously have more serious consequences because of the absence of a generally flat surface of any extent upon which to regain balance."; and Bobrowski v. Henne, 270 Wis. 173, 177 (1955): "The test imposed by the safe-place statute is not whether an alleged defect is substantial or inconsequential, but whether it prevents a place from being as safe for frequenters as the nature of the same will reasonably permit."; and Wittka v. Hartnell, 46 Wis. 2d 374, 384 (1970): ... we deem that the concept of actionable defect is inappropriate in connection with a violation of the safe-place statute involving a place of employment. In cases arising under the highway defects statute, inasmuch as the statutory liability there imposed was in derogation of the common-law and the statutory right to recover depended upon a finding of 'defect' under sec. 81.15, this court was obliged to engage in a discussion and determination of what was a defect and what magnitude a defect must attain before it can be actionable. Such a concept is not warranted in the application of the safe-place statute. The question under the safe-place statute is merely whether the defendant was negligent in not maintaining a premise in as safe a condition as the nature thereof would reasonably permit. This concept of negligence does not require that there be ice formations or ruts to a certain depth, but merely that there be negligence, that is, as we said in Cirillo v. Milwaukee (1967), 34 Wis. 2d 705, 711 that a 'harm must be reasonably foreseen as probable by a person of ordinary prudence'."

65. Kendzewski v. Wausau S. F. Co., 156 Wis. 452, 455 (1914); Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 446 (1934); Voll v. Ind. Comm., 239 Wis. 71, 73 (1941); Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 501 (1965); Witta v. Hartnell, 46 Wis. 2d 374, 385 (1970). See also Topp v. Continental Ins. Co., 83 Wis. 2d 780 where employer did not foresee that patron would approach his tavern-restaurant from fronting roadway rather than from parking lot.

66. Voll v. Ind. Comm., 239 Wis. 71, 73 (1941). See Chapter 3, note 21 regarding duty to anticipate.

67. Raim v. Ventura, 16 Wis. 2d 67 (1962); Anderson v. Joint School Dist., 24 Wis. 2d 580 (1964). As to injury from automatic door, see Karis v. Kroger Co., 26 Wis. 2d 277 (1965), and Dahl v. K-Mart, 46 Wis. 2d 605 (1970).

68. Tryba v. Petcoff, 10 Wis. 2d 308 (1960).

69. Carlson v. Chicago & N. W. R. Co., 185 Wis. 365 (1925) (involving loading ice which was being cut on a river), 370, "In Salus v. Great Northern R. Co., 157 Wis. 546 ... it was held that it would be utterly impractical and unreasonable to make the employer responsible for the safety of a place which was at every moment of time changing and where employees to a large extent necessarily made their own place of work, where the operation was simple and familiar to all."; See also Schmidt v. J. G. Johnson Co., 145 Wis. 49, 56 (1911).

70. Northwestern C. & S. Co. v. Ind. Comm., 194 Wis. 337, 341 (1927); Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 498 (1965): "Incidentally, we do not believe the safe-place statute required Public Service to shut off the current to the reactor, and we have serious doubt whether the safe-place statute required that an employee of Public Service be stationed in the room."

71. Krueck v. Phoenix Chair Co., 157 Wis. 266, 271 (1914). Fencing off road under construction not required, Skybrock v. Concrete Construction Co., 42 Wis. 2d 480, 486, 489 (1969).

72. Tallman v. Chippewa Sugar Co., 155 Wis. 36, 39 (1913); Kendzewski v. Wausau S. F. Co., 156 Wis. 452, 454 (1914): "That does not mean that the place of employment must be so safe that an employee cannot become injured. The statute makes the employer an insurer as to furnishing such a place as it requires, but not against injury to employees using the place which has been so furnished. One must distinguish between insurer as to the character of the place, satisfying the calls of the statute, and absolute insurer or safety of employees."; Van de Zande v. Chicago & N. W. R. Co., 168 Wis. 628, 631 (1919): "... not an insurer of the safety of the employee, but only such as to the safety of place or process ..." Northwestern C. & S. Co. v. Ind. Comm., 194 Wis. 337, 341 (1927); Hipke v. Ind. Comm., 261 Wis. 226, 233 (1952); Boutin v. Cardinal Theatre Co.. 267 Wis. 199, 204 (1954); Manitowoc Company, Inc. v. Ind. Comm., 273 Wis. 293 Syl. 1 (1956); Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 432 (1957); Powless v. Milwaukee County, 6 Wis. 2d 78, 81 (1959); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960); Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960): "... not an insurer of customer's safety."; Raim v. Ventura, 16 Wis. 2d 67, 71 (1962); Paaske v. Perfex Corp., 24 Wis. 2d 485, 488 (1964); Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964); DeMarco v. Braund, 30 Wis. 2d 675, 680 (1966); Heckendorf v. J. C. Penney Co., 31 Wis. 2d 346, 350 (1966); Caldwell v Piggly Wiggly Madison Co., 32 Wis. 2d 447, 452 (1966); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 54 (1967); Merriman v. Cash-Way, Inc., 35 Wis. 2d 112, 115 (1967); Skybrock v. Concrete Construction Co., 42 Wis. 2d 480, 484 (1969); Dahl v. K-Mart, 46 Wis. 2d 605, 611 (1970); Carr v. Amusement, Inc., 47 Wis. 2d 368, 373 (1970); Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 437 (1970); Wasley v. Kosmatka, 50 Wis. 2d 738, 744 (1971); Low v. Siewert, 54 Wis. 2d 251, 253 (1972); Gross v. Denow, 61 Wis. 2d 40, 46 (1973); Shoemaker v. Marc's Big Boy, 51 Wis. 2d 611, 615 (1971); Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978); Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 166 (1978); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26 (Ct. App. 1979). But see Pettrie v. Gridley Dairy Co., 202 Wis. 289, 293 (1930). See Zernia v. Capitol Court Corp., 21 Wis. 2d 164, 170c (1963): "We believe that there is no absolute liability in the sense of liability without fault imposed on the employer by the safe-place statute. It is not helpful or meaningful to describe the employer's duty under the safe-place statute in terms of his being an insurer. The safe-place statute imposes no absolute liability. To avoid further difficulty in the future, we think it is the better course to withdraw the language in the Van de Zande Case, supra, and other cases, in which we have described the duty of the employer under the safe-place statute in terms of his being an insurer. We thus adhere to the numerous cases cited above where we have said that the employer under the safe-place statute is not an insurer." 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).

73. Hipke v. Ind. Comm., 261 Wis. 226 (1952), involving injury due to an employee forgetting to lock a blow pit port, where the court said: [233] "The claimant suggests a number of additions and changes which might have been made in the premises to render them more safe. The argument that that fact indicates that the employer violated the safe-place statute might be made in any case. We are unable to conceive any structure, safe as it might be considered to be which could not be made more safe. To hold that the possibility that a safe structure or instrument might be made more safe requires the conclusion that there has been a violation would be to make the owner or employer an insurer."; Manitowoc Company, Inc. v. Ind. Comm., 273 Wis. 293 (1956), involving a counterweight which fell even though it was independently attached to an anchored eyebolt, where the court said [300]: "This is tantamount to saying that the installation could have been made safer. Admittedly, there may be ways in which the installation could have been made safe beyond a reasonable degree of safety. However, in Hipke v. Industrial Commission, 261 Wis. 226, 233, 52 N.W. 2d 401, the argument that something might be made more safe was held to be no argument at all."; Topp v. Continental Ins. Co., 83 Wis. 2d 780, 788 (1978). But see Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 75 where "safer" condition was relevant, and Heckle v. Standard Gateway Theater, 229 Wis. 80, 85 (1938). Further see discussion at Chapter 6: Evidence More Safe.


Revised October 15, 2001

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