(i) Effect of Law

(6) Negligent Acts Not Covered

The Safe-Place Statute mandates that every employer (in addition to providing safe employment and safe place of employment) "shall adopt and use methods and processes reasonably adequate to render such employment and place of employment safe ..." [74a] Methods and processes are activities. They are the acts of operation by which production is achieved. [74b] The way molten metal is transported from the furnace to a working floor is a "method" or "process". Likewise the manner in which a truck is loaded. Methods and processes are aspects of an employment premises which are entirely distinct from the physical condition thereof.

Yet, on a number of occasions the Court has stated that safe-place law deals only with physical conditions on the premises and does not cover acts of operation. [74c]

Has there, therefore, been an effective excising from the statute of the "methods and processes" obligation? or can the statutory injunction and the "act of operation" rule be squared?

The "act of operation" terminology was first used in the 1953 case of Deaton v. Unit Crane & Shovel Corp., [74d] where a crane was so operated as to cause its clamshell bucket to strike the plaintiff. The Court there said:

[at 352] "As applied to a 'place of employment' such statute [Safe-Place Statute] has reference to an unsafe condition rather than to an act in the process of taking place. The pleadings did not raise any issue as to any unsafe condition of the power shovel, nor did the evidence establish such an unsafe condition. The alleged acts of defendant's crane operator as to the manner of lowering or dropping the bucket of the power shovel, and failing to warn plaintiff before so dropping the bucket, relate to acts of operation as distinguished from the condition of the machine. The safe-place statute has no application to such acts of operation..." (emphasis supplied)

This statement is susceptible to the interpretation that all acts of operation fall beyond the purview of safe-place law.

No authorities were cited to the holding.

The Deaton rule was thereafter used to support negation of safe-place law coverage where a crane operator swung the boom of his crane into electric power lines, causing injury to persons who were guiding steel beams suspended from such boom; [74e] where an auction patron was attacked by a bull which had been driven unescorted into the display ring by one of defendant's workers; [74f] where a student at a Curative Workshop was assaulted by a fellow student; [74g] where an employee climbed into a ceiling-high duct and so weakened its supports that the duct fell to the floor; [74h] where a crane operator loaded steel rings onto a flatbed truck in such a manner that an unstable pile was created [74i] (The Court here stating that the Safe-Place Statute did not deal with [at 166] "activities conducted on the premises" --emphasis by the Court); and where a security guard at Milwaukee County Zoo was killed by a burglar. [74j]

However, in other cases the Court has held that the following acts constituted a violation of the Safe-Place Statute:
--unloading logs from a flat car by weakening retaining stakes to the extent that they would be broken by the pressure of logs being retained, thus causing the logs to roll off the car; [74k]
--loading logs onto a car in a manner which required that an employee unhitch the hoisting chain at the spot where it was attached to the logS; [74l]
-- disposing of crosspieces on a lumber pile by throwing the same down from the pile into an adjacent passageway; [74m]
--breaking up pile of scrap iron by dropping a weight from the elevated boom of a crane; [74n]
--moving heavy machinery by means of a rope sling; [74o]
--scrubbing floor of the garage part of a service station with gasoline; [74p]
--trimming branches with a power saw while seated in the tree; [74q]
--de-energizing an electric line in a careless manner. [74r]

These last mentioned cases involved "acts of operation" or "activities conducted on the premises".

The pin-point of the problem might be Deaton's failure to cite authority for the rule which it invoked -- thereby creating the impression that the subject matter was of first impression and was being initially treated. Such, however, was not the case. Deaton merely used different words to express an already established rule, i.e. that an employer does not sustain safe-place liability for the negligent act of someone else.

The genesis of the established rule is a 1915 case which held that the Safe-Place Statute did not render the employer liable for injuries sustained when a railroad motor car ran into the rear of a passenger train which was stopped in a tunnel. [74s] Articulation of the rule came sixteen years later in the case of Baker v. Janesville Traction Co. [74t] where a street car motorman who was switching the trolleys on his car was struck by a speeding motorist. The Court there said:

[at 457] "...the complaint certainly points out no 'methods and processes' which would have served effectually to protect plaintiff. Plaintiff's injuries in this case were not caused by any failure of the defendant to perform its duty under the statute, but were immediately and proximately caused by the unlawful acts of the other defendants, according to the allegations of the complaint. The [safe-place] statute does not require an employer to protect his employee against wilful, unlawful, or even negligent, acts of others. Wood v. General Railway Signal Co., 161 Wis. 71, 151 N.W. 269. It relates to the premises and the conduct of the business of the employer and to the control of those methods and processes which are used in the employer's business over which he has a right of control and does not make the employer liable for the unlawful acts of third persons over whom he has no control or right of control."

(The next application of the rule came in a 1950 case where children attending a Sunday movie matinee were engaged in horseplay and an errant spitball hit the eye of a non-participating patron.) [74u]

At this 1950 point in time, and prior to the 1953 Deaton case, there was no conflict between the statutory "methods and processes" duty and the rule that safe-place law did not apply to negligent acts -- the Court having pointed out that methods and processes were activities traceable to the employer and that negligent acts were activities which were not traceable to the employer.

Deaton confused this clear distinction by inventing a new phrase -- "acts of operation".

There are several reasons to believe that the coining of such phrase was not intended to change the law. For one thing, a change of law was not necessary to the disposition made in the Deaton case. In that case the crane operator alone was responsible for the negligent act which caused plaintiff s injury. His act was not traceable to the employer. Therefore, under the already established rule, the Safe-Place Statute did not apply. And this is true of every case which thereafter quoted the Deaton "acts of operation" language. Each of them involved injuries caused by the negligence or willfulness of third persons, and the outcome in each would have been the same had the rule as expressed in Baker been applied. Another reason for believing that the Baker rule is still the law, and that the Deaton language was intended merely as a paraphrase of such rule, is the fact that in those cases where an act of operation has been held violative of the Safe-Place Statute, the activity in question was traceable to the employer. It is also deemed significant that the "acts of operation" or "activities conducted on the premises" terminology has never been used in a methods and processes case, and, conversely, the words "methods" or "processes" have not been discussed in those cases which have cited Deaton as an authority.

This apparent conflict in safe-place law will be resolved when distinction is expressly recognized between (a) those acts of operation (and activities conducted on the premises) which are traceable to the employer, and (b) those acts and activities which are solely the doings of third persons.

So where injury was caused by the negligent operation of a crane, the court said, "Such statute [101.11] has reference to an unsafe condition rather than to an act in the process of taking place." [75] and safe-place recovery was denied. Likewise where a minor theater patron was hit in the eye by a spitball. [76] However, to be distinguished are cases where a negligent act creates an unsafe condition and where a negligent act and an unsafe condition combine to produce an injury. In these situations the safe-place law could apply - but by reason of the condition involved, not the accompanying act. [77] Also distinguishable (although not always apparently so) are situations in which injury is caused by unsafe "methods and processes". The safe-place statute expressly requires employers to "adopt and use methods and processes reasonably adequate to render such employment and places of employment safe. [78] The methods or processes which have been found to violate the safe-place law often are similar to negligent acts. For example, where an employee was injured by a crosspiece thrown from a lumber pile by a fellow employee, the court held that a safe-place violation existed by reason of the unsafe method of disposing of crosspieces. [79] So likewise where a foreman carelessly arranged to have electric wires de-energized before the employee commenced work. [80] However, in the unsafe "methods or processes" situation, responsibility therefor must always be traced to the employer. [81] Furthermore, in view of the employer's duty to provide safe employment, it appears that liability would attach where negligent practices of fellow employees or others were known to exist -- even if such practices could not qualify as "methods or processes". [82]

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

74. Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349 (1953); L. G. Arnold, Inc. v. Ind. Comm., 267 Wis. 521 (1954); see Baker v. Janesville Traction Co., 204 Wis. 452, 457 (1931): "The statute does not require an employer to protect his emplovee against wilful, unlawful or even negligent acts of others."; Gilson v. Drees Brothers, 19 Wis. 2d 252, 257 (1963); Merkley v. Schramm, 31 Wis. 2d 134 (1966); Gross v. Denow, 61 Wis. 2d 40, 47 (1973); Korenak v. Curative Workshop Adult Rehabil., 71 Wis. 2d 77, 80 (1976); Barth v. Downey Co., Inc., 71 Wis. 2d 775, 779, 780 (1976); Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 166 (1978). But see note 78, infra.

74a. Wis. Stat. Sec. 101.11(l).

74b. Websters Seventh New Collegiate Dictionary, 1963, G & C Merriam Co. (a) Method: "a procedure or process for attaining an object."; (b) Process: "a series of actions or operations conducted to an end."

74c. See cases cited in footnotes 74c through 74h.

74d. Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349 (1953)

74e. L. G. Arnold, Inc. v. Industrial Comm., 267 Wis. 521 (1954)

74f. Gilson v. Drees Brothers, 19 Wis. 2d 252 (1963)

74g. Korenak v. Curative Workshop Adult Rehabil., 71 Wis. 2d 77 (1976)

74h. Barth v. Downey Co., Inc., 71 Wis. 2d 775 (1976)

74i. Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161 (1978)

74j. Leitner v. Milwaukee County, 94 Wis. 2d 186 (1980)

74k. Sparrow v. Menasha Paper Co., 154 Wis. 459 (1913)

74l. Kelly v. Kneeland-McLung Lumber Co., 161 Wis. 158 (1915)

74m. Szeliwicki v. Conner L. L. Co., 163 Wis. 20 (1916)

74n. Kuske v. Miller Brothers Co., 227 Wis. 300 (1938)

74o. Combustion Engineering Co. v. Ind. Comm., 254 Wis. 167 (1948)

74p. Kluth v. Crosby, 275 Wis. 251 (1957)

74q. Sachse v. Mayer, 1 Wis. 2d 506 (1957)

74r. Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209 (1960)

74s. Wood v. General Railway Signal Co., 161 Wis. 71 (1915)

74t. 204 Wis. 452 (1931)

74u. Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333 (1951)

75. Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349, 352 (1953); see also L. G. Arnold, Inc. v. Ind. Comm., 267 Wis. 521, 525 (1954) (crane carrying steel beams coming too close to high tension wires).

76. Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333 (1951).

77. See Sweitzer v. Fox, 226 Wis. 26, 34 (1937) "...If an injury is caused by a condition due to failure to comply with those provisions [safe-place statute], 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 Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161 (1978) where held that unsafe stacking operation not covered by safe-place statute while same was taking place, but that statute did cover injuries resulting from unsafe stacking condition in existence after act of stacking had been completed (as in Peschel v. Klug, 170 Wis. 519 (1920) and Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71 (1957)

78. Wis. Stat. Sec. 101.11. Possibly the court considered an employer's failure to exclude frequenters from area of danger as a failure to use "methods and processes" in Gross v. Denow, 61 Wis. 2d 40 (1973) (failure to prohibit pedestrian traffic along narrow road through race track premises) and in Kaiser v. Cook, 67 Wis. 2d 460 (1975) where it was held: (464) "We conclude that the defendants did violate the safe-place statute by allowing spectators to watch the races from the third and fourth turns." For other methods and processes cases see Chapter 3 Extent of Employer Duty.

79. Szeliwicki v. Connor L. & L. Co., 163 Wis. 20 (1916).

80. Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209 (1960). Also in point is the court's failure to comment on injury being due to negligent act where injury occurred by reason of fellow-servants negligence in closing blow pit port -- Hipke v. Ind. Comm., 261 Wis. 226 (1952).

81. See Eau Claire Etectric Co-op v. Ind. Comm., 10 Wis. 2d 209 (1960) re: responsibility imputed to employer.

82. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 77 (1957): "An employer cannot permit its rank-and-file employees to do things habitually in the course of their work that are very natural and reasonably to be anticipated, and then escape responsibility for their carelessness in the premises on the ground that they were not authorized to do such things."; Wasley v. Kosmatka, 50 Wis. 2d 738, 744 (1971) "The duty to provide safe working conditions is nondelegable, and includes providing reasonably safe equipment for the execution of employment tasks and competent fellow workers." But see Korenak v. Curative Workshop Adult Rehabil., 71 Wis. 2d 77 (1976) and Baker v. Janesville Traction Co., 204 Wis. 452, 457 (1931). For negligent stacking operation not within purview of safe-place statute, see Stefanovich v. Iowa Nat..Mut. ins. Co., 86 Wis. 2d 161 (1978).