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Chapter One: Nature of Safe-Place Law
(15) (a) The department has such supervision of every employment, place of employment and public building in this state as is necessary adequately to enforce and administer all laws and all lawful orders requiring such employment, place of employment or public building to be safe, and requiring the protection of the life, health, safety and welfare of every employe in such employment or place of employment and every frequenter of such place of employment, and the safety of the public or tenants in any such public building. This paragraph shall not apply to rural school buildings and, after October 31, 1975, where issues of employer-employe relationship are covered by federal standards enforced by the occupational safety and health administration.Sec. 101.02 authorizes the ILHR Department to make safety orders. "When the [industrial] commission does make a lawful order and it is complied with, the safety of the place involved is conclusively established at least in so far as the subject matter of the order is concerned. Thus when an order of the commission is claimed to be applicable, the sole question is whether the structure conforms to the order. If it does, the jury may not substitute its conclusions as to its safety for those of the body vested by statute with the power to determine this matter." [101] Accordingly, orders of the ILHR Department have a direct effect on the application of safe-place law. Compliance with such an order is conclusive evidence of compliance with the safe-place statute; [102] and failure to comply with such an order is conclusive evidence of violation of the safe-place statute. [103] When the department has not formulated an order covering a particular situation, the question of safe-place violation is for the jury. [104] However, it has also been held that if the department has considered an area of construction or maintenance and has seen fit to issue only general orders of safety regarding the same, the lack of an order on some subordinate detail cannot be deemed to create a jury issue as to the safety thereof where standard practice has been followed. The inference in such a case is that the department determined standard practice to be safe and that no express order, therefore, was necessary. Thus where the posts of a balcony railing were merely toenailed to the floor and the floor under the posts had rotted and the railing gave way causing injury to plaintiff, the court pointed out that the only orders on the subject required (a) that wood posts shall be cut true to the bearing surfaces which receive them, (b) shall have a bearing of nonabsorbent material and (c) shall have a plane of bearing not less than two inches above the finished floor and further pointed out that toenailing was common practice, it was held that toenailing could not be considered unsafe. [105] ILHR Department orders having the above-stated effect are only such orders as are within the rightful power of the department to make. Orders going beyond the authority of the department are void and cannot be considered in a safe-place matter. [106] Department orders have been held to be in excess of authority, and invalid, where they require absolute safety rather than merely safety as is reasonably permitted by the nature of the place. [107] The following kind of orders have been adjudged invalid for this reason: an order requiring a "safe" scaffold; [108] an order requiring trenches to be "securely shored up"; [109] an order requiring "means provided to insure secure footing in so far as the nature of the work will permit"; [110] an order requiring a floor to be "cleaned, sprinkled with sand, or made nonslippery in some other effective way"; [111] and an order requiring "a safety chain that will prevent the weight from falling". [112] [To be distinguished, however, are orders which impose an absolute duty to afford certain safety appliances as goggles or rubbers.] [113] ILHR Department orders have also been held ineffective where they purport to control the activity of employees. [114] And a vague order has no validity. [115] "Before a penalty should be imposed, an employer engaged in any work ought to be reasonably advised or informed as to what safety devices or safeguards are required in order that the question as to whether or not he is complying therewith may at least be reasonably clear." [116] A department order has been held not applicable where the object which caused injury did not come within the exact meaning of the language used; [117] and where the order applied to finished buildings but the defect caused injury during modification construction;" [118] and where the building had been constructed before the order was issued. [119] In a situation where several persqns are responsible for the compliance of a safety order, it is sufficient if only one complies -- duplication is not required. [120] No case has been found which deals with the effect of building (or other) ordinance violation, but it appears that the fact of such violation might well be material. [121]
Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W. 99. Laws 1911, c. 485. 100. See Wis. Stat. Ch. 101, generally. State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 504 (1928): "Here is a field in which the necessity of an administrative agency is apparent to the most superficial observer. While the legislature might by act prescribe the same rules as are prescribed by the industrial commission, when prescribed they would remain rigid, inflexible, subject to alteration only by amendment by subsequent legislatures."; Saxe Operating Corp. v. Ind. Comm., 197 Wis. 552, 554 (1929): "An examination of all the statutes relating to the powers of the Industrial Commission discloses a legislative intent to confer full and complete power on the commission to prescribe standards for the erection and equipment of physical plants, including plenary power over the entire field of safeguards and safety devices. The legislature gave the commission full power to deal with the plant, -- with the inanimate objects that determine whether a place of employment is safe.". See also Sadowski v. Thomas Furnace Co., 157 Wis. 443, 447 (1914): "Counsel for appellant contend that the trial court dealt with the cause upon a wrong theory; that the legislative requirements aforesaid [safe-place statute], standing alone, do not add to the common-law standard of care, and that they have little or no vitality until the industrial commission acts under its supervisory authority and prescribes what shall and what shall not be done to satisfy them; but it seems to follow from what has preceded that they are wrong."; Zeininger v. Preble, 173 Wis. 243, 246 (1921): "The argument made here is that secs. 2394-41 to 2394-71, simply confer upon the industrial commission of Wisconsin the right to investigate, ascertain, and determine by general order such classifications of persons, employment, places of employment, and public buildings as shall be necessary to carry out the purpose of the statute, and that liability on the part of the owner of a public building for failure to comply with the statute must therefore await some action on the part of the industrial commission. We think this position is untenable."; Gibson Auto v. Finnegan, 217 Wis. 401, 409 (1935): "By that act the legislature did not give to the industrial commission or any other subordinate person, body or group, the option to say whether in any particular line of industry there shall be a safe place of employment. That the legislature said for itself ... A definite objective is prescribed in the achievement of which the industrial commission is to aid by the filling in of details." 101. Bent v. Jonet, 213 Wis. 635, 645 (1934); see also Waterman v. Heinemann Bros., 229 Wis. 209, 212 (1938): "When the [Industrial] Commission has provided the necessary elements of safety applicable to a particular place it is not for the court or jury to establish others."; Dahl v. Charles A. Krause Milling Co., 234 Wis. 231, 237 (1940); Candell v. Skaar, 3 Wis. 2d 544, 551 (1958); but see Burling v. Schroeder Hotel Co., 235 Wis. 403 (1940), where there was dispute as to the applicability of industrial commission orders and the Supreme Court approved instruction to the jury that [409], "You should not try to determine or even consider whether the safetv order or ordinance applies to this case." To same effect are orders of Wisconsin Public Service Commission. See Verrette v. Chicago & N. W. Ry., 40 Wis. 2d 20 (1968) where railroad crossing approval by PSC was conclusive on question of safety. [28] "The language of sec. 195.29, Stats., is clear and peremptory. It specifically deals with the establishment of railroad highway crossings and this section, together with ch. 192, gives the public service commission exclusive jurisdiction once it has acted." 102. See footnote 106, infra. 103. Wannmacher v. Baldauf Corp., 262 Wis. 523, 539c (1952); Harnett v. St. Mary's Congregation, 271 Wis. 603, 608 (1956); Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 434 (1957); Candell v. Skaar, 3 Wis. 2d 544, 549 (1958); Pendor v. Faust, 9 Wis. 2d 51, 54 (1960): "... Any violation thereof [industrial commission order] is violation of the safe-place statute."; Presser v. Siesel Construction Co., 19 Wis. 2d 54, 65 (1963); Grede Foundries, Inc. v. Price Erecting Co., 38 Wis. 2d 502, 506 (1968); Cossette v. Lepp, 38 Wis. 2d 392, 399 (1968); Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 347 (1970); Sampson v. Laskin, 66 Wis. 2d 318, 331 (1975); RTE Corp. v. ILHR Department, 88 Wis. 2d 283, 289 (1979). See also Fitzpatrick v. Rice, 273 Wis. 201, 207 (1956). 104. Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 103 (1931): "It is contended that because the changes made do not run counter to the provisions of the building code of the city of Milwaukee or the orders of the Industrial Commission governing the matter of steps, all which were introduced in evidence, the defendants cannot be held liable. This is untenable. Violation of a provision of an ordinance or order of the Commission would doubtless impose liability under the statute, in absence of contributory negligence, unless the provision should be held unreasonable as a matter of law. But it does not follow that if no provision. is violated there is no liability. Ordinances or orders can hardly be framed to cover every conceivable situation."; Builders Mut. Cas. Co. v. Ind. Comm., 210 Wis. 311 (1933), where injury was caused by acid splashing on scaffold rope and industrial commission had no order regarding protection of rope from acid; Bent v. Jonet, 213 Wis. 635, 645 (1934): "Where there is NO proper evidence of an order by the commission applicable to the situation, the jury must be left to determine the issue ..." 105. Skrzypczak v. Konieczka, 224 Wis. 455, 462 (1937): "In view of absence from the code of provisions applicable to such buildings as the instant one prohibitive of the practice commonly followed in railings such as are here involved, and the statutory duty of the industrial commission to 'fix and order such reasonable standards, rules or regulations for the construction ... of ... public buildings. as shall render them safe' (Sec. 101.10(5), Stats.), and the commission's action pursuant to that statute, we are of opinion that a jury would not be warranted in finding the structure here involved unsafe."; Parchem v. St. Cecilia's Congregation, 28 Wis. 2d 227, 230 (1965): "Although there appears to be no express requirement that a handrail must extend the full length of a stairway, and to the uppermost step or platform, there was testimony by an inspector employed by the industrial commission that the handrail requirement is so construed, and we consider that a reasonable construction." 106. Bentley Bros., Inc. v. Ind. Comm., 194 Wis. 610 (1928); Wenzel & Henoch Const. Co. v. Ind. Comm., 202 Wis. 595 (1930); Robert A. Johnston Co. v. Ind. Comm., 242 Wis. 299 (1943); Wis. Bridge & Iron Co. v. Ind. Comm., 268 Wis. 314 (1954); Manitowoc Co. v. Ind. Comm., 273 Wis. 293 (1956); see also Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 103 (1931). 107. Bentley Bros., Inc. v. Ind. Comm., 194 Wis. 610 (1928); Wenzel & Henoch Const. Co. v. Ind. Comm., 202 Wis. 595 (1930); Robert A. Johnston Co. v. Ind. Comm., 242 Wis. 299 (1943); Wis. Bridge & Iron Co. v. Ind. Comm., 268 Wis. 314 (1954); Manitowoc Co. v. Ind. Comm., 273 Wis. 293 (1956). 108. Bentley Bros., Inc. v. Ind. Comm., 194 Wis. 610, 613 (1928): "It will thus be seen that while the statute requires the place of employment to be as free from danger as the nature of the employment will reasonably permit, the order of the Industrial Commission lays out of consideration the question of reasonableness and assumes to require all scaffolds to be safe. That this is an attempt at legislation, pure and simple is apparent. That it is ineffective, and beyond the power of the Industrial Commission, is just as manifest. [614] It is the duty of the Industrial Commission to ascertain what safety devices or safeguards will make various places of employment as free from danger as the employment or place of employment may reasonably permit, and to require the installation of such safeguards and safety devices. That is the duty enjoined upon the Industrial Commission, and it marks the extent of its authority." 109. Wenzel & Henoch Const. Co. v. Ind. Comm., 202 Wis. 595 (1930). 110. Robert A. Johnston Co. v. Ind. Comm., 242 Wis. 299, 303 (1943): "... The use of but the language last quoted. without qualifying the verb 'will permit' by the adverb 'reasonably', or some synonymous word, renders the order invalid in that the language used is broader in meaning than the language of the statute ..." 111. Wis. Bridge & Iron Co. v. Ind. Comm., 268 Wis. 314, 319 (1954): "It is apparent that the mere fact that an employee slips on a floor would establish a prima facie violation of the order. That portion of the order which is here involved is thus invalid as imposing upon an employer a greater duty than that imposed by statute ..." 112. Manitowoc Co. v. Ind. Comm., 273 Wis. 293, 297 (1956): "... impossible of fulfillment, unreasonable, and makes the employer an insurer." 113. Wis. Bridge & Iron Co. v. Ind. Comm., 268 Wis. 314, 318 (1954). 114. Saxe Operating Corp. v. Ind. Comm., 197 Wis. 552 (1929), dealing with an industrial commission order requiring the operator of an elevator to close landing doors before starting the elevator. The court said [554]: "If the commission may subject the employer in this case to the fifteen per cent. penalty by adopting the rule which prohibits this negligent starting of the elevator before the landing doors are closed, it may adopt orders which will cover the entire field of want of ordinary care on the part of employees and thereby subject employers to this penalty in every case where any employee is injured through the negligence of a fellow employee. Such clearly was not the legislative intent." 115. Wenzel & Henoch Const. Co. v. Ind. Comm., 202 Wis. 595, 602 (1930); Robert A. Johnston Co. v. Ind. Comm., 242 Wis. 299, 303 (1943); Harnischfeger Corp. v. Ind. Comm., 263 Wis. 76, 81 (1953); Manitowoc Co. v. Ind. Comm., 273 Wis. 293 (1956). 116. Wenzel & Henoch Constr. Co. v. Ind. Comm., 202 Wis. 595, 602 (1930). 117. Presser v. Seisel Construction Co., 19 Wis. 2d 54, 64 (1963): "For some purposes the Nike elevator or hoist might be considered an elevator since it could be used as such. But the elevator code contemplates safety requirements of normal passenger and freight elevators and was not intended to apply to a military missile mechanism of the United States Government. It would be stretching the word 'elevator' beyond the breaking point to apply the safety code to these facts." 118. Presser v. Siesel Construction Co., 19 Wis. 2d 54, 64 (1963): "... during the course of the modification the safety order [on finished buildings] did not apply and only the rules governing safety in construction ... applied." 119. Parchem v. St. Cecilia's Congregation, 28 Wis. 2d 227, 231 (1965): "No provision applicable to this stairway required any handrails except along the sides. The building code, 3 Wis. Adm. Code, secs. Ind. 50.001-59.75, does not apply to this stairway because the church was built, and the stairway put into its present form, before October 9, 1914." 120. Gupton v. Wauwatosa, 2 Wis. 2d 217, 222 (1960). Regarding responsibility for compliance with safet order only being on employee's immediate employer see Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 348 (1970); and IND. 35.01.
121.
Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 103 (1931): "Violation of a provision of an ordinance ... would doubtless impose liability under the statute ..." See Wis. Stat. Sec. 101.01(l)(g): "Local order means any ordinance, order, rule or determination of any common council, board of aldermen, board of trustees, or the village board, of any village or city, or the board of health of any municipality, or an order or direction of any official of such municipality, upon any matter over which the department has jurisdiction.";
Merkley v. Schramm, 31 Wis. 2d 134, 140, 141 (1966): "... for there to be a safe-place violation based on an ordinance infraction, the violation must be connected with the accident ..."
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