Wisconsin Safe-Place Law Revised



Chapter Two: Places Covered
    (a) Place of Employment
A "place of employment", under safe-place law, is "every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business [2] is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another [3] for direct or indirect gain or profit ..." [4] The element of "direct or indirect gain or profit" is construed to mean gain or profit to the employer not to the employee. [5] Accordingly, where employment is given by municipal corporations or religious or charitable organizations, there is no "place of employment" within the purview of safe-place law because the employer is not regarded as deriving gain or profit therefrom. [6] Premises of municipal corporations and of religious, charitable and fraternal organizations are no longer automatically exempt from "place of employment" status under the gain-or-profit theory. Later cases have determined that such entities, at times, do engage in profit making activities so as to make their premises a "place of employment." [6a] It appears, however, that safe-place recourse will be allowed only where injury occurred on that part of the premises which were being used for the profitmaking activity. [6b] Likewise where employment is given by the Federal government. [7]

It is not necessary that actual gain or profit result. [8]

Argument that use of non-profit organizations premises by employees of profit-making enterprise transforms same into place of employment as to the non-profit organization is not tenable. [9] But use of non-profit organization's premises by employees of profit-making enterprise can make such premises a "place of employment" as to the profit-making employer. [9a]

It has been held that when an area is used by the general public, it cannot be considered a place of employment. [10]

A place does not qualify as a "place of employment" if any element of the definition is lacking. [11]

An injury is considered to have occurred in a "place of employment" although it was sustained in a portion of the employment premises where work would not normally, or regularly, be undertaken. [12] Thus failure to furnish a safe place of employment was found where injury to a frequenter occurred on a private sidewalk outside of the place in which work was performed. [13] Under the statutory definition even property "appurtenant" [14] to the employment premises are deemed to be a part of the "place of employment." However, as to injury on adjoining premises, liability would not be imposed unless the owner or employer had some degree of control over the same. [15] Storage of items for use at a place of employment does not transform the storage space, de facto, into a place of employment. [15a]

As to the statutory requirement that a person be "employed" in order that a place be deemed a "place of employment", two situations which are apart from the ordinary have appeared in the cases. One such situation involves an established industry, trade or business place at which persons are usually employed, but at which, as a temporary condition, no one was employed when the accident happened. In the other situation employment is temporarily occurring at a place which ordinarily is not devoted to industry, trade or business. In both situations the safe-place law has been held to apply. [16]

The safe-place law will not apply, however, where there is no current employment at a place which is not an established business place. For example, a private balcony to an apartment unit which the building janitor used in installing and removing window screens was not a place of employment where it was not currently being devoted to such use; [17] and a public street under which pipes had been laid and which had been surfaced was not a place of employment after such work was completed. [18]

Another question which sometimes arises in regard to the "person employed" element in the place of employment definition is whether such person need be working for remuneration. Inasmuch as the phrase "direct or indirect gain or profit" in the statutory definition (identical phrase also in "employe" definition) has been consistently construed to mean gain or profit to the employer, [19] it is arguable that the only qualification a person employed must have is that he "be required or directed by any employer ... to engage in any employment, or to go or work or be at, any time in any place of employment", [20] and that remuneration is not a requisite. Under this reasoning, the premises of a homeowner might be a place of employment where a neighbor was helping, by invitation, to lay a patio by running the cement mixer. [21]

However, the Court has held that an unpaid wife who assists in her husband's enterprise is not a person employed. [22] And it has been held that to be an "employee," a person must receive gain or profit, direct or indirect, in exchange for submitting to the employer's power or authority. [22a]

By reason of the broad terms of the statute defining "place of employment", the court has been quite liberal in finding various premises to be places of employment. It has been held that, "The safe-place statute defines 'place of employment' very broadly; a place of employment can be almost any place." [23] Accordingly, the following places have come within the scope of the statute: an apartment house, [24] a building under construction, [25] a dance floor, [26] a driveway, [27] the exterior of a building, [28] a filling station, [29] a roof, [30] a sidewalk, [31] a mine, [32] a street, [33] a stage, [34] a railroad tunnel, [35] a boiler, [36] a quarry, [37] a runway, [38] a lecture platform, [39] a scaffold, [40] a ramp, [41] a clubhouse, [42] a parking lot, [43] and a light pole. [44]


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

2. As to phrase "industry, trade or business" including operation of an apartment house, see Chapter 3, footnote 101, infra. School not included - Kirchoff v. Janesville, 255 Wis. 202, 207 (1949); Niedfelt v. Joint School District, 23 Wis. 2d 641 (1964). See also Schoenfeldt v. Babcock, 26 Wis.'2d 569, 574 (1965) (Solitary or occasional sale not constituting trade or business). As to transmission of electricity over a place being "process or operation", see Barthel v. Wisconsin Electric Power Co., 69 Wis. 2d 446 (1975). Peppas v. Milwaukee, 29 Wis. 2d 609, 615 (1966): "Whether or not a particular location constitutes a place of employment does not depend on the type of defect present but rather turns on the use made of the area."

3. Kirchoff v. Janesville, 255 Wis. 202, 206 (1949): "It is clear from the provisions of the statute that unless the defendant was an employer ... the place where he [plaintiff] was injured was not a place of employment." See also footnotes 16-22, infra.

4. Wis. Stat. Sec. 101.01(2)(a). Definition paraphrased in Padley v. Lodi, 233 Wis. 661, 663 (1940).

5. Rogers v. Oconomowoc, 24 Wis. 2d 308, 314 (1964): "In so holding we followed a statutory construction of long standing that it is the profit motive of the employer to which the statute refers, not to that of the employee. We have recently reaffirmed the same construction. We are not persuaded that plaintiffs construction should now be adopted."; Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639 (1979). See also cases in footnote following. As to domestic service: Although domestic service would appear to be excluded from safe-place coverage where injury due to unsafe place of employment (because no profit motive), not so where injury due to "unsafe employment". Profit motive is element in "place of employment", not in further statutory duty imposed on employers toward employees of providing "safe employment". But see Persons Protected, Emplolyee and its footnote 7a to the effect that to be an "employee" a person must receive gain or profit, direct or indirect, in exchange for submitting to the employer's power or authority.

6. Waldman v. Young Men's Christian Asso., 227 Wis. 43, 46 (1938) (a swimming pool at the YMCA); Herrick v. Luberts, 230 Wis. 387 (1939) (a town highway); Cegelski v. City of Green Bay, 231 Wis. 89 (1939) (snowdrift at bottom of city toboggan slide); Flynn v. Chippewa County, 244 Wis. 455 (1944) (a county jail); Kirchoff v. Janesville, 255 Wis. 202 (1949) (a vocational school); Hoepner v. Eau Claire, 264 Wis. 608 (1953) (public soft-ball playing field); Grabinski v. St. Francis Hospital, 266 Wis. 339 (1954) (a hospital); Gupton v. Wauwatosa, 9 Wis. 2d 217, 224e (1960); Rogers v. Oconomowoc, 16 Wis. 2d 621 (1962) (a public recreational park and bathing beach). See also Paykel v. Rose, 265 Wis. 471 (1953) where defendant dairy company had invited plaintiff to its company picnic held at a privately owned amusement park and she there was injured by a baseball being used in a game between company employees. In denying recovery the court said [473]: "It is not alleged that Luick in the use of the park was engaged in 'any industry, trade, or business,' or that its employees were 'employed by ... [it) for direct or indirect gain-or profit'."; Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964); Niedfelt v. Joint School District, 23 Wis. 2d 641, 647 (1964); Rogers v. Oconomowoc, 24 Wis. 2d 308, 315 (1964); Mlynarski v. St. Rita's Cong., 31 Wis. 2d 54, 57 (1966): "It is settled that due to the absence of profit motivations, a school is not a place of employment."; Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969); Korenak v. Curative Workshop Adult Rehabil., 71 Wis. 2d 77, 84 (1976); Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639 (1979).

6a. Leitner v. Milwaukee County, 94 Wis.2d 186, 191 (1980): "Because the premises are owned by a county does not, ipso facto, mean that they are not a place of employment. A county can, and often does, engage in activities to make a profit.": Quesenberry v. Milwaukee County, 106 Wis.2d 685, 695 (1982); Schmorrow v. Sentry Ins. Co., 138 Wis.2d 31 (Ct.App. 1987) where injury occurred at that place in the Kenosha Elks Club where rooms were rented to members and guests.

6b. See Schmorrow v. Sentry Ins. Co., 138 Wis.2d 31,43 (Ct.App. 1987) where the court pointed out that injury occurred in that part of the building devoted to the profit-making operation, and distinguished an earlier case on the ground that the accident did not occur at the place of the profit-making activity.

7. Presser v. Siesel Construction Co., 19 Wis. 2d 54, 64 (1963): "Prior to the construction work the Nike site was under the sole control of the (federal) government. It was not then a place of employment because no persons were employed for profit.". But see American Exch. Bank of Madison v. United States (C.A. 7th, 1958) 257 F. 2d 938, where the Court of Appeals held that the federal government was liable as an employer under the Wisconsin Safe-Place Statute by reason of its operation of a post office; to same effect is O'Melia v. United States (E.D. Wis., 1961) 195 F. Supp. 174.

8. Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964): "The existence or nonexistence of an actual profit, of course, is not material."; Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969).

9. Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969): "The fact that employees of other employers ... use the parking lot does not make the hospital an owner of a place of employment. If the extremes of this contention were recognized as the law, a person's home would become a place of employment under the safe-place statute."

9a. Leitner v. Milwaukee County, 94 Wis.2d 186, 190 (1980): "The [Milwaukee County] zoo was a place of employment because Leitner was employed there and his employer, Wisconsin Industrial Police, Inc., was in business for profit or gain."

10. Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692, 697 (1972): "This court has held that when an area is used by the general public, it cannot be considered a place of employment ... In order for an area open to the public to be deemed a place of employment, the owner of the adjoining premises must have almost complete dominion and control over the area in question; and where the general public uses the area, the requisite dominion and control appear to be latking."

11. Wittka v. Hartnell, 46 Wis. 2d 374, 380 (1970): two elements must be established before a location qualities as a 'place of employment' under the safe-place statute: Business must be carried on, and a person must be employed on the premises."; Barthel v. Wisconsin Electric Power Co., 69 Wis. 2d 446, 450 (1975).

12. Werner v. Gimbel Brothers, 8 Wis. 2d 491 (1959). The finding of "place of employment" in this case was not laid to the fact that work had been performed on the sidewalk but rather the Supreme Court adopted the trial court's opinion that, "Where, however, the sidewalks constitute a part of a business venture, such as a shopping center, such sidewalks may well constitute a place of employment"; and itself pointed out [493b], "The walk is a place of employment in so far as it concerns Gimbel Brothers. If there is any uncertainty from the record about the walk being a part of this demised premises, at least the record makes it certain that the walk adjoins the demised premises.' [Italics by court]. But see Waldman v. Young Men's Christian Asso., 227 Wis. 43, 46 (1938): "It is likewise immaterial that a hotel or dormitory is operated for profit in another portion of the building. It may well be that as to such portion the statute applies, although it is unnecessary to pass upon that here. The portion of the premises in which the accident happened was not one in which an industry, trade, or business was being carried on, nor was any person employed there for direct or indirect gain or profit. Hence, the swimming pool and its environs were not a place of employment ...". A lawyer's home does not constitute a place of employment as a result of occasionally having clients there for their convenience in transacting business, Geiger v. Milwaukee Guardian Insurance Company, 188 Wis. 2d 333, 524 N.W. 2d 909, 911 (Ct. App. 1994). As to an employee or frequenter who trespasses not being protected by safe-place law, see Chapter 5 (d).

13. Werner v. Gimbel Brothers, 8 Wis. 2d 491 (1959); Filipiak v. Plombon, 15 Wis. 2d 484 (1962). See also Paepcke v. Sears, Roebuck & Co., 263 Wis. 290 (1953), where injury occurred in a parking lot across the street from the retail store which it serviced.

14. Sec. 101.01(2)(a). See 3A Words & Phrases 528 as to "appurtenant" meaning accessory or incidental to; where a minor thing serves some useful purpose to another thing as principal. Barthel v. Wisconsin Electric Power Co., 69 Wis. 2d 446, 455 (1975): "Electric lines may be miles from the generating plantand are not appurtenant to it in the same sense that a parking lot or a sidewalk may be appurtenant to a place of employment."

15. Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 607 (1961); See Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692 (1972) (parking lot used by general public not being place of employment) at 697: "This court has held that when an area is used by the general public, it cannot be considered a place of employment ... In order for an area open to the public to be deemed a place of employment, the owner of the adjoining premises must have almost complete dominion and control over the area in question; and where the general public uses the area, the requisite dominion and control appear to be lacking ... (698) "Where the duty of maintenance clearly rests with one other than the employer, the area cannot be -considered part of his place of employment."

Public Sidewalk Cases - The notable cases involving injury by reason of defect in a public sidewalk (or driveway) serving a business place are: Miller v. Welworth Theatres, 272 Wis. 355 (1956); Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601 (1961); Hansen v. Schmidman Properties, 16 Wis. 2d 639 (1962); Corpron v. Safer Foods, Inc., 22 Wis. 2d 478 (1964); Peppas v. Milwaukee, 29 Wis. 2d 609 (1966); Buckley v. Park Building Corp., 31 Wis. 2d 626 (1966) and Petroski v. Eaton Yale & Towne, Inc., 47 Wis. 2d 617 (1970). Only in Schwenn was the sidewalk (driveway) held to constitute a place of employment so as to merit a safe-place law coverage (sidewalk is excluded from "public building" concept under safe-place law - see Chapter 2, note 49). The basis of the Schwenn holding, as explained in Iletroski, was the fact that defendant-employer exercised such degree of dominion and control over the area as to preclude, or at least to inhibit, use thereof by the public. Petroski states: (620) "The case before the court is unlike Schwenn and like the cases that Schwenn distinguished, in that the sidewalk herein was used by the general public ... which any pedestrian was free to use without let or leave of Eaton Yale & Towne. Accordingly, the present position of the court on public sidewalk cases appears to be this: if the dominion and control exercised by the employer extends to prevention or interference of public use of the sidewalk, safe-place law can apply; otherwise not. But see Freiman v. Cumming, 185 Wis. 88 (1924); Potter v. Kenosha, 268 Wis. 361 (1955); Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447 (1966); note also Schwenn statement that: (607) "Control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes."; and statement in Novak v. Delavan, 31 Wis. 2d 200, 208 (1966): ... at least a modest degree of dominion over the premises opportunity to perform the necessary repairs and rebuilding." Callan v. Peters Construction Co., 94 Wis.2d 225, 242 (Ct. App. 1979): "The right to control the sidewalk was not dependent on whether [defendant] owned the sidewalk. Rather, liability under the safe-place statute attached if [defendant] had the right to assume influence over the activities of construction workers using the sidewalk and the right to regulate the movement of pedestrians. Whether an employer has assumed this type of custody and control over the appurtenance is a jury question."

Municipal ownership of sidewalk is not conclusive.

On question of control generally, see Chapter 3.

For parking lot being "premises appurtenant thereto" see Wittka v. Hartnell, 46 Wis. 2d 374, 384 (1970); Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 69