Boyle's Wisconsin Safe-Place Law



Chapter Three: Persons Liable
    (a) Employer
      (1) Who Is Employer
The statute defines "employer" to "mean and include every person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employe. [4] As to "any agent, manager, representative ...", it has been held that such persons were named in the statute only as a means of providing access to the employer, and that they personally sustain no safe-place liability. [5] Their liability, if any, is limited to ordinary negligence arising by reason of some affirmative act which increases the risk of injury to the employee. [6] Where an agent, manager, representative commits the affirmative act which increases the risk of injury in his capacity of co-employee, personal liability to an employee is limited to instances of assault intended to cause bodily harm and negligent operation of a motor vehicle not ownerd or leased by the employer, or to the extent that there would be liability of a government unit to pay judgments against employees under a collective bargaining agreement or a local ordinances. [6a] Where an agent, manager, representative commits the causally negligent act in a capacity other than that of employer-representative or co-employee, such restrictions on personal liability do not obtain by virtue of the dual-capacity doctrine. [6b] A person does not have to own a place of employment in order to be an employer; but in order to be liable for an unsafe place of employment or defective equipment he must have some control thereover. [7] A householder can be an employer under the safe-place statute. [8] Although the statute enumerates "state, county, town, city, village, school district, sewer district, drainage district and other public or quasipublic corporations" as "employers", these bodies have thus far been exempt from liability in a "place of employment" situation on the ground that their operations do not produce "gain or profit" for them. [9] The state's setting environmental regulations which may affect conditions of employment do not make it liable as an employer. [9a] The federal government has been said to be likewise exempt. [10]

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

4. Sec. 101.01(2)(c), Stats. Duty to comply with orders of ILHR Dept. only on employee's immediate employer - Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 348 (1970); and IND. 35.01.

5. Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209, 216 (1960); Wasley v. Kosmatka, 50 Wis. 2d 738, 744, 746 (1971); Pitrowski v. Taylor, 55 Wis. 2d 615, 627 (1972); Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763, 769 (1973). The holding that "agent, manager, representative" were named in the statutory definition of employer only to serve as conduits through which the real employer could be reached (and accordingly did not themselves sustain safe-place liability) was the way by which the court worked out of the paradox arising where an employee sought recovery from "employer" as defined in the safe-place statute even though he was barred from proceeding against his "employer" as defined in the Worker's Compensation Act (by reason of the exclusive remedy provision). See Wasley v. Kosmatka, 50 Wis. 2d 738, 742 (1971): "Although the workmen's compensation statute contemplates that an employee can bring his third-party-negligence action against a co-employee, the precise question presented here is whether in suing a corporate officer in his capacity as a co-employee, the plaintiff can impose on defendant the increased standard of care that the safe-place law imposes on an 'employer' under secs. 101.01(3) and 101.06, Stats. We think not." (746) "Assuming that any person who fits the definition of 'employer' in sec. 101.01(3), Stats., may be personally liable, the potential consequences of such a decision should be considered. While the injured employee is recovering workmen's compensation from the employer, under this assumption he would also be recovering in tort indirectly against the same employer. This would work a clear circumvention of the exclusive remedy provision of the Workmen's Compensation Law. We think that an employee's proper remedy is intended to be increased compensation pursuant to sec. 102.57, Stats." Query: whether the court is committed to this view of "agent, manager, representative" status where a "frequenter" brings the action?

6. Pitrowski v. Taylor, 55 Wis. 2d 615, 627 (1972): "Their liability must rest upon common-law failure to exercise ordinary care toward an employee to whom, under the circumstances, they owed a duty -- not upon the increased standard of care that the safe-place law imposes on an employer." Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763, 770 (1973); Lampada v. State Sand & Gravel Co., 58 Wis. 2d 315 (1973); Laffin v. Chemical Supply Co., 77 Wis. 2d 353, 357 (1977): "... if the officer or supervisor is merely acting on behalf of the employer in his capacity as a corporate officer, a personal action against him may not be maintained." (359) "If the officer or supervisor is to be personally liable it is because of some affirmative act of the officer or supervisor which increased the risk of injury to the employee. If a corporate officer or supervisor engages in this affirmative act, he owes the involved employee a duty to exercise ordinary care under the circumstances. This duty is over and above the duty of proper supervision owed to the employer." Lupovici v. Hunzinger Constr. Co., 79 Wis. 2d 491, 500 (1977) which "disavowed" manner in which corporate agents were rendered liable in Hoeverman v. Feldman, 220 Wis. 557 (1936) and in Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763 (1973). Gerger v. Campbell, 98 Wis.2d 282 (1980)

6a. Sec. 102.03(2),Stats., as amended by ch. 195, sec. 2, Laws of 1977 provides that workers compensation is the exclusive remedy against "any other employe of the same employer" -- except for the stated exceptions.

6b. Gerger v. Campbell, 98 Wis.2d 282, 293 (1980): "We do not conclude that the dual-capacity doctrine may not appropriately circumvent the immunity under the exclusive-remedy test in a proper case...".

7. Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 607 (1961): "The safe-place statute does not, by its terms, require an employer to own the premises in order to maintain a place of employment. Nor do cases on the subject require ownership as a requisite of liability." Sposito v. Zeitz, 23 Wis. 2d 159 (1964); Petroski v. Eaton Yale & Towne, Inc., 47 Wis. 2d 617 (1970); Gordon v. Schultz Savo Stores, Inc., 54 Wis. 2d 692 (1972); Berger v. Metropolitan Sewerage Comm., 56 Wis. 2d 741 (1972). As to control: Wood v. General Railway Signal Co., 161 Wis. 71 (1915); Criswell v. Seaman Body Corp., 233 Wis. 606, 617 (1940); Potter v. Kenosha, 268 Wis. 361, 371 (1955); Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601 (1961), where the court also said [607]: "... Control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes"; see also Johannsen v. Peter P. Woboril, Inc. (1952) 260 Wis. 341, 344. For absence of duty where employer has no control over place of employment see Wood v. General Railway Signal Co., 161 Wis. 71 (1915) and Baker v. Janesville Traction Co., 204 Wis. 452 (1931). See also Hintz v. Darling Freight, Inc., 17 Wis. 2d 376 (1962); 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 lacking." Callan v. Peters Construction Co., 94 Wis.2d 225, 242 (Ct.App., 1979)

8. Hahn v. Rothstein, 174 Wis. 381 (1921); Beck v. Siemers, 174 Wis. 437 (1921); Burmeister v. Damrow, 273 Wis. 568 (1956). See Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 271 (1969) inferring that a person's home is not a place of employment under safe-place law.

9. See Chapter 2, footnote 6. But municipal exemption from liability as an employer is not complete. The gain or profit element is required only to qualify a place as a place of employment. The safe-place statute covers more than mere places. It applies also to "employment." There would seem, therefore, to be no reason why a public, body would not sustain safe-place liability as an employer having charge of "employment" rather than a "place of employment". However, such municipal body's liability for "unsafe employment" would extend only to employees, and not to frequenters, because the statute expressly directs the "safe employment" duty only toward employees. Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964); Niedfelt v. Joint School District, 23 Wis. 2d 641, 648 (1964): "... the employer's duty is to supply his employees with both a safe place of employment and with safe employment... The duty to furnish safe employment does not extend to frequenters. This is implicit in the language of sec. 101.06, Stats. . .". Rogers v. Oconomowoc, 24 Wis. 2d 308, 316 (1964).

9a. LeClair v. Natural Resources Board, 168 Wis. 2d 227, 483 N.W. 2d 278, 285 (Ct. App. 1992).

10. Presser v. Siesel Construction Co., 19 Wis. 2d 54, 64 (1963). 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.


Revised March 3, 2001

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