(a) Employer

(2) Extent of Employer Duty

"The safe-place statute requires the employer, and imposes a duty upon it, to anticipate what the premises will be used for and to inspect them to make sure they are safe." [21] Thus an employer was required to anticipate that the roof of an employee's washroom building would be used by an electrician in running a temporary conduit from one part of the premises to another, [22] and to anticipate that a service driveway would be used by a jaywalking pedestrian, [23] and that a third person would make an opening in a roof on which his employees were to work. [24]

An employer is subject to liability under the safe-place statute for "structural defects, failure to guard machinery would be one instance; or because of the improper arrangement of the premises, setting machines too closely together or requiring employees to work in close proximity to a moving machine might be an instance; or because of defective appliances, defective tools or machines, or because of improper methods or processes employed, a method which permitted the escape of deleterious gas would furnish an illustration." [25] Safeguards furnished by the employer must be sufficient, [26] and securely affixed. [27] And an employer cannot complain where an employee fails to use an inefficient and awkward safeguard. [28] An employer might have to change the setting or the frame of a machine in order to make a guard possible, [29] but where the machine could not have been more safe reasonably, the employer has fulfilled his safe-place duty in respect to it. [30] Where new safeguards are developed, the employer continues use of older ones at his peril. [31] An employer must also instruct his employees in the use of machines, but not as to unanticipated uses to which the employee may put the same. [32] However, "a master is not privileged to use an unsafe appliance because he instructs a servant in charge to so use it that its defects cannot injure if the master's instructions are followed." [33] And an employer is required to close down an operation when a continuance thereof would render the employment or place of employment unsafe. [34]

An employer is liable for injury resulting from a condition created by an independent contractor and suffered to remain in his place of.employment. [35] And the mere fact that the injured person was employed by an independent contractor who was jointly responsible for the unsafe condition, does not relieve the employer from liability. [36] Although the employer does not ordinarily sustain safe-place liability for injuries caused by fellow employees, he may do so if dangerous practices of the employees are known to him and he does nothing about them. [37]

The person who employed the independent contractor is not liable for safe-place violations occasioned by the independent contractor where such person has turned over complete control of the premises and of the employment to the independent contractor. [38] However, it is otherwise where the employer of the independent contractor retains any right of control [39] -- however slight. [40] Retention of mere right to inspect is not regarded as right to control. [41] No law has been found regarding the status (for the purpose of determining the extent of his duties) of an employer of an independent contractor who retains control, but it would seem that such person would at least be an "owner of a place of employment." The employer of an independent contractor is liable under the safe-place law where he fails to furnish a safe-place to the independent contractor. [42] Turning over place which, by its nature, will become unsafe'when independent contractor performs his work, does not constitute turning over an unsafe place. [43]

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

11. Puza v. Hennecke Co., 158 Wis. 482, 483 (1914).

12. See Chapter 1, footnotes 33-51.

13. Miller v. Paine Lumber Co., 202 Wis. 77 (1930), in regard to relating an employer's safe place duty "only to physical aspects of a place of employment" as being [89] "too narrow and erroneous." In the Miller case the court illustrated the broader extent of employer safe-place duty by comparing the original safe-place bill introduced into the legislature with the substitute amendment which now constitutes sec. 101.11, Stats. The Court said [90]: "The substitute amendment introduced into the bill the requirement that not only the place of employment shall be safe for employees, but that the employment itself shall be safe, and that the employer shall adopt and use such methods and processes not only reasonably adequate to render the place of employment safe, but also reasonably adequate to render the employment safe. It thus appears that while the original bill was limited to requirements which would make the place of employment safe, the substitute amendment required the employment as well as the place of employment to be safe.

"It is apparent that 'safe employment' is broader in scope than a safe 'place of employment.' In fact, safe employment necessarily requires a safe place of employment. By introducing into the bill the element of safe employment, it is obvious that the legislature not only intended to but actually did broaden the scope of the subject matter with which it was dealing, and when it required the employer to 'do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters' even the doctrine of noscitur a soctis cannot restrain the meaning of such words to the physical aspects of the place of employment alone, because the dominant subject in connection with which such words are used is employment which shall be safe rather than a mere place of employment which shall be safe.

"A moment's reflection will indicate that a safe employment may require something besides a place of employment that is safe in a physical sense. To illustrate, it is not inconceivable that to render safe the employment of a track repairer in switching yards may require a warning of the approach of switching engines and cars. This has no relation to the physical conditions under which he is working, but may be absolutely necessary to make his employinent safe. Safety of employees working upon a building where materials are being hoisted and moved about may require signals to advise them of and to guard them against movements dangerous to them of which they would not otherwise be apprised. Illustrations such as this could be multiplied to indicate that under myriad situations safe employment calls for something in addition to a safe place of employment in a physical sense.

"We are satisfied that the injunction laid upon employers to 'furnish employment which shall be safe for the employees therein,' to 'use safety devices and safeguards,' to 'adopt and use methods and processes reasonably adequate to render such employment safe,' and to 'do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters,' cannot be limited to the inclusion of mere physical situations." See also Mayhew v. Wisconsin Zinc Co., 158 Wis. 112, 118 (1914); Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209, 217 (1960). Niedfelt v. Joint School District, 23 Wis. 2d 641, 648 (1964): "... safe employment is broader in scope than safe 'place of employment.'" Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 818 (Ct. App. 1998). But see Salus v. Great Northern R. Co., 157 Wis. 546, 548 (1914): "The law, severe as it is in respect, to the duty of an employer respecting the working place of his employees, still permits him to leave them to make their own working place, as to simple ordinary details, where they are to be provided from time to time and changed at short intervals. It would be utterly impracticable and unreasonable to require the employer to be responsible for such a situation at every moment of time and regardless of any actual information as to imperfection, even such as to put him on inquiry in respect to the matter." Employer duty to furnish "safe employment" does not run to frequenter. Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964); Niedfelt v. Joint School District, 23 Wis. 2d 641, 648 (1964); Rogers v. Oconomowoc, 24 Wis. 2d 308, 316 (1964). But see Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 166 (1978): "... is an employer's duty to provide safe employment, premises and equipment for the protection of his employees and frequenters."

14. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 76 (1957). See also Cream City F. Co. v. Ind. Comm., 188 Wis. 648, 652 (1926).

15. Szeliwicki v. Connor L. & L. Co., 163 Wis. 20 (1916); Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209 (1960).

16. Kaiser v. Cook, 67 Wis. 2d 460, 466 (1975): "An employer may be held liable under the safe-place statute ... where he knowingly permits employees or frequenters to venture into a dangerous area." See also Gross v. Denow, 61 Wis. 2d 40 (1973).

17. Sadowski v. Thomas Furnace Co., 157 Wis. 443, 452 (1914); Miller v. Paine Lumber Co., 202 Wis. 77, 92 (1930); Sandeen v. Willow River Power Co., 214 Wis. 166, 177 (1934): "... The duty to warn is now embodied in the statutory language (101.06) and requires such warning when reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.'" [Although this case deals with duties of an owner of a place of employment, the quoted words appear to be sufficiently general to apply to the employer status also.] American Mut. L. Ins. Co. v. Chain Belt Co., 224 Wis. 155, 162 (1937). Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 76 (1957); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 56 (1969); Prelipp v. Wausau Memorial Hospital, 50 Wis. 2d 27, 32 (1971): "Where, by reason of location or concealment, a special risk or danger exists, displayed warning signs may remove or warn of the existing hazard, but the absence of a sign does not create a liability that would not otherwise exist."

17a. Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 818 (Ct. App. 1998).

18. Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 364 (1973): "Had there been a warning sign in the instant case, it would not necessarily have discharged the duty of Denoon Beach to make the place safe. The question would clearly be one for the jury in terms of plaintiff's contributory negligence. Where a safe place violation is alleged, giving of a warning may vitiate a plaintiff's cause of action by reason of his own contributory negligence, but it does not necessarily satisfy the land occupier's duty." (Nonetheless the court earlier stated (363) "... the duty of warning in the instant case is merely a part of the statutory obligation of the occupier of the place of employment to: '... do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters.'")

19. Northwestern C. & S. Co. v. Ind. Comm., 194 Wis. 337, 340 (1927); Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 211 (1935); Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 817-818 (Ct. App. 1998). See Chapter 4, infra, regarding structural defects.

20. Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 211 (1935): "... The employer has a broad duty, not only with respect to the structure, which constitutes the place, of employment, but with reference to the devices and other property installed or placed in such place." [212] "The permitting of temporary conditions wholly dissociated from the structure ... may, and undoubtedly does, constitute a violation if permitted by an employer." Baldwin v. St. Peter's Congregation, 264 Wis. 626, 629 (1953): "... The duty under the statute with respect to the place of employment is very broad and is not merely concerned with the question of whether or not the place of employment is a structure."; Cross v. Leuenberger, 267 Wis. 232, 235 (1954); Bobrowski v. Henne, 270 Wis. 173, 178 (1955): "There is no requirement under the safe-place statute that a defect in a place of employment, as distinguished from a public building, has to occur in a structure or building in order to be actionable."; Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 607 (1961); Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 817-818 (Ct. App. 1998). See Chapter 4, infra for discussion of "temporary conditions."

21. Wis. Bridge & Iron Co. v. Ind. Comm., 8 Wis. 2d 612, 618 (1959); Burmek v. Miller Brewing Co., 12 Wis. 2d 405, 412 (1961); Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 608 (1961); Raim v. Ventura, 16 Wis. 2d 67, 72 (1962); Wittka v. Hartnell, 46 Wis. 2d 374, 385 (1970). But see Kolasinski v. Chicago, M. & St. P. R. Co., 164 Wis. 50 (1916) regarding employer duty to inspect simple tool. See also Gilson v. Drees Brothers, 19 Wis. 2d 252 (1963) regarding employer duty where negligent act causes injury.

Regarding duty to inspect: Karis v. Kroger Co., 26 Wis. 2d 277, 284 (1965): "We have no hesitancy in holding that, in a situation where there is a place of employment to which the safe-place statute applies, a duty is placed upon the employer to make timely and adequate periodic inspections of any safety devices to ascertain whether they are properly functioning."; Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 56 (1969).

Regarding duty to anticipate: Anderson v. Joint School Dist., 24 Wis. 2d 580, 584 (1964). But see Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594 (1960); Paaske v. Perfex Corp., 24 Wis. 2d 485 (1964); Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 501 (1965): "It is at least arguable that Public Service had no duty to cover up the bottom metal screens of the reactor in the absence of notification that fish tape was to be used on the job." See also element of foreseeability, Chapter 1.

22. Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961).

23. Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601 (1961).

24. Wis. Bridge & Iron Co. v. Ind. Comm., 8 Wis. 2d 612, 618 (1959).

25. Northwestern C. & S. Co. v. Ind. Comm., 194 Wis. 337, 340 (1927) (Dictum regarding failure to guard machinery being structural defect rejected in Niedfelt v. Joint School District, 23 Wis. 2d 641, 647 (1964)). 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."; Barth v. Downey Co., Inc., 71 Wis. 2d 775, 781 (1976): "... the responsibility for providing tools and equipment, such as ladders and scaffolds, is on the employee's immediate employer." (but see p. 782 where tools or equipment loaned to immediate employer); also Lemacher v. Circle Const. Co., 72 Wis. 2d 245, 249 (1976).

As to later deleterious gas case, see McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245 (1973).

26. Besnys v. Herman Zohrlaut L. Co., 157 Wis. 203 (1914); Sobek v. George H. Smith S. C. Co., 158 Wis. 517 (1914) (no guard on emery wheel); Mayhew v. Wisconsin Zinc Co., 158 Wis. 112 (1914); Dugenske v. Wyse, 194 Wis. 159 (1927).

27. Banaszek v. F. Mayer Boot & Shoe Co., 161 Wis. 404 (1915).

28. Daniels v. Ind. Comm., 241 Wis. 649, 652 (1942).

29. Krueck v. Phoenix Chair Co., 157 Wis. 266, 271 (1914).

30. Hahn v. Rothstein, 174 Wis. 381 (1921).

31. Tiemann v. May, 235 Wis. 100, 105 (1940); Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964).

32. Cream City F. Co. v. Ind. Comm., 188 Wis. 648, 652 (1926): It is not reasonable to lay upon an employer the duty of specifically instructing employees with respect to every conceivable device which their ingenuity may enable them to rig up and use for purposes for which the same is not intended. When an employee is instructed to use a given implement or device for a certain purpose, it is tantamount to an instruction to use no other implement or device for that purpose. To require the employer to negative the use of every other device is to demand an anticipation as fertile and prolific as human ingenuity, and lays upon the employer a well-nigh impossible burden."

33. Czapinski v. Thomas Furnace Co., 158 Wis. 635, 643 (1914).

34. Northwestern C. & S. Co. v. Ind. Comm., 194 Wis. 337, 341 (1927). See also Langos v. Menasha Paper Co., 156 Wis. 418, 425 (1914); But see 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..." Callan v. Peters Construction Co., 94 Wis.2d 225, 243 (Ct.App., 1979): "Having such notice, [defendant] had the right and power to close the sidewalk entranceway to the public. Conversely, it had the authority to participate in cleaning up the debris if it was going to keep the entranceway open."

35. Jahn v. Northwestern Lithographing Co., 157 Wis. 195 (1914). Callan v. Peters Construction Co., 94 Wis.2d 225, 243 (Ct.App., 1979).

36. Criswell v. Seaman Body Corp., 233 Wis. 606, 619 (1940): "Seaman also contends that Criswell was not entitled to recover from it because his injuries were caused by concurrent negligence of his employer Worden, -- which was an independent contractor, -- and it was not contemplated under the compensation act to allow an employee to recover under sec. 102.29, Stats., from another tort-feasor when the employer's negligence was also a cause of the employee's injury. The contention cannot be sustained." In regard to employer's liability for injuries to employees of independent contractors and sub-contractors generally, see Chapter 5, footnotes.

37. 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 authorizied 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). It appears that an employer and owner have no duty under the safe-place statute to provide a place in which a frequenter would be safe from the injury-producing acts of another - at least where such acts could not reasonably be anticipated. Gilson v. Drees Brothers, 19 Wis. 2d 252 (1963). But see Kowalczuk v. Rotter d/b/a Curley's Tavern, 63 Wis. 2d 511 (1974).

38. La Coco v. Massey Steampship Co., 174 Wis. 545 (1921); Carlson v. Chicago & N.W. R. Co., 185 Wis. 365, 371 (1925): "Having furnished a reasonably safe place, the defendant company is not liable." In the Carlson case the court also said [371]: "[The employer] is not required to stand over the place and see that an independent contractor is guilty of no negligence in its management and control."; Potter v. Kenosha, 268 Wis. 361, 372 (1955): "We are constrained to hold that when an owner turns over to an independent contractor the complete control and custody of a safe place, whereon or whereunder the contractor creates a place of employment for the purpose of fulfilling the terms of the contract, the owner reserving no right of supervision or control of the work excepting that of inspection or to change the plan with reference to the construction to be furnished, if thereafter in the performance of the work under the contract the premises are changed by the contractor and as a result a hazardous condition is created, the owner does not become liable ..."; Bellmann v. National Container Corp., 5 Wis. 2d 318, 323 (1958): "... When an owner turns over to an independent contractor the complete control and custody of a safe place and then the contractor changes the premises and as a result a hazardous condition is created, the owner does not become liable ..."; Weber v. Hurley, 13 Wis. 2d 560, 569 (1961). See also Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 447 (1934): "Situations may arise where the premises are so changed by the independent contractor as to excuse the owner from liability."; Potter v. Kenosha, 268 Wis. 361, 371 (1955): "If, for instance, the dangerous instrumentality is erected by the independent contractor himself, or a defective scaffolding is installed, the owner may not be liable ..."; Burmeister v. Damrow, 273 Wis. 568, 582 (1956): "... There can be no liability on the part of the owner or custodian of premises to an employee of a contractor when such contractor to whom control of the premises has been given, brings about a change in the premises ..."; Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 448, 498 (1965): "... we have serious doubt whether the safe-place statute required that an employee of Public Service be stationed in the room". See also Sheehan v. 535 N. Water Street, 268 Wis. 325, 332 (1954); Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210, 226 (1979): "The requirement that a person have control is the same for employers as for owners."

39. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537 (1923), where owner acted as general contractor; Criswell v. Seaman Body Corp., 233 Wis. 606 (1940); Potter v. Kenosha, 268 Wis. 361, 373 (1955): "... When an owner employs several distinct contractors in the construction of a building, the owner is deemed to have retained such control and custody of the premises as to make him responsible for them."; and [374], "In the present matter, had ... [the contractor) been engaged only to excavate the trench, and had some other contractor been engaged to lay the tile, then assuming that the tile laying contractor or his employee had been injured or killed as a result of the failure to shore, it is apparent that an unsafe place would have been provided to him by the city [owner], and clearly the city would be held liable." Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472 (1960); Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447, 451 (1966); Barth v. Downey Co., Inc., 71 Wis. 2d 775, 781 (1976): "The test our court has stated is whether the owner, or here the general contractor, 'stood in the shoes of the (immediate) employer by reason of his retention of control of the premises'. Even a retained right to check as to compliance with specifications, and to stop construction progress for lack of compliance with specifications, our court has held, is not an exercise of control over how the actual manner in which the specifications were complied with."

40. Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472, 477 (1960): "Kubiak's [owner] authority to invite persons into the building for the purpose of inspection clearly implies that he had such control or dominion over the premises as would enable him to see to it that they were reasonably safe for that purpose."; Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 607 (1961), "... Control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes."

41. Potter v. Kenosha, 268 Wis. 361, 372 (1955); Weber v. Hurley, 13 Wis. 2d 560, 569 (1961); Berger v. Metropolitan Sewerage Comm., 56 Wis. 2d 741, 749 (1972): "The presence or absence of engineering inspectors, despite their authority to stop construction progress for lack of compliance with the specifications, is not a manifestation of control. These employees merely enforce the contact."; Barth v. Downey Co., Inc., 71 Wis. 2d 775, 781 (1976); Lemacher v. Circle Const. Co., 72 Wis. 2d 245, 248 (1976); Hortman v. Becker Const. Co., Inc., 92 Wis. 2d 210, 226 (1979).

42. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441 (1934); Criswell v. Seaman Body Corp., 233 Wis. 606 (1940); Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961).

43. Berger v. Metropolitan Sewerage Commission, 56 Wis. 2d 741 (1972).