(b) Owner

(1) Who Is Owner

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

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).

44. "Sec. 101.01(2)(i), Stats. As to architects and builders, see that heading, infra.

45. Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 643 (1979): "Although the statutory definition of 'owner' of a public building appears broad enough to include agents or representative of the club who may have been in actual custody or control of the building (sec. 101.01(2)(i)), this court has consistently refused to construe the statute to apply to agents or supervisory personnel of the principal owner or employer." See also discussion at footnote 5, supra.

46. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537, 544 (1923): "As frequently happens in the enactment of statutes, these sections take some liberty with the English language. They make new definitions and expressly assign new and unusual meaning to words and phrases. For example, the word 'owner' is made to include not only those having title to the property, but any one who has the control or custody of any place of employment or public building, or of its construction, or who prepare plans for its construction."; Luterbach v. Mochon etc., Inc., 84 Wis. 2d 1, 8 (1978).

47. Freimann v. Cumming, 185 Wis. 88, 91 (1924); Mahar v. Uihlein, 240 Wis. 469 (1942); Sheehan v. 535 N. Water St., 268 Wis. 325, 329 (1954). For grantee being liable for structural defects see Wannmacher v. Baldauf Corp., 262 Wis. 523, 539g (1953).

47a. The land contract vendor and the landlord have been regarded as standing in the same shoes so far as safe-place law exposure is concerned; Wannmacher v. Baldauf Corp., 262 Wis. 523, 531 (1953): "While the case of Freimann v. Cumming, supra, passed upon the liability of a vendor and not a landlord, under the safe-place statute, the same principle would seem to apply in cases involving liability of a landlord."

47b. The statutory definition of "owner" is sufficiently broad to include a person who holds only naked title -- sec. 101.01(2)(e): "The term 'owner' shall mean and include every person ... having ownership... ."

Statement in Luterbach v. Mochon etc., Inc., 84 Wis.2d 1 (1978) that [at 9] "... ownership hinges on such factors as possession, control, dominion, or supervision" is deemed to refer to situations where injury-producing defect is temporary in nature, and is not understood to express an absolute limitation on the extension of the statutory definition. Such statement traces back to Potter v. Kenosha, 268 Wis. 361, 371 (1955) and to Mennetti v. West Side Businessmen's Asso., 246 Wis. 586, 590 (1945).

As to the Potter Case: This case, in turn traces back to Freimann v. Cumming, 185 Wis. 88 (1924) where safe-place recourse was sought against a person holding mere naked title. The Freimann Court said: [at 91] "Considering the language and general purpose of this [safe-place] statute, we now hold that in order to place such a liability as is here claimed against one as the owner of such premises there must exist in such person the right to present possession or present control or dominion thereof so that such person may lawfully exercise the rights necessary to permit him to properly enter upon the premises in order to perform such an ever-present duty as is fixed by this statute." (first emphasis supplied). The "liability as is here claimed" in the Freimann case was failure to repair a stair which had become unsafe after defendant had relinquished possession and control of the building. That Freimann did not intend to remove a naked titleholder from the statutory definition of "owner" is indicated by the qualification expressed at page 88: "No claim is made that the defect alleged to have caused the plaintiff's injury existed at ... [the date of the land contract]."

As to the Mennetti Case: The Mennetti source of the Luterbach statement is the holding that [at 590] "The platform being a place of employment, and the defendant as owner having the right of supervision, control, and custody of the platform, the defendant is liable to either a frequenter or employee for failing to maintain it in a safe condition." This holding falls short of saying that ownership, in all cases, requires supervision, control or custody.

The question of whether naked ownership alone is sufficient to qualify a person as a safe-place owner was raised in Waskow v. Robert L. Reisinger & Co., 180 Wis. 537 (1923). However, the facts of that case were such that it became unnecessary to decide the question.

It is well established that ownership does hinge on possession, control, dominion or supervision where the injury-causing defect arises after an owner transfers such attributes to another.

47c. See Wannmacher v. Baldauf Corp., 262 Wis. 523 (1953) where the owner Baldauf Corp. [at 531] ".. . had no right of entry or control." Under such circumstances, and on the assumption that injury was caused by a temporary defect, the court absolved the owner of safe-place liability. However, when it was pointed out on rehearing that the defect was in fact structural in nature, the court changed its holding and made remand whereby Baldauf Corp. would sustain liability as owner if the jury found that plaintiff was not a trespasser. See also McNally v. Goodenough, 5 Wis.2d 293, 299 (1958) "Dr. Pember, the owner of the building, had leased all portions here involved to the Goodenoughs, and retained no control or possession thereof. Hence his liability under the safe-place statute was limited to structural defects." See also Saxhaugh v. Forsyth Leather Co., 252 Wis. 376 (1948) where the court pointed out that the landlord reserved the right of entry to inspect or to make repairs or structural changes, but such circumstance was not a consideration in the determination of liability; and Kelenic v. Berndt, 185 Wis. 240 (1924); Sheehan v. 535 N. Water St., 268 Wis. 325, 332 (1954); Frion v. Coren, 13 Wis.2d 300, 304 (1961); Lealiou v. Quatsoe, 15 Wis.2d 128, 135 (1961).

48. Lawver v. Joint District, 231 Wis. 608 (1939); Anderson v. Joint School District, 24 Wis. 2d 580 (1964); Novak v. Delavan, 31 Wis. 2d 200, 207 (1966). See also Heiden v. Milwaukee, 226 Wis. 92, 101 (1937). Earlier cases to the contrary, Srnka v. Joint District No. 3, 174 Wis. 38 (1921) and Sullivan v. School District, 179 Wis. 502 (1923), no longer effective bv reason of 1931 change in statutory definition of owner.

49. Powless v. Milwaukee County, 6 Wis. 2d78 (1959).

50. Hemmingway v. Janesville, 275 Wis. 304 (1957); Fiescil v. Lancaster, 264 Wis. 234 (1953).

51. Mennetti v. West Side Businessmen's Asso., 246 Wis. 586 (1945).

52. Wilson v. Evangelical Lutheran Church, 202 Wis. Ill (1930); Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209 (1935); Zimmers v. St. Sebastian's Cong., 258 Wis. 496 (19@1); Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954); Harnett v. St. Mary's Congregation, 271 Wis. 603 (1956); Watry v. Carmelite Sisters, 274 Wis. 415 (1957); Hintz v. Zion Evang. U. B. Church, 13 Wis. 2d 439 (1961).

53. Wright v. St. Mary's Hospital, 265 Wis. 502 (1953); Grabinski v. St. Francis Hospital, 266 Wis. 339 (1954).

54. Hanlon v. St. Francis Seminary, 264 Wis. 603 (1953).

55. Waldman v. Young Men's Christian Asso., 227 Wis. 43 (1938).

56. American Exch. Bank of Madison v. United States (C.A. 7th, 1958) 257 F.2d 938; O'Melia v. United States (E.D. Wis., 1961) 195 F. Supp. 174.

57. Brown v. Appleton Masonic Temple Assn., 243 Wis. 147 (1943).

58. Perry v. Labor Temple Asso., 264 Wis. 36 (1953).

59. See Landlord and Tenant, infra.

60. Sec. 29.68, Stats.