(b) Owner

(2) Extent of Owner of Public Building Duty

An important limitation on duty found particularly in the "owner" situation concerns the element of control. An owner of a public building does not sustain liability for injuries occasioned by an unsafe maintenance condition therein where he had no control over the portion of the building involved at and after the time the unsafe condition developed -- as where he had conveyed the premises under land contract, [68] and where control had been turned over to an independent contractor. [69] But the divesture of control must have been complete. Retention of any present reentry and repair right, right to direct work, or dominion, has been considered as retaining of sufficient control on which to predicate safe-place liability. [70] (Having mere right to inspect independent contractor's work or of reentry after default is not regarded as retention of control.) [71] Fact that use of public building or structure was "temporary and sporadic" is relevant on issue of control. [72] Nor does the owner sustain liability for structural defects in a building being erected for him by an independent contractor so long as he continues to have no control over such building. [73] But where a structural defect existed in the building at the time the owner relinquished control, he is liable for injury subsequently occasioned thereby [74] -- at least where he has some future possessory right in the premises. [75]

An owner of a public building is responsible for a structural defect which existed in the building at the time he purchased it. [76] It has also been held that "the burden imposed by the statute may reasonably require that when an old building constructed for one purpose is to be used for another which imposes greater weight upon certain parts, the owner ought to familiarize himself with the history and method of its construction, including the material used, before turning it over to a portion of the public for profit to himself." [77] Further, "one who is owner of a building and also is maintaining it as a place of employment ... sustains not merely the liability of an owner under the safe-place statute but also the larger liability of one conducting a place of employment. Hence, if there is a failure to comply with the requirements of the safe-place statute, the mere fact that the injury is caused by a defect other than a structural defect would not of itself be sufficient to excuse from liability one who is both employer and owner." [78]

Several cases have held that an owner is not liable to an employee of an independent contractor who was injured by reason of a structural oddity existing at the time the place was turned over to the independent contractor. [79]

An owner of a public building also has the duty to warn of conditions in his premises which might cause an accident. [80] And vigilance must be exercised when crowds collect on the premises. [81]

As heretofore mentioned, some exterior parts of, and some appurtenances to, a building do not fall within the definition of "public building" under safe-place law. Accordingly an owner sustains no safe-place liability in connection with defects in such places.

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

61. Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 211 (1935). Voeltzke v. Kenosha Memorial Hosp., 45 Wis. 2d 278 (1969).

62. Early contention that duties were the same was disposed of in Holcomb v. Szymczyk, 186 Wis. 99, 102 (1925): "... It is argued in the present case by the respondent that the duty of an owner of a public building owing to his tenants is to be measured by the same standards as those applicable to the duty of an employer to an employee. This does not follow...."

63. Baldwin v. St. Peter's Congregation, 264 Wis. 626, 629 (1953); Meyers v. St. Bernard's Congregation, 268 Wis. 285, 288 (1954); Sheehan v. 535 N. Water St., 268 Wis. 325, 332 (1954); Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639 (1979).

64. "The obligation of the owner of a public building to furnish a safe place under the safe-place statute is limited to structural defects." Williams v. International Oil Co., 267 Wis. 227, 229 (1954); "The obligation of an owner of a public building to furnish a safe place under the safe place statute is limited to structural or physical defects or hazards." Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 818 (Ct. App. 1998). It is deemed that literal interpretation of this language is unduly restrictive. Other cases have made clear that such owner's duty extends also to temporary conditions associated with the structure. Meyers v. St. Bernard's Congregation, 268 Wis. 285, 288 (1954): "The duty of the ... [owner of a public building] is to maintain the structure, and this relates to the structur and not to a temporary condition which is not a part thereof." Watry v. Carmelite Sisters, 274 Wis. 415, 419 (1957): "... A plaintiff seeking recovery under the safe-place statute from the owner of a public building must do more than show that the hazard from which he suffered was caused by a maintenance activity. He must show, also, that the defect is not due to a mere temporary condition attendant upon that activity and that the operation of whose details he complains is connected to a reasonable degree with the safety of the structure or the materials of which it is composed." The dissent in Watry pointed out that [421], "It is only 'temporary conditions wholly disassociated from the structure' which preclude imposition of liability under the safe-place statute." (citing Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 212 (1935) and Harnett v. St. Mary's Congregation, 271 Wis. 603, 610 (1956)). It appears that an owner of a public building also has the duty to warn of conditions which might cause accidents, Helms v. Fox Badger Theatres Corp., 253 Wis. 113, 118 (1948); Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964): "As owner of a public building defendant's liability for maintenance is limited to conditions associated with the structure."; Niedfelt v. Joint School District, 23 Wis. 2d 641, 647 (1964); Wallow v. Zupan, 35 Wis. 2d 195, 199 (1967): "This court has previously held that the word 'maintain' as contained in sec. 101.06, Stats., does not apply to temporary conditions unrelated to the structure of the building."; Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639 (1979): "An owner of a public building is liable only for injury resulting from structural defects and unsafe conditions associated with structure."

65. Frion v. Coren, 13 Wis. 2d 300, 304 (1961): "But where a defect is structural in character rather than a condition resulting from want of repair or maintenance, even though it exists in a portion of the building not put to public use, the owner may be liable under the safe-place statute."; Lealiou v. Quatsoe, 15 Wis. 2d 128, 135 (1961).

66. Early cases stated as follows: Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 637 (1935): "... The duty of the owner to maintain in a safe condition a building that is a public building under the statute extends only to such parts as are used by the public or by tenants in common."; Skrzypczak v. Konieczka, 224 Wis. 455, 460 (1937): "But in case portions of a public building are rented to tenants, maintenance in unsafe condition of the portion so rented to which the public does not have access does not bring the portion rented within the [safe-place] statute."; Delaney v. Supreme Investment Co., 251 Wis. 374, 381 (1947): "... The duty of the owner of such building under the safe-place statute to maintain the building in a safe condition extends only to such portions as are used or held out to be used by the public or tenants in common.... Thus we have only limited portions of the interior of a building that must be rendered safe by the owner ..."; Bauhs v. St. James Congregation, 255 Wis. 108, 110 (1949): "The duty of the owner of a public building under the provisions of that chapter (Ch. 101 Stats.) to maintain it in safe condition extends only to such portions as are used or held out to be used by the public ..."; Hanlon v. St. Francis Seminary, 264 Wis. 603, 606 (1953): "The duty of the owner to construct or maintain a building in safe condition extends only to such parts of the building as are used by the public or by three or more tenants in common."; Hemmingway v. Janesville, 275 Wis. 304, 307 (1957): "'The duty of the owner of a public building under the provisions of that chapter [Ch. 101, Stats.] to maintain it in safe condition extends only to such portions as are used or held out to be used by the public' ..."; Gupton v. Wauwatosa, 9 Wis. 2d 217, 221 (1960): "The duty of the owner of a public building to construct or maintain a building in safe condition extends only to such parts of the building as are used by the public or by three or more tenants in common." See also Gobar v. Val. Blatz Brewing Co., 179 Wis. 256, 259 (1923): "Such part of an entire structure as is put to a public use is not withdrawn from the statute by reason of its being but a fractional part of an entirety, but, on the other hand, the rest of the structure does not become drawn within the statute by the use made of the fractional part."

67. Frion v. Coren, 13 Wis. 2d 300, 304 (1961): "The duty of the owner of a public building to maintain the building in a safe condition extends only to such portions as are used or held out to be used by the public or tenants in common or to such other portions of the building as are under his control." (Italics added) Thereafter in Lealiou v. Quatsoe, 15 Wis. 2d 128 (1961) which acknowledged safe-place liability where a frequenter sustained injury from a maintenance defect on a stairway servicing two second story apartments, the court quoted the above language from the Frion case, and stated: "It is to be noted in this statement, we did not restrict the owner's duty to maintain the portions of a public building as are used or held out to be used by tenants in common to only portions used by a minimum of three tenants.", and continued: "The defendant's structure was a public building because it was used by at least three tenants. The place where the accident occurred was a common stairway intended for use by and used by the two upstairs tenants and their guests and was not rented or in the possession or control of the tenants. As to this part of the building, the owner had a duty to the frequenter to maintain it in a safe condition."

68. Mahar v. Uihlein, 240 Wis. 469 (1942); Batson v. Nichols, 258 Wis. 356 (1951).

69. Freimann v. Cumming, 185 Wis. 88, 91 (1924): "Considering the language and general purpose of this 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 thereover 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. A present right of possession is necessarily involved in the idea of a present duty to make repairs or changes."; Sheehan v. 535 N. Water St., 268 Wis. 325, 329 (1954). See also Carlson v. Chicago & N.W. R. Co., 185 Wis. 365, 371 (1925): "... [The owner] is not required to stand over the place and see that an independent contractor is guilty of no negligence in its management and control."

70. Holcomb v. Szymczyk, 186 Wis. 99, 105 (1925): Unless the owner expressly or impliedly reserves to himself...." Criswell v. Seaman Body Corp., 233 Wis. 606, 618 (1940): Having the right and power to remedy it, Seaman became liable ..."; Potter v. Kenosha, 268 Wis. 361, 372 (1955): "... The owner reserving no right of supervision or control of the work excepting that of inspection or to change the plan ..."; Sheehan v. 535 N. Water St., 268 Wis. 325, 330 (1954): "The reason for relieving the owner of the obligation fails when he retains the right to enter and repair even though he may not choose to exercise the right."; Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472, 477 (1960): "Kubiak's 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."; Novak v. Delavan, 31 Wis. 2d 200, 208 (1966): "... in order to find liability on the part of a temporary user there must exist in such alleged 'owner' at least a modest degree of dominion over the premises so that such temporary user might have an opportunity to perform the necessary repairs or rebuilding."; Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447 (1966); Barth v. Downey Co., Inc., 71 Wis. 2d 775, 780 (1976); Lemacher v. Circle Const. Co., 72 Wis. 2d 245, 249 (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".'"

71. Potter v. Kenosha, 268 Wis. 361, 372 (1955): "... excepting that of inspection ..."; Weber v. Hurley, 13 Wis. 2d 560, 569 (1961): "... even though the owner retains the right of inspect ion." See also Mahar v. Uihlein, 240 Wis. 469 (1942); Barth v. Downey Co., Inc., 71 Wis. 2d 775, 780 (1976); Lemacher v. Circle Const. Co., 72 Wis. 2d 245, 249 (1976): "'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'."; Luterbach v. Mochon etc., Inc., 84 Wis. 2d 1, 10 (1978); Couillard v. Van Ess, 141 Wis.2d 459, 463 (1987); Kaltenbrun v. City of Port Washington, 156 Wis. 2nd 634, 457 N.W. 2nd 527, 531-32 (Ct. App. 1990)

72. Novak v. Delavan, 31 Wis. 2d 200, 209 (1966).

73. Connor v. Meuer, 232 Wis. 656 (1939), involving bleachers erected on public school grounds by photographer for purpose of class picture where city did not own, construct or maintain same. See also Kitter v. Lenard, 235 Wis. 411 (1940), where railroad company was absolved of safe-place liability on the ground that it was never required to, or did, construct or maintain viaduct over its tracks; and Mahar v. Uihlein, 240 Wis. 469 (1942).

74. Saxhaug v. Forsyth Leather Co., 252 Wis. 376 (1948); Wannmacher v. Baldauf Corp., 262 Wis. 523, 539g (1952); McNally v. Goodenough, 5 Wis. 2d 293, 299 (1958): "... The owner of the building ... retained no control or possession thereof. Hence his liability under the safe-place statute was limited to structural defects."; Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961).

75. No case has been found dealing with the safe-place liability of an owner for structural defects where he had conveyed his entire interest prior to the time of accident. As to the grantee's liability for such structural defects see Wannmacher v. Baldauf Corp., 262 Wis. 523, 539f (1952), footnote 66 below.

76. Wannmacher v. Baldauf Corp., 262 Wis. 523, 539f (1952): "... The grantee of an owner, who acquires title to a building which is structurally unsafe because of failure of the prior owner to comply with the requirements of the safe-place statute, assumes the liability of 'owner' to a frequenter who is subsequently injured."

77. Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 388 (1948).

78. Prehn v. C. Niss & Sons, Inc., 233 Wis. 155, 157 (1939).

79. Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594 (1960); Paaske v. Perfex Corp., 24 Wis. 2d 485 (1964).

80. Helms v. Fox Badger Theatres Corp., 253 Wis. 113, 118 (1948). But see Grabinski v. St. Francis Hospital, 266 Wis. 339, 343 (1954): "The safe-place statute, as it relates to a public building, does not require the owner to post signs warning of a temporary slippery condition ..." and discussion in regard to warning in Miller v. Paine Lumber Co., 202 Wis. 77 (1930), considering that decision on rehearing was based solely on statutes relating to employment. 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." See also footnote 17, supra.

81. Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 336 (1951).