(a) Employer

(3) Extent of Owner of Place of Employment Duty

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

82. Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594, 602 (1960). (Italics added)

83. Sec. 101.11, Stats.

84. Saxhaug v. Forsyth Leather Co., 252 Wis. 376 (1948), where floor of building collapsed; Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472 (1960), where frequenter fell through unfinished stairwell in building under construction. But see Palmer v. Janesville Improvement Co., 195 Wis. 607 (1928), where plaintiff stepped out from second floor apartment onto roof of marquee or canopy over theater premises in order to measure window for awnings. Owner was held not liable for injuries resulting from collapse of canopy on the ground that the canopy was not designed as such place of employment.

85. Mennetti v. West Side Businessmen's Assn., 246 Wis. 586 (1945) (hole in stage); Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961) (failure to light). But see Hintz v. Darling Freight, Inc., 17 Wis. 2d 376 (1962).

86. Mickelson v. Cities Service Oil Co., 250 Wis. 1 (1947) (unsafe employment); Gupton v. Wauwatosa, 9 Wis. 2d 217 (1960) (unsafe employment in that approved safety devices were not provided); Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547 (1960), involving injury caused by tripping over nut which had fallen from bolt on a chair; the court identified the defendant as [552] "owner of a place of employment", and identified the condition as [551] "a temporary condition wholly disassociated from the structure." But see Tryba v. Petcoff, 10 Wis. 2d 308 (1960), involving injury to a frequenter by an unsafe appliance provided by the owner of the place of employment. As an apparently close question, the court said [313], "The majority of the members of the court deem that under the circumstances the duty of the owner to construct the place of employment so as to render it safe did not extend to installing the pressure regulator and air-meter equipment, even though such equipment might reasonably be considered necessary in order to make the place safe if the air hose is to be used by unskilled persons." Also Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594 (1960), involving unsafe employment in that a billboard advertising sign was not so constructed as to safely allow a sign painter to work thereon. The court said [603]: "Some members of this court, including the writer of this opinion, would conclude that the safe-place statute required defendants, if they chose to construct the sign and molding in the manner they did, to anticipate that a painter would need to stand in the open area and, therefore, to cover that area in such manner that there would be safe support. The majority, however, point out that the danger was not due to any unsoundness of the structure, and concluded that the provision of a device which would make the area safe for a painter was the duty of the painter's immediate employer, and not the duty of the defendants as owners."

87. Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594, 602 (1960).

88. Tryba v. Petcoff, 10 Wis. 2d 308, 313 (1960): "The material part of that section provides that 'Every employer and every owner of a place of employment ... shall so construct, repair, or maintain such place of employment ... as to render the same safe.' Broader duties are assigned to the employer in the first sentence of the section; but not to the owner."; and Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594, 602 (1960): "... Responsibilities ... were only those of owners [of place of employment], and were not the broader duties of employers." "If it relates to a 'safe place of employment,' both the owner and employer are responsible. If it relates to 'safe employment,' however, then only the employer is responsible for such condition." Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W. 2d 815, 818 (Ct. App. 1998). The ground for claim of broader duty is based on the contents of the first sentence of Section 101.11, Stats. Such first sentence deals (in addition to place of employment) with duty to provide "safety devices and safeguards", safe "methods and processes," and "every other thing." But see Lee v. Junkans, 18 Wis. 2d 56, 61 (1962): "Henry Junkans, as the owner of a place of employment, stood in the shoes of the employer by reason of his retention of control of the premises..." Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763, 769 (1973): "It is clear, however, that the duty of the owner of a place of employment does not add to the duty owed by an employer to an employee..." Hannebaum v. Direnzo and Bomier, 162 Wis. 448, 469 N.W. 2d 900, 904 (Ct. App. 1991) "The safe place statute makes no distinction between the duty of an owner and that of an employer."

89. Potter v. Kenosha, 268 Wis. 361, 371 (1955): "Legal liability under sub. (13), sec. 101.01, Stats., is not predicated alone on absolute ownership of a place of employment. Where a right to present possession, control, or dominion of such place exists, the holder of such right may be held liable."; Weber v. Hurley, 13 Wis. 2d 560, 569 (1961). See also Mennetti v. West Side Businessmen's Assn., 246 Wis. 586, 590 (1945): "... The defendant as owner [of a place of employment] having the right of supervision, control, and custody ...". But see Tryba v. Petcoff, 10 Wis. 2d 308, 313 (1960), where reservation of right to repair did not constitute control under existing circumstances.; Lee v. Junkans, 18 Wis. 2d 56 (1962) where joint owner absolved by reason of lack of control, but where retention of control by other owner found under following facts (60): "Henry Junkans personally worked on the job and also purchased some of the materials necessary for the job, although other materials were brought by ... (carpenter contractor). In addition, Mr. Junkans engaged such other tradesmen as the excavators, plumbers, and electricians." But see Hintz v. Darling Freight, Inc., 17 Wis. 2d 376 (1962) where it is possibly inferred that owner who temporarily divested himself of control of an unsafe place of employment might thereby avoid liability. Berger v. Metropolitan Sewerage Comm., 56 Wis. 2d 741 (1972). Powell v. Milwaukee Area Technical College, 225 Wis. 2d 794, 594 N.W. 2d 403, 411-412 (Ct. App. 1999).

90. 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 rquires such warning when reasonably necessary to protect life, health, safety, and welfare of such employees and frequenters'." Burmek v. Miller Brewing Co., 12 Wis. 2d 405, 413 (1961); 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."; Gould v. Allstar Ins. Co., 59 Wis. 2d 355 (1973).