Boyle's Wisconsin Safe-Place Law

Chapter Three: Persons Liable

    Independent Contractor
Where an independent contractor [91] is himself an employer, he is, of course, liable as an employer. Like other employers he is, therefore, responsible in cases of structural defects and unsafe conditions in the place of employment and unsafe employments. [92] However, because an independent contractor must often conduct his employment on another's premises, the likelihood of avoiding liability on the ground of lack of control over the unsafe condition is greater than in the case of the usual employer. [93]

The extent of an independent contractor's dominion and control over a place or over employment may be determined from the provisions of the contract which brought him there. [94]

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

91. "An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed." Bond v. Harrel, 13 Wis. 2d 369 (1961).

92. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537, 543 (1923): "As between the several contractors it was undoubtedly the duty of each to so conduct the work under its control as to furnish safe places of employment and to adopt methods reasonably adequate to render the employment and places of employment safe not only for his employees but also for frequenters."; Peschel v. Klug, 170 Wis. 519 (1920); Lang v. Findorff, 185 Wis. 545 (1925); Vogelsburg v. Mason & Hanger Co., 250 Wis. 242 (1947); La Duke v. Northern States Power Co., 256 Wis. 286 (1950); Johannsen v. P. P. Woboril, Inc., 260 Wis. 341 (1952).

93. Criswell v. Seaman Body Corp., 233 Wis. 606, 623 (1940), where independent contractor was exonerated because of lack of control. But see Lovesee v. Allied Development Corp., 45 Wis 2d 340, 348 (1970), where safe-place duty only on employee's immediate employer; Barth v. Downey Co., Inc., 71 Wis. 2d 775, 778 (1976): "An owner or general contractor can owe a duty under the safe-place statute to a frequenter when a hazardous condition is created, but only if the owner or general contractor has reserved a right of supervision and control." Retaining only right of inspection or of changing the plan with reference to construction is not sufficient to establish control. See Barth also (782) regarding general contractor's liability where tools or equipment loaned to sucontractor; Lemacher v. Circle Const. Co., 72 Wis. 2d 245, 248 (1976): "Actually, both under common-law negligence and under the safe-place statute, something more is needed than the fact of status as a general contractor to make a general contractor liable for injuries sustained by a subcontractor's employee on a defective scaffold provided by the subcontractor. In an action based on common-law negligence that 'something extra' must be '... an affirmative act of negligence that increases the risk of injury.' In an action, as here, brought under the safe-place statute, an owner or general contractor can owe a duty to the employees of a subcontractor as 'frequenters' but that duty arises '... only if the owner or general contractor has reserved a right of supervision and control.'" (249) Test being whether general contractor "stood in the shoes of the (immediate) employer by reason of his retention of control of the premises." Barrons v. J. H. Findorff & Sons, Inc., 89 Wis. 2d 444, 457 (1979).

94. Mickelson v. Cities Service Oil Co., 250 Wis. 1, 6 (1947); Potter v. Kenosha, 268 Wis. 361 (1955); Berger v. Metropolitan Sewerage Comm., 56 Wis. 2d 741, 747 (1973); Luterbach v. Mochon S., H., J. Inc., 84 Wis. 2d 1, 4 (1978); Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210, 225 (1979): "These cases stand for the proposition that it is appropriate to consider the provisions of the owner-architect agreement in the instant case in order to determine whether respondents owed a duty to appellant under the safe-place statute."

Revised May 18, 2000