Chapter Three: Persons Liable
Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W.
95. Sec. 101.01(2)(h), Stats.
96. Bewley v. Kipp, 202 Wis. 411, 414 (1930): "Concededly this statute was not intended to and does not, affect the relative duties of the landlord and tenant ... in cases where there is a single tenant of a demised building."
97. As where an owner leases a building to another for use as a public building. Saxhaug v. Forsyth Leather Co., 252 Wis. 276 (1948), Sheehan v. 535 N. Water St., 268 Wis. 325 (1954) and Powell v. Milwaukee Area Technical College, 225 Wis. 2d 794, 594 N.W. 2d 403, 410 (Ct. App. 1999). The owner's duty under the safe-place law being absolute, it cannot be delegated. See Chapter 1, footnotes 4-7. Further, a building qualifies as a public building so as to make safe-place law applicable to portions used by tenants where the landlord leased to only two tenants and operated a store in the remainder of the building, Skrzypczak v. Konieczka, 224 Wis. 455 (1937). But see Gobar v. Val. Blatz Brewing Co., 179 Wis. 256 (1923).
98. Kelenic v. Berndt, 185 Wis. 240 (1924), dealing with the applicability of an industrial commission order. The court stated : "If a building is intended to accommodate more than four families, the mere fact that one part of it may be temporarily vacant does not make the rule of the industrial commission inapplicable." But see Mullen v. Reischl, 10 Wis. 2d 297, 307 (1960).
99. Zeininger v. Preble, 173 Wis. 243, 246 (1921). The Zeininger case also stated : "The language of the statute with reference to the duty of an employer to maintain a place of employment that is reasonably safe is the same as that which imposes upon a landlord or other owner of a public building the duty to maintain the structure in a reasonably safe condition." See also Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 636 (1935). However, it is not deemed that this language equates the duty of landlord and employer. In Holcomb v. Szymczyk, 186 Wis. 99 (1925), the court said [102): "... 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 from the holding in Zeininger v. Preble ...". See also Cross v. Leuenberger, 267 Wis. 232 (1954). Landlord subject to safe-place law if he either owns or operates, Batson v. Nichols, 258 Wis. 356, 358 (1951).
100. Cross v. Leuenberger, 267 Wis. 232 (1954). But see Antwaun A. v. Heritage Mutual Insurance Company, 228 Wis. 2d 44, 596 N.W. 2d 456, 465 (S. Ct. 1999), "[T]he landlords' occasional entry onto the property to collect rent ... does not make the property a place of employment as to all tenants at all times. ... [Nor does having] briefly hired a tenant living at one of the properties to make repairs at the property."
101. Cross v. Leuenberger, 267 Wis. 232, 236 (1954): "The operation of an apartment house is certainly not a 'trade,' but whether it constitutes a 'business' [so as to come within the definition of "place of employment"] presents a closer question ... In an annotation appearing in 50 A.L.R. 1176, 1177, entitled 'Ownership of leased or rented property as constituting business, trade, occupation, etc. within Workmen's Compensation Acts', the author states the majority rule to be as follows: 'The mere owning of a house, maintaining it, and keeping it in repair and renting it, so that it may produce an income, is not sufficient to constitute a business, nor does the owning and renting of more than one house necessarily constitute a business; but such transactions at most only amount to a regular business, within the meaning of the compensation act, when they are carried on to such an extent as to require a substantial and habitual devotion of time and labor to their management and operation'." See Gupton v. Wauwatosa, 9 Wis. 2d 217, 224d (1960) in regard to landlord maintaining "place of employment"; Wittka v. Hartnell, 46 Wis. 2d 374, 381 (1970): "... the mere ownership of an apartment building was not sufficient to establish that its owner was operating a business ... a corporation whose arrangements oblige it to maintain property and to make necessary repairs and whose very existence is dependent upon income derived from this type of property management is necessarily a business."
102. Tryba v. Petcoff, 10 Wis. 2d 308, 313 (1960). Other cases in which the tenant was an employer are Kinney v. Luebkeman, 214 Wis. 1 (1934) and Saxhaug v. Forsyth Leather Co., 252 Wis. 376 (1948), but because those cases involved defects for which an owner of a public building is liable it was unnecessary to go into the exact status of the landlord.
103. Powell v. Milwaukee Area Technical College, 225 Wis. 2d 794, 594 N.W. 2d 403, 410 (Ct. App. 1999). McNally v. Goodenough, 5 Wis. 2d 293, 299 (1958): "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 Kelenic v. Berndt, 185 Wis. 240 (1924); Holcomb v. Szymczyk, 186 Wis. 99, 105 (1925): "If an architect devises or prepares plans and specifications for construction which render a public building safe within the meaning of the statute and the owner thereafter maintains it in that condition, the statute is complied with so far as the duty owing by the landlord to his tenant is concerned ..."; Bewley v. Kipp, 202 Wis. 411, 414 (1930): "It is plain that this statute does require a building occupied by three or more tenants to be structurally safe." and : "Whether the landlord or the tenant was responsible for its defective condition depends upon whether the defect was structural in its nature or whether it was the result of ordinary wear and tear."; Skrzypczak v. Konieczka, 224 Wis. 455, 460 (1937), same as above; Saxhaug v. Forsyth Leather Co., 252 Wis. 376 (1948); Wannmacher v. Baldauf Corp., 262 Wis. 523 (1952); Sheehan v. 535 N. Water St., 268 Wis. 325, 332 (1954); Frion v. Coren, 13 Wis. 2d 300, 304 (1961): Where the 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), same as above. To the matter of determining safety of leased premises, see Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 388 (1948): "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." But see Sheehan v. 535 N. Water St., 268 Wis. 325 (1954), where court considered a two-by-four device attached by the tenant to elevator doors as a structural defect and said [332): "Until he [landlord] has actual or constructive notice of what his tenant has done, the owner's duty under sec. 101.06, Stats., to maintain a structurally safe building does not arise in respect to structural defects which the tenant has produced." However, it is doubted whether a tenant can produce a structural defect, as distinguished from an unsafe condition associated with the structure, and the court in the Sheehan case was of like opinion , "Our discussion has proceeded upon the assumption that the-latch was a structural defect. That was the appellants' claim but we have serious doubts that it is a valid one." See discussion at Note 47, supra, regarding liability of landlord even though possession, control, dominion and custody are lacking.
104. Holcomb v. Szymczyk, 186 Wis. 99, 105 (1925): Unless the owner expressly or impliedly reserves to himself parts of the building which are to be used in common by different tenants ..."; Kinney v. Luebkeman, 214 Wis. 1, 4 (1934): "... Where a tenant is in exclusive possession of a portion of a building for living purposes, that portion of the building is not within the purview of the safe-place statute, and the tenant, not the owner, is the one responsible for its maintenance ..." Hardware Mut. Cas. Co. v. Rasmussen Drug Co., 261 Wis. 1 (1952) (tenant to turn lights on); Wannmacher v. Baldauf Corp., 262 Wis. 523, 538 (1952): "... In order to hold an 'owner' liable under the safe-place statute, he must possess the right of entry so as to be able to do that which is necessary to make the premises reasonably safe."; Sheehan v. 535 N. Water St., 268 Wis. 325, 329 (1954): "Our decisions have emphasized that it is the lack of a right to enter a demised building which excuses the owner, when he is excused, from doing whatever may be necessary to make his building safe, ... (330) 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 ...  We consider that where the legal right to enter, examine, alter, and repair demised premises has been retained by the owner of a public building, that right cannot be wholly divorced from the statutory duty which the owner owes to frequenters to maintain a safe place." So landlord has no obligation to turn lights on in areas exclusively demised, Kinney v. Luebkeman, 214 Wis. 1, 4 (1934); McNally v. Goodenough, 5 Wis. 2d 293, 299 (1958); to same effect is Freimann v. Cumming, 185 Wis. 88 (1924) [see Kelenic v. Berndt, 185 Wis. 240 (1924), re such duty where common premises involved). But see Tryba v. Petcoff, 10 Wis. 2d 308 (1960), where lessor was held not responsible for defective appliance included in the lease even though the lease permitted  "the lessor to enter upon the premises at all reasonable times to make such changes or repairs to any of the structures as the lessor might see fit." The court explained that the lessor was relieved because : "The claimed defect, however, is the construction of the air system without an air-pressure regulator, or air meter, and not a lack of repair or maintenance of the equipment installed." As to landlord's duty of inspection over leased premises, Sheehan v. 535 North Water St., 268 Wis. 325, 332 (1954), states: "Nor is the landlord or owner required to patrol the demised premises in order to discover what his tenant may be doing in them when the lease does not require him to maintain and repair the premises, in the absence of reasonable cause to believe that an unsafe condition has been or is being created there."; Karis v. Kroger Co., 26 Wis. 2d 277, 283 (1965). As to no duty to patrol premises, see also Carlson v. Chicago & N. W. R. Co., 185 Wis. 365, 371 (1925), and Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 498 (1965). Couillard v. Van Ess, 141 Wis.2d 459, 463 (1987): "A safe place duty is imposed upon an owner only where there is retention of a right of control beyond mere legal ownership or right of inspection."
105. O'Sheehan v. 535 N. Water St., 268 Wis. 325, 332 (1954): We consider that the same rule in reason, requiring notice, must apply to an owner who, though retaining the right to enter, examine, repair, etc., has delivered to a tenant premises which are structurally safe." See also Kinney v. Luebkeman, 214 Wis. 1, 4 (1934), and Knowledge or Notice, Chapter 4.
106. O'Bewley v. Kipp, 202 Wis. 411, 414 (1930): "It is also apparent that the statute requires the landlord to keep in safe repair such portions of the building as may be used in common by the various tenants, their guests, servants and attendants, such as the common hallway, the elevator, etc."; 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." Antwaun A. v. Heritage Mutual Insurance Company, 228 Wis. 2d 44, 596 N.W. 2d 456, 465 (S. Ct. 1999). In Lealiou v. Quatsoe, 15 Wis. 2d 128 (1961), the court quoted the above language from the Frion case and commented , "It is to be noted in this statement, we did not restrict the owner's duty to maintain the zportions 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."
107. See footnote 66, supra.
108. O'See footnote 67, supra.
109. Lealiou v. Quatsoe, 15 Wis. 2d 128 (1961).
110. Bewley v. Kipp, 202 Wis. 411 (1930), involved an unsuccessful attempt by a tenant to recover from the landlord under the safe-place law. The court said : "We discover no legislative purpose in the enactment of this statute to change in any respect the mutual obligations of lessor and lessee at common law. Under the principles of the common law the lessor was under no obligation to repair unless he assumed such obligation by the terms of the lease." The Bewley case was cited in Skrzypczak v. Konieczka, 224 Wis. 455 (1937) to the proposition that at common law the duty of making repairs not due to structural defects falls on the tenant, and the landlord is not responsible therefor. The Bewley case was again referred to in Wannmacher v. Baldauf Corp., 262 Wis. 523 (1952), where the court said [5371, "Does the safe-place statute effect a change in this common-law rule and impose a duty upon a landlord to make repairs, or alterations, in premises which were structurally safe at the time of leasing even though the landlord has no duty under the leasing arrangement to make repairs? This court has answered this question in the negative." However, in the Wannmacher case it was pointed out that : "... The landlord at the time of the accident was not only out of possession but had no right to possession ..." and : "... There is no claim made that the landlord in the instant case had any duty to repair imposed by the terms of the leasing arrangei,nent. In the absence of such duty to repair, the landlord had no right of entry or control." Note also that in the Bewley case the landlord retained no right to control. Thereafter, in Frion v. Coren, 13 Wis. 2d 300 (1961), the court cited the Bewley and Skrzypczak cases, and stated that [304): "The import of these cases is plain. 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) See also Lealiou v. Quatsoe, 15 Wis. 2d 128, 135 (1961) (which cited the Bewley case). That a frequenter may recover from the landlord under such circumstances is supported by the doctrine that a landlord has an absolute duty to such frequenter which cannot be delegated (see Chapter 1, footnotes 4-7) and is not offset by the tenant's negligence (Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 391 (1948).
Frion v. Coren, 13 Wis. 2d 300 (1961). The court discussing
Bewley v. Kipp, 202 Wis. 411 (1930) (where duty to repair was on the tenant) stated : "... The opinion makes it clear that if the defect causing the injury had been a structural one rather than want of repair, there would have been liability.", and held : "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." In the
Frion case the court reinstated a verdict finding that the landlord breached his safe-place duty toward the tenant in regard to a structural defect (although recovery was denied by reason of the tenant's greater contributory negligence).