(b) Conditions Associated with Structure

Examples::

Failure to turn on a light located in a part of the building where such illumination is required for the safety of users thereof is a matter of maintaining the structure in an unsafe condition, and therefore is a condition associated with the structure. [26] Other conditions which can be classified as "associated with the structure" are: loose stone detached by a prior blast in a quarry, [27] improper motor connection in an elevator, [28] unnecessary accumulation of ice on floor of cold storage plant, [29] an inadequately attached screen on upper floor window of building, [30] absence of seat in a theater, [31] a two-by-four improvised as an elevator door latch, [32] clothing racks placed in a department store aisle, [33] and "paint applied to a wall." [34]

Some conditions, seemingly connected with the structure, have been held not to be associated therewith. Where a YMCA swimming pool diving board was removed for repair, and an employee in charge of a class of boys allowed the boys to insert a loose plank into the permanent brackets without fastening the same, it was held that the resulting unsafe condition was unrelated to the structure. [35] So too where manner of construction or maintenance permitted rain and snow to drain onto parts of a public building used by the public or tenants, and to there freeze into an unsafe slippery condition. [36] It has also been held that temporary slippery floor conditions created in the process of mopping a floor [37] and in the process of applying wax to a floor [38] and by rain or snow being blown or tracked into a building [39] are not conditions associated with the structure. The law on this subject, however, might not be fully developed as yet. [40]

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

23. Sec. 101.11, Stats.

24. Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 211 (1935).

25. Juul v. School District, 168 Wis. 111, 114 (1918). The following cases have quoted the language, "... The statute does not apply to temporary conditions having no relation to the structure of the building,or the materials of which it is composed."; Holcomb v. Szymczyk, 186 Wis. 99, 104 (1925); Wilson v. Evangelical Lutheran Church, 202 Wis. 111, 114 (1930); Waldman v. Young Men's Christian Asso., 227 Wis. 43, 47 (1938); Kezar v. Northern States Power Co., 246 Wis. 19, 25 (1944); Wannmacher v. Baldauf Corp., 262 Wis. 523, 533 (1952); Baldwin v. St. Peter's Congregation, 264 Wis. 626, 629 (1953); Grabinski v. St. Francis Hospital, 266 Wis. 339, 342 (1954); Watry v. Carmelite Sisters, 274 Wis. 415, 418 (1957). See also Bent v. Jonet, 213 Wis. 635, 639 (1934); Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209, 212 (1935): "The permitting of temporary conditions wholly disassociated from the structure does not constitute a violation of the safe-place statute by the owner of a building ..."; Herrick v. Luberts, 230 Wis. 387, 389 (1939): "... not be liable for temporary conditions wholly unconnected with structural defects or faulty material . . ."; Meyers v. St. Bernard's Congregation, 268 Wis. 285, 288 (1954): "The duty of the latter [owner of public building] is to maintain the structure, and this relates to the structure and not to a temporary condition which is not a part thereof."; Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964): "... the word 'temporary' as used in the public building cases, is one way of stating the conclusion that a condition is not associated with the structure."

26. Brown v. Gaulke, 194 Wis. 537 (1928); Wilson v. Evangelical Lutheran Church, 202 Wis. 111, 114 (1930): "The failure to turn it on when the place is dark and the premises are in use may constitute a failure to maintain the premises in a safe condition, depending on the circumstances."; Pettric v. Gridley Dairy Co., 202 Wis. 289, 292 (1930); Kinney v. Luebkeman, 214 Wis. 1, 4 (1934): "It may be conceded that the word 'maintain' in the statute requires the light at the stairhead to be kept constantly turned on or turned on whenever the stairway is used ..."; Heiden v. Milwaukee, 226 Wis. 92, 102 (1937): "Failure to light a building, or part of building, subject to the safe-place statute, is regarded as a failure to maintain the building in a safe condition and consequently a violation of the safe-place statute regarding maintenance."; Helms v. Fox Badger Theatres Corp., 253 Wis. 113 (1948); Zimmers v. St. Sebastian's Cong., 258 Wis. 496 (1951); Hardware Mut. Cas. Co. v. Rasmussen Drug Co., 261 Wis. 1, 4 (1952); Paepcke v. Sears, Roebuck & Co., 263 Wis . 290 (1953); Perry v. Labor Temple Asso., 264 Wis. 36, 38 (1953); Meyer v. Val-Lo-Will Farins, 14 Wis. 2d 616, 623 (1961).

In Wilson v. Evangelical Lutheran Church, 202 Wis. 111, 113 (1930), the court said that a light is governed by considerations different from unsafe conditions caused by ice and snow, which are not conditions associated with the structure. However, in order to recover from the owner on the ground of such defect, the plaintiff must show that the owner or employer had notice that the light was extinguished, or that it was turned off by someone for whose act the owner or employer was responsible, Pettric v. Gridley Dairy Co., 202 Wis. 289, 294 (1930); Zimmers v. St. Sebastian's Cong., 258 Wis. 496, 501 (1951); Paepcke v. Sears, Roebuck & Co., 263 Wis. 290, 296 (1953). An owner who has no control of the premises is relieved of the duty to turn light on, McNally v. Goodenough, 5 Wis. 2d 293, 299 (1958). Merkley v. Schramm, 31 Wis. 2d 134, 139 (1966): "It is well settled that the failure to properly light a building or a part thereof subject to the safe-place statute constitutes a violation of the statute."; see also Grabinski v. St. Francis Hospital, 266 Wis. 339 (1954).

27. Connolly v. Waushara Granite Co., 162 Wis. 522 (1916).

28. Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553 (1934) (not deemed structural defect because notice required to hold owner). As to escalator becoming out of adjustment, see Turk v. H. C. Prange Co., 18 Wis. 2d 547 (1963).

29. Sweitzer v. Fox, 226 Wis. 26 (1937). In the Sweitzer case the court held [35]: "Sufficient basis for the jury's finding, that Fox and Street failed, at the time and place of plaintiffs injury, to maintain the storage-room floor in as safe a condition as the nature of the business would reasonably permit, is afforded by evidence to the effect that the accumulation of ice on the floor was then greater and less free from danger to the safety of employees and frequenters than the nature and place of employment reasonably permitted, because of (1) the improper design and nature of the floor of the ice chute, and of the doors at its entry into the storage room; (2) the extension of the chute at its base across part of the drain in the storage-room floor; and (3) the failure to daily chop and sweep the ice off the floor." Compare with footnote 36, infra.

30. Wright v. St. Mary's Hospital, 265 Wis. 502 (1953).

31. Boutin v. Cardinal Theatre Co., 267 Wis. 199 (1954).

32. Sheehan v. 535 N. Water St., 268 Wis. 325 (1954).

33. Blong v. Ed. Schuster & Co., 274 Wis. 237 (1956). See also Waterman v. Heinemann Brothers Co., 229 Wis. 209, 213 (1938), and Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539 (1960).

34. Watry v. Carmelite Sisters, 274 Wis. 415, 422 (1957) (example given in dissenting opinion). In a case where "employment" is involved, as in some of the above examples, it is unnecessary for the court to identify a condition as being "associated with the structure," or as being "unsafe employment" inasmuch as safe-place law there applies to both situations. Where the court did not identify the condition in the above examples, resort was made to basic considerations.

35. Waldman v. Young Men's Christian Asso., 227 Wis. 43, 47 (1938): "The defendant was not in any sense attempting to maintain a diving board, and the temporary improvision of a loose board for purposes of diving seems to us to either constitute a temporary condition having nothing to do with the structure of the building or the mere negligent misuse of equipment for a purpose for which it was not designed ... It was a temporary condition unrelated to the structure of the building having nothing to do with the design of the building or the materials of which it was composed."

36. Holcomb v. Szmczyk, 186 Wis. 99 (1925); Rosenthal v. First Bohemian B. & L. Asso., 192 Wis. 326 (1927) (defective drain pipe); Kezar v. Northern States Power Co., 246 Wis. 19 (1944). See also Meyers v. St. Bernard's Congregation, 268 Wis. 285 (1954). Compare with Sweitzer v. Fox, 226 Wis. 26, 35 (1937) footnote 29, supra.

37. Juul V. School District, 168 Wis. 111, 114 (1918): "We are satisfied from a consideration of this statute, its evident purpose, place and history, that this word 'maintain', particularly when found used with the words 'construct or repair', must be held to relate to some act more closely related to the structure itself of a building than such an operation as is here involved of keeping the floors of a building clean."; Cronce v. Schuetz, 239 Wis. 425' (1942). In the Cronce case the court held [431]: "Granting as we must that the scrubbing or mopping of the hallways in a public building is an indispensable act in the maintenance of the building, we think it cannot be held that the temporary wetting of the floor in the process of scrubbing or mopping, even though such a wet condition may tend to make the floor for the time being slippery, can be made the basis of liability against the owner.", and [430]: "The argument that the mopping of the hallways should have been deferred until after the close of business hours is without merit." However, the court also pointed out that there was not [428] "any unusual amount of water on the floor ... [and] there was no soap or soap chips upon the floor."; and quoted with approval Mohl v. Chase Nat. Bank, 294 N.Y. Supp. 534, 536 (a common-law case): "It seems to be established that liability cannot be predicated on a wet or soapy or slippery floor while the act of cleaning is in process. Liability may be shown where the lobby, the floor, or the stairs were left in a wet, slippery, and dangerous condition after the washing had been completed. Liability in such a case, of course will depend upon the care or lack of it used in the cleaning and mopping up, and upon the length of time that elapses between the washing and the drying."

38. Watry v. Carmelite Sisters, 274 Wis. 415, 419 (1957): "As shown by the Juul and Cronce cases, supra, 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. We consider that the excess wax momentarily present during the waxing operation is like the soapy water temporarily on the floor in the Cronce case and did not render the building unsafe within the meaning of sec. 101.06, Stats.". But the court also acknowledged that [418]: The obligation of an owner of a public building in his duty of maintaining [includes the duty] to prevent the floors from becoming oily, greasy, and slippery." (citing Jaeger v. Evang. Lutheran Holy Ghost Cong., 219 Wis. 209 (1935)). See also Brown v. Appleton Masonic Temple Asso., 243 Wis. 147, 149 (1943): "There was no proof that there was such an accumulation of wax or any foreign substance, or water or defect on the floor as to cause plaintiff to slip." and Grabinski v. St. Francis Hospital, 266 Wis. 339, 342 (1954): "There is no claim that anything was on the floor except some rain water."; and Thoni v. Bancroft Dairy Co., 255 Wis. 577, 583 (1949); Shoemaker v. Marc's Big Boy, 51'Wis. 2d 611 (1971).

39. 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, to provide a nonskid tread because of a temporary condition, or to mop up and remove water created by a natural hazard, such as a rainstorm,"; Mondl v. F. W. Woolworth Co., 12 Wis. 2d 571 (1961). Porcelain tile entranceway involved in Sturm v. Simpson's Garment Co., 271 Wis. 587 (1956); see too Longberg v. H. L. Green Co., 15 Wis. 2d 505 (1962).

40. In Jaeger v. Evang. Luth. Holy Ghost Cong., 219 Wis. 209 (1935), the court stated [212]: "When floors have been permitted to become oily, greasy, and slippery, it is held that.this constitutes a failure to maintain the structure in its original integrity." [citing Pettric v. Gridley Dairy Co., 202 Wis. 289, 295 (1930)1; see also Thoni v. Bancroft Dairy Co., 255 Wis. 577, 583 (1949): "There was no evidence offered by the plaintiff that there was an excessive accumulation of wax or that the floor in that particular spot was unnecessarily or unusually slippery." Other slippery floor cases: Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51 (1967); Steinhorst v. H. C. Prange, Co., 48 Wis. 2d 679; Shoemaker v. Marc's Big Boy, 51 Wis. 2d 611 (1971); Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239 (1976); Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220. In support of holding that portable score-board leaning against building was not condition associated with the structure, the Court in Haerter v. West Allis, 23 Wis. 567, 571 (1964) pointed out: "In this case the board was stored away when not in use. The fact that the board was leaning against the wall is not sufficient to show association with the structure."