(d) Notice or Knowledge of Defect

"Constructive notice of course is neither notice nor knowledge, but a mere shorthand expression. We say a person has constructive notice of something when for the promotion of sound policy or purpose he is to be treated as if he has actual notice, whether or not he had it in fact." [93] Accordingly, under the safe-place law, constructive notice has been held to exist where the person chargeable had created the situation which resulted in an unsafe condition [94] or had neglected to take minimum precautions to avoid it; [95] and where an agent or employee of the person chargeable was responsible for the unsafe condition; [96] and where the employer or owner suffered a dangerous agency to be upon the premises and injury was caused thereby. [97] The instance of constructive notice which is most common occurs where the unsafe condition "had existed for a sufficient length of time to afford the owner or employer [or an agent or employee thereof] opportunity to discover and remedy the situation." [98] What is a sufficient length of time is generally for the jury. [99] Such was the case where plaintiffs fall on an icy sidewalk occurred at 10:30 a.m., the record permitted finding that the area was slippery at 6:00 a.m., and defendant's maintenance man arrived at the scene at 6:00 o'clock on the morning in question. [100] However, the court has held time to be insufficient to constitute constructive notice as a matter of law where the defect was improper attachment of wires to the controller of an elevator motor which had taken place either on the morning of the accident or on the day before. [101] Of course, if the time of the defect's existence cannot be shown, constructive knowledge cannot be predicated thereon. [102] Time of a defect's existence is of no materiality where it was readily observable to an agent or an employee who was in the area. [103]

Failure to inspect safety device can support finding of constructive notice. [104]

Where a particular operation would reasonably require equipment on the premises to be provided with safeguards, an owner will not be liable for failing to furnish same if he had no notice that such operation was to be undertaken. [105]

The burden of proving actual or constructive notice is on the plaintiff. [106]

Whether a condition is "a structural defect" or "associated with the structure" presents an issue of law to be decided by the trial court, and is subject to de novo review on appeal. [106a]

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

82. Hommel v. Badger State Inv. Co., 166 Wis. 235, 242 (1917): ... whether appellant had notice of such [structurally unsafe] condition or not was immaterial." Hannebaum v. Direnzo and Bomier, 162 Wis. 448, 469 N.W. 2d 900, 905 (Ct. App. 1991): "Notice is not required as to structural defects." Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶ 9, 238 Wis. 2d 125, 131, 617 N.W. 2d 493, 496 (Ct. App. 2000).

83. Pettric v. Gridley Dairy Co., 202 Wis. 289, 293 (1930): "... The duty of the employer to repair or maintain his place of employment does not arise until he has either actual or constructive notice of the defect."; Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 560 (1934); Dierkes v. White Paving Co., 229 Wis. 660, 666 (1939): "... An employer is not liable unless he has actual or constructive notice of a condition of maintenance that renders a place of work unsafe."; Voll v. Ind. Comm., 239 Wis. 71, 80 (1941); Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 609 (1961): "Either actual or constructive notice ..."; Lee v. Junkans, 18 Wis. 2d 56, 61 (1962); Sposito v. Zeitz, 23 Wis. 2d 159 (1964); Presti v. O'Donahue, 25 Wis. 2d 594, 599 (1964). Gerdmann v. United States Fire Ins. Co., 119 Wis.2d 367, 371 (Ct.App. 1984).

84. Lundgren v. Gimbel Bros., 191 Wis. 521, 523 (1927); Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 559 (1934): "It has been held in several cases that an employer is not liable under the safe-place statute unless he has actual or constructive notice of a condition of maintenance that renders a place of work unsafe. The same rule in reason applies to owners."; Voll v. Ind. Comm., 239 Wis. 71, 80 (1941); Shumway v. Milwaukee Athletic Club, 247 Wis. 393 (1945); Boutin v. Cardinal Theatre Co., 267 Wis. 199, 202 (1954); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960); Longberg v. H. L. Green Co., 15 Wis. 2d 505 (1962). Notice to one joint owner is not notice to other, Lee v. Junkans, 18 Wis. 2d 56, 63 (1962).

85. Kinney v. Luebkeman, 214 Wis. 1, 4 (1934); Sheehan v. 535 N. Water St., 268 Wis. 325, 332 (1954): "For the same reasons 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 in a public building and which thereafter are rendered structurally unsafe by the tenant without the owner's knowledge. Until he 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."

86. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552 (1960): "In order for the owner of a place of employment to be found to have violated the safe-place statute with respect to a defect due to a failure of maintenance or repair, he must have had either actual or constructive notice of such defect."; Lee v. Junkans, 18 Wis. 2d 56, 61 (1962); Sposito V. Zeitz, 23 Wis. 2d 159 (1964); Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶ 15, 238 Wis. 2d 125, 136, 617 N.W. 2d 493, 498 (Ct. App. 2000).

87. Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 561 (1934); Dierkes v. White Paving Co., 229 Wis. 660 (1939); Boutin v. Cardinal Theatre Co., 267 Wis. 199, 204 (1954): "To have notice of a defect, of course the defect must exist and, in order to impose liability, it must exist for so long a time that the party charged with responsibility by the safe-place statute has opportunity not only to discover it but to remedy the situation and avoid the accident."; Werner v. Gimbel Brothers, 8 Wis. 2d 491 (1959); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960): "... existed for a sufficient length of time to afford the owner or employer opportunity to discover and remedy the situation."; Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447, 452 (1966); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 54 (1967); Merriman v. Cash-way, Inc., 35 Wis. 2d 112, 115 (1967); Wittka v. Hartnell, 46 Wis. 2d 374, 381 (1970); Shoemaker v. Marc's Big Boy, 51 Wis. 2d 611, 615 (1971); Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239 (1976); Topp v. Continental Ins. Co., 83 Wis. 2d 780, 789 (1978); Hannebaum v. Direnzo and Bomier, 162 Wis. 448, 469 N.W. 2d 900, 905 (Ct. App. 1991); Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 251 (Ct. App. 1994); Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶ 9, 238 Wis. 2d 125, 131, 617 N.W. 2d 493, 496 (Ct. App. 2000).

88. Pettric v. Gridley Dairy Co., 202 Wis. 289, 293 (1930); Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 560 (1934); Voll v. Ind. Comm., 239 Wis. 71, 80 (1941); Boutin v. Cardinal Theatre Co., 267 Wis. 199, 202 (1954); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 54 (1967); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 683 (1970).

89. Boutin v. Cardinal Theatre Co., 267 Wis. 199, 203 (1954).

90. Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553 (1934). Also, where latent defect: Sposito v. Zeitz, 23 Wis. 2d 159 (1964).

91. Kinney v. Luebkeman, 214 Wis. 1 (1934); Low v. Siewert, 54 Wis. 2d 251 (1972). See also regarding lights, footnote 26, supra.

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

93. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 75 (1957); Lee v. Junkans, 18 Wis. 2d 56, 62 (1962); Turk v. H. C. Prange Co., 18 Wis. 2d 547, 561 (1963); Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447, 452 (1966); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 54 (1967); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679 (1970); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 29 (Ct. App. 1979).

94. Kosnar v. J. C. Penney Co., 6 Wis. 2d 238, 242 (1959): "Usually (in the absence of statute) a proprietor may not be held negligent for a defective or hazardous condition when the proprietor or his agent did not create the condition or know of its presence or should have known ... It is different when the hazardous condition is created by defendant himself.", and the court quotes 1 Shearman and Redfield, Negligence (rev. ed.), p. 48, sec. 21: "For obvious reasons, the requirement -- that a person have knowledge of the facts out of which the duty arises -- applies only to passive as contrasted with active negligence. A person who is actively negligent necessarily has that knowledge. There is no requirement of notice where the condition was created by the party sought to be charged." See also Burmek v. Miller Brewing Co., 12 Wis. 2d 405, 412 (1961): "Defendant knew or should have known that the stacking of the containers in that area so interfered with the light there as to render the open space dark and indistinguishable."; Low v. Siewert, 54 Wis. 2d 251, 254 (1972): "Of course, where a defect or a dangerous condition is caused by the affirmative acts of the owner or his agent, he needs no notice because he has knowledge of his acts creating the hazard."; Turk v. H. C. Prange Co., 18 Wis. 2d 547, 559 (1963), which explains that active, rather than passive, negligence must be involved; Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 55 (1967): "... when an unsafe condition, although temporary or transitory, arises out of the course of conduct of the owner or operator of a premises or may reasonably be expected from his method of operation, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice." Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 252 (Ct. App. 1994).

95. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 76 (1957): "In that situation it was incumbent upon defendant to take some minimum precaution to see that the ramps were not so placed as to create a hazard. This might be done by instruction to the truckers as to how to stack them safely, or warning to use care not to place them in an unsafe condition, or by inspection from time to time to see that they were safely placed. There is no evidence that defendant did any of these things, or indeed did anything at all to protect employees and frequenters in the area in question. Therefore defendant cannot be heard to assert lack of notice of the unsafe condition of the ramps on the particular occasion of Uhrman's accident. It was charged with constructive notice of the condition resulting from careless compliance with directions given by its own employees, in circumstances where it should have taken precautions to avoid or detect hazards, but took none." (But see Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 554 (1960): "While the defendant may have been chargeable with constructive knowledge that some of the nuts on the repaired chairs did become loose and some came off, the testimony of the employee Nelson tended to show that steps were taken to remedy this, and to inspect the dance floor to see that no foreign objects were present upon it. A jury issue, therefore, was presented as to whether the defendant had constructive knowledge of the unsafe condition."); Karis v. Kroeger Co., 26 Wis. 2d 277, 284 (1965).

96. Lundgren v. Gimbel Bros., 191 Wis. 521, 523 (1927): "If it had been left there by one of defendant's employees, that fact would have been material in charging defendant with actual and immediate notice of its existence."; Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 77 (1957): "An employer cannot permit its rank-and-file employees to do things habitually in the course of their work that are very natural and reasonably to be anticipated, and then escape responsibility for their carelessness in the premises on the ground that they were not authorized to do such things."; Kosnar v. J. C. Penney Co., 6 Wis. 238, 242 (1959).

97. Mickelson v. Cities Service Oil Co., 250 Wis. 1 (1947), where dangerous agency was tank containing gasoline vapors which was being welded. The court said [5]: "The defendant company contends that it is not liable under the safe-place statute in the absence of actual or constructive knowledge of dangers or defects, and cites a number of cases dealing with defects due to failure to repair, lighting steps, etc., but cites no case where the party against whom liability was claimed was dealing with a highly dangerous agency such as gasoline." As to dangerous agency, see also Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 446 (1934): "... When the employer knows that a dangerous instrumentality which he has located in the 'place of work' is to be brought within range of the operation to be engaged in by those properly on the premises, he is liable for failure to reduce to a minimum the possibility of danger from that instrumentality."; Criswell v. Seaman Body Corp., 233 Wis. 606, 618 (1940); Umnus v. Wis. Public Service Corp., 260 Wis. 433, 439 (1952). For employer being reasonably unaware of the danger see Voll v. Ind. Comm., 239 Wis. 71 (1941); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 57 (1967): "... in circumstances where there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted, then constructive knowledge of the existence of such an unsafe condition may be charged to the operator and such constructive notice does not depend upon proof of an extended period of time within which a shop owner might have received knowledge of the condition in fact."; Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 684 (1970): "The unsafe condition here was substantially caused by the method used to display merchandise for sale." See Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239, 241 (1976) as not extending Steinhorst to "normal operation of a restaurant business." Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 251-252 (Ct. App. 1994).

98. Sandeen v. Willow River Power Co., 214 Wis. 166, 178 (1934); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960); Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 77 (1957); Longberg v. H. L. Green Co., 15 Wis. 2d 505 (1962). But see Sheehan v. 535 N. Water St., 268 Wis. 325 (1954), where premises were turned over to tenant with landlord retaining merely right of entry and repair. The court pointed out [332] "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.", and held [333]: "Hence, lapse of time, alone, during which the condition might have been discovered if the owner had entered the premises, is insufficient to constitute constructive notice." Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447 (1966); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 55 (1967); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 683 (1970): "We have pointed out that when an unsafe condition, although temporary or transitory, arises out of the manner of doing business by the occupant of the premises or may be reasonably expected to occur from his method of operation, a short period of time and possibly no appreciable period of time under some circumstances need exist to constitute constructive notice."; Low v. Siewert, 54 Wis. 2d 251, 254 (1972): "... defects arising out of failure of electric lights to burn and other similar conditions of neglectful maintenance must exist for a longer period of time before the owner should be charged with notice."; Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239 (1976); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 28 (Ct. App. 1979): "Where the unsafe condition is caused by climatic conditions beyond the control of the owner or employer, or by 'temporary and transitory' conditions, 'a longer length of time has been allowed to discover and correct the unsafe condition ... than in ... cases where the unsafe condition is caused or occasioned by the method of doing business and therefore under more control of the occupant of the premises'." Gerdmann v. United States Fire Ins. Co., 119 Wis.2d 367, 371 (Ct.App. 1984); Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 252, 254 (Ct. App. 1994).

99. Werner v. Gimbel Brothers, 8 Wis. 2d 491, 493 (1959): "The only issue on this appeal is the question of fact whether the defendants' actual or constructive notice of the unsafe condition of the walk warned them in time to require them to take reasonable precautions to prevent such an accident. We consider that the evidence bearing on that issue presents a jury question not to be determined as a matter of law."; Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960); Longberg v. H. L. Green Co., 15 Wis. 2d 505 (1962); Gerdmann v. United States Fire Ins. Co., 119 Wis.2d 367, 371 (Ct. App. 1984); Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 252 (Ct. App. 1994).

100. Werner v. Gimbel Brothers, 8 Wis. 2d 491 (1959); Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447 (1966) (fifteen minutes where defect readily observable by employees).

101. Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 560 (1934): "The improper wiring had been made either on the morning of appellant's injury or the day before. The owners had no knowledge of it. Time had not elapsed or anything occurred since the wiring had been made sufficient to support a finding of constructive notice."

102. Boutin v. Cardinal Theatre Co., 267 Wis. 199, 205 (1954): "Without proof that the defect had existed so long that a vigilant owner would have discovered and repaired it before respondent attempted to seat himself on the missing cushion, the safe-place statute ... imposes no liability on any owner whether inattentive or not. In the state of the evidence in the case at bar, the determination of when the cushion was removed and by whom rests in sheer speculation. The jury may not be permitted to guess."; Merriman v. Cash-way, Inc., 35 Wis. 2d 112, 116 (1967); Shoemaker v. Marc's Big Boy, 51 Wis. 2d 611, 615 (1971); Low v. Siewert, 54 Wis. 2d 251 (1972); Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W. 2d 249, 252 (Ct. App. 1994).

103. Rudzinski v. Warner Theatres, 16 Wis. 2d 241, 249 (1962): "Under this evidence it would be immaterial how long the wet spots had existed on the floor. This is because they were in plain view of this usher and the jury would be warranted in concluding that he should have seen them. This would afford sufficient basis for a finding of constructive notice ..."; Lee v. Junkans, 18 Wis. 2d 55, 61 (1962); Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447 (1966).

104. O'Karis v. Kroger Co., 26 Wis. 2d 277, 284 (1965): "We do not consider it is permitting a jury to indulge in unwarranted speculation in concluding that, if Kroger had made an adequate inspection that morning, it would have discovered the defect. Thus, the finding of negligence against Kroger can be sustained on the theory of constructive notice." See also Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 554 (1960).

105. Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 501 (1965): "It is at least arguable that Public Service had no duty to cover up the bottom metal screens of the reactor in the absence of notification that fish tape was to be used on the job."

106. O'Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227 (1960).

106a. Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶ 9, 238 Wis. 2d 125, 131, 617 N.W. 2d 493, 496 (Ct. App. 2000).