Boyle's Wisconsin Safe-Place Law

Chapter Five: Persons Protected

    (b) Frequenter
Due to the operation of the Worker's Compensation Act in regard to "employee" injuries, the main practical concern of safe-place law today is in the "frequenter" area. [9] The safe-place statutes define the term "frequenter" to mean and include "every person, other than an employe, who may go in or be in a place of employment or public building under circumstances which render such person other than a trespasser." [10] Persons who at common-law were known as "invitees" and "licensees" are included in the frequenter classification. [11] A pupil at school is now recognized to be a frequenter. [12]

An employee of an independent contractor is a frequenter so far as the employer of the independent contractor is concerned (where such independent contractor is hired to perform work not ordinarily done by the employer). [13] Likewise as to the employee of a subcontractor hired by such independent contractor. [14] So where a dairy enterprise hired an independent contractor to perform a job upon its premises, and an employee of the independent contractor was injured by reason of high tension electric coils suspended over the premises, such injured person could recover from the dairy enterprise under safe-place law. [15] Also an employee of a subcontractor has been held [16] to be a frequenter as to the general contractor who was responsible for an unsafe condition causing him injury. [17] The employee of a general contractor has been held to be a frequenter as to a subcontractor. [18] An employee of a subcontractor has been held to be a frequenter as to other subcontractors on the job. [19] And an employee of the owner or initial employer has been held to be a frequenter as to an independent contractor. [20]

Others falling into the "frequenter" class are an employee after hours, [] and a traveling salesman. [22] The word "tenant" as it is used in safe-place law, and in the statutory enumeration of frequenters, is not limited technically as it is in the phrase "landlord and tenant", but includes whoever is in possession of the premises. [23]

A frequenter loses his status as such, and becomes a trespasser, when he goes into an area to which he was neither expressly nor impliedly invited. [24] And this is so even if such unauthorized entry was a result of mistake or confusion. [25]

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

9. Hrabak v. Madison Gas & Elec. Co., 240 F.2d 472, 475 (7th Cir. 1957).

10. Sec. 101.01(2)(e), Stats. Also Drossenbach v. Devonshire Realty Co., 218 Wis. 633, 637 (1935); Tomlin v. Chicago, M., St. P. & P. R. Co., 220 Wis. 325, 332 (1936); Powers v. Cherney Construction Co., 223 Wis. 586, 588 (1937). Duty to furnish "safe employment", as distinguished from "safe place of employment", does not run to frequenters: Haerter v. West Allis, 23 Wis. 2d 567, 570 (1964); Niedfelt v. Joint School District, 23 Wis. 2d 641, 648 (1964); Rogers v. Oconomowoc, 24 Wis. 2d 308, 316 (1964).

11. Klemens v. Morrow Milling Co., 171 Wis. 614, 618 (1920): "The safe-place employment statutes ... have undoubtedly broadened the field of those to whom there is and was a common-law duty to keep such premises as are here involved reasonably safe so as to now protect and include those upon such premises under the rights belonging to the class described under the somewhat vague and indefinite term of 'licensees.'" Lewko v. Chas. A. Krause Milling Co., 179 Wis. 83, 94 (1922): "The law recognizes that persons licensed or permitted to go upon the premises of another have certain rights which the owner is bound to respect. In other words, it put into the statutes the humane doctrine of the courts, and wiped out the Draconian doctrine so far as licensees or invitees are concerned." Wilson v. Evangelical Lutheran Church, 202 Wis. 111, 115 (1930).

12. Laws 1977, c. 29, s. 995 amended definition of frequenter at sec. 101.01(2)(e), Stats. by adding the following: "Such term includes a pupil or student when enrolled in or receiving instruction at an educational institution." Frequenter status was formerly denied to a pupil at school: Sullivan v. School District, 179 Wis. 502, 507 (1923); Niedfelt v. Joint School District, 23 Wis. 2d 641, 646 (1964). However, in Mlynarski v. St. Rita's Cong., 31 Wis. 2d 54 (1966) the Court said [59] "Now that the doctrine of governmental immunity from tort liability has been abrogated, the foundation underlying Sullivan has been taken away and the Sullivan rule should be changed ... We would even overrule Sullivan itself if such would bring the respondent under the protection of the safe-place law."; accord in result: Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688 (1967).

13. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 445 (1934): "The employees of an independent contractor doing work upon the premises are 'frequenters' within the terms of that statute." Morrison v. Steinhort, 254 Wis. 89 (1948); Williams v. International Oil Co., 267 Wis. 227, 229 (1954): "An employee of an independent contractor doing work upon his premises is a frequenter within the safe-place statute."; Frankovis v. Klug & Smith Co., 275 Wis. 156, 161 (1957); McNally v. Goodenough, 5 Wis. 2d 293, 300 (1958): "An employee of an independent contractor doing work on the building, is a frequenter of that part of the premises where his work reasonably takes him."; Engel v. T. L. Smith Co., 164 Wis. 515 (1917); Lee v. Junkans, 18 Wis. 2d 56 (1962); Sposito v. Zeitz, 23 Wis. 2d 159 (1964); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 45 (1969); Sampson v. Laskin, 66 Wis. 2d 318 (1975); Barthel v. Wisconsin Electric Power Co., 69 Wis. 2d 446 (1975); Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210, 226 (1979). But as to ability to recover from original employer where structural oddity causes injury and duty to provide device to make such place safe is on immediate employer, see Asen v. Jos. Schlitz Brewing Co., 11 Wis. 2d 594 (1960) and Paaske v. Perfex Corp., 24 Wis. 2d 485 (1964); Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488 (1965); see also Lovesee v. Allied Development Corp., 45 Wis. 2d 340 (1970) where duty to furnish safe ladder only upon the immediate employer.

As to independent contractor being frequenter, see Mennetti v. West Side Businessmen's Asso., 246 Wis. 586 (1945).

Compare with sec. 102.06, Stats.: "An employer shall be liable for [worker's] compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer." A literal reading of this section would create the impression that an employee of an independent contractor could not be a "frequenter" as to the employer who hired the independent contractor, so as to recover from such employer under the safe-place law -- at least where the independent contractor is not under the Compensation Act. The section says such employer is responsible to the injured employee of a contractor under the compensation act, and if that were the case worker's compensation would be the exclusive remedy of such injured employee pursuant to sec. 102.03(2), Stats. However, the statute has not been so construed. This section has the purpose of preventing an employer from delegating his usual and customary work to others in order to avoid liability under the act. Accordingly, it is held that where the contractor or subcontractor is hired to perform specialized work not ordinarily done by the employer, section 102.06 does not apply. See Wells Coal & Dock Co. v. Ind. Comm., 224 Wis. 546 (1937); Employers Mut. Liability Ins. Co. v. Ind. Comm., 224 Wis. 527 (1937); Heineman Lumber Co. v. Ind. Comm., 226 Wis. 373 (1938); City of Hudson v. Ind. Comm., 241 Wis. 476 (1942); Britton v. Ind. Comm., 248 Wis. 549 (1946); Phaneuf v. Ind. Comm., 263 Wis. 376 (1953).

14. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537 (1923); Criswell v. Seaman Body Corp., 233 Wis. 606 (1940); Umnus v. Wis. Public Service Corp., 260 Wis. 433 (1952); Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961); Lemacher v. Circle Constr. Co., 72 Wis. 2d 245 (1976); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26 (Ct. App. 1979).

15. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441 (1934). See also Criswell v. Seaman Body Corp., 233 Wis. 606 (1940).

16. Expressly or by necessary inference in following cases.

17. Lang v. Findorff, 185 Wis. 545 (1925), where defendant general contractor in the construction of a building had contracted with plaintiff's employer for marble work required inside the building. Defendant furnished a defective hoist on which plaintiff was injured. It was held that plaintiff had the right to go to the jury on the question of safe-place liability in a civil action. See also Umnus v. Wis. Public Service Corp., 260 Wis. 433 (1952); Presser v. Siesel Construction Co., 19 Wis. 2d 54 (1963); Mustas v. Inland Construction, Inc., 19 Wis. 2d 194 (1963); Barth v. Downey Co., Inc., 71 Wis. 2d 775, 778 (1976).

18. Morrison v. Steinhort, 254 Wis. 89 (1948).

19. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537 (1923), where plaintiff subcontractor in a building under construction sustained injury when door handle pulled out causing him to fall backward into elevator shaft. Judgment against other subcontractor who was responsible for the defective door handle was affirmed (as was judgment against the owner-general contractor). Sposito v. Zietz, 23 Wis. 2d 159 (1964).

20. Vogelsburg v. Mason & Hanger Co., 250 Wis. 242 (1947); Johannsen v. Peter P. Woboril, Inc., 260 Wis. 341, 344 (1952): "Plaintiff was not a trespasser when he carried on his own work in the area which defendant [independent contractor] was using as a paint shop. In respect to that area and in respect to defendant he was a frequenter, entitled to the protection of the safe-place statute ... although its [defendant's] control over the area was not exclusive."

21. Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 430 (1957): "... After plaintiff finished his work for the day he proceeded to his automobile which was parked near by and backed it up to the loading platform" [of his employer]. Injury occurred when plaintiff then attempted to take some veneer, which he had purchased from his employer, off the platform. Under these circumstances the court held [431]: "At the time of his injury, the plaintiff was not an employee of the defendant but was a frequenter."

See also Mullen v. Larson-Morgan Co., 212 Wis. 52, 63 (1933): "It is urged by respondent in effect that the plaintiff was not engaged in his work or at his place of work at the time he was injured but had stepped aside from his work and stepped on the loose plank from idle curiosity. If this be so he was a 'frequenter'."

22. Washburn v. Skogg, 204 Wis. 29 (1931); Wendt v. Manegold Stone Co., 240 Wis. 638 (1942). But see dissent in Wendt case [643]: "It seems to me that a salesman, who is told by the owner of the premises not to come until sent for, cannot suddenly appear at the threshold, in the absence of the one with whom he was dealing, while the premises are in charge of one of limited authority, and merely by announcing his purpose of entering put upon the owner all the liability that may flow from a violation of the safe-place statute."

23. Skrzypczak v. Konieczka, 224 Wis. 455, 461 (1937): "It would seem that liability for injury to a lessee should be made to depend on the plan of the building and the purpose for which it was built; and that if dependent on occupancy, occupancy of the building rather than tenancy as the term 'tenancy' is used in the phrase 'landlord and tenant' should control. The word 'tenant' is not limited to the latter sense. The more general use of the word is in the broader sense of one in possession of the premises, whether as owner or otherwise. (See Webster's Dictionary.) Safety of the lessee is the object of the statute

24. Lang v. Findorff, 185 Wis. 545 (1925); Grossenbach v. Devonshire Realty Co., 218 Wis. 633 (1935); Newell v. Schultz Brothers Co., 239 Wis. 415 (1942); Ryan v. O'Hara, 241 Wis. 389 (1942); Wannmacher v. Baldauf Corp., 262 Wis. 523 (1952); McNally v. Goodenough, 5 Wis. 2d 293 (1958); Mustas v. Inland Construction, Inc., 19 Wis. 2d 194, 200 (1963); Reddington v. Beefeaters Tables, Inc., 72 Wis. 2d 119 (1976) where 11 year-old son of motel guest visiting rock-garden on adjoining premises was not a trespasser.

25. Grossenbach v. Devonshire Realty Co., 218 Wis. 633 (1935); McNally v. Goodenough, 5 Wis. 2d 293 (1958).

Revised June 19, 2000