Boyle's Wisconsin Safe-Place Law



Chapter Five: Persons Protected

    (c) Respective Protection Afforded
An employer, an owner of a public building, and an owner of a place of employment, alike, owe the duty imposed upon them to "employes and frequenters." [26] It is held generally that the degree of duty owed to the frequenter is the same as that owed to an employee. [27] The statute makes no distinction in this respect. [28] However, the court has recognized that under some circumstances the two groups are to be treated differently. Thus where a prospective purchaser, while being shown through an unfinished residential dwelling, fell through an open stairwell when the plywood cover thereof gave way; the court stated: "The degree of care required to make a place reasonably safe for workmen may be different from that with respect to lay persons. That would be a question for the jury. Buckmaster testified that the manner in which the stairwell was covered was the customary trade practice, but the jury was not bound by this testimony. It had the right to take its own experience in considering the physical facts presented and determine whether the vicinity of the stair well had been made as safe as it reasonably could be under all the circumstances. The usual and customary way of covering a stair well at that stage of the construction might be reasonably safe for employees but not for persons having no knowledge of building customs." [29]

Employer's duty to furnish "safe employment" does not run to frequenter. [30]

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

26. Sec. 101.11, Stats.

27. Washburn v. Skogg, 204 Wis. 29, 35 (1931): "We cannot perceive that the statute makes any distinction between an employee and a frequenter. ... [36] The statute as a whole purports to surround employees, tenants of public buildings, and frequenters of places of employment with the same safeguards, and no reason is perceived why it should not be construed to afford them the same degree of protection and the same freedom from assumption of risk. The statute having made no distinction, it is not for the court to make any ... [40] The language of the statute is just as mandatory as to frequenters as to employees. Its purpose was to give the same protection to frequenters as to employees."; Mullen v. Larson-Morgan Co., 212 Wis. 52, 64 (1933): "... A 'frequenter' is entitled to the benefit of the statute the same as a workman."; Sandeen v. Willow River Power Co., 214 Wis. 166, 177 (1934); Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 636 (1935): "It imposes the same duty as to frequenters ..."; Sweitzer v. Fox, 226 Wis. 26, 34 (1937): "Their language is just as mandatory in relation to frequenters as it is to employees, and their purpose is to provide the same protection to frequenters as to employees."; Johannsen v. Peter P. Woboril, Inc., 260 Wis. 341, 345 (1952): "The instruction by the court to the jury that plaintiff was an employee and a frequenter was harmless. In respect to the defendant and defendant's paint shop he was a frequenter. Defendant's duty toward him is the same in either case and is not increased by describing him in two capacities instead of one."; Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 421 (1957): "The law hereinafter stated is the same whether plaintiff was an employee or frequenter."

28. Sec. 101.11, Stats. "... for employes therein and for frequenters thereof ..."; "... such employes and frequenters."; Sec. 101.01(2)(g): "... employes or frequenters ..."

29. Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472, 477 (1960). In the early case of Sullivan v. School District, 179 Wis. 502 (1923), the court said [505] "The protection designed by the statutes for frequenters is not the same as that contemplated for employees. Clearly, a frequenter meddling with an unguarded machine and sustaining injury would not be entitled either to compensation or to damages like an employee. Exposed cog-wheels in close proximity to a passageway used by frequenters may result in liability where injury ensues to a frequenter. The same result would follow from unguarded fly-wheels, pulleys, or belting. While an employee under the same circumstances would be entitled to compensation in addition thereto he would be entitled to compensation when injured, whether through his negligence or otherwise, in the operation of an unguarded machine. In the instance last mentioned an employee would not be a trespasser, while a frequenter would become a trespasser while meddling with such mechanism." It is not deemed that this language means that a frequenter is entitled to a different degree of protection than an employee, but rather that in the situations mentioned the frequenter has greater opportunity to become a trespasser.

30. Niedfelt v. Joint School District, 23 Wis. 2d 641, 648 (1964) (Indication to contrary in Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 166 (1978) deemed inadvertent).


Revised June 20, 2000

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