Boyle's Wisconsin Safe-Place Law



Chapter Five: Persons Protected

    (d) Trespasser
The protection of safe-place law is not extended to a trespasser. [31] "A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." [32] Thus where plaintiff was employed to assist in masonry work outside defendant's premises and during lunch hour he entered the elevator of defendant's mill for the purpose of taking a view of the city from the top of the mill, he was trespasser and could not recover for injuries sustained when the elevator failed to stop at the top floor. [33] So also where plaintiff, cleaning shop customer, when not waited upon immediately, went behind the counter to get her clothes and fell through a trap door there; [34] and where plaintiff in search of a drink entered defendant's "Friendly Tavern" which had large signs posted conspicuously warning of fumigation by deadly gas being undertaken inside and whose doors and windows were securely taped. [35] Even where a frequenter is understandably confused or mistaken in entering into an unauthorized area, he is held to be a trespasser; as where a tenant of a forty unit apartment house went to the basement to go into a locker room but by natural mistake went through the door to the darkened boiler room instead, [36] and where a frequenter in leaving through the darkened back of a store took a right turn in a passageway instead of a left. [37] Clear case of trespass exists where "there is adequate notice to a frequenter that he should not go into a part of a public building and, in spite of such notice he disregards the same and enters into the forbidden area." [38] Thus where plaintiff, intending to test a "luminous indicator" which she desired to purchase, stepped into a darkened doorway marked "Employees Only", she was a trespasser and could not recover for injuries sustained by falling down stairs just inside such doorway. [39] The trespasser status attaches also where an employee or frequenter meddles with equipment which does not concern him. [40] So where plaintiff, tavern patron, caught his hand in an electric fan placed more than seven feet above the floor, he was denied safe-place recovery. [41] And where an employer is a trespasser, so too is his employee. [42] However, "One cannot, of course, be a trespasser while be is in a place to which he personally or the public generally is invited, expressly or by implication." [43]

It has been held that an employee of a subcontractor becomes a trespasser where he does not follow directions given by an employee of the general contractor as to route to take through building under construction. [44]

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

31. Sorenson v. Chicago, M. & St. P. R. Co., 192 Wis. 231, 233 (1927); Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349, 353 (1953), where the court also states: "... The only duty defendant's crane operator would have owed to plaintiff [as trespasser] would have been to have refrained from wilfully or wantonly injuring him."; Copeland v. Larson, 46 Wis. 2d 337 (1970).

32. Harder v. Maloney, 250 Wis. 233, 238 (1947); Reddington v. Beefeaters Tables, Inc., 72 Wis. 2d 119 (1976).

33. Klemens v. Morrow Milling Co., 171 Wis. 614 (1920).

34. Wannmacher v. Baldauf Corp., 262 Wis. 523 (1952).

35. Harder v. Maloney, 250 Wis. 233 (1947).

36. Grossenbach v. Devonshire Realty Co., 218 Wis. 633 (1935). See also Klemens v. Morrow Milling Co., 171 Wis. 614, 619 (1920): "The act is none the less a trespass though it be done innocently and without any wilful intent to harm or violate the owner's rights."

37. McNally v. Goodenough, 5 Wis. 2d 293, 301 (1958): "The fact that he did not intend to use the stairway, but was confused and did so by mistake, does not prevent its being a trespass." But see Mustas v. Inland Construction, Inc., 19 Wis. 2d 194, 202 (1963), distinguishing McNally v. Goodenough: "Unlike the facts ... (in McNally v. Goodenough), an inference can be drawn from the evidence here that Mustas' inquiry reasonably took him to the place where he fell and that he had a right to be there." McNally case also distinguished in Presser v. Siesel Construction Co., 19 Wis. 2d 54, 62 (1963).

38. Wannmacher v. Baldauf Corp., 262 Wis. 523, 529h (1952). See also Lang v. Findorff, 185 Wis. 545 (1925).

39. Newell v. Schultz Brothers Co., 239 Wis. 415 (1942).

40. Sullivan v. School District, 179 Wis. 502, 505 (1923); see footnote 30, supra.

41. Ryan v. O'Hara, 241 Wis. 389 (1942); Metcalf v. Consolidated Badger Co-op., 28 Wis. 2d 552 (1965) where child injured on conveyor from which he had earlier been warned away.

42. Sheban v. A. M. Castle & Co., 185 Wis. 282, 290 (1924): "The plaintiff's employer had no lawful right to use the derrick and was a trespasser in so doing. The defendant is therefore not liable to the plaintiff."

43. Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 637 (1935); Tomlin v. Chicago, M., St. P. & P. R. Co., 220 Wis. 325 (1936); Powers v. Cherney Construction Co., 223 Wis. 586 (1937), where pedestrian going around obstruction on sidewalk onto land of another who had acquiesced in such obstruction was not a trespasser; Mahnke v. Ahles, 268 Wis. 430, 432 (1955).

44. Mustas v. Inland Construction, Inc., 19 Wis. 2d 194, 200 (1963).


Revised June 21, 2000

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