Boyle's Wisconsin Safe-Place Law

Chapter Six: Actions
    (d) Evidence
      (1) Customary Methods, Standard Practice
Because the duty imposed on the owner or employer by the safe-place law is absolute, [8] the common-law test of "such care as the great mass of mankind ordinarily uses in the same or similar circumstances" is not applicable. Therefore, as a general rule, evidence of common use, similar operations, customary methods is not relevant to the question of safety in a safe-place action. [9] However, when the question as to the premises or thing being as safe as the nature thereof will reasonably permit is a close one, the court has considered custom or usage "persuasive as to what is a rule of reason in a safe-place case." [10] would seem however to be contrary to the command of the statute to admit evidence of custom or usage where it is shown that the place or thing can reasonably be made more safe than the custom or usage provides, keeping in mind the nature of the place or thing. It has also been pointed out that while a usual and customary method might indicate safety so far as an employee is concerned, it might not do so as to a frequenter. [11]

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

8. See Chapter 1, footnote 52.

9. Sparrow v. Menasha Paper Co., 154 Wis. 459, 465 (1913): "The statutes heretofore quoted in connection with the statute abolishing the defense of assumption of risk make it clear that the employer cannot defeat recovery by showing that he furnished appliances in common use ..." Mullen v. Larson-Morgan Co., 212 Wis. 52, 57 (1933): "... Common-law ideas of reasonable anticipation, ordinarily careful and prudent men, compliance with customary methods, and reasonable care. Compliance with these concepts does not satisfy the statute."; Tiemann v. May, 235 Wis. 100, 106 (1940): "... The employer cannot defeat recovery by showing that he furnished appliances in common use."; Johannsen v. P. P. Woboril, Inc., 260 Wis. 341, 345 (1952): "We consider the learned trial court properly excluded evidence offered by defendant of how other painting contractors performed similar operations. They may be influenced by various factors of convenience or economy."; Bellman v. National Container Corp., 5 Wis. 2d 318, 325 (1958): "The areaway was obviously unsafe as a place of employment and the fact that other builders construct unsafe areas for the housing of equipment could not change the situation." Sadowski v. Thomas Furnace Co., 157 Wis. 443, 448 (1914): "The legislature, quite clearly, intended to substitute for the ordinary rule requiring the master to come up to the standard of reasonable safety as to working place and working conditions, -- often tested by the customary practice under the same or similar circumstances, and efficiency as to all dangers reasonably to be apprehended from the viewpoint of ordinary care, -- the absolute duty to make the employment and place of employment of employees, not reasonably safe merely, but as safe as the nature of the employment will reasonably permit." (Italics added)

10. Raim v. Ventura, 16 Wis. 2d 67, 72 (1962). In the Raim case the court also pointed out [72]: "While the practice in the community or the custom in the trade is not conclusive as to what meets the required standard for reasonable safety, it may be admissible as evidence in connection therewith depending upon the circumstances of the case ... A usage which is patently unsafe ... or a custom which is contrary to law cannot be given credence by the court ... However, where there is an avalanche of acceptability of a custom or usage, and where such general practice contravenes no established law, public policy, or common sense, it may be persuasive as to what is a rule of reason in a safe-place case ... [73] Custom and usage will not insulate an owner from liability for maintaining an unsafe condition, but on the facts of this case they are cogent evidence of a standard that is both reasonable and safe." See also Emberg v. Great Northern R. Co., 156 Wis. 396, 398 (1914): "If an appliance or place of work is obviously dangerous, even a general custom will not absolve the master from liability." Hahn v. Rothstein, 174 Wis. 381, 385 (1921): "In this instance it appears that a safety device was installed by the manufacturer on this machine similar to that on many other types of such machines being manufactured and sold in the general market. It thus appears that there had been no failure by the manufacturer to attempt, in a measure at least, to meet the requirements of the statute here involved. It appears without contradiction that the form of guard vaguely suggested by plaintiffs expert witness had been discarded by practically all of the manufacturers of such machines for the one installed and which seemed more reasonably adequate for this very purpose. While this alone is not sufficient as a matter of law to establish that the defendant in purchasing and using a machine so equipped has thereby complied with the duty imposed upon him as an employer, yet it is very persuasive in this case in compelling us to arrive at the conclusion at which we do ..."; Maryland Casualty Co. v. Thomas F. Co., 185 Wis. 98, 103 (1924); Lang v. Findorff, 185 Wis. 545, 547 (1925); Skrzypczak v. Konieczka, 224 Wis. 455, 461 (1937): "... Such construction is the common practice and therefore cannot be considered to be unsafe."; Shumway v. Milwaukee Athletic Club, 247 Wis. 393, 398 (1945): "... The evidence is undisputed that tile like that used is in common use in public steam and shower rooms in Milwaukee ..."; Hipke v. Ind. Comm., 261 Wis. 226, 232 (1952): "While it is in no sense controlling, the commission was permitted to consider the testimony of the employer's general superintendent that the method used in filling the pits was standard practice in the industry."; Powless v. Milwaukee County, 6 Wis. 2d 78, 81 (1959): "The evidence further showed that no other major-league stadium provides a screen or netting all around the playing field, and that the position and size of the backstop in the Milwaukee county stadium comply with the standards and custom of all major-league baseball parks."; Bellart v. Martell, 28 Wis. 2d 686, 693 (1965); Heckendorf v. J. C. Penney Co., 31 Wis. 2d 346, 350 (1966); Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 433 (1970); Kaiser v. Cook, 67 Wis. 2d 460, 465 (1975). But see Balasv. St. Sebastian's Congregation, 66 Wis. 2d 421, 426 (1975): "...the duty to construct a public building as safe as its nature will reasonably permit is satisfied by a showing that the building is constructed in accordance with accepted practices, even though some other practice might have rendered the building more safe."

11. Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472, 477 (1960): "The usual and customary way of covering a stair well at that stage of the construction might be reasonably safe for employes but not for persons having no knowledge of building customs."

Revised March 8, 2001