Wisconsin Safe-Place Law Revised



Chapter Six: Actions
    (d) Evidence
      (3) Prior Accidents
Evidence of prior accidents is generally held inadmissible in a safe-place action "because of its insignificant probative qualities and its tendency to introduce a multitude of collateral inquiries. [15] It has also been held, however, that, "When experience has shown a likelihood of failure in the set-up, a continuance of the identical device might be evidence of failure to exercise the reasonableness required in an effort to furnish a safe place." [16] Where occurrence of prior accident will tend to throw light on the issue, that is, has significant probative quality, evidence thereof is admissible. [16a] The matter rests in the discretion of the trial judge. [16b]

15. Tiemann v. May, 235 Wis. 100, 108 (1940); Brown v. Appleton Masonic Temple Asso., 243 Wis. 147, 150 (1943) (citing common-law cases).

16. Manitowoc Company, Inc. v. Ind. Comm., 273 Wis. 293, 301 (1956). See also Maryland Cas. Co. v. Thomas F. Co., 185 Wis. 98, 106 (1924): "No evidence was introduced to show that prior casualties had resulted from the actual method employed. Had such evidence been introduced, it might have devolved upon the defendant furnace company to resort to a scientific investigation in order to establish, if possible, a better method." Heckel v. Standard Gateway Theater, 229 Wis. 80, 84 (1938). As to no prior accidents not being proof of safety see Van de Zande v. Chicago & N.W.R. Co., 168 Wis. 628, 632 (1919).

16a. Callan v. Peters Construction Co., 94 Wis.2d 225 (Ct. App., 1979) quoting from footnotes in Netzel v. State Sand & Gravel Co., 51 Wis.2d 1 (1971). Callan decison further states, at 232, "Tiemann v. May ... in no way commands our courts to exclude all evidence of prior accidents. Rather, when the prior accident is of little probative value, the trial judge, in his discretion, may refuse to admit such evidence." In the Callan case evidence of a prior accident was held admissible on the question of whether defendant had notice of the temporary unsafe condition.

16b. Callan v. Peters Construction Co., 94 Wis.2d 225, 232 (Ct.App., 1979): "Evidence of prior accidents is allowed in the discretion of the trial judge. Both the purpose for which the evidence of other injuries similarly caused and the nature of the negligence claimed are to be considered in determining whether discretion has been abused." (The ... "nature of negligence claimed" ... which is to be considered appears to mean "probative quality".)


Revised July 3, 2000

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