Boyle's Wisconsin Safe-Place Law



Chapter Six: Actions
    (d) Evidence
      (6) Res lpsa Loquitur
Where the accident is of a kind which ordinarily would not occur in the absence of safe-place violation and it is caused by an agency or instrumentality within the exclusive control of the defendant, there is created at least a permissible inference that the defendant has violated the safe-place statute. [21] Thus where an employee pulled on a door knob to open a door and the door knob became detached from the door causing the employee to fall backward into an elevator shaft, the court indicated that the doctrine of res ipsa loquitur applied. [22] So also where timber on top of a pile became dislodged and fell on plaintiff, [23] where plaintiff was asphyxiated when working inside a boiler, [24] where a hoist collapsed, [25] and where ramps piled at the side of a loading platform fell on a frequenter. [26] Res ipsa loquitur was held not to apply where there was no direct evidence of how an accident occurred, and the circumstances were as consistent with a cause not actionable as to a safe-place violation. [27] So where plaintiff was injured in an unexplainable explosion in a mill and the evidence supported a jury finding that defendant fulfilled its safe-place duty in regard to removal of dust and there was evidence that electrical equipment was not defective, the court held that the cause of the explosion could not be removed from the field of conjecture. [28]

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

21. Peschel v. Klug, 170 Wis. 519, 522 (1920): "It is a principle quite well established that where a machine or appliance, under the management of defendant, inflicts an injury by reason of an abnormal and unexpected movement which could not have taken place had there been proper care exercised in its management or supervision, the very fact of the abnormal action, in the absence of satisfactory explanation, affords evidence of lack of such care."; Waskow v. Robert L. Reisinger & Co., 180 Wis. 537, 545 (1923); Maryland Casualty Co. v. Thomas F. Co., 185 Wis. 98, 105 (1924); Kelenic v. Berndt, 185 Wis. 240 (1924); Lang v. Findorff, 185 Wis. 545, 549 (1925); Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 74 (1957). See Turk v. H. C. Prange Co., 18 Wis. 2d 547, 558 (1963) dispensing with third element formerly required for invocation of res ipsa loquitur, i.e. freedom from contributory negligence, because "... in view of Wisconsin's comparative negligence statute, sec. 331.045, it is more logical to hold that in Wisconsin contributory negligence on the part of ... (plaintiff) should not be an absolute bar to her reliance on res ipsa loquitur."

22. Waskow v. Robert L. Reisinger & Co., 180 Wis. 537, 545 (1923): "It is by no means clear, however, that under the circumstances negligence might not have been inferred from the mere fact that the handle became loose. The door was new, and the handle had only recently been adjusted to it. The defendant offered no rebuttal or explanation. The doctrine res ipsa loquitur was thus stated by an English judge: 'But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.'"

23. Peschel v. Klug, 170 Wis. 519 (1920).

24. Maryland Casualty Co. v. Thomas F. Co., 185 Wis. 98, 105 (1924).

25. Lang v. Findorff, 185 Wis. 545, 549 (1925): "A presumption of negligence follows from the fact that the hoist did collapse under the circumstances." For example of doctrine's application in escalator case, see Turk v. H. C. Prange Co., 18 Wis. 2d 547 (1963).

26. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 74 (1957).

27. Dahl v. Charles A. Krause Milling Co., 234 Wis. 231, 238 (1940). See also law regarding happening of accident not being proof of safe-place violation, Chapter 1, footnote 63.

28. Dahl v. Charles A. Krause Milling Co., 234 Wis. 231 (1940).


Revised July 6, 2000

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