Boyle's Wisconsin Safe-Place Law



Chapter Six: Actions
    (e) Assumption of Risk; Exculpatory Contracts
The defense of assumption of risk is abolished in safe-place law cases. [33] -- both as to employees and as to frequenters. [34] Such abrogation appears to have been accomplished through judicial interpretation of the safe-place statute, rather than by express legislative provision. [35]

A potential defendant to a safe-place claim may still bargain for an exclusion from liability. [35a]


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

33. Rosholt v. Worden-Allen Co., 155 Wis. 168, 178 (1913); Langos v. Menasha Paper Co., 156 Wis. 418, 427 (1914); Puza v. C. Hennecke Co., 158 Wis. 482, 483 (1914); Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, 588 (1916); Kielar v. Fred Miller Brewing Co., 165 Wis. 237 (1917); Beck v. Siemers, 174 Wis. 437, 441 (1921): "... The plaintiff can be charged with no negligence in creating the conditions under which she worked. Her employers alone were responsible for those conditions."; Kelenic v. Berndt, 185 Wis. 240, 242 (1924); Washburn v. Skogg, 204 Wis. 29, 40 (1931); Sweitzer v. Fox, 226 Wis. 26, 36 (1937); Mennetti v. West Side Businessmen's Assn., 246 Wis. 586, 591 (1945). See Besnys v. Herman Zohrlaut L, Co., 157 Wis. 203, 214 (1914): "The legislature had a right to take into consideration that employees, under the stress and condition of existing industrial life, had but little choice to refuse the employment offered them under such conditions of danger as the employers saw fit to adopt, and deemed it good policy to impose the burden of all the risks and hazards attending such business methods and processes on the employer, though they were open and obvious to an employee in the course of his employment."; Fandek v. Barnett & Record Co., 161 Wis. 55, 66 (1915): "It was the legislative intent as expressed in Secs. 2394-48, 2394-49, Stats. 1911 [Safe-Place Statutes], to impose upon the employer a liability for all injuries resulting from the hazards incident to the methods, processes and conditions of the business furnished, permitted, or suffered by him, however obvious such hazards might be to the employee."; Zeininger v. Preble, 173 Wis. 243, 246 (1921): "It has been uniformly held that the statute of its own force imposed upon the employer liability for all injuries resulting from hazards, risks and dangers incident to the business due to an unsafe place, however open and obvious such hazards, risks, and dangers might be to the employee."; Sachse v. Mayer, 18 Wis. 2d 457, 463 (1963); McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 255 (1973); Gross v. Denow, 61 Wis. 2d 40, 49 (1973); Kaiser v. Cook, 67 Wis. 2d 460, 467 (1975).

34. Washburn v. Skogg, 204 Wis..29, 35 (1931): "An injured employee does not assume the risk of injury by working in an unsafe place ... We cannot perceive that the statute makes any distinction between an employee and a frequenter ... [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"; Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441 (1934); Sweitzer v. Fox, 226 Wis. 26, 36 (1937): "... Assumption of risk is not a defense in an action by an employee or frequenter to recover under the safe-place statute."; Mennetti v. West Side Businessmen's Assn., 246 Wis. 586, 591 (1945): "... That defense [assumption of risk] under the 'safe-place' statute is not available either against an employee or frequenter." But see Wannmacher v. Baldauf Corp., 262 Wis. 523, 539h (1952): "... If there is adequate notice to a frequenter that he should not go into a part of the public building and, in spite of such notice he disregards the same and enters into the forbidden area, he becomes a trespasser so as not to be entitled to claim damages under the safe-place statute."

35. It is doubtful that abolition was based on sec. 331.37(l) Stats. (formerly sec. 2394-1, Stats. 1911, and the first section in the Workmen's Compensation Act), although several early safe-place cases referred such abolition thereto: Rosholt v. Worden-Allen Co., 155 Wis. 168, 178 (1913): "The defense of assumption of hazards was abolished by Sub. 1 of Sec. 2394-1 as to all employees."; Puza v. C. Hennecke Co., 158 Wis. 482, 483 (1914): "... The defense of assumption of risk is by sec. 2394-1 abolished."; Sobek v. George H. Smith S. C. Co., 158 Wis. 517, 520 (1914); Fandek v. Barnett & Record Co., 161 Wis. 55, 59 (1915): "It is abolished the defense of assumption of risk ... sub. (1), sec. 2394-1, Stats. 1911."; Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, 588 (1916): "The defense of assumption of risk was not available to defendant. Sub. (1), Sec. 2394-1, Stats." However, in Washburn v. Skogg, 204 Wis. 29 (1931), it was stated that [40]: "It [Safe-Place Statute] is therefore of much wider application than the compensation act, and the provisions of that act in respect to abrogating the defenses of negligence of a fellow servant and the assumption of risk is no part of it and is not a basis for the ruling that by the safe-place statute it was intended to abrogate that common-law doctrine as to employees. That ruling is based upon the mandator language of the statute itself. It imposes absolute liability ..." (Italics added).

Sec. 895.37(l), Stats. -- and its predecessor Sec. 2394-1, Stats. 1911 -- provides: "In any action to recover damages for a personal injury sustained within this state by an employe while engaged in the line of his duty as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense: (a) That the employe either expressly or impliedly assumed the risk of the hazard complained of ..."

35a. Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485, 494, 538 N.W. 2d 834, 837 (Ct. App. 1995), rev'd on other grounds Yauger v. Skiing Enterprises, Inc., 206 Wis. 2d 75, 557 N.W. 2d 60 (S. Ct. 1996); Werdehoff v. General Star Indemnity Company 229 Wis. 2d 489, 600 N.W. 2d 214, 221 (Ct. App. 1999).


Revised May 7, 2001

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