Boyle's Wisconsin Safe-Place Law



Chapter Six: Actions
    (f) Contributory Negligence
      (1) Generally
The defense of contributory negligence is retained in safe-place law cases. [36] But the effect of plaintiffs contributory negligence is lessened where the act or omission of which he is guilty had been committed in connection with the performance of his duties or business. [37] So where a person was engaged in running a conduit on a roof which had an obscured fall-off at one end, the court approved the proposition that: "A person required to work in a place of danger is not required to give that undivided attention to the danger which threatens him as is required of a person with no thing to distract his attention from it. A momentary diversion of attention or preoccupation in the discharge of duties minimizes the degree of care required in the absence of such diversion or preoccupation. [38]

A person protected by the safe-place law is still enjoined to proceed cautiously in strange surroundings, [39] to heed definite warnings and advice, [40] to obey instructions, [41] to seek the way of least danger, [42] to use machines and appliances only [43] for the use intended, and to generally exercise [44] reasonable care for his own safety. An employer's violation of a safety order does not foreclose the [45] defense of contributory negligence.

However, "One is not bound, absolutely, to see every defect in his pathway which is plainly observable nor to remember the existence of such defects of which he has knowledge;" [46] nor to inspect [47] premises for hazards. Thus where plaintiff safely ascended an obviously unsafe stairway safely, but fell coming down, it was held that he was not necessarily negligent under all the circumstances, [48] and where plaintiff, truck driver, was unloading at defendant's platform when precariously balanced ramps staked at the side of the platform fell on him, the finding of freedom from contributory negligence was upheld. [49]

The burden of proving contributory negligence is on the defendant, [50] and, as a general rule, both the fact of contributory negligence and the matter of comparing negligence are for the jury, [51] although in obvious cases the court has found a safe-place plaintiff guilty of greater negligence as a matter of law, [52] and not guilty of contributory negligence as a matter of law. [53] So also the matter of contributory negligence being causal is generally for the jury [54] except in obvious cases where the court determines causation as a matter of law. [55]


36. Besnys v. Herman Zohrlaut L. Co., 157 Wis. 203, 212 (1914): "The legislative intent to leave the defense of contributory negligence open to defendants in actions brought under the original statute is sufficiently clear, and we must so hold."; Puza v. C. Hennecke Co., 158 Wis. 482, 484 (1914); Fandek v. Barnett & Record Co., 161 Wis. 55, 60 (1915); Beck v. Siemers, 174 Wis. 437, 440 (1921): "It is too well settled to require discussion that although the statute in such cases deprives the employer of the defense of assumption of risk, that of contributory negligence remains."; Du Rocher v. Teutonia Motor Car Co., 188 Wis. 208, 211 (1925): "... The defense of contributory negligence was not eliminated, but continued to exist ... so that the public and frequenters of a public building are under an obligation to still exercise ordinary care for their own safety. This rule forming a part of the common law is of equal importance in the preservation of life, health, and limb as are the statutory enactments above referred to."; London G. & A. Co. v. Great Northern R. Co., 197 Wis. 241, 246 (1928): "Contributory negligence, even under the safe-place statute, is a defense." Contributory negligence does not prevent award of 15% increased compensation under Workmen's Compensation Act, sec. 102.57 -- Eau Claire Electric Coop v. Ind. Comm., 10 Wis. 2d 209, 210 (1960). Wilful failure, however, decreases Workmen's Compensation recovery by 15% under sec. 102.58; Sachse v. Mayer, 18 Wis. 2d 457, 463 (1963). See Presser v. Siesel Construction Co., 19 Wis. 2d 54, 65 (1963) where the court denied plea to abolish defense of contributory negligence in safe-place cases. McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245 (1973).

37. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 622 (1961)"The Puza, Sweitzer, Washburn, and Mennetti Cases, supra, all involved plaintiffs who were injured in the course of performing duties of their employment or business. This fact may bear upon the reasonableness of their exposing themselves to a particular risk." See also Besnys v. Herman Zohrlaut L. Co., 157 Wis. 203, 213 (1914); Sadowski v. Thomas Furnace Co., 157 Wis. 443, 453 (1914). As to customer attentive on shopping, see Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 543 (1960). See also Presser v. Siesel Construction Co., 19 Wis. 2d 54, 62 (1963); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 47, 48 (1969)., McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 256 (1973). See also footnote 63, infra.

38. Burmek v. Miller Brewing Co., 12 Wis. 2d 405, 414 (1961); Sandeen v. Willow River Power Co., 214 Wis. 166, 175 (1934); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 48 (1969): "... where the plaintiff is preoccupied by his work, momentarily distracted or familiar with the premises, his conduct in relation to the then existing dangers may be reasonable ... [49] ... his distraction just before and at the time of the accident was understandable and specifically related to his work."; Sampson v. Laskin, 66 Wis. 2d 318, 327 (1975).

39. McNally v. Goodenough, 5 Wis. 2d 293 (1958), where plaintiff walked into a darkened doorway, the court said [302]: "In unfamiliar buildings as well as on highways, one whose vision is completely obscured must proceed cautiously." See also Waterman v. Heinemann Bros., 229 Wis. 209 (1938), where plaintiff claimed to be blinded by bright light but yet walked on and fell down stairway. See Presser v. Siesel Construction Co., 19 Wis. 2d 54, 62 (1963) distinguishing contributory negligence feature of McNally v. Goodenough, 5 Wis. 2d 293 (1958) as follows: "Reliance is placed upon McNally v. Goodenough ... wherein this court held a frequenter at least 50 percent negligent as a matter of law in walking through a poorly lighted hallway through an open door. In that case the plaintiff's attention was required to be concentrated upon finding his way out of the building. The case is not on all fours with the facts of the instant case. Here, the plaintiff was at work, knew the layout of his surroundings. He knew his toolbox was on the elevator floor close-by. What plaintiff did not know was that another workman in the plaintiff's absence had sent up the elevator exposing the pit and in one sense creating the danger. The preoccupation of a workman in the discharge of his duties should be considered in determining his percentage of negligence and the care required of him for his own safety. Taking the situation at the moment before the accident that the magazine room was constructed with a pit eight feet deep, that such pit was only exposed and dangerous when the elevator was at ground level and that it was reasonable for the place to be in darkness as the plaintiff was following instructions not to hook up the welding machine without pulling the power switch, we have the question, whether the plaintiff was equally or more negligent in not ascertaining whether the elevator was at magazine level or in not taking more precautions in walking in the darkness than the general contractor was in not providing a barricade for the safety of employees and others. The jury did not think so and found the plaintiff 40 percent negligent. The question is a close one and we cannot hold as a matter of law the jury was wrong." See also Mustas v. Inland Construction, Inc., 19 Wis. 2d 194, 202 (1963) distinguishing McNally v. Goodenough.

40. Sadowski v. Thomas Furnace Co., 157 Wis. 443, 453 (1914): "It may be that, since it was appellant's duty not to permit decedent to work in a place not as free from danger as the nature of the employment would permit, he might have been merely warned against the peril which he was in and yet not have been guilty of contributory negligence, as a matter of law, in continuing his work. In that respect the common-law rule ... would not necessarily govern. But a warning of such emphatic character as the one testified to and neglect to heed it would involve efficient contributory negligence." L. G. Arnold, Inc. v. Ind. Comm., 2 Wis. 2d 186, 191 (1957): "He was the only one who could direct that the available equipment be used. He was advised to use some of it, but he spurned the advice."

41. Lang v. Findorff, 185 Wis. 545, 547 (1925), where plaintiff rode in materials hoist possibly in disregard of eniployer's instructions; Cream City F. Co. v. Ind. Comm., 188 Wis. 648, 651 (1926), where plaintiff did not use the portable light which he was instructed to; Gupton v. Wauwatosa, 9 Wis. 2d 217, 224 (1960): "... He opened the window and crawled out on the ]edge, in disobedience of the orders given bv the president of the employer."; but see Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209 (1960), where the employee did not use safety devices as he was instructed to, the court said [219]: "Although the use of these devices by Gunnes probably would have prevented or reduced the injury, and in that sense his failure to use them may have been a contributing cause of his injury; nevertheless, the employer's failure was also a substantial cause of the injury. The statutes nowhere provide that the employer is to be exempted from the increased compensation penalty provided by sec. 102.57, Stats., if the injury could have been avoided by compliance by the employee with all instructions and orders." It is possible that failure of an employer or owner to enforce instructions would offset violation of them, but see Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428 (1975) where both 15% increase in compensation and 15% decrease was effected.

42. Langos v. Menasha Paper Co., 156 Wis. 418, 425 (1914): "It seems plain that the machine could have been stopped without seriously interrupting the business and that this obviously would have rendered the place of plaintiff's employment safe and would have avoided requiring, permitting, or suffering him to go or be in an unsafe place of employment."; Crombie v. Immel Const. Co., 196 Wis. 319 (1928), where plaintiff stood in way of danger when alternative way was available; Erickson v. McKay, 207 Wis. 497 (1932), where plaintiff went into dark alley at night and fell into open basement stairwell; Mullen v. Larson-Morgan Co., 212 Wis. 52, 61 (1933): "However, he could have stood upon the ground at the side of the pile of crushed stone and watched the dials from that position."; Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 448 (1934): "If, knowing the danger, respondent had a choice of ways in which to do his wor , an carelessly selected a dangerous way, he would be guilty of contributory negligence."; Klein v. Montgomery Ward & Co., 263 Wis. 317 (1953), where salesman had wire fencing unrolled in aisle of store for customer's inspection and plaintiff walked over, rather than around, same; the court said [321]: "Had there been no way for him to reach the part of the store to which he was bound except by walking on the wire, or had the presence of the wire been unknown to Mr. Klein until he stepped on it, we could recognize that a question under the safe-place statute might be before us, but when the sale of this wire is actually in progress, the presence of the wire is observed and the party deliberately chooses to walk over it although other choices are open to him, we are unable to recognize that the statutory duty of the storekeeper has been breached as to him."; Sparish v. Zappa, 273 Wis. 195 (1956), where plaintiff put his foot in a trough when he could have positioned himself elsewhere; Hemingway v. Janesville, 275 Wis. 304 (1957), where plaintiff took a route from parking place to building which was not intended as an accessway when he could have just as well taken intended accessway; Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 435 (1957): "His selection of the place to enter upon the platform after a safe means was provided, his failure to see the plate which was in plain sight and of a size that would be clearly visible, and placing his knee on an object which he himself felt to be slippery, would all be acts of negligence on his part."; Gupton v. Wauwatosa, 9 Wis. 2d 217 (1960), where plaintiff went out onto a window ledge not furnished with harness catches to wash window instead of using available ladders, the court said [224]: "In choosing this indisputably dangerous method he would be found guilty of contributory negligence." Burmek v. Miller Brewing Co., 12 Wis. 2d 405 (1961), where plaintiff knew it was dark on a roof working area and he failed to provide himself with light; Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616 (1961), where plaintiff continued to use toboggan path which required toboggan to be upset near end of run to avoid trees. Contributory negligence has been said to exist "only where the employee, with full knowledge of the existing danger and with a free choice of acting either so as to avoid that danger or so as to expose himself to it, deliberately or carelessly acts in the latter manner." Vogelsburg v. Mason & Hanger Co., 250 Wis. 242, 246 (1947). See also "alternative route" discussion in Skybrock v. Concrete Construction Co., 42 Wis. 2d 480 (1969).

43. Carlson v. Chicago & N.W.R. Co., 185 Wis. 365 (1925), where plaintiff used an ice block loading chute in a manner not intended; Cream City F. Co. v. Ind. Comm., 188 Wis. 648 (1926), where temporary extension cord was put to use not intended. But see Daniels v. Ind. Comm., 241 Wis. 649, 652 (1942): "The employer cannot complain because the employee failed to use an inefficient and awkward 'safeguard.'"

44. Filipiak v. Plombon, 15 Wis. 2d 484 (1962), where plaintiff slipped on icy sidewalk, the court said [489]: "All four of the people who accompanied Mrs. Filipiak to the funeral home on the day of the accident preceded her out of the building and successfully traversed the slippery private walk without falling. One of these was an elderly lady in her eighties. These facts would reasonably permit a jury to draw the inference that, had Mrs. Filipiak used the same care in stepping and walking upon this private walk as did her four companions, she would not have fallen. Furthermore, there was testimony, disputed by Mr. Filipak, that as she came out of the funeral home she was engaged in conversation with defendant, and that she was facing him at the time she fell. If this testimony was believed by the jury, they could also reasonably have inferred that she was not watching where she was walking. It is our conclusion that there was sufficient evidence upon which the jury could determine that Mrs. Filipiak was negligent with respect to the care which she exercised for her own safety ..."; Prehen v. C. Niss & Sons, Inc., 233 Wis. 155 (1939); Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239, 243 (1976): "Challenging the existence of an obligation of plaintiff to look where she was walking, plaintiffs rely on this language in the Steinhorst Case: 'The displays of merchandise in modern stores are so arranged and are intended to catch the customer's attention and divert him from watching the floor ... (I)t is unreasonable to expect a person in a retail store to use the same degree of lookout as he would on a public street.' This is not to be read as meaning that a wall poster or menu list posted absolves a restaurant patron from the duty to observe floor conditions before proceeding. It means only that evidence that a special display had diverted the attention of a frequenter in a store or restaurant is relevant as to the standard of care of such frequenter."; Gross v. Midwest Speedways, Inc., 81 Wis. 2d 129 (1977); Sachse v. Mayer, 18 Wis. 2d 457, 463 (1963); Cheetham v. Piggly Wiggly Madison Co., 24 Wis. 2d 286, 290 (1964); as to duty to inspect: see Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 49 (1969); Sampson v. Laskin, 66 Wis. 2d 318, 327 (1975): "... an employe ... obviously cannot ignore potential dangers. Neither can he create them."

45. Presser v. Siesel Construction Co., 19 Wis. 2d 54, 65 (1963): "The existence of safety orders does not place the liability of the defendant on an absolute basis apart from negligence but prescribes a standard of the degree of care required under the circumstances. The basis of the defendant's liability is negligence whether that standard is determined as a factual question or as a question of law under the safety order and it is not inconsistent to compare the defendant's negligence with that of the plaintiff."

46. Hommel v. Badger State Inv. Co., 166 Wis. 235, 240 (1917); Washburn v. Skogg, 204 Wis. 29, 38 (1931); Vogelsburg v. Mason & Hanger Co., 250 Wis. 242, 245 (1947); Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 542 (1960): "... especially when his attention is attracted by the display of merchandise in a store."; Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408 (1970); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 685 (1970): "... a customer in a retail store was not bound as a matter of law to see every defect or danger in his pathway. The displays of merchandise in modern stores are so arranged and are intended to catch the customer's attention and divert him from watching the noor."; Buerosse v. Dutchland Dairy Restaurants, 72 Wis. 2d 239 (1976). See Callan v. Peters Construction Co., 94 Wis.2d 225, 235 (Ct.App., 1979) for propriety of camouflage instruction where contributory negligence is asserted.

47. Dolphin v. Peacock Mining Co., 155 Wis. 439, 445 (1914): "Plaintiff did not know that the rock which fell and caused injury was loose and dangerous, but counsel says he should have examined it. The plaintiff was under no obligation to test it or make inspection of it."; Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 78 (1957): "His job was to unload his truck, not to inspect the surrounding area for obscure hazards." See also Bunce v. Grand & Sixth Building, Inc., 206 Wis. 100, 102 (1931): "A person entering a well lighted public toilet is quite likely to be so engrossed in the object of his entry as to not to be anticipating or looking for impediments that may cause him to stumble, and that women will enter public toilets for women accompanied by small children engrossed in speedily attending to pressing physical needs of their charges is not beyond the realm of reasonable anticipation." But see Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 49 (1969): "He did have a duty to inspect the area for his own safety

48. Washburn v. Skogg, 204 Wis. 29 (1931). The court further said [37]: "In view of the unhesitating, direct, and rapid way in which defendant ran down ahead of plaintiff and the fact that it may properly be inferred that plaintiff was somewhat absorbed in the details of the order which he had taken and just finished writing down in his order book, we consider that the court might properly find him free from negligence."

49. Uhrman v. Cutler-Hammer, Inc., 2 Wis. 2d 71, 77 (1957).

50. Dugenske v. Wyse, 194 Wis. 159, 166 (1927). But see Cheetham v. Piggly Wiggly Madison Co., 24 Wis. 2d 286, 290 (1964): "Here plaintiff and her husband walked from their car to the store without incident. Plaintiff's husband returned safely even though he had a bag of groceries under his arm. Thus the parking lot was not so slippery that it could not be traversed with safety in the exercise of ordinary care. This evidence will sustain a jury verdict of failure to exercise reasonable care for one's own safety."

51. Dolphin v. Peacock Mining Co., 155 Wis. 439 (1914); Langos v. Menasha Paper Co., 156 Wis. 418 (1914); Hollenbeck v. Chippewa Sugar Co., 156 Wis. 317 (1914); Besnys v. Herman Zohrlaut L. Co., 157 Wis. 203 (1914); Hommel v. Badger State Inv. Co., 166 Wis. 235 (1917); Du Rocher v. Teutonia Motor Car Co., 188 Wis. 208, 214 (1925); Washburn v. Skogg, 204 Wis. 29 (1931); Sandeen v. Willow River Power Co., 214 Wis. 166 (1934); Umnus v. Wis. Public Service Corp., 260 Wis. 433, 441 (1952); Perry v. Labor Temple Asso., 264 Wis. 36, 40 (1953); Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349, 354 (1953); Zehren v. F. W. Woolworth Co., 11 Wis. 2d 539, 545 (1960); Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 623 (1961); Sachse v. Mayer, 18 Wis. 2d 457, 464 (1963); Presser v. Siesel Construction Co., 19 Wis. 2d 54, 62 (1963); Gilson v. Drees Brothers, 19 Wis. 2d 252, 255 (1963); Karis v. Kroger Co., 26 Wis. 2d 277, 285 (1965); Frederick v. Hotel Investments, Inc., 48 Wis. 2d 429, 435 (1970); Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 366 (1973): "Only in unusual cases will this court overturn a jury verdict on the apportionment of negligence."; Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 86 (1973): "Even when such a statute [safety statute] is violated, it does not establish as a matter of law the degree of contribution of the negligence to the injury."

52. Carlson v. Chicago & N.W. R. Co., 185 Wis. 365 (1925), where plaintiff failed to properly attach portable ice chute to loading car; Du Rocher v. Teutonia Motor Car Co., 188 Wis. 208 (1925), where plaintiff rushed into defendant's garage just at closing time to purchase some automobile parts and ran into open stairwell; Erickson v. McKay, 207 Wis. 497 (1932), where plaintiff proceeded into dark alley unable to see anything and fell into open basement ramp; Klein v. Montgomery Ward & Co., 263 Wis. 317 (1953), where plaintiff walked over, rather than around, wire fencing spread on the floor for exhibition to another customer; Sparish v. Zappa, 273 Wis. 195 (1956), where plaintiff supported his weight by putting foot into trough near dangerous fan; Burmeister v. Damrow, 273 Wis. 568 (1956), where plaintiff attempted to wheel a 500 pound mixer machine down boards which obviously could not support weight; Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427 (1957), where plaintiff ignored a safe way to enter onto platform and failed to see clearly visible metal plate and put his knee on an object which he knew was slippery; Powless v. Milwaukee County, 6 Wis. 2d 78 (1959), where plaintiff continued marking score card when foul ball was coming in her direction; Powless v. Milwaukee County, 6 Wis. 2d 78 (1959) is distinguished in Gilson v. Drees Brothers, 19 Wis. 2d ?52, 256 (1963) on ground of "absence of a warning and the custom of using special caution with bulls" which existed in the latter case; Skybrock v. Concrete Construction Co., 42 Wis. 2d 480 (1969); Rewolinski v. Harley-Davidson Motor Co., 32 Wis. 2d 680 (1966), where plaintiff unnecessarily exposed himself to danger by entering room through window, when safer alternatives were open to him; Skybrock v. Concrete Construction Co., 42 Wis. 2d 480, 490 (1969) where alternative route available; Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 46 (1969); Gross v. Denow, 61 Wis. 2d 40 (1973); Wisnicki v. Fox Hills Inn & Country Club, 163 Wis. 2d 1023, 473 N.W. 2d 523, 525-526 (Ct. App. 1991) dive into a pool with water of unknown depth.

53. Puza v. C. Hennecke Co., 158 Wis. 482, 484 (1914); Kelenic v. Berndt, 185 Wis. 240 (1924); Mennetti v. West Side Businessmen's Assn., 246 Wis. 586 (1945).

54. Allison v. Wm. Doerflinger Co., 208 Wis. 206, 209 (1932); Zimmers v. St. Sebastian's Cong., 258 Wis. 496, 503 (1951).

55. Sachse v. Mayer, 18 Wis. 2d 457 (1963) where plaintiff was injured in fall from tree and the court concluded (463): "As a matter of law, the attempt to climb the tree while the saw was running and then to saw off the top of the tree, which required him to use both hands in guiding the saw into the cut until the saw was about two inches deep, during which he employed no safeguards against falling, was causal negligence to a very serious extent."; Mustas v. Inland Construction, Inc., 19 Wis. 2d 194 (1963); Wisnicki v. Fox Hills Inn & Country Club, 163 Wis. 2d 1023, 473 N.W. 2d 523, 525-526 (Ct. App. 1991) dive into a pool with water of unknown depth.


Revised February 26, 2001

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