Boyle's Wisconsin Safe-Place Law



Chapter Six: Actions
    (g) Distinction Between Assumption of Risk and Contributory Negligence
Whether a person who voluntarily proceeds into an obviously unsafe situation has merely assumed the risk, or has been guilty of contributory negligence in so proceeding, is often a close question. It is held in safe-place law cases that conduct constitutes contributory negligence, rather than assumption of risk, "if the risk of harm involved is of such magnitude as to outweigh what the law regards as the utility of the act or the manner in which it is done. [63] In other words, if assuming the risk was reasonable under all the circumstances, it is no defense under the safe-place law; if unreasonable, it is contributory negligence. [64] What is "reasonable" is measured by what ordinary and prudent men do under similar circumstances. [65] It appears that submitting to a dangerous situation "while getting about the premises in the ordinary manner provided," [66] and performing duties of employment under conditions created by the employer [67] would be merely assumption of risk; that is, would be examples of utility outweighing dangers. The fact that the hazardous condition was encountered in the course of work is significant. [68] And where defendant landlord had the duty of keeping a stairway lighted, plaintiff tenant was not negligent in proceeding onto the unlighted stairway, [69] and an employee was not negligent in using an obvious unsafe ladder provided by his employer, [70] and an acrobat was not negligent in using the unsafe stage of his sponsors. [71]

Unless the defendant can show that the likelihood of injury outweighed the practical usefulness, or utility, of proceeding as plaintiff did under the circumstances, plaintiff cannot be charged with contributory negligence.


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

63. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 622 (1961). McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 255 (1973): "Since the time of McConville, supra and Gilson, supra, assumption of risk as a separate defense for a tort-feasor has been treated as contributory negligence." "... in the employee situation, the type of contributory negligence once subsumed under the heading of assumption of risk, carries with it, by virtue of an employer's duty to furnish a safe place of employment and the duty of an owner of premises to furnish a safe place for frequenters when they are there in the course of employment, a different obligation upon an employee than upon another who may be on allegedly unsafe premises only for his own purposes. An employee, when at work in a place of employment is there because of the directions of his employer." (256) "Using this test, the reasonableness of the plaintiff's conduct, i.e. was he contributorily negligent, must be determined in the light of the utility of going to work at his usual place of employment and performing work in the usual manner even though there was a possibility that the premises might be unsafe. No case has been called to our attention, and we have found none, in which this court has approved a finding of contributory negligence merely because an employee continued to work on premises which he knew might be unsafe. To so hold would run contrary to the policy of previous place-of-employment decisions under the safe-place statute."

64. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 623 (1961): "In the case before us, assumption of risk if reasonable was no defense; if unreasonable Mrs. Meyer was negligent."; see also Puza v. C. Hennecke Co., 158 Wis. 482, 485 (1914): "Such acts, if they caused or contributed to cause plaintiff's injury and were of such character that an ordinarily prudent person under like circumstances would not have committed them, would constitute contributory negligence."; Fandek v. Barnett & Record Co., 161 Wis. 55, 64 (1915): "Contributory negligence is established when it is shown that plaintiff failed to take such precautions for his own safety as a person of ordinary care would usually take under the same or similar circumstances. It may take the form of an affirmative act or of a failure to act. It may consist in an act or in a failure to act that creates a new risk or that enhances or assumes an existing one. If plaintiff serves under hazards incident to the employment no greater than those which ordinarily careful and prudent men usually serve under, then injury from such hazard alone is through assumption of risk and not through contributory negligence. But if plaintiff knowingly or ignorantly through a want of ordinary care serves under a risk that an ordinarily careful and prudent man similarly situated would not usually serve under, then such conduct is contributory negligence and not assumption of risk. In other words, the assuming of such risks as ordinarily careful and prudent men similarly situated usually assume is within the field of assumption of risk whether assumed knowingly or ignorantly. But the assuming of such risks as are more hazardous than those which ordinarily careful and prudent men similarly situated usually assume constitutes contributory negligence. And it is immaterial whether the risk is assumed knowingly or ignorantly through want of ordinary care." [66]: "The abolition of the defense of assumption of risk does not absolve the employee from the duty of exercising ordinary care for his own safety. And whenever his failure to do that causes his injury in whole or in part he is guilty of contributory negligence, irrespective of whether the negligence consists in an omission to discover a danger that ought to be discovered and shunned, or in a careless or bungling manner of doing an act otherwise reasonably safe, or in voluntarily assuming a risk that an ordinarily careful and prudent man similarly situated would not usually assume. Negligence exists when conduct does not measure up to the standard of ordinary care. The defense of assumption of risk abolished by the statute related to such risks as could be assumed within the field of ordinary care. When their assumption amounted to negligence the defense under the law in force when this injury occurred was available. There is no other rational line of demarcation." [67]: "It is not the ease with which a hazard is discovered that tends to make serving under it a want of ordinary care, but the imminence of serious injury from it ... Our court has frequently spoken of assumption of risk as a species of contributory negligence, and so it is in many if not all cases."; Neltzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 450 (1934): "When, however, he is directed by superiors to act in a way that so exposes him to the danger that, in spite of the use of ordinary care, injury results, the mere fact that he was aware of the danger does not make him guilty of contributory negligence."; Cheetham v. Piggly Wiggly Madison Co., 24 Wis. 2d 286, 291 (1964).

65. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616 (1961). The court quoted with approval from Scory v. La Fave, 215 Wis. 21, 28 (1934): "... The assuming of such risks as ordinarily careful and prudent men similarly situated usually assume is within the field of assumption of risk whether assumed knowingly or ignorantly. But the assuming of such risks as are more hazardous than those which ordinarily careful and prudent men similar situated usually assume constitutes contributory negligence." In the Meyer case the court distinguishes Haile v. Ellis, 5 Wis. 2d 221 (1958), as not being a safe-place law case. See footnote 64, above.

66. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 622 (1961). See Mustas v. Inland Construction, Inc., 19 Wis. 2d 194 (1963) where the court determined that plaintiff was guilty of contributory negligence but observed that (204): "The testimony shows that the ice was not so slippery as to make it impossible for a person to traverse it with ordinary care without falling."

67. Puza v. C. Hennecke Co., 158 Wis. 482, 484 (1914): "... An intended and continued use of a known defective appliance or a known unsafe place by the employee in substantially the same way as the employer instructed or intended it should be used falls under the definition of assumption of risk as expressed in this statute and is not to be considered contributory negligence."; Beck v. Siemers, 174 Wis. 437, 442 (1921): "... merely continuing in an employment and doing work as intended by the employer and the employee in the usual and ordinary manner, although the place of work or appliance is unsafe, does not constitute contributory negligence." However, it is deemed that the above stated rules would not absolve a plaintiff if safer adequate alternatives were available.

68. 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 the 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, 455 (1914).

69. Kelenic v. Berndt, 185 Wis. 240, 242 (1924): The use by the deceased of the unlighted stairway was assumption of risk as distinguished from contributory negligence. The deceased was not required to make good the landlord's failure to perform his duty and his failure to do so was not contributory negligence. It is no indication of recklessness to use an unlighted stairway."

70. Puza v. C. Hennecke Co., 158 Wis. 482 (1914).

71. Mennetti v. West Side Businessmen's Assn., 246 Wis. 586 (1945).


Revised July 17, 2000

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