Boyle's Wisconsin Safe-Place Law

Chapter Six: Actions
    (j) Instructions
The court should be particularly careful in a safe-place law case to instruct the jury as to the proper standard of care which obtains in such cases; that is, that defendant must furnish a place [or employment] "as safe as the nature thereof will reasonably permit", rather than merely a reasonably safe place or employment. Instructions from which the jury might reasonably infer that exercise of ordinary care on defendant's part suffices, are erroneous. [89] In regard to defendant having notice or knowledge of the unsafe condition, as above pointed out, [90] the verdict does not expressly cover this matter, so it must be dealt with, where material, by instruction. "In a situation where the defect is temporary or transitory, and consists in a failure to repair or maintain a place of employment in a condition as safe as the nature of the premises reasonably permitted, the instruction to the jury should make it clear that the defendant owner is not negligent if he had no knowledge of the defect or notice of facts which should have caused him to know of its existence." [91] Approved instructions on contributory negligence are set out in several of the cases. [92] However, inasmuch as the defense of assumption of risk is abolished in safe-place cases, special caution should be observed in instructing on contributory negligence to the end that assumption of risk be not confused with contributory negligence. [93] This perhaps is best accomplished by combining instruction to the effect that assumption of risk is no defense with instruction on contributory negligence, and drawing the distinction between the two. Instructions on the subject of trespasser, [94] and frequenter, [95] and constructive notice should be given where appropriate.

Forms of jury instructions in safe-place actions are contained in Wisconsin Jury Instructions -- Civil (copyright, Regents, Univ. of Wis.).

1900.2 Safe-Place Statute: Duty or Employer

1900.4 Safe-Place Statute: Injury to Frequenter: Negligence of Operator of a Business or Owner of a Public Building

1901 Safe-Place Statute: Definition of Frequenter

1902 Safe-Place Statute: Negligence of Plaintiff Frequenter

1904 Safe-Place Statute: Public Buildings: Negligence of Owner

1910 Safe-Place Statute: Place of Employment: Business

1911 Safe-Place Statute: Control

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

89. Mullen v. Larson-Morgan Co., 212 Wis. 52, 56 (1933): "The charge in spots does say that the statute requires that the place of employment shall be made as free from danger as the employment will reasonably permit and as the nature of the work will reasonably permit, but other portions of the charge contradict this statement ... [59]: Incorporating in the charge the phrases respecting ordinary care and reasonable anticipation could only confuse and mislead by conveying the idea that if the defendant used ordinary care in view of what might reasonably be anticipated he fulfilled his statutory duty."; Petoskey v. Schmidt, 21 Wis. 2d 323, 331 (1963): "Perhaps even greater clarity could be obtained in the typical safe place case: After giving the general definition of negligence (Wisconsin Jury Instructions -- Civil, 1005), the trial court might go on to state as follows: 'The definition of negligence which I have just given you applies to both the plaintiff and the defendant. However, in addition, the defendant as an employer also has the duty to comply with,the provisions of the Wisconsin Statutes which require an employer to maintain his premises as safely as the nature of the place reasonably permits. If the defendant fails to comply with such statutes, he is negligent, as that term is used in this verdict.'"

90. See footnote 83, supra.

91. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 555 (1960); Lee v. Junkans, 18 Wis. 2d 56, 61 (1962); Turk v. H. C. Prange Co., 18 Wis. 2d 547, 561 (1963): "If you find from the evidence that an unsafe condition existed for such a length of time that the defendant ... by the use of ordinary care, could have become aware of its existence and remedied the situation prior to the time the plaintiff sustained her injury, then the defendant ... is charged with such knowledge."; Caldwell v. Piggly Wiggly Madison Co., 32 Wis. 2d 447, 453 (1966).

92. Fandek v. Barnett & Record Co., 161 Wis. 55, 61 (1915); Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 449 (1934); Mondl v. F. W. Woolworth Co., 12 Wis. 2d 571, 573 (1961); Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 347 (1970). See Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408 (1970) where giving boiler plate instruction on contributory negligence constituted error.

93. Vogelsburg v. Mason & Hanger Co., 250 Wis. 242 (1947), quoting Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 450 (1934): "The instructions were sufficient and correctly stated the law. The court was correct in refusing to instruct the jury that the plaintiff was guilty of contributory negligence if it was found that he knew of the danger, either as a result of warning or as a result of his own experience. The mere fact that one having knowledge of the existence of danger continues to perform his work, does not necessarily make him guilty of contributory negligence ... ." Beek v. Siemers, 174 Wis. 437, 442 (1921): "We come to this conclusion [that the burden of establishing contributory negligence had not been met] less reluctantly because in the instructions there was nothing to inform the jury that continuing to work in proximity to a dangerous machine was not of itself contributory negligence."

94. Wannmacher v. Baldauf Corp., 262 Wis. 523, 539i (1952).

95. Sandeen v. Willow River Power Co., 214 Wis. 166, 178 (1934): In view of the express provisions of that statute and its applicability to frequenters as well as employees, the court committed no error, as defendant contends, in instructing that the duty to warn is embodied in statutory language and requires such warning when 'reasonably necessary 'to protect employees and frequenters'; that 'the statute makes no distinction between an employee and a frequenter'; and that 'the statute as a whole surrounds employees and frequenters of place of employment with the same safeguards.'"

96. Turk v. H. C. Prange Co., 18 Wis. 2d 547, 561 (1963): "The last sentence of the trial court's instruction provided: 'If you find from the evidence that an unsafe condition existed for such a length of time that the defendant, H. C. Prange Company, by the use of ordinary care, could have become aware of its existence and remedied the situation prior to the time the plaintiff sustained her injury, then the defendant H. C. Prange Company is charged with such knowledge.' This is synonymous with the meaning of constructive knowledge."

Revised July 20, 2000