101.09(2)(a)(a) Except as provided under
pars. (b) to
(d), every person who constructs, owns or controls a tank for the storage, handling or use of liquid that is flammable or combustible or a federally regulated hazardous substance shall comply with the standards adopted under
sub. (3).
101.09(2)(b)
(b) This section does not apply to storage tanks which require a hazardous waste license under
s. 291.25.
101.09(2)(c)
(c) This section does not apply to storage tanks which are installed above ground level and which are less than 5,000 gallons in capacity.
101.09(2)(cm)
(cm) Any rules promulgated under
sub. (3) requiring an owner to test the ability of a storage tank, connected piping or ancillary equipment to prevent an inadvertent release of a stored substance do not apply to storage tanks that satisfy all of the following:
101.09(2)(cm)3.
3. Are used to store heating oil for residential, consumptive use on the premises where stored.
101.09(2)(d)
(d) This section does not apply to a pressurized natural gas pipeline system regulated under
49 CFR 192 and
193.
101.09(3)(a)(a) The department shall promulgate by rule construction, maintenance and abandonment standards applicable to tanks for the storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination by liquids that are flammable or combustible or are federally regulated hazardous substances. The rule shall comply with
ch. 160. The rule may include different standards for new and existing tanks, but all standards shall provide substantially similar protection for the waters of the state. The rule shall include maintenance requirements related to the detection and prevention of leaks. The rule may require any person supplying heating oil to any noncommercial storage tank for consumptive use on the premises to submit to the department, within 30 days after the department requests, the location, contents and size of any such tank.
101.09(3)(b)
(b) The department may transfer any information which the department receives under
par. (a) to any other agency or governmental unit. The department and any such agency shall treat the name of the owner and the location of any noncommercial storage tank which stores heating oil for consumptive use on the premises, required to be submitted to the department under
par. (a), as confidential and shall not permit inspection or copying under
s. 19.35 of any record containing the information.
101.09(3)(c)
(c) The rule promulgated under
par. (a) may require the certification or registration of persons who install, remove, clean, line, perform tightness testing on and inspect tanks and persons who perform site assessments. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration.
101.09(3)(d)
(d) The department shall promulgate a rule specifying fees for plan review and inspection of tanks for the storage, handling, or use of flammable or combustible liquids and for any certification or registration required under
par. (c).
101.09(4)(b)
(b) The department shall issue orders directing and requiring compliance with the rules and standards of the department adopted under this section whenever, in the judgment of the department, the rules or standards are threatened with violation, are being violated or have been violated.
101.09(4)(c)
(c) The circuit court for any county where violation of such an order occurs has jurisdiction to enforce the order by injunctive and other appropriate relief.
101.09(5)
(5) Penalties. Any person who violates this section or any rule or order adopted under this section shall forfeit not less than $10 nor more than $5,000 for each violation. Each violation of this section or any rule or order under this section constitutes a separate offense and each day of continued violation is a separate offense.
101.09 Cross-reference
Cross Reference: See also ch.
Comm 10, Wis. adm. code.
101.10
101.10
Storage and handling of anhydrous ammonia; theft of anhydrous ammonia and anhydrous ammonia equipment. 101.10(1)(a)
(a) "Agricultural activity" means planting, cultivating, propagating, fertilizing, nurturing, producing, harvesting, or manufacturing agricultural, horticultural, viticultural, or dairy products; forest products; livestock; wildlife; poultry; bees; fish; shellfish; or any products of livestock, wildlife, poultry, bees, fish, or shellfish.
101.10(1)(b)
(b) "Anhydrous ammonia equipment" means any equipment that is used in the application of anhydrous ammonia for an agricultural purpose or that is used to store, hold, transport, or transfer anhydrous ammonia.
101.10(1)(c)
(c) "Transfer" means to remove from a container.
101.10(2)
(2) Rules. The department shall promulgate rules that prescribe reasonable standards relating to the safe storage and handling of anhydrous ammonia.
101.10(3)
(3) Prohibitions. No person may do any of the following:
101.10(3)(a)
(a) Store, hold, or transport anhydrous ammonia in a container that does not meet all applicable requirements established by rules of the department promulgated under
sub. (2).
101.10(3)(b)
(b) Transfer or attempt to transfer anhydrous ammonia into a container that does not meet all applicable requirements established by rules of the department promulgated under
sub. (2).
101.10(3)(c)
(c) Transfer or attempt to transfer anhydrous ammonia without the consent of the owner of the anhydrous ammonia.
101.10(3)(d)
(d) Intentionally cause damage to anhydrous ammonia equipment without the consent of the owner of the anhydrous ammonia equipment.
101.10(3)(e)
(e) Intentionally take, carry away, use, conceal, or retain possession of anhydrous ammonia belonging to another or anhydrous ammonia equipment belonging to another, without the other's consent and with intent to deprive the owner permanently of possession of the anhydrous ammonia or anhydrous ammonia equipment.
101.10(3)(f)
(f) Intentionally release or allow the escape of anhydrous ammonia belonging to another into the atmosphere. This paragraph does not apply if the owner has authorized the actor to exercise control over the anhydrous ammonia or has consented to its release.
101.10(4)(a)(a) Any person who violates a rule of the department promulgated under
sub. (2) may be required to forfeit not less than $10 nor more than $100 for each violation.
101.10(4)(b)
(b) Except as provided in
par. (c), any person who violates
sub. (3) is guilty of a Class I felony. Notwithstanding
s. 101.02 (12), each act in violation of
sub. (3) constitutes a separate offense.
101.10(4)(c)
(c) Any person who violates
sub. (3) (a) or
(b) while performing an agricultural activity or while performing an activity related to the construction, repair, alteration, location, installation, inspection, or operation of anhydrous ammonia equipment with the consent of the owner of the anhydrous ammonia equipment may be required to forfeit not less than $10 nor more than $100 for each violation.
101.10 History
History: 2001 a. 3,
16,
73,
109;
2005 a. 14.
101.10 Cross-reference
Cross Reference: See also ch.
Comm 43, Wis. adm. code.
101.11
101.11
Employer's duty to furnish safe employment and place. 101.11(1)(1) Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
101.11(2)(a)(a) No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.
101.11(2)(b)
(b) No employee shall remove, displace, damage, destroy or carry off any safety device or safeguard furnished and provided for use in any employment or place of employment, nor interfere in any way with the use thereof by any other person, nor shall any such employee interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment or frequenter of such place of employment, nor fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees or frequenters.
101.11(3)
(3) This section applies to community-based residential facilities as defined in
s. 50.01 (1g).
101.11 History
History: 1971 c. 185; Stats. 1971 s. 101.11;
1975 c. 413;
1987 a. 161 s.
13m.
101.11 Cross-reference
Cross Reference: See also chs.
Comm 61,
62,
63,
64, and
65, Wis. adm. code.
101.11 Annotation
Ordinary negligence can be compared with negligence founded upon the safe place statute. In making the comparison, a violation of the statute is not to be considered necessarily as contributing more than the common-law contributory negligence. Lovesee v. Allied Development Corp.
45 Wis. 2d 340,
173 N.W.2d 196 (1970).
101.11 Annotation
When an apartment complex was managed for a fee by a management company, the company was carrying on a business there. Reduction of rent to one of the tenants for caretaking services constituted employment on the premises. A tenant who fell on the icy parking lot after the caretaker knew of the condition need only prove negligence in maintaining the premises. Wittka v. Hartnell,
46 Wis. 2d 374,
175 N.W.2d 248 (1970).
101.11 Annotation
A public sidewalk is not made a place of employment merely because an employer constructed it and kept it free of ice and snow. Petroski v. Eaton Yale & Towne, Inc.
47 Wis. 2d 617,
178 N.W.2d 53 (1970).
101.11 Annotation
The fact that a violation of the safe place statute is found puts the burden on the owner to rebut the presumption of causation but does not establish as a matter of law that the defendant's negligence was greater than the plaintiff's. Frederick v. Hotel Investments, Inc.
48 Wis. 2d 429,
180 N.W.2d 562 (1970).
101.11 Annotation
A store must be held to have had constructive notice of a dangerous condition when it displayed shaving cream in spray cans on a counter and a 70-year old woman fell in cream sprayed on the white floor. Steinhorst v. H. C. Prange Co.
48 Wis. 2d 679,
180 N.W.2d 525 (1970).
101.11 Annotation
The mere existence of a step up into a hospital lavatory was not an unsafe condition. Prelipp v. Wausau Memorial Hospital,
50 Wis. 2d 27,
183 N.W.2d 24 (1971).
101.11 Annotation
Failure to light a parking lot can support a safe place action, but the evidence must show how long the light was burned out to constitute constructive notice. Low v. Siewert,
54 Wis. 2d 251,
195 N.W.2d 451 (1972).
101.11 Annotation
A parking lot owned by a city that is a continuation of a store parking lot used by the public for attending the city zoo and the store, even though maintained by the private property owner, is not a place of employment. Gordon v. Schultz Savo Stores, Inc.
54 Wis. 2d 692,
196 N.W.2d 633 (1972).
101.11 Annotation
Detailed construction specifications and the presence of engineers to insure compliance does not manifest control over the project so as to make the commission liable. Berger v. Metropolitan Sewerage Commission of Milwaukee,
56 Wis. 2d 741,
203 N.W.2d 87 (1973).
101.11 Annotation
In a safe place action the employee's contributory negligence is less when his or her act or omission has been committed in the performance of job duties. McCrossen v. Nekoosa-Edwards Paper Co.
59 Wis. 2d 245,
208 N.W.2d 148 (1973).
101.11 Annotation
A pier at a beach open to the public for a fee constitutes a place of employment. Any distinction between licensees and invitees is irrelevant, and the statute imposes a higher duty as to safety than the common law. Gould v. Allstar Insurance Co.
59 Wis. 2d 355,
208 N.W.2d 388 (1973).
101.11 Annotation
A private road on the ground of a private racetrack that connected the track and a parking lot was subject to this section as to frequenters. Gross v. Denow,
61 Wis. 2d 40,
212 N.W.2d 2 (1973).
101.11 Annotation
A one-eighth inch variance in elevation between the sides of a ramp joint was too slight, as a matter of law, to constitute a violation of the safe place statute. Balas v. St. Sebastian's Congregation,
66 Wis. 2d 421,
225 N.W.2d 428 (1975).
101.11 Annotation
An employer may be held liable under the safe place statute not only for failing to construct or maintain safety structures such as fences, but also for knowingly permitting employees or frequenters to venture into a dangerous area. Kaiser v. Cook,
67 Wis. 2d 460,
227 N.W.2d 50 (1975).
101.11 Annotation
The safe place statute applies only to unsafe physical conditions, not to activities conducted on a premises. Korenak v. Curative Workshop Adult Rehabilitation Center,
71 Wis. 2d 77,
237 N.W.2d 43 (1976).
101.11 Annotation
The duty to furnish a safe place of employment to employees does not impose a duty on a contractor for subcontractor's employees. A contractor can owe a duty to a frequenter, but only when a hazardous condition is under the supervision or control of the contractor. Barth v. Downey Co., Inc.
71 Wis. 2d 775,
239 N.W.2d 92 (1976).
101.11 Annotation
Retention of control and supervision is required for recovery against a general contractor by a subcontractor's employee. Lemacher v. Circle Construction Co., Inc.
72 Wis. 2d 245,
240 N.W.2d 179 (1976).
101.11 Annotation
The length of time a safe place defect must exist, in order to impose constructive notice of it on an owner, varies according to the nature of the business, the nature of the defect, and the public policy involved. May v. Skelley Oil Co.
83 Wis. 2d 30,
264 N.W.2d 574 (1978).
101.11 Annotation
In safe place cases, comparative negligence instructions need not direct the jury to consider the defendant's higher duty of care. Brons v. Bischoff,
89 Wis. 2d 80,
277 N.W.2d 854 (1979).
101.11 Annotation
Indemnity in a safe place action creates an effect identical to that of contribution. Barrons v. J. H. Findorff & Sons, Inc.
89 Wis. 2d 444,
278 N.W.2d 827 (1979).
101.11 Annotation
A non-negligent indemnitor was liable to an indemnitee whose breach of a safe place duty was solely responsible for damages under the circumstances of the case. Dykstra v. Arthur G. McKee & Co.
92 Wis. 2d 17,
284 N.W.2d 692 (Ct. App. 1979); (aff'd)
100 Wis. 2d 120,
301 N.W.2d 201 (1981).
101.11 Annotation
Architects have liability under the safe place statute only if they have a right of supervision and control, which must be determined from the agreement between the owner and the architect. If the duty exists, it is nondelagable. Hortman v. Becker Construction Co., Inc.
92 Wis. 2d 210,
284 N.W.2d 621 (1979).
101.11 Annotation
"Safe employment" and "safe place of employment" are distinguished. There is a duty to provide safe employment to employees that does not extend to frequenters, while the duty to provide a safe place of employment does extend to frequenters. Leitner v. Milwaukee County,
94 Wis. 2d 186,
287 N.W.2d 803 (1980).
101.11 Annotation
Evidence of a prior accident was admissible to prove notice of an unsafe condition. Callan v. Peters Construction Co.
94 Wis. 2d 225,
288 N.W.2d 146 (Ct. App. 1979).
101.11 Annotation
That a lease allocates safe place duties between an owner and an employer/tenant does not nullify mutually shared statutory duties. Hannebaum v. Dirienzo & Bomier,
162 Wis. 2d 488,
469 N.W.2d 900 (Ct. App. 1991).
101.11 Annotation
The safe place duty to keep a swimming pool in a condition to protect customers from injury was overcome when a person unreasonably dove into a pool of unknown depth. Wisnicky v. Fox Hills Inn,
163 Wis. 2d 1023,
473 N.W.2d 523 (Ct. App. 1991).
101.11 Annotation
A county house of correction is subject to the safe place statute. Henderson v. Milwaukee County,
198 Wis. 2d 748,
543 N.W.2d 544 (Ct. App. 1995).
101.11 Annotation
An alarm system does not relate to the structure of a building and therefore does not relate to a safe place of employment. It is a safety device that is the responsibility of the employer and not the building owner. Naaj v. Aetna Insurance Co.
218 Wis. 2d 121,
579 N.W.2d 815 (Ct. App. 1998),
96-3640.
101.11 Annotation
The obligation of a lessor of a building is limited to structural or physical defects. A temporary condition maintained by the lessee does not impose safe place liability on the lessor. Powell v. Milwaukee Area Technical College District Bd.
225 Wis. 2d 794,
594 N.W.2d 403 (Ct. App. 1999),
97-3040.
101.11 Annotation
A defect is "structural" if it resulted from materials used in its construction or from improper layout or construction. Conditions "associated with the structure" are those that involve the structure being out of repair or not being maintained in a safe manner. An owner sustains safe place liability for a structural defect regardless of knowledge of the defect, but with conditions related to the structure, no liability attaches without actual or constructive notice. Barry v. Employers Mutual Casualty Co. 2001 WI 101,
245 Wis. 2d 560,
630 N.W.2d 517,
98-2557.
101.11 Annotation
The duties imposed on employers and property owners under this section are nondelegable. Barry v. Employers Mutual Casualty Co. 2001 WI 101,
245 Wis. 2d 560,
630 N.W.2d 517,
98-2557.
101.11 Annotation
This section does not apply to unsafe conditions caused by an injured party's own negligence or recklessness. If a structure's alleged disrepair requires reckless or negligent conduct by the plaintiff for the plaintiff to injure herself or himself, the initial disrepair may not be construed as having caused the injury. Hofflander v. St. Catherine's Hospital, 2003 WI 77,
262 Wis. 2d 539,
664 N.W.2d 545,
00-2467.
101.11 Annotation
Land that is merely appurtenant to a place where business is carried on is not a place of employment under s. 101.01 (11). An owner must have ownership, custody, or control of the place of employment and the premises appurtenant thereto. An owner of appurtenant land who does not also have ownership, custody, or control of the place cannot be liable for injuries sustained at the place. Binsfeld v. Conrad, 2004 WI App 77,
272 Wis. 2d 341,
679 N.W.2d 341,
03-1077.
101.11 Annotation
If constructive notice is relied on, generally, evidence of the length of time that the unsafe condition existed is required to establish it. Constructive notice, without a showing of temporal evidence of the unsafe condition, may be imputed in a narrow class of cases where the method of merchandizing articles for sale to the public in the area where the harm occurred should have made that harm reasonably foreseeable at that location. Megal v. Green Bay Area Visitor & Convention Convention Bureau, Inc. 2004 WI 98,
274 Wis. 2d 162,
682 N.W.2d 857,
02-2932.
101.11 Annotation
Ten years after a structure is substantially completed, s. 893.89 bars safe place claims under this section resulting from injuries caused by structural defects, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61,
291 Wis. 2d 132,
715 N.W.2d 598,
04-1252.
101.11 Annotation
The owner of a public building is liable for: 1) structural defects; and 2) unsafe conditions associated with the structure of the building. A structural defect is a hazardous condition inherent in the structure by reason of its design or construction. An unsafe condition arises from the failure to keep an originally safe structure in proper repair or properly maintained. A property owner is liable for injuries caused by a structural defect regardless of whether it had notice of the defect, but only liable for an unsafe condition when it had actual or constructive notice of the condition. Rosario v. Acuity, 2007 WI App 194, ___ Wis. 2d ___, ___ N.W.2d ___,
06-2421.
101.11 Annotation
When an employer delegates a statutory or regulatory duty to an employee, it does not thereby shift liability. Rather, the employer is responsible if the employee fails to carry out that duty. When the state is the employer, the state is immune from suit for a monetary judgment under the doctrine of sovereign immunity. However, the injured party may sue an individual state employee for damages, subject to the defense of public employee immunity. The principle of nondelegability discussed in Dykstra does not apply to prevent an injured party from suing a state employee. Umansky v. ABC Insurance Co. 2008 WI App 101,
304 Wis. 2d 713;
738 N.W.2d 608,
07-0385.
101.11 AnnotationThe safe place statute does not extend to vehicles. Hopkins v. Ros Stores, Inc.
750 F. Supp. 379 (1990).
101.111
101.111
Excavations; protection of adjoining property and buildings. 101.111(1)(1)
Definition. In this section "excavator" means any owner of an interest in land making or causing to be made an excavation.
101.111(2)
(2) Cave-in prevention. Any excavator shall protect the excavation site in such a manner so as to prevent the soil of adjoining property from caving in or settling.
101.111(3)
(3) Liability for underpinning and foundation extensions.
