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. 101.111(3)(a)(a) If the excavation is made to a depth of 12 feet or less below grade, the excavator may not be held liable for the expense of any necessary underpinning or extension of the foundations of buildings on adjoining properties.
101.111(3)(b)
(b) If the excavation is made to a depth in excess of 12 feet below grade, the excavator shall be liable for the expense of any necessary underpinning or extension of the foundations of any adjoining buildings below the depth of 12 feet below grade. The owners of adjoining buildings shall be liable for the expense of any necessary underpinning or extension of the foundations of their buildings to the depth of 12 feet below grade.
101.111(4)
(4) Notice. Unless waived by adjoining owners, at least 30 days prior to commencing the excavation the excavator shall notify, in writing, all owners of adjoining buildings of his or her intention to excavate. The notice shall state that adjoining buildings may require permanent protection. The owners of adjoining property shall have access to the excavation site for the purpose of protecting their buildings.
101.111(5)
(5) Employees not liable. No worker who is an employee of an excavator may be held liable for his or her employer's failure to comply with this section.
101.111(6)
(6) Failure to comply; injunction. If any excavator fails to comply with this section, any aggrieved person may commence an action to obtain an order under
ch. 813 directing such excavator to comply with this section and restraining the excavator from further violation thereof. If the aggrieved person prevails in the action, he or she shall be reimbursed for all his or her costs and disbursements together with such actual attorney fees as may be approved by the court.
101.111(7)(a)(a) Subject to
par. (b), this section applies to any excavation made after January 1, 1978.
101.111(7)(b)
(b) This section does not apply to any excavation made under a contract awarded on or before January 1, 1978.
101.111 History
History: 1977 c. 88.
101.111 Cross-reference
Cross Reference: See also s.
Comm 62.3300, Wis. adm. code.
101.12
101.12
Approval and inspection of public buildings and places of employment and components. 101.12(1)
(1) Except for plans that are reviewed by the department of health services under
ss. 50.02 (2) (b) and
50.36 (2), the department shall require the submission of essential drawings, calculations and specifications for public buildings, public structures and places of employment including the following components:
101.12(1)(a)
(a) Heating, ventilation, air conditioning and fire detection, prevention or suppression systems.
101.12(1)(c)
(c) Elevators, escalators, ski lift and towing devices and power dumbwaiters.
101.12(2)
(2) Plans of said buildings, structures and components shall be examined for compliance with the rules of the department and a statement of the examination returned to the designer and owner before construction is started. Nothing in this section shall relieve the designer of the responsibility for designing a safe building, structure or component.
101.12(3)(a)
(a) Accept the examination of essential drawings, calculations and specifications in accordance with
sub. (1) performed by cities of the 1st class provided the same are examined in a manner approved by the department.
101.12(3)(am)1.1. Accept the examination of essential drawings, calculations and specifications in accordance with
sub. (1) performed by a 2nd class city in conformity with the requirements of this paragraph.
101.12(3)(am)2.
2. The department shall promulgate rules for the administration of a program to certify 2nd class cities to perform the examination of essential drawings, calculations and specifications in accordance with
sub. (1).
101.12(3)(am)3.
3. A 2nd class city may apply for certification by the department for the purposes of this paragraph if that city employs at least one architect or one professional engineer who has been granted a certificate of registration under
s. 443.10. The department shall certify a 2nd class city when the department determines and certifies the competency of all examiners employed by the city. The department shall review the competency of the examiners of a city that is certified under this paragraph on a regular basis and may revoke the certification of a city if the examiners do not meet standards specified by the department.
101.12(3)(am)4.
4. Owners within the 2nd class city may obtain examinations from the city or the department.
101.12(3)(am)5.
5. The department shall by rule set fees, to be collected by the 2nd class city and remitted to the department, to meet the department's costs in enforcing and administering its duties under this paragraph.
101.12(3)(b)
(b) Accept the examination of essential drawings, calculations and specifications in accordance with
sub. (1) for buildings containing less than 50,000 cubic feet of volume and alterations to buildings containing less than 100,000 cubic feet of volume performed by cities, villages, towns or counties, provided the same are examined in a manner approved by the department. The department shall determine and certify the competency of all such examiners.
101.12(3)(bm)
(bm) Accept the review and determination performed by 1st class cities on variances for buildings if the variances are reviewed and decided on in a manner approved by the department.
101.12(3)(br)
(br) Accept the review and determination on variances for buildings containing less than 50,000 cubic feet of volume and alterations to buildings containing less than 100,000 cubic feet of volume performed by certified municipalities if the department has certified the competency of a municipality to issue variances and if the variances are reviewed in a manner approved by the department. Owners may submit variances to the municipality or the department.
101.12(3)(c)
(c) Determine and certify the competency of inspectors of boilers, unfired pressure vessels, refrigeration plants, elevators, escalators and power dumbwaiters.
101.12(3)(d)
(d) Accept inspections at no cost performed by inspectors for whom evidence of competency has been furnished to the department.
101.12(3)(e)
(e) Approve inspection service maintained or employed by owners or operators of boilers and unfired pressure vessels.
101.12(3)(f)
(f) Accept inspections at no cost performed by approved owner or operator inspection service and provide shop inspection service when deemed necessary.
101.12(3)(g)
(g) Accept inspection at no cost when performed by qualified and authorized inspectors for a city, village, town or county for the inspection of buildings and equipment located within the city, village, town or county. The department shall determine and certify the competency of all such inspectors.
101.12(3)(h)
(h) Require all local officers not authorized by the department to grant approvals as provided in
pars. (a) and
(b) to deny permits or licenses for construction or use of public buildings, public structures and places of employment until the required drawings and calculations have been examined by the department.
101.12(5)(a)1.
1. "Plans" means construction plans, designs, specifications and related materials filed with the department, city, village, town or county concerning a structure.
101.12(5)(a)2.
2. "Secure structure" means a building or other structure of a type which the department, city, village, town or county determines to have extraordinary security requirements, including but not limited to structures used:
101.12(5)(a)2.a.
a. For the safekeeping of large sums of money, negotiable instruments, securities or other valuables;
101.12(5)(a)2.b.
b. As a jail, correctional facility or other secure facility for persons in detention;
101.12(5)(a)2.c.
c. For the safekeeping or evaluation of evidence in criminal proceedings or investigations;
101.12(5)(a)2.e.
e. In the generation, transmission or distribution of electric power, fuels or communications.
101.12(5)(b)
(b) A person requesting to inspect or copy plans shall submit a written application identifying the structure or proposed structure whose plans are sought to be inspected or copied, providing the full name and address of the requester and stating that any information obtained from the inspection or copying will not be used for any unlawful or unfair competitive purpose and that the information set forth in the application is true and correct. The department, city, village, town or county shall promptly transmit a copy of the application to the owner of the structure or proposed structure and the submitter of the plans being inspected or copied.
101.12(5)(c)
(c) If an application submitted under
par. (b) requests inspection or copying of plans for a secure structure or proposed secure structure that is or is anticipated to be owned by or leased to the state, the plans are not subject to the right of inspection or copying except as the department of administration otherwise provides by rule. If an application submitted under
par. (b) requests inspection or copying of plans for any other secure structure or proposed secure structure, the department, city, village, town or county shall consider the information supplied in the application and weigh the possible harm to the public interest which may result from permitting inspection and copying of the plans against the benefits of allowing such inspection or copying. If the department, city, village, town or county determines that the possible harm to the public interest outweighs the benefit to the requester and to the public interest of allowing such inspection or copying, it may deny the application or grant it upon such conditions as it determines are necessary to protect the public interest. This paragraph does not apply to an application submitted by a law enforcement agency or person authorized to have access to the plans by lawful subpoena.
101.12(5)(d)
(d) The department, city, village, town or county may charge a reasonable amount to defray its costs in providing copies of the plans.
101.12(6)(a)(a) By January 1, 1990, the department shall inspect all public schools constructed prior to January 1, 1950, to determine whether the schools comply with this subchapter and
subch. IV, ch.
145 and life-safety plans established under
par. (b) and to review the maintenance schedules established by school boards under
s. 120.12 (5).
101.12(6)(b)
(b) The department shall promulgate rules relating to the enforcement of this subchapter and
subch. IV and ch.
145 for public schools constructed before 1930 and establishing life-safety plans for all public schools.
101.12 Cross-reference
Cross Reference: See also chs.
Comm 18,
34, and
61, Wis. adm. code.
101.12 Annotation
The state statutes and building code have not preempted the field as to school buildings; local building codes apply to the extent that they are not inconsistent. Hartford Union High School v. Hartford,
51 Wis. 2d 591,
187 N.W.2d 849 (1971).
101.12 Annotation
Plans and specifications filed under s. 101.12 are public records and are available for public inspection. 67 Atty. Gen. 214.
101.1205
101.1205
Erosion control; construction of public buildings and buildings that are places of employment. 101.1205(1)(1) The department, in consultation with the department of natural resources, shall establish statewide standards for erosion control at building sites for the construction of public buildings and buildings that are places of employment.
101.1205(2)
(2) The department shall require the submission of plans for erosion control at construction sites described in
sub. (1) to the department or to a county, city, village or town to which the department has delegated authority under
sub. (4) and shall require approval of those plans by the department or the county, city, village or town.
101.1205(3)
(3) The department shall require inspection of erosion control activities and structures at construction sites described in
sub. (1) by the department or a county, city, village or town to which the department has delegated authority under
sub. (4).
101.1205(4)
(4) The department may delegate authority under this section to a county, city, village or town.
101.1205(5)
(5) Except as provided in
sub. (5m), the authority of a county, city, village or town with respect to erosion control at sites described in
sub. (1) is limited to that authority delegated under
sub. (4) and any other authority provided in rules promulgated under this section.
101.1205(5m)
(5m) Notwithstanding
subs. (1) and
(5), a county, city, village or town that has in effect on January 1, 1994, an ordinance that establishes standards for erosion control at building sites for the construction of public buildings and buildings that are places of employment may continue to administer and enforce that ordinance if the standards in the ordinance are more stringent than the standards established under
sub. (1).
101.1205(6)
(6) The department, or a county, city, village or town to which the department delegates the authority to act under this subsection, may issue a special order directing the immediate cessation of work on a construction site described in
sub. (1) until any required plan approval is obtained or until the site complies with standards established by rules promulgated under this section.
