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
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,
304 Wis. 2d 713,
738 N.W.2d 608,
06-2421.
101.11 Annotation
Safe is a relative term that does not mean completely free of any hazards. What constitutes a safe place depends on the facts and conditions present and the use to which the place is likely to be put. That a place could be made more safe does not mean that an owner has breached the duty of care established by sub. (1). When the agency having power to adopt orders to secure the safety of employees and frequenters of public buildings has issued a safety order concerning a particular situation, it establishes what is safe, and a jury or court cannot establish any other standard. Szalacinski v. Campbell,
2008 WI App 150,
314 Wis. 2d 286,
760 N.W.2d 420,
07-0667.
101.11 Annotation
The trial court erred in finding no unsafe condition under the safe place statute when it applied a height requirement to a sidewalk crack. There is no mathematical deviation rule that is a standard for a safe sidewalk. The ultimate question is not what is a defect, or how many inches high was the obstruction or deep the depression, but solely whether under all circumstances affecting the sidewalk it was in a reasonably safe condition for public travel by persons exercising ordinary care for their own safety. Gulbrandsen v. H & D, Inc.
2009 WI App 138,
321 Wis. 2d 410,
773 N.W.2d 506,
08-2990.
101.11 Annotation
The safe place statute includes a duty on employers to inspect premises to ensure that they are safe. Failure to comply renders the employer liable for the violation of the safe place statute. The duty to maintain does not arise until constructive knowledge of the defect exists, but if an adequate inspection would have revealed the defect and that inspection was not performed, the jury may infer constructive notice of the defect. The safe place statute applies the duty to maintain to both owners and employers alike. Gennrich v. Zurich American Insurance Company,
2010 WI App 117,
329 Wis. 2d 91,
789 N.W.2d 106,
09-2111.
101.11 Annotation
A "structural defect" for which an owner sustains safe place liability for the defect regardless of knowledge of the defect arises from design or construction flaws when a building element is put in place, whether as an original part of a structure or as a replacement. This contrasts with features of a structure that were installed safely and then developed into a hazard. Wagner v. Cincinnati Casualty Co.
2011 WI App 85,
334 Wis. 2d 516,
800 N.W.2d 27,
10-1195.
101.11 Annotation
The presence of asbestos in the air during and following routine repairs to defendant's buildings constituted an unsafe condition associated with the premises. Viola v. Wisconsin Electric Power Co.
2014 WI App 5,
352 Wis. 2d 541,
842 N.W.2d 515,
13-0022.
101.11 AnnotationThe safe place statute does not extend to vehicles. Hopkins v. Ros Stores, Inc.
750 F. Supp. 379 (1990).
101.11 Annotation
Under the safe place statute, an owner is only absolved of its statutory duty if it relinquishes complete control of the premises to a contractor, and the premises are in a safe condition at that time. The owner must have control over the place such that it can carry out its duty to furnish a safe place of employment, but the control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes. Anderson v. P&G Paper Products Co.
924 F. Supp. 2d 996 (2013).
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.
SPS 362.3300, 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(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)
(am) Accept the examination of essential drawings, calculations and specifications in accordance with
sub. (1) performed by a 2nd class city that is certified pursuant to
sub. (3m).
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)(bq)
(bq) Accept the review and determination performed by 2nd class cities that are certified pursuant to
sub. (3m) 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(3m)(a)(a) 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(3m)(b)
(b) A 2nd class city may apply for certification by the department under this subsection 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 subsection 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(3m)(c)
(c) Owners within the 2nd class city may obtain examinations from the city or the department.
101.12(3m)(d)
(d) The department shall certify 2nd class cities to perform reviews and determinations of variances under
sub. (3) (bq) if the 2nd class city has been certified for purposes of
sub. (3) (b).
101.12(3m)(e)
(e) 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
sub. (3) (am) and this subsection.
101.12(3r)
(3r) An owner of a building may request, and the department may grant, a variance from standards contained in a rule relating to constructing, altering, and adding to public buildings and buildings that are places of employment if the department finds that the requested variance will impose an equivalent standard that meets the intent of the rule.
101.12(4)(a)(a) Except as provided in
par. (b), any inspection performed to determine compliance with the rules promulgated by the department that relate to constructing, altering, or adding to public buildings and buildings that are places of employment may be performed only by a person who is certified under rules promulgated by the department to make such inspections.
101.12(4)(b)
(b) The certification requirement under
par. (a) does not apply to any of the following:
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.
SPS 318,
334, and
361, 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).
