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.