Premises liability on paper
Dustin Woehl
Kasdorf Lewis & Swietlik, SC
414.577.4015
dwoehl@kasdorf.com
WISCONSIN SAFE PLACE LIABILITY
Wisconsin’s Safe Place Statute
•
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. Wis. Stat. § 101.11
•
Safe: “freedom from danger to the life, health, safety or welfare of
employees or frequenters, or the public, or tenants, or fire fighters, . . .
, as the nature of the employment, place of employment, or public
building, will reasonably permit.” Wis. Stat. § 101.01(13).
•
Wisconsin Supreme Court has stated that the statute “imposes a duty
more stringent than the duty of ordinary care.”
•
The term “safe” under the Safe Place Statute, “does not mean
completely free of any hazards.” Megal v. Green Bay Area Visitor &
Convention Bureau, Inc., 2004 WI 98, ¶ 10, 274 Wis. 2d 162, 682
N.W.2d 857 (dismissing safe place claim for lack of notice, but allowing
negligence claim to go forward).
•
No excuse for noncompliance that the duty is burdensome or difficult.
Places Covered
(A) places of employment,
(B) public buildings, and
(C) employment
Places of Employment
•
•
construed broadly – can include almost any place
“place of employment” can include a portion of the employment
premises where work would not normally, or regularly, be
undertaken.
Public Building
•
“any structure, including exterior parts of such building, such as a
porch, exterior platform or steps providing means of ingress or egress,
used in whole or in part as a place of resort, assemblage, lodging,
trade, traffic, occupancy, or use by the public or by 3 or more
tenants.”
Persons Protected
(A) employees
(B) frequenters
 Trespassers are excluded under the statutory definition of frequenter.
Employees
•
Generally, worker’s compensation is the “exclusive remedy”
Frequenters
•
•
•
•
•
Frequenters are the main practical concern of safe place law due to
limits on recovery for employees under Worker’s Compensation Act.
Very broad = “every person, other than an employee, who may go in or
be in a place of employment or public building under circumstances
which render such person other than a trespasser.”
Examples
o customer
o employee of an independent contractor
o employee after hours
o traveling salesman
o tenant
Trespasser
•
Statutory definition of frequenter specifically excludes trespasser. §
101.01(6): “(6) "Frequenter" means every person, other than an
employee, who may go in or be in a place of employment or public
building under circumstances which render such person other than a
trespasser. Such term includes a pupil or student when enrolled in or
receiving instruction at an educational institution.”
•
Frequenter loses his status as such, and becomes a trespasser, when
he goes into an area to which he was neither expressly nor impliedly
invited
o case examples
 where plaintiff, cleaning shop customer, when not waited
upon immediately, went behind the counter to get her
clothes and fell through a trap door. Wannmacher v.
Baldauf Corp., 262 Wis. 523 (1952).
•
Clear case of trespass exists where “there is adequate notice to a
frequenter that he should not go into a part of a public building and, in
spite of such notice he disregards the same and enters into the
forbidden area.”
o Case examples

•
where plaintiff, intending to test a “luminous indicator”
which she desired to purchase, stepped into a darkened
doorway marked “Employees Only,” she was a trespasser
and could not recover for injuries sustained by falling
down stairs just inside such doorway. Newell v. Schultz
Brothers Co., 239 Wis. 415 (1942).
This is so even if such unauthorized entry was a result of mistake or
confusion
Persons Liable
(A) employers,
(B) owners of public buildings,
(C) owners of places of employment, and
(D) architects and builders.
Non-delegable Duty
•
cannot escape liability by delegating your safe-place duty to others
•
Subcontractor
o E.g., Snow Removal Subcontractor
 Does not alone relieve yourself of liability to a victim

 Contract
• Structure contract to make sure subcontractor is
responsible for its own negligent conduct;
• Make sure subcontractor carries appropriate
insurance;
• Make sure you are named as an additional insured
on subcontractors insurance policy
• Include indemnification and duty to defend. (Issues
as to enforceability and scope)
Employers
•
“every person . . . having control or custody of any employment, place
of employment or of any employee”
•
Duty of Employer
o Most broad
o Requires the employer to anticipate what the premises will be
used for and to inspect them to make sure they are safe.

Case examples
•
anticipate that the roof of an employee’s washroom
building would be used by an electrician in running
a temporary conduit from one part of the premises
to another. Burmek v. Miller Brewing Co., 12 Wis.
2d 405 (1961).
•
to anticipate that a service driveway would be used
by a jaywalking pedestrian. Schwenn v. Loraine
Hotel Co., 14 Wis. 2d 601 (1961).

Note on “Warnings”: a warning does not fulfill the safeplace duty, but rather merely provides ground for
asserting contributory negligence in the event warning is
ignored by plaintiff. Gould v. Allstar Ins. Co., 59 Wis. 2d
355, 364 (1973).
o Leasee Exception

•
Wendt v. United Government Services, 277 Wis. 2d 873
(Wis. App. 2005): Grocery franchise leased property in
strip mall. Plaintiff customer slipped and fell in parking
lot. Court held that property owner – not grocery
franchise – was liable under safe place statute for slip and
fall in parking lot because lease agreement obligated
property owner to remove snow, and grocery store only
obligated to pay pro rata share of snow removal costs.
Duty to provide not just a safe place but also safe employment.
Owners
•
“every person . . . having ownership, control or custody of any place of
employment or public building, OR of the construction, repair or
maintenance of any place of employment or public building, OR who
prepares plans for the construction of any place of employment or
public building.”
•
In Gordon v. Schultz Sav-O Stores, Inc., 54 Wis. 2d 692, 196 N.W.2d 633 (1972),
the Supreme Court of Wisconsin determined that a grocery store did not have
dominion and control over an adjacent parking lot so as to transform it into a
place of employment. Id. at 698. In Gordon, a plaintiff fell in a city-owned
parking lot after exiting a grocery store. Id. at 694-95. The city had entered into
an agreement with a private company to pave the parking lot, keep it clear of ice
and snow, control traffic movement, and designate parking spaces. Id. at 694.
The grocery store leased the premises from the private company and under the
terms of its lease, the private company had the duty to maintain the parking lot
and the power to change its layout. Id. at 695. The grocery store’s use of the
parking lot was subject to the agreement between the city and the private
company. Id. at 694-95. The grocery store shared in the cost of maintaining the
parking lot. Id. at 695. The grocery store operated the lights to the parking lot
from inside its store and had markings on the surface of the lot directing the flow
of traffic to enable its customers to drive into the parcel pickup area. Id. at 697.
•
Duty of Owner of “Place of employment”
o Very broad, but not as broad as duty of “employer” because
owner has less control than employer.
Statutory Duty
By its plain terms, the statute (Wis. Stat. § 101.11) imposes 3 duties on
owners of places of employment or public buildings:
1. Duty to construct,
2. Duty to repair, and
3. Duty to maintain
a safe place of employment or public building.
“The mere fact that an accident happens does not prove that the place
was unsafe.” Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102
N.W.2d 222, 224 (1960) (citing Heckel v. Standard Gateway Theater, 229 Wis.
80, 281 N.W. 640 (1938)).
Same rule applies to common-law negligence: Our Supreme Court
stated that “common law does not contemplate that all accidents or mishaps
must arise as a consequence of fault.” Millonig v. Bakken, 112 Wis. 2d 445,
452, 334 N.W.2d 80 (1983).
The Wisconsin Safe-Place Statute does not make an owner of the
premises the insurer of the safety of a frequenter. Kaufman v. State Street
Ltd. Partnership, 187 Wis. 2d 54, 59, 522 .N.W.2d 249 (Ct. App. 1994);
Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102 N.W.2d 222 (1960);
Low 54 Wis. at 253.
Conditions Covered
For employers and owners of places of employment
(A) structural defects,
(B) unsafe conditions associated with the structure, and
(C) unsafe conditions unassociated with the structure
Structural Defects
• defect would be “structural” if it resulted by reason of the materials
used in construction or from improper layout or construction
• Case Examples
i. steps do not have non-slip surface as required by agency
orders
ii. steps leading to unsafe ground
iii. where steps are so located as not to be anticipated
iv. absence of a handrail on stairways
v. where balcony rail was too low
vi. where a nail protruded from a floor
vii. a projecting fire extinguisher at a turn in the corridor
viii.  generally any violation of industrial commission
building code would amount to a structural defect
Conditions Associated with a Structure
• those which involve the structure (or the materials with which it
is composed) becoming out of repair or not being maintained in a
safe manner
• Case examples
i. Failure to turn on a light
ii. unnecessary accumulation of ice on floor of cold storage
plant
iii. clothing racks placed in a department store aisle
• Snow and Ice Considerations
•
i. Does your downspout drain on sidewalks or where
customer/employee walk?
ii. Does water in parking lot accumulate around parking lot
surface drain where there is customer/employee traffic?
iii.  If so, these areas need to be remedied or given more
attention
Conditions Unassociated with Structure
•
Probably the category most applicable to slip and fall cases
•
Range from all varieties of unsafe physical conditions not related to the
structure which exist on a place of employment, to unsafe methods and
processes of doing work
•
Case examples
o
o
o
o
o
ice forming on a private sidewalk servicing the premises;
floor slippery by reason of snow or rain being blown in;
salad dressing spilled on stairway of store;
defective plank provided for travel over road under construction;
an improvised diving board at YMCA pool;
o a pail of cleaning water left in corridor during mopping operation;
o a defective runway between lumber pile and work area;
o an insufficiently protected open stairwell in building under
construction;
o an inadequately shored trench OR pile of stones Or pile of
lumber;
o improvised ramp incapable of supporting machinery
Notice or Knowledge of Defect
•
Structural Defect (notice irrelevant)
o safe-place liability regardless of whether owner or employer knew
that such defect existed
•
Conditions associated with the structure/Conditions unassociated with
the structure
(notice or constructive notice required)
o no liability attaches to the employer or owner of a public building
until he or she has (1) “either actual or constructive notice
of such defects,” and (2) opportunity “to remedy the
situation and avoid the accident.”
o “The Courts engrafted the notice requirement onto the safe-place
statute. The reason was fundamental fairness.” Megal v. Green
Bay Area Visitor and Convention Bureau, Inc., 2003 WI App 230,
¶ 20, 672 N.W.2d 105 (Ct. App. 2003).
o It would seem that in order to make an employer liable for
defects in the nature or repair or maintenance he should have
either actual or constructive notice of such defects. Natural
principles of justice would seem to require that. Such principles
of justice are required by the common law . . . In accordance with
these natural principles of justice, [we] hold that the duty of the
employer to repair or maintain his place of employment does not
arise until he has either actual or constructive notice of the
defect.
Barry v. Employers Mut. Cas. Co., 2001 WI 101, 245 Wis.2d 560, 630 N.W.2d
517 (2001).
o To prove that an owner had actual notice, a plaintiff must show
that the owner or employer actually discovered the hazardous
condition and failed to make it safe. Wallow v. Zupan, 35 Wis.
2d 195, 200, 150 N.W.2d 329 (1967).
o
In May v. Skelly Oil, 83 Wis. 2d 30, 34-35, 264 N.W.2d 574, 576
(1978), the plaintiff truck driver allegedly slipped and fell while
walking on top of a tanker-trailer, on which the non-skid paint
surface had worn down. The court found no evidence that any
other driver or employee of the truck line had observed or
reported a defect in the painted surface; consequently, the court
held that the truck line did not have actual notice of the defect.
Id. at 36.
o “Of course, if the time of the defect's existence cannot be shown,
constructive knowledge cannot be predicated thereon.” Boyle1,
at 164 (citing Boutin v. Cardinal Theatre Co., 267 Wis. 199, 205
(1954) (“Without proof that the defect had existed so long that a
vigilant owner would have discovered and repaired it before [the
plaintiff was injured], the safe-place statute ... imposes no
liability on any owner whether inattentive or not.”); see also
Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 522 N.W.
2d 249, 252 (Ct. App. 1994).
•
Constructive Notice
o “Constructive notice of course is neither notice nor knowledge,
but a mere shorthand expression . . . [used] when[,] for the
promotion of sound policy or purpose[,] he is to be treated as if
he had actual notice, whether or not he had it in fact.” Uhrman
v. Cutler Hammer, Inc., 2 Wis. 2d 71, 75, 85 N.W.2d 772, 774
(1957).
o Jury instruction: 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
o “Ordinarily, constructive notice cannot be found when there is
no evidence as to the length of time the condition existed.”
1
Howard H. Boyle, Jr., WISCONSIN SAFE-PLACE LAW REVISED 139 (2000).
Kaufman v. State St. Ltd. Pshp., 187 Wis. 2d 54, 59, 522 N.W.2d
249, 251 (1994). (emphasis added). This is because without
“length of time” evidence, “there is no basis upon which a jury
could reasonably conclude that a vigilant owner would have
discovered [the hazardous condition].” Id. at 59-60, 62-63.
o Circumstances
•
Most common: where the unsafe condition “had existed
for a sufficient length of time to afford the owner or
employer [or an agent or employee thereof] opportunity to
discover and remedy the situation.”
•
•
Case examples:
o where plaintiff’s fall on an icy sidewalk
occurred at 10:30 a.m., the record indicated
that the area was slippery at 6:00 a.m., and
defendant’s maintenance man arrived at the
scene at 6:00 o’clock on the morning in
question. Werner v. Gimbel Brothers, 8 Wis.
2d 491 (1959); Caldwell v. Piggly Wiggly
Madison Co., 32 Wis. 2d 447 (1966) (fifteen
minutes where defect readily observable by
employees).
• Time may depend on Operations
•
o There is an exception to the general constructive notice rule,
called the “Strack” exception. It applies only when there is “a
reasonable probability that an unsafe condition will occur
because of the nature of the business and the manner in which it
is conducted. . .” Strack, 35 Wis. 2d at 57-58. . .
o Strack created an exception to the ordinary notice rules. The
exception, however, is very narrow. It has only been applied in
self-service situations such as the produce department of a
grocery store (Strack) or a cosmetics counter (Steinhorst).
Megal v. Green Bay Area Visitor & Convention Bureau, Inc.,
2004 WI 98,. at ¶7, ¶8 and ¶21.
•
Strack v. The Great Atlantic & Pacific Tea Co.
Kaufman Case
Banana in Parking Lot Case
Customer at grocery store fell on a banana in the parking lot. The plaintiff was the
Prune
Self-Service
Produce Grocery Aisle
customer of a grocery store on her way back to her ovehicle
in ainparking
lot the store
shared with other shopping center tenants. The plaintiffcase
slipped on a piece of banana that
she did not notice when she entered the store forty-five
minutes
earlier.was shopping at a grocery store
o The plaintiff
and slipped on a prune that had fallen to the
The trial court dismissed plaintiff's claim observing that
therefrom
was a
noself-service
evidence thatdisplay.
any
floor
Plaintiff was
defendant had actual or constructive notice sufficient tounable
make them
liable
under
the
safe
to prove how long the prune had been
place statute or ordinary negligence.
on the floor. The store had a policy to check
the floors every ten minutes. They would also
Court distinguished Stack (prune case) based on forseeability
control
 banana
sweep and
when
necessary
andwas
at least once an
in parking lot and not inside the store in fresh produce hour.
aisle - parking
lot
was
accessible
However, on the store’stoaccident report
shoppers of more than one store and to any motorist orthe
pedestrian
the lot for and last
time ofwho
theentered
last inspection
other purposes
sweeping was left blank
o Court said although Plaintiff could not prove
how long prune was on floor, store was still
liable. Court said that given the method of
operation and nature of merchandise,
grocery store has a much shorter period of
time and possibly no appreciable period of
time under some circumstances to constitute
constructive notice.
Other Considerations
Contributory Negligence
•
•
Applies to safe-places
Person required to “proceed cautiously in strange surroundings,” to
“heed definite warnings and advice,” to “obey instructions,” to “seek the
way of least danger”
•
Burden is on defendant. Can be a high burden to meet: Only where a
person “with full knowledge of the existing danger and with a free
choice of acting either so as to avoid that danger or so as to expose
himself to it, deliberately or carelessly acts in the latter manner.”
o “One is not bound, absolutely, to see every defect in his pathway
which is plainly observable nor to remember the existence of
such defects of which he has knowledge;” nor to inspect
premises for hazards
•
Case examples
o Plaintiff took a route from parking place to building which was
not intended as an access way when he could have just as well
taken intended access way
o plaintiff ignored a safe way to enter onto platform and failed to
see clearly visible metal plate and put his knee on an object
which he knew was slippery
Summary Judgment Opportunities and Tips
•
Lack of any proof of notice or evidence that the hazard existed long
enough that a reasonable owner would have noticed it and corrected it.
•
Jury would have to speculate to conclude that owner had notice. See
Merco Distribution Corp. v. Commercial Police Alarm Co., 84 Wis. 2d
455, 460, 267 N.W.2d 652, 655 (1978):
•
“The mere fact that an accident happens does not prove that the place
was unsafe.” Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102
N.W.2d 222, 224 (1960) (citing Heckel v. Standard Gateway Theater,
229 Wis. 80, 281 N.W. 640 (1938))
Where there are multiple equally possible causes and the incident
may be attributed to a condition to which no liability attaches, or one to
which liability attaches, and there is no credible evidence upon which a
trier of fact can make a reasoned choice between the two possible
inferences, any finding of causation is speculation and conjecture.
Merco Distribution Corp. v. Commercial Police Alarm Co., 84 Wis. 2d
455, 460, 267 N.W.2d 652, 655 (1978).
The Wisconsin Supreme Court has stated as follows:
Speculation and conjecture apply to a choice between
liability and non-liability when there is no reasonable basis
in the evidence upon which a choice of liability can be
made. Luke v. Northwestern National Cas. Co., 31 Wis. 2d
530, 536, 143 N.W.2d 482 (1966), quoted in United States
Fidelity & Guarantee Co. v. Frantl Industries, Inc., 72 Wis.
2d 478, 489, 241 N.W.2d 421 (1976). A mere possibility of
such causation is not enough; and when the matter
remains one of pure speculation or conjecture where
the probabilities are at best evenly balanced, it
becomes the duty of the court to direct a verdict for
the defendant. Prosser, Law of Torts, 241 (4th Ed. 1971).
(Emphasis added)
Merco Distribution Corp., supra at 460.
“The mere fact that an accident happens does not prove that the place
was unsafe.”
Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102
N.W.2d 222, 224 (1960) (citing Heckel v. Standard Gateway Theater, 229 Wis.
80, 281 N.W. 640 (1938)) Rather, in order to create liability under the Safe
Place Statute, a plaintiff must prove three elements:
[T]hat a defect or hazardous condition existed, that
such condition caused the injury, and that it had
existed for a sufficient length of time to afford the
owner or employer opportunity to discover and
remedy the situation.
Id. (citing Boutin v. Cardinal Theatre Co., 267 Wis. 199, 64 N.W.2d 848
(1954)).
“[W]here an unexplained accident may be attributable to one of several
causes,” res ipsa loquitur does not apply. Turk v. H.C. Prange Co., 18 Wis. 2d
547, 554, 119 N.W.2d 365 (1963).
In Kaufman, the plaintiff slipped on a banana peel and fell in the joint
parking lot for the Walgreens and Pick ‘N Save stores. 187 Wis. 2d at 56-57.
The trial court granted summary judgment to the defendants, finding that
they could not be liable under common law negligence or the Safe Place
Statute because there was no actual or constructive notice of the hazardous
condition in the parking lot. Id. at 57-58. Affirming the trial court’s decision,
the Wisconsin Supreme Court noted that there was no evidence of how long
the banana was in the parking lot, and any conclusion in that regard was
purely speculation. Id. at 65. The Kaufmann court stated:
Accordingly, for constructive notice to exist, the
Kaufmans would have to establish that the banana
was on the parking lot long enough for a vigilant
owner to discover and remove it. We conclude that
because the Kaufmans offered no “length of time”
evidence, the submissions on summary judgment
failed to establish the existence of an essential
element to their case and, therefore, the trial court
correctly determined that the defendants did not
have constructive notice.
187 Wis. 2d at 65 (internal quotations and citations omitted).
In Dierkes v. White Paving Co., 229 Wis. 660, 665–66, 283 N.W. 446
(1939), the Wisconsin Supreme Court ordered a plaintiff’s complaint
dismissed where there was no evidence that the hazardous condition was
caused by the defendant or existed for such a period that the defendant
should have discovered and remedied the condition. In Dierkes, the plaintiff
was injured when a wooden plank collapsed under her. Id. at 663. The
single plank was placed across a muddy construction area so that pedestrians
could walk from the sidewalk curb down to the street car tracks.
Id.
“Testimony offered by defendant was to the effect that its practice when the
street was muddy was to lay planks between the curb and street car tracks,
but that single planks were never used; that two twelve inch planks were
cleated together side by side to furnish a passageway.” Id. The defendant
produced further evidence that “planks were occasionally laid by others.” Id.
The court explained that the defendant paving company was not liable, under
either the safe place statute or a general negligence theory, because there
was no evidence that the paving company created the condition or had notice
of it:
The situation then amounts to this. A single plank
was laid upon this intersection; the defendant
never laid anything but double planks fastened
together. We are asked to permit the jury to infer
that defendant laid the single plank. This we
cannot do. The desired conclusion is not supported
by the premise. It will not do to assert that the jury
may have disbelieved the testimony that double
planks were invariably laid by defendant. That
does not create evidence—it destroys defendant’s
evidence without leaving any residue of proof that
the planks in question were laid by defendant. Here
the plank was not preserved, identified, or traced to
its source. We have nothing to go on except
evidence of customary procedures by defendant,
and these do not include the setting out of single
planks. . . . [T]he possibility of planks having been
placed by others cannot reasonably be rejected, and
this puts the entire issue of fact within the field of
conjecture or guess. . . .
There being no evidence that will warrant
the inference that defendant set out the plank, the
only remaining question is whether the evidence
will sustain a conclusion that defendant in the
exercise of ordinary care should have known that it
was in the street. . . . The difficulty which makes it
impossible to give an affirmative answer to this
question is that there is no evidence as to when
or under what circumstance the plank was
placed in the street. . . . [W]e cannot exclude a
reasonable possibility that the plank may have
been set out at such a time and under such
circumstances as to have made it impossible for
defendant to have discovered it in time to remedy
the situation and avoid the accident. This being
true, we are forced to conclude that in the state of
the record, the jury could only dispose of this
issue favorably to plaintiff by the process of
guess or conjecture.
The foregoing disposes of this appeal both on
the issue of negligence and that in respect to
violation of the safe-place statute. If the evidence
does not warrant the inference that defendant in
the exercise of ordinary care should have
discovered and remedied the defect, there are no
grounds upon which to predicate negligence. As to
the safe-place statute, it is the rule that an
employer is not liable unless he has actual or
constructive notice of a condition of maintenance
that renders a place of work unsafe. . . . [T]he
doctrine is applicable here, and as applied to the
facts compels the conclusion that plaintiff failed as
a matter of law to establish a violation of the safeplace statute.
Id. at 664-66 (emphasis added).
Duty to Warn.
Pagel v. Marcus Corp., 2008 WI App 110, ¶ 12, 313 Wis. 2d 78, 756
N.W.2d 447. Pagel clearly holds, “[w]hen a danger is open and obvious to a
reasonable person, warning of what a reasonable person already knows is
unnecessary; thus, the failure to warn cannot be negligent.” Id. __
USE OF THE STATUTE OF REPOSE TO DEFEAT
SAFE PLACE (and negligence) CLAIMS BASED
UPON STRUCTURAL DEFECTS
The Statute Of Repose
893.89 Action for injury resulting from improvements to real
property.
893.89(1)(1)In this section, "exposure period" means the 10 years
immediately following the date of substantial completion of the
improvement to real property.
(2)Except as provided in sub. (3), no cause of action may accrue and
no action may be commenced, including an action for contribution or
indemnity, against the owner or occupier of the property or against
any person involved in the improvement to real property after the end
of the exposure period, to recover damages for any injury to property,
for any injury to the person, or for wrongful death, arising out of any
deficiency or defect in the design, land surveying, planning,
supervision or observation of construction of, the construction of, or
the furnishing of materials for, the improvement to real property. This
subsection does not affect the rights of any person injured as the
result of any defect in any material used in an improvement to real
property to commence an action for damages against the
manufacturer or producer of the material.
(3)
(a) Except as provided in pars. (b) and (c), if a person sustains
damages as the result of a deficiency or defect in an improvement to
real property, and the statute of limitations applicable to the damages
bars commencement of the cause of action before the end of the
exposure period, the statute of limitations applicable to the damages
applies.
(b) If, as the result of a deficiency or defect in an improvement to real
property, a person sustains damages during the period beginning on
the first day of the 8th year and ending on the last day of the 10th
year after the substantial completion of the improvement to real
property, the time for commencing the action for the damages is
extended for 3 years after the date on which the damages occurred.
(c) An action for contribution is not barred due to the accrual of the
cause of action for contribution beyond the end of the exposure period
if the underlying action that the contribution action is based on is
extended under par. (b).
(4)This section does not apply to any of the following:
(a) A person who commits fraud, concealment or misrepresentation
related to a deficiency or defect in the improvement to real property.
(b) A person who expressly warrants or guarantees the improvement
to real property, for the period of that warranty or guarantee.
(c) An owner or occupier of real property for damages resulting from
negligence in the maintenance, operation or inspection of an
improvement to real property.
(d) Damages that were sustained before April 29, 1994.
(5)Except as provided in sub. (4), this section applies to
improvements to real property substantially completed before, on or
after April 29, 1994.
(6)This section does not affect the rights of any person under
102.
ch.
When the legislature enacts a statute of repose, it expressly chooses not to
recognize rights after the conclusion of the repose period. Wenke v. Gehl, 2004 WI 103,
¶ 24, 274 Wis. 2d 220, 682 N.W.2d 405. Once the specified amount of time has been
reached, a statute of repose does not merely extinguish a party's remedy, it extinguishes a
plaintiff's right to recovery all together. Kohn v. Darlington Cmty. Schools, 2005 WI 99,
¶ 38, 283 Wis. 2d 1, 698 N.W.2d 794.
Structural defect hazards arise from design or construction flaws when a building
element is put in place, regardless whether it is an original part of a structure or an
addition/replacement. Wagner v. Cincinnati Cas. Co., 2001 WI App 85, ¶¶ 26-28, 334
Wis.2d 516, 800 N.W.2d 27.
Examples of structural defects include a front step of insufficient height that was
unchanged since it was constructed (Rosario v. Acuity & Oliver Adjustment Co., 2007
WI App 194, ¶ 22, 304 Wis. 2d 713, 738 N.W.2d 608); a floor drain that had existed
since the building's construction (Mair, 2006 WI 61, ¶ 2); the lack of a handrail along a
staircase (Harnett v. St. Mary's Congregation, 271 Wis. 603, 614, 74 N.W.2d 382
(1956)); a trap door that was not surrounded by a railing (Wanmacher v. Baldauf Corp.,
262 Wis. 53, 539, 557 N.W.2d 745 (1953)); a balcony railing that was too low (Frion v.
Coren, 13 Wis. 2d 300, 303-04, 108 N.W.2d 563 (1961)); and a false ceiling that did not
support a worker's weight (Bellmann v. Nat'l Container Corp. of Mich., 5 Wis. 2d 318,
319-25, 92 N.W.2d 762 (1958)).
In contrast, the statute of repose does not bar safe place claims arising from
injuries caused by unsafe conditions associated with the structure as long as the
defendant had actual or constructive notice of the defect. Mair, 2006 WI 61, ¶ 23;
Rosario, 2007 WI App 194, ¶ 16. Conditions associated with the structure are defined as
conditions "which involve the structure (or the materials with which it is composed)
becoming out of repair and not being maintained in a safe manner." Bayer v. Employers
Mut. Cas. Co., 2001 WI 101, ¶ 25, 245 Wis. 2d 560, 630 N.W.2d 517. Examples of
unsafe conditions associated with the structure include a loose stairway nosing (Barry,
2001 WI 101, ¶ 131); a loose window screen (Wright v. St. Mary's Hosp. of Franciscan
Sisters, 265 Wis. 502, 503, 61 N.W.2d 900 (1954)); and an improperly connected
elevator motor (Kaczmarski v. F. Rosenberg Elevator Co., 216 Wis. 553, 257 N.W. 598,
600 (1934)). In other words, an unsafe condition associated with a structure "arises from
the failure to keep an originally safe structure in proper repair or properly maintained."
Rosario, 2007 WI App 194, ¶ 15 (emphasis in original) (internal citations omitted).
In Mair, the plaintiff was injured when she tripped on a recessed floor drain that
had not been modified since its original construction 30 years earlier. Mair, 2006 WI 61,
¶¶ 3, 24. The plaintiff argued that the failure to modify the drain to comply with modern
safety standards created an unsafe condition associated with the structure. Id. ¶ 25. The
Supreme Court rejected this argument, stating that "[b]ecause the design and placement
of the floor drain and the condition of the surrounding floor have nothing to do with a
failure to repair or maintain the property, they can be classified only as structural defects
rather than unsafe conditions associated with the structure." Id.
Similarly, in Rosario, the plaintiff was injured when she fell on a step that
violated a Wisconsin building code. Rosario, 2007 WI App 194, ¶ 2. In Rosario, the
step had been completed during construction of the 40 year old building, "beyond the tenyear exposure period of the statute of repose." Id. ¶ 4. The court held that "[b]ecause the
undisputed facts clearly demonstrate that [the plaintiff]'s injuries were caused by the
defective structural design of the front step, her claim is subject to the statute of repose
and any consequence of its application." Id. ¶ 19. The court cited Mair in stating that "in
no uncertain terms . . . Wis. Stat. § 893.89 bars safe place claims resulting from injuries
caused by structural defects beginning ten years after a structure is substantially
completed." Id. ¶ 21.
A.
A statute of repose is a statute that bars actions based on
personal injury or property damage that occur after a specified
period of time. Section 893.89, Stats. is a statute of repose that
applies to improvements to real property.
1.
Subsection (1) of this statute provides that the “exposure
period” is 10 years immediately following the substantial
completion of the improvement to real property.
2.
Subsection (2) provides, in relevant part:
No cause of action may accrue and no action
may be commenced, including an action for
contribution or indemnity, against the owner
or occupier of the property or against any
person involved in the improvement to real
property after the end of the exposure period,
to recover damages for any injury to
property, for any injury to person, or for any
wrongful death, arising out of any deficiency
or defect in the design, land surveying,
planning, supervision, or observation of
construction of, the construction of, or the
furnishing of materials for, the improvement
to real property.
III.
Mair v. Trollhaugen Ski Resort, 2005 Wis. App. 116, decided May 3,
2005.
A.
In Mair, the plaintiff was injured in the bathroom of the
defendant ski resort when she stepped on a recessed floor drain,
lost her footing and broke her leg. The incident occurred in
January of 2001. The resort was constructed in 1976. Plaintiff’s
premises expert testified that, according to industry standards,
the drain should have been level with the floor. The defendant
ski resort moved for summary judgment contending that
plaintiff’s claims were barred by the statute of repose cited
above. It was contended that because the resort was constructed
in 1976, any claims relating to the design and construction of
the bathroom were barred after 1986.
1.
The Mair court held that, to the extent that Mair’s safe
place claim was based on a structural defect, the claim
was barred by the statute of repose.
Both the statute of repose and the safe place
statute explicitly address construction. We
see no ambiguity in either statute. Nor has
Mair argued that either statute is
ambiguous. If a statute is not ambiguous,
we must apply its plain meaning. (Citation
omitted) Therefore, we conclude that to the
extent that Mair’s safe place claim is based
on defective construction of the bathroom
floor, the claim is barred by the 10-year
statute of repose. Id. at ¶ 10.
2.
The Mair court acknowledges that the statute of repose
would not bar safe place claims based on failure to
properly repair or maintain.
Mair argues, however, that the safe place
statute imposes an ongoing duty to furnish a
safe building. She is correct. The owner’s
duty has three parts: (1) construct, (2) repair
and (3) maintain. See Wis. Stats. § 101.11(1).
Even though liability for a defective
construction may be eliminated by the
statute of repose, the owner still has a
continuing responsibility to repair and
maintain the premises.
3.
The Mair court held that the ski resort could not be held
responsible under the Safe Place Statute for improper
repair or maintenance because it had no notice that there
was a problem with either.
The second type of condition is an unsafe
condition associated with the structure of the
building. This ‘arises when an originally safe
structure is not properly repaired or
maintained.’ (Citation omitted) It ‘arises
from a breach of the statutory duty to repair
or maintain…” (Citation omitted). In this
situation, the owner is liable only if the
owner had actual or constructive notice of
the defect. (Citation omitted).
Here, there is no evidence of actual or
constructive notice that the recessed drain
was unsafe. No one had ever fallen in this
location before, and there is no evidence that
Trollhaugen knew, or in the exercise of
reasonable care, should have known, that the
condition
was
unsafe.
Therefore,
Trollhaugen cannot be held liable for
violating an ongoing duty to keep the
premises safe.
Id. at ¶¶ 13, 14.
II.
Improvement To Real Property Under § 893.89.
In Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 386 (1975), the
Wisconsin supreme court established the test for whether a feature of the
premises constitutes an improvement to real property. That test is simply
whether the feature falls under the Websters dictionary definition of
“improvement:” “ [A] permanent addition to or betterment of real property
that enhances its capital value and that involves the expenditure of labor or
money and is designed to make the property more useful or valuable as
distinguished from ordinary repairs.” Kallas, 66 Wis. 2d 386 citing Webster's,
Third International Dictionary (1965).
The Kallas court was faced with the question of whether a “high pressure
water system designed for fire protection” was an improvement to real
property under the 1975 version of the statute of repose. Although the court
held that the statute of repose was unconstitutional on equal protection
grounds, it found that the water system constituted an improvement that
would have triggered the application of the statute of repose.
Since Kallas, the statute of repose has been amended numerous times, and
in1993, was repealed and recreated. 1993 Wis. Act 309. Since the legislature’s
act of 1993, § 893.89(2), has repeatedly withstood constitutional attack and
has been held to bar numerous claims. See Kohn v. Darlington Cmty. Sch.,
2005 WI 99 ¶ (barring claim for injury caused by 30-year old high school
bleachers; Mair v. Trollhaugen Ski Resort, 2006 WI 61 ¶ (barring claim for
trip-and-fall injury caused by restroom floor drain that had existed for longer
than 10 years); Hocking v. City of Dodgeville, 2010 WI 59 ¶ (barring claim for
flood damage brought against municipality for its allegedly negligent
maintenance of the street and drainage system).
Even though Kallas invalidated the 1975 statute of repose, the supreme court
has recently invoked the test from Kallas for identifying “improvements.” See
Kohn v. Darlington Cmty. Sch., 2005 WI 99 ¶17. The plaintiff in Kohn was
injured after falling through bleachers at a high school. Id. at ¶2. She sued
the school district and manufacturer alleging negligent design, construction,
and maintenance of the bleachers, and claimed that the bleachers were
inherently unsafe. Id. at ¶6. The bleachers had not been moved or dissembled
in over 30 years. Id. at ¶27. Since the plaintiff’s injury arose out of an alleged
deficiency or defect in the design, planning, supervision or observation of
construction of, or the construction of the bleachers, the statute of repose
would apply to bar the claim as long as the bleachers were an “improvement
to real property” for purposes of the statute of repose. See id. at ¶10.
Applying the definition test from Kallas, the supreme court held that the
bleachers were an improvement. First, the bleachers were considered
“permanent” even though it was physically possible to dissemble them. Due
to the bleachers’ size and fixed location, the court held that the first part of
the definition was met.
The court further held that the second and third parts of the Kallas definition
test, which require that the permanent addition to the property must
“enhance[] its capital value and . . . involve[] the expenditure of labor or
money and [be] designed to make the property more useful or valuable as
distinguished from ordinary repairs,” id. at ¶28 quoting Kallas at 386, were
met. It reasoned that the school district spent over $16,000 on the purchase
and installation of the bleachers, and that a football stadium and track with
a set of bleachers is more useful and valuable than an empty field and track.
Id. at ¶29. Also, the installation of bleachers was clearly not an “ordinary
repair.” Id. The court went on to uphold the constitutionality of Wis. Stat. §
893.89(2) (2001-2001), which is identical to the current version of the statute
of repose. § 893.89 (2009-2010). Id. at 386. __
Kohn v. Darlington Community Schools, 283 Wis. 2d 1, ¶ 89,689
N.W.2d 794 (2005) (statute of repose for improvements to real property
does not violate the constitutional right to a remedy under Article I
Section 9 of the Wisconsin Constitution.)
III.
Condition versus Maintenance
Statute of repose only applies to defective conditions, not to allegations of
improper maintenance.
You will need to show that the plaintiff’s theory really goes to a problem with
the original construction or improvement, not poor maintenance of an
otherwise safe condition.
However, the same argument was rejected by the Hocking court. The court
held:
The text of the statute distinguishes between suits arising
from "design" or "planning" defects, which explicitly fall
within the statute of repose, and suits arising from
negligent
maintenance
of
the
property
under
§ 893.89(4)(c). If the improvement causes damage due to
poor design, a plaintiff has ten years to assert his or her
rights. Construing the phrase "maintenance, operation or
inspection of an improvement to real property" to mean
maintenance or operation of a nuisance would create an
exception that swallows the rule. This is so because every
improvement that is negligently designed could be
considered an ongoing nuisance that the owner or
operator negligently maintains by failing to correct.
. . .
Thus, when an improvement to real property creates a
nuisance, a party has ten years from the substantial
completion of that improvement to bring suit. Section
893.89(4)(c) applies, however, when an improvement to
real property is completed, but the owner or occupier is
negligent in the maintenance, operation, or inspection of
it, thus causing damage. It does not apply to proper
maintenance of an improvement when it is the
improvement itself that causes injury.
Id. at ¶¶ 47, 49.
IV.
Structural defect versus unsafe condition
A structural defect is defined as “a hazardous condition inherent in the
structure by reason of its design or construction.” Barry v. Employers Mutual
Casualty Company, 2001 WI 101, ¶ 28, 245 Wis.2d 560, 630 N.W.2d 517. By
comparison, an “unsafe condition is “the failure to keep an originally safe
structure in proper repair or properly maintained.” Mair v. Trollhaugen Ski
Resort, 2006 WI 61, ¶ 23, 715 N.W.2d 598.
V.
Substantial Completion
The standard for substantial completion of an improvement to real property was
set forth in Holy Family Catholic Congregation v. Stubenrauch Association, 136 Wis.
2d 515, 523, 402 N.W.2d 382, 386 (Ct. App. 1987). In Holy Family, the Court of
Appeals held:
[The statute of repose] period should begin to run when planners,
designers, and contractors lose a significant amount of control
over the improvement. A convenient and fair measure of the time
when control over the improvement shifts from the builders to the
owner is the date "when construction is sufficiently completed so
that the owner or his representative can occupy or use the
improvement for the use it was intended."
Id. (internal citations omitted). The date of substantial completion is a question of law.
Id. at 524-25.
VI.
Failure to Warn
In both Mair, 2006 WI 61 at ¶ 26; and Rosario, 2007 WI App 194 at ¶ 27.the
courts held that the party opposing summary judgment failed to show a failure to warn
caused the plaintiff's injuries and granted summary judgment based on the statute of
repose. Id. In Rosario, the party opposing summary judgment even provided expert
testimony that the failure to warn caused the plaintiff's fall, which the court rejected. Id