STATE OF WISCONSIN
RETAIL COMPENDIUM OF LAW
Prepared by
Paul D. Curtis
Axley Brynelson
2 E. Mifflin Street
P.O. Box 1767
Madison, WI 53703
Tel: (608) 283-6768
Email: pcurtis@axley.com
www.axley.com
2015 USLAW Retail Compendium of Law
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Table of Contents
I. Safe-Place Law ....................................................................................................................... 3
A. Generally ............................................................................................................................ 3
B. Cause of Action .................................................................................................................. 4
C. Duty of Care ....................................................................................................................... 4
D. Persons Liable .................................................................................................................... 5
E. Places Protected .................................................................................................................. 9
F. Persons Protected .............................................................................................................. 10
G. Conditions Creating Liability........................................................................................... 11
H. Exclusions ........................................................................................................................ 13
I. Public Sidewalk Liability .................................................................................................. 14
J. Legal Standards ................................................................................................................. 14
II. Sidewalk Snow and Ice Removal ...................................................................................... 17
III. Violent Crimes by Third Parties ..................................................................................... 17
Appendix A: Wisconsin Court Systems .................................................................................... 19
I. The Wisconsin Court System ............................................................................................. 19
A. Wisconsin Circuit Courts ................................................................................................. 19
B. Wisconsin Courts of Appeal ............................................................................................ 19
C. Wisconsin Supreme Court ................................................................................................ 19
D. Citing Wisconsin Cases ................................................................................................... 19
II. The Wisconsin Federal Courts ......................................................................................... 19
III. Wisconsin Rules of Civil Procedure ............................................................................... 19
IV. Wisconsin Rules of Appellate Procedure ....................................................................... 19
V. Wisconsin Rules of Evidence............................................................................................. 20
VI. Wisconsin Limits on Damages against Governmental Bodies ..................................... 20
Appendix B: Court of Appeals District Map ............................................................................ 21
Appendix C: Judicial Administrative Districts Map ............................................................... 22
Appendix D: Wisconsin Civil Jury Instructions ...................................................................... 27
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I. Safe-Place Law
A. Generally
“Safe-place” law is the statutorily required safety standard of care for public buildings and places
of employment. It is unique to Wisconsin. Cross v. Leuenberger, 267 Wis. 232, 236, 65 N.W.2d
35 (1954). The Wisconsin Department of Industry, Labor and Human Relations was created to
implement the provisions of the safe-place law and may therefore make safety orders. Wis. Stat.
§ 101.2(15)(a).
It establishes an absolute duty of care. Rosholt v. Worden-Allen Co., 155 Wis. 168, 175, 144
N.W. 650 (1913).
Safe-place law applies to three areas: A) places of employment, B) public buildings, and C)
employment.
The primary safe-place statute is Wisconsin Statute § 101.11. It states:
(1) Every employer shall furnish employment which shall be safe for the employees
therein and shall furnish a place of employment which shall be safe for employees
therein and for frequenters thereof and shall furnish and use safety devices and
safeguards, and shall adopt and use methods and processes reasonably adequate to
render such employment and places of employment safe, and shall do every other
thing reasonably necessary to protect the life, health, safety, and welfare of such
employees and frequenters. Every employer and every owner of a place of
employment or a public building now or hereafter constructed shall so construct,
repair or maintain such a place of employment or public building as to render the
same safe.
(2)
(A) No employer shall require, permit or suffer any employee to go or be in
any employment or place of employment which is not safe, and no such
employer shall fail to furnish, provide and use safety devices and
safeguards, or fail to adopt and use methods and processes reasonably
adequate to render such employment safe, and no such employer shall fail
or neglect to do every other thing reasonably necessary to protect the life,
health, safety or welfare of such employees and frequenters; and no
employer or owner, or other person shall hereafter construct or occupy or
maintain any place of employment, or public building, that is not safe, nor
prepare plans which shall fail to provide for making the same safe.
(B) No employee shall remove, displace, damage, destroy or carry off any
safety device or safeguard furnished and provided for use in any
employment or place of employment, nor interfere in any way with the use
thereof by any other person, nor shall any such employee interfere with the
use of any method or process adopted for the protection of any employee in
such employment or place of employment or frequenter of such place of
employment, nor fail or neglect to do every other thing reasonably
necessary to protect the life, health, safety or welfare of such employees or
frequenters.
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(3) This section applies to community-based residential facilities as defined in §
50.01(1). Wis. Stat. § 101.11 (2013-14).
“Safe” is statutorily defined when applied to an employment or place of employment as
“such freedom from danger to the life, health, safety or welfare of employees or
frequenters, or the public, or tenants, or fire fighters, and such reasonable means of
notification, egress and escape in case of fire, and such freedom from danger to adjacent
buildings or other property, as the nature of the employment, place of employment, or
public building, will reasonably permit.” Wis. Stat. § 101.01(13).
“Welfare” is defined as including “comfort, decency and moral well-being.” Wis. Stat. §
101.01(15).
B. Cause of Action
The safe-place statute is not a cause of action. It is a duty of care. Krause v. Veterans of
Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960) (“It is well
established that the safe-place statute does not create a cause of action. It merely lays down
a duty of care and if those to whom it applies violate the provisions thereof, they are
negligent”). Violations should be brought as allegations of negligence on the part of the
defendant. Thiel v. Bahr Constr. Co., 13 Wis. 2d 196, 198, 108 N.W.2d 573 (1961).
A violation of the safe-place statute constitutes negligence. Fandrey v. Am. Family Mut.
Ins. Co., 2004 WI 62, ¶ 19, 272 Wis. 2d 46, 680 N.W.2d 345 (citing Krause v. Veterans
for Foreign Wars, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960)). To recover for a safeplace violation, the plaintiff must show that the violation was either the cause of the injury,
or in the failure to act, that the action that safe-place duty was designed to prevent the injury
caused by the failure. Umnus v. Wis. Pub. Serv. Corp., 260 Wis. 433, 438, 51 N.W.2d 42
(1952). Furthermore, the plaintiff must still prove all of the elements of negligence.
Brueggeman v. Continental Casualty Co., 141 Wis. 2d 406, 415 N.W.2d 531 (1987).
The statute only applies to unsafe conditions. It does not apply to negligent acts by third
parties. Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, ¶ 9, 274 Wis.
2d 162, 682 N.W.2d 857 (2004) (internal citations omitted). An employer may only be
found violating the safe-place statute if the employer has implemented a “method” or
“process” that results in the injury and the “method” or “process” can be traced back to the
employer. Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209, 102 N.W.2d 274
(1960).
C. Duty of Care
Safe-place law establishes a duty of care for (1) employers, (2) owners of public buildings, and
(3) owners of places of employment. That duty is to provide employment and to construct, repair
and maintain the premises as free from danger to the life, health, safety or welfare of employees
or frequenters as is reasonably permitted by the nature of the employment, place of employment,
or public building. Wis. Stat. § 101.11.
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The safe-place duty of care is a higher degree of care than the duty of care imposed by commonlaw negligence. Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, ¶ 9, 274
Wis. 2d 162, 682 N.W.2d 857 (2004) (internal citations omitted). Therefore, if there is no breach
of the higher degree of care for safe-place matters, then there is no breach of the common law
duty of care. Merkley v. Schramm, 31 Wis. 2d 134, 142, 142 N.W.2d 173 (1966). However, a
failure of proof for a safe-place claim does not necessarily preclude a common law negligence
claim. Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, 274 Wis. 2d 162,
682 N.W.2d 857 (2004).
Courts have summarized the duty of care as being beyond ordinary or even extraordinary care.
Olson v. Whitney Bros. Co., 160 Wis. 606, 610, 150 N.W. 959 (1915). The premise must be safe,
suitable, and proper so as to eliminate even the remote possibility of personal injury. Kendzewski
v. Wausau S. F. Co., 156 Wis. 452, 455, 146 N.W. 516 (1914). Inconvenience, difficultness, and
impracticality are not excuses for noncompliance. Krueck v. Phoenix Chair Co., 157 Wis. 266,
271, 147 N.W. 41 (1914). Furthermore, employers are expected to “anticipate what the premises
will be used for and to inspect them to make sure they are safe.” Wis. Bridge & Iron Co. v. Ind.
Comm., 8 Wis. 2d 612, 618, 99 N.W.2d 817 (1959).
The duty of care requires only that the owner or employer make his or her place as safe as the
nature of the place will allow. Therefore, the duty of care may be met and the place still be
considered “unsafe” by common sense standards. Olson v. Whitney Bros. Co., 160 Wis. 606,
610, 150 N.W. 959 (1915) (stating that a business “may have been as free from danger as the
place of employment would reasonably permit and yet have been far from actually safe, because
there are many places of employment that are dangerous…”). Furthermore, “safe” is considered
a relative term and does not mean “completely free of any hazards.” Megal v. Green Bay Area
Visitor & Convention Bureau, 2004 WI 98, ¶ 10, 274 Wis. 2d 162, 682 N.W.2d 857 (2004)
(internal citations omitted). Whether an area is safe depends on the facts and circumstances
surrounding the situation. Id.
Additionally, an employer’s duty is greater than solely providing a safe place of
employment, because the employer also has a duty to provide safe employment. Miller v.
Paine Lumber Co., 202 Wis. 77, 227 N.W. 933 (1930). This has included providing safe
instructions, using safe processes and methods, preventing individuals from entering
unsafe areas, warning of possible dangers, protecting employees from crimes committed
by others, and closing any unsafe operation. Likewise, an employer may be subject to
liability for the machinery used in the premises and maintaining sufficient safeguards for
the machinery. Wasley v. Kosmatka, 50 Wis. 2d 738, 744, 184 N.W.2d 821 (1971),
abrogated on other grounds, Henning v. General Motors Assembly Div., 143 Wis. 2d 1,
419 N.W.2d 551 (1988).
D. Persons Liable
Under safe-place law, the following individuals can be held liable: A) employers, B) owners of
public buildings, C) owners of places of employment, and D) architects and builders. This is an
absolute liability and cannot be escaped by delegating their safe-place duty to others. Mickleson
v. Cities Services Oil Co., 250 Wis. 1, 6, 26 N.W.2d 264 (1947). However, if an employer or
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owner relinquishes his or her control to an Independent Contractor, the employer or owner has
fully performed his or her duty at the time control was relinquished. Tiemann v. May, 235 Wis.
100, 292 N.W. 612 (1940).
Employer
“Employer” is defined as “any person, firm, corporation, state, county, town, city, village, school
district, sewer district, drainage district , long-term care district and other public or quasi-public
corporations as well as any agent, manager, representative or other person having control or
custody of any employment, place of employment or of any employee.” Wis. Stat. § 101.01(4).
Fellow employees and third persons cannot be liable under safe-place law. Salus v. Great N. R.
Co., 157 Wis. 546, 147 N.W. 1070 (1914); La Duke v. N. States Power Co., 256 Wis. 286, 286,
41 N.W.2d 274 (1950). Furthermore, the statutory list of “manager, representative, officer, or
other person having control” was not created to impose individual safe-place liability. Eau Claire
Elec. Co-op v. Ind. Comm., 10 Wis. 2d 209, 216, 102 N.W.2d 274 (1960). This list was provided
as access to the employer to hold the employer liable. Id. However, an individual manager,
representative, officer, or other person can be held liable for his own negligence. Pitrowski v.
Taylor, 55 Wis. 2d 615, 627, 201 N.W.2d 52 (1972).
An employer or owner may indemnify him or herself from loss by reason of safe-place law
violation, but such indemnity does not affect the rights of the injured person against said
employer or owner. Umnus v. Wis. Pub. Serv. Corp., 260 Wis. 433, 442, 51 N.W.2d 42 (1952).
Additionally, an insurance policy insuring an employer or owner against liability for negligence
covers such employer or owner in the event of safe-place liability as long as the liability is
merely a species of negligence rather than the basis of an independent cause of action. Ermis v.
Fed. Windows Mfg. Co., 7 Wis. 2d 549, 555, 97 N.W.2d 485 (1959).
An employer may be held liable for a condition created by an independent contractor within the
employer’s place of employment. Jahn v. Nw. Lithographing Co., 157 Wis. 195, 146 N.W. 1131
(1914). However, if the employer has turned complete control over the premise to the
independent contractor, the employer may be relieved of liability. Carlson v. Chicago, 185 Wis.
365, 371, 200 N.W. 669 (1925). Liability will turn on whether the employer retains any control
over the premise. Potter v. Kenosha, 268 Wis. 361, 373, 68 N.W.2d 4 (1955). Additionally, the
employer of an independent contractor may be liable if the employer fails to provide a safe-place
for the independent contractor. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 253 N.W.
579 (1934).
Owner
“Owner” is defined as “any person, firm, corporation, state, county, town, city, village, school
district, sewer district, drainage district and other public or quasi-public corporations as well as
any manager, representative, officer, or other 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. This subchapter shall apply, as consistent, to all architects
and builders.” Wis. Stat. § 101.01(10). A building owner’s duty is non-delegable and there will
likely be a violation of the owner’s duty of care regardless of who caused the violation. Wagner
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v. Cincinnati Cas. Co., 2011 WI App 85, ¶ 37, 334 Wis. 2d 516, 800 N.W.2d 27. However, when
independent contractors have complete control and supervision of the premise, the owner may be
relieved of the duty. Potter v. City of Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955).
The Courts have found all of the following “owners” under safe-place liability: a land grantee
when unsafe conditions arose post-transaction, landlords, a landlord or land contract vendor
when structural defects arose before releasing control of the land, a school district, a county, a
city, a businessmen’s association, a religious organization, a hospital, a seminary, a YMCA, the
federal government, a fraternal association, and a labor association.
Owners of appurtenant premises next to places of employment are subject to liability if the
owner maintains control and custody of the premises. Schwenn v. Loraine Hotel Co., 14 Wis. 2d
601, 111 N.W.2d 495 (1961). However, if the owner of appurtenant land does not have control,
custody, or ownership over the place of business, the owner of the land will not be liable simply
because of physical proximity. Binsfield v. Conrad, 2004 WI App 77, ¶¶ 13-18, 272 Wis. 2d 341,
679 N.W.2d 851 (citing Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26 284 N.W.2d 692
(Ct. App. 1979)).
As defined by statute, liability applies to architects and builders under the definition of “owner.”
Wis. Stat. § 101.01(2)(i). Architects are liable for preparing plans that are as safe as their nature
reasonably permits for public buildings and places of employment. Id. Builders have a similar
liability but for constructing, repairing, or maintaining the public building or place of
employment. Wis. Stat. § 101.01(2)(i).
Individuals who gratuitously permit their premises to be used by others for recreational activity
are immune from liability. Wis. Stat. § 895.52 (defining recreational activity as “any outdoor
activity undertaken for the purpose of exercise, relaxation or pleasure…”). This includes, but is
not limited to: hunting, fishing, trapping, camping, hiking, snowmobiling, berry picking, water
sports, sight-seeing, cutting or removing wood, skiing, skating, ballooning, sledding,
snowmobiling, or climbing of observational towers. Wis. Stat. § 895.52(1)(g). However, liability
will incur if the owner collects money, goods, or services for the use of this land and the
aggregate payments for the recreational activities exceed $2,000 for the year. Wis. Stat. §
895.52(6)(a).
Additionally, managers, representatives, officers, and other persons, as listed in the statute, do
not carry safe-place liability as “owners.” Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 643, 284
N.W.2d 318 (1979).
Owner of Public Building
The duty of an owner of a public building is much narrower than that of an employer. Baldwin v.
St. Peter’s Congregation, 264 Wis. 626, 629, 60 N.W.2d 349 (1953). An owner is liable for the
structural defects of a building and for the unsafe conditions associated with the building.
Williams v. Int’l Oil Co., 267 Wis. 227, 229, 64 N.W.2d 817 (1954). This duty includes liability
for temporary conditions as well. Meyers v. St. Bernard’s Congregation, 268 Wis. 285, 288, 67
N.W.2d 302 (1954). It also includes liability for any structural defects which existed when the
owner bought the building. Wannmacher v. Bauldauf Corp., 262 Wis. 523, 539, 55 N.W.2d 895
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(1952). Furthermore, the owner faces a duty to warn of conditions that may cause accidents.
Helms v. Fox Badger Theatres Corp., 253 Wis. 113, 118, 33 N.W.2d 210 (1948).
An owner is relieved of safe-place liability if complete control of the building has been turned
over to another. Holcomb v. Szymczyk, 186 Wis. 99, 105, 202 N.W. 188 (1925). Likewise,
liability is relieved if an independent contractor is erecting a building for the owner and the
owner has no control over the construction. Connor v. Meuer, 232 Wis. 656, 288 N.W. 272
(1939). However, if the building has a structural defect in it when the owner relinquishes control
the owner may still face safe-place liability, if the owner retains a future interest in the property.
Wannmacher v. Bauldauf Corp., 262 Wis. 523, 539, 55 N.W.2d 895 (1952).
Owner of Place of Employment
The safe-place statute requires that an owner of a place of employment render it as reasonably
safe from danger as the nature of the employment and the place of employment will allow. Wis.
Stat. § 101.11. This includes a duty to maintain or repair. Id. The owner of a place of
employment may face liability for structural defects. Saxhaug v. Forsyth Leather Co., 252 Wis.
376, 31 N.W.2d 589 (1948). An owner may also face liability for unsafe conditions from the
structure. Mennetti v. West Side Businessmen’s Ass’n, 246 Wis. 586, 18 N.W.2d 487 (1945). This
includes a duty to warn of the possibility of harm from the conditions. Sandeen v. Willow River
Power Co., 214 Wis. 166, 177, 252 N.W. 706 (1934). Additionally, an owner may face liability
for unsafe conditions at the place of employment that are not associated with the building, like
unsafe employment conditions. Mickelson v. Cities Service Oil Co., 250 Wis. 1, 26 N.W.2d 264
(1947).
Like owners of public places, if the owner of a place of employment relinquishes complete
control to another, it relieves the owner of liability. Potter v. Kenosha, 268 Wis. 361, 371, 68
N.W.2d 4 (1955).
Independent Contractors
An independent contractor’s liability for safe-place violations will generally depend on the
independent contractor’s control and supervision over the area compared to the owner’s or
employer’s control, especially as defined by contract. Criswell v. Seaman Body Corp., 233 Wis.
606, 623, 290 N.W. 177 (1940). Generally, if there is no evidence of control, beyond an ability to
inspect, then the owner has no safe-place liability. Couillard v. Van Ess, 141 Wis. 2d 459, 463,
415 N.W.2d 554 (Ct. App. 1987).
However, when an independent contractor is himself an employer, then he may be held liable as
an employer for structural defects and unsafe conditions. Bond v. Harrel, 13 Wis. 2d 369, 108
N.W.2d 552 (1961).
Landlords
If there are more than three tenants, a landlord is liable for safe-place violations because the
property is considered a “public building.” Wis. Stat. § 101.01(2)(h); Bewley v. Kipp, 202 Wis.
411, 414, 233 N.W. 71 (1930). Generally, the liability will be that of an “owner of a public
building.” Zeininger v. Preble, 173 Wis. 243, 246, 180 N.W. 844 (1921). If the landlord employs
individuals or the building is a business, then the landlord could be liable as an “employer.”
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Cross v. Leuenberger, 267 Wis. 232, 65 N.W.2d 35 (1954). Likewise, the landlord would be
liable as the “owner of a place of employment” if the tenant uses the building as a place of
employment. Tryba v. Petcoff, 10 Wis. 2d. 308, 313, 103 N.W.2d 14 (1960).
A landlord is liable for structural defects of the property, even if the landlord is divested of
control over the property because of the lease. Powell v. Milwaukee Area Technical College, 225
Wis. 2d 794, 594 N.W.2d 403, 410 (Ct. App. 1999); Frion v. Coren, 13 Wis. 2d 300, 108
N.W.2d 563 (1961).
However, if the landlord’s liability for unsafe conditions is dependent on him having retained
some control over the premise (like right to reentry) and the landlord has actual or constructive
notice of the condition. Wannmacher v. Baldauf Corp., 262 Wis. 523, 538, 55 N.W.2d 895
(1952); Sheehan v. 535 N. Water St., 268 Wis. 325, 332, 67 N.W.2d 273 (1954). Furthermore, a
landlord can only be held liable for unsafe conditions in areas that the landlord has control over
and that are used or allowed to be used or accessed by the general public or tenants. Bewley v.
Kipp, 202 Wis. 411, 414, 233 N.W. 71 (1930).
Governmental Entities
The State of Wisconsin is immune from safe-place liability due to sovereignty. Holzworth v.
State, 238 Wis. 63, 298 N.W. 163 (1941). The federal government would likely be liable for
safe-place violations as “owners.” American Exch. Bank of Madison v. United States, 257 F.2d
938 (7th Cir. 1958). However, the federal government has not been found liable as an
“employer” because their employees are not employed for profit. Presser v. Siesel Constr. Co.,
19 Wis. 2d 54, 64 119 N.W.2d 405 (1963).
However, municipalities, public, and quasi-public corporations have a discretional, not
ministerial, duty under the safe-place definitions of both employers and owners. Wis. Stat. §§
101.01(2)(c), 101.01(2)(i); Spencer v. Cnty. of Brown, 215 Wis. 2d 641, 652, 573 N.W.2d 222
(Ct. App. 1997). These entities have faced liability for violations as owners. Heiden v.
Milwaukee, 226 Wis. 92, 275 N.W. 922 (1937). They have not yet faced liability as employers;
however, if they did they would only face liability to employees, not frequenters. Niedfelt v.
Joint Sch. Dist., 23 Wis. 2d 641, 648, 127 N.W.2d 800 (1964).
Nonprofits, Religious, and Other Charitable Organizations
Nonprofits, religious, and other charitable organizations have not been found liable as
“employers” because their employment is not performed for profit or gain. Waldman v. YMCA,
227 Wis. 43, 46, 277 N.W. 632 (1938). However, these organizations have been liable for safeplace violations as “owners of a public building.” Wilson v. Evangelical Lutheran Church of
Reformation, 202 Wis. 111, 113, 230 N.W. 708 (1930).
E. Places Protected
The safe-place statute protects two locations: A) places of employment and B) public buildings.
“Place of employment” is defined as including “every place, whether indoors or out or
underground and the premises appurtenant thereto where either temporarily or permanently any
industry, trade, or business is carried on, or where any process or operation, directly or indirectly
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related to any industry, trade, or business, is carried on, and where any person is, directly or
indirectly, employed by another for direct or indirect gain or profit, but does not include any
place where persons are employed in private domestic service which does not involve the use of
mechanical power or in farming.” When used with building codes, it does not include a) an adult
family home, as defined by Wis. Stat. § 50.01(1); b) a previously constructed building used as a
community-based residential facility, as defined by Wis. Stat. § 50.01(1g), except for purposes of
Wis. Stat. § 101.11; or c) a home-based business, as defined by the department by rule. Wis. Stat.
§ 101.01(11).
Courts interpret the safe-place statute’s definition of “place of employment” very broadly. Ball v.
Madison, 1 Wis. 2d 62, 65, 82 N.W.2d 894 (1957) (“[A] place of employment can be almost any
place”). Two elements must be met to define a “place of employment”: business must be
performed there and the person must be employed on the premise. Barthel v. Wis. Elec. Power
Co., 69 Wis. 2d 446, 450, 230 N.W.2d 863 (1975). Courts have found it to include an apartment
building, a building under construction, a dance floor, a driveway, a filling station, a roof, a
sidewalk, a boiler, a lecture platform, a scaffold, a clubhouse, a parking lot, and a light pole.
An employer is liable for the “structural” defects in a place of employment and unsafe conditions
associated with the structure. Jaeger v. Evangelist Lutheran Holy Ghost Congregation, 219 Wis.
209, 211, 262 N.W. 585 (1935). Additionally, employers can be held liable for unsafe conditions
on the premise, even if they are not associated with the premise. Id.
“Public building” is defined as “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.” When used in relation to building codes, it does not include: a) a previously
constructed building used as a community-based residential facility, as defined by Wis. Stat.
§50.01(1g); b) an adult family home, as defined by Wis. Stat. § 50.01(1); or c) a home-based
business, as defined by the department by rule. Wis. Stat. § 101.01(12).
The courts have given “public building” a more limited definition than place of employment.
Ball v. Madison, 1 Wis. 2d 62, 65, 82 N.W.2d 894 (1957). The courts have refused to construe
public building to include structures that do not have the characteristics of a building. Id.
However, courts have found structures that look like buildings and have held temporary
bleachers, swimming piers, and a swimming pool to be “public buildings.” Additionally, the
following have all been found to be public buildings: a hotel, a baseball stadium, a warehouse, a
theater, a tavern, a jail, a public school, a church, and a hospital.
F. Persons Protected
Safe-place law protects employees and frequenters. Frequenters encompasses common-law
invitees and licensees. Klemens v. Morrow Milling Co., 171 Wis. 614, 618, 177 N.W. 903
(1920). Trespassers are excluded from protection. Sorenson v. Chi., Milwaukee & Saint Paul Ry.
Co., 192 Wis. 231, 212 N.W. 273 (1927). Under Wisconsin law, a trespasser is an individual
“who enter or remains upon land in the possession of another without a privilege to do so created
by the possessor’s consent or otherwise.” Hofflander v. St. Catherine’s Hosp., Inc., 2003 WI 77,
¶ 105, 262 Wis. 2d 539, 664 N.W.2d 545 (citing Antoniewicz v. Reszczynski, 70 Wis. 2d 836,
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843, 236 N.W.2d 1 (1975)). However, an individual cannot “be a trespasser while he is in a place
to which he personally or the public generally is invited, expressly or by implication.”
Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 637, 261 N.W. 742 (1935).
Generally, owners and employers owe employees and frequenters the same standard of duty of
care. Washburn v. Skogg, 204 Wis. 29, 35, 233 N.W. 764 (1931). However, what a reasonable
standard of duty of care is in each situation is a jury question. Singleton v. Kubiak & Schmitt,
Inc., 9 Wis. 2d 472, 477, 101 N.W.2d 619 (1960).
Employee
“Employee” is defined as “any person who may be required or directed by any employer, in
consideration of direct or indirect gain or profit, to engage in any employment, or to go or work
or be at any time in any place of employment.” Wis. Stat. § 101.01(3). To be an employee, the
individual must submit to the employer’s authority in exchange for receiving some direct or
indirect gain or profit. Keller v. Lloyd, 180 Wis. 2d 162, 509 N.W.2d 87, 93-94 (Ct. App. 1993).
Because the Worker’s Compensation Act is the exclusive compensation for employee’s injuries,
if an individual is injured because of a safe-place violation, it may be more advantageous for
them to be considered a frequenter and not an employee. See, e.g., Kuske v. Miller Bros. Co., 227
Wis. 300, 277 N.W. 619 (1938).
Frequenter
“Frequenter” is defined as “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.” Wis. Stat. § 101.01(6). This includes individuals who would be
considered “invitees” or “licensees” under common law. Klemens v. Morrow Milling Co., 171
Wis. 614, 618, 177 N.W. 903 (1920). A frequenter will lose his protection and become a
trespasser if he enters an area that he was not expressly or impliedly invited, even if by mistake
or confusion. Lang v. Findorff, 185 Wis. 545, 201 N.W. 727 (1925); Grossenbach v. Devonshire
Realty Co., 218 Wis. 633, 261 N.W. 742 (1935). Additionally, an employer does not have a duty
to provide “safe employment” to a frequenter. Niedfelt v. Joint Sch. Dist., 23 Wis. 2d 641, 648,
127 N.W.2d 800 (1964). Furthermore, a business is not the insurer of a frequenter’s safety. May
v. Skelley Oil Co., 83 Wis. 2d 30, 264 N.W.2d 574 (1978).
Frequenters have been found to include: an employee after hours; a traveling salesman; and the
original employer or owner when an independent contractor controls the premise. Additionally,
the employees of independent contractors, general contractors, and subcontractors have been
found to be “frequenters” in relation to the original owner or employer, general contractors, other
independent contractors, and/or subcontractors.
G. Conditions Creating Liability
Employers and owners of a place of employment may be liable for the following conditions: a)
structural defects, b) unsafe conditions associated with the structure, and c) unsafe conditions not
associated with the structure. Howard H. Boyle, Jr., Boyle’s Wisconsin Safe-Place Law ch. 4
(1980), available at http://terrenceberres.com/boyle4.html. The owner of a public building may
only face liability for the structural defects and unsafe conditions associated with the structure.
11
Id. There is no precise test for whether something is a structural defect or a condition associated
with the structure, because that determination is dependent on the facts and circumstances of
each situation. Barry v. Emp’rs Mut. Cas. Co., 2001 WI 101, ¶ 24, 245 Wis. 2d 560, 630 N.W.2d
517.
Structural Defects
“A building is safe, within the meaning of the statute, which is composed of proper materials and
is structurally safe.” Holcomb v. Szymczyk, 186 Wis. 99, 104, 202 N.W. 188 (1925) (citing Juul
v. School Dist., 168 Wis. 111, 169 N.W. 309 (1918)). A structural defect is one that “arises from
design or construction flaws when a building element is put in place, whether as an original part
of the structure or as a replacement.” Wagner v. Cincinnati Cas. Co., 2011 WI App 85, ¶ 21, 334
Wis. 2d 516, 800 N.W.2d 27.
However, a structural defect “does not apply to temporary conditions having no relation to the
structure of the building or the materials of which it is composed.” Id. Likewise, “[i]f an architect
devises or prepares plans and specifications for construction which render a public building safe
within the meaning of the statute and the owner thereafter maintains it in that condition, the
statute is complied with….” Id.
When these defects cause injury, the owner or employer faces liability regardless of whether he
had notice of the defect. Hommel v. Badger State Inv. Co., 166 Wis. 235, 242, 165 N.W. 20
(1917).
The following have all been found to be structural defects: violations of industrial building code,
steps constructed in nature without non-slip surface, steps leading to unsafe ground, steps located
in unanticipated locations, unattached bleacher seats, stairs without the safety-order required
handrails, missing handrails around holes in roofs and trap doors, nails protruding through floors,
improperly constructed swimming pools, floors collapsing, and a false ceiling collapsing under a
person’s weight.
Conditions Associated with the Structure
Conditions that are associated with the structure are created when the structure (or its
components) become out of repair or are not being maintained. Wis. Stat. § 101.11. However,
this does not include temporary conditions, which have no relation to the structure of or the
materials composing of the building. Juul v. School Dist., 168 Wis. 111, 169 N.W. 309 (1918).
Furthermore, when the act of an individual causes the condition to become unsafe, courts have
found no safe-place violation because the action, not the condition was unsafe. Barth v. Downey
Co., 71 Wis. 2d 775, 239 N.W.2d 92 (1976) (finding no liability for a duct collapsing with an
employee in them after employee weakened the adjacent supports for the duct).
Either notice or constructive notice and an opportunity to remedy or repair the conditions are
required before an employer or owner may face liability. Pettric v. Gridley Dairy Co., 202 Wis.
289, 293-94, 232 N.W. 595 (1930); Boutin v. Cardinal Theatre Co., 267 Wis. 199, 204, 64 N.W.
848 (1954). Under safe-place liability, constructive notice can occur when a person created, or is
responsible for, the situation that results in unsafe conditions, or has failed to take minimum
precautions to avoid it, like failing to inspect. Alternatively, constructive notice can occur when
12
the owner or employer brings a dangerous agency onto the premise and injuries arise. Mickelson
v. Cities Serv. Oil Co., 250 Wis. 1, 260 N.W.2d 264 (1947).
Most commonly constructive notice is found when the unsafe condition has “existed for a
sufficient length of time to afford the owner or employer [or an employee or agent thereof]
opportunity to discover and remedy the situation.” Sandeen v. Willow River Power Co., 214 Wis.
166, 178, 252 N.W. 706 (1934).The length of time needed to create constructive notice depends
on the surrounding facts and circumstances, like the nature of the defect and the type of business.
Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, ¶ 12, 274 Wis. 2d 162, 682
N.W.2d 857 (2004) (citing Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 150
N.W.2d 361 (1967)). There is one, narrow exception: the Strack exception. The Strack exception
provides that when the unsafe condition arises from the owner’s course of conduct or method of
operation, then a much shorter time, sometimes no period of time, is needed to create
constructive notice. Id. ¶ 13. In order to satisfy the Strack exception, the harm that occurs must
be foreseeable in the area where it occurred. Id. ¶ 18 (internal citations omitted).
The following have been found to be conditions associated with the structure resulting in safeplace liability: failure to turn on a light to illuminate an unsafe condition; a missing seat in a
theater; a quarry blast loosening stone; clothing racks placed in the aisle; unnecessary
accumulation of snow and ice within a cold plant; oily, greasy, or slippery floors; an improper
motor on or an improvised door latch for an elevator; and an inadequate screen on an upper-floor
window.
The following have been found not to be conditions associated with the structure of a building:
freshly mopped floors, freshly waxed floors, or accumulated rain or snow from wind,
pedestrians, construction or maintenance.
Conditions Not Associated with the Structure
Conditions not associated with the structure are conditions that create unsafe employment. Wis.
Stat. § 101.11. The duty to create safe employment requires a duty to “furnish and use safety
devices and safeguards.” Id. It also requires the use of safe methods and processes within the
business. Id.
The following are conditions that are not associated with the structure that have resulted in safeplace liability: wind blowing in rain or snow accumulation; ice forming on the building; salad
dressing on a store stairway; a defective plank used in roadway construction; improperly
grounded electrical currents within a house; a pile of stones; a pile of lumber; a pail of water left
in hallway while mopping; a ramp for machinery which was unable to hold weight; a stairwell in
a construction zone that was left open without protections; providing unsafe equipment or
appliances; providing unsafe machines or machines without safeguards; using unsafe methods
for unloading logs; requiring a railroad switchman to work near passing trains: improperly deenergizing power lines; using a method which allowed dangerous gas to escape into the room;
and the improper location of certain work actions.
H. Exclusions
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Interstate Commerce: Safe-place law does not apply to interstate commerce situations when the
employee is subject to the Federal Compensation Act. Kolasinski v. Chi., M. & St. P.R. Co., 164
Wis. 50, 52, 159 N.W. 563 (1916). However, preparing lumber for interstate shipment was not
within the Employers’ Liability Act and therefore safe-place laws applied. Sullivan v. Chi., M. &
St. P. R. Co., 163 Wis. 583, 587, 158 N.W. 321 (1916). Whenever interstate commerce is present
a survey of cases applying the federal law is suggested. Emberg v. Great Northern R. Co., 156
Wis. 396, 146 N.W. 481 (1914).
Farming: Farming is excluded from safe-place law liability for creating an unsafe “place of
employment.” Vandre v. Trachte, 244 Wis. 233, 12 N.W.2d 48 (1943). The exception is only for
“place of employment” liability. Id.
Domestic Service: Domestic service is excluded from the scope of safe-place law when there is
no mechanical power used. Wis. Stat. § 101.01(2)(a). However, safe-place law can be used to
protect domestic service that requires the use of mechanical power. Hahn v. Rothstein, 174 Wis.
381, 182 N.W. 983 (1921).
Worker’s Compensation Act: The Worker’s Compensation Act provides that the Act is the
exclusive remedy of an employee against an employer, which precludes a civil action for
violation of the safe-place statute. Wis. Stat. § 102.03(2); Knoll v. Shaler, 180 Wis. 66, 192 N.W.
399 (1923). However, an employee can seek a 15 percent increase in compensation for a safeplace violation that causes injury. Wis. Stat. § 102.57. Likewise, an employer can seek a 15
percent decrease in compensation if the injury is caused by an employee failing to use a safety
device, follow a safety order, or is intoxicated. Wis. Stat. § 102.58.
I. Public Sidewalk Liability
Generally, defects in public sidewalks, or driveways, which serve a business place, are not liable
to safe-place liability because they are not considered a place of employment or a public
building. Miller v. Welworth Theatres, 272 Wis. 355, 75 N.W.2d 286 (1956).
Courts have only found one occasion to apply safe-place law to a sidewalk as a place of
employment: Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 111 N.W.2d 495 (1961). The
Schwenn Court found liability because of the degree of control and dominion over the sidewalk,
which inhibited the public’s ability to use the sidewalk. Petroski v. Eaton Yale & Towne, Inc., 47
Wis. 2d 617, 178 N.W.2d 53 (1970).
J. Legal Standards
Assumption of Risk
Assumption of risk is not a defense for safe-place violations, regardless of whether the individual
is an employee or a frequenter. Rosholt v. Worden-Allen Co., 155 Wis. 168, 178, 144 N.W. 650
(1913). In determining whether an action was an assumption of risk or contributory negligence,
courts look to the reasonableness of the action under all of the circumstances. Meyer v. Val-LoWill Farms, 14 Wis. 2d 616, 622-23, 111 N.W.2d 500 (1961). If the assumption of risk was
reasonable under all of the circumstances, then there is no defense to safe-place law. Id. If the
assumption of risk was unreasonable, then there is contributory negligence. Id.
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Burden of Proof
The plaintiff has the burden of proof to show all elements of liability, including: an actionable
defect, status of plaintiff (e.g. employee or frequenter), status of defendant (e.g. employer or
owner), nature of the place (e.g. public building, place of employment), not as safe as the nature
of similar places would reasonably permit, control, actual or constructive knowledge, causation,
and, if necessary, actual or constructive notice of the condition. See generally Paluch v. Baldwin
Plywood & Veneer Co., 1 Wis. 2d 427, 432, 85 N.W.2d 373 (1957); Rosenthal v. Farmers Store
Co., 10 Wis. 2d 224, 227, 102 N.W.2d 222 (1960).
Contributory Negligence
Contributory negligence is still a defense against safe-place claims. Besnys v. Herman Zohrlaut
Leather Co., 157 Wis. 203, 147 N.W. 37 (1914). However, an employee’s contributory
negligence is lessened if it occurs because of the performance of this duties or business. Meyer v.
Val-Lo-Will Farms, 14 Wis. 2d 616, 622, 111 N.W.2d 500 (1961). Defendant carries the burden
of proof to show the plaintiff’s contributory negligence. Dugenske v. Wyse, 194 Wis. 159, 166,
215 N.W. 829 (1927). Furthermore, it is usually an issue for the jury. Allison v. Wm. Doerflinger
Co., 208 Wis. 206, 242 N.W. 558 (1932). However, in obvious cases, courts have previously
decided it as a matter of law. Sachse v. Mayer, 18 Wis. 2d 457, 118 N.W.2d 914 (1963). “Unless
the defendant can show that the likelihood of injury outweighed the practical usefulness, or
utility, of proceeding as plaintiff did under the circumstances, plaintiff cannot be charged with
contributory negligence.” Howard H. Boyle, Jr., Boyle’s Wisconsin Safe-Place Law ch. 6(g)
(1980), available at http://terrenceberres.com/boyle6g.html.
Additionally, the ordinary negligence of a plaintiff may be compared to the defendant’s safeplace negligence. Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688, 689, 150 N.W.2d
337 (1967). In doing so, the jury should be informed that the defendant owes a higher duty of
care than the plaintiff. Lovesee v. Allied Dev. Corp., 45 Wis. 2d 340, 346, 173 N.W.2d 196
(1970).
Evidence of Common Use
Safe-place law is absolute. Rosholt v. Worden-Allen Co., 155 Wis. 168, 175, 144 N.W. 650
(1913). Therefore, evidence of common use, customary methods, or similar operations is
generally not relevant. Sparrow v. Menasha Paper Co., 154 Wis. 459, 465, 143 N.W. 317
(1913). However, courts will occasionally allow it as evidence that a thing or place is not as safe
as its nature will allow. Raim v. Ventura, 16 Wis. 2d 67, 72, 113 N.W.2d 827 (1962).
Evidence that Something Could Be Safer
Some courts have admitted evidence to show how a place or thing could reasonably safer. Heckel
v. Standard Gateway Theater, 229 Wis. 80, 85, 281 N.W. 640(1938). However, other courts
have explicitly rejected the argument that something could be made safer. Megal v. Green Bay
Area Visitor & Convention Bureau, 2004 WI 98, ¶ 10, 274 Wis. 2d 162, 682 N.W.2d 857 (2004)
(internal citations omitted).
Evidence of Subsequent Repairs or Prior Accidents
15
Although evidence of subsequent repairs, alterations, or precautions is inadmissible in commonlaw, it is admissible under safe-place law to show that the place or nature was not as safe as it
would reasonably permit. Heiden v. Milwaukee, 226 Wis. 92, 103, 275 N.W. 922 (1937).
Likewise, it is within the trial judge’s discretion to allow evidence of prior accidents which may
relate to a “failure to exercise the reasonableness required in an effort to furnish a safe place.”
Manitowoc Co., Inc., v. Indus. Comm’n, 273 Wis. 293, 77 N.W.2d 693 (1956).
Jury Instructions
The Wisconsin Jury Instructions – Civil contains form jury instructions for safe-place claims. See
Appendix D for copies of these instructions. The instructions include:
 1900.2 Safe-Place Statute: Duty or Employer
 1900.4 Safe-Place Statute: Injury to Frequenter
 1901 Safe-Place Statute: Definition of Frequenter
 1902 Safe-Place Statute: Negligence of Plaintiff Frequenter
 1904 Safe-Place Statute: Public Buildings and Negligence of Owner
 1910 Safe-Place Statute: Place of Employment: Business
 1911 Safe-Place Statute: Control
Additionally, approved instructions appear in the following cases: Fandek v. Barnett & Record
Co., 161 Wis. 55, 61, 150 N.W. 537 (1915); Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441,
449, 253 N.W. 579 (1934); Mondl v. F. W. Woolworth Co., 12 Wis. 2d 571, 573, 107 N.W.2d
472 (1961); Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408, 180 N.W.2d 546 (1970);
Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 347, 173 N.W.2d 196 (1970); Barry v.
Emp’rs Mut. Cas. Co., 2001 WI 101, ¶ 33, 245 Wis. 2d 560, 630 N.W.2d 517..
Jury Questions
The following are typically considered questions to be left to the jury: whether a something or
some place is as safe as its nature reasonably allows, contributory negligence, notice, causation,
the parties’ status, and whether an individual has the necessary control over a premise.
Presumption of Failure
When there is a failure of a safe-place duty which would have prevented injury and injury
occurs, then the law presumes that the damage was caused by the failure. Defendant may rebut
this with evidence, but if defendant does not rebut, then plaintiff has met his burden. Candell v.
Skaar, 3 Wis. 2d 544, 549, 89 N.W.2d 274 (1958).
Special Verdict Form
A special verdict form should be submitted to juries. Stellmacher v. Wisco Hardware Co., 259
Wis. 310, 48 N.W.2d 492 (1951). There should be a separate question for each alleged instance
of safe-place violation. Id. Furthermore, the verdict form should incorporation the word
“negligence” to remind jurors that this is a question of negligence. Krause v. Veterans of Foreign
Wars Post No. 6498, 9 Wis. 2d 547, 553, 101 N.W.2d 645 (1960).
Standard of Review
16
The court of appeals reviews de novo whether a condition is a structural defect or a condition
associated with the structure because it is an issue of law. Barry v. Emp’rs Mut. Cas. Co., 2001
WI 101, ¶ 17, 245 Wis. 2d 560, 630 N.W.2d 517.
Statute of Limitations
The personal injury statute of limitations of three (3) years applies to safe-place personal injuries.
Wis. Stat. § 893.205. The statute of limitations for architects and builders is ten (10) years after
substantial completion of the project. Wis. Stat. § 893.89. However, Wis. Stat. § 893.89 applies
only structural defects and not unsafe conditions associated with the structure. Mair v.
Trollhaugen Ski Resort, 2006 WI 61, ¶ 29, 291 Wis. 2d 132, 715 N.W.2d 598.
II. Sidewalk Snow and Ice Removal
Towns and villages may impose penalties or fines for abutting property owners who do not keep
their sidewalks clear of snow and ice. Wis. Stat. § 66.0907(5). If the town or village must clear
the sidewalk for the property owner, then the town or village may charge the property owner for
the cost. Id.
However, the village or town has the duty to maintain these sidewalks. Id. If they, or the abutting
property owner, fail to maintain the sidewalk, then the town or village could be found liable for
injuries and damages arising from the failure to maintain the sidewalk. Hagerty v. Bruce, 82
Wis. 2d 208, 214-15, 262 N.W.2d 102 (1978). The abutting property owner will not be liable for
injuries on public sidewalks abutting their land, unless the property owner created the artificial
accumulation. Holschbach v. Wash. Park Manor, 2005 WI App 55, 280 Wis. 2d 264, 694
N.W.2d 492.
In order to receive damages, the injured individual must show that the village or town was
negligent in performing its duty to clear the sidewalks. Kobelinski v. Milwaukee & Suburban
Transport Corp., 56 Wis. 2d 504, 202 N.W.2d 415 (1972). Additionally, the snow or ice must
have been naturally accumulating for more than three (3) weeks to recover. Wis. Stat. § 893.83.
If the accumulation was created by the acts of an individual, like the abutting property owner or
the municipality, the individual who created the artificial accumulation may be held liable.
Corpron v. Safer Foods Inc., 22 Wis. 2d 478, 126 N.W.2d 14 (1964). Generally for accumulation
to be considered “artificial” it must be caused by a defective man-made product (e.g., a
downspout) creating the accumulation. Gruber v. Vill. of N. Fond du Lac, 2003 WI App 217, 267
Wis. 2d 368, 671 N.W.2d 692.
III. Violent Crimes by Third Parties
Businesses-Customers
A business has a duty to protect his customers from bodily injury by a third party’s accidental,
negligent, or intentional harm, if reasonable care would have discovered the third party’s actions,
controlled the third party’s actions, or warned the third parties about the harm. Weihert v.
Piccione, 273 Wis. 448, 456, 78 N.W.2d 757 (1956).
Once a duty has been found, the business must meet the standard of ordinary care. “A person
fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a
precaution under circumstances in which a person of ordinary intelligence and prudence ought
17
reasonably to foresee that such act or omission will subject…an unreasonable risk of injury.”
Peters v. Holiday Inns, Inc., 89 Wis. 2d 115, 123-24, 278 N.W.2d 208 (1979) (quoting Osborne
v. Montgomery, 203 Wis. 223, 242-43, 234 N.W. 372 (1931)). Plaintiff must still prove that this
harm was foreseeable.
Innkeeper-Guests
In addition to a general business’s duty, an innkeeper has a duty to provide guests security at an
ordinary standard of care. Peters v. Holiday Inns, Inc., 89 Wis. 2d 115, 123-24, 278 N.W.2d 208
(1979). Specifically, an innkeeper has a duty to take reasonable action to protect his guests
against an unreasonable risk of physical harm and to give them first aid after he knows or has
reason to know that they have been injured or are ill until someone else can provide them aid. Id.
In establishing whether ordinary care has been met, courts will consider: industry standards,
local crime rate, presence of suspicious persons, and security problems from hotel design. Id.
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and is
not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor, or
contributor. The contents should not be construed as legal advice or opinion. While every
effort has been made to be accurate, the contents should not be relied upon in any specific
factual situation. These materials are not intended to provide legal advice or to cover all laws
or regulations that may be applicable to a specific factual situation. If you have matters or
questions to be resolved for which legal advice may be indicated, you are encouraged to
contact a lawyer authorized to practice law in the state for which you are investigating and/or
seeking legal advice.
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Appendix A: Wisconsin Court Systems
I. The Wisconsin Court System
A. Wisconsin Circuit Courts
The trial-level court in Wisconsin is the district court. Wisconsin has 249 circuit court judges,
who are elected and serve six-year terms. Wisconsin’s 72 counties are grouped into 10 judicial
administrative districts. Milwaukee County is Wisconsin’s largest circuit with 47 judges.
B. Wisconsin Courts of Appeal
The Court of Appeals is Wisconsin’s intermediate appellate court. There are four appellate
districts. They are headquartered in Milwaukee, Waukesha, Wausau, and Madison. There are 16
judges, who are elected six-year terms in district-wide, non-partisan elections. The Court
generally sits in three-judge panels; however some small claims, misdemeanors, and municipal
ordinance violations may be decided by one judge.
The published opinions of the Court of Appeals are considered binding precedent across all four
districts until overruled by the Supreme Court.
C. Wisconsin Supreme Court
The Wisconsin Supreme Court is the state’s highest court. It is composed of seven justices. The
justices are elected to ten year terms in statewide, non-partisan April elections. Vacancies are
filled by gubernatorial appointment. The appointee stands for election for a ten year term the
following spring. The Supreme Court is located in the state capitol in Madison.
D. Citing Wisconsin Cases
When citing Wisconsin cases in the Wisconsin courts, parallel citations are required for both
regional reporters: Callaghan’s Wisconsin Reports (Wis.) and North Western Reporter (N.W.).
For example: Cross v. Leuenberger, 267 Wis. 232, 236, 65 N.W.2d 35 (1954).
Additionally, for decisions published after January 1, 2000, the public domain citation must be
included with the parallel citation. For example: State v. Herrmann, 2014 WI App 38, 353 Wis.
2d 304, 844 N.W.2d 665.
II. The Wisconsin Federal Courts
Wisconsin is part of the Seventh Circuit. Wisconsin has two federal court districts: the Eastern
District of Wisconsin, headquartered in Milwaukee and also located in Green Bay, and the
Western District of Wisconsin, headquartered in Madison.
III. Wisconsin Rules of Civil Procedure
The Wisconsin Rules of Civil Procedure can be found in Chapter 801-807 of the Wisconsin
Statutes. They are largely modeled off of the federal rules.
IV. Wisconsin Rules of Appellate Procedure
The Wisconsin Rules of Appellate Procedure are found in Chapters 808- 809 of the Wisconsin
Statute.
19
V. Wisconsin Rules of Evidence
The Wisconsin Rules of Evidence are found in Chapter 901-911 of the Wisconsin Statutes. They
are largely modeled off of the federal rules.
VI. Wisconsin Limits on Damages against Governmental Bodies
Wisconsin Statute § 893.80 governs claims against governmental bodies, including: political
corporations, governmental agencies, governmental subdivisions, and volunteer fire departments.
It limit establishes governmental immunity for legislative, quasi-legislative, judicial, and quasijudicial actions. Wis. Stat. § 893.80(4). Additionally, it generally limits damages to $50,000.
Wis. Stat. § 893.80(3).
However, Wisconsin Statute § 345.05 governs “Municipal liability for motor vehicle accidents.”
It applies to any city, county, village, town, school district, sewer district, drainage district, and
commission. Wis. Stat. § 345.05(2). Additionally, it raising the maximum damages to $250,000.
Wis. Stat. § 345.05(3).
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Appendix B: Court of Appeals District Map
District I – Milwaukee County
District II – Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine,
Sheboygan, Walworth, Washington, Waukesha, and Winnebago Counties
District III – Ashland, Barron, Bayfield, Brown, Buffalo, Burnett, Chippewa, Door, Douglas,
Dunn, Eau Claire, Florence, Forest, Iron, Kewaunee, Langlade, Lincoln, Marathon, Marinette,
Menominee, Oconto, Oneida, Outagamie, Pepin, Pierce, Polk, Price, Rusk, Sawyer, Shawano, St.
Croix, Taylor, Trempealeau, Vilas, and Washburn Counties
District IV – Adams, Clark, Columbia, Crawford, Dane, Dodge, Grant, Green, Iowa, Jackson,
Jefferson, Juneau, La Crosse, Lafayette, Marquette, Monroe, Portage, Richland, Rock, Sauk,
Vernon, Waupaca, Waushara, and Wood Counties
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Appendix C: Judicial Administrative Districts Map
22