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What makes a premise safe under Wisconsin’s Safe Place Statute? It depends.

September 19, 2018

Consistently, Plaintiffs suffering from injuries sustained in slips and falls in retail venues bring suit against retailers alleging claims of Common Law Negligence and violations of Wisconsin’s Safe Place Statute. Each claim, though alleged separately, is an extension of the other. Wisconsin’s Safe Place Statute holds an employer or owner of a place of employment to a higher than ordinary duty of care required to prove a common law negligence claim. An employer/owner must make the place as safe as the nature of the premises reasonably permits, which is circumstantial by its very nature and can mean something different in each case in which it is alleged. In 2018, thus far, Wisconsin’s Courts of Appeal have published two decisions in which allegations of Safe Place Statute violations have once again taken center stage: Nerison v. Wis. Farmers Union, Inc., 2018 Wisc. App. LEXIS 172 *; 2018 WI App 21; 380 Wis. 2d 509; 913 N.W.2d 514 and Sell v. Riverview Condo. Ass’n., 2018 Wisc. App. LEXIS 140 *; 2018 WI App 21; 380 Wis. 2d 509; 913 N.W.2d 515.

In Nerison v. Wis. Farmers Union, Inc., 2018 Wisc. App. LEXIS 172* (Wis. App. 2018), Wisconsin Farmers Union, Inc. (Farmers Union) owned and operated a “rustic camp” ground at which Plaintiff was a guest attending her sister-in-law’s wedding. Plaintiff became intoxicated during the evening of the wedding reception and climbed a dark stair case into the lofted sleeping area of one of the cabins to sleep for the night. Plaintiff was unaware of any light fixtures or light switches in the loft though it is undisputed they were present at both the top and bottom of the staircase to the loft. Not long after she fell asleep, Plaintiff awoke (still intoxicated) to use the restroom and walked from her bed searching for the staircase and feeling for a light switch. Unsuccessful, Plaintiff instead fell, face first, down the stairs and was taken by ambulance to a hospital.

Plaintiff sued Farmers Union alleging negligence and, in an amended complaint, a violation of Wisconsin’s Safe Place Statute. Farmers Union was granted Summary Judgment on Plaintiff’s Safe Place Statute claim because Plaintiff failed to establish that Farmer’s Union breached any duty, that it failed to use ordinary care, or that it had any notice of an unsafe condition in the cabin. On appeal, Plaintiff argued that the cabin was structurally unsafe because Farmers failed to provide sufficient additional lighting, and that additional lighting would have made the stairway safer. The Court of Appeals affirmed and opined that an owner does not breach its duty under the Safe Place Statute simply because the premises could be made safer; nor is an owner an insurer of frequenters to their premises. Nerison v. Wis. Farmers Union, Inc., 2018 Wisc. App. LEXIS 172* 12. The term “safe” does not mean absolutely safe or require the owner to render the premises absolutely safe. Id. However, the Court of Appeals ruled that a jury could find that it was reasonably foreseeable that cabin guests sleeping in the loft would fall and injure themselves on the staircase because the light switch was not easily discernable, located and/or more accessible. As a result, material facts related to Plaintiff’s negligence claim remained.

In Sell v. Riverview Condo. Ass’n., Plaintiff Rhonda Sell slipped and fell on ice located on private sidewalk on the premises of the Riverview Condominium Association (the Association). Sell v. Riverview Condo. Ass’n., 2018 Wisc. App. LEXIS 140 *; 2018 WI App 21; 380 Wis. 2d 509; 913 N.W.2d 515. Plaintiff alleged that a downspout located on one of the Association residents’ units discharged water across the sidewalk which froze and created an icy hazard. The downspout existed on the unit for over 10 years prior to the fall.

Lynn D. Drager, owner of Handyman Innovated Services, provided snow removal and salting services to the premises, and Mr. Drager performed all snow removal duties himself (i.e. no employees). Notably, Mr. Drager was required by the contract/agreement to remove snow from the driveways and sidewalks and apply salt only when it snowed 2 or more inches. The record showed that the most recent snowfall was March 6, 2013 (4 inches) at which time Mr. Drager removed the snow and salted the premises. He did not perform any services under the Agreement between March 7 and March 9, 2013 prior to Plaintiff’s fall.

Plaintiff sued various defendants, including the Association and its liability insurer, alleging negligence and a violation of Wisconsin’s Safe Place Statute. The Circuit Court granted Summary Judgment on grounds that Wisconsin’s Statute of Repose (Wis. Stat. § 893.89) prohibited the lawsuit, in part, as it applied to improvements to real property over 10 years old, and that Plaintiff failed to establish either of their Negligence or Safe Place Statute claims.

On appeal, the Court found that Mr. Drager met his duty to exercise ordinary care under the circumstances because his contract required him to perform snow removal and salt services only after a snow of 2 inches or more, which he did on the day it snowed approximately 4 inches. Mr. Drager had no additional obligation to perform services under the contract and it would have been unreasonable to require him to do so. Further, the Court was not convinced that the Safe Place Statute applied in this case because Mr. Drager was likely not an employer or owner under the statute, even though he occasionally performed services upon the private sidewalk. The Court thus affirmed the Circuit Court’s dismissal of Plaintiff’s lawsuit.

The takeaways are simple. Counsel should scrutinize whether their clients who have been alleged to have violated Wisconsin’s Safe Place Statute make the place at issue as safe as the nature of the premises reasonably permits. Ask questions and perform a detailed analysis tailored to the client’s business, business practices, and even the natural environment in which those services and practices are performed to determine whether the client has performed his or her duty not only of ordinary care, but to understand whether the client has a reasonable argument that he or she has done what is necessary under the law to protect society’s right to be safe on their premises.

MWH Law Group has a robust premises liability practice and years of experience in defending businesses from claims of Negligence and violation of Wisconsin’s Safe Place Statute. Please contact our litigation attorneys with any questions related to these and many other claims that you may have. We appreciate the opportunity to earn your business.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

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