In Wisconsin, Wis. Stat. section 101.11, known as the safe place statute, imposes a variety of duties on employers, owners of places of employment, and owners of public buildings.
The statute, first enacted in 1911, is nonspecific as to the exact nature and extent of the duty required to render a premises “safe:”
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 place of employment or public building as to render the same safe.[1]
What renders a place of employment or public building safe? What actions are “reasonably necessary” to comply with the statute?
The answer to questions like these will vary from case to case; however, duty is broad in Wisconsin and whether the safe place statute is violated is generally a question for the jury.[2]
While those questions do not have clear answers, most appellate authorities interpreting the safe place statute draw a distinction between unsafe conditions and unsafe acts.[3] Under the “acts of operation” rule, Wisconsin appellate courts have often viewed negligent “acts” as outside the purview of the statute.
While courts have held that the statute does not generally cover unsafe acts, it does require an employer to “adopt and use methods and processes reasonably adequate to render such employment and places of employment safe.”[4] The distinction between “methods and processes” and “acts of operation” can be confusing for judges and practitioners considering a standard definition of “processes” includes the words “actions” and “operations.”[5]
No wonder Howard H. Boyle Jr. describes this conflict as the negligent act enigma.[6]
Acts of Operation versus Methods and Processes
Numerous cases rely on the acts of operation rule to preclude application of the safe place statute. Fewer cases rely on the methods and processes duty as a means to apply the statute. Most “acts of operation cases” avoid discussion of “methods and processes,” and the “methods and processes” cases mostly avoid discussion of acts of operation. Reconciling apparent conflicts in the resolution of some of those cases is challenging.
Examples of excluded negligent acts include a crane operator swinging a boom into power lines causing injury to persons holding steel beams,[7] an auction patron attacked by a bull driven into a display ring,[8] a student attacking another student,[9] an employee injured when he climbed into a ceiling-high duct which then fell to the floor,[10] a crane operator loading steel rings in an unstable pile,[11] and a security guard killed by a burglar.[12]
Examples of unsafe methods and processes falling under the safe place statute include unloading logs in an unsafe manner,[13] loading logs in an unsafe manner,[14] breaking scrap iron by dropping weight from a crane,[15] using gasoline to clean a garage floor,[16] cutting branches with a power saw while sitting in the tree,[17] and unsafe de-energization of an electrical line.[18]
The holdings appear contradictory as unsafe loading of steel rings was precluded as an act of operation while unsafe loading of logs was a permissible method and process theory of liability.
Arguing Unsafe Methods and Processes
Despite the apparent conflict, the “methods and processes” statutory language and jurisprudence remains good law and imposes liability under the safe place statute.
Thus, lawyers representing injured clients in premises liability claims should not overlook the duty to “adopt and use methods and processes reasonably adequate to render such employment and places of employment safe” as an avenue to impose the heightened duty of care required by the safe place statute.[19] Civil defense lawyers should be mindful that a “methods and processes” theory of liability may overcome a potential “acts of operation” defense strategy.
In determining whether the methods and processes duty may apply, there are two important points to consider:
- the duty to adopt and use methods and processes only applies to employers – not the owner of a place of employment or public building;[20] and
- the safe place statute requires the employer to adopt safe methods and processes, so any unsafe method or process resulting in injury theoretically must originate with the employer in order to violate the statute. “Employer” includes agents, managers, representatives, and other persons having control of any employees.[21]
While the necessary strength of the connection between the unsafe method and process and the employer remains up for debate, this requirement holds true across cases where plaintiffs successfully argued that unsafe methods or processes existed within the purview of the safe place statute.
For example, in Sparrow, the plaintiff was “engaged in unloading in the manner ordered when injured.”
In Kelly, it was plaintiff’s “duty under the employment to be upon the car and unhitch or release the chains when the bunch of logs was hoisted onto the car by the loader.”
In Kluth, the owner and operator of a garage “authorized and permitted gasoline to be used for the purpose of cleaning the premises.”
In Eau Claire Electric Co-op, the foreman mistakenly instructed a subordinate that the electrical line was de-energized.
Stated another way, the plaintiff must establish that the employer failed to adopt a safe method or process that bears a causal connection to the injury sustained by the plaintiff. A plaintiff need only prove the unsafe method or process was a substantial cause of the injury, not the only cause of the injury.[22]
The “methods and processes” requirement can also apply where the employer does not authorize an employee’s conduct, but should have reasonably anticipated it:
An employer cannot permit its rank-and-file employees to do things habitually in the course of their work that are very natural and reasonably to be anticipated, and then escape responsibility for their carelessness in the premises on the grounds that they were not authorized to do such things.[23]
Thus, safe place liability attaches if employees engage in unauthorized unsafe methods and processes where the employer should reasonably anticipate and correct them.
Conclusion
Despite Boyle’s plea 45 years ago for clarity, there has been little exploration of the doctrine since Eau Claire Electric Co-op in 1960.
Plaintiff and defense lawyers should not overlook the “methods and processes” duty, as the legislature has kept it in place and our courts will continue to apply it consistent with the statute.
Endnotes
[1] Wis. Stat. § 101.11(1). ↩
[2]Alvarado v. Sersch, 2003 WI 55, ¶¶ 12-13, 262 Wis. 2d 74, 81, 662 N.W.2d 350, 353 (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting)) (holding that “everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others”); Zehren v. F.W. Woolworth Co., 11 Wis. 2d 539, 544, 105 N.W.2d 563, 566 (1960) (explaining that “[g]enerally the question of whether the safe-place statute is complied with or violated is a question for the jury”). ↩
[3]Deaton v. Unit Crane & Shovel Corp., 265 Wis. 349, 61 N.W.2d 552 (1953); ↩
[4] Wis. Stat. § 101.11(1) (emphasis added). ↩
[5]A series of actions or operations leading to a result. MerriamWebster.com ↩
[6] John A. Becker & Chris G. Halverson, Wisconsin Safe-Place Law, Third Edition, 415-23 (2023). ↩
[7]L.G. Arnold Inc., v. Industrial Comm., 267 Wis. 521, 66 N.W.2d 176 (1954). ↩
[8]Gilson v. Drees Brothers, 19 Wis. 2d 252, 120 N.W.2d 63 (1963). ↩
[9]Korenak v. Curative Workshop Adult Rehab. Ctr., 71 Wis. 2d 77, 237 N.W.2d 43 (1976). ↩
[10]Barth v. Downey Co., Inc., 71 Wis. 2d 775, 239 N.W.2d 92 (1976). ↩
[11]Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 271 N.W.2d 867 (1978). ↩
[12]Leitner v. Milwaukee County, 94 Wis. 2d 186, 287 N.W.2d 803 (1980). ↩
[13]Sparrow v. Menasha Paper Co., 154 Wis. 459, 143 N.W. 317 (1913). ↩
[14]Kelly v. Kneeland-McLung Lumber Co., 161 Wis. 158, 152 N.W. 858 (1915). ↩
[15]Kuske v. Miller Brothers Co., 227 Wis. 300, 277 N.W. 619 (1938). ↩
[16]Kluth v. Crosby, 275 Wis. 251, 81 N.W.2d 515 (1957). ↩
[17]Sachse v. Mayer, 1 Wis. 2d 506, 85 N.W. 2d 485 (1957). ↩
[18]Eau Claire Electric Co-op v. Industrial Comm., 10 Wis. 2d 209, 102 N.W.2d 274 (1960). ↩
[19] Wis. Stat § 101.11(1). ↩
[20]Id. ↩
[21] Wis. Stat. §101.01(4). ↩
[22] Jury instructions and verdicts should always refer to “a cause” or “substantial factor” because “there may be more than one cause of the injury.” Clark v. Leisure Vehicles, 96 Wis.2d 607, 618, 292 N.W.2d 630 (1980). ↩
[23]Uhrman v. Cutler Hammer, Inc., 2 Wis. 2d 71, 77, 85 N.W.2d 772, 775 (1957). ↩
