Quite frequently, individuals
who sustain an injury while they were on the
property of another person seek legal advice on
whether and under what circumstances they may
recover damages from the owner or occupier of
the premises, or the insurance company involved.
The topic of premises liability is perhaps the
second most often discussed type of case in the
law offices of plaintiffs’ attorneys, behind
motor vehicle accident liability. In
Wisconsin, the compensability of premises
accidents depends on fault. The mere fact
that a person is injured in an accident while on
the property of another does not entitle the
accident victim to recover damages from the
owner or occupier of the property. The law
requires more. These types of cases are
governed by the comparative negligence statute.
The victim’s conduct is of just as much concern
to the courts as is the conduct of the owner or
occupier of the premises.
Wis. Stat.
§ 895.045, provides that contributory negligence
does not bar recovery in an action by any person
to recover damages for negligence resulting in
injury to a person, if that negligence was not
greater than the negligence of the person
against whom recovery is sought, but any damages
allowed shall be diminished in the proportion to
the amount of negligence attributed to the
person recovering. The court will compare
the negligence of the claimant separately to the
negligence of each person found to be causally
negligent. The liability of each person
found to be causally negligent whose percentage
of causal negligence is less than 51% is limited
to the percentage of the total causal negligence
attributed to that person. A person found
to be causally negligent whose percentage of
causal negligence is 51% or more shall be
jointly and severally liable for the damages
allowed.
What this means is the
following:
(1)
the plaintiff must prove that the injury
occurred as result of the causal negligence of
the owner or occupier of the premises;
(2)
the owner or occupier of the premises can raise
as an affirmative defense the plaintiff’s own
causal contributory negligence;
(3)
the causal negligence of all parties will be
compared to each other, with the total equaling
100%;
(4)
if the plaintiff has some contributory causal
negligence, the plaintiff can still prevail,
unless the plaintiff’s causal contributory
negligence is greater than the defendant’s
causal negligence;
(5)
the plaintiff’s damages will be reduced by the
plaintiff’s percentage of causal negligence.
In the
typical fall down case, the plaintiff claims
that the injury was the result of the
defendant’s negligent design, construction or
maintenance of unsafe premises, while the
defendant denies negligence, denies that the
premises were unsafe, and affirmatively alleges
that the accident was a result of the
plaintiff’s contributory negligence. In
such a case, the jury would answer
interrogatories in the verdict asking whether
and to what extent each party was causally
negligent. The jury would also assess the
plaintiff’s damages for medical expenses, loss
of earnings, pain and suffering, and any other
relevant elements, without regard to how the
fault questions were answered. If the
plaintiff were assessed some percentage of
causal negligence up to but not exceeding 50%,
the plaintiff would prevail, but the damages
would be reduced by the plaintiff’s percentage.
If the jury were to assess no causal negligence
on the defendant, or to assess a higher
percentage of causal negligence on the plaintiff
than on the defendant, the plaintiff would lose.
Most
premises liability cases are hotly contested.
In many cases, there is some fault on both the
plaintiff and the defendant. For every claim by
the plaintiff that the walking surface was
unsafe, there is an affirmative defense by the
owner or occupier of the premises that the
plaintiff should have been looking where the
plaintiff was walking before the fall.
The negligence split frequently is between
40%-60% on each party. If the plaintiff
gets 40% of the blame, the plaintiff gets 60% of
the plaintiff’s damages, but if the plaintiff
gets 60% of the blame, the plaintiff loses. The
plaintiff usually has a hard time not only
proving that the premises were unsafe, but also
that the defendant was negligent. Proof of
negligence requires evidence that the defendant
either knew or should have known of the unsafe
condition, and that the defendant failed to
exercise reasonable care to remedy the unsafe
condition before the accident occurred. It
is often difficult, if not impossible, for a
plaintiff to prove how long an unsafe condition
existed, so as to constitute actual or
constructive notice to the defendant, and to
allow the defendant a reasonable opportunity to
take corrective measures.
The
assistance of an experienced trial lawyer is
essential to ferret out the relatively few,
winnable premises liability cases from the
universe of unwinnable premises liability cases.
A qualified trial lawyer can track down the
essential facts needed to establish liability,
including the following:
(1) the ownership
of the property;
(2) the identify
of lessees or other permitted occupiers;
(3) contractual
obligations between the owners, lessees and
independent contractors concerning maintenance
of the premises;
(4) the identity
of the insurers;
(5) the existence
of accident reports and incident reports;
(6) the existence
and statements of witnesses;
(7) the persons
responsible for design, construction and
maintenance;
(8) the
historical record of design, construction and
maintenance;
(9) the national,
state, local and private industry standards for
design, construction and maintenance of the
particular premises involved;
(10) whether the condition
was in fact unsafe;
(11) the historical
record of safety or lack of safety of the
premises;
(12) whether the defendant
knew or should have known of the condition
before the injury, and had an opportunity to
remedy the situation;
(13) whether
subsequent remedial measures were taken
following the accident that are admissible to
show the feasibility of precautionary measures
that should have been taken, but were not taken
prior to the accident;
(14) whether there are any
statutes that created additional duties on the
defendant, such as the Wisconsin Safe Place law,
Wis. Stat. §§ 101.01 and 101.11; and
(15) whether the defendant
is entitled to recreational immunity under Wis.
Stat. § 895.52.
Some of
the most relevant Wisconsin Supreme Court and
Court of Appeals cases that address these issues
are summarized in the annotations to the
Wisconsin Safe Place Statute, Wis. Stat. §§
101.01 and 101.11, and the following cases:
Rosario v. Acuity and Oliver
Adjustment Co., Inc., 2007 WI App. 194,
738N.W.2d 608 (Ct. App. 2007)(10-year statute of
repose barred safe place claim against building
owner for foot fracture sustained by trip and
fall on 3-inch step that violated the state
building code, since it was a structural defect
that existed for over 10 years);
Held v. Ackerville Snowmobile
Club, Inc., 2007 WI App. 43, 730 N.W.2d 428 (Ct.
App. 2007)(occupier of private land used for
snowmobiling was immune from liability for
injuries sustained by snowmobilers in collision
with abandoned trail grooming sled under Wis.
Stat. § 895.52, since (1) injuries were
sustained during recreational activity; (2) the
allegedly negligent party was an owner or
occupier of the property where the injury
occurred; and (3) the allegedly negligent act
was related to the maintenance or condition of
the property);
Richards v. Badger Mutual
Ins. Co., 2006 WI App. 255, 297 Wis. 2d 699, 727
N.W.2d 69 (Ct. App. 2006)(procurer of alcohol to
minors who subsequently drove intoxicated and
killed another motorist in an accident was not
jointly and severally liable under Wis. Stat. §
895.045(2) for “concerted action” since the
common scheme or plan was to acquire alcohol,
not to drive intoxicated);
Holschback v. Washington Park Manor, 2005 WI
App. 55, 694 N.W.2d 492 (Ct. App. 2005), the
court held that a pedestrian who slipped and
fell on a snow-covered public sidewalk was not
entitled to recover damages from the owner of
the property abutting the sidewalk for not
alleviating that condition. The court
explained that when a properly working downspout
built in the ordinary and usual manner
discharges water upon the property and such
water finds its way to the public sidewalk
because of the natural slope and topography of
the land, the resulting run-off onto the
sidewalk is not an artificial condition, but a
natural condition for which the property owner
is not subject to liability.
Megal v. Green Bay Area Visitor and Convention
Bureau, Inc.,
274 Wis.2d 162, 682 N.W.2d 857 (2004)(no safe
place liability for fall on a French fry that
was left in place for an undetermined period of
time, but common law negligence claim might be
viable to establish liability);
Rizzuto v. Cincinnati Ins. Co., 261 Wis.2d
581, 659 N.W.2d 476 (Ct. App. 2003)(worker, who
sustained injuries when a granite tile fell from
elevator wall in building in which she worked,
failed to present sufficient evidence that owner
had either actual or constructive notice of
defect, for purposes of establishing liability
for unsafe condition associated with structure
of building);
Barry v. Employers Mut. Cas. Co., 245 Wis.2d
571, 630 N.W.2d 522 (2001)(Wisconsin's safe
place statute is a negligence statute that
"establishes a duty greater than that of
ordinary care imposed at common law; where the
property condition that causes the injury is an
unsafe condition associated with the structure,
the property owner may be held liable only if he
or she had actual or constructive notice of the
defect);
Kaufman v. State St. Ltd.
Partnership, 187 Wis.2d 54, 522 N.W.2d 249
(Ct.App.1994)(plaintiff slipped and fell on a
banana while walking through a store's parking
lot; the store had no actual notice of the
banana, and no evidence was offered as to how
long the banana had been on the parking lot;
court declined to extend the Strack exception
"beyond the doors of the premises absent any
'length of time' evidence.");
Callan v. Peters Construction
Co., 94 Wis.2d 225, 288 N.W.2d 146 (Ct. App.
1979)(evidence permitted the jury to find that
the store lessee was in violation of the safe
place statute by reason of construction and
debris over which the store lessee knew that
frequenters would be crossing in order to enter
the store);
May v. Skelly Oil Co., 83
Wis.2d 30, 264 N.W.2d 574 ((1978)(constructive
notice is chargeable only where the hazard
existed for a sufficient length of time to allow
the vigilant owner or employer the opportunity
to discover and remedy the situation;
constructive notice cannot be found when there
is no evidence as to the length of time the
condition existed);
Dykstra v. Arthur G. McKee &
Co., 92 Wis.2d 17, 284 N.W.2d 692 (Ct. App.
1979), aff'd, 100 Wis.2d 120, 301 N.W.2d 201
(1981), constructive notice of unsafe condition
existed where the general building contractor
and owner negligently failed to keep a concrete
floor of a corridor inside a building reasonably
free from water and sand; duties under the safe
place statute are non-delegable);
Haggerty v. Village of Bruce,
82 Wis.2d 208, 262 N.W.2d 102 (1978)(municipal
ordinances may not delegate the municipality's
primary duty to maintain its public sidewalks in
a reasonably safe condition and, consequently,
ordinances requiring abutting landowners to
remove snow and ice are limited to protecting
the interests of the community, and not its
individual members);
There is
an exception if the adjoining landowner causes
an artificial accumulation that leaks onto the
public way, thereby creating the hazard.
Gruber v. Village of North Fond du Lac, 267
Wis.2d 368, 671 N.W.2d 692 (Ct. App. 2003).
Balas v. St. Sebastian’s
Congregation, 66 Wis.2d 421, 225 N.W.2d 428
(1975)(common law negligence cannot be found
where a violation of the safe-place statute
cannot be established);
Fitzgerald v. Badger State
Mut. Cas. Co., 67 Wis.2d 321, 227 N.W.2d 444
((1975)(the three elements necessary to find
liability under the statute are: (1) the
existence of a hazardous condition; (2) that
such condition caused the injury; and (3) that
the building owner knew or should have known of
the condition);
Steinhorst v. H.C. Prange
Co., 48 Wis.2d 679, 180 N.W.2d 525
(1970)(plaintiff slipped on shaving cream while
walking in the aisle for a self-service men's
cosmetic counter in a department store; "unsafe
condition here was substantially caused by the
method used to display merchandise for sale.");
Strack v. Great Atlantic and
Pacific Tea Co., 35 Wis.2d 51, 150 N.W.2d 361
(1967)( plaintiff fell in a supermarket on a
"little Italian prune;" when unsafe condition
arises out of course of conduct or method of
operation of owner or operator of premises, a
much shorter period of time and possibly no
appreciable period of time need exist to
constitute constructive notice; when a store
displays its fruit in such a way that customers
may handle and drop or knock it to the floor,
the storekeeper must take reasonable measures to
discover and remove the debris from the floor.
The storekeeper who fails to take those measures
has constructive notice of the condition if it
causes a customer to slip and fall);
Rudzinski v. Warner Theatres,
16 Wis.2d 241, 114 N.W.2d 466 (1962)(trial court
erred in directing a verdict against plaintiff,
who fell on wet spots from spilt beer on theatre
terrazzo lobby floor, in the absence of proof of
how long the floor was wet, where usher was
sitting six feet away, and would have had
constructive notice);
Kosnar v. J.C. Penney Co., 6
Wis.2d 238, 94 N.W.2d 642 (1959)(when the
defendant creates the hazard, no notice is
required); Wis. J.I. Civil 1900.4;
Walley v. Patake, 271 Wis.
530, 74 N.W.2d 130(1956)(the owners and
occupiers of the premises abutting a street in a
city are not responsible to individuals for
injuries resulting from a failure to remove from
the sidewalk accumulations of snow and ice
created by natural causes, although there is a
valid ordinance requiring them to remove such
accumulations. The only liability is to
pay the penalty prescribed by the ordinance).
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