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:
- the plaintiff must prove that the injury occurred as result of the causal negligence of the owner or occupier of the premises;
- the owner or occupier of the premises can raise as an affirmative defense the plaintiff’s own causal contributory negligence;
- the causal negligence of all parties will be compared to each other, with the total equaling 100%;
- 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;
- 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:
- the ownership of the property;
- the identify of lessees or other permitted occupiers;
- contractual obligations between the owners, lessees and independent contractors concerning maintenance of the premises;
- the identity of the insurers;
- the existence of accident reports and incident reports;
- the existence and statements of witnesses;
- the persons responsible for design, construction and maintenance;
- the historical record of design, construction and maintenance;
- the national, state, local and private industry standards for design, construction and maintenance of the particular premises involved;
- whether the condition was in fact unsafe;
- the historical record of safety or lack of safety of the premises;
- whether the defendant knew or should have known of the condition before the injury, and had an opportunity to remedy the situation;
- 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;
- 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
- 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).