Krause v. Veterans of Foreign Wars, Post No. 6498

• Decision Date: 08 March 1960
• Docket Number: No. 6498,6498
• Citation: Krause v. Veterans of Foreign Wars, Post No. 6498, 101 N.W.2d 645, 9 Wis.2d 547 (Wis. 1960)
• Parties: Lora KRAUSE et al., Appellants, v. VETERANS OF FOREIGN WARS, POST , a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 645

101 N.W.2d 645

9 Wis.2d 547

Lora KRAUSE et al., Appellants, v.VETERANS OF FOREIGN WARS, POST

No. 6498, a Wis. corporation, Respondent.

Supreme Court of Wisconsin March 8, 1960.

Moore & Moore, Milwaukee, for respondent.

CURRIE, Justice.

The plaintiffs' complaint alleges that the defendant violated the Safe Place Statute(sec. 101.06)¹.The evidence did not disclose any structural defect in defendant's building but rather a temporary condition wholly disassociated from the structure.Therefore, there could be no liability imposed upon the defendant as an owner of a public building, but any liability would have to be predicated upon the defendant's failure to safely maintain a place of employment.Jaeger v. Evangelical Lutheran Holy Ghost Congregation, 1935, 219 Wis. 209, 212, 262 N.W. 585, andHarnett v. St. Mary's Congregation, 1956, 271 Wis. 603, 610, 74 N.W.2d 382.It is conceded that defendant's clubhouse did constitute a place of employment.

The plaintiffs contend on this appeal that question No. 4 of the special verdict was unnecessary and, therefore, the jury's answer thereto should have been disregarded by the trial court, and judgment should have been rendered in plaintiffs' behalf for 75 per cent of the damages found by the jury.In support of such contention the plaintiffs maintain that QuestionNo. 2 is the question which inquires as to the defendant's negligence, and, therefore, it necessarily embodies within it the element of the defendant's knowledge of the unsafe condition of the dance floor, or of facts which should have put it on notice thereof.

It is well established in Wisconsin that the Safe Place Statute does not create a cause of action.'It merely lays down a standard of care and if those to whom it applies violate the provisions thereof they are negligent.'Ermis v. Federal Windows Mfg. Co., 1959, 7 Wis.2d 549, 555, 97 N.W.2d 485, 488.The learned trial judge undoubtedly had this principle in mind when he framed QuestionNo. 3 of the special verdict.This is because such question inquires, 'Was such negligence on the part of defendant a cause of Lora Krause's injuries?'It is the violation of the Safe Place Statute which constitutes negligence on the part of an owner of a place of employment.In this respect such statute does not differ from any other safety statute which imposes a duty to exercise a certain prescribed type of care, such as those rules of the road which are embodied in statutes.

In order for the owner of a place of employment to be found to have violated the Safe Place Statute with respect to a defect due to a failure of maintenance or repair, he must have had either actual or constructive notice of such defect.Shumway v. Milwaukee Athletic Club, 1945, 247 Wis. 393, 20 N.W.2d 123;Boutin v. Cardinal Theatre Co., 1954, 267 Wis. 199, 204, 64 N.W.2d 848, andUhrman v. Cutler-Hammer, Inc., 1957, 2 Wis.2d 71, 75, 85 N.W.2d 772.The rationale of such rule is stated in Pettric v. Gridley Dairy Co., 1930, 202 Wis. 289, 292, 232 N.W. 595, 597, as follows:

'In terms, the statute[sec. 101.06] imposes the absolute duty upon the employer to repair and maintain the place of employment so as to render the same safe.We have given consideration to the question of whether this statutory provision does impose an absolute duty on the employer so as to make him practically an insurer of the safety of his premises so far as repair and maintenance is concerned.It would seem that in order to make an employer liable for defects in the nature of repair or maintenance he should have either actual or constructive notice of such defects.Natural principles of justice would seem to require that.* * * We therefore consider that the legislative purpose will be given full scope if the language of the statute be interpreted in accordance with these natural principles of justice, and hold that the duty of the employer to repair or maintain his place of employment does not arise until he has either actual or constructive notice of the defect.'(Emphasis supplied.)

We would agree with plaintiffs' contention that QuestionNo. 2 of the verdict made Question 4 superfluous, if the trial court would have charged the jury with respect to the necessity of the jury finding that the defendant had either actual or constructive notice of the alleged unsafe condition in order for the jury to answer QuestionNo. 2'yes.'However, the trial court gave no such instruction with...