Chapter 101

101.11 Annotation The obligation of a lessor of a building is limited to structural or physical defects. A temporary condition maintained by the lessee does not impose safe place liability on the lessor. Powell v. Milwaukee Area Technical College District Board, 225 Wis. 2d 794, 594 N.W.2d 403 (Ct. App. 1999), 97-3040.

101.11 Annotation A defect is “structural” if it results from materials used in its construction or from improper layout or construction. Conditions “associated with the structure” are those that involve the structure being out of repair or not being maintained in a safe manner. An owner sustains safe place liability for a structural defect regardless of knowledge of the defect, but with conditions related to the structure, no liability attaches without actual or constructive notice. Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W.2d 517, 98-2557. See also Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.

101.11 Annotation The duties imposed on employers and property owners under this section are nondelegable. Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W.2d 517, 98-2557.

101.11 Annotation This section does not apply to unsafe conditions caused by an injured party’s own negligence or recklessness. If a structure’s alleged disrepair requires reckless or negligent conduct by the plaintiff for the plaintiff to injure herself or himself, the initial disrepair may not be construed as having caused the injury. Hofflander v. St. Catherine’s Hospital, Inc., 2003 WI 77, 262 Wis. 2d 539, 664 N.W.2d 545, 00-2467.

101.11 Annotation Land that is merely appurtenant to a place where business is carried on is not a place of employment under s. 101.01 (11). An owner must have ownership, custody, or control of the place of employment and the premises appurtenant thereto. An owner of appurtenant land who does not also have ownership, custody, or control of the place cannot be liable for injuries sustained at the place. Binsfeld v. Conrad, 2004 WI App 77, 272 Wis. 2d 341, 679 N.W.2d 851, 03-1077.

101.11 Annotation If constructive notice is relied on, generally, evidence of the length of time that the unsafe condition existed is required to establish it. Constructive notice, without a showing of temporal evidence of the unsafe condition, may be imputed in a narrow class of cases where the method of merchandizing articles for sale to the public in the area where the harm occurred should have made that harm reasonably foreseeable at that location. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857, 02-2932.

101.11 Annotation Ten [now seven] years after a structure is substantially completed, s. 893.89 bars safe place claims under this section resulting from injuries caused by structural defects, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252.

101.11 Annotation The owner of a public building is liable for: 1) structural defects; and 2) unsafe conditions associated with the structure of the building. A structural defect is a hazardous condition inherent in the structure by reason of its design or construction. An unsafe condition arises from the failure to keep an originally safe structure in proper repair or properly maintained. A property owner is liable for injuries caused by a structural defect regardless of whether it had notice of the defect, but only liable for an unsafe condition when it had actual or constructive notice of the condition. Rosario v. Acuity, 2007 WI App 194, 304 Wis. 2d 713, 738 N.W.2d 608, 06-2421.

101.11 Annotation Safe is a relative term that does not mean completely free of any hazards. What constitutes a safe place depends on the facts and conditions present and the use to which the place is likely to be put. That a place could be made more safe does not mean that an owner has breached the duty of care established by sub. (1). When the agency having power to adopt orders to secure the safety of employees and frequenters of public buildings has issued a safety order concerning a particular situation, it establishes what is safe, and a jury or court cannot establish any other standard. Szalacinski v. Campbell, 2008 WI App 150, 314 Wis. 2d 286, 760 N.W.2d 420, 07-0667.

101.11 Annotation The trial court erred in finding no unsafe condition under the safe place statute when it applied a height requirement to a sidewalk crack. There is no mathematical deviation rule that is a standard for a safe sidewalk. The ultimate question is not what is a defect, or how many inches high is the obstruction or deep the depression, but solely whether under all circumstances affecting the sidewalk it is in a reasonably safe condition for public travel by persons exercising ordinary care for their own safety. Gulbrandsen v. H&D, Inc., 2009 WI App 138, 321 Wis. 2d 410, 773 N.W.2d 506, 08-2990.

101.11 Annotation The safe place statute includes a duty on employers to inspect premises to ensure that they are safe. Failure to comply renders the employer liable for the violation of the safe place statute. The duty to maintain does not arise until constructive knowledge of the defect exists, but if an adequate inspection would have revealed the defect and that inspection was not performed, the jury may infer constructive notice of the defect. The safe place statute applies the duty to maintain to both owners and employers alike. Gennrich v. Zurich American Insurance Co., 2010 WI App 117, 329 Wis. 2d 91, 789 N.W.2d 106, 09-2111.

101.11 Annotation A “structural defect” for which an owner sustains safe place liability for the defect regardless of knowledge of the defect arises from design or construction flaws when a building element is put in place, whether as an original part of a structure or as a replacement. This contrasts with features of a structure that were installed safely and then developed into a hazard. Wagner v. Cincinnati Casualty Co., 2011 WI App 85, 334 Wis. 2d 516, 800 N.W.2d 27, 10-1195.

101.11 Annotation The presence of asbestos in the air during and following routine repairs to the defendant’s buildings constituted an unsafe condition associated with the premises. Viola v. Wisconsin Electric Power Co., 2014 WI App 5, 352 Wis. 2d 541, 842 N.W.2d 515, 13-0022.

101.11 Annotation The safe place statute is a negligence statute that imposes a heightened duty on owners of public buildings to construct, repair, and maintain their buildings safely. The statute does not address negligent acts; instead, it addresses unsafe property conditions. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.

101.11 Annotation A plaintiff need not prove the exact moment an unsafe condition commenced, so long as the evidence is sufficient to prove the unsafe condition existed long enough to give the defendant constructive notice of its presence. Correa v. Woodman’s Food Market, 2020 WI 43, 391 Wis. 2d 651, 943 N.W.2d 535, 18-1165.

101.11 Annotation The safe place statute does not extend to vehicles. Hopkins v. Ros Stores, Inc., 750 F. Supp. 379 (1990).

101.11 Annotation Under the safe place statute, an owner is only absolved of its statutory duty if it relinquishes complete control of the premises to a contractor, and the premises are in a safe condition at that time. The owner must have control over the place such that it can carry out its duty to furnish a safe place of employment, but the control and custody of the premises need not be exclusive, nor is it necessary to have control for all purposes. Anderson v. Proctor & Gamble Paper Products Co., 924 F. Supp. 2d 996 (2013).

101.111 101.111 Excavations; protection of adjoining property and buildings.

101.111(1) (1) Definition. In this section “excavator” means any owner of an interest in land making or causing to be made an excavation.

101.111(2) (2) Cave-in prevention. Any excavator shall protect the excavation site in such a manner so as to prevent the soil of adjoining property from caving in or settling.

101.111(3) (3) Liability for underpinning and foundation extensions.

101.111(3)(a) (a) If the excavation is made to a depth of 12 feet or less below grade, the excavator may not be held liable for the expense of any necessary underpinning or extension of the foundations of buildings on adjoining properties.

101.111(3)(b) (b) If the excavation is made to a depth in excess of 12 feet below grade, the excavator shall be liable for the expense of any necessary underpinning or extension of the foundations of any adjoining buildings below the depth of 12 feet below grade. The owners of adjoining buildings shall be liable for the expense of any necessary underpinning or extension of the foundations of their buildings to the depth of 12 feet below grade.

101.111(4) (4) Notice. Unless waived by adjoining owners, at least 30 days prior to commencing the excavation the excavator shall notify, in writing, all owners of adjoining buildings of his or her intention to excavate. The notice shall state that adjoining buildings may require permanent protection. The owners of adjoining property shall have access to the excavation site for the purpose of protecting their buildings.

101.111(5) (5) Employees not liable. No worker who is an employee of an excavator may be held liable for his or her employer’s failure to comply with this section.

101.111(6) (6) Failure to comply; injunction. If any excavator fails to comply with this section, any aggrieved person may commence an action to obtain an order under ch. 813 directing such excavator to comply with this section and restraining the excavator from further violation thereof. If the aggrieved person prevails in the action, he or she shall be reimbursed for all his or her costs and disbursements together with such actual attorney fees as may be approved by the court.

101.111 History History: 1977 c. 88; 2017 a. 365.

101.111 Cross-reference Cross-reference: See also s. SPS 362.3300, Wis. adm. code.

101.12 101.12 Approval and inspection of public buildings and places of employment and components.

101.12(1) (1) Except for plans that are reviewed by the department of health services under s. 50.02 (2) (b), 50.025, 50.36 (2), or 50.92 (3m), the department shall require the submission of essential drawings, calculations and specifications for public buildings, public structures and places of employment including the following components:

101.12(1)(a) (a) Heating, ventilation, air conditioning and fire detection, prevention or suppression systems.

101.12(1)(b) (b) Industrial exhaust systems.

101.12(1)(c) (c) Elevators, escalators, lifts, as defined in s. 167.33 (1) (f), and power dumbwaiters.

101.12(1)(d) (d) Stadiums, grandstands and bleachers.

101.12(1)(e) (e) Amusement and thrill rides equipment.

101.12(2) (2) Plans of said buildings, structures and components shall be examined for compliance with the rules of the department and a statement of the examination returned to the designer and owner before construction is started. Nothing in this section shall relieve the designer of the responsibility for designing a safe building, structure or component.

101.12(3) (3) The department shall:

101.12(3)(a) (a) Accept the examination of essential drawings, calculations and specifications in accordance with sub. (1) performed by cities of the 1st class provided the same are examined in a manner approved by the department.

101.12(3)(am) (am) Accept the examination of essential drawings, calculations and specifications in accordance with sub. (1) performed by a 2nd class city that is certified pursuant to sub. (3m).

101.12(3)(b) (b) Accept the examination of essential drawings, calculations, and specifications in accordance with sub. (1) for buildings containing less than 50,000 cubic feet of volume and alterations of spaces involving less than 100,000 cubic feet of volume performed by cities, villages, towns, or counties, provided the same are examined in a manner approved by the department. The department shall determine and certify the competency of all such examiners.

101.12(3)(bg) (bg) Accept the examination of essential drawings, calculations, and specifications in accordance with sub. (1) for buildings and alterations not specified in par. (b) if all of the following are satisfied:

101.12(3)(bg)1. 1. The department appoints the city, village, town, or county as an agent of the department under sub. (3g).

101.12(3)(bg)2. 2. The drawings, calculations, and specifications are examined in a manner approved by the department.

101.12(3)(bg)3. 3. The department determines and certifies the competency of all such examiners.

101.12(3)(bm) (bm) Accept the review and determination performed by 1st class cities on variances for buildings if the variances are reviewed and decided on in a manner approved by the department.

101.12(3)(bq) (bq) Accept the review and determination performed by 2nd class cities that are certified pursuant to sub. (3m) on variances for buildings if the variances are reviewed and decided on in a manner approved by the department.

101.12(3)(br) (br) Accept the review and determination on variances for buildings containing less than 50,000 cubic feet of volume and alterations of spaces involving less than 100,000 cubic feet of volume performed by cities, villages, towns, and counties certified under par. (b) if the department has certified the competency of the city, village, town, or county to issue variances and if the variances are reviewed in a manner approved by the department. Owners may submit variances to the city, village, town, or county or to the department.

101.12(3)(bw) (bw) Accept the review and determination on variances for buildings and alterations not specified in par. (br) performed by cities, villages, towns, or counties certified under par. (b) that the department has appointed as agents under sub. (3g), if the department has certified the competency of the city, village, town, or county to issue variances and if the variances are reviewed in a manner approved by the department. Owners may submit variances to the city, village, town, or county or to the department.

101.12(3)(c) (c) Determine and certify the competency of inspectors of boilers, unfired pressure vessels, refrigeration plants, elevators, escalators and power dumbwaiters.

101.12(3)(d) (d) Accept inspections at no cost performed by inspectors for whom evidence of competency has been furnished to the department.

101.12(3)(e) (e) Approve inspection service maintained or employed by owners or operators of boilers and unfired pressure vessels.

101.12(3)(f) (f) Accept inspections at no cost performed by approved owner or operator inspection service and provide shop inspection service when deemed necessary.

101.12(3)(g) (g) Accept inspection at no cost when performed by qualified and authorized inspectors for a city, village, town or county for the inspection of buildings and equipment located within the city, village, town or county. The department shall determine and certify the competency of all such inspectors.

101.12(3)(h) (h) Require all local officers not authorized by the department to grant approvals as provided in pars. (a) and (b) to deny permits or licenses for construction or use of public buildings, public structures and places of employment until the required drawings and calculations have been examined by the department.

101.12(3c) (3c) If the department has delegated authority to perform building inspection services under this section to a city, village, town, or county and the city, village, town, or county has assumed that responsibility, the department may not perform building inspection services within the scope of that delegation in the city, village, town, or county.

101.12(3g) (3g) 

101.12(3g)(a) (a) This subsection establishes the manner under which a city, village, town, or county may examine plans and make inspections for buildings and alterations not specified under sub. (3) (b) as an appointed agent of the department.

101.12(3g)(b) (b) Before assuming any of the department’s plan examination or inspection responsibilities for buildings and alterations not specified in sub. (3) (b), a city, village, town, or county shall comply with all of the following:

101.12(3g)(b)1. 1. Submit a written request to the department at least 30 days prior to the date upon which the city, village, town, or county desires to assume agent responsibilities for plan examination or building inspection.

101.12(3g)(b)2. 2. Include a description of the desired responsibilities in the request under subd. 1.

101.12(3g)(b)3. 3. Include in the request under subd. 1. a description of the qualifications and ability the city, village, town, or county has for assuming the desired responsibilities.

101.12(3g)(b)4. 4. Adopt the commercial building code in its entirety by ordinance.

101.12(3g)(b)5. 5. Forward to the department a copy of the ordinance specified in subd. 4. and any subsequent revisions to that ordinance.

101.12(3g)(b)6. 6. Receive from the department a written statement prescribing the responsibilities that are to be assumed.

101.12(3g)(c) (c) The department shall review and make a determination on a request submitted under par. (b) 1. within 20 business days of receipt.

101.12(3g)(d) (d) While appointed as an agent, a city, village, town, or county is subject to s. SPS 361.60 (5) (d) to (h) and (6), Wis. Adm. Code, and shall comply with all of the following:

101.12(3g)(d)1. 1. Submit to the department the fees specified in s. SPS 302.31 (1) (h), Wis. Adm. Code.

101.12(3g)(d)2. 2. Provide a monthly report to the department of all projects completed under this subsection, in an electronic-based format prescribed by the department.

101.12(3g)(d)3. 3. Forward to the department any revisions to the ordinance specified in par. (b) 4.

101.12(3g)(d)4. 4. Notify the department, in writing, at least 30 days prior to the date upon which the city, village, town, or county intends to relinquish the responsibilities assumed under this subsection.

101.12(3g)(e) (e) The department may revoke the appointment of an agent if the plan examiners or inspectors of the agent do not meet the standards specified by the department or if other requirements of this subchapter are not met.

101.12(3m) (3m) 

101.12(3m)(a) (a) The department shall promulgate rules for the administration of a program to certify 2nd class cities to perform the examination of essential drawings, calculations and specifications in accordance with sub. (1).

101.12(3m)(b) (b) A 2nd class city may apply for certification by the department under this subsection if that city employs at least one architect or one professional engineer who has been granted a certificate of registration under s. 443.10. The department shall certify a 2nd class city when the department determines and certifies the competency of all examiners employed by the city. The department shall review the competency of the examiners of a city that is certified under this subsection on a regular basis and may revoke the certification of a city if the examiners do not meet standards specified by the department.

101.12(3m)(c) (c) Owners within the 2nd class city may obtain examinations from the city or the department.

101.12(3m)(d) (d) The department shall certify 2nd class cities to perform reviews and determinations of variances under sub. (3) (bq) if the 2nd class city has been certified for purposes of sub. (3) (b).

101.12(3m)(e) (e) The department shall by rule set fees, to be collected by the 2nd class city and remitted to the department, to meet the department’s costs in enforcing and administering its duties under sub. (3) (am) and this subsection.

101.12(3o) (3o) 

101.12(3o)(a) (a) In this subsection:

101.12(3o)(a)1. 1. “Agent appointment” means appointment as an agent of the department under sub. (3g) or s. SPS 361.61, Wis. Adm. Code, in effect on April 4, 2018.

101.12(3o)(a)2. 2. “Certification” means certification under sub. (3) (b) or (3m).

101.12(3o)(b) (b) The department shall establish requirements for cities, villages, towns, and counties to electronically renew their agent appointments and certifications every 5 years. The process shall allow cities, villages, towns, and counties with agent appointments and certifications made 5 years or more before April 5, 2018, to renew those agent appointments and certifications within deadlines specified by the department.

101.12(3r) (3r) An owner of a building may request, and the department may grant, a variance from standards contained in a rule relating to constructing, altering, and adding to public buildings and buildings that are places of employment if the department finds that the requested variance will impose an equivalent standard that meets the intent of the rule.

101.12(4) (4) 

101.12(4)(a) (a) Except as provided in par. (b), any inspection performed to determine compliance with the rules promulgated by the department that relate to constructing, altering, or adding to public buildings and buildings that are places of employment may be performed only by a person who is certified under rules promulgated by the department to make such inspections.

101.12(4)(b) (b) The certification requirement under par. (a) does not apply to any of the following:

101.12(4)(b)1. 1. An inspection performed under s. 101.14 (2) (b) or (c) by an inspector who is designated under s. 101.14 (2) (d) to make such inspections.

101.12(4)(b)2. 2. An inspection performed by an inspector who has received certification under s. 101.14 (4r).

101.12(5) (5)