July 25, 2018
Litigants in premises liability cases often look for numerous ways to posture their cases. Plaintiffs attempt to prove liability against defendants and maximize their recovery. In contrast, defendants attempt to reduce liability exposure and limit the plaintiffs’ recovery. This posturing often times revolves around the following: contributory negligence, notice, control, tender, and the nature of the premises.
A. Contributory Negligence
The safe place statute does not absolve the plaintiff of the duty to use ordinary care for his own safety. Gross v. Denow, 61 Wis. 2d 40, 51, 212 N.W.2d 2 (1973). The statute allows for a reduction in damages due to contributory negligence. Id.
Contributory negligence has been defined as “conduct by an injured party that falls below the standard to which a reasonably prudent person in that injured party’s position should conform for his or her own protection and that is a legally contributing cause of the injured party’s harm.” Brown v. Dibbell, 227 Wis. 2d 28, 41, 595 N.W.2d 358, 365 (1999). The injured party’s standard of care is also defined by the Wisconsin Civil Jury Instructions as follows: “Every person in all situations has a duty to exercise ordinary care for his or her own safety. This does not mean that a person is required at all hazards to avoid injury; a person must, however, exercise ordinary care to take precautions to avoid injury to him or herself.” Wis. JI–Civil 1007 (2013).
In premises liability cases, the plaintiff’s injury may arise out of a trip or slip and fall over some object. This situation may cause the parties to request that the court insert additional and more specific contributory negligence instructions. For example, Wisconsin Jury Instruction 1049 focuses on “[a] pedestrian[’s] . . . duty to exercise ordinary care to observe the sidewalk (roadway) and its immediate surroundings to discover any dangerous condition or defect that would be discoverable by an ordinarily prudent pedestrian under like or similar circumstances.” Wis. JI–Civil 1049 (2013).
Contributory negligence reduces an injured party’s recovery. Pure contributory negligence jurisdictions follow the principle whereby a plaintiff found remotely responsible for his or her own injury cannot receive damages from the defendant(s), even if the plaintiff’s negligence is only 1 percent. Comparative negligence jurisdictions compare the negligence of the plaintiff against the negligence of the defendant(s). Wisconsin is a modified comparative jurisdiction—a plaintiff is entitled to recover from a defendant if the plaintiff’s percentage of causal negligence is less than or equal to the defendant’s percentage of causal negligence. The concept is established by section 895.045 of the Wisconsin Statutes, which states:
Contributory negligence does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, 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 portion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against 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 negligence is 51% or more shall be jointly and severally liable for the damages allowed.
The statute sets forth a number of other important legal principles. First, an injured party’s recovery will be diminished in proportion to the amount of causal negligence attributed to the injured party. Wis. Stat. § 895.045(1) (2013). Second, an injured party’s causal negligence shall be measured separately against the negligence of each person found to be causally negligent. Id. If the percentage of causal negligence attributed to the injured party is greater than the causal negligence apportioned to a particular defendant, then recovery is barred against that defendant. Id. Lastly, any defendant found less than 51 percent causally negligent is not subject to joint and several liability. Id. In contrast, any defendant found 51 percent or more causally negligent will be jointly and severally liable. Id.
Hypothetical: the jury finds that the Plaintiff sustained $100,000 in damages and it apportions causal negligence in the following manner:
- Defendant No. 1 55%
- Defendant No. 2 10%
- Defendant No. 3 20%
First, the plaintiff’s contributory negligence will reduce recoverable damages to $85,000. Second, the Plaintiff will not be able to recover from Defendant No. 2 because the Plaintiff’s negligence exceeds the negligence of Defendant No. 2. The Plaintiff is able to recover from Defendant No. 1 and Defendant No. 3. Defendant No. 1 is jointly and severally liable, and thus, responsible for between $65,000 and $85,000 in damages, depending on the collectability of Defendant No. 3. Defendant No. 3 would be severally liable, and thus, responsible for $20,000. In the vast majority of cases, the comparison of the injured party’s causal negligence to the defendant’s causal negligence will be a jury question. Bentzler v. Braun, 34 Wis. 2d 362, 390, 149 N.W.2d 626, 642 (1967). However, in rare circumstances, a court may determine that the injured party’s causal negligence exceeds the defendant’s as a matter of law. See, e.g., Peters v. Menards, Inc., 224 Wis. 2d 174, ¶ 43, 589 N.W.2d 395, ¶ 43 (1999). These rare cases involve situations where there is undisputed evidence that the injured party breached his or her duty of ordinary care and where the evidence of negligence against the defendant is scant at best. See id. ¶¶ 31–46; see also Jankee v. Clark County, 2000 WI 64, ¶¶ 88–90, 235 Wis. 2d 700, 612 N.W.2d 297 (holding that the negligence of a health patient who sustained injuries while attempting to escape through the window of a county hospital exceed that of any defendant as a matter of law); Johnson v. Gradzielewski, 159 Wis. 2d 601, 609, 465 N.W.2d 503, 506 (Ct. App. 1990); Brunette v. Employers Mut. Liab. Ins. Co., 107 Wis. 2d 361, 364–65, 320 N.W.2d 43, 44–45 (Ct. App. 1982).
For example, in Peters, the plaintiff attempted to steal merchandise from Menards. Peters, 224 Wis. 2d 174, ¶ 4. Menards’ security chased the plaintiff for a period of time. Id. ¶ 9. At some point, the plaintiff came across a flooded marsh and continued his attempt to flee. Id. ¶ 12. Ultimately, the plaintiff drowned in the flooded area. Id. ¶ 14.
The Supreme Court of Wisconsin concluded that it was proper to grant summary judgment in favor of the defendant because the plaintiff’s negligence exceeded the defendant’s negligence as a matter of law. Id. ¶ 39. The court reasoned that, “[t]he substantial risk inherent in jumping into a plainly flooded river with a fast moving current would be apparent to an ordinarily prudent person.” Id. Thus, in the court’s view, the negligence of the plaintiff was clear.
On the other hand, the court found that “[t]he conduct of the security guards was far less culpable by comparison, if it was culpable at all.” Id. ¶ 40. The court was careful to note that, “[t]he guards could not have foreseen that [the plaintiff] would go to such dangerous lengths to escape from them.” Id. Summarizing its decision, the court stated “[t]here is no question that even if any negligence could be attributed to the security guards, it does not even come close to the much greater negligence exhibited by [the plaintiff]. Therefore, we hold that [the plaintiff’s] negligence exceeded any negligence which could be placed on defendants as a matter of law.” Id.
While litigants should consider the possibility of a court finding that the injured party’s negligence exceeds the defendant’s negligence as a matter of law, they should similarly note the rarity of such a finding. Only a small number of courts have reached this conclusion, and the facts of these cases are quite extreme. See, e.g., id. Accordingly, for the most part, litigants can expect that the allocation of contributory negligence will be left to the jury.
In sum, contributory negligence is a primary battleground area in premises liability cases. Plaintiffs will emphasize that they acted with ordinary care, attempting to show that the slightest defect can cause an accident. Plaintiffs will also highlight that even modest precautions could protect against dangerous defects. Defendants will emphasize the plaintiffs’ failure to act with due care and observe their surroundings and discover defects.
Whereas negligence claims focus on negligent acts or omissions of the property owner or employer, safe place claims focus on the property condition that caused injury. Barry v. Employers Mutual Cas. Co., 2001 WI 101, ¶ 21, 245 Wis.2d 560, 630 N.W.2d 517. To establish liability under the safe place statute, a plaintiff must show: (1) that a hazardous condition existed on the premises; (2) that such condition caused an injury to the plaintiff; and (3) that the building owner or operator knew or should have known of the condition. See Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 326, 227 N.W.2d 444 (1975).
There are three conditions/defects that give rise to liability under the safe place statute: (1) structural defects, (2) unsafe conditions associated with the structure, and (3) unsafe conditions unassociated with the structure. Barry, 2001 WI 101, ¶ 24. Wisconsin courts have acknowledged that safe place cases are “highly fact-specific and arise under a multitude of circumstances that make it difficult to craft a precise test” for categorizing the defect involved. Id.Nevertheless, despite the difficulty in classifying the type of defect, the classification is often critical in safe place cases because of the differing notice requirements for each classification. If the injury is caused by a structural defect, a property owner or employer is liable whether it knew or should have known that the defect existed. Id. ¶ 22. However, if the injuries are caused by an unsafe condition associated with the structure or an unsafe condition unassociated with the structure, then notice of the defect is required. Id. ¶ 23. For defects that fall within the latter two categories, a plaintiff must prove that the defendant had actual or constructive notice of the defect to sustain a safe place cause of action. Megal v. Green Bay Area Visitor & Conv. Bureau, Inc., 2004 WI 98, ¶ 11, 274 Wis. 2d 162, 682 N.W.2d 857.
Actual notice is notice given directly to, or received personally by, a party. Actual notice can be proven directly, where a party admits to knowing about the condition, or indirectly. Indirect proof of actual notice can be inferred from the facts and circumstances. For example, if the property owner received other complaints about the condition or a similar accident. Rizzuto v. Cincinnati Ins. Co., 2003 WI App. 59, ¶ 21, 261 Wis. 2d 581, 659 N.W.2d 476.
Constructive notice arises if the property owner has sufficient time to discover and remedy the defect or unsafe condition. Id. ¶ 12. In most contexts, constructive notice requires evidence as to the length of time that the condition existed. Id. The length of time required for the existence of a defect or unsafe condition that is sufficient to constitute constructive notice depends on the nature of the business and the nature of the defect. Id. For example, a slippery condition at a shopping mall that existed for two hours prior to a slip and fall was deemed insufficient to constitute constructive notice. Rohland v. London Square Mall, 203 Wis.2d 272, at *2, 551 N.W.2d 871 (Ct. App. 1996) (unpublished). However, a wet and sandy corridor at a construction site that existed for two weeks prior to the accident was deemed sufficient to constitute constructive notice. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 25, 284 N.W.2d 692 (Ct. App. 1979).
Wisconsin jurisprudence has developed a limited exception to the general rule about the length of time required for constructive notice. The exception—deemed the Strack exception after Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 150 N.W.2d 361 (1967)— applies when it is reasonably probable that an unsafe condition will occur because of the nature of the property owner’s business and the manner in which the owner conducts that business.
Megal, 2004 WI 98, ¶ 13 (citing Strack). In Strack, a customer in a store slipped on a prune on the floor near tables displaying prunes for sale. She filed a safe place action, and the court had to determine whether the store had sufficient notice of the presence of a prune on the floor. Strack, 35 Wis. 2d at 53–54. The court developed an exception to the general rule of constructive notice because the store displayed the fruit in such a way that the fruit may be dropped on the floor and this way of doing business required the storekeeper to use reasonable measures to discover and remove debris from the floor. Id. at 56–57. Accordingly, the court determined that it was not necessary for the plaintiff to prove constructive notice. Id.
However, Wisconsin courts have determined that the Strack exception only applies to areas where the owner or employer was merchandising products for sale to the public in a way that made harm reasonably foreseeable. See, e.g., Megal, 2004 WI 98, ¶ 18, (citing Caufman v. State Street Ltd. P-ship, 187 Wis. 2d 54, 65, 522 N.W.2d 249 (Ct. App. 1994), which concluded that the Strack exception was not available to a plaintiff who slipped on a banana peel in a store’s parking lot).1 Indeed, in Megal, the Supreme Court of Wisconsin characterized the Strack 1 See also Low v. Slewert, 54 Wis. 2d 251, 254, 195 N.W.2d 451, 453 (1972) (holding that the Strack exception was inapplicable to burnt out light bulbs in a parking lot); Freeman v. Airgas-North Cent., Inc., 2012 WI App 40, ¶ 12, 340 Wis. 2d 498, 812 N.W.2d 540 (Ct. App. 2012) (unpublished) (holding that the 41
decision as “a narrow class of cases” where temporary unsafe conditions were caused by the manner of displaying products in the area where the fall occurred. Megal, 2004 WI 98, ¶ 18. In Megal, the plaintiff slipped on a french fry that was located on a stair while attending an ice show at an arena. Id. ¶ 3. The plaintiff did not present evidence of the length of time the French fry was on the stair, but instead, argued that the Strack exception to notice applied. Id. ¶ 17. The court explained that sometimes expert evidence will be necessary to determine whether the exception applies—i.e., evidence regarding a reasonable management and food selling procedure at an arena. Id. ¶ 20. Because the plaintiff failed to present such expert evidence, the court declined to analyze the plaintiff’s Strack exception argument, essentially finding the exception inapplicable.
An owner of premises can be absolved of negligence and safe place liability if it relinquishes complete control of the premises to another party and the premises are in a safe condition at that time. Berger v. Metropolitan Sewage Comm’n., 56 Wis. 2d 741, 751, 203 N.W.2d 87 (1973). In Berger, a sewage commission hired a construction company to complete a sewer project in a sewer system owned by the commission. Id. at 744. During the project, the construction company provided all labor, materials, and equipment. Id. Two construction company workers died from asphyxiation while working in a sewer shaft. Id. The widows of the two deceased men brought wrongful death actions, alleging that the sewage commission was liable under safe place and negligence claims. Id.
The Supreme Court of Wisconsin upheld dismissal of both the claims against the sewage commission, concluding that the sewage commission could not be liable because it relinquished Strack exception was inapplicable to a wet and slippery floor because the floor “had nothing to do with the nature of business.”). control of the premises to the contractor. Id. at 751. It explained: “When an owner turns over to a contractor the complete control and custody of a safe place . . . the owner does not become liable to [an injured party].” Id. at 746. The court determined that the sewage commission turned over complete control and custody during construction because the contractor was responsible for furnishing all of the labor, materials, and equipment necessary to complete the construction. Id. at 747. Further, the court rejected the plaintiffs’ argument that the commission should still be liable because it retained inspection authority over the construction. Id. at 748. It stated: “The presence or absence of inspection [authority] . . . is not a manifestation of control.” Id. at 750. Therefore, because the sewage commission did not exert control over the construction project, it could not be liable under safe place or negligence law for accidents happening during construction. Id. at 751.
The Eastern District of Wisconsin recently applied the custody and control standard in Anderson v. Proctor & Gamble Paper Products Co., 924 F. Supp. 2d 996 (E.D. Wis. 2013). In Anderson, the decedent worked as an electrician at facilities in the Green Bay area for more than 40 years until his retirement. Id. at 999. Approximately 50 percent of his career was spent working at a paper mill facility owned by Proctor & Gamble. Id. The electrician’s work was not directed by Proctor & Gamble, but instead, direction and oversight came from the electrical contractors. Id. at 1000. Eventually, the electrician became ill and died due to occupational asbestos exposure. Id. His widow brought claims against several defendants, including Proctor & Gamble for its ownership of the paper mill where her husband worked for a number of years. Id.
Proctor & Gamble argued it could not be liable because it relinquished custody and control over the paper mill facility to the employer of the decedent. Id. at 1003. The court explained that an owner is “only absolved of its statutory duty if it relinquishes complete control of the premises to the employer and the premises are in a safe condition at that time.” Id. At 1004. Applying this standard, the court determined that Proctor & Gamble did not relinquish control because it operated the paper mill and its employees oversaw the decedent’s work. Id. Therefore, Proctor & Gamble could not avoid liability under the custody and control standard. Id.
In today’s complex commercialized world, multiple entities may have ownership interests in a certain premises. Further, other entities may have operation, maintenance, or construction responsibilities for the same premises. The written contracts between these entities may provide the basis for a tender of defense and indemnification from one entity to the other. A tender is when a sued party formally requests that another organization defend it in the litigation, including providing for all costs associated with the defense. Tenders are typically based on indemnification and insurance provisions within the contract.
Indemnification is when one organization provides compensation to another organization for loss or damages that it has incurred. Indemnification agreements are typically part of contractual arrangements between entities. In Wisconsin, interpretation of an indemnification agreement, like any other written contract, begins with the language of the agreement. Williams v. Rexworks, Inc., 2004 WI App. 288, ¶ 11, 277 Wis. 2d 495, 691 N.W.2d 897. The Wisconsin Supreme Court has repeatedly held that indemnity agreements are “valid and not against public policy.” Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 452, 278 N.W.2d 827, 831 (1979). An interpretation of an indemnity provision that gives reasonable meaning to all clauses is preferable to an interpretation that leaves the text useless or inexplicable. Heritage Mutual Insurance Co. v. Truck Insurance Exchange, 184 Wis. 2d 247, 258, 516 N.W.2d 8, 14 (Ct. App. 1994); see also Hastreiter v. Carau Buildings, 57 Wis. 2d 746, 749, 205 N.W.2d 162, 164 (1973) (explaining that indemnity provisions should not be construed so as to make certain clauses “surplusage”).
Agreements may indemnify one for another’s negligence or indemnify one its own negligence. Barrons, 89 Wis. 2d at 452, 278 N.W.2d at 831. In Wisconsin, courts liberally construe indemnity agreements requiring one to be indemnified for another’s negligence, but strictly construe indemnity agreements requiring one to be indemnified for its own negligence. Bialas v. Portage County, 70 Wis. 2d 910, 912, 236 N.W.2d 18, 19 (1974). Stated differently, when a party seeks indemnification for another party’s negligence or actions, the indemnity agreement will be liberally construed. See id. However, when a party seeks indemnification for its own negligence or actions, the indemnity agreement will be strictly construed. See id. Indemnification provisions often times intersect with arguments regarding the nondelegable duty imposed by the safe place statute. Under the statute, the duty of an owner or employer is nondelegable. Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 130, 301 N.W.2d 201, 206 (Wis. 1981). In essence, an owner or employer cannot escape its safe place duty or liability by simply contracting with another party to assume its safe place obligations. Id. at 132, 301 N.W.2d at 207.
Wisconsin courts have recognized that the nondelegable duty set forth through the safe place statute does not trump indemnification provisions. See, e.g., id. The two areas are distinct and different from one another. Id. In Dykstra, the court rejected an argument that an indemnification agreement was void and contrary to public policy because it was an unlawful attempt to delegate the contractor’s nondelegable safe place duties. Id. The court explained that whether an owner or employer is “to be made financially whole from another source by principles of law or contract” related to indemnification is “entirely different” than attempting to delegate a duty. Id. Indeed, the contractor was not attempting to delegate a duty, as the contractor assumed responsibility for the plaintiff’s injury in the underlying action. Id. Instead, the contractor was seeking indemnification pursuant to a business contract with the subcontractor. Id. Therefore, indemnification provisions are applicable even if safe place law applies. Moreover, the provisions can be used as a basis for tender of defense and indemnification.
Regarding insurance requirements, many commercial contracts or leases contain provisions relating to insurance. Under the contracts or leases, one entity may be required to obtain liability insurance naming the other entity as an additional insured. Assuming one entity is named as an additional insured under the other entity’s liability insurance policy, then the entity named as the additional insured obviously has a strong basis for a tender of defense and indemnification.
Additionally, even if the one entity is not actually named in the insurance contract, the entity may qualify as an additional insured under insurance policy endorsements. Many liability policies contain additional insured endorsements for contractors. These polices typically state that an “insured” includes any person or organization for who the insured performs operations when the insured “and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured.”
The seminal Wisconsin case addressing additional insured endorsements for contractors is Mikula v. Miller Brewing Co., 2005 WI App 92, 281 Wis. 2d 712, 701 N.W.2d 613 (Ct. App. 2005). In Mikula, Miller Brewing retained a general contractor to perform construction services. Id. ¶ 3. The construction contract required the general contractor to add Miller Brewing as an additional insured. Id. The general contractor was insured by Acuity, A Mutual Insurance Company. Id. The Acuity insurance policy contained an addition insured provision stating: “Who Is an Insured is amended to include as an insured any person or organization for who you [general contractor] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization [Miller Brewing] is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured.” Id.
After a worker of a sub-contractor was injured during the construction project, he filed negligence and safe place claims against Miller Brewing. Id. ¶ 5. Miller Brewing tendered is defense to Acuity, claiming it was an additional insured under the aforementioned provision of the Acuity insurance policy. Id. ¶ 6. Acuity disputed the same, arguing that Miller Brewing’s liability did not “aris[e] out of [the general contractor’s] ongoing operations.” Id. The court disagreed, explaining that the phrase “arising out of” should be interpreted broadly so as to include the ongoing construction operations controlled by the general contractor. Id. ¶ 21. Acuity also argued that the purpose of an additional insured endorsement is to protect the additional insured (Miller Brewing) from being vicariously liable for the tortious acts of the named insured (the general contractor). Id. ¶ 24. Because Miller Brewing’s potential liability was based on its own negligence and not based on a theory of vicarious liability, it should not be encompassed by the endorsement. See id. However, the court rejected Acuity’s argument, explaining that “if the policy intended to exclude coverage for the liability arising from the additional insured’s own negligence, it should and could have spelled out as much.” Id. ¶ 27. It elaborated that if the endorsement covered only the additional insured’s vicarious liability for the tortious acts of the named insured, coverage would be illusory. Id. ¶ 28. It would be illusory because if the additional issued was held vicariously liable, it would have a contribution action against the insured regardless of any insurance coverage matters, thereby rending the endorsement superfluous and illusory. Id. Accordingly, the court ultimately agreed with Miller Brewing and determined that it was an additional insured under the additional insured provision of the Acuity policy. Id. ¶ 29.
If an entity declines to accept another’s party tender, the tendering party may have recourse against the entity to whom the tender was directed. Specifically, if the tender is based on a contractual provision, the tendering party could bring a breach of contract claim against the non-accepting entity. The tendering party could seek indemnification for any payments it will make or made to the plaintiff, in addition to seeking defense costs and attorney’s fees. A contentious issue in these situations is whether the tendering party can recoup these costs if its own insurer made the payments to the plaintiff and provided a defense. One possible way for the tendering party to avoid this issue is for the plaintiff to assign its breach of contract claim to its insurer.
E. As Safe as the Nature of the Premises Reasonable Permits
The safe place statute establishes “a duty greater than that of ordinary care imposed at common law.” Barry, 2001 WI 101, ¶ 18. It imposes a duty on premises owners to construct, repair, and maintain premises so as to make them safe for employees or “frequenters.” Barth v. Downey Co., Inc., 71 Wis. 2d 775, 778, 239 N.W.2d 92, 94 (Wis. 1976). While an owner is not required to guarantee absolute safety, it must provide an environment as safe as the nature of the premises will reasonably permit. Wagner v. Cincinnati Cas. Co., 2011 WI App 85, ¶ 14–15, 334 Wis. 2d 516, 525, 800 N.W.2d 27, 31; see also Wis. Stat. § 101.01(13).