Notice Requirements for Safe Place Claims
Plaintiffs claim violations of the safe place statute with regularity in premises liability cases, but the claim is seldom given individual attention by defense attorneys. Given the fact specific nature of the statute, its applicability should not be assumed in all premises liability cases. Rather the safe place claim should be examined individually in each case to determine whether the heightened duty of care actually applies to the defendant. By obtaining partial summary judgment on a safe place claim a defendant can be held to the ordinary standard of care and thereby increase the likelihood of a successful defense.
The opportunities for dismissal of a safe place claim are too numerous to be addressed here. This article will focus on the notice requirements for safe place claims. Notice is a particularly useful basis to challenge the safe place statute since ordinary negligence claims may also be challenged for lack of notice. A consideration of whether the plaintiff has established notice may be helpful in dismissal of both claims at various stages in the litigation.
I. The Safe Place Statute
The safe place statute creates a heightened duty of care for property owners and employers who invite employees and the public onto their property. It does not create an independent cause of action. Therefore, the court will often look to the common law of negligence when the statute is vague or unclear.[i]
Wisconsin Statutes § 101.11(1) outlines the duties of property owners[ii] and employers under the safe place statute:
Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
The statute is silent regarding notice requirements. The current notice requirements are judicial efforts to match the notice requirements of safe place claims to those of ordinary negligence claims.
II. Notice Requirements
In ordinary negligence cases where the plaintiff alleges that the injury was caused by an unsafe condition on the property, notice is a factor in determining whether the property owner was negligent. Since a property owner's duty is to prevent unreasonable risks of injury from foreseeable harms, notice factors into whether the risk was unreasonable and foreseeable.
Issues of notice of the defect, its obviousness, control of the premises, and so forth are all relevant only insofar as they bear on the ultimate question: Did the landlord exercise ordinary care in the maintenance of the premises under all the circumstances?[iii]
In Lundgren v. Gimbel Bros., Inc. the court relied on lack of notice to dismiss the plaintiff's ordinary negligence claim.[iv] The plaintiff had slipped and fallen on a stair that had a five-inch area of spilled salad dressing.[v] The stairway was used by employees of the defendant as well as the general public.[vi]There was evidence that defendant's employees used the stairway to carry food to its cafeteria, including salad dressing in bowls.[vii] However, plaintiff had no evidence that the salad dressing was spilled by an employee, no evidence that any employee was aware of the spill and had no evidence of how long the spill was present.[viii] The court affirmed the trial court's dismissal of plaintiff's claim:
The liability of the defendant for such circumstance cannot be based upon the mere fact of the depositing of such substance on the stairway, but would arise because of failure to promptly remove the same after actual or constructive notice of its existence. There was here no showing of either. If it had been left there by one of defendant's employees, that fact would have been material in charging defendant with actual and immediate notice of its existence, if by some third person then actual or constructive notice to defendant of its presence must be shown; the duty to remove being the same in either instance.[ix]
In Pettric v. Gridley Dairy Co., the Wisconsin Supreme Court relied on the Lundgren decision to apply a notice requirement to safe place claim.[x] The plaintiff in Pettric had been on a tour of a dairy factory.[xi] The tour ended with lunch in a dining room on the fourth floor.[xii] After lunch, plaintiff attempted to leave the building via a set of stairs that were marked with a sign that stated "This way."[xiii] The stairway was unlit and the steps were wet, greasy, and slippery.[xiv] The plaintiff fell while attempting to walk down the stairs.[xv]
In motions after verdict the trial court held that the issue of notice was relevant only to common law negligence claims.[xvi] On appeal the Wisconsin Supreme Court reversed holding that notice is a necessary element of a safe place claim when plaintiff alleges a failure to maintain or repair a premises.
In terms, the statute imposes the absolute duty upon the employer to repair and maintain the place of employment so as to render the same safe... It would seem that in order to make an employer liable for defects in the nature or repair or maintenance he should have either actual or constructive notice of such defects. Natural principles of justice would seem to require that. Such principles of justice are recognized by common law...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 principals 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.[xvii]
The Pettric decision did not extend a notice requirement to all claims under the safe place statute. Safe place violations are generally split into three categories: 1) structural defects, 2) unsafe conditions associated with the structure, and 3) unsafe conditions unassociated with the structure.
Unsafe conditions arise from a failure to maintain or repair the building or from unsafe processes and methods of operation. Since these conditions can develop over time or suddenly, proof of notice is required for unsafe conditions. Structural defects are defects inherent in the building that arise from improper design, improper construction or improper materials used in construction.[xviii] Structural defects typically do not arise over time. For this reason, knowledge of the defect is imputed on the owner or employer and a plaintiff does not need to prove notice.
These early Supreme Court cases set the foundation for arguing that a plaintiff cannot meet the burden of proof due to lack of evidence regarding notice under the safe place statute and/or ordinary negligence claims.
III. Notice Requirements for Unsafe Conditions
As in ordinary negligence cases, notice can be actual or constructive. Constructive notice is a legal fiction in which a defendant is treated to have notice because the unsafe condition existed for enough time that a reasonable defendant should have noticed and remedied the defect.
The general rule is that constructive notice is chargeable only where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discovery and remedy the situation.[xix]
The burden is on the plaintiff to prove either actual notice, or the length of time the defect existed to establish constructive notice.[xx] The amount of time that must pass before constructive notice exists varies greatly and is typically a question of fact for the jury. Nonetheless, in many cases the complete lack of evidence of the duration of the unsafe condition provides an opportunity for dismissal of the safe place claim.
In Boutin v. Cardinal Theatre Co., the plaintiff entered a darkened movie theater where a show was playing and attempted to sit in a seat.[xxi] The seat cushion was missing causing plaintiff to fall through to the floor.[xxii] The theater periodically removed seats that needed repair, but kept extra cushions to use as replacements during repairs.[xxiii] There were also at least five occasions where seat cushions had been removed by vandals.[xxiv] The theater had no procedure in place to inspect for missing seat cushions.[xxv]
Plaintiff argued that the theater violated the safe place statute by failing to have a process in place to vigilantly inspect for missing seat cushions.[xxvi] The Supreme Court agreed that given the prior vandalism, the safe place statute required the theater to have an inspection process to ensure the safety of the seats.[xxvii] However, the Court still reversed the jury's verdict in favor of the plaintiff because he failed to provide sufficient proof of constructive notice.[xxviii] The court observed that the plaintiff failed to prove how long the seat cushion was missing to allow a jury to find that it was missing for long enough that a reasonable owner should have identified and remedied the unsafe condition.[xxix] "In the state of evidence in the case at bar the determination of when the cushion was removed and by whom rests in sheer speculation. The jury may not be permitted to guess."[xxx]
The plaintiff was unable to meet her burden of proof in Rosenthal v. Farmers Store Co. as well.[xxxi] In that case, the plaintiff was shopping in a department store when she slipped and fell on an unidentified substance in an aisle of the grocery department.[xxxii] The only thing the plaintiff saw on the floor after her fall was a black, shiny substance.[xxxiii] However, she could not state what it was, what size it was, how close it was to her or whether it was the cause of her fall.[xxxiv] The store had no full time janitor.[xxxv] The employees cleaned their own departments and floors were swept at least once a day.[xxxvi]After the fall the store manager identified a flattened out, dry and dark piece of gum near the area of the fall.[xxxvii]
The trial court dismissed the plaintiff's claim for insufficient evidence that an actual defected existed, and if it did, whether it contributed to her fall.[xxxviii] The Supreme Court affirmed the trial court's dismissal. It held that given the lack of proof of what caused the fall, the jury would be required to speculate to find that the black spot seen by plaintiff or the dried out gum caused her fall.[xxxix] Further, assuming one of these things caused the fall there was no evidence that it existed for a sufficient length of time to charge the store with constructive notice.[xl]
When the plaintiff cannot establish that the defendant had actual notice of the unsafe condition, it is important to consider what evidence plaintiff has of constructive notice. The Court has often stated in such cases that the jury cannot speculate or guess on the issue of constructive notice. Therefore, the plaintiff must provide actual evidence of what defect caused the injury and how long it existed. This will require the plaintiff to establish evidence of some appreciable time between the creation of the unsafe condition and the injury. If plaintiff proves nothing but her injury and the fact of the unsafe condition, there is insufficient proof of notice.
IV. The Strack Exception
One major exception to the safe place notice requirements was recognized in Strack v. The Great Atlantic & Pacific Tea Co.[xli] The plaintiff was shopping at a grocery store and slipped on a prune that had fallen to the floor from a self-service display.[xlii] Plaintiff was unable to prove how long the prune had been on the floor.[xliii] The store had a policy to check the floors every ten minutes. They would also sweep when necessary and at least once an hour. However, on the store's accident report the time of the last inspection and last sweeping was left blank.[xliv]
The court upheld the jury verdict for the plaintiff and carved out an exception to the general rule that the plaintiff must prove the length of time the unsafe condition existed. The court reasoned that where the defendant should have anticipated the hazard based on the nature of its merchandising, less time was necessary to establish constructive notice:
Thus when an unsafe condition, although temporary or transitory, arises out of the course of conduct of the owner or operator of a premises or may reasonably be expected from his method of operation, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice.[xlv]
The court observed that the use of self-service displays creates foreseeable safety problems that require greater vigilance by the owner to meet the safe place duty.[xlvi] This exception was also applied in Steinhorst v. H.C. Prange Company, where a customer slipped on shaving foam on the floor next to a men's cosmetics counter which included tester bottles of some of the merchandise.[xlvii]
The Strack exception creates a potentially powerful loophole for plaintiffs to prove their case without direct evidence of the length of time a defect existed. Fortunately, courts have been reluctant to extend the exception.
In Kaufman v. State Street Limited Partnership, the court refused to extend the exception to a grocery store when a customer fell on a banana in the parking lot.[xlviii] The plaintiff was the customer of a grocery store on her way back to her vehicle in a parking lot the store shared with other shopping center tenants. The plaintiff slipped on a piece of banana that she did not notice when she entered the store forty-five minutes earlier. The trial court dismissed plaintiff's claim on summary judgment observing that there was no evidence that any defendant had actual or constructive notice sufficient to make them liable under the safe place statute or ordinary negligence.[xlix]
Plaintiff argued on appeal that though there was no evidence of how long the banana was in the parking lot, the Strack exception applied.[l] The Court considered this a close case, but affirmed the trial court's ruling. It noted that both Strack and Steinhorst took place inside the store and the constructive notice was premised on the owner's ability to foresee the danger that caused injury and control the location.[li] In both cases the store owners were aware of the potential for particular type of hazard that caused the injury. In this case, the parking lot was accessible to shoppers of more than one store and to any motorist or pedestrian who entered the lot for other purposes.[lii] The foreseeability and control elements present in Strack and Steinhorst were not present in the Kaufman case. The court concluded:
Thus, although Strack may be read to delineate an exception to the general rule requiring "length of time" evidence for constructive notice, Strack clearly does not stand for the proposition that constructive notice automatically exists when the condition is present for no appreciable time, or when there is no evidence to remove the temporal estimate from the realm of pure speculation.[liii]
The Supreme Court revisited the Strack exception recently in Megal v. Green Bay Area Visitor & Convention Bureau, Inc.[liv] The plaintiff was a spectator at an ice show in the Brown County Arena. When the show ended she descended with the crowd of speculators from the upper level via a stairway. Due to the number of people, she could not see the step in front of her. As she neared the bottom, she slipped and fell on a ketchup-covered French fry. No other spilled food or trash was identified in the area.[lv] Plaintiff had no evidence of how long the French fry was present and admitted that it could have been dropped by someone in the crowd moments before her fall.[lvi]
Plaintiff argued that the Strack exception applied because the Arena could reasonably expect unsafe conditions to arise due to the way it operated the business.[lvii] The Arena sold concessions that could be taken to any area of the building. It had two janitors on staff at the time for a 61,000 square-foot facility and the janitors had no specific procedure for patrolling the building for spills.[lviii]
The court refused to extend the exception to this case. It observed that the exception had been applied where the harm is reasonably foreseeable due to the manner in which the business merchandises its products. In this case, there was insufficient evidence the Arena should have reasonably foreseen the spilled food in the area where it occurred.[lix]
In affirming the dismissal of plaintiff's case, the Megal court noted that it would have considered expert testimony on what hazards a reasonable convention center could anticipate in determining whether the Strack exception applied.[lx] The Court felt that the hazards reasonably anticipated by arenas and the actions necessary to meet the standard of care were beyond the common knowledge of the jury. This leaves a door open for plaintiffs to extend the Strack exception beyond self-service stores if expert testimony is provided that reasonable owners or employers in similar businesses would have reasonably anticipated the hazard, based on its course of conduct and operation.
Outside the limited Strack exception, plaintiffs cannot make a safe place or ordinary negligence claim without proof of notice. If plaintiff does not prove the time that the unsafe condition was present, the jury would be speculating as to constructive notice and the claim must be dismissed.
An early dismissal of a safe place claim can create a strong bargaining point in settlement negotiations and in the event of trial, increases the likelihood of a defense verdict. For this reason, individual attention needs to be given in premises liability cases to the viability of a safe place claim.
If the plaintiff has no evidence of who created the unsafe condition or how long it existed, moving for dismissal of the safe place claim and potentially the ordinary negligence claim for lack of notice should be considered. Given the factual nature of the inquiry, dismissal may not be appropriate until trial. Nonetheless, consideration should be given to this issue throughout the litigation in the event it can be resolved on summary judgment.
[i] Pettric v. Gridley Dairy Co., 202 Wis. 289, 232 N.W. 595, 597 (1930).
[ii] This article will refer to owners of places of employment and owners of public buildings jointly as "owners" as the distinction between the two types of property owners is not relevant to the notice requirements.
[iii] Pagelsdorft v. Safeco Insurance Co. of America, 91 Wis. 2d 734, 745, 284 N.W.2d 55 (1979).
[iv] 191 Wis. 521, 210 N.W. 678 (1926).
[v] Id. at 678.
[viii] Id. at 679.
[x] 202 Wis. 289, 232 N.W. 595 (1930).
[xi] Id. at 596.
[xvi] Id. at 597.
[xviii] Barry v. Employers Mutual Casualty Co., 2001 WI 101, ¶ 28, 245 Wis. 2d 560, 630 N.W.2d 517.
[xix] Kaufman v. State Street Limited Partnership, 187 Wis. 2d 54, 59, 522 N.W.2d 249 (Ct. App. 1994).
[xx] Boutin v. Cardinal Theatre Co., 267 Wis. 199, 203, 64 N.W.2d 848 (1954).
[xxi] Id. at 201.
[xxiii] Id. at 203.
[xxvi] Id. at 204.
[xxviii] Id. at 205.
[xxxi] Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 102 N.W.2d 222 (1960).
[xxxii] Id. at 225-26.
[xxxiii] Id. at 226.
[xxxviii] Id. at 226-27.
[xxxix] Id. at 228-29.
[xli] 35 Wis. 2d 51, 150 N.W.2d 361 (1967).
[xlii] Id. at 53-54.
[xliii] Id. at 54.
[xliv] Id. at 56.
[xlvi] Id. at 56-57.
[xlvii] 48 Wis. 2d 679, 180 N.W.2d 525 (1970).
[xlviii] 187 Wis. 2d 54, 522 N.W.2d 249 (Ct. App. 1994).
[xlix] Id. at 57-58.
[l] Id. at 60.
[li] Id. at 63-64.
[lii] Id. at 64.
[liii] Id. at 63 (emphasis in original).
[liv] 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857.
[lv] Id. ¶ 3.
[lvi] Id. ¶ 17.
[lix] Id. ¶ 18.
[lx] Id. ¶ 19-20.