State of Wisconsin Retail and Hospitality Compendium of Law

STATE OF WISCONSIN RETAIL AND HOSPITALITY COMPENDIUM OF LAW

Updated by SmithAmundsen, LLC 330 E Kilbourn Ave. Suite 1100 Tower 1 Milwaukee, Wisconsin 53202 (414) 282-7103 www.salawus.com

Axley Brynelson LLP contributed to the original document creation

2018

Table of Contents I. Safe-Place Law ...... 3 A. Generally ...... 3 B. Cause of Action ...... 4 C. Duty of Care ...... 5 D. Persons Liable ...... 6 E. Places Protected ...... 10 F. Persons Protected ...... 12 G. Conditions Creating Liability...... 13 H. Exclusions ...... 17 I. Public Sidewalk Liability ...... 17 J. Legal Standards ...... 17 II. Sidewalk Snow and Ice Removal ...... 20 III. Violent Crimes by Third Parties ...... 21 Appendix A: Wisconsin Court Systems ...... 23 I. The Wisconsin Court System ...... 23 A. Wisconsin Circuit Courts ...... 23 B. Wisconsin Courts of Appeal ...... 23 C. Wisconsin Supreme Court ...... 23 D. Citing Wisconsin Cases ...... 23 II. The Wisconsin Federal Courts ...... 23 III. Wisconsin Rules of Civil Procedure ...... 23 IV. Wisconsin Rules of Appellate Procedure ...... 23 V. Wisconsin Rules of Evidence ...... 24 VI. Wisconsin Limits on Damages against Governmental Bodies ...... 24 Appendix B: Court of Appeals District Map ...... 25 Appendix C: Judicial Administrative Districts Map ...... 26 Appendix D: Wisconsin Civil Jury Instructions ...... 27

I. Safe-Place Law A. Generally “Safe-place” law is the statutorily required safety standard of care for public buildings and places of employment. It is unique to Wisconsin. Cross v. Leuenberger, 267 Wis. 232, 236, 65 N.W.2d 35 (1954). The Wisconsin Department of Industry, Labor and Human Relations was created to implement the provisions of the safe-place law and may therefore make safety orders. Wis. Stat. § 101.02(15)(a).

It establishes an absolute duty of care. Rosholt v. Worden-Allen Co., 155 Wis. 168, 144 N.W. 650, 653 (1913).

Safe-place law applies to three areas: A) places of employment, B) public buildings, and C) employment.

The primary safe-place statute is Wisconsin Statute § 101.11. It states: (1) 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 a place of employment or public building as to render the same safe.

(2) (a) No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.

(b) No employee shall remove, displace, damage, destroy or carry off any safety device or safeguard furnished and provided for use in any employment or place of employment, nor interfere in any way with the use thereof by any other person, nor shall any such employee interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment or frequenter of such place of employment, nor fail or neglect to do every other thing reasonably

necessary to protect the life, health, safety or welfare of such employees or frequenters.

(3) This section applies to community-based residential facilities as defined in § 50.01(1g). Wis. Stat. § 101.11 (2015-16).

“Safe” is statutorily defined when applied to an employment or place of employment or a public building as “such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants, or fire fighters, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.” Wis. Stat. § 101.01(13).

“Welfare” is defined as including “comfort, decency and moral well-being.” Wis. Stat. § 101.01(15).

B. Cause of Action The Safe Place Statute is not a cause of action. It is a duty of care. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960) (“It is well established 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.”). Violations should be brought as allegations of negligence on the part of the defendant. Thiel v. Bahr Constr. Co., 13 Wis. 2d 196, 198, 108 N.W.2d 573 (1961).

A violation of the Safe Place Statute constitutes negligence. Fandrey v. Am. Family Mut. Ins. Co., 2004 WI 62, ¶ 19, 272 Wis. 2d 46, 680 N.W.2d 345 (citing Krause v. Veterans for Foreign Wars, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960)). To recover for a safe- place violation, the plaintiff must show that the violation was either the cause of the injury, or in the failure to act, that the action that safe-place duty was designed to prevent the injury caused by the failure. Umnus v. Wis. Pub. Serv. Corp., 260 Wis. 433, 438, 51 N.W.2d 42 (1952). Furthermore, the plaintiff must still prove all of the elements of negligence. Brueggeman v. Cont’l Cas. Co., 141 Wis. 2d 406, 410, 415 N.W.2d 531 (Ct. App. 1987).

The statute only applies to unsafe conditions. It does not apply to negligent acts by third parties. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 9, 274 Wis. 2d 162, 682 N.W.2d 857 (2004) (internal citations omitted). An employer may only be found violating the Safe Place Statute if the employer has implemented a “method” or “process” that results in the injury and the “method” or “process” can be traced back to the employer. Eau Claire Elec. Coop. v. Indus. Comm’n, 10 Wis. 2d 209, 212-13, 102 N.W.2d 274 (1960).

C. Duty of Care Safe-place law establishes a duty of care for (1) employers, (2) owners of public buildings, and (3) owners of places of employment. That duty is to provide employment and to construct, repair and maintain the premises as free from danger to the life, health, safety or welfare of employees

4 or frequenters as is reasonably permitted by the nature of the employment, place of employment, or public building. Wis. Stat. § 101.11.

The safe-place duty of care is a higher degree of care than the duty of care imposed by common- law negligence. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 9, 274 Wis. 2d 162, 682 N.W.2d 857 (2004) (internal citations omitted). Therefore, if there is no breach of the higher degree of care for safe-place matters, then there is no breach of the common law duty of care. Merkley v. Schramm, 31 Wis. 2d 134, 142, 142 N.W.2d 173 (1966). However, a failure of proof for a safe-place claim does not necessarily preclude a common law negligence claim. Megal, 2004 WI 98, ¶ 23, 274 Wis. 2d 162, 682 N.W.2d 857 (2004).

Courts have summarized the duty of care as being beyond ordinary or even extraordinary care. Olson v. Whitney Bros. Co., 160 Wis. 606, 150 N.W. 959, 961 (1915). The premise must be safe, suitable, and proper so as to eliminate even the remote possibility of personal injury. Kendzewski v. Wausau Sulphate Fibre Co., 156 Wis. 452, 146 N.W. 516, 517 (1914). Inconvenience, difficultness, and impracticality are not excuses for noncompliance. Krueck v. Phoenix Chair Co., 157 Wis. 266, 271, 147 N.W. 41, 43 (1914). Furthermore, employers are expected to “anticipate what the premises will be used for and to inspect them to make sure they are safe.” Wis. Bridge & Iron Co. v. Indus. Comm’n, 8 Wis. 2d 612, 618, 99 N.W.2d 817 (1959).

The duty of care requires only that the owner or employer make his or her place as safe as the nature of the place will allow. Therefore, the duty of care may be met and the place still be considered “unsafe” by common sense standards. Olson v. Whitney Bros. Co., 160 Wis. 606, 150 N.W. 959, 961 (1915) (stating that a business “may have been as free from danger as the place of employment would reasonably permit, and yet have been far from actually safe, because there are many places of employment that are dangerous…”). Furthermore, “safe” is considered a relative term and does not mean “completely free of any hazards.” Megal, 2004 WI 98, ¶ 10, 274 Wis. 2d 162, 682 N.W.2d 857 (2004) (internal citations omitted). Whether an area is safe depends on the facts and circumstances surrounding the situation. Id.

Additionally, an employer’s duty is greater than solely providing a safe place of employment, because the employer also has a duty to provide safe employment. Miller v. Paine Lumber Co., 202 Wis. 77, 227 N.W. 702, 703 (1930). This has included providing safe instructions, using safe processes and methods, preventing individuals from entering unsafe areas, warning of possible dangers, protecting employees from crimes committed by others, and closing any unsafe operation. Likewise, an employer may be subject to liability for the machinery used in the premises and maintaining sufficient safeguards for the machinery. Wasley v. Kosmatka, 50 Wis. 2d 738, 744, 184 N.W.2d 821 (1971), abrogated on other grounds; Henning v. Gen. Motors Assembly Div., 143 Wis. 2d 1, 11- 12, 419 N.W.2d 551 (1988).

D. Persons Liable Under safe-place law, the following individuals can be held liable: A) employers, B) owners of public buildings, C) owners of places of employment, and D) architects and builders. This is an absolute liability and cannot be escaped by delegating their safe-place duty to others. Mickleson v. Cities Services Oil Co., 250 Wis. 1, 6, 26 N.W.2d 264 (1947). However, if an employer or

5 owner relinquishes his or her control to an independent contractor, the employer or owner has fully performed his or her duty at the time control was relinquished. Carlson v. Chicago & N.W. Ry. Co., 185 Wis. 365, 200 N.W. 669, 671 (1925).

Employer “Employer” is defined as “any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district, long-term care district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employee.” Wis. Stat. § 101.01(4).

Fellow employees and third persons cannot be liable under safe-place law. Salus v. Great N. Ry. Co., 157 Wis. 546, 147 N.W. 1070, 1071-72 (1914); La Duke v. N. States Power Co., 256 Wis. 286, 286, 41 N.W.2d 274 (1950). Furthermore, the statutory list of “manager, representative, officer, or other person having control” was not created to impose individual safe-place liability. Eau Claire Elec. Coop. v. Indus. Comm’n, 10 Wis. 2d 209, 216, 102 N.W.2d 274 (1960). This list was provided as access to the employer to hold the employer liable. Id. However, an individual manager, representative, officer, or other person can be held liable for his own negligence. Pitrowski v. Taylor, 55 Wis. 2d 615, 627, 201 N.W.2d 52 (1972).

An employer or owner may indemnify him or herself from loss by reason of safe-place law violation, but such indemnity does not affect the rights of the injured person against said employer or owner. Umnus v. Wis. Pub. Serv. Corp., 260 Wis. 433, 442, 51 N.W.2d 42 (1952). Additionally, an insurance policy insuring an employer or owner against liability for negligence covers such employer or owner in the event of safe-place liability as long as the liability is merely a species of negligence rather than the basis of an independent cause of action. Ermis v. Fed. Windows Mfg. Co., 7 Wis. 2d 549, 555, 97 N.W.2d 485 (1959).

An employer may be held liable for a condition created by an independent contractor within the employer’s place of employment. Jahn v. Nw. Lithographing Co., 157 Wis. 195, 146 N.W. 1131, 1133 (1914). However, if the employer has turned complete control over the premise to the independent contractor, the employer may be relieved of liability. Carlson v. Chicago & N.W. Ry. Co., 185 Wis. 365, 200 N.W. 669, 671 (1925). Liability will turn on whether the employer retains any control over the premise. Potter v. City of Kenosha, 268 Wis. 361, 373, 68 N.W.2d 4 (1955). Additionally, the employer of an independent contractor may be liable if the employer fails to provide a safe-place for the independent contractor. Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 253 N.W. 579, 582 (1934).

Owner “Owner” is defined as “any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any manager, representative, officer, or other person having ownership, control or custody of any place of employment or public building, or of the construction, repair or maintenance of any place of employment or public building, or who prepares plans for the construction of any place of employment or public building. This subchapter shall apply, so far as consistent, to all architects and builders.” Wis. Stat. § 101.01(10). A building owner’s duty is non-delegable and there will likely be a violation of the owner’s duty of care regardless of who caused the violation.

Wagner v. Cincinnati Cas. Co., 2011 WI App 85, ¶ 37, 334 Wis. 2d 516, 800 N.W.2d 27. However, when independent contractors have complete control and supervision of the premise, the owner may be relieved of the duty. Potter v. City of Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955).

The courts have found all of the following “owners” under safe-place liability: a land grantee when unsafe conditions arose post-transaction, landlords, a landlord or land contract vendor when structural defects arose before releasing control of the land, a school district, a county, a city, a businessmen’s association, a religious organization, a hospital, a seminary, a YMCA, the federal government, a fraternal association, and a labor association.

Owners of appurtenant premises next to places of employment are subject to liability if the owner maintains control and custody of the premises. Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 605-06, 111 N.W.2d 495 (1961). However, if the owner of appurtenant land does not have control, custody, or ownership over the place of business, the owner of the land will not be liable simply because of physical proximity. Binsfield v. Conrad, 2004 WI App 77, ¶¶ 13-18, 272 Wis. 2d 341, 679 N.W.2d 851 (citing Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979)).

As defined by statute, liability applies to architects and builders under the definition of “owner.” Wis. Stat. § 101.01(10). Architects are liable for preparing plans that are as safe as their nature reasonably permits for public buildings and places of employment. Id. Builders have a similar liability but for constructing, repairing, or maintaining the public building or place of employment. Id.

Individuals who gratuitously permit their premises to be used by others for recreational activity are immune from liability. Wis. Stat. § 895.52(1)(hm) (defining recreational activity as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure…”). This includes, but is not limited to: hunting, fishing, trapping, camping, hiking, snowmobiling, berry picking, water sports, sight-seeing, cutting or removing wood, skiing, skating, ballooning, sledding, snowmobiling, or climbing of observational towers. Wis. Stat. § 895.52(1)(g). However, liability will incur if the owner collects money, goods, or services for the use of this land and the aggregate payments for the recreational activities exceed $2,000 for the year. Wis. Stat. § 895.52(6)(a).

Additionally, managers, representatives, officers, and other persons, as listed in the statute, do not carry safe-place liability as “owners.” Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 643, 284 N.W.2d 318 (1979).

Owner of Public Building The duty of an owner of a public building is much narrower than that of an employer. Baldwin v. St. Peter’s Congregation, 264 Wis. 626, 629, 60 N.W.2d 349 (1953). An owner is liable for the structural defects of a building and for the unsafe conditions associated with the building. Williams v. Int’l Oil Co., 267 Wis. 227, 229, 64 N.W.2d 817 (1954). This duty includes liability for temporary conditions as well. Meyers v. St. Bernard’s Congregation, 268 Wis. 285, 288, 67 N.W.2d 302 (1954). It also includes liability for any structural defects which existed when the

7 owner bought the building. Wannmacher v. Baldauf Corp., 262 Wis. 523, 539, 55 N.W.2d 895 (1952). Furthermore, the owner faces a duty to warn of conditions that may cause accidents. Helms v. Fox Badger Theatres Corp., 253 Wis. 113, 118, 33 N.W.2d 210 (1948).

An owner is relieved of safe-place liability if complete control of the building has been turned over to another. Holcomb v. Szymczyk, 186 Wis. 99, 105, 202 N.W. 188 (1925). Likewise, liability is relieved if an independent contractor is erecting a building for the owner and the owner has no control over the construction. Connor v. Meuer, 232 Wis. 656, 288 N.W. 272 (1939). However, if the building has a structural defect in it when the owner relinquishes control the owner may still face safe-place liability, if the owner retains a future interest in the property. Wannmacher v. Baldauf Corp., 262 Wis. 523, 539, 55 N.W.2d 895 (1952).

Owner of Place of Employment The Safe Place Statute requires that an owner of a place of employment render it as reasonably safe from danger as the nature of the employment and the place of employment will allow. Wis. Stat. § 101.11. This includes a duty to maintain or repair. Id. The owner of a place of employment may face liability for structural defects. Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 389-90, 31 N.W.2d 589 (1948). An owner may also face liability for unsafe conditions from the structure. Mennetti v. W. Side Businessmen’s Ass’n, 246 Wis. 586, 590, 18 N.W.2d 487 (1945). This includes a duty to warn of the possibility of harm from the conditions. Sandeen v. Willow River Power Co., 214 Wis. 166, 252 N.W. 706, 710-11 (1934). Additionally, an owner may face liability for unsafe conditions at the place of employment that are not associated with the building, like unsafe employment conditions. Mickelson v. Cities Service Oil Co., 250 Wis. 1, 5, 26 N.W.2d 264 (1947).

Like owners of public places, if the owner of a place of employment relinquishes complete control to another, it relieves the owner of liability. Potter v. City of Kenosha, 268 Wis. 361, 371, 68 N.W.2d 4 (1955).

Independent Contractors An independent contractor’s liability for safe-place violations will generally depend on the independent contractor’s control and supervision over the area compared to the owner’s or employer’s control, especially as defined by contract. Criswell v. Seaman Body Corp., 233 Wis. 606, 623, 290 N.W. 177 (1940). Generally, if there is no evidence of control, beyond an ability to inspect, then the owner has no safe-place liability. Couillard v. Van Ess, 141 Wis. 2d 459, 463, 415 N.W.2d 554 (Ct. App. 1987).

However, when an independent contractor is himself an employer, then he may be held liable as an employer for structural defects and unsafe conditions. Bond v. Harrel, 13 Wis. 2d 369, 376, 108 N.W.2d 552 (1961).

Landlords If there are three or more tenants, a landlord is liable for safe-place violations because the property is considered a “public building.” Wis. Stat. § 101.01(12); Bewley v. Kipp, 202 Wis. 411, 233 N.W. 71, 71 (1930). Generally, the liability will be that of an “owner of a public building.” Zeininger v. Preble, 173 Wis. 243, 180 N.W. 844, 845 (1921). If the landlord employs

8 individuals or the building is a business, then the landlord could be liable as an “employer.” Cross v. Leuenberger, 267 Wis. 232, 236-37, 65 N.W.2d 35 (1954). Likewise, the landlord would be liable as the “owner of a place of employment” if the tenant uses the building as a place of employment. Tryba v. Petcoff, 10 Wis. 2d. 308, 313, 103 N.W.2d 14 (1960).

A landlord is liable for structural defects of the property, even if the landlord is divested of control over the property because of the lease. Powell v. Milwaukee Area Tech. Coll. Dist. Bd., 225 Wis. 2d 794, 813-14, 594 N.W.2d 403 (Ct. App. 1999); Frion v. Coren, 13 Wis. 2d 300, 303, 108 N.W.2d 563 (1961).

However, the landlord’s liability for unsafe conditions is dependent on him having retained some control over the premise (like right to reentry) and the landlord has actual or constructive notice of the condition. Wannmacher v. Baldauf Corp., 262 Wis. 523, 533, 55 N.W.2d 895 (1952); Sheehan v. 535 N. Water St., 268 Wis. 325, 332, 67 N.W.2d 273 (1954). Furthermore, a landlord can only be held liable for unsafe conditions in areas that the landlord has control over and that are used or allowed to be used or accessed by the general public or tenants. Bewley v. Kipp, 202 Wis. 411, 233 N.W. 71, 71 (1930).

Governmental Entities The State of Wisconsin is immune from safe-place liability due to sovereignty. Holzworth v. State, 238 Wis. 63, 298 N.W. 163 (1941). The federal government would likely be liable for safe-place violations as “owners.” Am. Exch. Bank of Madison, Wis. v. United States, 257 F.2d 938, 940 (7th Cir. 1958). However, the federal government has not been found liable as an “employer” because their employees are not employed for profit. Presser v. Siesel Constr. Co., 19 Wis. 2d 54, 64, 119 N.W.2d 405 (1963).

However, municipalities, public, and quasi-public corporations have a discretional, not ministerial, duty under the safe-place definitions of both employers and owners. Wis. Stat. §§ 101.01(4); 101.01(10); Spencer v. Cnty. of Brown, 215 Wis. 2d 641, 652, 573 N.W.2d 222 (Ct. App. 1997). These entities have faced liability for violations as owners. Heiden v. Milwaukee, 226 Wis. 92, 275 N.W. 922, 926 (1937). They have not yet faced liability as employers; however, if they did they would only face liability to employees, not frequenters. Niedfelt v. Joint Sch. Dist. No. 1 of City of Viroqua, 23 Wis. 2d 641, 648, 127 N.W.2d 800 (1964).

Nonprofits, Religious, and Other Charitable Organizations Nonprofits, religious, and other charitable organizations have not been found liable as “employers” because their employment is not performed for profit or gain. Waldman v. YMCA of Janesville, 227 Wis. 43, 277 N.W. 632, 633 (1938). However, these organizations have been liable for safe-place violations as “owners of a public building.” Wilson v. Evangelical Lutheran Church of Reformation, 202 Wis. 111, 230 N.W. 708, 709-10 (1930).

E. Places Protected The Safe Place Statute protects two locations: A) places of employment and B) public buildings.

“Place of employment” is defined as including “every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any

9 industry, trade, or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade, or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in private domestic service which does not involve the use of mechanical power or in farming.” When used with building codes, it does not include a) an adult family home, as defined by Wis. Stat. § 50.01(1); b) a previously constructed building used as a community-based residential facility, as defined by Wis. Stat. § 50.01(1g), except for purposes of Wis. Stat. § 101.11; c) a home-based business, as defined by the department by rule. Wis. Stat. § 101.01(11); or d) a not-for-profit facility with the primary purpose of housing or rehabilitating abandoned, injured, or sick wildlife. Wis. Stat. § 101.01(11).

Courts interpret the Safe Place Statute’s definition of “place of employment” very broadly. Ball v. Madison, 1 Wis. 2d 62, 65, 82 N.W.2d 894 (1957) (“[A] place of employment can be almost any place”). Two elements must be met to define a “place of employment:” business must be performed there and the person must be employed on the premise. Barthel v. Wis. Elec. Power Co., 69 Wis. 2d 446, 450, 230 N.W.2d 863 (1975). Courts have found it to include an apartment building, a building under construction, a dance floor, a driveway, a filling station, a roof, a sidewalk, a boiler, a lecture platform, a scaffold, a clubhouse, a parking lot, and a light pole.

An employer is liable for the “structural” defects in a place of employment and unsafe conditions associated with the structure. Jaeger v. Evangelist Lutheran Holy Ghost Congregation, 219 Wis. 209, 262 N.W. 585, 586 (1935). Additionally, employers can be held liable for unsafe conditions on the premise, even if they are not associated with the premise. Id.

“Public building” is defined as “any structure, including exterior parts of such building, such as a porch, exterior platform, or steps providing means of ingress or egress, used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants.” When used in relation to building codes, it does not include: a) a previously constructed building used as a community-based residential facility, as defined by Wis. Stat. §50.01(1g); b) an adult family home, as defined by Wis. Stat. § 50.01(1); c) a home-based business, as defined by the department by rule; or d) a not-for-profit facility with the primary purpose of housing or rehabilitating abandoned, injured, or sick wildlife. Wis. Stat. § 101.01(12).

The courts have given “public building” a more limited definition than place of employment. Ball v. Madison, 1 Wis. 2d 62, 65, 82 N.W.2d 894 (1957). The courts have refused to construe public building to include structures that do not have the characteristics of a building. Id. at 66. However, courts have found structures that look like buildings and have held temporary bleachers, swimming piers, and a swimming pool to be “public buildings.” Additionally, the following have all been found to be public buildings: a hotel, a baseball stadium, a warehouse, a theater, a tavern, a jail, a public school, a church, and a hospital.

F. Persons Protected Safe-place law protects employees and frequenters. Frequenters encompass common-law invitees and licensees. Klemens v. Morrow Milling Co., 171 Wis. 614, 177 N.W. 903, 904-05 (1920). Trespassers are excluded from protection. Sorenson v. Chi., Milwaukee & St. Paul Ry. Co., 192 Wis. 231, 212 N.W. 273, 275 (1927). Under Wisconsin law, a trespasser is an

10 individual “who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 843, 236 N.W.2d 1 (1975). However, an individual cannot “be a trespasser while he is in a place to which he personally or the public generally is invited, expressly or by implication.” Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 637, 261 N.W. 742 (1935).

Generally, owners and employers owe employees and frequenters the same standard of duty of care. Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764, 767 (1930). However, what a reasonable standard of duty of care is in each situation is a jury question. Singleton v. Kubiak & Schmitt, Inc., 9 Wis. 2d 472, 477, 101 N.W.2d 619 (1960).

Employee “Employee” is defined as “any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.” Wis. Stat. § 101.01(3). To be an employee, the individual must submit to the employer’s authority in exchange for receiving some direct or indirect gain or profit. Kellar v. Lloyd, 180 Wis. 2d 162, 178-80, 509 N.W.2d 87, 93-94 (Ct. App. 1993). Because the Worker’s Compensation Act is the exclusive compensation for employee’s injuries, if an individual is injured because of a safe-place violation, it may be more advantageous for them to be considered a frequenter and not an employee. See, e.g., Kuske v. Miller Bros. Co., 227 Wis. 300, 277 N.W. 619 (1938).

Frequenter “Frequenter” is defined as “every person, other than an employee, who may go in or be in a place of employment or public building under circumstances which render such person other than a trespasser. Such term includes a pupil or student when enrolled in or receiving instruction at an educational institution.” Wis. Stat. § 101.01(6). This includes individuals who would be considered “invitees” or “licensees” under common law. Klemens v. Morrow Milling Co., 171 Wis. 614, 177 N.W. 903, 904-05 (1920). A frequenter will lose his protection and become a trespasser if he enters an area that he was not expressly or impliedly invited, even if by mistake or confusion. Lang v. Findorff, 185 Wis. 545, 201 N.W. 727, 728 (1925); Grossenbach v. Devonshire Realty Co., 218 Wis. 633, 637, 261 N.W. 742 (1935). Additionally, an employer does not have a duty to provide “safe employment” to a frequenter. Niedfelt v. Joint Sch. Dist. No. 1 of City of Viroqua, 23 Wis. 2d 641, 648, 127 N.W.2d 800 (1964). Furthermore, a business is not the insurer of a frequenter’s safety. May v. Skelley Oil Co., 83 Wis. 2d 30, 36, 264 N.W.2d 574 (1978).

Frequenters have been found to include: an employee after hours; a traveling salesman; and the original employer or owner when an independent contractor controls the premise. Additionally, the employees of independent contractors, general contractors, and subcontractors have been found to be “frequenters” in relation to the original owner or employer, general contractors, other independent contractors, and/or subcontractors.

G. Conditions Creating Liability Employers and owners of a place of employment may be liable for the following conditions: a) structural defects, b) unsafe conditions associated with the structure, and c) unsafe conditions not

11 associated with the structure. Howard H. Boyle, Jr., Boyle’s Wisconsin Safe-Place Law ch. 4 (1980), available at http://terrenceberres.com/boyle4.html. The owner of a public building may only face liability for the structural defects and unsafe conditions associated with the structure. Id. There is no precise test for whether something is a structural defect or a condition associated with the structure, because that determination is dependent on the facts and circumstances of each situation. Barry v. Emp’rs Mut. Cas. Co., 2001 WI 101, ¶ 24, 245 Wis. 2d 560, 630 N.W.2d 517.

Structural Defects “A building is safe, within the meaning of the statute, which is composed of proper materials and is structurally safe.” Holcomb v. Szymczyk, 186 Wis. 99, 104, 202 N.W. 188, 191 (1925) (citing Juul v. Sch. Dist. of City of Manitowoc, 168 Wis. 111, 169 N.W. 309 (1918)). A structural defect is one that “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.” Wagner v. Cincinnati Cas. Co., 2011 WI App 85, ¶ 21, 334 Wis. 2d 516, 800 N.W.2d 27.

However, a structural defect “does not apply to temporary conditions having no relation to the structure of the building or the materials of which it is composed.” Holcomb v. Szymczyk, 186 Wis. 99, 202 N.W. 188, 191 (1925). Likewise, “[i]f an architect devises or prepares plans and specifications for construction which renders a public building safe within the meaning of the statute, and the owner thereafter maintains it in that condition, the statute is complied with….” Id.

When these defects cause injury, the owner or employer faces liability regardless of whether he had notice of the defect. Hommel v. Badger State Inv. Co., 166 Wis. 235, 242, 165 N.W. 20 (1917).

The following have all been found to be structural defects: violations of industrial building code, steps constructed in nature without non-slip surface, steps leading to unsafe ground, steps located in unanticipated locations, unattached bleacher seats, stairs without the safety-order required handrails, missing handrails around holes in roofs and trap doors, nails protruding through floors, improperly constructed swimming pools, floors collapsing, and a false ceiling collapsing under a person’s weight.

Conditions Associated with the Structure Conditions that are associated with the structure are created when the structure (or its components) becomes out of repair or are not being maintained. Wis. Stat. § 101.11. However, this does not include temporary conditions, which have no relation to the structure of or the materials composing of the building. Powell v. Milwaukee Area Tech. Coll. Dist. Bd., 225 Wis. 2d 794, 812-13, 594 N.W.2d 403, (Ct. App. 1999). Furthermore, when the act of an individual causes the condition to become unsafe, courts have found no safe-place violation because the action, not the condition was unsafe. Barth v. Downey Co., 71 Wis. 2d 775, 779-80, 239 N.W.2d 92 (1976) (finding no liability for a duct collapsing with an employee in them after employee weakened the adjacent supports for the duct).

Either notice or constructive notice and an opportunity to remedy or repair the conditions are required before an employer or owner may face liability. Pettric v. Gridley Dairy Co., 202 Wis. 289, 232 N.W. 595, 597 (1930); Boutin v. Cardinal Theatre Co., 267 Wis. 199, 204, 64 N.W. 848 (1954). Under safe-place liability, constructive notice can occur when a person created, or is responsible for, the situation that results in unsafe conditions, or has failed to take minimum precautions to avoid it, like failing to inspect. Alternatively, constructive notice can occur when the owner or employer brings a dangerous agency onto the premise and injuries arise. Mickelson v. Cities Serv. Oil Co., 250 Wis. 1, 5, 26 N.W.2d 264 (1947).

Most commonly constructive notice is found when the unsafe condition has “existed for a sufficient length of time to afford the owner or employer [or an employee or agent thereof] opportunity to discover and remedy the situation.” Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102 N.W.2d 222 (1960).The length of time needed to create constructive notice depends on the surrounding facts and circumstances, like the nature of the defect and the type of business. Megal, 2004 WI 98, ¶ 12, 274 Wis. 2d 162, 682 N.W.2d 857 (2004) (citing Strack v. Great Atlantic & Pac. Tea Co., 35 Wis. 2d 51, 55, 150 N.W.2d 361 (1967)). There is one, narrow exception: the Strack exception. The Strack exception provides that when the unsafe condition arises from the owner’s course of conduct or method of operation, then a much shorter time, sometimes no period of time, is needed to create constructive notice. Id. ¶ 13. In order to satisfy the Strack exception, the harm that occurs must be foreseeable in the area where it occurred. Id. ¶ 18 (internal citations omitted).

The following have been found to be conditions associated with the structure resulting in safe- place liability: failure to turn on a light to illuminate an unsafe condition; a missing seat in a theater; a quarry blast loosening stone; clothing racks placed in the aisle; unnecessary accumulation of snow and ice within a cold plant; oily, greasy, or slippery floors; an improper motor on or an improvised door latch for an elevator; and an inadequate screen on an upper-floor window.

The following have been found not to be conditions associated with the structure of a building: freshly mopped floors, freshly waxed floors, or accumulated rain or snow from wind, pedestrians, construction or maintenance.

Conditions Not Associated with the Structure Conditions not associated with the structure are conditions that create unsafe employment. Wis. Stat. § 101.11. The duty to create safe employment requires a duty to “furnish and use safety devices and safeguards.” Id. It also requires the use of safe methods and processes within the business. Id.

The following are conditions that are not associated with the structure that have resulted in safe- place liability: wind blowing in rain or snow accumulation; ice forming on the building; salad dressing on a store stairway; a defective plank used in roadway construction; improperly grounded electrical currents within a house; a pile of stones; a pile of lumber; a pail of water left in hallway while mopping; a ramp for machinery which was unable to hold weight; a stairwell in a construction zone that was left open without protections; providing unsafe equipment or appliances; providing unsafe machines or machines without safeguards; using unsafe methods

13 for unloading logs; requiring a railroad switchman to work near passing trains: improperly de- energizing power lines; using a method which allowed dangerous gas to escape into the room; and the improper location of certain work actions.

H. Exclusions Interstate Commerce: Safe-place law does not apply to interstate commerce situations when the employee is subject to the Federal Compensation Act. Kolasinski v. Chi., Milwaukee & St. Paul Ry. Co., 164 Wis. 50, 159 N.W. 563, 563-64 (1916). However, preparing lumber for interstate shipment was not within the Employers’ Liability Act and therefore safe-place laws applied. Sullivan v. Chi., Milwaukee & St. Paul Ry. Co., 163 Wis. 583, 158 N.W. 321, 322 (1916). Whenever interstate commerce is present a survey of cases applying the federal law is suggested. Emberg v. Great N. Ry. Co., 156 Wis. 396, 146 N.W. 481 (1914).

Farming: Farming is excluded from safe-place law liability for creating an unsafe “place of employment.” Vandre v. Trachte, 244 Wis. 233, 234-36, 12 N.W.2d 48 (1943). The exception is only for “place of employment” liability. Id.

Domestic Service: Domestic service is excluded from the scope of safe-place law when there is no mechanical power used. Wis. Stat. § 101.01(5). However, safe-place law can be used to protect domestic service that requires the use of mechanical power. Hahn v. Rothstein, 174 Wis. 381, 182 N.W. 983, 984 (1921).

Worker’s Compensation Act: The Worker’s Compensation Act provides that the Act is the exclusive remedy of an employee against an employer, which precludes a civil action for violation of the Safe Place Statute. Wis. Stat. § 102.03(2); Knoll v. Shaler, 180 Wis. 66, 192 N.W. 399, 400 (1923). However, an employee can seek a 15 percent increase in compensation for a safe-place violation that causes injury. Wis. Stat. § 102.57. Likewise, an employer can seek a 15 percent decrease in compensation if the injury is caused by an employee failing to use a safety device, follow a safety order, or is intoxicated. Wis. Stat. § 102.58.

I. Public Sidewalk Liability Generally, defects in public sidewalks, or driveways, which serve a business place, are not liable to safe-place liability because they are not considered a place of employment or a public building. Miller v. Welworth Theatres of Wis., 272 Wis. 355, 359-60, 75 N.W.2d 286 (1956).

Courts have only found one occasion to apply safe-place law to a sidewalk as a place of employment: Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 605-06, 111 N.W.2d 495 (1961). The Schwenn Court found liability because of the degree of control and dominion over the sidewalk, which inhibited the public’s ability to use the sidewalk. Petroski v. Eaton Yale & Towne, Inc., 47 Wis. 2d 617, 620, 178 N.W.2d 53 (1970).

J. Legal Standards Assumption of Risk Assumption of risk is not a defense for safe-place violations, regardless of whether the individual is an employee or a frequenter. Rosholt v. Worden-Allen Co., 155 Wis. 168, 178, 144 N.W. 650, 654 (1913). In determining whether an action was an assumption of risk or contributory

14 negligence, courts look to the reasonableness of the action under all of the circumstances. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 622-23, 111 N.W.2d 500 (1961). If the assumption of risk was reasonable under all of the circumstances, then there is no defense to safe-place law. Id. If the assumption of risk was unreasonable, then there is contributory negligence. Id.

Burden of Proof The plaintiff has the burden of proof to show all elements of liability, including: an actionable defect, status of plaintiff (e.g. employee or frequenter), status of defendant (e.g. employer or owner), nature of the place (e.g. public building, place of employment), not as safe as the nature of similar places would reasonably permit, control, actual or constructive knowledge, causation, and, if necessary, actual or constructive notice of the condition. See generally Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 432, 85 N.W.2d 373 (1957); Rosenthal v. Farmers Store Co., 10 Wis. 2d 224, 227, 102 N.W.2d 222 (1960).

Contributory Negligence Contributory negligence is still a defense against safe-place claims. Besnys v. Herman Zohrlaut Leather Co., 157 Wis. 203, 147 N.W. 37, 39 (1914). However, an employee’s contributory negligence is lessened if it occurs because of the performance of this duties or business. Meyer v. Val-Lo-Will Farms, 14 Wis. 2d 616, 622, 111 N.W.2d 500 (1961). Defendant carries the burden of proof to show the plaintiff’s contributory negligence. Dugenske v. Wyse, 194 Wis. 159, 166, 215 N.W. 829, 831 (1927). Furthermore, it is usually an issue for the jury. Allison v. Wm. Doerflinger Co., 208 Wis. 206, 242 N.W. 558, 560 (1932). However, in obvious cases, courts have previously decided it as a matter of law. Sachse v. Mayer, 18 Wis. 2d 457, 463, 118 N.W.2d 914 (1963). “Unless the defendant can show that the likelihood of injury outweighed the practical usefulness, or utility, of proceeding as plaintiff did under the circumstances, plaintiff cannot be charged with contributory negligence.” Howard H. Boyle, Jr., Boyle’s Wisconsin Safe- Place Law ch. 6(g) (1980), available at http://terrenceberres.com/boyle6g.html.

Additionally, the ordinary negligence of a plaintiff may be compared to the defendant’s safe- place negligence. Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688, 698-99, 150 N.W.2d 337 (1967). In doing so, the jury should be informed that the defendant owes a higher duty of care than the plaintiff. Lovesee v. Allied Dev. Corp., 45 Wis. 2d 340, 346, 173 N.W.2d 196 (1970).

Evidence of Common Use Safe-place law is absolute. Rosholt v. Worden-Allen Co., 155 Wis. 168, 144 N.W. 650, 653 (1913). Therefore, evidence of common use, customary methods, or similar operations is generally not relevant. Sparrow v. Menasha Paper Co., 154 Wis. 459, 143 N.W. 317, 319 (1913). However, courts will occasionally allow it as evidence that a thing or place is not as safe as its nature will allow. Raim v. Ventura, 16 Wis. 2d 67, 72-73, 113 N.W.2d 827 (1962).

Evidence that Something Could Be Safer Some courts have admitted evidence to show how a place or thing could reasonably safer. Heckel v. Standard Gateway Theater, 229 Wis. 80, 281 N.W. 640, 641 (1938). However, other courts have explicitly rejected the argument that something could be made safer. Megal, 2004 WI 98, ¶ 10, 274 Wis. 2d 162, 682 N.W.2d 857 (2004) (internal citations omitted).

Evidence of Subsequent Repairs or Prior Accidents Although evidence of subsequent repairs, alterations, or precautions is inadmissible in common- law, it is admissible under safe-place law to show that the place or nature was not as safe as it would reasonably permit. Heiden v. Milwaukee, 226 Wis. 92, 275 N.W. 922, 927 (1937).

Likewise, it is within the trial judge’s discretion to allow evidence of prior accidents which may relate to a “failure to exercise the reasonableness required in an effort to furnish a safe place.” Manitowoc Co., Inc., v. Indus. Comm’n, 273 Wis. 293, 301, 77 N.W.2d 693 (1956).

Jury Instructions The Wisconsin Jury Instructions – Civil contain form jury instructions for safe-place claims. See Appendix D for copies of these instructions. The instructions include: • 1900.2 Safe-Place Statute: Duty or Employer • 1900.4 Safe-Place Statute: Injury to Frequenter • 1901 Safe-Place Statute: Definition of Frequenter • 1902 Safe-Place Statute: Negligence of Plaintiff Frequenter • 1904 Safe-Place Statute: Public Buildings: Negligence of Owner • 1910 Safe-Place Statute: Place of Employment: Business • 1911 Safe-Place Statute: Control

Additionally, approved instructions appear in the following cases: Fandek v. Barnett & Record Co., 161 Wis. 55, 150 N.W. 537, 539-41 (1915); Neitzke v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 253 N.W. 579, 582-84 (1934); Mondl v. F. W. Woolworth Co., 12 Wis. 2d 571, 573, 107 N.W.2d 472 (1961); Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408, 412-14, 416, 180 N.W.2d 546 (1970); Lovesee v. Allied Dev. Corp., 45 Wis. 2d 340, 347, 173 N.W.2d 196 (1970); Barry v. Emp’rs Mut. Cas. Co., 2001 WI 101, ¶ 33, 245 Wis. 2d 560, 630 N.W.2d 517.

Jury Questions The following are typically considered questions to be left to the jury: whether something or some place is as safe as its nature reasonably allows, contributory negligence, notice, causation, the parties’ status, and whether an individual has the necessary control over a premise.

Presumption of Failure When there is a failure of a safe-place duty which would have prevented injury and injury occurs, then the law presumes that the damage was caused by the failure. Defendant may rebut this with evidence, but if defendant does not rebut, then plaintiff has met his burden. Candell v. Skaar, 3 Wis. 2d 544, 549-50, 89 N.W.2d 274 (1958).

Special Verdict Form A special verdict form should be submitted to juries. Stellmacher v. Wisco Hardware Co., 259 Wis. 310, 314, 48 N.W.2d 492 (1951). There should be a separate question for each alleged instance of safe-place violation. Id. Furthermore, the verdict form should incorporate the word “negligence” to remind jurors that this is a question of negligence. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 553, 101 N.W.2d 645 (1960).

Standard of Review The court of appeals reviews de novo whether a condition is a structural defect or a condition associated with the structure because it is an issue of law. Barry v. Emp’rs Mut. Cas. Co., 2001 WI 101, ¶ 17, 245 Wis. 2d 560, 630 N.W.2d 517.

Statute of Limitations The personal injury statute of limitations of three (3) years applies to safe-place personal injuries. Wis. Stat. § 893.54(1m). The statute of limitations for architects and builders is ten (10) years after substantial completion of the project. Wis. Stat. § 893.89. However, Wis. Stat. § 893.89 applies only to structural defects and not unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 29, 291 Wis. 2d 132, 715 N.W.2d 598.

II. Sidewalk Snow and Ice Removal Towns and villages may impose penalties or fines for abutting property owners who do not keep their sidewalks clear of snow and ice. Wis. Stat. § 66.0907(5). If the town or village must clear the sidewalk for the property owner, then the town or village may charge the property owner for the cost. Id.

However, the village or town has the duty to maintain these sidewalks. Id. If they, or the abutting property owner, fail to maintain the sidewalk, then the town or village could be found liable for injuries and damages arising from the failure to maintain the sidewalk. Hagerty v. Vill. of Bruce, 82 Wis. 2d 208, 213-15, 262 N.W.2d 102 (1978). The abutting property owner will not be liable for injuries on public sidewalks abutting their land, unless the property owner created the artificial accumulation. Holschbach v. Wash. Park Manor, 2005 WI App 55, ¶ 10, 280 Wis. 2d 264, 694 N.W.2d 492.

In order to receive damages, the injured individual must show that the village or town was negligent in performing its duty to clear the sidewalks. Kobelinski v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 504, 510-13, 202 N.W.2d 415 (1972). Additionally, the snow or ice must have been naturally accumulating for three (3) weeks or more to recover. Wis. Stat. § 893.83. If the accumulation was created by the acts of an individual, like the abutting property owner or the municipality, the individual who created the artificial accumulation may be held liable. Corpron v. Safer Foods Inc., 22 Wis. 2d 478, 484, 126 N.W.2d 14 (1964). Generally for accumulation to be considered “artificial” it must be caused by a defective man-made product (e.g., a downspout) creating the accumulation. Gruber v. Vill. of N. Fond du Lac, 2003 WI App 217, ¶¶ 18-20, 267 Wis. 2d 368, 671 N.W.2d 692.

III. Violent Crimes by Third Parties Businesses-Customers A business has a duty to protect its customers from bodily injury by a third party’s accidental, negligent, or intentional harm, if reasonable care would have discovered the third party’s actions, controlled the third party’s actions, or warned the third parties about the harm. Weihert v. Piccione, 273 Wis. 448, 456, 78 N.W.2d 757 (1956).

Once a duty has been found, the business must meet the standard of ordinary care. “A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a

17 precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject…an unreasonable risk of injury.” Peters v. Holiday Inns, Inc., 89 Wis. 2d 115, 122-23, 278 N.W.2d 208 (1979) (quoting Osborne v. Montgomery, 203 Wis. 223, 242-43, 234 N.W. 372 (1931)). Plaintiff must still prove that this harm was foreseeable.

Innkeeper-Guests In addition to a general business’s duty, an innkeeper has a duty to provide guests security at an ordinary standard of care. Peters v. Holiday Inns, Inc., 89 Wis. 2d 115, 123-24, 278 N.W.2d 208 (1979). Specifically, an innkeeper has a duty to take reasonable action to protect his guests against an unreasonable risk of physical harm and to give them first aid after he knows or has reason to know that they have been injured or are ill until someone else can provide them aid. Id. In establishing whether ordinary care has been met, courts will consider: industry standards, local crime rate, presence of suspicious persons, and security problems from hotel design. Id.

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor, or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.

Appendix A: Wisconsin Court Systems

I. The Wisconsin Court System A. Wisconsin Circuit Courts The trial-level court in Wisconsin is the district court. Wisconsin has 249 circuit court judges, who are elected and serve six-year terms. Wisconsin’s 72 counties are grouped into 10 judicial administrative districts. Milwaukee County is Wisconsin’s largest circuit with 47 judges.

B. Wisconsin Courts of Appeal The Court of Appeals is Wisconsin’s intermediate appellate court. There are four appellate districts. They are headquartered in Milwaukee, Waukesha, Wausau, and Madison. There are 16 judges, who are elected six-year terms in district-wide, non-partisan elections. The court generally sits in three-judge panels; however some small claims, misdemeanors, and municipal ordinance violations may be decided by one judge.

The published opinions of the Court of Appeals are considered binding precedent across all four districts until overruled by the Supreme Court.

C. Wisconsin Supreme Court The Wisconsin Supreme Court is the state’s highest court. It is composed of seven justices. The justices are elected to ten-year terms in statewide, non-partisan April elections. Vacancies are filled by gubernatorial appointment. The appointee stands for election for a ten-year term the following spring. The supreme court is located in the state capitol in Madison.

D. Citing Wisconsin Cases When citing Wisconsin cases in the Wisconsin courts, parallel citations are required for both regional reporters: Callaghan’s Wisconsin Reports (Wis.) and North Western Reporter (N.W.). For example: Cross v. Leuenberger, 267 Wis. 232, 236, 65 N.W.2d 35 (1954).

Additionally, for decisions published after January 1, 2000, the public domain citation must be included with the parallel citation. For example: State v. Herrmann, 2014 WI App 38, 353 Wis. 2d 304, 844 N.W.2d 665.

II. The Wisconsin Federal Courts Wisconsin is part of the Seventh Circuit. Wisconsin has two federal court districts: the Eastern District of Wisconsin, headquartered in Milwaukee and also located in Green Bay, and the Western District of Wisconsin, headquartered in Madison.

III. Wisconsin Rules of Civil Procedure The Wisconsin Rules of Civil Procedure can be found in Chapter 801-807 of the Wisconsin Statutes. They are largely modeled off of the federal rules.

IV. Wisconsin Rules of Appellate Procedure The Wisconsin Rules of Appellate Procedure are found in Chapters 808- 809 of the Wisconsin Statute.

V. Wisconsin Rules of Evidence The Wisconsin Rules of Evidence are found in Chapter 901-911 of the Wisconsin Statutes. They are largely modeled off of the federal rules.

VI. Wisconsin Limits on Damages against Governmental Bodies Wisconsin Statute § 893.80 governs claims against governmental bodies, including: political corporations, governmental agencies, governmental subdivisions, and volunteer fire departments. It limit establishes governmental immunity for legislative, quasi-legislative, judicial, and quasi- judicial actions. Wis. Stat. § 893.80(4). Additionally, it generally limits damages to $50,000. Wis. Stat. § 893.80(3).

However, Wisconsin Statute § 345.05 governs “Municipal liability for motor vehicle accidents.” It applies to any city, county, village, town, school district, sewer district, drainage district, and commission. Wis. Stat. § 345.05(2). Additionally, it raises the maximum damages to $250,000. Wis. Stat. § 345.05(3).

Appendix B: Court of Appeals District Map

District I – Milwaukee County District II – Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine, Sheboygan, Walworth, Washington, Waukesha, and Winnebago Counties District III – Ashland, Barron, Bayfield, Brown, Buffalo, Burnett, Chippewa, Door, Douglas, Dunn, Eau Claire, Florence, Forest, Iron, Kewaunee, Langlade, Lincoln, Marathon, Marinette, Menominee, Oconto, Oneida, Outagamie, Pepin, Pierce, Polk, Price, Rusk, Sawyer, Shawano, St. Croix, Taylor, Trempealeau, Vilas, and Washburn Counties District IV – Adams, Clark, Columbia, Crawford, Dane, Dodge, Grant, Green, Iowa, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Marquette, Monroe, Portage, Richland, Rock, Sauk, Vernon, Waupaca, Waushara, and Wood Counties

Appendix C: Judicial Administrative Districts Map