Barthel v. Wisconsin Electric Power Co.
Barthel v. Wisconsin Electric Power Co.
Opinion of the Court
This is an appeal from an order overruling defendants’ demurrers to two counts of the plaintiffs’ complaint. The demurrers allege failure to state a cause of action. The question raised by the demurrers is whether or not the electric company’s conductors carrying electricity adjacent to the premises where the plaintiff Richard A. Barthel was working, constitute a “place of employment” within the meaning of the safe-place statute.
Appellants, Wisconsin Electric Power Company, The Home Insurance Company, and Midland Insurance Company (“defendants”) appeal from that portion of a July 30, 1974, order of the circuit court which overruled their demurrer to the second and fourth causes of action asserted in the complaint of the plaintiff-respondents, Richard A. Barthel and Barbara Barthel, his wife (“plaintiffs”). The second and fourth causes of action
The complaint alleges certain facts which, for purposes of demurrer, we must assume to be true. On June 13, 1973, Mr. Barthel was lawfully on the premises located at 3364 84th Street, in the city of Milwaukee, and was engaged in the installation of aluminum gable trim upon the home located at that address. Prior to June 13, 1973, it is alleged that the power company carelessly and negligently operated, maintained, controlled and placed immediately adjacent to the northern peak of the home on which Mr. Barthel was working, conductors or lines carrying electricity over or immediately north of these premises. It is further alleged that as a result of such operations by the power company, the plaintiff, Richard Barthel, sustained serious personal injuries. The third cause of action, on behalf of Mrs. Barthel, was a repetition by incorporation of the alleged acts of common-law negligence and failure to conform to the Wisconsin Administrative Code as it applies to power lines. Since the first and third causes of action in the complaint alleging negligence are not challenged by demurrer, they are not considered on this appeal.
The allegation that this constituted a place of employment is set forth in the plaintiffs’ complaint:
“Upon information and belief, alleges that Wisconsin Electric Power Company at all times material hereto, was an owner of a place of employment consisting of high voltage and/or high current conductors in, around,*449 surrounding and crossing the 3300 block of South 84th Street in Milwaukee, Wisconsin, as well as various types of transmission and distribution lines and power plants to generate electricity and transmit same.”
The plaintiffs allege that at the time and place in question, the power company failed to maintain a place of employment as safe as the conditions would reasonably permit in violation of the duty of care required by the safe-place statute, sec. 101.11, Stats. They allege that the power company’s acts of negligence or its violation of the safe-place statute proximately caused the injuries suffered by the plaintiffs. Mr. Barthel allegedly received severe electrical burns and injuries of a permanent and severe nature and Mrs. Barthel claims she is deprived of her husband’s aid, society, comfort, services and consortium and must furnish him with nursing and medical care and attention.
Only the causes of action by both plaintiffs alleging violation of the safe-place statute are considered; they were demurred to on the ground they failed to allege facts sufficient to constitute a cause of action. Plaintiffs moved the trial court to overrule the demurrer, and on July 29, 1974, in a hearing on that motion, the trial court granted the motion and overruled the demurrer. An order was entered to that effect on July 30, 1974; and the defendants appeal therefrom.
The question is whether or not the power company’s conductors and power lines at or near the premises where Mr. Barthel was working on the aluminum gable constitute a place of employment.
Sec. 101.11, Stats., defines an employer’s duty:
“101.11 Employer’s duty to furnish safe employment and place. (1) Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and*450 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 employes 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, sec. 101.01 (2) (a), defines “place of employment.”
This court has given a broad construction to what constitutes a place of employment. In Bent v. Jonet (1934), 213 Wis. 635, 639, 252 N. W. 290, this court said:
“The objective of the statute is to insure safety by the broadest sort of provisions with respect to the kind of places affected.”
The statutory definition establishes two elements which must be found to exist at the place which a plaintiff alleges is a place of employment.
“In addition to there being actionable negligence by safe-place statute standards, two elements must be established before a location qualifies as a ‘place of employment’ under the safe-place statute: Business must be carried on, and a person must be employed on the premises.” Wittka v. Hartnell (1970), 46 Wis. 2d 374, 380, 175 N. W. 2d 248; and Cross v. Leuenberger (1954), 267 Wis. 232, 235, 236, 65 N. W. 2d 35, 66 N. W. 2d 168.
The first element that a business be carried on at the location seems satisfied in that the statute requires only
This court has stated that an employee of an independent contractor doing work upon the premises in question is not an employee within the terms of the safe-place statute but qualifies only as a “frequenter.”
The Martell Case points out the importance of the employment relationship. In the present case, Mr. Bar-thel was not an employee and his presence at the scene cannot alone satisfy the second requirement of the definition.
Plaintiffs in the instant case argue that the presence of power company’s employees need only be sporadic or temporary and the fact that the power lines are inspected, maintained and repaired periodically is sufficient, to establish the necessary employment relationship. Reliance is placed on the Martell Case for the proposition that the presence of employees at the location in question need not be continuous. The principle is not applicable
“A place of employment originally meant and still does mean a place where active work, either temporary or permanent, is being conducted in connection with a business for profit; where some process or operation related to such industry, trade, or business is carried on; and where any person is directly or indirectly employed by another.”
The court then went on to note that the surface of the street at the place of the accident was not being used so as to create a place of employment. Further, the fact that some thirty years previous pipe was laid beneath the surface of the street and a shutoff box installed was also insufficient to render the street or the shutoff box a place of employment. The court said that while operations are actually and actively carried on, the portion of the street
Another analogous case is Frion v. Coren (1961), 13 Wis. 2d 300, 304, 108 N. W. 2d 563. There the plaintiff was injured on a balcony of her apartment building. This balcony was accessible only from her apartment, but she claimed a cause of action under the safe-place statute alleging that the balcony was a place of employment since the janitor used it to remove and install screens for the tenants. This court rejected that argument, saying the balcony “. . . would be a place of employment only during those periods of time it was being so used.”
Plaintiffs also contend that the requisite employment relationship at the accident site can be found in the nature of the electrical lines and conductors as extensions of the power company’s business. Plaintiffs claim the lines and conductors are analogous to the sidewalk in front of a department store, Werner v. Gimbel Brothers (1959), 8 Wis. 2d 491, 99 N. W. 2d 708, 100 N. W. 2d 920, or to the parking lot adjacent to a town house complex, Wittka v. Hartnell, supra. But these cases consider the place of injury to be an integral part of the larger business enterprise and under the continuous supervision and control of the operators of the business. The side
In Criswell v. Seaman Body Corp. (1940), 233 Wis. 606, 290 N. W. 177, the plaintiff was an employee of a subcontractor involved in the construction of a building for defendant on defendant’s property. The plaintiff was engaged in erecting structural steel and received injury by electrical shock when certain equipment he was working with came in contact with one of the wires of a power line. He brought action against the defendant Seaman Body Corporation and the electric company under theories of both negligence and safe-place statute violation. The trial court directed a verdict for the electric company and that action was confirmed by this court on appeal. This court held the safe-place statute did not apply to the electric company.
In the case of La Duke v. Northern States Power Co. (1950), 256 Wis. 286, 41 N. W. 2d 274, the plaintiff was an electrician employed by another electric company, not the defendant, and was working at the Lakeside Aluminum Company plant. Defendant maintained on the property of the aluminum company a bank of three transformers suspended above the ground. Plaintiff was engaged in certain electrical work for the aluminum company around these transformers, came in contact with the iron upon which they rested and was injured by a charge of the electrical current. Plaintiff sued the power company under the safe-place statute and under a common-law negligence theory. The trial court dismissed both actions at the close of the testimony; this court affirmed the dismissal of the safe-place action on the ground that the defendant’s transformers and poles did
“The place of plaintiff’s employment was the Aluminum Company and the duty to maintain it according to the statutory standards rested upon the Aluminum Company.”
In both the La Duke and Criswell Cases, the power companies were found not to be operating a place of employment and we conclude that the defendant in the instant case also cannot be found to be operating a place of employment at its conductors and lines at the point where the plaintiff was injured.
By the Court. — Order reversed, without leave to re-plead.
“(a) The phrase ‘place of employment’ includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any 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
Sec. 101.01 (2) (e), Stats., reads:
“(e) The term ‘frequenter’ shall mean and include every person, other than an employe, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser.”
This proposition, that another employer’s employee who happens to be on the premises in question (even when actually working) is the only employee needed there to create the necessary employment relationship, which in turn renders the place one of employment, was also rejected in Voeltzke v. Kenosha Memorial Hospital (1969), 45 Wis. 2d 271, 280, 172 N. W. 2d 673:
“The fact that employees of other employers, such as the salesmen described in the offer of proof, use the parking lot does not make the hospital an owner of a place of employment. If the extremes of this contention were recognized as the law, a person’s home would become a place of employment under the safe-place statute.”
Reference
- Full Case Name
- Barthel and wife v. Wisconsin Electric Power Company and others
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