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Building owner liable for default

By: David Ziemer, [email protected]//May 20, 2011//

Building owner liable for default

By: David Ziemer, [email protected]//May 20, 2011//

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Hon. Brian Blanchard
Hon. Brian Blanchard

Even though a contractor negligently installed a new window in an office building, and the property owner had no notice of the defect, the owner also is responsible for a worker’s injuries that resulted from the negligence.

The Wisconsin Court of Appeals held May 19 that the building owner could be held responsible under the safe-place statute, because the hazard was a “structural defect” rather than an “unsafe condition.”

Corporate Contractors Inc. installed a window in an office building owned by Mid-City Development Corp. Three months later, Marie Wagner, who worked in the building, was injured when the window came loose in the wind and struck her.

Wagner sued the contractor and the owner, but the circuit court dismissed the owner from the case on summary judgment. Finding the hazard was an unsafe condition, and that there was no evidence the owner had actual or constructive notice, the court held that the owner was not liable under the safe-place statute, sec. 101.11(1).

The contractor appealed, and the Court of Appeals reversed in an opinion by Judge Brian Blanchard.

The court acknowledged the absence of precedent directly addressing the issue.

But it found that the hazard was a structural defect, based on the distinction as set forth by the Supreme Court in Barry v. Employers Mut. Cas. Co., 2001 WI 101, par. 28, 245 Wis. 2d 560, 630 N.W.2d 517: “A defect is structural if it arises ‘by reason of the materials used in construction or from improper layout or construction.’ Thus, unlike a condition associated with the structure, which may develop over time, a structural defect is a hazardous condition inherent in the structure by reason of its design or construction.”

Adapting the general rule in Barry to the facts in this case, the court elaborated, “a ‘structural defect’ arises from design or construction flaws when a building element is put in place, whether as an original part of a structure or as a replacement. In contrast, ‘unsafe conditions associated with the structure’ are those that arise from repair or maintenance or a failure to repair or maintain an element of a building that was previously safe.”

The court looked to previous cases applying the distinction.

Considered “structural defects” are the following: omission of non-slip surfaces on a stairway; omission of a handrail along a staircase; omission of a railing around a trapdoor; a balcony railing too short to prevent a tenant from falling over; a false ceiling not strong enough to support a worker’s weight; and a poorly designed floor drain.

The building owner argued that all of these defects could be distinguished from the negligently installed window, because they all were hazards included in the building’s original construction.

But the court rejected the distinction, concluding, “All structures can be, and many are, altered over time. New wings and rooms are added, walls torn down, staircases are replaced, new walls are added. We discern no reason why liability should depend on whether a feature of a structure that is dangerous due to faulty construction was part of the structure from ‘day one,’ or was added later.”

In contrast, cases finding that hazards were “unsafe conditions” include: a missing seat cushion in a theater; failure to keep a restroom light turned on; failure to securely fasten the screen of a window; and failure to maintain safe electrical wiring of an elevator.

Comparing the negligently installed window with the hazards in the other cases, the court found, “It is alleged that the window was prone to falling dangerously into the work place from the time of its installation. In this way, it resembles the too-low balcony railing … and the too-weak false ceiling …, both of which were hazards from the start. This contrasts with features of a structure, such as the stairs … and the theater seat …, which were installed safely and then developed into a hazard.”

The court concluded, “summary judgment rested on an incorrectly decided legal decision categorizing the hazard. … [T]he building owner cannot delegate its safe-place statute duty to the contractor that installed the window in an allegedly hazardous manner.”

David Ziemer can be reached at [email protected].

What the court held

Case: Wagner v. Cincinnati Casualty Co., No. 2010AP1195

Issues: Is a negligently installed window a structural defect or unsafe condition under the safe-place statute?

Holdings: A structural defect. It was a hazard from the time it was installed, rather than one that
developed over time.

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