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Safe Place Statute

The court’s decision is well-reasoned, even if it may appear arbitrary (had the plaintiff lived in a four-plex instead of a duplex, he would likely have recovered).

Nevertheless, the definition of “public building” in sec. 101.01(12) makes clear that a duplex is not included within the safe place statute. In addition, the Supreme Court expressly held so in Davis v. Lindau, 270 Wis. 218, 70 N.W.2d 686 (1955).

The court’s decision not to allow tort damages to flow from a violation of the landlord-tenant code, Chapter 704, is also consistent with the only previous case to consider the issue, although that decision was unpublished. Griffel v. Leahy, 90 Wis.2d 861, 279 N.W.2d 509 (Table), 1979 WL 30422 (Wis.App., Apr. 30, 1979). Griffel involved a single family residence — legally indistinguishable from a duplex under the safe place statute.

Citing Davis with approval, the court in Griffel concluded that allowing a tort action based on a violation of the landlord-tenant code would be tantamount to extending the safe place statute to a building plainly not included within its reach.

In the case at bar, the court of appeals gives a much more lengthy, and legalistic, explanation why a violation of sec. 704.07(2)(a)3 doesn’t give rise to tort liability.

Nevertheless, while the court doesn’t speak in the same language as it did in Griffel, the animating force behind the court’s reasoning may be the same — if tort suits were allowed under any of the plaintiff’s various theories for liability, the court would effectively be applying the safe place statute to a building expressly excluded from its reach.

The one aspect of the decision which is troublesome is the court’s reasoning in refusing to allow tort damages for breach of the contract. Citing Grams v. Milk Prods., Inc. 2005 WI 112, par. 14, 283 Wis.2d 511, 699 N.W.2d 167, the court concludes that allowing tort damages for a breach of contract would “expand contract law so far as to ‘drown [it] in a sea of tort.’”

That language is no stranger to the case law; it is invoked whenever a court decides to disallow tort damages for a breach of contract by applying the economic loss doctrine.

The court never uses the term, “economic loss doctrine” (nor would it apply to a case involving personal injuries), but the gist is the same. However, the factors that justify the doctrine don’t neatly fit the residential lease situation.

In Grams, the court listed the purposes of the doctrine: maintain the fundamental distinction between tort law and contract law; protect commercial parties’ freedom to allocate economic risk by contract; and encourage the party best situated to assess the risk — the purchaser — to assume, allocate, or insure against that risk. Grams, 699 N.W.2d at 171.

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However, in the residential lease situation, the tenant is not a commercial party. Also, the landlord, rather than the tenant, will usually be in the best situation to assess risks.

In addition, there is rarely bargaining over terms in a residential lease. A savvy landlord uses a standardized approved form, and doesn’t allow bargaining, lest the change render the entire lease invalid. See Baierl v. McTaggart, 2001 WI 107, 245 Wis.2d 632, 629 N.W.2d 277. So, only the first purpose of the doctrine is applicable — maintaining the fundamental distinction between tort and contract law.

However, allowing tort damages in a case such as this would not really drown contract law in a sea of tort. As noted above, if Moore rented a unit in a four-plex instead of a duplex, he probably would be compensated for his injuries, even though every other fact was identical, because the safe place statute would apply.

Thus, the stronger concern is not allowing plaintiffs an end run around the unambiguous definition of a “public building” in the safe place statute, rather than the tort/contract law distinction.

– David Ziemer

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David Ziemer can be reached by email.

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