Wisconsin Weather Poses Various Risks for Employers

January 25, 2018

As the cold Wisconsin winter finally begins to set in and the snow begins to fall, employers should be aware that winter weather poses a variety of hazards for employees and potential customers that could open your organization up to serious liability. By understanding the duties you have to employees and customers, and engaging in a few preventive steps, you could save thousands of dollars in potential damages or increased insurance premiums.

What’s My Duty to Protect Customers and Employees on My Property?

Wisconsin’s “safe place” statute requires employers to keep their premises safe. The statute doesn’t create a separate cause of action for violations but instead imposes a heightened duty of care on employers toward employees, customers, or other guests. A “violation” of the safe place statute will be brought as a claim for negligence.

The Wisconsin Supreme Court has held that the definition of “safe” will vary depending on the situation and the use of the premises. However, case law is clear that “safe” does not require that an employer keep its premises free of any and all hazards. Even if additional precautions could arguably have been taken by the employer, it will not necessarily follow that the premises were not “safe.”

Finally, to be liable under the statute’s heightened standard, an employer must have notice that an unsafe condition exists. The notice can be actual or constructive. In other words, a store manager could arguably have constructive notice that there is ice near the store entrance if it snowed the night before and he regularly receives complaints about ice after it snows. The manager would have actual knowledge that there is a large ice patch in front of the store entrance if a customer personally told him about the ice.

With that standard in mind, there are a number of ways you can keep your premises safe this winter for employees and customers.

Icy Sidewalks and Entrances

Ice, slush, and snow can be some of the worst culprits leading to injury during Wisconsin winters. You may fall victim to slip-and-fall claims filed by employees or customers if you fail to take the necessary precautions. As we noted in our example of constructive notice, an employer can easily be imputed with knowledge of a repeating hazardous condition that would give rise to a violation of the safe place statute.

Recommendations. Require an employee to check the entrance or walkways at regular intervals during weather that may cause icy or slippery conditions. Have salt or other deicing materials readily available, and be sure all employees are aware of how to keep the area accessible. Consider adding more mats or carpet near the entrance so customers or employees can remove excess water or slush from their feet when they enter the premises. Also consider using a sign or cone to warn customers and employees to take care and watch for icy conditions.

Icicles

Icicles can also pose a dangerous hazard on your premises. Although it may seem unlikely, there have been a number of injuries caused by icicles across the country.

Recommendations. If your property has icicles, consider closing off the area below them from customer or employee access to avoid any risk of injuries.

Special Consideration: Parking Lot Accidents

According to the Wisconsin Department of Transportation, over the last five years, Wisconsin has averaged approximately 18,600 motor vehicle accidents during the winter months. It’s no surprise that icy and snowy conditions make driving more difficult, but how does that have an impact on employers? Let’s consider an example.

At 6:55 p.m., Sarah is driving through the parking lot of Acme Shopping Center on her way to her 7:00 p.m. shift. While driving through the lot, she sees Andy, a customer, crossing in front of her car. She hits the brakes, but her tires slip on some ice and her car strikes Andy. He suffers some minor bumps and bruises and threatens to sue Acme under a theory of vicarious liability for its employee’s actions. Is Acme liable for Sarah’s accident? It depends.

An employer will be vicariously liable for its employee’s negligence if her acts were committed during the scope of her employment. Scope of employment can be difficult to assess, however. Courts examine whether the employee was performing services or acts that benefit her employer and whether the acts or services were within the scope of the employee’s authority. A number of court cases have expressly held that an employee is not acting within the scope of her employment when she’s traveling to or from work unless the employer expressly controls the method or route of her travel.

Based on that case law, Acme would not be liable for Sarah’s accident under a theory of vicarious liability because she wasn’t acting within the scope of her employment, even though she was on her way to work. Therefore, any negligent actions that occurred on her way to or from work wouldn’t be imputed to Acme.

But even if Acme could successfully establish that Sarah wasn’t acting within the scope of her employment, it may not be immune from suit for Andy’s injuries. Sarah may bring Acme into the lawsuit and claim it is also liable because it failed to safely maintain the parking lot, and the unsafe and icy conditions contributed to Andy’s injuries. Under the safe place statute, Acme would need to establish that it took reasonable steps to maintain a safe parking lot.

What if Sarah is injured? The scope of employment consideration for personal injury liability differs from liability for a worker’s compensation claim. An employee who is injured after she reaches her employer’s premises is typically covered by worker’s comp. In the above example, if Sarah had been hit by a car while she was walking into the workplace to start her shift, she arguably would be covered by worker’s comp.

Bottom Line

There is no guaranteed way to protect yourself against claims of icy infractions or winter wrongdoing. However, taking reasonable preventive steps against possible winter hazards will help you create a strong defense against possible negligence claims. You should have precautionary policies in place to keep your premises safe and ensure that all employees are cognizant of their roles in maintaining a safe environment for employees and customers.

This article, slightly modified to note recent updates, was featured in the January 2018 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Wisconsin Weather Poses Various Risks for Employers," contact Danielle E. Baudhuin at dbaudhuin@axley.com or 608.283.6712.