Don’t Let a Slip and Fall Keep Your Business Down: Tips for Managing Premises Liability in Wisconsin

Melinda A. Bialzik
mbialzik@kmksc.com
(414) 962-5110

In Wisconsin, business owners have a legal duty to maintain their premises in a reasonably safe condition for those who lawfully enter their property. Under premises liability law, property and business owners are held accountable for injuries caused by hazardous conditions they knew about—or should have known about—and failed to address.

Who Is Owed a Duty of Care?

Wisconsin law classifies visitors into three categories:

• Invitees: These are individuals who enter the property for business purposes, such as employees and customers. Business owners owe them the highest duty of care, which includes regularly inspecting the premises, fixing known hazards, and warning of potential dangers
• Licensees: Social guests or others on the property with permission but not for business purposes, such as visiting family or friends of employees. Owners must warn them of known dangers but are not required to inspect for unknown ones.
• Trespassers: Individuals who enter without permission. Generally, owners owe them no duty of care, except in limited cases (e.g., if the trespasser is a child or if the owner created a hidden danger).

Legal Standards and Comparative Negligence

To succeed in a slip and fall claim in Wisconsin, the injured party must prove:

1. The business owner owed a duty of care.
2. That duty was breached.
3. The breach caused the injury.
4. The injury resulted in damages.

Wisconsin follows a comparative negligence rule (Wis. Stat. § 895.045), meaning if the injured person is found partially at fault, their compensation is reduced by their percentage of fault. If they are more than 50% at fault, they cannot recover damages. If an incident happens, in order to defend against claims, it is critical to document not only the business owner’s compliance with its obligation to keep a reasonably safe premises, but also any carelessness on the part of the injured party.

Maintaining a Safe Premises

Business owners don’t have a duty to maintain an absolutely safe property as some hazards are not foreseeable or preventable (winter in Wisconsin necessarily brings ice and snow and it isn’t possible to prevent any accumulation in a large parking lot). Owners do have a duty to have policies in place and take steps to maintain a reasonably safe premises (it is not reasonable to leave snow and ice for days before plowing or throwing down salt). Some steps business owners can take to fulfill their legal obligations include:

• Conduct regular inspections of the property.
• Promptly repair known hazards (e.g., cracked sidewalks, loose handrails).
• Have clear policies for quickly addressing weather conditions.
• Use clear signage to warn of temporary dangers like wet floors.
• Maintain proper lighting to ensure visibility.
• Keep walkways clear of clutter and debris.
• Document maintenance and safety checks to demonstrate due diligence.

While, generally speaking, a commercial tenant is responsible for maintaining its leased space and the landlord is responsible for maintaining common areas, lease terms can alter those obligations. For example, a commercial lease might restrict a tenant’s ability to perform certain repairs within the leased space, thus putting the onus on the landlord. Or, a lease might disclaim liability on behalf of the landlord for certain hazards, such as ice and snow, imposing additional responsibility on the tenant during winter. These examples underscore that tenants should always read their lease very carefully!

Responding to a Slip and Fall on Your Property

If a slip and fall occurs, how you respond can significantly affect liability and legal outcomes. It is helpful to have written instructions for any onsite personnel to address an incident, which should include:

1. Ensure Immediate Safety: Check on the injured person and call for medical assistance if needed. Avoid admitting fault.
2. Document the Scene:
   • Photographs: Take clear photos of the area, including the hazard (e.g., wet floor, ice), lighting conditions, and any warning signs.
   • Lighting and Weather: Note whether the area was well-lit and if weather conditions contributed (e.g., snow or ice).
   • Surveillance Footage: Secure any relevant video recordings.
3. Identify Witnesses: Collect names and contact information of anyone who saw the incident. Their testimony may be crucial.
4. Write an Incident Report: Include the time, location, conditions, and any statements made by the injured party or witnesses. Recollections fade over time, so if any witnesses have helpful statements (for example a witness noted that the injured party wasn’t looking where he was walking), try to get those in writing by the witness if possible.
5. Notify Your Insurance Provider: Promptly report the incident to your liability insurer.

Maintaining a safe business environment is not just good practice—it’s a legal obligation in Wisconsin. By proactively managing risks and responding appropriately to incidents, business owners can protect both their patrons and their business. If you would like assistance in creating protocols to protect your business, or need help responding to an incident, please contact Melinda Bialzik at mbialzik@kmksc.com or 414-961-4839.