Atlantic Specialty Insurance Company et al v. United States of America

Filing 25

ORDER granting 5 Motion to Dismiss Count II of the Plaintiff's Complaint. Signed by District Judge William M. Conley on 4/17/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
ATLANTIC SPECIALTY INSURANCE
COMPANY,
Plaintiff,

OPINION AND ORDER
16-cv-282-wmc

RICHARD LAND,
Involuntary Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_________________________________________________________________________________
Plaintiff Atlantic Specialty Insurance Company and involuntary plaintiff Richard
Land seek damages from the United States of America for personal injuries arising under
the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671 et. seq. Before the court is defendant’s
motion to dismiss any claims under the Wis. Stat. § 101.11, Wisconsin’s Safe Place
Statute, on the basis that the statute does not apply as a matter of law. (Dkt. #5.) For
the reasons that follow, the court will grant that motion.

ALLEGATIONS OF FACT
On March 14, 2014, Richard Land, an independent contractor for Dunham
Express Corporation, travelled under dispatch to the Middleton United States Post
Office in Middleton, Wisconsin. While exiting his vehicle in the Post Office parking lot,

Land slipped and fell, allegedly due accumulated ice in a hole that had formed in the
parking lot pavement.
As a result of his fall, Land suffered serious bodily injury.

Plaintiff Atlantic

Specialty Insurance Company was the occupational accident insurance carrier for the
Dunham Express Corporation at the time of the incident, and it reimbursed Land for
certain of his losses.

OPINION
Wisconsin’s Safe Place Statute requires every employer and every owner of a
public building to furnish a place that is safe for employees and frequent visitors. In
particular, the employer or owner of a public building “shall so construct, repair or
maintain such place of employment or public building as to render the same safe.” Wis.
Stat. § 101.11. This statutory duty carries a higher standard of care than that imposed
by ordinary negligence. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004
WI 98, ¶ 9, 274 Wis. 2d 162, 682 N.W.2d 857. The statute’s applicability here turns
on whether the parking lot area of the Post Office building qualifies as either a “place of
employment” under Wis. Stat. § 101.01(11) or a “public building” under Wis. Stat.
§ 101.01(12). Because the court finds that a U.S. Post Office parking lot is expressly
exempted from the legal definitions of a place of employment or a public building under
the Safe Place Statute, defendant’s motion to dismiss will be granted.1

Because of this holding, the court need not address the government’s other ground for
dismissal, that the icy hazard was a “temporary condition.”
1

2

I.

Place of employment
The Safe Place Statute provides that a “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.

Wis. Stat. § 101.01(11) (emphasis added).
Wisconsin has generally followed a bright-line rule that exempted buildings
operated by municipalities or non-profit organizations for lack of a profit-generating
motive, including post offices. See, e.g., Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 639,
284 N.W.2d 318 (1979) (finding that the Dane County Arena was not a place of
employment because “[i]nstitutions operated by nonprofit or governmental organizations
are not places of employment”); Burroughs v. United States, No. 04 C 968, 2005 WL
1793590, at *1 (E.D. Wis. July 27, 2005) (“Because the Kenosha Post Office is an
institution operated by a governmental organization, pursuant to Ruppa, it is not a place
of employment.”). Plaintiffs correctly point out, however, that there is no categorical
exemption for government or non-profit institutions.

Accordingly, “courts should

conduct an individualized inquiry to determine whether the intent of a particular
organization is to make a profit.” Flodin v. United States, No. 13-CV-853-BBC, 2015 WL
3651806, at *2 (W.D. Wis. June 11, 2015).
Still, this inquiry is easily resolved with regard to the Post Office, as “Congress has
made the determination as a matter of law that the Postal Service is a governmental
organization that is not operated for profit.” Ribarich v. United States, No. 14-CV-7353

BBC, 2015 WL 1321661, at *5 (W.D. Wis. Mar. 24, 2015) (“The law requires the
Postal Service to deposit revenues in a fund used to carry out the duties of the Postal
Service . . . [and] limits the Postal Service’s discretion in setting rates. . . . [T]he statutory
purpose of the Postal Service is to provide a public service, not to make money.”).
Indeed, when Congress established the Postal Service in The Postal Reorganization Act,
it mandated that the Post Office prioritize service over costs. 39 U.S.C. § 101.2
Despite this seemingly dispositive law, plaintiff maintains that determination of a
U.S. Post Office’s non-profit status is premature at the pleading stage, citing Leitner v.
Milwaukee Cty., 94 Wis. 2d 186, 287 N.W.2d 803 (1980). (Pls.’ Opp’n (dkt. #7) 2-3.)
Specifically, plaintiff relies on the Wisconsin Supreme Court’s holding in Leitner that
“[t]he determination of whether the profit motive is present or absent cannot be made at
the motion to dismiss or demurrer stage, especially when the complaint specifically
alleges the premises were in [a] place of employment.” 94 Wis. 2d at 191. Unlike here,
however, the primary issue in Leitner was whether to analyze the profit motive of the
property owner (a municipality) or an independent contractor employed at the premises.
Id. at 190. No such distinction applies to the present case -- since the U.S. Postal Service
is both owner and employer here, and further inquiry regarding the profit motive would
be “a pointless exercise.” Ribarich, 2015 WL 1321661, at *5.

Contrary to plaintiff’s argument, Richard Land’s arguable employment by an unrelated third
party at the time he used the parking lot has no bearing on the Post Office’s profit motive.
Voeltzke v. Kenosha Mem'l Hosp., Inc., 45 Wis. 2d 271, 280, 172 N.W.2d 673 (1969) (“The fact
that the 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.”). Even if it did,
of course, there would still be the problem that Land is apparently an independent contractor,
albeit one covered by Dunham’s occupational insurance.
2

4

II.

Public building
Though there is no dispute that the Post Office building itself is a “public

building” under the Safe Place Statute, defendant contends that the parking lot where
Land was injured does not fall under this definition. A “public building”
means any structure, including exterior parts of such building,
such as a porch, exterior platform, or steps providing means
of ingress or egress, used in whole or in part as a place of
resort, assemblage, lodging, trade, traffic, occupancy, or use
by the public or by 3 or more tenants.
Wis. Stat. § 101.01(12) (emphasis added).
Plaintiffs argue that the parking lot constitutes a “structure” within the meaning
of the statute because it is held out for public use and there is “traffic,” but the definition
of “structure” is consistently construed narrowly. For example, many features that more
closely conform to the text -- such as steps that are not “integral” -- have failed to meet
the definition.

See, e.g., Meyers v. St. Bernard’s Congregation, 268 Wis. 285, 290, 67

N.W.2d 302 (1954) (a large concrete platform and two accompanying sets of concrete
stairs were merely an “approach” to the structure); Lawver v. Joint Dist. No. 1, Mount
Horeb & Blue Mounds, 232 Wis. 608, 288 N.W. 192 (1939) (“Clearly the school grounds
and the sidewalk area can not be considered a public building by any stretch of the
imagination.”); Moore v. City of Milwaukee, 267 Wis. 166, 170, 65 N.W.2d 3 (1954)
(holding that a platform erected to access a polling booth was technically a structure, but
not one within the meaning of the statute).

Even more persuasive, the Wisconsin

Supreme Court has specifically held, albeit in dicta, that a parking lot does not fall within
the definition of a public building. See Voeltzke v. Kenosha Mem’l Hosp., Inc., 45 Wis. 2d
5

271, 276, 172 N.W.2d 673, 675-76 (1969) (“The plaintiffs do not contend that the
parking lot falls within the definition of a public building or structure nor, in our opinion,
could they successfully do so.”).
In response, plaintiffs cite to cases that ultimately do not support their claims
contrary contention. First, while the court in Bauhs v. St. James Congregation, 255 Wis.
108, 37 N.W.2d 842 (1949), held that the duty imposed by the Safe Place Statute
extends to “such portions as are used or held out to be used by the public,” the sentence
immediately preceding the language quoted by plaintiff flatly declares, “[i]t is clear that a
sidewalk is not a structure.” Id. at 110, 37 N.W.2d at 844. Similarly, plaintiff offers
Wittka v. Hartnell, 46 Wis. 2d 374, 175 N.W.2d 248 (1970), to illustrate that a parking
lot can fall under the Safe Place Statute, but that case relied on the “appurtenant to”
language in the “places of employment” definition, a phrase tellingly absent from the
definition for public buildings. Finally, plaintiff cites Gupton v. City of Wauwatosa, 9 Wis.
2d 217, 102 N.W.2d 401 (1960), suggesting that the primary consideration in finding a
public building is whether the public has access. Actually, Gupton concerned whether a
portion of a building to which the public had no access can be severed from the rest of a
public building for purposes of the Safe Place Statute. Id. at 224, 102 N.W.2d at 403.
Plaintiff’s attempt to reverse that logic -- that public access creates a public building -lacks any arguable merit, especially in light of the general consensus that any definition
of a structure should be construed narrowly as already cited above.

6

ORDER
IT IS ORDERED that defendant United States of America’s motion to dismiss
count II of the complaint (dkt. #5) is GRANTED.
Entered this 17th day of April, 2017.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge

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