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Atlantic Specialty Insurance Co. v. United States

United States District Court, W.D. Wisconsin

April 17, 2017

UNITED STATES OF AMERICA, Defendant. RICHARD LAND, Involuntary Plaintiff,


          WILLIAM M. CONLEY District Judge.

         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.


         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.


         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]

         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-735- 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 ...

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