United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
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.
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.
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.
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.
Place of employment
Safe Place Statute provides that a “place of
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).
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).
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.
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 ...