author: ANN WALSH BRADLEY, J.

text:
    Laverne Haase, Plaintiff-Appellant-Petitioner, Larry Braatz, Norb Braun, Fidel Castillo, Gregory Ebel, Lawrence Ferge, Leon Fuerst, Carol Guyette, Estate of Ray Guyette, David Hamilton, Floyd Hanson, Jerald Heuer, Daniel Janiak, Rick Knudsen, Wesley Kupsky, Sr., James Mohrman, James Maroney, Terry Olejnik, Robert Parry, Donald Quaintance, Delores Radtke, Estate of Marvin Radtke, Candelario Rodriguez, Dale Sittman, Alois Steger, John Stilp, William Surprise, Jacob Vertz, Richard Weber and Arthur Zinkel, Plaintiffs, v. Badger Mining Corporation, Defendant-Respondent, Mine Safety Appliances Company, Minnesota Mining & Manufacturing, North Safety Products Company, The Norton Company, Textron Inc., Liberty Mutual Insurance Company, Travelers Casualty and Surety, American Optical Corporation, Dalloz Safety Inc. and Employers Insurance Company of Wausau, Defendants.
    Supreme Court

      No. 02-1681.

      Oral argument April 26, 2004.

    Decided July 2, 2004.

      2004 WI 97
    (Also reported in 682 N.W.2d 389.)

      For the plaintiff-appellant-petitioner there were briefs by Brian Hamill, Ronald L. Lampe and Dempsey, Williamson, Young, Kelly & Hertel, LLP, Madison; and Louis L. Plotkin, Rodney P. Vincent and Gertler, Gertler, Vincent & Plotkin, LLP, New Orleans, LA, and oral argument by Louis L. Plotkin.

    For the defendant-respondent there were briefs by Michael J. Cohen, Catherine R. Grogan and Meissner Tierney Fisher & Nichols, S.C., Milwaukee; and Cathy R. Gordon and Swartz Campbell LLC, Pittsburgh, PA, and oral argument by Cathy R. Gordon.

      An amicus curiae brief was filed by Jeffrey O. Davis, Nora M. Platt, O. Thomas Armstrong and Quarles & Brady LLP, Milwaukee, on behalf of Wisconsin Manufacturers & Commerce.
    An amicus curiae brief was filed by Teñe S. Davis and Shook, Hardy & Bacon, L.L.P., Kansas City, MO; and Victor E. Schwartz, Leah Lorber, Kimberly D. Sandner and Shook, Hardy & Bacon, L.L.P., Washington, D.C., on behalf of Coalition for Litigation Justice, Inc.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Laverne Haase, seeks review of a decision of the court of appeals that affirmed an order of the circuit court dismissing his products liability claim against Badger Mining Corporation. Haase contends that the court of appeals erred in adopting and applying Restatement (Third) of Torts § 5 (1998) and using it as the basis to defeat his strict liability claim. Additionally, he maintains that he presented sufficient evidence for a strict liability claim under Restatement (Second) of Torts § 402A (1965).

¶ 2. We agree with Haase that Restatement (Third) of Torts § 5 (1998) is inapplicable to the case at hand. However, we disagree with his assertion that he presented sufficient evidence to support a strict liability claim under Restatement (Second) of Torts § 402A (1965). Because we determine that Badger's product, silica sand, underwent a material and substantial change after leaving its possession, we conclude that Badger cannot be held strictly liable. Accordingly, we affirm the decision of the court of appeals.

HH

¶ 3. Haase was employed at the Neenah Foundry from 1955 to 1996. In 1999, he was diagnosed with silicosis, a lung disease caused by prolonged inhaling of silica particles. It is undisputed that Haase was exposed to harmful silica particles while working at Neenah.

¶ 4. Upon learning his diagnosis, Haase filed suit against Badger and several respirator manufacturers, alleging that he had contracted silicosis as a result of his exposure to silica sand at Neenah. Because Badger's sand is central to this case, it is important to understand where it comes from, how it was used at Neenah, and the nature of Haase's exposure to it.

¶ 5. From 1980 to 1996, Badger supplied silica sand to Neenah. Badger begins its process of mining sand by drilling holes in the earth to locate sandstone. After locating the sandstone, Badger uses various techniques to loosen it, such as blasting, drilling, and ripping. It then places the crushed sandstone in a slurry box with water to remove clays and other impurities. The sand, which is over 99% pure silica, is dried in large kilns. After cooling, Badger screens and blends the sand so that its size conforms to its customers' specifications.

¶ 6. At Neenah, the silica sand is mixed with benonite, clay, and sea coal and compressed into molds. Molten iron is then poured into these molds to create iron castings, such as manhole covers. Once the molten metal cools and solidifies, the mold is broken apart and the casting comes out. The compacted sand surrounding the casting is vibrated, shaken out, and often reused in the process. The castings, meanwhile, go through a shot blast process where BB's are fired at them to remove any excess sand. Workers remove additional burned sand from the castings by grinding it off with machines.

¶ 7. During his tenure at Neenah, Haase held several positions. From 1955 to 1993, he worked in the molding department. This is where the silica sand is compressed into molds for the iron castings. While working on the rollover molding line, Haase was not required to wear a respirator and did not wear one.

¶ 8. In addition to the rollover molding line, Haase periodically worked on the cleanup crew. There, he would shovel and sweep excess silica sand and dust left over from the foundry process. Haase would also shovel sand down in pits where there was a large amount of fine, black dust. At trial, he explained that this was very dusty work and at times he could not even see the end of his shovel. Haase stated that he wore a respirator when working cleanup.

¶ 9. Finally, from 1993 until his retirement in 1996, Haase worked as a grinder. He would grind burned silica sand and other imperfections off the iron castings. Again, he testified that this was a dusty job and that he wore a respirator at all times while working.

¶ 10. Haase asserted two theories of liability in his case against Badger: negligence and strict liability. At the close of his case-in-chief, Badger moved for dismissal based on insufficiency of the evidence. The circuit court granted the motion.

¶ 11. In dismissing Haase's strict liability claim against Badger, the circuit court relied on Haase's own expert witnesses, Dr. Henry Anderson and Dr. Yehia Hammad. Both experts acknowledged that when the silica sand left Badger, it could not cause silicosis because the granules were too large to be inhaled.

¶ 12. The circuit court also adopted and applied the Restatement (Third) of Torts § 5 (1998). It reasoned that because a raw material such as silica sand could not he defectively designed, Badger could not be held strictly liable. In reaching this conclusion, the circuit court correctly recognized that Wisconsin courts had yet to adopt the Restatement (Third) of Torts § 5 (1998).

¶ 13. The court of appeals affirmed the dismissal of Haase's claims. Like the circuit court, the court of appeals adopted and applied the Restatement (Third) of Torts (1998) § 5. Haase v. Badger Mining Corporation, 2003 WI App 192, ¶ 29, 266 Wis. 2d 970, 699 N.W.2d 737. It observed that "§ 5 is the logical extension of Restatement (Second) of Torts § 402A (1965)." Id. The court explained, "[i]n essence, § 5 recognizes that a raw material such as sand is inherently safe in its design and is not an unreasonably dangerous product." Id.

¶ 14. Additionally, the court of appeals concluded that Haase's strict liability claim would have failed even if the circuit court had applied the Restatement (Second) of Torts § 402A (1965). Id., ¶ 27. The court emphasized the testimony of Haase's expert witnesses, who noted that Badger's sand was too large to become respirable and harmful in its natural form. Id., ¶ 28. Accordingly, it determined that there was no evidence that the sand was in any way unreasonably dangerous at the time Badger delivered it to Neenah. Id.

II

¶ 15. A motion challenging the sufficiency of the evidence may be granted when "the court is satisfied that, considering all credible evidence in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such a party." Weiss v. United Fire and Casualty Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995) (quoting Wis. Stat. § 805.14(1)).

¶ 16. In ruling upon a motion made at the close of a plaintiffs case, a circuit court may grant the motion if it finds, as a matter of law, that no jury could disagree on the proper facts or inferences to be drawn therefrom, and that there is no credible evidence to support a verdict for the plaintiff. Id. (citing American Family Mut. Ins. Co. v. Dobrzynski, 88 Wis. 2d 617, 625, 277 N.W.2d 749 (1979)).

¶ 17. Because circuit courts are better positioned to decide the weight and relevancy of the testimony, we accord them substantial deference. Id. at 388-89 (citing James v. Heintz, 165 Wis. 2d 572, 577, 478 N.W.2d 31 (Ct. App. 1991)). Thus, we will not overturn a circuit court's decision to dismiss for insufficient evidence unless the record reveals that it was "clearly wrong." Id. at 389 (quoting Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 110, 362 N.W.2d 118 (1985)). A circuit court is "clearly wrong" when it grants a motion to dismiss despite the existence of "any credible evidence" to support the claim. See id.

III

¶ 18. This case presents us with two issues. First, we must decide whether the court of appeals erred in adopting and applying the Restatement (Third) of Torts § 5 (1998). Second, we must determine whether Haase presented sufficient evidence for a strict liability claim under Restatement (Second) of Torts § 402A (1965).

¶ 19. Our discussion begins with an examination of the Restatement (Third) of Torts § 5 (1998). Section 5 is entitled "Liability of Commercial Sellers or Distributors of Product Components For Harm Caused by Products Into Which Components Are Integrated" and provides:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(2) the integration of the component causes the product to be defective, as defined in this Chapter; and
(3) the defect in the product causes harm.

¶ 20. Haase contends that the court of appeals erred in adopting this rule and using it as the basis to defeat his strict liability claim. Specifically, he asserts § 5 is inapplicable to his case because it concerns claims involving component parts of finished products where the finished product is alleged to have caused harm. Haase argues that Badger's silica sand was not a component part of Neenah's finished product (the metal casting). Moreover, he maintains that Neenah's finished product did not cause his lung disease.

¶ 21. We agree with Haase that § 5 is inapplicable here. To begin, Badger's silica sand was not a component part because it was not integrated into Neenah's finished products. This conclusion is supported by a comment to the rule, which notes that "[p]roduct components include raw materials, bulk products, and other constituent products sold for integration into other products." Restatement (Third) of Torts (1998) § 5 cmt. a (emphasis added).

¶ 22. Furthermore, Badger's silica sand did not cause the metal casting to be defective as required by § 5(b)(2). Rather, it was the sand itself that was allegedly defective. See Restatement (Third) of Torts (1998) § 5(b)(2). Finally, the § 5(b)(3) requirement cannot be met because no defect in the metal castings caused Haase's silicosis. See Restatement (Third) of Torts (1998) § 5(b)(3).

¶ 23. Although we recognize that Restatement (Third) of Torts may offer new insights into strict liability law, we decline to adopt § 5 here as it is inapplicable to the facts of this case. Because we determine that it is inapplicable, the decision of the court of appeals should not be cited for the proposition that Wisconsin has adopted Restatement (Third) of Torts § 5 (1998). Thus, the status of Restatement (Third) of Torts § 5 (1998) in Wisconsin is that we have neither adopted nor rejected it.

IV

¶ 24. We turn next to the issue of whether Haase presented sufficient evidence for a strict liability claim under Restatement (Second) of Torts § 402A (1965). That section provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

¶ 25. To establish a strict liability claim under this rule, a plaintiff must prove all of the following elements:

(1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause ... of the plaintiffs injuries or damages, (4) that the seller engaged in the business of selling such product, or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it.

Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55 (1967) (emphasis added).

¶ 26. A central dispute in this case is whether there was a change in the silica sand after leaving Badger's control to warrant a dismissal for strict liability. Accordingly, we begin our analysis with the fifth element, which includes this "substantial change" doctrine. If the evidence shows that there was a substantial change in the product after it left the seller, then the strict liability claim fails because all five elements must be met.

¶ 27. The seminal case in Wisconsin explaining what constitutes a "substantial change" for the purposes of strict liability actions is Glassey v. Continental Insurance Company, 176 Wis. 2d 587, 500 N.W.2d 295 (1993). There, a worker was injured when a screw-on cap blew off of a pressurized spray tank and struck him in the forehead. Id. at 593. Prior to the accident, the tank's original filler cap had been replaced with a non-standard "plumbers cap." Id. at 595. The circuit court held that the substantial change to the tank barred a strict liability claim as a matter of law. Id. at 594.

¶ 28. After reviewing the evidence, the court of appeals agreed with the circuit court's dismissal of Glassey's claim. Id. at 600. It concluded that "[m]anu-facturers or sellers cannot be held strictly liable if the condition of the product substantially changes in a way that is material to the accident after the product leaves their control." Id. In doing so, the court defined a substantial and material change as "a change in the design, function or character of the product linked to the accident." Id.

¶ 29. The decision in Glassey was based heavily on an analysis of the public policy grounds that underlie the rule of strict liability as set forth in Dippel. The focus of the analysis lies in the allocation of risk:

'The reason, which has been reiterated most often, is that the seller is in the paramount position to distribute the costs of the risks created by the defective product he is selling. He may pass the cost on to the consumer via increased prices. He may protect himself either by purchasing insurance or by a form of self-insurance. In justification of making the seller pay for the risk, it is argued that the consumer or user has the right to rely on the apparent safety of the product and that it is the seller in the first instance who creates the risk by placing the defective product on the market. A correlative consideration, where the manufacturer is concerned, is that the manufacturer has the greatest ability to control the risk created by his product since he may initiate or adopt inspection and quality control measures thereby preventing defective products from reaching the consumer.'

Id. at 602-03 (quoting Dippel, 37 Wis. 2d at 450-51).

¶ 30. The court explained that such policies "are not promoted by imposing the strict liability rule when a substantial and material change is made to a product after it leaves the control of the manufacturer or seller." Id. at 603. On the contrary, "[t]he party in the best position to pay for the cost of changes to products is the party who makes the changes." Id. Furthermore, "inspection and quality control measures will not prevent changes made to the product after it leaves the manufacturer or sellers control." Id. For these reasons, the court determined that "[i]n situations where the product has undergone a substantial change by a third party, the policy of compensating persons injured by dangerous products is more equitably served by common law negligence rules." Id.

¶ 31. Haase contends that Badger's product did not undergo a substantial and material change because its silica content remained the same throughout the foundry process. He notes that Neenah did not change the amount of silica in Badger's sand. Rather, Haase maintains that Badger controlled it, intentionally creating a product that was almost 100% pure silica.

¶ 32. The problem with Haase's argument is that the evidence reveals that the very characteristic which made Badger's silica sand dangerous, its respirability, did not arise until the sand had been fractured into dust by Neenah during the foundry process. This fact was confirmed by his expert witnesses at trial;

¶ 33. Dr. Yehia Hammad, a certified industrial hygienist, testified that when Badger's sand leaves its facilities, it cannot cause silicosis because the granules are too large and not in the size range that can he inhaled into the lungs. He explained, "That's like all of us sitting on the beach with respirators . . . because the sand is very large and cannot get into our lungs."

¶ 34. Similarly, Haase's medical expert, Dr. Henry Anderson, testified that even a very small grain of sand cannot get into the lungs. He noted that the sand had to be very fine and so small that it cannot be seen with the naked eye. Thus, both experts acknowledged that for the sand to be respirable and potentially harmful to the lungs, it must be fractured into smaller particles. This occurred during processes at Neenah.

¶ 35. Nevertheless, Haase attempts to minimize the significance of this evidence. He argues that when a product is substantially changed before it reaches the plaintiff, the question becomes whether the manufacturer expected (or could have objectively foreseen) such a change. If so, Haase insists that strict liability may then apply.

¶ 36. Haase asserts that Badger expected the sand to undergo a substantial change and foresaw that respirable silica particles would be created from its product. He complains that the court of appeals failed to consider Badger's expectation that its sand would be changed into a respirable form.

¶ 37. For support, Haase relies on the third circuit case of Whitehead v. St. Joe Lead Company, Inc., 729 F.2d 238 (3rd Cir. 1984). In Whitehead, the court reversed a district court's summary judgment order denying a plaintiff relief in a duty to warn case. Id. at 241. The defendants maintained that the plaintiff was not entitled to relief because the lead ingots supplied to the plaintiffs employer had undergone a substantial change when they were converted to airborne and particulate lead during the employer's manufacturing processes. See id. at 249-50.

¶ 38. In reversing the summary judgment order, the court explained that under New Jersey law the general substantial change rule "is limited to changes for which it is not foreseeable that the alteration will cause injury." Id. at 250. It concluded that New Jersey followed a rule that exposed a manufacturer to strict liability if that manufacturer could foresee the change that would cause the user/consumer harm. Id. The court explained:

In this case it was objectively foreseeable that lead particles would be generated by Alpha's use of lead ingot. The fact that defendants supplied lead in ingot form, rather than in the form of airborne particles or metal fines, is of no consequence. The law of torts does not turn on such nice distinctions of physical chemistry. .. . The relevant question is whether the production of airborne and particulate lead was a foreseeable consequence of Alpha's operations.

Id. (citation omitted).

¶ 39. Haase's reliance on Whitehead is misplaced. We do not follow the foreseeability rule adopted by the New Jersey courts and applied in the Whitehead decision. In fact, the New Jersey rule was advanced by the plaintiff in Glassey, and we expressly rejected it:

Glassey urges that the rule to be applied in Wisconsin should be that 'a subsequent change in a product will not relieve a manufacturer from strict liability unless the subsequent alteration itself created the defect that constituted the sole cause of injury, and the change was not reasonably foreseeable by the manufacturer. Glassey cites Soler v. Castmaster, Division of H.P.M. Corp., 484 A.2d 1225 (N.J. 1984), in support of this rule.
We reject this rule because it does not promote the policies that underlie the imposition of strict products liability on a manufacturer or seller.... Foreseeability is not an element considered in strict products liability claims, but instead is an element of negligence.

Glassey, 176 Wis. 2d at 604 (emphasis added).

¶ 40. Importantly, Soler relied on Whitehead for the proposition that a manufacturer can be held strictly liable if the substantial change is foreseeable. See Soler, 484 A.2d at 1232. By explicitly rejecting Soler, we have implicitly rejected Whitehead for this proposition.

¶ 41. Thus, even if we look past the fact that it was a duty to warn case, 'Whitehead is distinguishable because it rests on legal principles contradictory to Wisconsin law. We have reiterated these principles before: "Glassey underscored that '[fjoreseeability is not an element considered in strict liability claims.'. . . We cannot fathom that this holding could be clearer." Green v. Smith Nephew A.H.P., Inc., 2001 WI 109, ¶ 68, 245 Wis. 2d 772, 629 N.W.2d 727 (citation omitted). We take this opportunity to reiterate them once again.

¶ 42. In the end, we determine that the evidence here reflects that Badger's sand underwent a substantial change for the purposes of § 402A. As a result, we are satisfied that the circuit court's decision to dismiss Haase's claim was not "clearly wrong" because there was no credible evidence to sustain a finding in his favor.

V

¶ 43. In sum, we agree with Haase that Restatement (Third) of Torts § 5 (1998) is inapplicable to the case at hand. However, we disagree with his assertion that he presented sufficient evidence to support a strict liability claim under Restatement (Second) of Torts § 402A (1965). Because we determine that Badger's product, silica sand, underwent a material and substantial change after leaving its possession, we conclude that Badger cannot be held strictly liable. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        Haase v. Badger Mining Corporation, 2003 WI App 192, 266 Wis. 2d 970, 669 N.W.2d 737 (affirming an order of the circuit court for Winnebago County, Bruce K. Schmidt, Judge).

       The respirator manufacturers settled with Haase prior to trial.

       On review to this court, Haase challenges only the circuit court's dismissal of his strict liability claim. Therefore, we do not address any issues regarding his negligence claim.

       At oral argument, counsel for Haase clarified that he was not raising a duty to warn argument in this review.

       Although Wisconsin has rejected the forseeability rule, we do note that the authors of Restatement (Second) of Torts § 402A (1965) took no position on the issue. In a caveat to the Restatement, they wrote:
      The Institute expresses no opinion as to whether the rules stated in the Section may not apply... (2) to the seller of a product expected to he processed or otherwise substantially changed before it reaches the user or consumer .. .


source: Caselaw Access Project

author: PATIENCE D. ROGGENSACK, J.

license: Public Domain

text:
    Nancy Megal, Plaintiff-Appellant-Petitioner, v. Green Bay Area Visitor & Convention Bureau, Inc., Valley Forge Insurance Company, and Tommy G. Thompson, Secretary of the United States Department of Health and Human Services, Defendants-Respondents.
    Supreme Court

      No. 02-2932.

      Oral argument April 1, 2004.

    Decided July 2, 2004.

    2004 WI 98
    (Also reported in 682 N.W.2d 857.)

      Sykes, J., took no part.
    For the plaintiff-appellant-petitioner there were briefs by Jolene D. Schneider, John C. Peterson and Peterson, Berk & Cross, S.C., Appleton, and oral argument by Jolene D. Schneider.

    For the defendant-respondent Green Bay Area Visitor & Convention Bureau, Inc., there was a brief by William J. Ewald and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and oral argument by William J. Ewald.

   PATIENCE D. ROGGENSACK, J.

¶ 1. Nancy Megal requests that we review a published court of appeals decision that affirmed the order of the circuit court for Brown County, William M. Atkinson, presiding, granting the defendant's motion for summary judgment, thereby dismissing Megal's safe-place violation and negligence claims.

¶ 2. Because we conclude that Megal's safe-place claim was properly dismissed, we affirm that part of the court of appeals decision. However, because we also conclude that the court of appeals erred when it affirmed the dismissal of Megal's negligence claim, we reverse that part of the court of appeals decision and remand for further proceedings.

I. BACKGROUND

¶ 3. The background facts are undisputed. On February 6,1998, Nancy Megal accompanied her seven-year-old granddaughter, her granddaughter's friend and the two girls' mothers to an ice show at the Brown County Veterans Memorial Arena (Arena). The Arena has three floors totaling nearly 61,000 square feet and, for an ice show, seats a maximum of 5,248 patrons. The night Megal was there for the "Pocahontas on Ice" show, the Arena had sold 4,220 seats, and many of the patrons were children. Megal and her group were seated on the upper level of the Arena. At the end of the show, Megal, along with the rest of the audience seated near her, descended a stairway to exit. The stairway was crowded, and Megal said she held onto the stairway handrail; however, she could not see the stair in front of her. As she neared the bottom step, Megal slipped and fell when she stepped on a ketchup-covered french fry. Megal did not see the french fry before she slipped on it; she did not know how it got there or how long it had been there. As a result of the fall, Megal fractured her left ankle and suffered permanent injury. Aside from the french fry on the stair, there were no other spilled food items on the stairs, nor any other noticeable litter, trash or other debris cluttering the Arena.

¶ 4. Patrons attending events at the Arena are not allowed to bring in food or drink from the outside; however, concessions are available for purchase inside the Arena, but only on the lower east concourse beginning an hour before a show and ending approximately fifteen to thirty minutes before the conclusion of a show. Patrons may carry these concessions to all areas of the Arena without restriction.

¶ 5. At evening ice shows, including the one Megal attended, two workers are responsible for performing janitorial services. They are not required to abide by formal written procedures. Instead, one of the janitors generally would clean the lower east concourse food area after intermissions, and either janitor would clean up a spill or mess if he or she saw one or was told about one. Usually, the janitors relied on others to tell them of spills.

¶ 6. The Arena is owned by Brown County and leased to the Green Bay Area Visitors & Convention Bureau, Inc. (Bureau). The Bureau had an agreement with Promotion Management, Inc. (PMI) whereby PMI would provide concessions in the Arena, and the personnel necessary for the day-to-day operation of the Arena.

¶ 7. Megal filed a complaint on February 5, 2001, and, once the identity of all parties became known, she filed an amended complaint on April 26, 2001, naming, among others, the Bureau and its insurer, Valley Forge Insurance Company; PMI and its insurer, Valley Forge Insurance Company; and Brown County and its insurer, Wisconsin Municipal Mutual Insurance Company, alleging negligence and a violation of Wisconsin's safe-place statute. See Wis. Stat. § 101.11 (2001-02). The circuit court granted partial summary judgment for the Bureau, releasing it from liability for the statutory safe-place claim, but not from the negligence claim. Both the Bureau and Megal moved for reconsideration and the circuit court granted the Bureau's motion, thereby dismissing the negligence claim as well. Megal appealed. The court of appeals affirmed and we accepted Megal's petition for review.

II. DISCUSSION

A. Standard of Review

¶ 8. We review summary judgments de novo, using the same method as the circuit court. Alvarado v. Sersch, 2003 WI 55, ¶ 10, 262 Wis. 2d 74, 662 N.W.2d 350. Summary judgment can be granted only if there are no disputes of material fact and one party's claim is entitled to judgment, as a matter of law. Id.

B. Safe-Place Violation Claim

1. Safe-Place law

¶ 9. According to Wis. Stat. § 101.11, every employer and owner of a public building is to provide a place that is safe for employees and for frequenters of that place, and "[e]very employer and every owner of a place of employment or a public building... shall so construct, repair or maintain such place of employment or public building as to render the same safe." Section 101.11(1). This duty has a higher standard of care than that imposed by common-law negligence. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979), aff'd, 100 Wis. 2d 120, 301 N.W.2d 201 (1981). However, the safe-place statute addresses unsafe conditions, not negligent acts. Gross v. Denow, 61 Wis. 2d 40, 47, 212 N.W.2d 2 (1973). In addition, the law does not require an employer or an owner of a public building to be insurers of frequenters of the premises. Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967).

¶ 10. Moreover, "safe" is a relative term. Gross, 61 Wis. 2d at 46. "Safe" does not mean completely free of any hazards. See id. What constitutes a safe place "depends on the facts and conditions present, and the use to which the place 'was likely to be put.'" Id. at 47 (quoting Gould v. Allstar Ins. Co., 59 Wis. 2d 355, 362, 208 N.W.2d 388 (1973)). Just because a place could be made more safe, it does not necessarily follow that an employer or owner has breached the duty of care established by Wis. Stat. § 101.11(1). See Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 327, 227 N.W.2d 444 (1975). Rather, the duty set forth by the statute requires an employer or owner to make the place "as safe as the nature of the premises reasonably permits." Strack, 35 Wis. 2d at 54. The "nature of the business" and the "manner in which [business] is conducted" are factors to be considered in assessing whether the premises are safe, within the meaning of § 101.11(1). See Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 372, 350 N.W.2d 730 (Ct. App. 1984).

¶ 11. In order for an employer or owner to be subject to the standard of care established by Wis. Stat. § 101.11(1) for any unsafe condition of the premises, the employer or owner must have notice that an unsafe condition exists. This notice can be actual notice or constructive notice. Strack, 35 Wis. 2d at 54-55; Kaufman v. State Street Ltd. P'ship, 187 Wis. 2d 54, 59, 522 N.W.2d 249 (Ct. App. 1994). Constructive notice has been explained as:

neither notice nor knowledge but a shorthand expression, 'the mere trademark of a fiction.' In order to promote sound policy, we attribute constructive notice of a fact to a person and treat his legal rights and interests as if he had actual notice or knowledge although in fact he did not.

Strack, 35 Wis. 2d at 54-55 (citations omitted). See May v. Skelley Oil Co., 83 Wis. 2d 30, 36, 264 N.W.2d 574 (1978).

¶ 12. In the context of an alleged safe-place violation, the general rule is that an employer or owner is deemed to have constructive notice of a defect or unsafe condition when that defect or condition has existed a long enough time for a reasonably vigilant owner to discover and repair it. May, 83 Wis. 2d at 36; Strack, 35 Wis. 2d at 55; Kaufman, 187 Wis. 2d at 59. Ordinarily, constructive notice requires evidence as to the length of time that the condition existed. Kaufman, 187 Wis. 2d at 59.

¶ 13. The length of time required for the existence of a defect or unsafe condition that is sufficient to constitute constructive notice depends on the surrounding facts and circumstances, including the nature of the business and the nature of the defect. May, 83 Wis. 2d at 37; Gerdmann, 119 Wis. 2d at 371; Dykstra, 92 Wis. 2d at 26. We have carved out a limited exception to the general rule that temporal evidence is required before constructive notice can arise. We have explained:

[W]hen an unsafe condition, although temporary or transitory, arises out of the course of conduct of the owner or operator of a premises or may reasonably be expected from his method of operation, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice.

Strack, 35 Wis. 2d at 55. See Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 683-84, 180 N.W.2d 525 (1970).

¶ 14. In Strack, the plaintiff was shopping in defendant's grocery store in the produce area where there were tables displaying fruit for sale in the center of a wide aisle. The plaintiff slipped on a small Italian prune that was on the floor and injured her back and leg. Strack, 35 Wis. 2d at 53-54. The plaintiff sued the store alleging a violation of the safe-place statute. Though the plaintiff had no evidence that the prune had been on the floor for any appreciable amount of time, as would be required under the general rule for constructive notice, we determined that the grocery store had constructive notice because of its method of merchandizing articles for sale to the public in the area of store where the injury occurred. Id. at 55-56. We said:

[W]e think supermarkets which display their produce and fruit in such a way that they may be handled by customers and dropped or knocked to the floor unintentionally is a way of doing business which requires the storekeeper to use reasonable measures to discover and remove such debris from the floor. ... While the use of self-service produce displays is not negligence as a matter of law, [such displays] do create marketing problems of safety and place upon the store operator the need for greater vigilance if he is to meet the higher than common-law standard of care required by the safe-place statute.

Id. at 56-57.

¶ 15. Similarly, in Steinhorst, the store's method of merchandizing articles for sale to the public in the area of the store where the injury occurred gave rise to constructive notice without evidence that the unsafe condition had existed for any amount of time. Steinhorst, 48 Wis. 2d at 684. There, the plaintiff was shopping in defendant's store and was walking next to the men's cosmetic counter when she slipped on spilled shaving foam and injured her wrist and her leg. The cosmetic counter displayed a number of aerosol shaving foams, including "tester" bottles that customers were encouraged to sample. Id. at 681. The plaintiff presented no evidence as to how long the shaving foam was on the floor before she slipped on it. We determined that the exception announced in Strack applied in Steinhorst as well. That is, "[t]he unsafe condition here was substantially caused by the method used to display merchandise for sale. .. . [W]hether the shaving soap got on the floor accidentally or through negligence of a shopper, or intentionally by 'boys playing around,' such conduct should have been foreseen" by the defendant store. Id. at 684. Accordingly, while constructive notice of an unsafe condition usually requires temporal evidence relating to the condition, temporal evidence may be unnecessary when the method of merchandizing articles for sale to the public in the area in which the injury occurred makes the harm that occurred at that location reasonably foreseeable.

2. Safe-Place law and Megal's claim

¶ 16. It has not been disputed that the Arena is a public building and that the Bureau is an owner or employer within the meaning of Wis. Stat. § 101.11(1). However, the Bureau urges us to affirm the court of appeals because Megal has not presented any evidence that the french fry upon which she slipped was on the step for any appreciable time. Therefore, the Bureau contends that it cannot be deemed to have constructive notice unless the narrow Strack exception applies, and the Bureau asserts that nothing in the record supports it.

¶ 17. On the other hand, Megal argues that the Strack exception applies to her because the Bureau could reasonably expect unsafe conditions to arise due to the Bureau's method of selling the Arena's concessions to the public. She claims that two janitors working in a 61,000 square-foot facility throughout which patrons can carry food and drink without restriction, having no specific procedures for patrolling the Arena looking for spills, is similar to the self-serve produce section in Strack or the cosmetic counter in Steinhorst. However, she also acknowledged that it was just as possible that someone ahead of her in the departing crowd dropped the french fry moments before she stepped on it, as it was that someone dropped the french fry after intermission. Additionally, Megal provided no affidavit from an expert witness or other materials from which we could conclude that a question of fact had arisen about whether the Arena was not as safe as the nature of a 61,000 square-foot entertainment enterprise reasonably permits.

¶ 18. As we explained supra, if constructive notice is relied on, generally, evidence of the length of time that the unsafe condition existed is required to establish it. May, 83 Wis. 2d at 36. We have imputed constructive notice, without a showing of temporal evidence of the unsafe condition, in a narrow class of cases where the method of merchandizing articles for sale to the public in the area where the harm occurred should have made that harm reasonably foreseeable at that location. See, e.g., Steinhorst, 48 Wis. 2d at 683-84; Strack, 35 Wis. 2d at 55. It is important that the harm that occurred be foreseeable in the area where it occurred because Wis. Stat. § 101.11(1) creates a standard of care that requires the employer or owner to make the premises "as safe as its nature would reasonably permit," by correcting the unsafe condition. Kaufman, 187 Wis. 2d at 64 (citing Strack, 35 Wis. 2d at 55-56). If this obligation is to arise without actual notice or evidence that the unsafe condition was permitted to exist for an unreasonable period of time, the harm that occurred must be reasonably foreseeable in the area where it occurred. See Kaufman, 187 Wis. 2d at 65. Otherwise, it would not be reasonable to require the employer or owner to incur liability for not correcting it. See id. We have refused to impute constructive notice where the area where the harm occurred is not an area where the owner was merchandizing articles for sale to the public in a way that made the harm that occurred reasonably foreseeable. See Kaufman, 187 Wis. 2d at 65 (concluding that the Strack exception was not available to a plaintiff who slipped on a banana peel in a store's parking lot).

¶ 19. Furthermore, in some business operations, what constitutes "as safe as the nature of the premises reasonably permits" is outside the realm of typical experience, and requires expert testimony to describe the practices that are reasonably required of the business enterprise at issue. See Kujawski v. Arbor View Health Care Ctr., 139 Wis. 2d 455, 463, 407 N.W.2d 249 (1987) (explaining that expert testimony is necessary when the trier of fact is to determine matters requiring knowledge or experience on subjects that are not within the common knowledge of mankind).

¶ 20. Megal provided neither evidence of the length of time the french fry was on the stair, nor any expert testimony about the usual management and maintenance of a 61,000 square-foot public building where events are held and food is sold for the benefit of the patrons who attend an event. What is reasonable to expect for the management of such a facility in regard to preventing the kind of accident that occurred here is not within the common knowledge of mankind or of this court. Because we have been presented with no testimony that the Arena is not as safe as the nature of the enterprise permits, and because Wis. Stat. § 101.11(1) does not make the Bureau the insurer of all who attend events at the Arena, we have no basis on which to analyze the Strack exception for Megal's injury. We cannot speculate about what is reasonable for such an enterprise. See also Moulas v. PBC Prods., Inc., 213 Wis. 2d 406, 417, 570 N.W.2d 739 (Ct. App. 1997) (noting in a safe-place claim that "[p]ersonal opinions of an affiant in the absence of a validating basis do not constitute evidentiary facts"). Accordingly, because the facts of record are insufficient to create a question of fact in regard to constructive notice, we affirm the court of appeals decision dismissing Megal's safe-place claim.

C. Negligence Claim

¶ 21. Aside from the safe-place violation, Megal's complaint also alleged common-law negligence. The court of appeals affirmed the circuit court's dismissal of that cause of action, stating that a common-law negligence claim could not be maintained if a safe-place violation is alleged and cannot be established. See Balas v. St. Sebastian's Congregation, 66 Wis. 2d 421, 426-27, 225 N.W.2d 428 (1975). We disagree, and reverse that part of the court of appeals decision.

¶ 22. Our discussion of the availability of a common-law negligence claim in this kind of situation requires some reference back to the safe-place statute. However, to begin, in Wisconsin, everyone has a duty to everyone else to act with reasonable care. Alvarado, 262 Wis. 2d 74, ¶ 16 n.2; Gritzner v. Michael R., 2000 WI 68, ¶ 20, 235 Wis. 2d 781, 611 N.W.2d 906. What constitutes "reasonable care" in a given situation may be defined by case law or by statute. See Rosholt v. Worden-Alien Co., 155 Wis. 168, 172-73, 144 N.W. 650 (1913). We long have held that the safe-place statute establishes a standard of care: to make the place as safe as the nature of the premises reasonably permits. Strack, 35 Wis. 2d at 54; Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960); Paluch v. Baldwin Plywood & Veneer Co., 1 Wis. 2d 427, 432, 85 N.W.2d 373 (1957); Stellmacher v. Wisco Hardware Co., 259 Wis. 310, 314, 48 N.W.2d 492 (1951); Morrison v. Steinfort, 254 Wis. 89, 91, 35 N.W.2d 335 (1948); Holzworth v. State, 238 Wis. 63, 68, 298 N.W. 163 (1941). The standard of care that the safe-place statute establishes is a higher standard of care than that which the law imposes through common-law negligence. Dyk-stra, 92 Wis. 2d at 26.

¶ 23. In our early discussions where we compared the safe-place statute and common-law negligence, we concluded that those who violated the standard of care under the safe-place statute also violated the standard of care for common-law negligence. Krause, 9 Wis. 2d at 552; Paluch, 1 Wis. 2d at 432-33; Stellmacher, 259 Wis. at 314; Morrison, 254 Wis. at 91; Holzworth, 238 Wis. at 68. This is a valid conclusion. More recently, we appear to have concluded that when the reverse occurs, i.e., when a plaintiff does not prove a violation of the safe-place standard of care, a plaintiff could not prove a violation of the common-law negligence standard of care. Balas, 66 Wis. 2d at 426-27; Merkley v. Schramm, 31 Wis. 2d 134, 142, 142 N.W.2d 173 (1966); Lealiou v. Quatsoe, 15 Wis. 2d 128, 136, 112 N.W.2d 193 (1961). Our discussion in Lealiou appears to be the first time we made such a connection, which we set out without citing any authority:

[I]f the defendant is found to have breached his duty under the safe-place statute, recovery is had for the breach of the higher degree of care, and if it is found the defendant has not breached the higher degree of care, he cannot be held to have breached the standard of care under common law.

Lealiou, 15 Wis. 2d at 136. In a later case, Balas, we attempted to explain ourselves as follows:

At common law, the highest duty owed by an owner of land toward someone on the premises was that of ordinary care, owed to an invitee. This duty could be satisfied by alternative means. The landowner might either have his premises in a reasonably safe condition or give the invitee adequate and timely warning of latent and concealed perils which are known to the invitor but not to the invitee. Another way of stating this same proposition is that there is no duty to inspect and warn unless it is shown that the premises were not in a reasonably safe condition. The statutory safe-place duty to construct and maintain a public building as safe as its nature will reasonably permit is not a lesser standard than that imposed by the common law. A fortiori no violation of a common-law duty is shown if violation of the safe-place statute cannot be established.

Balas, 66 Wis. 2d at 426-27 (internal citations omitted). These analyses are unsubstantiated and incorrect insofar as they preclude a common-law negligence claim if no violation of the safe-place standard of care is established, and we withdraw them. In our view, there is no reason why, if an employee or frequenter has not proved that the employer or owner violated the higher standard of care in Wis. Stat. § 101.11(1) that it necessarily follows that the employee or frequenter cannot prove that the employer or owner violated the lower standard of common-law negligence by committing a negligent act. As we have said, the safe-place statute addresses unsafe conditions, not simply negligent acts. Gross, 61 Wis. 2d at 47.

¶ 24. The enactment of the safe-place statute in 1911 substantially changed the landscape of an employer's duty to his employees to provide a safe work environment. Rosholt, 155 Wis. at 173 (noting that common law required only that the workplace be "reasonably safe," whereas the safe-place statute required the workplace to be as free from "danger to the life, health or safety of employees ... as the nature of the employment will reasonably permit"). The statute also required employers to provide a safe environment for those who frequent their businesses. Carr v. Amusement, Inc., 47 Wis. 2d 368, 374, 177 N.W.2d 388 (1970). However, the law did not — and does not — release employers from their duty to act with reasonable care, as every other person in this state is required to do. See Alvarado, 262 Wis. 2d 74, ¶ 16 n.2; Gritzner, 235 Wis. 2d 781, ¶ 20.

¶ 25. Megal demonstrated no facts that could be used to show that the Bureau had constructive notice of the unsafe condition that caused her injury, as is necessary to establish a violation of the safe-place standard of care, but she may be able to show that the Bureau failed to exercise ordinary care. A person is negligent if the person, without intending to cause harm, either acts affirmatively or fails to act in a way that a reasonable person would recognize as creating an unreasonable risk of injury. Rockweit v. Senecal, 197 Wis. 2d 409, 424, 541 N.W.2d 742 (1995) (citation omitted). See Wis. JI-Civil 1005. Accordingly, Megal is entitled to proceed with her common law claim.

III. CONCLUSION

¶ 26. Because we conclude that Megal's safe-place claim was properly dismissed, we affirm that part of the court of appeals decision. However, because we also conclude that the court of appeals erred when it affirmed the dismissal of Megal's negligence claim, we reverse that part of the court of appeals decision and remand for further proceedings.

By the Court. — The decision of the court of appeals is affirmed in part; reversed in part, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 27. DIANE S. SYKES, J., did not participate.

       All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       Whether an employer or owner has notice of an unsafe condition generally is a question of fact left to the jury. Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 370, 350 N.W.2d 730 (Ct. App. 1984). Here, however, the facts are not in dispute, and the question is simply whether those facts have any legal significance (i.e., whether the facts Megal provided can be used to impute constructive notice to the Bureau under Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967)). This is a question of law. See Vocational, Technical & Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977).