Slip and Fall / Premises Liability Demand Letter - Wisconsin

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF WISCONSIN

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Wisconsin ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Wisconsin

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Claim Number: [Claim Number, if assigned]

Dear [Recipient Name]:

This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address] in [City], Wisconsin. This letter constitutes our formal demand for settlement and provides a comprehensive analysis of liability under Wisconsin law, our client's injuries, and damages.

I. WISCONSIN-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Wisconsin Statutes § 893.54(1m)(a) requires an action to recover damages for injury to the person to be commenced within three years. Wisconsin's discovery rule, reasonable diligence, tolling, party identity, and any special public-defendant statute must be analyzed before stating a deadline. Based on the presently known facts, counsel has calculated the filing deadline as [Expiration Date].

B. Premises Liability Duty Standards Under Wisconsin Law

Wisconsin abolished the different common-law duties formerly owed to invitees and licensees. Under Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 236 N.W.2d 1 (1975), a possessor owes ordinary care to persons on the premises with consent. Wisconsin retains a separate trespasser analysis; the demand should not say that one standard governs every entrant.

Ordinary care is circumstance-specific. Relevant evidence includes possession or control, the condition and use of the premises, what the defendant knew or reasonably should have discovered, inspection practices, warnings or repairs, foreseeability, the claimant's own care, and causation.

C. Safe-Place Statute - Wis. Stat. Section 101.11

IMPORTANT: Wisconsin has a unique Safe-Place Statute (Wis. Stat. Section 101.11) that may apply:

"Every employer and every owner of a place of employment or a public building shall construct, repair, and maintain such place of employment or public building as to render the same safe."

The statute is a negligence statute imposing a heightened duty, not strict liability. It concerns unsafe physical conditions rather than negligent activities. Whether it applies depends on statutory status, ownership or control, the location, the physical condition, and whether the claim concerns a structural defect or an unsafe condition associated with the structure. Soletski v. Krueger International, Inc., 2019 WI App 7; Lorbiecki v. Pabst Brewing Co., 2024 WI App 33.

Do not assume from a business label alone that every location or defendant is covered. If the facts establish that the relevant area was a covered place of employment or public building and the defendant had the required status and control, customize the demand to identify the statutory category and physical condition.

D. Modified Comparative Negligence - 51% Bar

Wisconsin follows modified comparative negligence under Wis. Stat. § 895.045(1):

• A plaintiff's recovery is reduced by their percentage of negligence
• The plaintiff's negligence is compared separately against each person found causally negligent; recovery against a particular person is barred if the plaintiff's negligence is greater than that person's negligence
• A person below 51% causal negligence has liability limited to that percentage; a person at 51% or more is jointly and severally liable

Our client exercised reasonable care at all times and bears no responsibility for this incident.

E. Constructive Notice Standard

For an unsafe condition associated with a structure under the safe-place statute, actual or constructive notice is generally required; a structural defect is treated differently. Constructive notice ordinarily requires evidence that the condition existed long enough to permit discovery, though Wisconsin recognizes a narrow merchandising-method exception when the method made harm reasonably foreseeable at the location. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98; Correa v. Woodman's Food Market, 2020 WI 43. The former Cefalu citation was wrong: the actual decision is 2005 WI App 187 and is not premises-notice authority.

F. Snow and Ice Liability

The former citation to “Cusick v. Duxstad, 2011 WI App 110” is false; 2011 WI App 110 is Madison Gas & Electric v. LIRC, a workers' compensation decision. Do not use it for a categorical natural-accumulation immunity.

For a private-premises winter claim, analyze ordinary care and, if applicable, the safe-place statute using evidence of the precise condition, notice, weather and duration, inspection, drainage or refreezing, shoveling or treatment, warnings, customary paths, control, and reasonable precautions. A public sidewalk is not automatically a place of employment merely because a business clears it. Claims concerning municipal highways, sidewalks, or public parking areas require separate analysis under Wis. Stat. § 893.83, including its special treatment of snow or ice existing for less than three weeks.

G. Damage Caps

Wisconsin Statutes § 893.55 governs medical malpractice. Its noneconomic-damages limit does not cap an ordinary premises-liability claim. Analyze limits only when a public or other specially protected defendant or claim is involved.

H. Notice Requirements for Government Claims

State and local public claims use different provisions:

• State officer, employee, or agent: Wis. Stat. § 893.82(3) generally requires a detailed written notice to be served on the attorney general within 120 days of the event. The statute has strict content, oath, and certified-mail requirements and a $250,000 limit with no punitive damages under § 893.82(6).
• Political corporation, governmental subdivision, agency, or covered official: Wis. Stat. § 893.80(1d) generally requires a signed notice of circumstances within 120 days, subject to its actual-notice/no-prejudice savings clause, plus a separate claim with the claimant's address and an itemized statement of relief presented to the proper clerk or secretary and disallowed. Section 893.80(1g) addresses deemed disallowance after 120 days and a six-month period after service of a formal disallowance. Section 893.80(3) generally limits tort recovery to $50,000 and bars punitive damages, with a lower volunteer-fire-company tier.

Confirm defendant identity, service, content, signature or oath, disallowance, immunity, limitations interaction, and the precise statutory exception before proceeding.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:

• All surveillance video footage from the date of incident (interior and exterior cameras)
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports prepared by employees or management
• Witness statements taken at the time of incident
• Maintenance logs and repair records for the area of the fall
• Inspection records and checklists for the date of incident and prior 12 months
• Cleaning schedules and logs
• Weather records and reports from the date of incident
• Prior complaints regarding the hazardous condition
• Prior incidents or falls at the same or similar location
• Work orders and maintenance requests for the area
• Photographs of the incident location
• Written policies and procedures for maintenance, inspection, and safety
• Training records for employees responsible for premises safety
• Insurance policies applicable to this claim

Wisconsin courts have discretionary authority to address destruction or withholding of evidence relevant to pending or future litigation. A negative-inference instruction requires intentional, not merely negligent, destruction and a violated preservation duty. The remedy depends on the facts and requested sanction. Lorbiecki v. Pabst Brewing Co., 2024 WI App 33, ¶¶ 27-32. This notice requests reasonable preservation and does not predetermine a remedy.

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type - e.g., "a retail shopping center," "a grocery store," "a restaurant," "an apartment complex," etc.] in [City], Wisconsin. At all relevant times, [Property Owner Name] owned, operated, possessed, maintained, and/or controlled the subject premises. [If supported, identify the facts establishing that the relevant area and defendant fall within a specific safe-place statutory category.]

B. The Hazardous Condition

On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically: [Describe the hazardous condition in detail]

[CUSTOMIZE BASED ON TYPE OF HAZARD - Select applicable option:]

Wet/Slippery Floor: A liquid substance was present on the floor in the [specific location], creating an extremely slippery and dangerous walking surface. There were no warning signs, cones, or barriers in place to alert visitors to this hazard.

Uneven Walking Surface: A raised or uneven section of [flooring / sidewalk / parking lot] created a tripping hazard that was not marked, repaired, or remediated.

Defective Stairs/Steps: The stairway at [location] was defective and dangerous due to [describe defect].

Foreign Object/Debris: [Describe object] was present on the floor, creating a tripping hazard.

Ice/Snow Accumulation: [Describe the precise condition, location, visibility, weather timing, duration, drainage/refreezing, inspection, warnings, and remediation evidence]

C. The Incident

On [Date of Incident], at approximately [Time], our client was [describe activity - e.g., "shopping at the premises," "visiting as a patron"] when [describe the fall in detail].

D. Notice and Knowledge

Your insured had actual and/or constructive knowledge of this hazardous condition:

Actual Knowledge:

• [Prior complaints about the same condition]
• [Condition was created by defendant's employees]
• [Employee acknowledgment of awareness]

Constructive Knowledge:

• The hazardous condition existed for a sufficient length of time that it should have been discovered through reasonable inspection
• [Evidence of duration - footprints, dirty appearance, accumulation size]
• [Inadequate inspection procedures]

IV. LIABILITY ANALYSIS UNDER WISCONSIN LAW

A. Common Law Negligence

Under Wisconsin law, our client must establish: (1) defendant owed a duty of care; (2) defendant breached that duty; (3) the breach was the proximate cause of injury; and (4) damages resulted. Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995).

B. Safe-Place Statute Violation

If the statutory coverage and defendant-status facts are established, Wis. Stat. § 101.11 requires the covered owner or employer to maintain the place as safe as its nature reasonably permits. The evidence supporting a violation may include:

1. Failing to maintain the premises as safe as the nature of the premises reasonably permitted
2. Allowing a structural defect or unsafe condition to exist
3. Failing to correct a condition that made the premises not as safe as reasonably possible

For a structural defect, owner notice is not required; for an unsafe condition associated with the structure, actual or constructive notice generally is required. The statute remains a negligence statute, and causation and comparative negligence still matter. Barry v. Employers Mutual Casualty Co., 2001 WI 101; Lorbiecki, 2024 WI App 33.

C. Breach of Duty

Your insured breached its duty to our client by:

1. Failing to maintain the premises in a reasonably safe condition
2. Failing to maintain the premises as safe as the nature reasonably permits (Safe-Place Statute)
3. Failing to conduct reasonable inspections to discover the dangerous condition
4. Failing to correct or warn of the dangerous condition
5. [Additional specific breaches]

D. Causation

The dangerous condition was the direct and proximate cause of our client's fall and resulting injuries. But for your insured's negligence, our client would not have been injured.

E. Comparative Negligence Defense - Inapplicable

We reject any assertion that our client was comparatively negligent:

• Our client was exercising reasonable care for [his/her] own safety
• The hazard was not open and obvious
• Our client had no reason to anticipate the dangerous condition
• [Additional factors]

V. INJURIES AND MEDICAL TREATMENT

A. Injuries Sustained

As a direct and proximate result of the fall, our client sustained the following injuries:

[List specific injuries with diagnoses]

B. Medical Treatment

Emergency Treatment: [Date, Provider, Treatment]

Surgical Intervention (if applicable): [Date, Procedure, Provider]

Ongoing Treatment: [Physical therapy, specialist care, etc.]

C. Current Status and Prognosis

[Describe current condition and prognosis from treating physicians]

VI. DAMAGES

A. Medical Expenses

Future Medical Expenses: $[Amount]

B. Lost Wages

C. Pain and Suffering

[Detailed description of physical pain, emotional distress, and loss of enjoyment of life]

D. Summary of Damages

VII. SETTLEMENT DEMAND

Based on the presently available evidence concerning the applicable duty, condition, notice, breach, causation, and documented damages, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring on [Expiration Date].

Should you fail to respond to this demand within the specified time, or should you fail to make a reasonable offer, we will file suit in the Circuit Court of [County] County, Wisconsin.

VIII. DOCUMENTATION ENCLOSED

• Complete medical records and bills from all treating providers
• Photographs of the incident location
• Photographs of client's injuries
• Incident report (if obtained)
• Employment and wage verification
• HIPAA authorizations

IX. CONCLUSION

The presently available evidence supports our client's claim under Wisconsin law. We urge you to evaluate the evidence and respond within the stated demand period.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
State Bar of Wisconsin No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

WISCONSIN PRACTICE NOTES

• Entrant Status: Wisconsin abolished the invitee/licensee duty distinction for consensual entrants but retains a separate trespasser analysis. Antoniewicz, 70 Wis. 2d 836.
• Safe-Place Statute: Wis. Stat. § 101.11 is a heightened-duty negligence statute addressing covered unsafe physical conditions, not a strict-liability rule for every accident.
• Comparative Negligence: Compare the plaintiff separately with each causally negligent person. Wis. Stat. § 895.045(1).
• No Ordinary Premises Cap: Section 893.55(4)'s $750,000 noneconomic limit applies to covered health-care-provider liability, not an ordinary premises claim.
• Government Claims: State claims use § 893.82; local and other covered governmental claims use § 893.80. Both require careful 120-day analysis, but their procedures, savings rules, and limits differ.
• Allocation: A causally negligent person under 51% is liable only for that person's percentage; a person at least 51% is jointly and severally liable. Wis. Stat. Section 895.045(1).
• Venue: Under § 801.50(2), consider the county where property that is the subject of the claim is situated or where a defendant resides or does substantial business, plus any special statute; the section does not state a general “where the cause arose” rule.
• Snow and Ice: Do not cite the nonexistent Cusick premises case. Analyze private claims under ordinary care and applicable safe-place principles; analyze municipal highway and sidewalk claims separately under § 893.83.

SOURCES AND REFERENCES

• Wis. Stat. § 893.54
• Wis. Stat. § 895.045
• Wis. Stat. § 101.11
• Wis. Stat. § 893.80
• Wis. Stat. § 893.82
• Wis. Stat. § 893.83
• Wis. Stat. § 801.50
• Lorbiecki v. Pabst Brewing Co. (official opinion)
• 2011 WI App 110, Madison Gas & Electric v. LIRC (official opinion confirming the former Cusick attribution was false)