COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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No. 95-3586
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Claudia Differt and
Edward Differt,
Plaintiffs-Appellants,
v.
Voss-Jorgensen-Schueler
Co., Inc.,
Aetna Casualty and
Surety Co., and
Winding Roofing
Company, Inc.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL J. BARRON, Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Claudia Differt and Edward Differt appeal from a
judgment granting summary judgment and dismissing their claim against
Voss-Jorgensen-Schueler Co., Inc., Aetna Casualty and Surety Co., and Winding
Roofing Company. The Differts claim
that there are issues of material fact that preclude summary judgment. The Differts also claim that the trial court
misinterpreted the law in granting summary judgment. We affirm.
The following facts are
not disputed: The Differts own Muskego
Lakes Sheet Metal Inc., an architectural sheet metal company. Voss-Jorgensen was the general contractor
for the Firstar Bank project at Bayshore Mall.
Voss-Jorgensen subcontracted certain work on the Firstar Bank project to
Winding Roofing, which in turn subcontracted the roofing work on the project to
Muskego Lakes.
Prior to completion of
the roofing work, Muskego Lakes was ordered off the work site because it was
using nonunion workers, a violation of a contract provision between
Voss-Jorgensen and Winding, which required the use of union members in all
projects subcontracted to Winding.
Approximately one week after being ordered off the work site, the
Differts were told, under threat of lawsuit, to return to the site to finish
the roofing because there was water leakage in an area of the roof that had not
been completed. After assessing the
weather conditions and finding them unfavorable, Mr. Differt decided to
complete the project the next day. The following day, the Differts returned to
the job site in an attempt to cover the area on the roof that was leaking. The weather that day was rainy and the wind
was gusting. While Mr. Differt
attempted to place a tarp over the area of the roof that was leaking, Mrs.
Differt and others tried to secure the tarp with rope. When the tarp was almost in place, a gust of
wind lifted the tarp off the roof. As
Mrs. Differt struggled to control the tarp, she fell into a hole and was
injured.
In their complaint, the
Differts allege that due to the defendants' improper removal of Muskego Lakes
employees from the job site, Muskego Lakes was delayed in completing the
project and this delay exposed them to an unwarranted risk of injury. The Differts further allege that the
defendants then negligently ordered Muskego Lakes to return to the Firstar Bank
job site, under threat of a lawsuit, and that this order was the direct and
proximate cause of Mrs. Differt's injuries.
The defendants denied
the Differts' allegations and filed affirmative defenses, alleging, among other
things, that Mrs. Differt's injuries were caused by her own negligence. The defendants also filed cross-claims.
Summary judgment is
appropriate when there is no dispute of material fact and the moving party is
entitled to judgment as a matter of law.
Section 802.08(2), Stats. When reviewing summary judgment, we apply
the same methodology as the trial court.
Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401
N.W.2d 816, 820 (1987).
In a negligence action,
the plaintiff must establish a duty of reasonable care owed by the defendant, a
breach of that duty, a causal connection between the defendant's conduct and
the plaintiff's injury, and damages as a result of the plaintiff's injury. Coffey v. City of Milwaukee,
74 Wis.2d 526, 531, 247 N.W.2d 132, 135 (1976). Absent a showing of legal duty and its breach, there is no
negligence. See Milwaukee
Partners v. Collins Eng'rs, Inc., 169 Wis.2d 355, 361–362, 485 N.W.2d
274, 276–277 (Ct. App. 1992). Questions
concerning breach of duty are ordinarily factual matters for the jury to
decide. They become questions of law
when the material facts are undisputed and reasonable persons cannot differ as
to inferences to be drawn from those facts.
Rockweit v. Senecal, 197 Wis.2d 409, 419, 541 N.W.2d 742,
747 (1995).
The Differts cite four
facts that they allege were misstated by the trial court and were material to
the trial court's decision granting summary judgment.[1] We disagree. Regardless of whether these findings were material to some other
aspect of the case, they are not material to the dispositive legal issue of
whether the defendants breached any legal duty owed to the Differts. Whether a breach of duty has occurred
depends upon whether the resulting harm was a reasonably foreseeable
consequence of the defendants' acts. See
Ollerman v. O'Rourke Co., 94 Wis.2d 17, 46, 288 N.W.2d 95, 109
(1980).
There is nothing in the
record from which it can be inferred that Mrs. Differt's injuries were a
reasonably foreseeable consequence of the defendants' acts of ordering the
Differts off the construction site and then back on to the construction site in
order to complete the work they were hired to perform. Mr. Differt, by his own testimony, made the
decision as to when he would attempt to cover the leaking roof:
I
went out there Friday, and there wasn't a thing they could do because it was
pouring rain. I assessed what we could
get by with and figured I could come back, like, Saturday morning and cover the
skylight with a large plastic canvas.
That was my plan of attack.
The
Differts were experienced roofers, assumedly cognizant of perilous situations
and the effects of weather conditions on construction job sites. As Justice Scalia has written, “[l]ife is
too short to pursue every human act to its most remote consequences; `for want
of a nail, a kingdom was lost' is a commentary on fate, not the statement of a
major cause of action against a blacksmith.”
Holmes v. Securities Investor Protection Corp., 503 U.S.
258, 287 (1992) (Scalia, J., concurring).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Those alleged errors
are, as either quoted or paraphrased from the Differts' brief:
(1)“That the Differts' business,
Muskego Lakes, was `trying to get away with something for a long period of
time'—that being it was a non-union company”;
(2)That Voss-Jorgensen told the
Differts “that union workers were needed and ordered them off the job”;
(3)“That the Differts were `told
to come in and rectify the problems so no more damage is caused by bad weather'
and that the `mode and method of how to take care of the problem are strictly
within the confines of Muskego Lakes'”; and
(4)“That Voss-Jorgensen in ordering the Differts to take care of the problem was just a `requirement to finish a contract.'”