2008 WI APP 56
court of appeals of
published opinion
Case No.: |
2007AP735 |
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Complete Title of Case: |
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Opinion Filed: |
February 20, 2008 |
Submitted on Briefs: |
January 31, 2008 |
Oral Argument: |
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JUDGES: |
Brown, C.J., Wedemeyer and Fine, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the appellant, the cause was submitted on
the briefs of Robert G. McCoy
and Jacqueline J. Herring of Cascino Vaughan Law Offices, |
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Respondent |
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ATTORNEYS: |
On behalf of the respondent, the cause was submitted on
the brief of John J. Laffey and
Thomas Gonzalez of Whyte Hirschboeck Dudek S.C., |
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2008 WI App 56
COURT OF APPEALS DECISION DATED AND FILED February 20, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Cindy Horak, Individually and as Special Administrator on behalf of the Estate of George Benzinger, Plaintiff-Appellant, v. Building Services Industrial Sales Company, Defendant-Respondent, American Standard, Inc., Bay Industries, Inc., Bay Insulation
Systems, Inc., Cleaver Brooks, Inc., International Paper Company, General
Electric Company, Georgia Pacific Corporation, Owens Illinois, Inc., L S
Insulation Company, Inc., Metropolitan Life Insurance Company, Metso Paper
USA, Inc., Oakfabco, Inc., Defendants, Medicare, Subrogated Defendant. |
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APPEAL from an order of the circuit court for
Before Brown, C.J., Wedemeyer and Fine, JJ.
¶1 FINE, J. Cindy Horak, individually and as the Special Administrator on behalf of the Estate of George Benzinger, appeals a summary-judgment order dismissing its complaint against Building Services Industrial Sales Company.[1] Horak is Benzinger’s daughter. Benzinger died from lung cancer caused in part by his exposure to asbestos. Building Services supplied asbestos material to Benzinger’s employer, Jaeger Insulation Company or its predecessor. The circuit court determined that Horak did not satisfy her summary-judgment burden to show that there were genuine issues of fact as to whether Building Services’s supply of asbestos to Jaeger or its predecessor was a cause of Benzinger’s cancer because, according to the circuit court, Horak was unable to show that Benzinger actually worked with Building Services’s asbestos. As explained below, our review is de novo. We reverse and remand for trial.
I.
¶2 The parties agree that the foundation facts here are essentially not disputed. They disagree, however, whether those facts would support a reasonable jury’s determination that Building Services’s asbestos was a cause of Benzinger’s lung cancer.
¶3 As noted, Benzinger worked for Jaeger or its predecessor for many years, including 1961 through 1965. One of his surviving co-workers during part of that time testified at his deposition that three or four persons worked for Jaeger, noting that it was not “that big of a company.” He could, however, only remember two—Benzinger and another, both of whom were deceased. Jaeger went out of business, apparently in the late 1980s. There are no Jaeger business-documents in the Record. Benzinger died before he could either testify at a deposition or otherwise preserve whatever evidence he might have had material to this case.
¶4 Building Services did, however, have some records of its
sales of asbestos to Jaeger or its predecessor from 1961 through 1965, and the
focus of Horak’s claim here is thus on those years. Distilling those records, Horak represents
that Building Services sold to Jaeger or its predecessor from 1961 through
1965: “3.63 miles” of “asbestos pipe
covering”; “5,859 feet of asbestos blocks (1,953 total blocks)”; and “4,750
pounds of asbestos cement.” Horak
asserts that more than “$7,500 total dollars (in early 1960s dollars) of
asbestos containing products were purchased by Jaeger from [Building Services]
during this 1961-1965 period.” Other
than complaining that it is “at a loss as to how to respond to” these summaries
because, it claims, that Horak “broke the grammar school maxim: ‘show your work,’” Building Services does not
dispute the accuracy of Horak’s summaries of Building Services’s own
records. We thus take those summaries as
established for the purpose of the summary-judgment Record. See Wis. Stat. Rule 910.06 (“The contents
of voluminous writings, recordings or photographs which cannot conveniently be
examined in court may be presented in the form of a chart, summary or
calculation. The originals, or
duplicates, shall be made available for examination or copying, or both, by
other parties at a reasonable time and place.”); Case & Co. v. Board of Trade
of Chicago, 523 F.2d 355, 361 (7th Cir. 1975) (On summary judgment, the
burden is on the party disputing the accuracy of a compilation “in the nature
of a summary of voluminous evidence” under Rule 1006 of the Federal Rules of
Evidence to show how the summary does not accurately reflect the underlying
data when that party has access to the underlying data.); Charolais Breeding Ranches, Ltd.
v. FPC Secs. Corp., 90
¶5 There is no dispute that Benzinger worked with asbestos for Jaeger or its predecessor during 1961 through 1965, and that installing asbestos insulation, which Benzinger did for Jaeger, released dust into the air. One of Benzinger’s co-workers during part of that time, Benzinger’s nephew, testified at his deposition what it was like:
Q And you just described a minute ago insulating the Kewaunee boilers at the YMCA in 1963. When you were doing that kind of work with Shorty Benzinger [Horak’s father] was that dusty work?
A Very dusty.
Q Where did that dust come from?
A Everything is dusty. From the block [of asbestos]. I mean sawing it and drilling it, and a lot of times we took our knife but sometimes we had to drill with a big -- for cutting for the wires to go through, we’d drill through it, and then it was very dusty. At night you’d change clothes, you’d take your clothes -- you’d take it outside and just all over, yeah.
Q Were the cements dusty as well?
A Yes, when you’re mixing it. Once it’s mixed the dust would go away.
¶6 There is evidence in the summary-judgment Record that several
companies other than Building Services sold asbestos insulation to Jaeger,
including Allied Insulation, which Benzinger’s nephew testified was Jaeger’s
“main supplier.” In response, Horak has
attached Allied’s 1969 articles of incorporation to her reply brief and asks us
to take judicial notice of that document.
See Wis. Stat. Rules 902.01(4) (“A judge or court shall take
judicial notice if requested by a party and supplied with the necessary
information.”); 902.01(6) (“Judicial notice may be taken at any stage of the
proceeding.”); Gupton v. City of
¶7 In granting summary judgment to Building Services dismissing Horak’s complaint against it, the circuit court recognized that Jaeger “had small jobs” where asbestos insulation was installed, but ruled that it could not “make a reasonable inference that [Benzinger] had contact with Building Services’ product.” It explained: “There is no evidence to establish that any Building Service [sic] product ever went to a particular job site where [Benzinger] was.”
II.
¶8 Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. Wis. Stat. Rule 802.08(2). Of course, “summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear.” In order to survive summary judgment, however, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material “set[ting] forth specific facts,” Wis. Stat. Rule 802.08(3), material to that element. Our review of a trial court’s grant of summary judgment is de novo.
Tele-Port, Inc. v. Ameritech
Mobile Commcn’s, Inc., 2001 WI App 261, ¶3, 248
¶9 As we have noted, Horak focuses on her father’s work for Jaeger or its predecessor from 1961 through 1965 because there is only evidence that Building Services sold asbestos to Jaeger or its predecessor during that five-year period. As the circuit court recognized, Jaeger “had small jobs,” Building Services sold a significant amount of asbestos products to Jaeger or its predecessor during that time, and it is not disputed that Benzinger installed asbestos insulation on various Jaeger job-sites. Is this enough to pass summary-judgment muster? We believe that it is.
¶10 First, although there is no direct evidence that Jaeger or its
predecessor used any of Building Services’s asbestos on its jobs from 1961
through 1965, it is certainly a reasonable inference that they did; companies
generally do not buy raw material unless they plan on using that raw material
in their business. Second, given
Jaeger’s small size and the reasonable inference from the Record that Benzinger
was one of Jaeger’s few employees from 1961 through 1965, it would be reasonable
for a jury to find that he used some Building
Services asbestos during those years. See Zielinski
v. A.P. Green Indus., Inc., 2003 WI App 85, ¶¶9–13, 263
¶11 Zielinski was an asbestos case where, like here, the circuit
court granted summary judgment to an asbestos supplier.
¶12 Unlike here, there was no direct evidence in Zielinski
that the supplier had sold asbestos to the plaintiff’s employer.
¶13 There is also no dispute whether Benzinger worked for Jaeger or its predecessor when those companies used asbestos supplied by Building Services and the other suppliers; he did.[2] Would this, as Horak argues, permit a reasonable jury to find, contrary to the circuit court’s conclusion, that Benzinger used Building Services asbestos on the job? Here again Zielinski is instructive.
¶14 The argument made by the defendant in Zielinski mirrors Building Services’s argument here:
Alternatively, [the defendant] argues that the plaintiffs failed to “prove” that their product was a substantial factor in producing Zielinski’s injury. In support of this conclusion, [the defendant] claims: “There has been no testimony that George Zielinski worked with or around a product [d]istributed or sold by [the defendant]. A [p]laintiff must show he or she was exposed to defendant’s asbestos-containing product by working with the product or by working in proximity to worker’s [sic] using that product.”
● Zielinski did the type of work that used asbestos;
● Zielinski’s employer “‘probably bought’” asbestos from the defendant; and, therefore,
● “a fact-finder might infer that Zielinski used this product in his work.”
● From 1961 through 1965 Benzinger did the type of work for Jaeger or its predecessor that used asbestos;
● during that period Jaeger or its predecessor bought asbestos from Building Services; and, therefore,
● a reasonable jury could infer that Benzinger used Building Services’s asbestos in his work.
¶15 Although it is true that Benzinger might have used, and, on the odds most likely did use, asbestos sold to Jaeger or its predecessor by one or more other asbestos suppliers, Horak’s burden at trial is not to prove that Building Services’s asbestos was the cause of Benzinger’s lung cancer; she only has to prove that it was a cause of her father’s cancer. The following approved jury instruction reflects this:
The cause questions ask whether there was a causal connection between the negligence of any person and the injuries. These questions do not ask about “the cause” but, rather, “a cause.” The reason for this is that there may be more than one cause of an injury. The negligence of one person may cause an injury, or the combined negligence of two or more persons may cause it. Before you find that any person’s negligence was a cause of the injury, you must find that his negligence was a substantial factor in producing the injury.
Jones v. Dane County, 195
¶16 Whether Horak can prove that her father’s cancer was at least
caused in part by his exposure to Building Services’s asbestos from 1961
through 1965 is not before us. That
dispute will have to be resolved at trial when a properly instructed jury can
assess the type and amount of Building Services’s asbestos insulation sold to
Jaeger or its predecessor in light of the totality of the circumstances. We cannot say on this summary-judgment
Record, however, that any jury assessment would be mere speculation because, as
we have explained in connection with the issue that is before us, a jury could reasonably infer that Benzinger was
exposed to Building Services’s asbestos from 1961 through 1965. See Merco Distrib. Corp. v. Commercial Police Alarm Co., 84
By the Court.—Order reversed and cause remanded.
[1] The operative part of the order reads:
The court being fully advised, HEREBY ORDERS, ADJUDGES AND DECREES: that [Building Services’s] Motion for Summary Judgment is hereby granted dismissing defendant Building Services Industrial Sales Company, Inc., from the above-captioned matter on the merits, with prejudice and with costs awarded pursuant to statute; that, pursuant to this Order, defendant, Building Services Industrial Sales Company, is authorized to submit to this court for execution an Order for Judgment.
(Bolding
and uppercasing in original.) Unless we
grant a petition for leave to appeal a non-final judgment or order, this court
only has jurisdiction over appeals from “[a] final judgment or a final order of
a circuit court.” Wis. Stat. § 808.03. A judgment or order is final if “the circuit
court did not contemplate a subsequent document from which appeal could be
taken.” Wambolt v.
[2] Although Building Services contends that Allied was, as testified to by Benzinger’s nephew, Jaeger’s “main supplier,” a reasonable jury could conclude that Allied did not sell any asbestos to Jaeger or its predecessor from 1961 through 1965 because it appears that Allied was not then in business, or at least had not yet been incorporated.