COURT OF APPEALS DECISION DATED AND FILED February 26, 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
from a judgment of the circuit court for
Before
¶1
Background
¶2 Silvan manufactures “pressure vessels,” which are tanks designed to be used under pressure. It also has a company policy allowing employees to use scrap metal and company tools to make items for personal use. These items have included a wide variety of items such as Christmas tree stands, barbecue grates, and plant stands.
¶3 In approximately 1994,[2] Silvan employee James Fisher took advantage of Silvan’s policy in order to fabricate a large tank for his son-in-law, Dan Linczeski. Linczeski was the owner of Dan’s Faster Lube, an oil change business, and he had asked Fisher for a tank to collect drained oil. Fisher asked fellow employee and welder Rex Sommers for assistance in making the tank. When Linczeski received the tank, it had more holes in it than he needed. He contacted Peter Harding, who was not a Silvan employee, and asked him to make some modifications to the tank.
¶4 After the modifications were made, Linczeski applied pressure to the tank, using air pressure to force collected oil from the tank into other holding tanks. There is considerable dispute as to whether Fisher knew Linczeski wanted a pressure vessel, whether Linczeski told Harding he planned to use air pressure with the tank, whether Harding advised against it, and other similar facts. However, it is undisputed is that the tank was not actually designed to be used under pressure. The tank exploded in 2004 and injured Behrendt, Linczeski’s employee.
¶5 Behrendt sued Fisher, Silvan, Harding, and Harding’s employer, along with various insurance companies, alleging negligence against all the parties and further alleging strict liability and vicarious liability against Silvan. Fisher, Silvan, Harding, and Harding’s employer all moved for summary judgment. Behrendt agreed to dismiss the claims against Harding’s employer. The court denied Fisher’s and Harding’s motions, but granted Silvan’s. The court concluded there could be no strict liability against Silvan because it did not manufacture the tank. It further concluded that even if Silvan were negligent, the negligence was too remote from the injury and public policy therefore precluded any award. Behrendt appeals the portion of the summary judgment dismissing the negligence claim against Silvan; the strict liability dismissal is not at issue on appeal.
Discussion
¶6 We review summary judgments de novo, using the same methodology
as the circuit court. Green
Spring Farms v. Kersten, 136
I. Vicarious liability
¶7 “A person is generally only liable for his or her own torts.” Kerl v. Dennis Rasmussen, Inc., 2004
WI 86, ¶17, 273
¶8 Normally, the scope-of-employment issue is submitted to the
jury because it involves questions of intent and purpose. See
id.;
Block
v. Gomez, 201
¶9 Here, Behrendt offers no evidence that Fisher created the oil
tank as part of service to Silvan.
Although Silvan permitted employees to use scrap metal and company
tools, the “mere fact that the servant commits a tort during the period of his employment
is not enough to put the act within the scope of his employment.” See
II. Negligence
¶10 To maintain a claim for negligence, there must be (1) a
duty of care on the defendant’s part; (2) a breach of that duty; (3) a
causal connection between the conduct and injury; and (4) actual loss or damage
as a result of the injury. Rockweit
v. Senecal, 197
¶11 Every individual is held minimally to an ordinary standard of
care in all activities. Rockweit,
197
¶12 Here, Behrendt argues that it was foreseeable that Silvan’s
policy of permitting side jobs, with no standards for manufacturing and no
tracking of projects, might lead to some injury if any of the manufactured
items were defective, and he emphasizes the factual dispute over whether Fisher
knew the tank he was building was going to be pressurized. But what Fisher knew about Linczeski’s plan
for the tank—pressurized or not—is irrelevant to the question of Silvan’s
duty: it is undisputed that Silvan had a
policy prohibiting the manufacture of pressure vessels as side jobs.[4]
¶13 When the facts that allegedly give rise to a duty are agreed
upon, existence of a duty is a question of law.
Rockweit, 197
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] Fisher’s name is also spelled Fischer at multiple places in the record and in Behrendt’s brief. We use Fisher because that is how the case has been captioned in this court.
[2] The exact date is not clear, but Dan Linczeski estimated this date to be approximately ten years preceding Behrendt’s injury in 2004.
[3] Behrendt argues that there is a scope-of-employment issue because Sommers thought he was obligated to assist Fisher, his superior at Silvan. Behrendt, however, has not alleged that Sommers was negligent.
[4] Behrendt emphasizes that some employees were manufacturing air tanks, which are pressurized. It is not clear that this was the case. Sommers’ deposition testimony suggests that employees could purchase these at cost or were starting with scrapped, but otherwise tested, empty canisters. However, even if the origin of these tanks is a disputed fact, it is not a material one: it does not contradict the evidence that Silvan had a policy prohibiting manufacture of pressure tanks.
[5] Injury is even less foreseeable if Fisher made the tank intending it to be a pressure vessel. In that case, to foresee injury, Silvan would have had to additionally predict that Fisher would disregard company policy and successfully convince Sommers to violate policy as well.