COURT OF APPEALS DECISION DATED AND FILED September 30, 2008 David R. Schanker Clerk of Court of Appeals |
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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 and an order of the circuit court for
Before
¶1 PER CURIAM.[1] Robert Rohde appeals a judgment and an order dismissing his safe place and negligence claims against The Selmer Company and its insurer. The circuit court concluded that Selmer, the general contractor, was not liable to Rohde, an employee of a subcontractor, because Selmer neither retained the requisite control under the safe place statute nor committed an affirmative act of negligence. We agree with the circuit court and affirm.[2]
Background
¶2 Selmer was the general contractor for a construction site in
¶3 Selmer provided a scissors lift for Rohde to use, and an employee demonstrated its controls for Rohde. Rohde asked a few questions about maneuvering around dirt, wet cement, and some stairs, then began his work. Rohde applied sealant in an orderly pattern, spraying up the building for the width of the lift, moving the lift to the next section, then spraying down the building. After completing a pass up the building, while moving the lift to the next section, the lift tipped over. Rohde was thrown to the ground and severely fractured his right wrist and ankle. The lift had tipped because of an incline for a loading dock in Rohde’s path. Rohde conceded that had he looked over the edge of the lift before moving it, he would have seen the incline and avoided it.
¶4 Rohde brought this action against Selmer, alleging negligence and a violation of the safe place statute, Wis. Stat. § 101.11. Rohde claimed Selmer violated its statutory duty by failing to mark the incline or otherwise make the hazard noticeable. Selmer moved for summary judgment, arguing that, as a matter of law, it had no duty under the statute or common law. The circuit court agreed with Selmer and granted the motion.
Discussion
¶5 We review summary judgments de novo, using the same
methodology as the circuit court. Hardy
v. Hoefferle, 2007 WI App 264, ¶6, 306
¶6 Wisconsin Stat. § 101.11(1)
requires “every employer and owner of a public building … to provide a place
that is safe for employees and … frequenters of that place….” Megal v. Green Bay Area Visitor &
Convention Bureau, Inc., 2004 WI 98, ¶9, 274
¶7 A general contractor can owe a statutory duty to a
subcontractor—considered a frequenter rather than an employee—when a hazardous
condition is created, but only if the general contractor has reserved a right
of supervision and control over the specifics of the subcontractor’s work. Barth v. Downey Co., 71
¶8 Here, there is no evidence that Selmer retained or exercised “control over the details of the work” Rohde performed. See id. While Rohde asked for guidance in maneuvering around a set of stairs and other areas with the scissors lift, and asked to have the vehicles in the parking lot moved, there is no evidence that Selmer ultimately controlled Rohde’s job performance. Selmer did not control Rohde’s use of the lift. It did not direct his method of applying sealant. It offered no specifications to Rohde on how to complete his task. Indeed, Rohde testified at his deposition that no one from Selmer ever instructed him how to perform his job. Because Selmer did not stand in for Rohde’s immediate employer, Selmer could not owe a duty to Rohde under the safe place statute.[4]
II. Common Law Negligence
¶9 Summary judgment is usually inappropriate for negligence
questions. See Danks v. Stock Bldg. Supply, Inc., 2007 WI App 8, ¶16, 298
¶10 As a general rule, “one who hires an independent contractor is
not liable in tort for injuries sustained by an independent contractor’s
employee while he or she is performing the contracted work.”[5]
¶11 It is clear that Rohde was not engaged in abnormally dangerous
work—examples include working with toxic gases or transporting nuclear
waste. See Thompson v.
¶12 Moreover, there is also no proof that Selmer committed an affirmative act of negligence. “An affirmative act is an act of commission—that is, something that one does—as opposed to an act of omission, which is something one fails to do.” Ozzello, 743 F. Supp. at 1312. Rohde alleged Selmer was negligent because it “failed to properly guard or barricade the drop-off, or in some other way make the unsafe condition noticeable or inaccessible….” These are only omissions. Because Selmer is not alleged to have committed an affirmative act of negligence, summary judgment was appropriate on this question as well.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] An order denied the motion for summary judgment. A subsequent judgment confirmed the order and taxed costs against Rohde.
[3] The
statute applies only to unsafe conditions, not unsafe acts. Barth v. Downey Co., 71
[4] Rohde’s
reliance on Burmek v. Miller Brewing Co., 12
We are also concerned by Selmer’s cite to Reichhoff
v. Asdic, Ltd., 165
[5] There
is no dispute that for the purposes of the analysis, Klinger was an independent
contractor. Also, Rohde appears to agree
that Danks
v. Stock Bldg. Supply, Inc., 2007 WI App 8, ¶17, 298 Wis. 2d 348,
727 N.W.2d 846, controls, but he claims this rule of nonliability goes against
the general notion that every person owes a duty of ordinary care to the whole
world. Despite that general rule,
“limitations do exist with respect to the imposition of a legal duty in some
cases.” Rockweit v. Senecal, 197