COURT OF APPEALS
DECISION
DATED AND FILED
July 22, 2009
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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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Edward J. Adams and Kim J. Adams,
Plaintiffs-Respondents,
v.
Synergy Health Care,
Defendant,
Schneiker Concrete Construction, Inc.,
Defendant-Appellant,
Allan Builders & Developers LLC, NKA A&B Developers LLC,
Defendant-Co-Appellant.
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APPEAL
from a judgment of the circuit court for Washington County: Patrick
j. faragher, Judge. Affirmed.
Before Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 PER CURIAM. Schneiker Concrete Construction,
Inc., and Allan Builders & Developers LLC, n/k/a A & B Developers LLC
(“Allan Builders”), appeal from a judgment in favor of Edward and Kim Adams. A jury returned a verdict finding all three
parties causally negligent. Schneiker
Concrete and Allan Builders contend the trial court improperly instructed the
jury on the safe-place statute, Wis.
Stat. § 101.11 (2007-08). We disagree and affirm.
¶2 The Adamses hired Allan Builders as the general contractor to
construct their new house. To save
money, Adams agreed to do the exterior
staining and job site cleanup. Allan
Builders subcontracted the concrete work to Schneiker Concrete. After pouring the basement floor, Schneiker
Concrete workers left a fourteen-foot aluminum ladder belonging to Allan
Builders in the open stairwell. Per their
practice, the workers placed the ladder upside-down, the rubber feet up and the
metal tips down. Adams
arrived two days later to do cleanup. As
he descended the ladder into the basement, the metal tips slipped on the
concrete floor. Adams
fell, breaking several facial bones.
¶3 The Adamses filed suit against Allan Builders and Schneiker
Concrete, alleging negligence against both and a violation of the safe-place
statute against Allan Builders. The two contractors
argued that Adams was contributorily negligent
because he failed to recognize or remedy the ladder’s upside-down
position. At the final jury instruction
conference, the trial court opined that the safe-place theory was a “red
herring,” but nonetheless decided to give the standard safe-place instruction in
regard to both contractors’ duties. See Wis JI—Civil 1900.4. Schneiker Concrete objected but did not
request an alternate instruction. The
jury allocated 66% negligence to Schneiker Concrete, 4% to Allan Builders and
30% to Adams.
Schneiker Concrete moved after verdict for a new trial on the basis that
the safe-place instruction was error.
The court denied the motion and ordered judgment on the verdict. Schneiker Concrete and Allan Builders appeal.
¶4 Schneiker Concrete again argues that the trial court
erroneously instructed the jury on the safe-place statute. It contends the statute does not apply
because: (1) having assumed certain construction-related tasks, Adams himself
fit under the statute as an “owner” of a “place of employment” and cannot use
the statute to assert against another a duty identical to his own, and (2) even
if Adams was a “frequenter,” the statute does not apply against Schneiker
Concrete because it did not have “present control” over the premises when Adams
fell. Proceeding on the assumption that
the instruction was wrongly given, Schneiker Concrete then argues that the
instruction prejudiced it, necessitating a new trial on liability. None of these arguments persuades us.
¶5 A trial court has broad discretion when instructing a jury so
long as it fully and fairly informs the jury of the rules and principles of law
applicable to the particular case. Nommensen
v. American Cont’l Ins. Co., 2001 WI 112, ¶50, 246 Wis. 2d 132, 629 N.W.2d 301. The issue, therefore, is whether—and if so
how—the safe-place statute applies to the facts of this case. This requires us to interpret and apply Wis. Stat. § 101.11, presenting a
question of law that we review de novo. See Barry v. Employers Mut. Cas. Co.,
2001 WI 101, ¶17, 245 Wis.
2d 560, 630 N.W.2d 517.
¶6 Schneiker Concrete first argues that Adams’
contractual agreement to perform job-site cleanup qualified him as an “owner” under
the safe-place statute. An owner is “any
person, firm [or] corporation … having ownership, control or custody of any
place of employment … or of the construction, repair or maintenance of any
place of employment.” Wis. Stat. § 101.01(10). An owner has a duty to “construct, repair or
maintain [the] place of employment … as to render [it] safe.” Wis.
Stat § 101.11(1). Schneiker
Concrete contends that Adams cannot hold
someone else to a safe-place duty to remedy a workplace hazard he himself had
the duty to correct.
¶7 Adams responds that the
determining factor is who retains control of access to the premises. He asserts that despite being the legal owner,
he was permitted on the jobsite only as a “frequenter.” A frequenter is any non-employee person at a
place of employment under circumstances which render the person other than a
trespasser. Wis. Stat. § 101.01(6).
Adams contends that even if as title
owner he had a right of inspection, his limited activities of site cleanup and
exterior staining had nothing to do with creating or being responsible for the
ladder hazard present on his arrival. We
agree.
¶8 “Before a person has a duty to furnish a safe place of
employment, the person must have the right to present control over the place so
that the person can perform the duty to furnish a safe place of
employment.” Powell v. Milwaukee
Area Technical Coll. Dist. Bd., 225 Wis.
2d 794, 813, 594 N.W.2d 403 (Ct. App. 1999) (quoting Wis JI—Civil 1911). A title owner has a safe-place duty only when
it retains a right of control beyond mere legal ownership or right of
inspection. Couillard v. Van Ess, 141
Wis. 2d 459,
463, 415 N.W.2d 554 (Ct. App. 1987). Where
the title owner turns over the control and custody of a place that is safe at
the time to a contractor who then creates a hazardous condition, the title
owner—although retaining the right of inspection—is not liable under the
safe-place statute for injuries arising from that hazard. Potter v. City of Kenosha,
268 Wis. 361,
372, 68 N.W.2d 4 (1955). Adams turned over a safe place to the contractors and
encountered a hazardous condition he did not create. He is not liable under the safe-place statute
for injuries arising from that hazard.
¶9 Schneiker Concrete argues that, even if Adams was a
frequenter, it is not liable because it did not have “present control” over the
job site when he was injured, since it had finished its work two days before and
permanently left the premises.
Therefore, Schneiker Concrete asserts, it already had ceded the right of
present control. This argument also
fails.
¶10 First, Schneiker Concrete is not relieved of a safe-place duty
simply by vacating the premises. “The
rule in Wisconsin is that the owner or occupant is absolved of [its] duty only
if [it] relinquishes complete control of the premises to the contractor and
that the premises are then in a safe condition.” Hrabak v. Madison Gas & Elec. Co.,
240 F.2d 472, 477 (7th Cir. 1957), citing
Potter,
268 Wis. at
374. Schneiker Concrete knew of the potential
hazard, the upside-down ladder, and had the power to remedy it, yet did not do
so. See
Neitzke
v. Kraft-Phenix Dairies, Inc., 214 Wis. 441, 447-48, 253 N.W. 579 (1934).
¶11 Second, control is a jury question. See
Lee
v. Junkans, 18 Wis.
2d 56, 61, 117 N.W.2d 614 (1962). Schneiker
Concrete claims the safe-place instruction was error, but it did not request an
instruction asking the jury to determine that Adams
had the requisite control. Failure to
request an instruction constitutes waiver.
Leckwee v. Gibson, 90 Wis. 2d
275, 289, 280 N.W.2d 186 (1979); Bergeron v. State, 85 Wis. 2d 595, 604, 271
N.W.2d 386 (1978).
¶12 Third, even if the court improperly instructed the jury,
Schneiker Concrete has not shown that the error was prejudicial. See
Lutz
v. Shelby Mut. Ins. Co., 70 Wis.
2d 743, 750-51, 235 N.W.2d 426 (1975). The
test for prejudice is the probability, and not mere possibility, that the jury
was misled. Id. at 751. Stated another way, an
error is prejudicial if it appears the result would be different had the error
not occurred. Id. Schneiker Concrete contends comments the trial
court made about the safe place theory being “a red herring” reflect the error
of the instructions. It asserts that the
prejudice was that the erroneous instructions confused the jury, likely causing
it to assess a relatively higher percentage of causal negligence.
¶13 The trial court did opine that safe place was a red herring
because the suit was “just a simple negligence case.” It heard the parties’ arguments, however, and
concluded that Wis JI—Civil 1911, regarding the necessity
of “present control,” gave Schneiker Concrete the opportunity to argue that the
premises were safe when they relinquished control but something intervened to
make them unsafe. During deliberations, the
jury returned with a request for additional instructions. It asked (1) whether the safe-place
instruction applied to both contractors and (2) which contractor was
responsible for the ladder’s position in the stairwell between the time that
Schneiker Concrete left and Adams fell.
¶14 The necessity for, the extent of, and the form of reinstruction
rests in the sound discretion of the court.
Hareng v. Blanke, 90 Wis.
2d 158, 166, 279 N.W.2d 437 (1979); see
also Wis. Stat. § 805.13(5).
The court discussed the jury’s questions
with counsel for the parties and observed that its “gut reaction” was that the
questions were “a good sign … that [the jurors] are really getting to the
gravamen of the problem.” Counsel agreed
to the court’s proposed answers: (1) that both defendants were contractors and
(2) responsibility for the ladder was a question of fact for the jury. The jury ultimately was able to complete a
unanimous verdict. Based on the record
before us, we conclude the initial instructions fully and fairly informed the
jury of the rules and principles of law applicable to the case, see Nommensen, 246 Wis. 2d 132, ¶50, and
that the court did not erroneously exercise its discretion in answering the
jury’s questions.
¶15 Finally, Schneiker Concrete contends in the Conclusion
paragraph of its brief that the pleadings are insufficient because the Adamses did not separately plead the safe-place
statute. Wisconsin
law does not require separately pleading a safe-place claim and a common-law
negligence claim because both are for an underlying claim of negligence. Mullen v. Reischl, 10 Wis. 2d 297, 308, 103
N.W.2d 49 (1960). The safe place statute
does not create a cause of action or change the causation analysis. Hofflander v. St. Catherine’s Hosp., Inc.,
2003 WI 77, ¶96, 262 Wis.
2d 539, 664 N.W.2d 545. It merely
affects the level of one’s duty of care.
Id.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.