COURT OF APPEALS DECISION DATED AND FILED May 3, 2011 A. John Voelker Acting 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 PER CURIAM. Richard Grieger appeals a summary judgment dismissing his personal injury action that alleged negligence and safe-place violations.[1] Grieger argues the circuit court erroneously concluded that the safe-place statute was inapplicable. Grieger further contends the court erroneously dismissed his claim that Smithfield Beef Group-Green Bay, Inc. is liable for ordinary negligence either because transporting cattle is extrahazardous work or because Smithfield committed affirmative acts of negligence. We reject Grieger’s arguments and affirm.[2]
BACKGROUND
¶2 Grieger worked as a driver for RG Trucking, transporting cattle. RG Trucking did not provide Grieger with any personal protective equipment, but he wore steel-toed boots, leather gloves, and heavy coveralls. Grieger delivered cattle to five or six different processing facilities. None of those facilities required him to wear any type of protective gear, including a helmet, and Grieger never requested that anyone at the facilities provide him with any.[3]
¶3 On the day of the accident, Grieger unloaded his truck at one
of
¶4 Grieger sued
DISCUSSION
The safe-place statute
¶5 The safe-place statute, Wis.
Stat. § 101.11, places a duty on employers to furnish safe employment
for employees.[4]
Leitner v.
[The] duty [is] not to provide safe employment but rather a safe place of employment for ... a frequenter. ...
[T]he duty to furnish safe employment does not extend to frequenters. ...
The statutory duty to furnish safe employment (unlike the duty to furnish a safe place of employment) runs only to employees but not to frequenters[.] ...
[T]he safe-place statute does not make the employer an insurer of the safety of a frequenter on the premises. Rather, the statute deals with unsafe conditions of the employer’s premises and not with negligent or inadvertent acts of employees or activities conducted on the premises. ...
[I]njuries to a frequenter caused by unsafe conditions of an employer’s premises are covered by the safe place statute, while injuries caused by negligent, inadvertent, or even intentional acts committed therein, are not.
Leitner, 94
¶6 Nonetheless, Grieger argues the statute applies to
¶7 Grieger primarily bases his argument on the language of the
statute. However, even if that argument was
persuasive, accepting it would require us to ignore or overrule precedent
holding that the duty to provide safe employment does not extend to frequenters. That is something we cannot do. See Cook v. Cook, 208
¶8 Specifically, Grieger relies on the following
language: “Every employer ... shall furnish and use safety devices
and safeguards, and shall adopt and use methods and processes reasonably
adequate to render such employment and places of employment safe, and shall do
every other thing reasonably necessary to protect the [safety] of such
employees and frequenters.” Wis. Stat. § 101.11(1). Grieger then turns to Leitner’s statement that
the “
¶9 Considered out of context, and ignoring Leitner’s facts and holding, Grieger’s reliance on the foregoing statement might appear reasonable. However, the statement is followed by language, both original and quoted, making clear that as to frequenters the safe-place statute applies only to unsafe conditions of the premises. See id. at 195. Thus, while the statute might, for example, require employers to provide protective devices or equipment such as guards over sawblades or mirrors at blind corners, it does not require employers to issue frequenters equipment to protect them from dangers unrelated to conditions of the premises. In fact, Stefanovich discussed a prior case involving an example of the statute’s requirement to provide safeguards for frequenters:
In the Gross case, the defendant race-track operator maintained a narrow roadway he knew to be simultaneously used by both pedestrian frequenters and the vehicular traffic to exit from defendant’s premises. The defendant was found to have violated the safe-place statute in that the roadway did not provide protections [i.e., a fence] for pedestrian frequenters from vehicular traffic.
Stefanovich, 86
Ordinary negligence
¶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.” Danks v. Stock Bldg. Supply, Inc.,
2007 WI App 8, ¶17, 298
¶11 Whether an activity is extrahazardous is a question of law for
the court to decide. Wagner
v. Continental Cas. Co., 143
A person engaged in an activity of the first type, i.e., one that is inherently dangerous without special precautions, can take steps to minimize the risk of injury. Examples include general construction, demolition, and excavation.
By contrast, an activity that is said to be extrahazardous, or abnormally dangerous, is one in which the risk of harm remains unreasonably high no matter how carefully it is undertaken. Examples would include transporting nuclear waste or working with toxic gases.
¶12 Grieger argues that handling cattle is extrahazardous, citing Smithfield’s safety director’s admissions that cattle are unpredictable and accidents happen even when everything is done properly; reports of numerous injuries to workers who were kicked or struck by livestock in Smithfield’s barn; and a national statistic that 107 fatalities were caused by blunt force trauma to the head or chest by cattle between 2003 and 2007.
¶13 No doubt, Grieger was engaged in inherently dangerous work when he was injured. However, his argument is undermined by his claim that protective head gear would have prevented his injury. See id. (high voltage work not extrahazardous because wearing rubber gloves would have prevented the accident). Indeed, elimination of risk is not the test. Available precautions need only minimize the risk of harm such that it is no longer unreasonably high. See id.
¶14 We also reject Grieger’s argument that
“The reason for the distinction may be said to lie in the fact that by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs.”
¶15 Grieger argues
¶16 Second, Grieger contends Smithfield was affirmatively negligent
by requiring drivers, after delivering cows to the holding pen, to engage in
the process of moving cows to the weigh station. We need not determine whether this could
constitute an affirmative act of negligence.
Grieger provides no record support for his assertion that drivers were
required to go beyond the holding pen. Instead,
Grieger’s cited records reveal that
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Mary Grieger is also a named plaintiff, alleging derivative claims. For simplicity’s sake, we refer singly to Richard Grieger throughout this opinion.
[2] As
additional grounds for affirming the circuit court,
[3] Indeed, Greiger testified at his deposition that he would not have worn a helmet had one been offered, because he would have been required to clean it.
[4] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[5] “‘Frequenter’ means every person, other than an employee, who may go in or be in a place of employment or public building under circumstances which render such person other than a trespasser.” Wis. Stat. § 101.01(6).
[6] Grieger
also asserts that the safe-place statute applies because
[7] We caution counsel that affirmatively misrepresenting the record is grounds for sanctions. See Wis. Stat. Rule 809.83(2).