PUBLISHED OPINION
Case No.: 95-0699
Complete
Title
of
Case:MADISON
NEWSPAPERS, INC.
AND ARKWRIGHT MUTUAL INSURANCE COMPANY,
Plaintiffs-Appellants,
v.
PINKERTON'S INC.
AND LIBERTY MUTUAL INSURANCE COMPANY,
Defendants-Third Party
Plaintiffs-Respondents,
JEFFREY J. BREUNIG
AND ECONOMY FIRE AND CASUALTY CO.,
Third Party Defendants.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: February 29, 1996
Opinion
Filed: February
29, 1996
Source
of APPEAL Appeal from a summary judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Michael
B. Torphy Jr.
so
indicate)
JUDGES: Eich,
C.J., Dykman and Sundby, JJ.
Concurred: Dykman,
J.
Dissented: Dykman,
J.
Appellant
ATTORNEYSFor the plaintiffs-appellants the
cause was submitted on the brief of William A. LeMire of Robins,
Kaplan, Miller & Ciresi of Minneapolis and John Walsh of Axley
Brynelson of Madison.
Respondent
ATTORNEYSFor the defendants-third party
plaintiffs-respondents the cause was submitted on the brief of Emile H.
Banks, Jr., and Vicki L. Arrowood of Kasdorf, Lewis &
Swietlik, S.C. of Milwaukee.
COURT OF
APPEALS DECISION DATED AND
RELEASED February
29, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0699
STATE OF WISCONSIN IN
COURT OF APPEALS
MADISON
NEWSPAPERS, INC.
AND
ARKWRIGHT MUTUAL INSURANCE COMPANY,
Plaintiffs-Appellants,
v.
PINKERTON'S
INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY,
Defendants-Third Party Plaintiffs-Respondents,
JEFFREY
J. BREUNIG
AND
ECONOMY FIRE AND CASUALTY CO.,
Third Party Defendants.
APPEAL
from a summary judgment of the circuit court for Dane County: MICHAEL B. TORPHY JR., Judge. Affirmed in part; reversed in part and
cause remanded.
Before
Eich, C.J., Dykman and Sundby, JJ.
EICH,
C.J. Madison Newspapers, Inc. (MNI) appeals from a summary judgment
dismissing an action in which it asserted claims in both contract and tort
against Pinkerton's, Inc., for damage resulting from a fire set by a Pinkerton's
employee while performing security services for MNI.
The
trial court ruled: (1) given the contractual relationship between the parties,
MNI had no independent cause of action for negligence against Pinkerton's; and
(2) as a matter of law, Pinkerton's was not liable for the damage to MNI's
facilities under the terms of the contract.
MNI's appeal from those rulings raises only questions of law, which we
consider de novo, owing no deference to the trial court's decision. Green Scapular Crusade, Inc. v. Town
of Palmyra, 118 Wis.2d 135, 138, 345 N.W.2d 523, 525 (Ct. App. 1984).
We
conclude that the trial court properly dismissed the negligence claim, but that
it erred in holding that MNI had no cause of action against Pinkerton's based
on the parties' contract. We therefore
affirm in part and reverse in part, remanding the case to the trial court for
further proceedings on the contract claim.
The
basic facts are not in dispute. MNI,
the publisher of Madison's two daily newspapers, contracted with Pinkerton's to
provide security services at its facility.
Under the contract, which we discuss in more detail below, Pinkerton's
agreed to accept liability for "negligen[t], fraudulent or dishonest
acts" of its employees in the performance of their duties.
One
of the security guards hired by Pinkerton's to work at MNI was Jeff
Breunig. According to MNI, after
Breunig's first weekend on the job,
they came to suspect him of damaging some computer equipment and stealing
a calculator and requested that his supervisors, Everett Isham and David Post,
notify MNI of any unusual activities--including fires--occurring during
Breunig's shifts.
The
following Sunday, a small fire was set in the MNI building at approximately
5:40 a.m. Post and Isham were notified
of the incident and came to the building to investigate. They notified the Madison police of the
incident but did not immediately notify MNI.
According to MNI, Post and Isham kept Breunig on duty that day despite
their suspicions that he had been involved in setting the fire. A few hours later, Breunig--who, it turned
out, had set the first fire--set a second fire which caused substantial damage
to MNI's property.[1]
MNI
sued, claiming that Pinkerton's had been negligent in providing security
services and in supervising and training its personnel and had breached its
service contract with MNI. Pinkerton's
moved for summary judgment dismissing the action and, as indicated above, the
trial court granted the motion.
I. The Negligence
Claim
MNI
argues that the facts of the case give rise to a separate tort cause of action
against Pinkerton's in addition to its claim for breach or misperformance of
the parties' contract. In McDonald
v. Century 21 Real Estate Corp., 132 Wis.2d 1, 390 N.W.2d 68 (Ct. App.
1986), we recognized that, under the common law, causes of action for tort and
contract "have historically had different purposes and protected different
interests," and we emphasized that difference by noting that "`torts
consist of the breach of duties fixed and imposed upon the parties by the law
itself, without regard to their consent to assume them ....'" Id. at 7, 390 N.W.2d at 70, 71
(quoting W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 1, at 4 (5th ed. 1984)) (emphasis
added).[2]
Thus,
where the alleged tort may be seen as related to a contract between the
parties, "[i]n order for ... a cause of action in tort to exist, a duty
must exist independently of the performance of the contract." Dvorak v. Pluswood Wisconsin, Inc.,
121 Wis.2d 218, 220, 358 N.W.2d 544, 545 (Ct. App. 1984) (emphasis added). Under this test, "the existence of a
contract is ignored when determining whether [the] alleged misconduct is
actionable in tort." Id.
In
McDonald, the plaintiffs entered into a residential listing
contract with a real estate agent. The
contract provided that the agent would prequalify potential buyers of their house,
and when the agent failed to do so with respect to a buyer who ultimately
reneged on his offer, the plaintiffs sued the agent in tort. We held that the negligent performance of a
duty created by contract--the duty to prequalify--cannot, without more, create
a separate cause of action for negligence. McDonald, 132 Wis.2d at 9, 390 N.W.2d at 71. We said:
"Ordinarily, a breach of contract is not a tort,
but a contract may create the state of things which furnishes the occasion of a
tort." "The `state of things' which arises out of a contract
furnishes the occasion for the tort, but not the underlying duty for the
tort.... [T]here must be a duty existing
independently of the performance of the contract for a cause of action in
tort to exist."
Id. at 6 n.3, 390 N.W.2d at 70 (emphasis added; quoted sources omitted;
citations omitted). We went on to hold
that because the real estate agent had no duty to prequalify potential buyers
existing independently of the contract between the parties, the plaintiffs did
not have a separate cause of action in tort.
Id. at 8-9, 390 N.W.2d at 71. See also Nelson v. Motor Tech, Inc.,
158 Wis.2d 647, 653, 462 N.W.2d 903, 906 (Ct. App. 1990) (in order to proceed
in a tort action when the parties' relationship is defined by contract, there
must be a common-law duty independent from any duties created by the contract).
This
case presents a similar situation. It
is undisputed that Pinkerton's relationship with MNI was wholly the result of
its contract to provide security services to the MNI building. Indeed, the only reason Pinkerton's
employees were on MNI's property in the first place was because of the
contract, and whatever tasks and obligations Pinkerton's undertook in this
regard originated not in some independently existing common-law duty but in the
terms and conditions of the document.
MNI
disagrees. Citing Colton v.
Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951), it argues that Pinkerton's
had an independent common-law duty to "use reasonable care in providing
professional security guard services ...." We think Colton is inapplicable. In that case, the supreme court allowed a
tort action to proceed against a defendant who allegedly negligently repaired
the plaintiff's porch, on the basis that there was a general duty of due care
in repairing the porch to avoid personal injury--a duty that existed
independent of the parties' contract. Id.
at 146-47, 47 N.W.2d at 903-04. In a
later case, Landwehr v. Citizens Trust Co., 110 Wis.2d 716, 723,
329 N.W.2d 411, 414 (1983), the court emphasized that, to be actionable, the
tort claim must exist at common law independent of the parties' contract, and
pointed out that, in Colton, the plaintiff had a negligence cause
of action "[e]ven without a contract, ... since the defendant ... had a
general common law duty to use reasonable care in repairing the porch."
In
a more recent case, the court again cautioned that Colton should
not be read as weakening the proposition that, for there to be a cause of
action for tort between parties to a contract, the plaintiff must show the
existence of a duty "`existing independently of the performance of the
contract ....'" Greenberg v.
Stewart Title Guar. Co., 171 Wis.2d 485, 495, 492 N.W.2d 147, 152
(1992) (quoting Landwehr, 110 Wis.2d at 723, 329 N.W.2d at
414). The Greenberg court
stated:
[W]e later explained the limits of Colton
in Landwehr. In Landwehr,
we explained that our language in Colton was meant to indicate
that the "`state of things' which arises out of a contract furnishes the
occasion for the tort, but not the underlying duty for the tort." We concluded that "there must be a duty
existing independently of the performance of the contract for a cause of action
in tort to exist." We reaffirm
that holding today.
Id. at 495, 492 N.W.2d at 152 (citations omitted; quoted sources
omitted).
Finally, in a three-sentence argument without
elaboration or citation to authority, MNI generally suggests that such an
independent duty exists in this case because Pinkerton's advertising materials
described it as a large, "sophisticated" and well-supervised company. At another point in its brief, again without
citation to authority, MNI suggests that Pinkerton's "had an independent,
common law duty to use reasonable care in providing professional security guard
services to Madison Newspapers, including monitoring and supervising Bruenig [sic]." We are not persuaded. See State v. Pettit,
171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (where legal authority
is not cited and arguments "are not developed themes reflecting ... legal
reasoning" but are supported by only general statements, appellate court
may decline to review them).
For
the foregoing reasons, we are satisfied that the trial court did not err in
dismissing MNI's tort claim.
II. The Contract Claim
MNI
next argues that the trial court should not have dismissed its claim that
Pinkerton's is liable for the fire damage under the terms of the parties'
contract in which Pinkerton's accepts responsibility for dishonest or negligent
acts committed by its employees in the course of their employment.[3]
The
trial court, noting that these provisions reflect well-recognized principles of
respondeat superior, under which an employer is liable for torts
committed by employees while acting within the scope of their employment, Olson
v. Connerly, 156 Wis.2d 488, 498, 457 N.W.2d 479, 483 (1990), concluded
that under the language of the contract Pinkerton's was not responsible for
Breunig's criminal acts because they were plainly beyond the scope of his
employment.
MNI
concedes that Breunig's actions were outside the scope of his duties. The acts for which it seeks redress,
however, are not Breunig's; rather, it maintains that Pinkerton's supervisory
employees, Post and Isham, were negligent in failing to properly supervise
Breunig and in failing to take appropriate steps to prevent the second fire,
once they learned of the first fire, and that their negligence renders
Pinkerton's liable under the terms of the parties' contract.[4]
Pinkerton's
does not suggest that the language of the contract making it responsible for
the negligent or dishonest acts of its employees in the performance of their
duties would not apply to supervisory employees such as Post and Isham. Rather, it argues from the depositions and
other proofs put forth by the parties on the summary judgment motion that
Pinkerton's, through its agents Post and Isham, was not negligent.
We
have often said that questions of negligence are rarely susceptible to
resolution on motions for summary judgment.
Wagner v. Dissing, 141 Wis.2d 931, 946, 416 N.W.2d 655,
661 (Ct. App. 1987); State Bank of La Crosse v. Elsen, 128 Wis.2d
508, 517, 383 N.W.2d 916, 920 (Ct. App. 1986).
This is so because such questions almost invariably involve conflicting
evidence and we do not decide issues of fact in summary judgment
proceedings. Elsen, 128
Wis.2d at 511, 383 N.W.2d at 917. The
process is not a "`short cut to avoid a trial'"; indeed, the
methodology was developed to prevent trial by affidavit or deposition. Id. at 511, 383 N.W.2d at
917-18 (quoted source omitted). Our
role on appeal from a summary judgment is limited to determining whether a
factual issue exists, resolving any doubts in that regard against the party
moving for summary judgment. Id.
at 512, 383 N.W.2d at 918. And if the
material presented on the motion is subject to conflicting factual
interpretations or inferences, or if reasonable people might differ as to its
significance, summary judgment should be denied and the matter remanded for
trial. Kara B. v. Dane County,
198 Wis.2d 24, 49, 542 N.W.2d 777, 788 (Ct. App. 1995), review granted,
___ Wis.2d ___, ___ N.W.2d ___ (Jan. 16, 1996); Elsen, 128 Wis.2d
at 512, 383 N.W.2d at 918.
Here,
the parties dispute several issues of material fact. MNI asserts that although Post and Isham were informed that
Breunig might have been involved in the earlier theft and damage to MNI
property and were requested to immediately report anything unusual occurring
during his shifts--and although they in fact suspected Breunig of setting the
first fire--they not only allowed him to remain on MNI premises but asked him
to remain past his assigned work time.
Pinkerton's, citing deposition testimony, maintains that Post did not
consider Breunig a suspect to a greater degree than any other employee present
at the building that day. Pinkerton's
also asserts that Post and Isham fulfilled all their obligations to MNI,
pointing again to depositions suggesting that they had never been directed to
contact MNI immediately about suspicious occurrences on Breunig's shift. We see this as precisely the type of case
where conflicting facts and factual assertions render summary judgment
inappropriate with respect to these issues.
For
these reasons, we reverse the judgment insofar as it granted Pinkerton's motion
for summary judgment dismissing MNI's contract claims, and we remand to the
trial court for further proceedings with respect to those claims.
By
the Court--Judgment affirmed
in part; reversed in part and cause remanded for further proceedings consistent
with this opinion.
No. 95-0699(CD)
DYKMAN,
J. (concurring in part; dissenting in part). I
am concerned that, without intending to do so, the majority may have taken a
significant step backward in Wisconsin negligence law. Cases asserting both tort and contract
claims are not new. For many years,
plaintiffs have been asserting negligence and contract claims arising out of
the same set of facts. In Colton
v. Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951), the plaintiff hired a
carpenter to repair a porch railing.
The complaint alleged that the carpenter did so negligently, causing the
plaintiff's injuries when the plaintiff leaned against the railing and it
collapsed. Id. at 143-44,
47 N.W.2d at 902. The carpenter moved
to dismiss the complaint, asserting that the plaintiff's only remedy was in
contract. Id. at 145, 47
N.W.2d at 903. In holding that the
plaintiff's complaint stated a claim in tort, the supreme court reasoned:
Ordinarily, a breach of contract is not a tort, but a
contract may create the state of things which furnishes the occasion of a
tort. The relation which is essential
to the existence of the duty to exercise care may arise through an express or
implied contract. Accompanying every
contract is a common-law duty to perform with care, skill, reasonable
expedience, and faithfulness the thing agreed to be done, and a negligent
failure to observe any of these conditions is a tort, as well as a breach of
the contract. In such a case, the
contract is mere inducement creating the state of things which furnishes the
occasion of the tort. In other words,
the contract creates the relation out of which grows the duty to use care. Thus, a person who contracts to make repairs
can be held liable for his negligence in doing the work.
Id. at 146, 47 N.W.2d at 903 (quoted source omitted).
Colton has not been overruled. Indeed, in Greenberg v. Stewart Title Guar. Co.,
171 Wis.2d 485, 495, 492 N.W.2d 147, 152 (1992) (citations omitted), the
supreme court said:
In Landwehr [v. Citizens Trust Co., 110
Wis.2d 716, 723, 329 N.W.2d 411, 414 (1983)], we explained that our language in
Colton was meant to indicate that the "`state of things'
which arises out of a contract furnishes the occasion for the tort, but not the
underlying duty for the tort." We
concluded that "there must be a duty existing independently of the
performance of the contract for a cause of action in tort to exist." We reaffirm that holding today.
In
Milwaukee Partners v. Collins Engineers, Inc., 169 Wis.2d 355,
485 N.W.2d 274 (Ct. App. 1992), we considered the exact issue facing us in this
case: whether a tort duty exists
independent of a contractual obligation.
A building owner asserted a negligence claim against an engineering firm
which had negligently failed to discover that the building was structurally
unsound. Id. at 359-60,
485 N.W.2d at 275-76. We decided:
As we have seen,
Milwaukee Partners' complaint alleges that Collins Engineers "failed to
exercise the degree of care, skill, and judgment" in making the inspection
"usually exercised under like or similar circumstances by engineers
licensed to practice in Wisconsin."
This allegation states a claim in tort if Collins Engineers owed
Milwaukee Partners a duty of due engineering care in the fulfillment of its
contractual obligations.
Id. at 361, 485 N.W.2d at 276 (quoted source omitted). See also Jacobs v. Karls, 178
Wis.2d 268, 277, 504 N.W.2d 353, 356-57 (Ct. App. 1993) (notwithstanding a
contract, a landlord has an independent duty to use ordinary care in keeping
premises in safe condition and the tenant may sue in tort for breach of this
duty). I do not think it is possible to
distinguish the instant case from Milwaukee Partners.
How
then does the majority analyze this case?
First, it concludes that this case is indistinguishable from McDonald
v. Century 21 Real Estate Corp., 132 Wis.2d 1, 390 N.W.2d 68 (Ct. App.
1986). Then it declines to review the
issue of whether MNI's complaint states a negligence claim because MNI has
failed to discuss any cases addressing the concept of "duty" in
Wisconsin. I would not dissent if this
was the only reason the majority concluded that MNI could not prevail on its
negligence claim. But it is the
majority's handling of McDonald which concerns me.
First,
our ultimate conclusion in McDonald was, as here, that the
appellant failed to cite authority to support their position. But I also believe that an examination of McDonald's
facts shows that despite Wisconsin's broad definition of duty, it was
not foreseeable that the real estate agency's failure to prequalify buyers
would cause damages. Second, because
the majority relies on McDonald alone, it does not consider Milwaukee
Partners. I have explained why
that case, one decided more recently than McDonald, should
control the issue here. Third, and most
importantly, I believe that Wisconsin's concept of "duty" requires a
different result.
The
majority holds that Pinkerton's had no duty to MNI by reasoning:
Indeed, the only reason Pinkerton's employees were on
MNI's property in the first place was because of the contract, and whatever
tasks and obligations Pinkerton's undertook in this regard originated not in
some independently existing common-law duty but in the terms and conditions of
the document.
Majority op. at 6.
But I do not think we can conclude that Pinkerton's had no independent
duty to MNI without considering how Wisconsin law defines "duty" in
negligence cases. I will therefore
review some of the cases which explain that concept.
I
start with Midwest Knitting Mills, Inc. v. United States, 950
F.2d 1295, 1299-1300 (7th Cir. 1991) (footnotes omitted), where the court
said:
Wisconsin cases have sustained causes of action
analogous to the tort of negligent supervision of employees. In Kamp v. Coxe Brothers & Co.,
122 Wis. 206, 99 N.W. 366 (1904), the Wisconsin Supreme Court examined whether
a wrongful death action could exist against an employer when an incompetent
employee failed to warn a fellow employee of danger and that employee was
killed. The court held that "the
master who negligently or knowingly employs or retains an incompetent servant
is liable for injuries thereby resulting to fellow servants who are not
themselves negligent." Id.[,]
99 N.W.2d at 341. The court reasoned
further that one "who knowingly exposes another to an imminent peril
should respond for the result." Id. While the facts and, to some extent, the
policy concerns underlying the Kamp decision are analogous to
this case, it is not controlling. The
Wisconsin Supreme Court's holding is limited to interpreting an exception to
the common law fellow-servant rule that a master has a duty to select servants
who will not endanger fellow servants through negligence on the job.
Later Wisconsin
cases have recognized claims arising from the failure to supervise adequately
the work of an independent contractor. A.E.
Inv. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764, 765
(1974) (architect allegedly failed to supervise adequately the construction of
a building); Laesch v. L & H Indus., Ltd., 161 Wis.2d 887,
469 N.W.2d 655, 657 (1991) (railroad allegedly failed to supervise adequately a
contractor hired to remove rails from a right of way). Also, in the context of medical malpractice,
the Wisconsin Supreme Court has held that a hospital has a duty to employ
competent physicians. Johnson v.
Misericordia Community Hosp., 99 Wis.2d 708, 301 N.W.2d 156, 170-71
(1981) (hospital had a duty to hire competent doctors which it could breach by
allowing an unqualified surgeon to perform negligently an operation).
I
realize that Midwest found no cause of action in negligence for
reasons not relevant here and that we are not bound by federal decisions on
state issues. Thompson v. Village
of Hales Corners, 115 Wis.2d 289, 307, 340 N.W.2d 704, 712-13 (1983). Nonetheless, the Wisconsin cases cited in Midwest
lead me to the conclusion that Wisconsin recognizes a cause of action in
negligent training or supervision. If
we expand our inquiry from negligent training or supervision cases to cases
discussing the concept of duty in general, then this result is confirmed.
Wisconsin
takes a minority view on this subject, and we should carefully examine what
that concept entails. A good example is
A.E. Inv. Corp., 62 Wis.2d at 483-85, 214 N.W.2d at 766-67
(citations omitted), where the court said:
We believe that the narrow concept of duty
relied on by the defendant architect has long been discarded in Wisconsin
law. The duty of any person is the
obligation of due care to refrain from any act which will cause foreseeable
harm to others even though the nature of that harm and the identity of the
harmed person or harmed interest is unknown at the time of the act. This is the view of the minority in Palsgraf
v. Long Island R. R. Co. (1928), 248 N.Y. 339, 162 N.E. 99. This court ... expressly adopted the Palsgraf
minority rationale in Klassa v. Milwaukee Gas Light Co. (1956),
273 Wis. 176, 77 N.W.2d 397. The
history of this court's rejection of the no duty-no liability concept of the
majority in Palsgraf is capsulized in Schilling v. Stockel
(1965), 26 Wis.2d 525, 531, 133 N.W.2d 335....
....
A defendant's duty is established when it can
be said that it was foreseeable that his act or omission to act may cause harm
to someone. A party is negligent when
he commits an act when some harm to someone is foreseeable. Once negligence is established, the
defendant is liable for unforeseeable consequences as well as foreseeable
ones. In addition, he is liable to
unforeseeable plaintiffs.
....
As held in Schilling,
once it is determined that a negligent act has been committed and that the act
is a substantial factor in causing the harm, the question of duty is irrelevant
and a finding of nonliability can be made only in terms of public policy.
In
Schuster v. Altenberg, 144 Wis.2d 223, 236-38, 424 N.W.2d 159,
165 (1988) (citations omitted), a more recent iteration of Wisconsin's view of
"duty," the court said:
[I]t
is a fundamental precept of Wisconsin negligence law that "[t]he concept
of duty in Wisconsin, as it relates to negligence cases, is inexorably
interwoven with foreseeability." ....
More generally,
the ... cases demonstrate that reliance upon a no duty-no liability theory is
misplaced in Wisconsin: a
"duty" exists when it is established that it was foreseeable that an
act or omission to act may cause harm to someone.
More
recently, the supreme court restated this issue succinctly: "Wisconsin law
considers conduct to be negligent if it involves a foreseeable risk of harm to
anyone. In Wisconsin, the doctrine of
public policy, not the doctrine of duty, limits the scope of the defendant's
liability." Bowen v.
Lumbermens Mut. Casualty Co., 183 Wis.2d 627, 644, 517 N.W.2d 432, 439
(1994).[5] Thus, Wisconsin law requires that we look at
foreseeability when determining whether Pinkerton's had a duty to MNI to
supervise its employees so as to avoid harm to its clients.
We
must examine MNI's complaint to see whether it alleges that Pinkerton's actions
carried a foreseeable risk of injury.
The pertinent allegations of negligence are:
18. At
all times material herein, Pinkerton's owed plaintiff MNI a duty of
reasonable care with respect to providing necessary security, accessories,
supervision and training of security personnel at said Madison, Wisconsin, facility
and were required to use reasonable care in the selection, hiring, training and
supervision of security and fire protection personnel assigned to provide said
service.
....
20. Defendant
Pinkerton's knew or should have known of the anti-social and dangerous
propensities of said Jeffrey Breunig and the foreseeable harm to others that
might result from employing and assigning said Jeffrey Breunig as a security
and fire protection guard.
21. Defendant
Pinkerton's failed to use reasonable care and was otherwise careless and
reckless with respect to providing necessary security guards and supervision to
ensure satisfactory security and fire protection at said Madison, Wisconsin,
facility, including, but not limited to, the following particulars:
A.Failure to use reasonable care
in the selection, investigation and training of security and fire protection
personnel;
B.Failure to use reasonable care
in the supervision of security and fire protection personnel;
C.Failure to use reasonable care
to provide necessary and adequate fire protection security services;
D.Failure to properly investigate
plaintiff MNI's suspicions that said Jeffrey Breunig was not an appropriate
person to be a security guard;
E.Failure to remove said Jeffrey
Breunig from the premises or properly supervise him following the first fire on
September 20, 1987;
F.Failure to conduct an
appropriate background check on said Jeffrey Breunig before hiring him as a
security guard;
G.Failure to properly train said
Jeffrey Breunig after hiring him as a security guard; and
H.Otherwise failed
to exercise the care and skill required of security and fire protection
guards.
If,
as MNI's complaint alleges, Pinkerton's was careless and reckless in providing
the necessary security, accessories, supervision and training of security
personnel, was it not foreseeable that some harm (not necessarily the harm that
occurred) might have come to someone (not necessarily a client) who came in
contact with an unsupervised and untrained security guard? Stated differently, if Pinkerton's failed to
conduct the appropriate background check of an employee before hiring him or
her, was it not foreseeable that some harm could come to someone who dealt with
the guard?
I
conclude that a failure to check a security guard's background, a failure to
remove or warn MNI of a suspected arsonist, and a failure to supervise the
guard when Pinkerton's knew, or ought to have known, of the guard's dangerous
propensities would, if proven, have been a breach of Pinkerton's duty to its
clients. That is all that is required under Wisconsin's approach to
"duty" in negligence cases.
And that is why I respectfully dissent from part I of the majority's
decision.
[1] Breunig later pled guilty to arson and damage
to property and was sentenced to one year in prison.
Put another way: "Tort obligations are in general
obligations that are imposed by law on policy considerations to avoid some kind
of loss to others. They are obligations
imposed apart from and independent of promises made and therefore apart from
any manifested intention of parties to a contract or other bargaining
transaction. Therefore, if the alleged
obligation to do or not to do something that was breached could not have
existed but for a manifested intent, then contract law should be the only
theory upon which liability would be imposed."
McDonald v. Century 21 Real Estate Corp., 132 Wis.2d 1, 8 n.5, 390 N.W.2d 68, 71 (Ct. App. 1986)
(quoting W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 92, at 656 (5th ed. 1984)) (emphasis in
McDonald omitted).
[3] Specifically, the contract states:
6. Pinkerton's
does not insure against theft, loss or damage to equipment, furniture,
machines, fixtures or other property real or personal, rented, leased or
otherwise possessed by the client.
Therefore it cannot assume any liability for theft, loss or damage other
than that resulting from the sole negligence, fraudulent or dishonest acts of
its employees.
8. Pinkerton's accepts liability
for any and all acts of negligence on the part of any of its employees in the
performance of his or her duties.
[4] Pinkerton's argues that we should not
consider the argument because MNI raises it for the first time on appeal. See Evjen v. Evjen, 171
Wis.2d 677, 688, 492 N.W.2d 361, 365 (Ct. App. 1992) (appellate court will not
as a rule consider arguments raised for the first time on appeal). Our review of the record, however,
establishes to our satisfaction that MNI raised this issue in both its
complaint and its brief opposing the motion for summary judgment.
Even so,
the waiver rule is "[one] of judicial administration" which we may,
in the proper exercise of our discretion, choose not to employ in a given
case. DOR v. Mark, 168
Wis.2d 288, 293 n.3, 483 N.W.2d 302, 304 (Ct. App. 1992). In this appeal we believe it is appropriate
to consider the issue because MNI argued the point on the summary judgment
motion--even though the trial court did not separately consider it--and because
we do not finally decide the issue but remand for trial on MNI's claim.
[5] The court explained the breadth of its
rule:
In Osborne v.
Montgomery, 203 Wis. 223, 234 N.W. 372 (1931), the court adopted the
dissenting opinion of Judge Andrews in Palsgraf on the concept of
duty and foreseeability: "Everyone
owes to the world at large the duty of refraining from those acts that may
unreasonably threaten the safety of others .... Not only is he wronged to whom harm might reasonably be expected
to result, but he also who is in fact injured, even if he be outside what would
generally be thought to be the danger zone .... Palsgraf, 248 N.Y. at 350.
Bowen v. Lumbermens Mut. Casualty Co., 183 Wis.2d 627, 644 n.12, 517 N.W.2d 432, 439 (1994).