ANTWAUN A. v. Heritage Mut. Ins. Co.

• Citation: 228 Wis. 44,596 N.W.2d 456,228 Wis.2d 44
• Decision Date: 09 July 1999
• Docket Number: No. 97-0332.,97-0332.
• Court: United States State Supreme Court of Wisconsin
• Parties: ANTWAUN A., a minor, by his Guardian ad Litem, Emmanuel L. Muwonge, Plaintiffs-Appellants, STATE of Wisconsin DEPARTMENT OF HEALTH & SOCIAL SERVICES and Racine County Department of Human Services, Plaintiffs, v. HERITAGE MUTUAL INSURANCE COMPANY, Defendant-Respondent, Ernestine HONEYCUTT, Truck Insurance Company, Cigna Insurance Company, Commercial Union Insurance Company, and Horace Mann Insurance Company, Defendants, Gene MATTHEWS a/k/a The Reverend Gene Matthews, State Farm General Insurance Co., Gerald H. Bassinger and Judith Bassinger, Secura Insurance, a mutual company, and Ziko Milicevic, Defendants-Third-Party Plaintiffs-Respondents, Ernie VETO d/b/a Racine Apartment Managers, State Farm Fire & Casualty Co., and Gerald Hoornstra, Defendants-Third-Party Plaintiffs, v. Maxine THOMAS, Roman Serembiczky, Carl R. Eisenman, John W. Carbonneau, Joe H. Halbur, Paulette A. Martini, and First Bank Southeast n/k/a Firstar Bank, a domestic corporation, and City of Racine, Third-Party Defendants.

228 Wis.2d 44

596 N.W.2d 456

228 Wis. 44

ANTWAUN A., a minor, by his Guardian ad Litem, Emmanuel L. Muwonge, Plaintiffs-Appellants, STATE of Wisconsin DEPARTMENT OF HEALTH & SOCIAL SERVICES and Racine County Department of Human Services, Plaintiffs, v. HERITAGE MUTUAL INSURANCE COMPANY, Defendant-Respondent, Ernestine HONEYCUTT, Truck Insurance Company, Cigna Insurance Company, Commercial Union Insurance Company, and Horace Mann Insurance Company, Defendants, Gene MATTHEWS a/k/a The Reverend Gene Matthews, State Farm General Insurance Co., Gerald H. Bassinger and Judith Bassinger, Secura Insurance, a mutual company, and Ziko Milicevic, Defendants-Third-Party Plaintiffs-Respondents,¹ Ernie VETO d/b/a Racine Apartment Managers, State Farm Fire & Casualty Co., and Gerald Hoornstra, Defendants-Third-Party Plaintiffs, v. Maxine THOMAS, Roman Serembiczky, Carl R. Eisenman, John W. Carbonneau, Joe H. Halbur, Paulette A. Martini, and First Bank Southeast n/k/a Firstar Bank, a domestic corporation, and City of Racine, Third-Party Defendants.

No. 97-0332.

Supreme Court of Wisconsin.

Oral argument December 1, 1998.

Decided July 9, 1999.

For the plaintiff-appellant there was a brief by Emmanuel L. Muwonge and Muwonge & Associates, S.C., Milwaukee and oral argument by Emmanuel L. Muwonge.

For the defendant-respondent, Heritage Mutual, the cause was submitted on the brief of Arthur P. Simpson and Simpson & Deardorff, Milwaukee. For the defendant-third-party plaintiff-respondent, Reverend Gene Matthews, there was a brief by Wayne M. Yankala, Karyn Gimbel Youso and Mingo & Yankala, S.C., Milwaukee and oral argument by Wayne M. Yankala.

For the defendants-third-party plaintiffs-respondents, Gerald & Judith Bassinger and State Farm General Insurance, there was a brief by Michael A. Mesirow, Thomas A. Cabush and Kasdorf, Lewis & Swietlik, S.C., Milwaukee and oral argument by Michael A. Mesirow.

For the defendants-third-party plaintiffs-respondents, Ziko Milicevic & Secura Insurance Company, there was a brief (in the court of appeals) by James T. Murray, Jr., Molly C. Feldbruegge and Peterson, Johnson & Murray, S.C., Milwaukee and oral argument by James T. Murray, Jr.

Amicus curiae brief was filed by Heiner Giese and Giese & Weden Law Offices, Milwaukee for the Apartment Association of Southeastern Wisconsin, Inc.

Amicus curiae brief was filed by Mark K. Thomsen and Cannon & Dunphy, S.C., Brookfield for the Wisconsin Academy of Trial Lawyers.

Amicus curiae brief was filed by Thomas M. Pyper, Elizabeth M. Estes and Whyte, Hirschboeck, Dudek, S.C., Milwaukee for the Wisconsin Realtors Association, The Institute for Real Estate Management and The Wisconsin Apartment Association.

¶ 1. ANN WALSH BRADLEY, J.

This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (1997-98). The court of appeals asks this court to address the following question:

Does a landlord of an older residential rental property have a common law duty to inspect, or test, for contamination from lead-based paint once the landlord knows that the paint is flaking from the walls?

We conclude that the presence and danger of lead paint was foreseeable and determine that the landlords had a common law duty to test the residential property for lead paint. Because the circuit court erred in granting summary judgment and in concluding that no common law duty existed, we reverse and remand that part of the circuit court's decision.

¶ 2. In addition to the certified issue, we accepted for review all issues raised in Antwaun A.'s appeal. He asserts a violation of Wisconsin's Safe Place Statute. Because the affected parts of the properties were not places of employment or public buildings, we conclude that this cause of action must fail. We also determine that, contrary to Antwaun A.'s argument, a violation of neither Wis. Stat. § 151.07(2)(d) (1991-92)² nor City of Racine Ordinance § 11.09.040(e) constitutes negligence per se. Finally, we decide that Antwaun A. may not maintain a personal injury cause of action based on any implied warranty of habitability. Accordingly, on these issues we affirm the circuit court's grant of summary judgment against Antwaun A.

¶ 3. We are asked in this case to determine when landlords have a duty to test their rental properties for lead paint. In May of 1991, three-year-old Antwaun A. was diagnosed with lead poisoning. He contends that this poisoning was caused by lead paint peelings, flakes, and chips that he had ingested in various apartments in the City of Racine. Two apartments are at issue in this appeal.

¶ 4. First, Gerald and Judith Bassinger (the Bassingers) owned a residence in the City of Racine (the Bassinger Property) where Antwaun A. and his mother, Maxine Thomas, resided from August 1990 to May 1991. This property contained three separate rental units.

¶ 5. Second, Gene Matthews owned a residence in the City of Racine (the Matthews Property) where Antwaun A.'s aunt, Willie May Williams, resided from March 1989 to January 1994. Neither Antwaun A. nor his mother ever resided at the Matthews Property, although Antwaun A. alleges that he frequently was a guest at his aunt's residence. The Matthews Property was a single-family dwelling which Matthews rented to Williams during the time at issue in this appeal. Both the Bassingers and Matthews were insured by State Farm General Insurance Company.

¶ 6. Shortly after being diagnosed with lead poisoning, Antwaun A. filed suit against a host of corporations, individual landlords, and their insurers. In his complaint, Antwaun A. alleged five causes of action as follows:

(1) common law negligence;

(2) violation of Wis. Stat. § 151.07(2)(d), constituting negligence per se;

(3) "failure to warn;"

(4) violation of the City of Racine Ordinance § 11.09.040(e), constituting negligence per se; and

(5) breach of the implied warranty of habitability.

Six months later, Antwaun A. amended his complaint to add a violation of Wisconsin's "Safe Place Statute," Wis. Stat. § 101.11(1), as a sixth cause of action.

¶ 7. All of the defendants save the Bassingers, Matthews, and State Farm either settled with Antwaun or were dismissed from the suit for various reasons unimportant for this appeal.³ After discovery, these remaining defendants brought various motions for summary judgment.

¶ 8. The circuit court granted summary judgment as to all the remaining defendants on every one of Antwaun A.'s causes of action.⁴ The circuit court reasoned that neither of the apartments violated the Safe Place Statute, the Matthews Property because it was not covered by the statute and the Bassinger Property because the peeling paint was not in a public or common area. As for Antwaun A.'s claims of negligence per se because of the violation of Wis. Stat. § 151.07(2)(d) and the City of Racine Ordinance, the circuit court concluded that the legislative bodies that enacted these rules did not express an intent for their violation to constitute negligence per se.

¶ 9. The circuit court further concluded that, while the Bassingers and Matthews may have had actual or constructive knowledge about peeling or chipping paint, no evidence in the record suggested that either landlord had any actual or constructive knowledge of the presence of lead on their properties.⁵ Noting that Wisconsin law was silent, the circuit court looked to various other jurisdictions that had decided the issue. The circuit court concluded that Wisconsin ought to follow those other jurisdictions that have required a landlord to have either actual or constructive knowledge of lead paint before a duty to act attends.

¶ 10. Finally, the circuit court determined that the landlords violated no implied warranty of habitability. It posited that such a duty was applicable only to a tenant under a lease. This precluded Matthews from being negligent since Antwaun A. was not a tenant in his building. Similarly, the circuit court concluded that the implied warranty of habitability did not impose liability on the Bassingers because only damages under the lease contract are actionable. Since Antwaun A. was seeking damages for personal injuries, the circuit court granted summary judgment in favor of the landlords.

¶ 11. Antwaun A.'s case was dismissed in its entirety. He appealed to the court of appeals which certified the case to this court.

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¶ 12. It is well settled that when this court reviews a motion for summary judgment it applies the same standards as the circuit court: summary judgment should only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980); Wis. Stat. § 802.08. This appeal requires that we both interpret statutes and assess the scope of a common law duty. These are questions of law that we review independently of the legal determinations rendered by the circuit court. Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 591 N.W.2d 583; (1999) (interpretation of statutes question of law); Ceplina v. South Milwaukee School Board, 73 Wis. 2d 338, 341, 243 N.W.2d 183 (1976) (existence and scope of duty question of law); In re Revocable Trust of McCoy, 142 Wis. 2d 750, 754, 419 N.W.2d 301 (Ct. App. 1987).

I.

¶ 13. We address first whether the circuit court erred in granting summary judgment against Antwaun A. on his cause of action based on the common law duty to exercise ordinary care in testing for lead paint. Antwaun A. argues that the circuit court erred when it concluded that the landlords were under no common law duty to test for lead paint absent actual or constructive knowledge that their particular properties contained lead paint. We agree. As a result, we conclude that a landlord of a house constructed prior to 1978 is under a common law duty to test for lead paint when the landlord knows or, in the use of ordinary care, should have...