Barry v. Employers Mut. Cas. Co.

• Decision Date: 10 July 2001
• Docket Number: No. 98-2557.,98-2557.
• Parties: Fred A. BARRY, Plaintiff-Appellant-Cross-Respondent-Petitioner, v. EMPLOYERS MUTUAL CASUALTY COMPANY, a foreign corporation, Defendant, AMERITECH CORPORATION, f/d/b, Wisconsin Bell, Inc., a domestic corporation, Defendant-Third-Party Plaintiff-Respondent-Cross-Appellant, v. DAVE TROJAN CONTRACTORS, INC., a domestic corporation, Continental Western Insurance Company, a foreign corporation, Third-Party Defendant-Cross-Respondent, The BURGMEIER COMPANY, INC., a domestic Corporation, and Aetna Casualty & Surety Company, a foreign corporation, Third-Party Defendant.
• Court: Wisconsin Supreme Court

245 Wis.2d 560

2001 WI 101

630 N.W.2d 517

Fred A. BARRY, Plaintiff-Appellant-Cross-Respondent-Petitioner, v. EMPLOYERS MUTUAL CASUALTY COMPANY, a foreign corporation, Defendant, AMERITECH CORPORATION, f/d/b, Wisconsin Bell, Inc., a domestic corporation, Defendant-Third-Party Plaintiff-Respondent-Cross-Appellant, v. DAVE TROJAN CONTRACTORS, INC., a domestic corporation, Continental Western Insurance Company, a foreign corporation, Third-Party Defendant-Cross-Respondent, The BURGMEIER COMPANY, INC., a domestic Corporation, and Aetna Casualty & Surety Company, a foreign corporation, Third-Party Defendant.

No. 98-2557.

Supreme Court of Wisconsin.

Oral argument April 6, 2001.

Decided July 10, 2001.

For the plaintiff-appellant-cross respondent-petitioner there were briefs by Michael I. Tarnoff, Frank T. Crivello II and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S. C., Milwaukee, and oral argument by Michael I. Tarnoff.

For the defendant-third party plaintiff-respondent-cross appellant there was a brief by Peter F. Mullaney and Peterson, Johnson & Murray, S.C., Milwaukee, and oral argument by Peter F. Mullaney. An amicus curiae brief was filed by David M. Skoglind and Aiken & Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. DIANE S. SYKES, J.

This case arises under Wisconsin's safe place statute, Wis. Stat. § 101.11 (1995-96),¹ and raises the question of whether a loose stairway nosing that caused the plaintiff to fall down a flight of stairs on the defendant's property constituted a "structural defect" or an "unsafe condition associated with the structure." If it was a "structural defect" the property owner is liable under the statute regardless of whether it had notice of the defect. If it was an "unsafe condition associated with the structure" the property owner is liable only if it had actual or constructive notice of the condition.

¶ 2. Other issues are also raised: 1) whether, if notice is required, a new trial should be granted; 2) whether the causal negligence of the subcontractor who installed the nosings should be imputed to the property owner; 3) whether retroactive application of the 1995 amendment to the comparative negligence statute, Wis. Stat. § 895.045, is constitutional; and 4) whether sufficient evidence supported the jury's finding that the plaintiff was ten percent contributorily negligent.

¶ 3. We agree with the court of appeals' conclusion that the loose nosing was an "unsafe condition associated with the structure" rather than a "structural defect." Thus, the plaintiff was required to prove that the defendant property owner had notice of the condition. We disagree, however, with the court of appeals' conclusion that a new trial is not required. Because the jury was not instructed on the notice issue, the case was not fully tried and therefore must be reversed and remanded for a new trial on the issue of liability.

I

¶ 4. Plaintiff Fred A. Barry worked as a project manager for Dave Trojan Contractors, Inc., which handled all project management for construction and remodeling of defendant Ameritech Corporation's data center in Pewaukee, Wisconsin. The data center building featured a curved stairway between the first floor and the ground floor. Originally, the stairway was fully carpeted. Problems developed when the glue stopped holding the carpeting at the bottom edge of each step. The carpeting began coming loose and attempts to reglue it failed.

¶ 5. To fix the problem, Ameritech hired The Burgmeier Company to install vinyl strips, called nosings, on the front of each step to hold the carpeting in place. This work was completed in September 1991.

¶ 6. After the nosings were in place, Ameritech received complaints from women who had caught their heels on the edges of the new nosings. Dan Wilson, the environmental manager at the data center, investigated and discovered that there was a one-eighth-inch discrepancy between the height of the nosing and the adjoining carpeting. Ameritech solicited, and Barry submitted, a proposal for eliminating the discrepancy.

¶ 7. On January 7, 1993, Barry went to the data center to take some measurements and also to meet with Ameritech employees. Barry began descending the stairway when he noticed another individual coming up the stairs. He moved aside so that the other person could pass. As he did so, he felt his legs go out from under him and he landed on his back on the stairs.

¶ 8. After his fall, Barry alerted Wilson and they investigated. The two noticed that the nosing on the step where Barry fell had become loose and was partially detached from the step itself. Although Barry initially thought he was just shaken by the fall, he eventually became sick and was taken to the hospital where he was diagnosed with severe head, neck, and back injuries.

II

¶ 9. Barry sued Ameritech under the safe place statute. Ameritech, in turn, commenced a third-party action for contribution against Burgmeier and for indemnification from Trojan under the Ameritech/Trojan contract.

¶ 10. In May 1998 a jury trial was held in Milwaukee County Circuit Court. At the close of Barry's case, Ameritech moved for dismissal, arguing that the loose nosing was not a "structural defect" but instead was an "unsafe condition associated with the structure," which required Barry to prove that Ameritech had actual or constructive notice of the condition, and that he had not done so. The circuit court, the Honorable Victor Manian, denied the motion, agreeing with Barry's position that the loose nosing was a "structural defect" and therefore no notice was required. Consequently, the court did not instruct the jury on the issue of notice. See Wis JI—Civil 1900.4 (directing that the notice instruction should be omitted when the unsafe condition is a structural defect rather than an unsafe condition associated with the structure).

¶ 11. The jury found that Ameritech was negligent in failing to maintain the stairway in as safe a manner as the nature of the premises reasonably permitted, and that Burgmeier was causally negligent in installing the nosing. The jury apportioned liability as follows: 45 percent to Ameritech, 45 percent to Burgmeier, and ten percent to Barry. The jury set damages at $80,500.

¶ 12. Both parties filed postverdict motions. Barry argued that 1) no credible evidence supported the jury's finding that he was ten percent contributorily negligent; 2) retroactive application of the 1995 amendment² to the comparative negligence statute, Wis. Stat. § 895.045, was unconstitutional; and 3) the non-delegable nature of Ameritech's safe place statute duty required that Burgmeier's negligence be imputed to Ameritech.

¶ 13. Ameritech asked for judgment notwithstanding verdict pursuant to Wis. Stat. § 805.14, renewing its argument that the loose nosing was an "unsafe condition associated with the structure" requiring Barry to prove notice. In the alternative, Ameritech moved for a new trial pursuant to Wis. Stat. § 805.15(1), limited to the issue of notice. The circuit court denied all motions and entered judgment against Ameritech for its portion of the damages—$36,225 plus costs. The court dismissed the third-party complaint against Trojan, awarding costs in the amount of $1,355.59, and dismissed the third-party complaint against Burgmeier without costs.

¶ 14. Barry appealed, asserting three claims of error: 1) that Burgmeier's negligence should have been imputed to Ameritech because Ameritech had a non-delegable duty under the safe place statute; 2) that retroactive application of Wis. Stat. § 895.045 was unconstitutional; and 3) that no credible evidence supported the jury's finding that he was ten percent contributorily negligent.

¶ 15. Ameritech cross-appealed, reasserting its contention that the circuit court erred by characterizing the loose nosing as a "structural defect" rather than an "unsafe condition associated with the structure," and consequently failing to instruct the jury on notice.

¶ 16. The court of appeals reversed, concluding that the loose nosing was an "unsafe condition associated with the structure" because it arose from "subsequent repair, maintenance or modification" of the property, and therefore proof of notice was required. Barry v. Employers Mut. Cas. Co., 2000 WI App 168, ¶¶ 13-14, 238 Wis. 2d 125, 617 N.W.2d 493. The court of appeals declined, however, to remand for a new trial on the notice issue, because Barry had not requested one. Id. at ¶ 20. Because its characterization of the unsafe condition was dispositive, the court of appeals did not reach the issues raised by Barry. We accepted review.

III

[1]

¶ 17. The primary issue in this case is how to classify the loose nosing that caused Barry's fall for purposes of the safe place statute—as a "structural defect" or as an "unsafe condition associated with the structure." This requires us to interpret and apply the safe place statute to these facts and thus presents a question of law that we review de novo. Geiger v. Milwaukee Guardian Ins. Co., 188 Wis. 2d 333, 336, 524 N.W.2d 909 (Ct. App. 1994).

[2]

¶ 18. Wisconsin's safe place statute, Wis. Stat. § 101.11(1), is a negligence statute that, rather than creating a distinct cause of action, Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 552, 101 N.W.2d 645 (1960), instead establishes a duty greater than that of ordinary care imposed at common law. Topp v. Cont'l Ins. Co., 83 Wis. 2d 780, 788, 266 N.W.2d 397 (1978); Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979).

¶ 19. Specifically, the statute requires that "[e]very employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe." Wis. Stat. § 101.11(1). The statute defines "safe" as:

[S]uch freedom from danger to the life, health,

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