Barry v. Employers Mut. Cas. Co.

• Decision Date: 05 July 2000
• Docket Number: No. 98-2557.,98-2557.
• Citation: 2000 WI App 168,617 N.W.2d 493,238 Wis.2d 125
• Parties: Fred A. BARRY, Plaintiff-Appellant-Cross-Respondent, 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 Court of Appeals

238 Wis.2d 125

2000 WI App 168

617 N.W.2d 493

Fred A. BARRY, Plaintiff-Appellant-Cross-Respondent, v. EMPLOYERS MUTUAL CASUALTY COMPANY, a foreign corporation, Defendant,¹ 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.

Court of Appeals of Wisconsin.

Submitted on briefs May 2, 2000.

Decided July 5, 2000.

On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Michael I. Tarnoff, of Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., of Milwaukee.

On behalf of the defendant-third-party plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Peter F. Mullaney of Peterson, Johnson & Murray, S.C., of Milwaukee.

On behalf of the third-party defendant-cross-respondent, the cause was submitted on the brief of Thomas A. Ogorchock, of Miller & Ogorchock, S.C., of Milwaukee.

On behalf of the Wisconsin Academy of Trial Lawyers, there was a nonparty brief filed by David M. Skoglind.

Before Fine, Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

Fred A. Barry appeals from the judgment, following a jury trial, awarding him $36,225 plus costs, in his action against Ameritech Corporation, resulting from his fall on a stairway at the Ameritech offices where he had been working.² Barry argues: (1) under the safe-place statute, Ameritech had a nondelegable duty such that the causal negligence of The Burgmeier Company, Inc., an independent contractor hired by Ameritech to maintain the stairway, should have been imputed to Ameritech; (2) retroactive application of WIS. STAT. § 895.045 (1995-96),³ precluding joint and several liability in this case, is unconstitutional; and (3) no credible evidence supported the jury's finding that he was 10% causally negligent.

¶ 2. Ameritech cross-appeals. Ameritech argues that the trial court erred: (1) in concluding that the stairway condition causing Barry's fall was "a structural defect"; and (2) in not instructing the jury, therefore, that in order for Barry to prevail, he had to prove Ameritech's actual or constructive notice of the defect. Thus, Ameritech argues, the trial court erred in denying its motion for judgment notwithstanding the verdict. Ameritech also argues that the trial court erred in formulating a jury question regarding indemnification of Dave Trojan Contractors, Inc., Barry's employer.

¶ 3. We conclude that the trial court erred in determining that the stairway condition was "a structural defect." Because the condition was not "a structural defect," but rather, was "an unsafe condition associated with the structure," Barry would have had to prove that Ameritech had actual or constructive notice of the condition. The record does not establish that Barry did so, and the jury never was instructed regarding either the need for notice or the definition of notice. Therefore, we conclude that the trial court erred in denying Ameritech's motion for judgment notwithstanding the verdict.⁴

I. BACKGROUND

¶ 4. Barry worked as a project manager for Trojan, a general contractor providing services at Ameritech's data center offices in 1992 and 1993. On January 7, 1993, Barry returned to the Ameritech offices to prepare a proposal for additional work, to verify that Trojan employees had returned the Ameritech security cards they had used while working there, and to visit with some Ameritech employees. Barry was injured when he fell on a winding stairway, apparently after tripping on a loose "nosing" — the narrow rubber strip covering the full length of the front edge of each carpeted step. The nosings were not part of the original stairway. They had been installed for aesthetic purposes, and to eliminate the need for repeated regluing of the front edges of the carpeting covering the stairs. After Barry's fall, inspection revealed that the nosings on several steps, including the one where Barry tripped, had come loose apparently due to the failure of the adhesive holding them to the steps.

¶ 5. Barry sued Ameritech under the safe-place statute.⁵ Ameritech, in turn, brought a third-party action against Burgmeier, the contractor responsible for installation of the nosings. Ameritech also brought a third-party action against Trojan, for indemnification pursuant to the Ameritech/Trojan contract under which Barry was working. The jury found Ameritech 45% negligent, Burgmeier 45% negligent, and Barry 10% negligent.

¶ 6. We begin with the cross-appeal because, as Ameritech explains, "[t]he issues raised in Barry's appeal are relevant only if this court affirms the jury verdict apportioning 45% of the causal negligence to Ameritech." Barry does not dispute that if Ameritech is correct in its cross-appeal challenge to the trial court's safe-place statute ruling that the stairway defect was "structural," and if the trial record does not establish that Ameritech had actual or constructive notice of the loose nosing, then the jury's verdict cannot stand.

II. DISCUSSION

A. "Structural" / "Associated With the Structure"

¶ 7. Was the stairway condition a "structural" defect, or was it "an unsafe condition associated with the structure"? Barry and Ameritech agree that the distinction is critical and, as we will explain, the answer makes a dispositive difference in this case.

¶ 8. "The safe-place statute requires a place of employment to be kept as safe as the nature of the premises reasonably permits." Strack v. Great Atl. & Pac. Tea Co., 35 Wis. 2d 51, 54, 150 N.W.2d 361 (1967). "The various conditions of which safe-place law takes cognizance have been classified as (A) structural defects, (B) unsafe conditions associated with the structure, and (C) unsafe conditions unassociated with the structure." HOWARD H. BOYLE, JR., WISCONSIN SAFE-PLACE LAW REVISED 139 (1980).⁶ In this case, Barry and Ameritech debate whether the stairway condition falls in the first or second category.

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¶ 9. If a condition that causes injury is "a structural defect," "[a]n owner or employer sustains safe-place liability . . . regardless of whether he [or she] knew or should have known that such defect existed." Id. at 157. If, however, a condition that causes injury is not "a structural defect," but rather, is "associated with the structure," "no liability attaches" to the owner or employer "until he [or she] has `either actual or constructive notice of such defects,' and an opportunity `to remedy the situation and avoid the accident.'" Id. at 158-59. Whether a condition is "a structural defect" or "associated with the structure" presents an issue of law and, therefore, the trial court's resolution of that issue is subject to our de novo review. See Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988)

("Appellate courts decide questions of law independently and give no deference to the decisions of a trial court."); see also Geiger v. Milwaukee Guardian Ins. Co., 188 Wis. 2d 333, 336, 524 N.W.2d 909 (Ct. App. 1994) ("Interpretation of the safe-place statute is a question of law which we review de novo.").

¶ 10. In this case, the trial court ruled that the stairway nosing condition was "a structural defect." After reviewing many examples of "structural" defects and "associated with the structure" defects described in the case law and summarized in the BOYLE treatise, the court concluded:

So, I guess you can have examples that go both ways. It depends on the circumstances of each case.

In this case, it seems to me that the stairs were designed to be a metal can [sic] filled with concrete, and as I gather the testimony from the engineers, covered by carpeting, that that was part of the structural plan. . . . Ameritech was aware that there was a problem with the stairs because Mr. Barry was one of the people called to come out there to see if something could be done to fix that stairway and the loose carpeting. And the gentleman in charge of that testified that he finally came up with a plan that involved putting one of those tack boards underneath the tread and pulling the carpeting over it to hold it in place. But before that, the manner in which they determined the structure was to be maintained was to put those nose guards on there.

I'm going to hold, and I do hold, that the nose guards therefore then became part of the structure, and if it was a defect, it was a structural defect.⁷

(Footnote added.) Therefore, the court concluded, Barry was not required to prove that Ameritech had actual or constructive notice. Accordingly, the trial court did not instruct the jury on notice.

¶ 11. As the parties note, no single case has precisely defined and distinguished "structural defects" and "unsafe conditions associated with the structure." As Ameritech correctly argues, however, "[t]he cases as a whole . . . suggest that defects in original design or construction are structural." In contrast, modifications of, or additions to, the original structure may render "unsafe conditions associated with the structure."

¶ 12. "[A] defect would be `structural' if it resulted by reason of the materials used in construction or from improper layout or construction." BOYLE at 140. "Conditions `associated with the structure,'" on the other hand, "are those which involve the structure (or the materials with which it is composed) becoming out of repair or not being maintained in a safe manner." Id. at 143. While these definitions may not easily apply to all circumstances, they do articulate the general consensus that emerges from the numerous safe-place-statute cases considered in the BOYLE treatise, and should provide a workable framework...