Barth v. Downey Co., Inc.
| Decision Date | 02 March 1976 |
| Docket Number | No. 598,598 |
| Citation | 71 Wis.2d 775,239 N.W.2d 92 |
| Parties | Harold BARTH, Plaintiff-Appellant, v. The DOWNEY COMPANY, INC., a Domestic Corporation, Defendant-Respondent, and Alex Szaniawski and John Szaniawski, co-partners, d/b/a Advance Salvage Company, Third-Party Defendant. (1974). |
| Court | Wisconsin Supreme Court |
This is a third-party action brought by plaintiff-appellant, Harold Barth, injured while working, not against his immediate employer, Advance Salvage Company, but against The Downey Company, Inc., general contractor under a contract with the city of Milwaukee for remodeling work at the Arena building.
The contract with the city was for remodeling the heating and ventilating system at the Arena. A part of the work in such remodeling involved the removal of ducts ranging in size from small ducts to six-feet square ducts. When the plaintiff and four other employees of Advance Salvage arrived at the job they were told by Downey employees where to go and how much of the existing ducts were to be left attached to the walls.
Up to the afternoon of the second day the plaintiff and four other employees of Advance Salvage were engaged in cutting off eight-foot sections of ducts and dropping them to the floor where these sections were cut into smaller pieces and removed. Plaintiff testified that at this time he was told by a Downey employee that the Advance Salvage employees must work faster because there was a deadline to meet in the contract with the city. In response the plaintiff changed the method of operation and cut off twenty to thirty-foot sections of the ducts, thus doubling the rate of completion of the work. On the third day plaintiff asked one of Downey's employees whether there was any of Downey's equipment available to complete the job but received no answer or equipment.
On the afternoon of the fourth day all that was left was a duct in the fan room, six feet by six feet, which was twenty-five feet above the floor. At one end this duct elbowed toward the floor, stopping six to eight feet from the floor. This end had been cut free from the wall by the Advance Salvage crew. The upper part of this remaining duct, running along the ceiling, was secured by angle irons that encircled its sides and bottom.
The procedure used by plaintiff to dismantle this last remaining duct was an follows: Plaintiff got on top of the duct and, using an acetylene and oxygen torch, cut three sets of the angle irons, leaving only two on the south. Then, entering the duct itself, the plaintiff cut the west side of the duct. Plaintiff then got back on top of the duct and cut across the top and the east side. Plaintiff entered the duct again, moving to a position just south of the northerly-most remaining angle irons, and began to make the final cut in the duct. Plaintiff was kneeling in the duct, reaching out with the acetylene torch in his right hand. When the cut was three-fourths through, the whole northerly section of the duct dropped, tearing the bottom out of the supported section in which the plaintiff was kneeling. The plaintiff fell to the floor and suffered injuries which are the subject of this lawsuit.
On February 6, 1969, plaintiff brought this suit against the general contractor, Downey Company, as an owner and employer under the safe-place statute (sec. 101.06, Stats.1967). Damages were sought in the amount of $150,000. After a trial as to liability under the safe-place statute, the jury found the defendant, Downey Company, 70 percent negligent, the plaintiff, Barth, 30 percent negligent, and fixed damages at $174,718.84. On a motion after verdict the trial court set aside the verdict on the ground that '. . . the issues of defendant's negligence were erroneously submitted under the Safe Place Statute,' and granted a new trial concluding that '. . . jury issues are presented as to defendant's negligence under common law rules. . . .' Both parties have appealed from this order.
Stephen R. Miller, Milwaukee, for appellant.
Borgelt, Powell, Peterson & Frauen, Milwaukee, for respondent; (Edmund W. Powell (argued), and Robert C. Burell,) Milwaukee.
This is not a claim for workmen's compensation benefits brought by a workman injured on the job against his employer. 1 Such actual or immediate employer here was the subcontractor, Advance Salvage, for whom the plaintiff worked and by whom he was employed. Moreover, in this state, while the Workmen's Compensation Act is to provide an exclusive remedy, 2 actions in tort brought against third parties for on-the-job injuries are permitted. 3 So this action was brought against the general contractor, Downey Company, as an 'owner or employer' under the safe-place statute. 4 The initial question to be answered is whether there is here a basis for such claim of liability under such safe-place statute.
SAFE-PLACE STATUTE.
The safe-place statute provides that every employer 'shall furnish employment which shall be safe for the employes therein.' 5 This duty could not devolve upon the general contractor here for the reason that the plaintiff was not his employee. The statute also provides that every employer and every owner of a place of employment shall maintain such place 'as to render the same safe,' both as to employees and as to 'frequenters.' 6 The work site here involved was a temporary 'place of employment.' 7 While not an employee of the general contractor, the plaintiff here was a 'frequenter.' 8 An owner or general contractor can owe a duty under the safe-place statute to a frequenter when a hazardous condition is created, but only if the owner or general contractor has reserved a right of supervision and control. 9 For three reasons, we affirm the trial court holding that no such duty was here owed by the general contractor under the provisions of the safe-place statute. The three reasons, each sufficient, are:
1. NO UNSAFE CONDITION. Our court has made clear that the safe-place statute '. . . has reference to an unsafe condition rather than to an act in the process of taking place.' 10 This was said in a case where the manner of lowering or dropping the bucket by a crane operator resulted in injury to a 'frequenter' of a 'place of employment.' While here the plaintiff was injured by his own act or operation, the same result must be reached. Plaintiff's climbing into the ceiling-high duct and weakening its supports constituted an act that was unsafe rather than a condition that was unsafe. His injuries must be related to acts of operation as distinguished from the condition of the duct. 11 We follow Deaton to hold that the safe-place statute has 'no application to such acts of operation.' 12 Or, as our court has more recently stated the same rule, the safe-place statute '. . . deals with unsafe conditions and not with negligent acts as such.' 13
2. NOT IN CONTROL. There is no duty on the part of a general contractor to superintend the activities of the employee of a subcontractor. 14 Ordinarily, as in the case of an owner hiring an independent contractor to do work on his building, the general contractor reserves no right or control of the work excepting that of inspection or of changing the plan with reference to the construction to be furnished. That alone is not enough to make such owner or such general contractor liable for a frequenter's injury while such frequenter was acting in the scope of his employment for someone other than such owner or general contractor. 15 Appellant's claim that directions given to the subcontractor's work crew as to where to start work and how much of the ducts to leave attached to the wall constituted a retention of control is without merit. The test our court has stated is whether the owner, or here the general contractor, 'stood in the shoes of the (immediate) employer by reason of his retention of control of the premises.' 16 Even a retained right to check as to compliance with specifications, and to stop construction progress for lack of compliance with specifications, our court has held is not an exercise of control over how the actual manner in which the specifications were complied with. 17 No retention or exercise of control over the details of the work of the subcontractor is established by the record in this case.
3. NO. DUTY TO FURNISH. Appellant seeks to locate a duty on the part of a general contractor to provide proper tools and equipment for the performance of the work a subcontractor had contracted to perform. That puts the shoe on the wrong foot. That duty to furnish safe equipment is on the immediate employer. 18 As this court has held, the responsibility for providing tools and equipment, such as ladders or scaffolds, is on the employee's immediate employer. 19 The plaintiff's conversation with an employee of the general contractor as to borrowing equipment, including a scaffold from the general contractor, created no duty on the part of the Downey Company to provide such tools or equipment. The inquiry was made but no response was given and no shift of the Advance Salvage Company's duty to provide needed scaffolding and equipment occurred. The situation would be different if the general contractor had loaned equipment for use by the subcontractor's employees for then it might have a liability deriving from its having furnished defective or unsafe equipment that resulted in injury. 20
For the reasons stated, we agree with and affirm the trial court holding, that, on this record, '. . . The element of duty imposed by the safe place statute being completely absent under the circumstances of this case, it was error to submit the matter of negligence to the jury on the basis of this standard.' That leads to the question of whether the issue of liability should be tried on another basis.
COMMON-LAW NEGLIGENCE.
The trial court held that the issue of liability, together with a comparison of negligence, 'must be retried,' finding a...
To continue reading
Request your trial
-
Tatera v. Fmc Corp.
...while he or she is performing the contracted work. The first exception was recognized over three decades ago in Barth v. Downey Co., 71 Wis.2d 775, 783, 239 N.W.2d 92 (1976), and pertains to an affirmative act of negligence committed by the principal employer. That is, an independent contra......
-
Brandenburg v. Briarwood Forestry Servs., LLC
...contractor's employee for injuries caused by the principal employer's affirmative act of negligence.”) (citing Barth v. Downey Co., Inc., 71 Wis.2d 775, 239 N.W.2d 92 (1976)). 14.U.S. Fid. & Guar. Co. v. Frantl Indus., Inc., 72 Wis.2d 478, 487, 241 N.W.2d 421, 426 (1976). 15. The comment to......
-
Hofflander v. St. Catherine's Hospital, Inc.
...Wis. Stat. § 101.11. ¶ 98. In reaching its conclusion, the court of appeals rejected the defendants' reliance on Barth v. Downey Co., 71 Wis. 2d 775, 239 N.W.2d 92 (1976), as controlling. Hofflander, 247 Wis. 2d 636, ¶ 29. In Barth, the plaintiff, who was an employee for a subcontractor cha......
-
Ozzello v. Peterson Builders, Inc.
...An employee of a subcontractor is a frequenter of the place of employment of the general contractor. See Barth v. Downey Company, 71 Wis.2d 775, 778-79, 239 N.W.2d 92, 93-94 (1976). 31. When plaintiff William Ozzello was aboard the MCM-01 on June 18, 1987, he was a "frequenter" as that term......