Beard v. Lee Enterprises, Inc.
| Decision Date | 25 September 1997 |
| Docket Number | No. 96-3393,96-3393 |
| Citation | 213 Wis.2d 485,570 N.W.2d 911 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Jane A. BEARD, individually and as surviving spouse of Charles R. Beard, Plaintiff-Appellant, v. LEE ENTERPRISES, INC., The La Crosse Tribune, and Liberty Mutual Insurance Co., Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for La Crosse County: Michael J. Mulroy, Judge. Affirmed.
Before DYKMAN, P.J., ROGGENSACK and DEININGER, JJ.
Jane Beard appeals from a summary judgment dismissing her lawsuit against The La Crosse Tribune, Lee Enterprises, Inc., which owns The La Crosse Tribune, and Liberty Mutual Insurance Company, their insurer (hereinafter collectively "The Tribune"). Beard brought suit against The Tribune after her husband, Charles Beard, was killed in a head-on collision with sixteen-year-old Anthony Kropelin. Beard argues that: (1) The Tribune was negligent per se for employing Anthony in a hazardous activity and during prohibited hours; and (2) The Tribune was negligent for permitting Anthony to operate a motor vehicle in the middle of the night. We reject Beard's arguments and affirm.
On Thursday, July 9, 1992, Anthony Kropelin, then sixteen-years of age, drove his father's van to The Tribune around midnight to pick up bundles of Friday newspapers to deliver on his father's bundle route. 1 Anthony's father, Douglas Kropelin, had entered into a bundle delivery agreement with The Tribune under which he agreed to pick up bundles of newspapers at The Tribune and deliver the bundles to route carriers, vending machines and businesses for retail sale. Anthony delivered the papers in north La Crosse.
On Friday, July 10 at approximately 3:00 a.m., Anthony returned to The Tribune to pick up bundles of The Tribune's Sunday supplement, which consisted of the comics and advertisements, so that his father could deliver the supplements on Sunday, July 12. Anthony also picked up newspapers for his brother, James Kropelin, which needed to be delivered to houses on James's carrier route. On behalf of his brother, Anthony delivered the newspapers, finishing at approximately 4:00 a.m.
After delivering the newspapers, Anthony began to drive back home with the Sunday supplements in the van. At approximately 4:15 a.m., Anthony's vehicle collided with the vehicle of Charles Beard. Beard died as a result of injuries suffered in the collision.
On July 27, 1993, Jane Beard, the surviving spouse of Charles Beard, released Anthony from liability by executing a Pierringer release. 2 Thereafter, on May 1, 1995, Beard filed this action against The Tribune, asserting three grounds for recovery. First, Beard alleged that The Tribune was negligent per se for using a minor in a street trade during prohibited hours of employment, in violation of Wisconsin's child labor laws. Second, Beard alleged that The Tribune was negligent for using a minor lacking sufficient age, experience, maturity or training to deliver newspapers during the hours of midnight to 5:00 a.m. Third, Beard alleged that The Tribune was liable for Anthony's negligence under the doctrine of respondeat superior.
The Tribune moved for summary judgment. The circuit court granted the motion, concluding that the Pierringer release barred all claims against The Tribune under a theory of respondeat superior and that, under the facts and circumstances of the case, Beard could not bring a cause of action against The Tribune based on a violation of the child labor laws. Beard appeals. She does not continue to argue that The Tribune is liable for Anthony's negligence under the doctrine of respondeat superior. Rather, she argues that the trial court erred in dismissing her negligence per se and common law negligence claims against The Tribune.
We review motions for summary judgment de novo, using the same methodology as the circuit court. Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct.App.1995). Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Section 802.08(2), STATS.
Beard argues that the circuit court erred in dismissing her negligence per se cause of action against The Tribune. Beard argues that The Tribune was negligent per se by permitting Anthony to deliver the newspapers in violation of WIS. ADM.CODE §§ IND 70.06 and 71.04(3). 3 Section IND 71.04(3) provides that "[n]o minors 16 or 17 years of age shall be employed or permitted to work at any street trade ... before 6:00 a.m., except for the delivery of newspapers 5:00 a.m., nor after 9:00 p.m. on days preceding school days and not later than 11:00 p.m. on days not preceding school days." 4 Section 70.06(13) provides that, except for incidental and occasional driving, the occupation of motor vehicle driver is "deemed to be dangerous or prejudicial to the life, health, safety, and/or welfare of minors ... and their employment may be dangerous or prejudicial to the life, health, safety and/or welfare of other employes or frequenters and no employer shall employ or permit such minors to work in such employments." 5
When an administrative agency prescribes what particular acts shall or shall not be done, the rule may be interpreted as establishing a standard of care, deviation from which constitutes negligence. McGarrity v. Welch Plumbing Co., 104 Wis.2d 414, 418, 312 N.W.2d 37, 39 (1981). The standard for determining whether the violation of a statute or administrative rule constitutes negligence per se is as follows:
For the violation of a safety statute to constitute negligence per se, a plaintiff must show: (1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of legislative intent that the statute become a basis for the imposition of civil liability. When determining whether there is some expression of legislative intent that the statute become a basis for civil liability, the court must keep in mind that "[s]tatutes are not to be construed as changing the common law unless the purpose to effect such change is clearly expressed therein."
Tatur v. Solsrud, 174 Wis.2d 735, 743-44, 498 N.W.2d 232, 235 (1993) (citations omitted).
Both WIS. ADM.CODE § IND 70.06 and § IND 71.04(3) prohibit employers from permitting minors to work in certain circumstances. Section IND 71.04(3) provides that no minor "shall be employed or permitted to work" before 5:00 a.m. when delivering newspapers. Section 70.06(13) provides that "no employer shall employ or permit ... minors to work" in the occupation of motor vehicle driver. The Tribune argues that Anthony was not acting within the scope of these laws when the accident occurred because he was driving home at the time.
Generally, when an employee is traveling between his home and place of employment, the relation of master and servant does not exist. Geldnich v. Burg, 202 Wis. 209, 210, 231 N.W. 624, 624 (1930). In DeRutyer v. Wisconsin Elec. Power Co., 200 Wis.2d 349, 361-62, 546 N.W.2d 534, 540 (Ct.App.1996), we set forth the exception to this general rule:
[O]nly when the employer exercises control over the method or route of the employee's travel to or from work can the employee be said to be acting within his or her employment. This is the rule because without such control, the employee is not actuated by a purpose to serve the employer, but is solely promoting the employee's "own convenience."
(Citations omitted.)
It is undisputed that Anthony was driving home when the collision occurred. Therefore, under Geldnich and DeRuyter, Anthony could have been acting within the scope of his employment at the time of the accident only if The Tribune exercised control over the method or route of his travel home. The record before us provides no evidence that The Tribune exercised such control. Therefore, we conclude that Anthony was acting outside the scope of his employment at the time of the accident. Because Anthony was acting outside the scope of his employment when the accident occurred, The Tribune could not have been violating WIS. ADM.CODE §§ IND 70.06 and 71.04(3) at that time. Accordingly, we conclude that The Tribune cannot be held liable for its alleged violation of these sections.
The dissent concludes that Geldnich, DeRuyter and many other "going and coming" cases are inapplicable because Anthony was a minor working in a street trade. But, this analysis still requires that Anthony be an employee of The Tribune, no matter how he achieves that status. Wisconsin's child labor laws do not create an employment relationship when none exists. And for long before Geldnich and DeRuyter, the test for whether an employer-employee relationship existed when the employee was driving to or from work was whether the employer exercised control over the method or route of the employee's travel. DeRuyter, 200 Wis.2d at 361, 546 N.W.2d at 540. The analysis used by the dissent is a variation of the "special mission" exception to the "going and coming" rule. We declined to recognize exceptions to that rule in DeRuyter, a case in which an employee was traveling from home to a place of employment, carrying equipment required by the employer. We are not free to reverse our field now.
Beard argues that Anthony was still acting within the scope of his employment at the time of the accident because the Sunday supplements were in the vehicle when the collision occurred. Wisconsin courts have only recognized an...
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