Beard v. Lee Enterprises, Inc.

• Citation: 225 Wis.2d 1,591 N.W.2d 156
• Decision Date: 09 April 1999
• Docket Number: No. 96-3393,96-3393
• Parties: Jane A. BEARD, individually and as surviving spouse of Charles R. Beard, Plaintiff-Appellant-Petitioner, v. LEE ENTERPRISES, INC., The LaCrosse Tribune, and Liberty Mutual Insurance Co., Defendants-Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 156

591 N.W.2d 156

225 Wis.2d 1

Jane A. BEARD, individually and as surviving spouse of

Charles R. Beard, Plaintiff-Appellant-Petitioner, v. LEE ENTERPRISES, INC., The LaCrosse Tribune, and Liberty

Mutual Insurance Co., Defendants-Respondents.

No. 96-3393.

Supreme Court of Wisconsin.

Argued Nov. 10, 1998.

Decided April 9, 1999.

For the plaintiff-appellant-petitioner there were briefs by John P. Stuber and Sauer, Becker, Flanagan & Lynch, Ltd., LaCrosse and oral argument by John P. Stuber.

For the defendants-respondents there was a brief by Gregory J. Egan, Gerard O'Flaherty and Parke O'Flaherty, LTD., LaCrosse and oral argument by Gregory J. Egan and Gerard O'Flaherty.

¶1 JON P. WILCOX, J

Jane A. Beard seeks review of an unpublished court of appeals decision affirming the summary judgment entered by the Circuit Court for La Crosse County, Michael J. Mulroy, Judge, which dismissed her negligence suit against The La Crosse Tribune, Lee Enterprises, Inc., which owns the newspaper, and Liberty Mutual Insurance Company, their insurer (collectively "The Tribune"). On appeal, Beard argues that Anthony Kropelin, a minor at the time, was employed by The Tribune and that he was working in a street trade, as defined under Wis. Stat. § 103.21(1)(1991-92), ¹ during prohibited hours when he was involved in a head-on collision that killed Beard's husband, Charles. Beard contends that as Anthony's employer, The Tribune is absolutely liable for allowing him to work in violation of the child labor laws.

¶2 Based on the statutory scheme regulating street trades, Wis. Stat. §§ 103.21 to 103.31, as well as related statutes, in particular Wis. Stat. § 102.60(7), we conclude that the legislature envisioned some degree of knowledge, actual or constructive, on the part of the employer about an alleged employment relationship with a minor involved in a street trade before liability can attach. Because there is a factual question whether The Tribune had knowledge, actual or constructive, that Anthony was delivering materials for The Tribune, we reverse the circuit court's judgment.

I.

¶3 We first set forth the facts of the case. According to portions of his deposition testimony, Anthony Kropelin, who was sixteen at the time in question, frequently accompanied his father, Douglas, to The Tribune to pick up bundles of newspapers from employees at The Tribune's distribution center. Douglas had a bundle delivery agreement with the newspaper for which he was paid by The Tribune on a per trip basis for his distribution services. ² Anthony often assisted his father in delivering the bundles for which Douglas paid him.

¶4 Shortly before midnight on Thursday, July 9, 1992, Anthony and a friend drove his father's van to The Tribune to pick up the bundles of newspapers. He "talked to the guys at the distribution tower for a while," and then received his bundles and delivered them. At approximately 3:00 a.m. on July 10, 1992, Anthony returned to The Tribune to pick up bundles of the paper's Sunday supplement for his father to deliver to the route carriers for the upcoming Sunday edition. At that time, Anthony also picked up the Friday morning newspapers for his brother, James, who was a carrier for The Tribune, and then delivered the papers to the houses on James's carrier route. ³ Anthony finished that delivery at approximately 4:00 a.m.

¶5 After finishing James's route, Anthony began to drive back home with the Sunday supplements still in the van. At approximately 4:15 a.m., Anthony struck a vehicle driven by Beard's husband, Charles. Charles died as a result of injuries suffered in the accident.

¶6 In July 1993, Beard, as a surviving spouse, executed a Pierringer ⁴ agreement releasing Anthony from liability. Beard then filed suit against The Tribune. In her amended complaint, she alleged absolute liability for illegally employing a minor during prohibited hours, common law negligence for using a minor lacking sufficient age, experience, maturity or training to perform such work, and liability for Anthony's negligence under the theory of respondeat superior.

¶7 The Tribune filed a motion for summary judgment which the circuit court granted. The circuit court found that: (1) at best, Anthony was in an employment at the time of the subject collision; (2) the Pierringer release acts to bar all claims against The Tribune based upon either vicarious liability or respondeat superior; and (3) there is no independent cause of action in favor of a third-party based upon a violation of the child labor laws. The court dismissed the case and Beard appealed.

¶8 A majority of the court of appeals affirmed. ⁵ The majority determined that without any evidence that The Tribune exercised control over the method or route of Anthony's travel home, he was acting outside the scope of his employment; therefore, The Tribune could not have violated, or be held liable for violations of, the child labor laws. Beard v. Lee Enterprises, Inc., No. 96-3393, unpublished slip op. at 7, 1997 WL 590068 (Wis.Ct.App. Sept. 25, 1997). The majority noted that without employer control, Anthony could not be an employee of The Tribune even under the street trades law. Id. As to Beard's common law negligence claim, the majority determined, as a matter of law, that The Tribune could not be held liable for permitting Anthony to deliver newspapers before 5:00 a.m. because he was a minor, licensed to operate a motor vehicle at any time under Wis. Stat. § 343.06(1). Beard, unpublished slip op. at 9. Beard petitioned this court for review.

II.

¶9 Next, we set forth the standard of review. We review summary judgment rulings independently using the same methodology as that used by the circuit court. Grams v. Boss, 97 Wis.2d 332, 338-39, 294 N.W.2d 473 (1980). A motion for summary judgment must be granted when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶10 This case involves the interpretation of Wis. Stat. § 103.21, and related statutes. Statutory interpretation and the application of a statute are questions of law that we review independent of the circuit court and court of appeals. Colby v. Columbia County, 202 Wis.2d 342, 349, 550 N.W.2d 124 (1996).

III.

¶11 The case before us concerns an alleged violation of the child labor laws. An employer who violates the child labor laws is absolutely liable for injuries resulting from the violation. D.L. v. Huebner, 110 Wis.2d 581, 640, 329 N.W.2d 890 (1983); see also Ludke v. Burck, 160 Wis. 440, 443, 152 N.W. 190 (1915). Absolute liability is proper if the plaintiff can prove that: (1) the employer violated the statute at or about the time of the injury; and (2) the injury occurred. Huebner, 110 Wis.2d at 640, 329 N.W.2d 890. The injured party must also be within the protected class of people, i.e., the minor, other employees or frequenters. McGarrity v. Welch Plumbing, Co., 104 Wis.2d 414, 427, 312 N.W.2d 37 (1981); see also Wis. Stat. § 103.65.

¶12 In order for there to be a violation of the child labor laws, there must be an employer/employee relationship. Beard argues that under the street trades definition in Wis. Stat. § 103.21(1), The Tribune had an employer/employee relationship with Anthony. Section 103.21(1), provides:

Every minor selling or distributing newspapers or magazines on the streets or other public place, or from house to house, is in an "employment" and an "employe," and each independent news agency or (in the absence of all such agencies) each selling agency of a publisher or (in the absence of all such agencies) each publisher, whose newspapers or magazines [the minor] sells or distributes, is an "employer" of the minor. Every minor engaged in any other street trade is in an "employment" and an "employe," and each person furnishing [the minor] articles for sale or distribution or regularly furnishing [the minor] material for blacking boots is [the minor's] "employer".

¶13 When interpreting a statute, we must ascertain and give effect to the intent of the legislature. Sullivan v. Waukesha County, 218 Wis.2d 458, 464, 578 N.W.2d 596 (1998). In determining legislative intent, we first look to the language of the statute to determine whether its meaning is clear. Lake City Corp. v. City of Mequon, 207 Wis.2d 155, 163, 558 N.W.2d 100 (1997). If the language is clear, we are prohibited from looking beyond such language to ascertain its meaning. Id. If, however, the statute is ambiguous, this court must look beyond the statute's language and examine the scope, history, context, subject matter, and purpose of the statute. State v. Sweat, 208 Wis.2d 409, 415, 561 N.W.2d 695 (1997), quoting UFE, Inc. v. LIRC, 201 Wis.2d 274, 281-82, 548 N.W.2d 57 (1996).

¶14 A statutory provision is ambiguous if reasonable minds could differ as to its meaning. Sweat, 208 Wis.2d at 416, 561 N.W.2d 695. "Ambiguity can be found in the words of the statutory provision itself, or by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes." Id. When construing a statute, the entire section and related sections are to be considered in its construction or interpretation. Id.; State v. Clausen, 105 Wis.2d 231, 244, 313 N.W.2d 819 (1982).

¶15 Beard urges that under Wis. Stat. § 103.21(1), an employment relationship existed between Anthony and The Tribune through Anthony's distribution of the paper's newspaper bundles. We agree that § 103.21(1), standing alone, clearly creates such an employment arrangement. ⁶ However, ambiguity in a statute can be created by the interaction of two separate statutes, as well as by the interaction of words and structure of a single statute. Sweat, 208 Wis.2d at 417, 561 N.W.2d 695.

¶16 We conclude that Wis. Stat. § 103.21(1) becomes ambiguous when read in conjunction with Wis. Stat. §§ 103.21 to 103.31, and related statutes, particularly Wis....