Berger v. Metropolitan Sewerage Commission of Milwaukee County

• Decision Date: 03 January 1973
• Docket Number: No. 157,157
• Citation: 56 Wis.2d 741,203 N.W.2d 87
• Parties: June BERGER et al., Appellants, v. METROPOLITAN SEWERAGE COMMISSION OF the COUNTY OF MILWAUKEE, Respondent, City of Franklin et al., Defendants.
• Court: Wisconsin Supreme Court

Page 87

203 N.W.2d 87

56 Wis.2d 741

June BERGER et al., Appellants, v. METROPOLITAN SEWERAGE COMMISSION OF the COUNTY OF MILWAUKEE Respondent City of Franklin et al., Defendants.

No. 157.

Supreme Court of Wisconsin.

Jan. 3, 1973.

Kersten & Mckinnon, Milwaukee (George P. Kersten, Milwaukee, of counsel), for appellants.

Schroeder, Gedlen, Riester & Moerke, Milwaukee (Ewald L. Moerke, Jr., Milwaukee, of counsel), for respondent.

WILKIE, Justice.

Two issues are raised by this appeal:

1. Is there a question of fact on whether the defendant Sewerage Commission was the owner of a place of employment within the contemplation of the safe place statute at the time of the deaths of plaintiffs' decedents?

2. If not, is the Sewerage Commission liable as an employer even if not an owner of a place of employment?

1. Liability under safe place statute as owner of a place of employment. Appellants' principal argument is that a question of fact is present here as to whether the Sewerage Commission maintained ownership of the sewer as a place of employment within the contemplation of the safe place statute. It is their position that the Sewerage Commission retained substantial control over construction of the sewer and in addition that the sewer site was not in safe condition when it was turned over to the construction contractor. The Sewerage Commission, in moving for summary judgment, holds the view that there is no question of fact involved in its position that it was not the sewer's 'owner' within the contemplation of the safe place statute and that the sewer site was not in an unsafe condition at the time it was turned over to the contractor.

The safe place statute requires every employer and every owner of a place of employment or building to maintain it in a safe condition. ² Responsibility for unsafe premises which cause injury to employees and frequenters does not, however invariably hinge solely upon legal ownership. This proposition was enunciated in the case of Potter v. Kenosha, ³ a factually similar situation involving the creation of a dangerous condition by a construction contractor who was digging a trench in connection with the construction of a sewer. The court excused the city of Kenosha from liability, stating:

'We are constrained to hold that when an owner turns over to an independent contractor the complete control and custody of a safe place, whereon or whereunder the contractor creates a place of employment for the purpose of fulfilling the terms of the contract, the owner reserving no right of supervision or control of the work excepting that of inspection or to change the plan with reference to the construction to be furnished, if thereafter in the performance of the work under the contract the premises are changed by the contractor and as a result a hazardous condition is created, the owner does not become liable to the contractor's employee injured as a consequence of such hazardous condition while acting in the scope of his employment. Were we to hold otherwise we would be placing an interpretation upon the statute not intended by the legislature. Here, the city's purpose in letting the contract was to obtain a satisfactory sewer. . . .' ⁴

In view of the Potter holding and subsequent cases adhering to this degree-of-control test, the question for this court's determination is whether the independent contractor herein retained 'the complete control and custody of a safe place.' ⁵

Here, it is undisputed that the Sewerage Commission regularly maintained an office at the construction site staffed by several full-time employees. These employees included one or two resident engineers, a supervising engineer who would be in charge of several projects, and from two to four full-time engineering aides.

The duties of these Sewerage Commission engineers are as numerous and varied as their governing contract specifications are long and detailed. One of the prime responsibilities of the engineering personnel is to set, in accordance with the contract specifications, the accurate line and grade measurements. ⁶ The commission's employees also inspect and analyze the concrete, before, during and after it is poured into forms. The setting of these forms is also checked by the commission engineers. Further duties include making daily progress reports which contain weather recordings, progress data and events important to the sewer's construction (flooding, etc.).

Although the Sewerage Commission retained great inspection authority over all facets of the sewer's actual construction, under the contract the contractor agreed to perform all tests necessary to the completion of the sewer, to furnish all of the needed labor, materials, necessary tools and equipment, and to provide all utility and transportation services necessary to complete the sewer.

Appellants urge this court to hold this great degree of inspection authority amounts to control over the sewer construction within the meaning of the Potter case. They rely on Frew v. Dupons Construction Co., ⁷ another sewer construction case, for the proposition that detailed, continued inspection can amount to supervision. In Frew, however, an inspector for the city ordered the foreman to install a sewer lateral from the main line to a building. Although this lateral was apparently not shown on the plans, it was provided for in the contract as an 'extra.' In the course of this digging, the gas line lateral was damaged and began to leak. Although both the city inspector and the construction foreman were aware of the gas leak, the only precautions taken were the attempted taping of the leak and the backfilling of the hole. Shortly thereafter an explosion and fire damaged the building into which the lateral sewer was being connected. The city was granted summary judgment after suit was filed against it, the construction company and the gas company. The issue presented was whether the city's inspector was acting within the scope of his employment at the time of the negligent act. This court reversed and held the issue should be tried stating:

'Furthermore, it is not entirely clear that the duties of 'inspection' exclude a certain amount of supervision or direction. Part of that duty, it seems, might be not only to inspect, but to see that the job is done right and direct how it is to be done or redone and corrected.

'. . .

'A certain amount of instruction and direction is not necessarily unnatural, disconnected or extraordinary so as to say it was outside the scope of Bailey's employment.' ⁸

Frew, therefore, stands for the proposition that inspection and supervision may raise a triable issue regarding the scope of a city inspector's employment. It is yet clear, under the Potter rule, however, that inspection alone does not raise a triable issue under this exception to the ownership clause of the safe place statute.

The manner of inspection in the instant case is like that in Weber v. Hurley, ⁹ a safe-place action against the city of Hurley, Wisconsin, for injuries sustained by the plaintiff while laying sewer tile. The plaintiff, in the course of building a home, hired an independent contractor to dig a sewer lateral trench from the main sewer to the home. City employees determined where in the street the sewer main was and also instructed the contractor as to the depth and direction of the trench. These employees also broke through the asphalt surface and, upon the completion of the trench, made the necessary 'tap.' It was left to plaintiff to lay the pipe from the home to the tap. He did this alone but after the city employees had instructed him on the grade he was required to maintain for proper drainage. The trench collapsed as plaintiff was laying this tile. In response to the contention that the city was in control of the digging operations this court held:

'Under the uncontroverted facts in this case, Johnson was an independent contractor employed by plaintiff. He was in immediate and complete control of the street at the time he was digging the trench and when the accident occurred. None of the restrictions placed by the city upon his operations in any way affected the manner in which the digging was done. Plaintiff made the oral argument that the city may be liable in instructing Johnson to dig around the curb rather than through it. We cannot agree. The place of digging had nothing to do with Johnson's manner of doing the work or the opportunity to shore the walls.' ¹⁰

The instant case...