Binsfeld v. Conrad
| Decision Date | 23 March 2004 |
| Docket Number | No. 03-1077.,03-1077. |
| Citation | 679 NW 2d 851,272 Wis.2d 341,2004 WI App 77 |
| Parties | Donald R. Binsfeld and Cynthia M. Binsfeld, Plaintiffs-Appellants, Regent Insurance Company, Involuntary-Plaintiff-Co-Appellant, v. Donald S. Conrad and ABC Insurance Company, Defendants-Respondents, John P. Mortensen, Anthony F. Mortensen, d/b/a Mortensen Properties, and JKL Insurance Company, Defendants. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., of Green Bay, for Appellant.
On behalf of the defendant-respondent Donald Conrad, the cause was submitted on the brief of Sandra L. Hupfer, Christina L. Peterson, and Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C., of DePere, for Respondent.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1
Donald Binsfeld appeals a summary judgment concluding that Donald Conrad was not liable under Wisconsin's safe place statute, WIS. STAT. § 101.11,1 for Binsfeld's work-related injuries. Binsfeld also appeals the circuit court's denial of a motion for default judgment, arguing that Conrad did not show excusable neglect sufficient to justify filing his answer four days after the deadline. We conclude that the circuit court appropriately exercised its discretion by denying the default judgment and that the safe place statute does not apply to Conrad. We therefore affirm the judgment.
¶2 Conrad owned land near Abrams, Wisconsin, abutting U.S. Hwy. 41. When Conrad purchased the land in 1991 from David Dennison, an outdoor advertising sign was already in place. John and Anthony Mortensen, d/b/a Mortensen Properties, owned the sign. They purchased the sign from Lawrence Verheyden in 1989, approximately four months after Verheyden signed a ten-year lease with Dennison. Verheyden conveyed the lease to Mortensen.
¶3 On July 24, 1998, while working on the sign for Jones Sign Company, Binsfeld was electrocuted by 14,000 volts, falling forty-five feet to the ground. He suffered 75-80% disability. In addition to his various physical problems, he also suffers memory loss and depression.
¶4 An engineering analysis conducted for Binsfeld revealed at least fifteen structural problems with the sign and at least nine OSHA violations. Binsfeld filed suit July 5, 2001, naming Conrad as a defendant and alleging negligence by maintaining a defective sign on his property. The Mortensens were added after discovery revealed they owned the sign.
¶5 Binsfeld agreed to an extension of the time for filing Conrad's answer. When the answer was filed four days after the extension expired, Binsfeld filed a motion to strike the answer and seeking a default judgment. The circuit court denied the motion, concluding that Conrad's neglect was excusable and the interests of justice required the case to proceed to trial.
¶6 Conrad then filed a motion for summary judgment, claiming he had no duty to Binsfeld at common law. Binsfeld's brief opposing the summary judgment raised the applicability of the safe place statute. Conrad responded that he was not an owner of a place of employment.
¶7 The circuit court concluded that Binsfeld failed to state a claim upon which relief could be granted relative to Conrad. The court dismissed Conrad from the case. Binsfeld appeals, arguing that the safe place statute applies to Conrad.
¶8 We review summary judgments de novo, using the same methodology as the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). This particular case presents a question of statutory interpretation, which we also review de novo. Hutson v. State Personnel Comm'n, 2003 WI 97, ¶31, 263 Wis. 2d 612, 665 N.W.2d 212.
¶9 The first issue is whether Conrad is subject to the safe place statute, WIS. STAT. § 101.11(1), which creates an "Employer's duty to furnish safe employment and place."
Every employer ... shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof .... Every employer and every owner of a place of employment ... shall so construct, repair or maintain such place of employment ... as to render the same safe. (Emphasis added.)
¶10 WISCONSIN STAT. § 101.01 provides relevant definitions.
¶11 Binsfeld argues that his place of employment encompasses both Mortensen's sign and Conrad's appurtenant land and that Conrad is negligent because he maintained a defective structure on his property. We reject Binsfeld's contention that land that is merely appurtenant to a "place ... where ... business is carried on" is a "place of employment."
¶12 We agree with Binsfeld that the sign was his "place"2 of employment, but we consider it to be wholly separate from the land. This may be a slight matter of semantics, because the sign must be installed in the ground somewhere. However, the sign is Mortensen's personal property, is wholly removable from the land, and predates Conrad's purchase of the land.
¶13 We also accept, for purposes of this case, that Conrad's land is literally appurtenant to Mortensen's sign. However, we reject Binsfeld's premise that this geographic proximity is itself sufficient to render Conrad's land a "place of employment." The safe place statute contemplates that both the "place" and appurtenant premises will be subject to ownership, control, or custody of the same employer or owner.3
¶14 An "owner" must have ownership, custody, or control of the place of employment—that is, every "place" and the premises appurtenant thereto. See WIS. STAT. § 101.01(10) and (11). Thus, an owner of appurtenant land who does not also have ownership, custody, or control of the "place" cannot be liable for injuries sustained at the "place." There is no dispute that Conrad exercised no ownership, custody, or control over Mortensen's sign.4
¶15 Imposing safe place liability on the owner of appurtenant premises simply because of the physical proximity would effectively make that owner an insurer for the "place," a duty the safe place statute never intended to create. See Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 26, 284 N.W.2d 692 (Ct. App. 1979). For the owner of appurtenant premises to be liable, the injury would have to occur on the premises themselves.5
¶16 This reasoning is consistent with other safe place cases. In Hansen v. Schmidman Props., 16 Wis. 2d 639, 115 N.W.2d 495 (1962), where Hansen was injured on the appurtenant premises, the supreme court declined to impose liability because the employer6 at the "place" had neither control nor custody of the appurtenant area. Id. at 642. Conversely, the owner of appurtenant premises should not be held liable if he or she does not also have ownership, control, or custody of the "place" of employment because the owner is not in a position to prevent the hazards that render the "place" unsafe.
¶17 In Schwenn v. Loraine Hotel Co., 14 Wis. 2d 601, 111 N.W.2d 495 (1961), the employer did have control and custody of the appurtenant premises, so liability was assessed even though there was a different owner.7 Thus, there would be liability if the owner of the appurtenant premises also had ownership, control, or custody of the "place."
¶18 Because Conrad does not meet the statutory definition of an owner of a place of employment, the safe place statute does not apply. Indeed, Binsfeld himself notes that it "goes without saying that one who neither owns nor controls a place of employment has no responsibility under the Act for the simple reason that the language of the Act does not impose it." Summary judgment was proper in this case.8
¶19 The second issue is whether the circuit court erred by denying Binsfeld's motion for default judgment. Binsfeld complains that Conrad failed to timely file his answer and failed to demonstrate excusable neglect. Conrad responds that he should not be blamed for the late filing because the insurance company was confused, in part by Binsfeld's counsel.
¶20 A circuit court's decision whether to grant default judgment is reviewed under an erroneous exercise of discretion standard. Rutan v. Miller, 213 Wis. 2d 94, 101, 570 N.W.2d 54 (Ct. App. 1997). A discretionary decision will be affirmed if it is based on the facts of record and the appropriate law. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). Thus, the record on appeal should reflect the circuit court's reasoned application of the appropriate legal standards to the relevant facts. Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727 (1982). Findings of fact are not disturbed unless they are clearly erroneous. WIS. STAT. § 805.17(2). If the circuit court sets forth inadequate reasons for its decisions, we may review the record ourselves to determine whether the court exercised its discretion and whether the facts provide support for the determination. Hedtcke, 109 Wis. 2d at 471.
¶21 Binsfeld argues that the court erred when it failed to grant his motion for default judgment because Conrad failed to demonstrate excusable neglect. Binsfeld also argues that the record shows the court failed to address the appropriate legal standard and that the record fails...
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