Brandenburg v. Briarwood Forestry Servs., LLC

• Decision Date: 12 June 2014
• Docket Number: No. 2012AP2085.,2012AP2085.
• Citation: 847 N.W.2d 395,2014 WI 37,354 Wis.2d 413
• Parties: Kelli BRANDENBURG and Bruce Brandenburg, Plaintiffs–Appellants v. BRIARWOOD FORESTRY SERVICES, LLC and Jeffrey L. Steinke, Defendants, McMillan–Warner Mutual Insurance Company and Robert Luethi, Defendants–Respondents–Petitioners.
• Court: Wisconsin Supreme Court

354 Wis.2d 413

847 N.W.2d 395

2014 WI 37

Kelli BRANDENBURG and Bruce Brandenburg, Plaintiffs–Appellants

v.BRIARWOOD FORESTRY SERVICES, LLC and Jeffrey L. Steinke, Defendants,McMillan–Warner Mutual Insurance Company and Robert Luethi, Defendants–Respondents–Petitioners.

No. 2012AP2085.

Supreme Court of Wisconsin.

Argued Jan. 15, 2014.

Decided June 12, 2014.

For the defendants-respondents-petitioners, the cause was argued by Thomas Terwilliger, with whom on the briefs was Timothy J. Burnett and Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.

For the plaintiffs-appellants, the cause was argued by Dan Arndt, with whom the brief was Emily Ruud and Arndt, Buswell, & Thorn S.C., Sparta.

N. PATRICK CROOKS, J.

¶ 1 The question we address in this case is whether Robert Luethi, who hired an independent contractor to spray herbicide on his property, may be held liable to his neighbors, the Brandenburgs, for the extensive, permanent damage they claim the spraying caused to 79 trees on adjoining property. Bruce Brandenburg, who owned property at the top of a steep slope above Luethi's pasture, claimed damage to all eight trees on his land; Kelli Brandenburg, who also owned property at the top of the slope, claimed damage to 71 of 115 trees on her land.

¶ 2 More specifically, we must determine whether this case falls into one of the exceptions to the well-settled independent contractor rule that states that, in general, “one who contracts for the services of an independent contractor is not liable to others for the acts of the independent contractor.” ¹

¶ 3 Under one of those exceptions, the “inherently dangerous activity” exception, an employer of an independent contractor may be liable for the torts of an independent contractor if the activity of the independent contractor is inherently dangerous. This exception is what the parties disagree about. Plaintiffs say the exception is good law and it applies here because this activity is inherently dangerous. Luethi says that it is not good law and does not apply here. Further, he argues that the exception is unworkable and should be altered or abandoned altogether.

¶ 4 The “inherently dangerous” exception has long been recognized in treatises, in our case law and in case law from other jurisdictions. The test for whether an activity is inherently dangerous has two parts. An activity is inherently dangerous 1) if the activity poses a naturally expected risk of harm and 2) if it is possible to reduce the risk of the activity to a reasonable level by taking precautions.²

¶ 5 For the reasons explained below, we see no reason to abandon our precedent concerning the “inherently dangerous” exception. It is a widely accepted and long-established rule of negligence law that is rooted in good policy. The rule imposes liability on the parties who are in the best position to take precautions to avoid harm to third parties where the activity to be done is inherently dangerous.

¶ 6 We therefore turn to the exception's application. In some negligence cases, including somewhat unusual negligence claims such as the one against Luethi, “[w]e require a plaintiff to plead facts, which if proved true, would establish the following four elements: (1) the existence of a duty of care on the part of the defendant,(2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the [breach].” ³

¶ 7 Under Wisconsin law, “every person is subject to a duty to exercise ordinary care in all of his or her activities” and, therefore, “the elements of duty and breach are usually presented to the trier of fact in a question asking whether the defendant was negligent, and then the elements of causation and damages are addressed.” ⁴ Thus, generally, a trier of fact in a usual negligence case is presented with three questions: was the defendant negligent?, was that negligence the cause of the harm?, and what are the damages? ⁵ As noted above, this case is somewhat different.

¶ 8 The threshold question is whether Luethi may be liable for the negligence of the independent contractor he hired to spray herbicides. To answer that, we have to examine the nature of the activity itself because if spraying is an inherently dangerous activity, then it gives rise to a duty of ordinary care for Luethi for the acts of the independent contractor. If, on the other hand, the activity is not inherently dangerous (and if no other exceptions apply), the duty of ordinary care is that of the independent contractor, and Luethi cannot be liable for the acts of the other person.

¶ 9 In many cases, this determination of whether a given activity is inherently dangerous will be one of fact, but in the unusual case where the facts are undisputed and no reasonable jury could find otherwise,⁶ it is appropriate to decide it as a question of law. As the relevant suggested verdict form in Wisconsin Jury Instruction—Civil 1022.6 notes, “There are times when the [question about inherent dangerousness] will not be necessary.”

¶ 10 The record contains uncontroverted evidence that the chemical used here is capable of killing 56 “woody plant” species, including oak, birch, poplar and maple trees. It therefore poses a “naturally expected risk of harm” to trees on neighboring properties. The record also contains undisputed testimony and exhibits showing that it is possible to reduce that risk by taking precautions. Therefore, both parts of the inherently dangerous test are satisfied, and we agree with the court of appeals that under Wisconsin law, under these circumstances, “spraying the herbicides was an inherently dangerous activity, and, as a result, the general rule of nonliability for an independent contractor's torts did not apply.” ⁷

¶ 11 The threshold question in the negligence determination is resolved here in favor of a determination that Luethi may be liable for the acts of the independent contractor on the grounds that the spraying here was an inherently dangerous activity—it posed a risk of naturally expected harm, and it was possible to reduce the risk. With that question resolved, the negligence claim may now proceed, with the plaintiffs having the opportunity to show that Luethi failed to use ordinary care with regard to the activity and that such failure was the cause of the damage claimed,⁸ followed by an appropriate damage question.

¶ 12 This is consistent with the approach applied in Wisconsin Jury Instruction—Civil 1022.6 and the Suggested Verdict Form 1 (Inherently dangerous activity). It is also consistent with the Restatement sections on which we have relied in the prior cases addressing this question.

¶ 13 The Restatement sections describe a framework that imposes liability on an employer for the acts of the independent contractor where three facts are established: that there exists a naturally expected risk of harm, that there exists an opportunity to take precautions against the harm, and that the employer “knows or has reason to know” that it poses a risk and requires precautions. The concurrence/dissent rightly points out that Wisconsin case law clearly adopts the “inherently dangerous exception” as described in the Restatement sections discussed herein. However, it is equally clear that Wisconsin courts have rejected a strict liability approach in “inherently dangerous” cases. Adopting such an approach would erase the distinction between “inherently dangerous” and “extrahazardous activity,” which we explicitly declined to do in Wagner. Wagner v. Cont'l Cas. Co., 143 Wis.2d 379, 392–93, 421 N.W.2d 835 (1988).

¶ 14 At this point in the case, there has been no determination by a trier of fact of what Luethi knew or had reason to know about the danger inherent in the work. To impose strict liability would therefore contravene the applicable section of the Restatement and change the law by erasing one requirement—making an employer liable for activities even where it is not established that the employer knew or had reason to know of the danger inherent in the work. The lack of clarity on the analysis in prior cases is partly due to the fact that this particular question has not been squarely addressed because the application of the “inherently dangerous” exception has been mentioned in other contexts rather than being subjected to full analysis. Nevertheless, imposing strict liability without any resolution of the knowledge requirement, within the framework of the duty of ordinary care, is unsupported by the Restatement sections. This “knows or has reason to know” factor seems to come into play on the question of whether Luethi failed to use ordinary care with regard to the activity. No resolution of that question has been made at this point in the record; therefore, the court of appeals correctly stated that the case should be remanded for the relevant further determinations to be made, specifically whether Luethi exercised ordinary care to prevent damage to the Brandenburgs' property.

¶ 15 We therefore affirm the court of appeals and remand this matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

¶ 16 Luethi hired an independent contractor who sprayed a potent herbicide—one capable of killing oak, birch, poplar and maple trees and 52 other woody species, according to its label—on part of his property to rid it of a plant called prickly ash, which had grown thickly on the property, with some plants reaching a height of seven feet. There was no written contract between Luethi and the contractor, and Luethi placed no time restrictions on the spraying company.

¶ 17 A few days after the herbicide was applied, Luethi's neighbors, the Brandenburgs, noticed that leaves were falling off of the birch trees and other plants on their property. Based on an investigation that identified the herbicide as the cause of the damage,⁹ they sued Luethi as well as...