Dykstra v. Arthur G. McKee & Co.

• Decision Date: 13 December 1979
• Docket Number: No. 77-513,77-513
• Citation: 92 Wis.2d 17,284 N.W.2d 692
• Parties: Ralph C. DYKSTRA and Sandra Dykstra, his wife, Plaintiffs-Defendents, v. ARTHUR G. McKEE & CO., a Foreign Corporation, and Jetco Properties, Inc., a DelawareCorporation, Defendants and Third-Party Plaintiffs-Appellants, J.F. Ahern Co., a Wisconsin Corporation, Third-Party Defendent-Appellant.
• Court: Wisconsin Court of Appeals

Page 692

284 N.W.2d 692

92 Wis.2d 17

Ralph C. DYKSTRA and Sandra Dykstra, his wife, Plaintiffs-Defendents, v. ARTHUR G. McKEE & CO., a Foreign Corporation, and Jetco Properties, Inc., a DelawareCorporation Defendants and Third-Party Plaintiffs-Appellants J.F. Ahern Co., a Wisconsin Corporation, Third-Party Defendent-Appellant.

No. 77-513.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 20, 1979.

Opinion Released Sept. 18, 1979.

Opinion Filed Sept. 18, 1979.

Review Granted Dec. 13, 1979.

Arnold, Murray, O'Neill & Schimmel, Milwaukee, on briefs for defendants and third-party plaintiffs-appellants.

Hayes & Hayes, Milwaukee, on brief, for third-party defendant-appellant.

David A. Saichek of Gaines & Saichek, S. C., Milwaukee, on brief, for plaintiffs-respondents.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

This is an action brought under the safe-place statute, sec. 101.11(1), Stats., to recover damages for personal injuries suffered by respondent Ralph C. Dykstra. Dykstra was injured when he slipped and fell in a one-story building being constructed on a site owned by appellant Jetco Properties, Inc. (Jetco). At that time, Dykstra was employed by the appellant J. F. Ahern Co. (Ahern) as a steamfitter. Ahern was a subcontractor hired to do certain plumbing and refrigeration work on the building by the general contractor, appellant Arthur G. McKee & Co. (McKee).

Dykstra and his wife brought suit against McKee and Jetco alleging in their complaint that the general contractor and owner, respectively, had negligently failed to keep a concrete floor in the building reasonably free from water and sand, upon which Dykstra had allegedly slipped, in violation of their duty under the safe-place statute to "furnish employment which shall be safe." McKee and Jetco joined Dkystra's employer Ahern as a third-party defendant, seeking indemnification for damages under a clause of the subcontract. The clause provided that Ahern would indemnify McKee and its customers (e. g., Jetco) from damages arising in connection with the performance of the subcontract unless Ahern could prove that (1) the damage was caused "solely" by McKee's "active negligence" and (2) that Ahern was "at all times diligently trying to minimize the possibility of such . . . damage . . . and . . . the consequences thereof."

The negligence issue was tried to a jury, which was asked in a special verdict to consider only the negligence of Dykstra and McKee. ¹ The jury found McKee 80 percent negligent and Dykstra 20 percent negligent, and awarded total damages to Dykstra of $164,849.44 and to his wife in the amount of $3,500. The trial court denied motions for a directed verdict, upon which it reserved ruling until after verdict; it also denied post-trial motions to change the jury's apportionment of negligence and for a new trial.

The indemnification issue was tried to the court subsequent to the jury's verdict. The trial court construed the subcontract to require indemnification by Ahern of McKee.

All three appellants appeal from the portion of the judgment pertaining to liability for damages; Ahern also appeals from the portion of the judgment ordering it to indemnify McKee and Jetco. The issues are:

1. whether the evidence is sufficient to support the jury's verdict;

2. if so, whether the indemnification provision of the contract is void as against public policy; and

3. if not, whether the trial court correctly construed the indemnification clause in the subcontract.

SUFFICIENCY OF EVIDENCE

The facts are not in substantial dispute. The accident occurred on August 16, 1972. Dykstra was injured when he slipped and The exterior walls of the building were erected and some of the interior walls were in place, but the one-story building had not been completely roofed. A "roof deck" had been installed over part of the building, including the area over the vicinity where Dykstra was injured. Several holes had been cut into this deck to accommodate pipes. Gaps of between one and one and one-half inches existed between the roof deck and the circumferences of the pipes. Since the roofing subcontractor had not yet installed flashing or sealant material around the gaps, the roof deck was not water tight in these several areas.

fell in a corridor in the partially completed building. Dykstra had been in this corridor "a couple of different times" prior to the accident. The corridor was described as a "major thoroughfare" in frequent use by the six or seven different trades (subcontractors) at the site. It was about five feet wide and twenty-five to thirty feet in length. Its floor was made of smooth, highly finished concrete.

Dykstra had been working on the site for about two weeks prior to his accident. He testified that the gaps around the pipes in the roof deck had been in substantially the same condition for those two weeks. It had been raining every other day or so for several days before the accident, and had been hot and humid. The floor of the corridor was "wet" or "damp" and sandy on the day in question. The source of the sand is not entirely clear, but Dykstra testified that he had seen sand fall from other workers' shovels and from wheelbarrows moving through the corridor on previous occasions. He described the floor as generally dirty with scattered candy wrappers. There is evidence that the concrete floor tended to become moist with condensation on hot, humid days. On the day of the accident, it was hot and humid.

On the morning of the accident, Dykstra walked through the corridor at about 8:00 a. m. and observed the condition of the floor as previously noted. At about 10:00 a. m. on that date, he was returning through the corridor to obtain some tools when he slipped and fell to the floor, injuring his right knee. Several witnesses testified that his clothing was wet and sandy after the fall.

As the result of the injury, Dykstra had two corrective surgeries culminating with the removal of his kneecap. In April, 1974 the condition had worsened to such an extent that he had to quit his job, and had been unemployed since that time.

At trial Dykstra's father-in-law testified as an expert in the field of construction safety. He testified that it is the duty of a general contractor, such as McKee, to take preventive measures to insure that the roof of a partially completed building does not leak, and that pass-through areas such as the corridor are dry and safe for the use of the workers. One method of preventing or minimizing leaks, he said, was to construct temporary "DAMS" OVER ANY OPENINGS IN A ROOF WITH two-by-fours and tarpaper or some other temporary sealer. He testified that floors could be kept dry and less slippery by spreading sawdust over them. He stated that it was necessary to keep pass-through areas dry regardless of whether the source of moisture was through leaks in the roof or condensation.

There is no evidence that McKee employed the suggested measures, or any measure, to prevent the floor in question from becoming wet and slippery. While McKee performed general "housecleaning" operations on Fridays of each week, no cleanup was performed on a regular daily basis.

The appellants contend that this evidence is insufficient to establish a violation of the safe-place statute. We disagree with this contention.

Section 101.11(1), Stats., requires employers to furnish a place of employment safe for employees and "frequenters," to "use methods . . . reasonably adequate to render such . . . places of employment safe," and to:

(d)o every other thing reasonably necessary to protect the life, health, safety and welfare of such employes and frequenters.

Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

Sec. 101.11(2)(a) prohibits employers from allowing employees to be in a place of employment which is not safe, or from failing to adopt safety measures:

(r)easonably adequate to render such . . . place of employment safe (for employees and frequenters), and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employes and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.

Though not an employee of McKee, Dykstra was a "frequenter" to whom McKee owed the statutory duty of care, since it maintained supervisory control over the premises. ² The duty imposed by the statute is a higher duty than that of ordinary care imposed at common law, though it does not make the employer into an "insurer." ³ The mere fact that an accident happened does not prove that the place is not safe within the meaning of the statute, ⁴ but the employer has a duty to make the place "as safe as the nature of the place will reasonably permit." ⁵ Whether the place is reasonably safe within the meaning of the statute is dependent upon the facts and circumstances of the particular case. ⁶ In all but exceptional cases, the question is for the jury. ⁷

The standard of review on appeal was set forth in Shoemaker v. Marc's Big Boy, 51 Wis.2d 611, 615, 187 N.W.2d 815, 817-818 (1971), as follows:

The jury's findings must be upheld if there is any credible evidence which under a reasonable view admits to an inference which supports the verdict. Becker v. Barnes (1971), 50 Wis.2d 343, 184 N.W.2d 97. This is especially true where, as here, the verdict has the approval of the trial court. Capello v. Janeczko (1970), 47 Wis.2d 76, 176 N.W.2d 395. The evidence must be viewed in a light most favorable to the jury's verdict. St. Paul Fire & Marine Ins. Co. v. Burchard (1964), 25 Wis.2d 288, 130 N.W.2d...