Hortman v. Becker Const. Co., Inc., 77-132
| Decision Date | 06 November 1979 |
| Docket Number | No. 77-132,77-132 |
| Citation | 284 N.W.2d 621,92 Wis.2d 210 |
| Parties | Leon HORTMAN, Plaintiff-Appellant, Aetna Casualty & Surety Company, a Foreign Corporation, Plaintiff, v. BECKER CONSTRUCTION COMPANY, INC., a Wisconsin Corporation, Gene T. Eberle Associates, Inc., a Wisconsin Corporation, and Otis Erecting Company, Inc., a Wisconsin Corporation, Defendants, Mark F. Pfaller Associates, Inc., a Wisconsin Corporation, and John J. Flad & Associates, Inc., a Wisconsin Corporation, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Albert J. Goldberg (argued and on brief) and Goldberg, Previant & Uelmen, S. C., Milwaukee, for plaintiff-appellant.
Jack R. Wiedabach (argued), Douglas H. Starck and Prosser, Wiedabach & Quale, S. C., Milwaukee, on brief for defendants-respondents.
Mark F. Pfaller Associates, Inc., and John J. Flad & Associates, Inc. (hereinafter respondents), were retained as an architectural consortium by St. Michael's Hospital in Milwaukee in regard to an addition to the hospital.
Becker Construction Company, Inc., was the general contractor, and Leon Hortman was an employee of Becker. Hortman was injured, and at the time of the injury, he was working outside the building at ground level and was hit by a piece of lumber which apparently blew off the top of the building under construction.
Hortman and Aetna Casualty & Surety Company commenced this action to recover damages for the injuries Hortman sustained. Becker Construction Company, Inc., was made a party by virtue of sec. 803.03(2)(a), Stats. The architects and certain subcontractors were also parties.
This appeal concerns only the summary judgment that dismissed the complaint of Hortman alleging a cause of action against the architects. The issues presented on appeal relate to the liability of an architect under sec. 101.11, Stats., to an employee of a general contractor when the architect has been retained, by contract, to perform services for the owner of the property.
Donald S. Bishop and Paul Shmelzer were employed by the architects to perform architectural and inspection services at the construction site. Bishop was the architects' full-time project representative and Shmelzer was at the site occasionally. Bishop was at the building at the time Hortman was injured. The affidavits filed in the summary judgment proceeding refer to Exhibit A and Exhibit B. Exhibit A is the owner-architect agreement. Exhibit B is attached to Exhibit A and sets forth the duties, responsibilities and limitations of authority of the architect's full-time project representative.
In support of their motion for summary judgment, respondents submitted the affidavit of Donald S. Bishop, an employee of Mark F. Pfaller Associates, Inc.; the affidavit and supplementary affidavit of Douglas H. Starck, one of lawyers for respondents; and the affidavit of Mark F. Pfaller, president of Mark F. Pfaller Associates, Inc., which incorporated by reference the owner-architect agreement identified as Exhibit A and the list of duties, responsibilities and limitations of authority of the architect's full-time project representative, as contained in Exhibit B, and a statement that it was Becker's responsibility to see to it that materials on the job site were cleaned up. Pertinent portions of the owner-architect agreement are also set forth in respondents' answer.
Paragraphs 1.1.15, 1.1.18 and 1.1.22 of the owner-architect agreement state:
(Emphasis supplied.)
Pursuant to the owner-architect agreement, respondents were required to provide a full-time project representative at the construction site.
Paragraph 1.2.4 of the agreement states:
The duties, responsibilities and limitations of authority of the full-time project representative are set forth in Exhibit B of the owner-architect agreement. The following provisions appear in Exhibit B:
In opposition to the motion for summary judgment appellant submitted the affidavit and supplementary affidavit of Albert J. Goldberg, one of the lawyers for appellant. Both of these affidavits and the affidavits of lawyer Starck consist of excerpts from a deposition of Donald S. Bishop.
The following facts appear in the affidavit of Donald S. Bishop and the affidavits of the lawyers.
On June 8, 1973, Mr. Bishop was employed by respondents as the architects' full-time project representative for the erection of the addition to St. Michael's Hospital. His duties and responsibilities were those set forth in Exhibit B attached to the owner-architect agreement. His duties were to see to it that the construction was completed according to plans and specifications, both with respect to the quality of the material and the quality of the workmanship.
Bishop chaired and attended conferences held at the construction site. Questions about safety and housekeeping came up at the meetings on rare occasions. Questions about unsafe conditions were brought up by anyone who wanted to. If there was a complaint about unsafe conditions, the contractor would have been responsible for the problem and was advised to clean it up or correct it. The presence of a length of wood would not be a subject for conference, but would be taken up with the general contractor. Bishop did, however, state that it "could be" a subject for conference.
Bishop moved in every construction area, and in so doing, was performing the duties set forth in Exhibit B. The whole construction site was his work site. He went up to observe work on the penthouse on the roof to check the quality of the materials and to see that the workmen were doing a good job of anchoring and locating materials. He was to see to it that there was no damage to the panels when they were installed. If he observed damage to any member that was going to be installed, his duty was to see that it was repaired or replaced by a good panel. It was his duty to go to the roof as one of the work areas, so long as any work was being done. It was his duty to conduct an examination of the completed penthouse to determine whether the panels and the steel construction in general were according to the specifications. After the penthouse was completed there was still considerable work to be done on the roof. The general contractor had to do this work and the architect told him what had to be done.
Bishop was familiar with the excavation where the accident occurred, because he visited it every day. Sometimes he was suspicious of the quality of the earth that they were building on, so he would go down and check it for what he thought was the ability to stand a load. He checked the quality of the work which was put in to carry out the structural engineer's plans. At the time of the accident, Hortman and his co-workers were spreading gravel, Bishop had been in the area to observe the spreading and then went...
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