Kaltenbrun v. City of Port Washington

• Decision Date: 09 May 1990
• Docket Number: No. 89-1196,89-1196
• Parties: Frederick C. KALTENBRUN, and Jacqueline Kaltenbrun, Plaintiffs-Appellants-Cross Respondents, v. CITY OF PORT WASHINGTON, Sentry Insurance, a mutual company, Defendants-Respondents, Donohue and Associates, Inc., Defendant-Respondent-Cross Appellant, Gabe's Construction Company, Inc., Continental Casualty Company, Don L. Burich, d/b/a Burich Excavating, and Blue Cross and Blue Shield United of Wisconsin, Defendants.
• Court: Wisconsin Court of Appeals

Page 527

457 N.W.2d 527

156 Wis.2d 634

Frederick C. KALTENBRUN, and Jacqueline Kaltenbrun Plaintiffs-Appellants-Cross Respondents, v. CITY OF PORT WASHINGTON, Sentry Insurance, a mutual company Defendants-Respondents Donohue and Associates, Inc., Defendant-Respondent-Cross Appellant Gabe's Construction Company, Inc., Continental Casualty Company, Don L. Burich, d/b/a Burich Excavating, and Blue Cross and Blue Shield United of Wisconsin, Defendants.

No. 89-1196.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 1990.

Opinion Released May 9, 1990.

Opinion Filed May 9, 1990.

Robert J. Asti and H. Ben Levy of Levy & Levy, S.C., Cedarburg, for plaintiffs-appellants-cross respondents.

Clifford R. Haggenjos, Jr. of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, for defendants-respondents.

Dale L. English of Colwin, Fortune, Colwin & English, S.C., Fond du Lac, for defendant-respondent-cross appellant.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Judge.

Frederick C. Kaltenbrun appeals from a summary judgment dismissing his claims against the city of Port Washington for negligence and violation of the safe-place statute. Kaltenbrun also appeals from a second summary judgment dismissing similar claims against Donohue and Associates (Donohue). Donohue cross-appeals from that portion of the second judgment denying its motion for costs and reasonable attorney's fees pursuant to sec. 814.025, Stats. We find no error in the trial court's rulings and affirm the judgments.

The material facts are undisputed. In 1986, the city contracted with Donohue, an architectural firm, for the design of a water transmission main and booster pump station on city-owned property. This agreement also provided that Donohue would visit the site at appropriate intervals to determine if the construction met the contract terms.

By separate agreement, the city contracted with Gabe's Construction Company, Inc. (Gabe's) to construct the project. By this agreement, the city relinquished all control over the site, retaining only the right of inspection. This contract specifically provided that Gabe's was responsible for the methods used to complete the work and for implementing all safety precautions associated with the work. Gabe's subcontracted with Burich Excavating. Burich in turn employed Kaltenbrun to operate one of its dump trucks.

Kaltenbrun's job was to transport fill by dump truck from one part of the construction site to another. The water main was constructed down the middle of a twenty-foot-wide dirt path bordered by a forty-foot wall of rock and soil on the west side, and a forty-foot sheer drop on the east side. As the site was trenched, Kaltenbrun would back his dump truck up to the south end of the site to receive fill. He then would proceed from the site, travel through the city, reenter the site on the north end, turn around and back down the dirt path to back fill the trench. Kaltenbrun was beginning his second week on the job when he backed too close to the east edge of the path during the back-fill procedure. The edge gave way, sending Kaltenbrun and his truck over the side of the forty-foot drop. As a result of the accident, Kaltenbrun sustained serious injuries.

Kaltenbrun filed suit against the city, as owner; Donohue, as architect, designer and engineer; and Gabe's, as general contractor, alleging negligence and violation of the safe-place statute. All three defendants moved for summary judgment, and Donohue additionally requested costs and reasonable attorney's fees pursuant to sec. 814.025, Stats.

The trial court granted partial summary judgment to Gabe's; that aspect of the case is the subject of a separate appeal and is not presently before us. Kaltenbrun v. Gabe's Constr. Co., No. 89-1080, unpublished slip op. (June 27, 1990). As to the city and Donohue, the trial court determined that neither breached any statutory or common law duty of care owed to Kaltenbrun. The trial court also denied Donohue's request for costs and attorney's fees. Two judgments were entered: one dismissing Kaltenbrun's claims against the city and the other dismissing Kaltenbrun's claims against Donohue and denying Donohue costs and attorney's fees under sec. 814.025, Stats. Kaltenbrun appeals and Donohue cross-appeals.

I. APPEAL

A. COMMON LAW NEGLIGENCE

We begin with the trial court's rulings regarding the city's and Donohue's alleged negligence. The court determined that the city did not owe Kaltenbrun a common law duty because the dangerous condition of the cliff was open and obvious. The trial court also determined that Donohue had no common law duty with respect to the protection of the employees on the site since Donohue lacked control over the methods of construction and safety techniques.

Kaltenbrun argues that summary judgment was inappropriate because the undisputed facts give rise to reasonable inferences that the city and Donohue both owed him a common law duty of care. The question of duty, however, is not ultimately one of fact. Rather, the question of whether the city and Donohue owed Kaltenbrun a duty, and what the scope of that duty was, is a question of law. Johnson v. Seipel, 152 Wis.2d 636, 643, 449 N.W.2d 66, 68 (Ct.App.1989). We review such questions independently of the trial court's conclusions. Id.

Negligence requires a duty of care on the part of the defendant, a breach of that duty, and an injury caused by the breach. Id. Duty is the exercise of reasonable care whenever it is foreseeable that one's conduct may cause harm to another. Id. at 644, 449 N.W.2d at 68. The essence of the duty to exercise reasonable care is not to refrain from doing a particular act, but rather it is the duty to act in a certain way--to exercise reasonable care--whenever it is foreseeable that one's conduct may cause harm to another. Id. This rule applies even though the nature of that harm and the identity of the harmed person may be unknown at the time of the act. A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483, 214 N.W.2d 764, 766 (1974).

1. The City's Duty

Kaltenbrun argues that the city owed him a duty of care because the city knew that heavy equipment would be required to accomplish the contract goals, and it was foreseeable to the city that use of this equipment on the elevated path would create a dangerous situation. Furthermore, Kaltenbrun contends that the city breached its duty when it failed to implement or supervise on-site safety measures. We reject these arguments.

At the outset, we note that the liability sought to be imposed here is not a vicarious one. Rather, Kaltenbrun charges the city with wrongdoing separate and distinct from that alleged against the general contractor. He argues that the city owed a duty of care directly to him as an employee of a subcontractor working on the project site. Kaltenbrun's theory is that the city, by its action (or inaction), created a situation in which the natural, probable and foreseeable consequence was that someone would be injured in the manner he was.

We agree that once the city decided to construct the water main project it was obligated to exercise reasonable care in carrying out the project. That duty included not only the obligation of due care to refrain from any act which would cause foreseeable harm, but also the duty to take action when it was foreseeable that its actions may cause harm to another. See Seipel, 152 Wis.2d at 644, 449 N.W.2d at 68. Once it became foreseeable that the project could be dangerous, the city had the duty to act in a certain way--to exercise reasonable care. Id. Whether the city exercised reasonable care is the issue in this case.

Kaltenbrun contends that the city's obligation was to have a representative on the site to supervise the general contractor's safety measures and to implement other safety measures if necessary. We disagree that this was the city's duty under the facts of this case.

The city had two courses of action available to accomplish the project: (1) it could do the work itself and implement necessary safety precautions; or (2) it could contract with someone else to carry out these duties. The city chose the latter course, contracting with Gabe's, an independent contractor. The city's contract with Gabe's relinquished control over the site to Gabe's (except for inspection purposes) and specifically obligated Gabe's to implement all safety precautions associated with the project. Such a duty properly may be imposed by contract. See Rausch v. Buisse, 33 Wis.2d 154, 161, 146 N.W.2d 801, 805 (1966).

Kaltenbrun complains that this permits an owner to contract away its duty of care. We disagree. Rather, it simply recognizes that a party may discharge its duty to act with due care in an alternative manner--by turning the project over to a responsible independent contractor possessing the necessary knowledge and expertise who can safely perform the project. Independent contractors can bring to a project safety experience and expertise that the owner may lack. In some situations, an owner's attempt to carry out a project without the assistance of an independent contractor could constitute a failure to exercise reasonable care. We should not create a rule of law which discourages such contracts.

Accordingly, we conclude that an owner who has contracted with a reliable and qualified independent contractor to implement all safety precautions associated with the work has fulfilled its duty of reasonable care to those employees of the general contractor or those employed by subcontractors whom the general contractor has hired. Thus, the city's failure here to directly implement safety precautions on the site or to supervise the general contractor's safety obligations was not a breach of the city's duty to Kaltenbrun.

We note, however, that the mere making of such a contract does not automatically insulate an owner from liability. An owner may still breach the...