Larsen v. Wisconsin Power & Light Co.
| Decision Date | 23 August 1984 |
| Docket Number | No. 82-1990,82-1990 |
| Citation | 355 N.W.2d 557,120 Wis.2d 508 |
| Court | Wisconsin Court of Appeals |
| Parties | Julianne K. LARSEN and Dennis Larsen and Dorothy R. Larsen, her parents, Plaintiffs-Respondents and Cross-Appellants, v. WISCONSIN POWER & LIGHT COMPANY, a domestic corporation, Defendant-Appellant and Cross-Respondent, Steven Merriman and Roy K. Clary, Defendants-Appellants and Cross-Respondents, Don Lee, d/b/a Town Inn Motel, Defendant and Cross-Respondent. |
Review Denied.
James C. Herrick and Bruce A. Schultz, and Brynelson, Herrick, Gehl & Bucaida, Madison, for defendant-appellant and cross-respondent Wisconsin Power & Light Co.
Bronson C. La Follette, Atty. Gen., and Theodore L. Priebe, Asst. Atty. Gen., and Waltraud A. Arts, Asst. Atty. Gen., for defendants-appellants and cross-respondents Steven Merriman and Roy K. Clary.
Robert A. Slattery and John G. Gehringer and Frisch, Dudek & Slattery, Ltd., Milwaukee, for plaintiffs-respondents and cross-appellants Julianne K. Larsen, Dennis Larsen and Dorothy R. Larsen.
Before GARTZKE, P.J., DYKMAN, J., and GORDON MYSE, Reserve Judge.
This is an appeal and cross-appeal from a judgment finding that the appellants negligently caused the asphyxiation of Ms. Larsen. We reverse the portion of the judgment finding appellants Clary and Merriman negligent, and affirm the remainder of the judgment as modified.
Ms. Larsen and companions were found unconscious in their room at the Towne Inn Motel in Mauston, Wisconsin. Ms. Larsen was asphyxiated by the space heater installed in her room. The space heater's intake and exhaust were clogged with ice formations which resulted in carbon monoxide flowing into the room. This also resulted in part from the eroded condition of metal sleeves through which carbon monoxide was discharged outside. The eroded sleeves permitted the carbon monoxide to escape through the concrete block walls to the ceiling and back into the room.
The appellant Wisconsin Power and Light (utility) supplied the natural gas for the heater and serviced it. The utility had converted the space heater from propane to natural gas in approximately 1966.
The appellants Merriman and Clary were employed by the Department of Health and Social Services' (DHSS) Division of Health, in its Hotel and Restaurant Section at the time of the accident. Merriman was the sanitarian for the district including the motel and had inspected the motel. Clary was the chief of the Hotel and Restaurant Section and supervised Merriman's operations.
The utility contends that the trial court erred in instructing the jury that provisions of the administrative code governing heater installation and inspection were safety statutes. Clary and Merriman contend that: (1) the court erred in instructing the jury on the standard of liability applicable to them; (2) the court erred by admitting into evidence a letter written after the accident by Clary to the motel which recommended changes in space heater installation; and (3) they were not liable as a matter of law and public policy. The respondents' cross-appeal asks for prejudgment interest on the award and argues that the trial court erroneously refused to allow amendment of the complaint to provide for punitive damages.
The utility contends that the trial court erred in instructing the jury on Wis.Adm.Code sec. PSC 134.10. It argues that the instruction was redundant and that the regulation and its predecessor rule were not safety statutes imposing any duty of care upon the utility.
The regulation states in part:
Whenever a gas utility is required to enter a customer's premises to re-establish service to relight applicances [sic] due to a non-emergency interruption of service, an inspection of the burner ignition and flame appearance shall be made on each appliance which is relit to check for safety and efficient operation. The utility will be prepared to advise the customer relative to the safety and efficiency of connected appliances.
Wis.Adm.Code sec. PSC 134.10(3)(c). 1 The jury was instructed that "[t]he foregoing legislative enactments are termed 'safety statutes,' and the failure of a utility to comply with a safety standard promulgated by the statute or administrative code provision constitutes negligence."
The instruction was not redundant. While the standard Wisconsin jury instruction--Civil 1002 used by the trial court instructed the jury on general standards of care applicable to the utility, the court's reading of Wis. Adm.Code sec. PSC 134.10(3), illuminated the specific duty placed on the utility for inspection of gas appliances. This was not contained within the standard instruction and its inclusion was necessary for the jury to fully comprehend the duty placed upon the utility.
The utility further argues that the trial court's characterization of Wis.Adm.Code sec. PSC 134.10, as a safety statute is error and that the rule was not intended to place any liability upon the utility. For administrative regulations to be deemed safety statutes, 2 "it must appear that the [regulation] was designed to prevent the kind of harm inflicted and that the person ... injured was within the class sought to be protected." [Footnote omitted.] Fleury v. Wentorf, 82 Wis.2d 105, 109-10, 262 N.W.2d 68, 70 (1978). Section PSC 134.10(3) provides that the utility is required to make a safety inspection of an appliance each time the customer's service is interrupted and the utility is required to reestablish service. Testimony by a utility employee stated that an inspection was not made when service was interrupted for a non-emergency meter change on April 20, 1977.
A statement made by the Public Service Commission (PSC) in a written revision of standards for gas service suggests that Wis.Adm.Code sec. PSC 134.10(3), was not intended to place liability upon the utility. See In the Matter of ... Proposed Revision of the Standards for Gas Service, No. 2-U-594 (PSC December 30, 1976). The obligation of the utility to make a safety inspection, however, is clearly stated in sec. PSC 134.10(3). Interpretation of a regulation is governed by its language. Where its meaning "is clear and unambiguous on its face, then resort to extrinsic aids for the purpose of ... construction is improper." State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12, 15 (1981). 3 "[R]eference to ... [regulative] history cannot be made for the purpose of rendering a [regulation] ambiguous." Id. at 45-6, 306 N.W.2d at 15. Section PSC 134.10(3) was intended to prevent this type of accident to motel guests such as the respondent. It imposes a specific duty, the violation of which is negligence. Accordingly, we hold that the trial court's instructions properly stated the duty of the utility to make safety inspections when service is interrupted or an appliance must be relit.
The utility also contends that the trial court erred by instructing the jury on the location of the outside air intake. The court instructed the jury as follows:
You are further instructed that the 1954 Wisconsin Administrative Code required that "all outside air intakes shall be located not less than 2 feet above the outside grade and above roofs and similar areas."
This code provision was in effect at the time the space heater was installed. The utility contends that this language was taken from a provision that applied only to central heating and ventilating systems and was inapplicable to space heaters. See Wis.Adm.Code sec. Ind 24.5860 (1954).
The title to Wis.Adm.Code sec. Ind 24.5860 (1954), is "Heating and Ventilation Equipment" which on its face has general application. Portions of the code were applicable to central heating systems only, such as the reference to boiler or furnace rooms contained in sec. Ind 24.5860.7 entitled "outside air intakes for combustion." Other provisions, however, apply generally to "all outside air intakes." See sec. Ind 24.5860.4. Nothing in sec. Ind 24.5860 restricts its applicability to central heating and ventilating systems. Space heaters are not explicitly excluded from coverage. The purpose of the requirement that air intakes be placed two feet above grade is to protect against carbon monoxide poisoning fostered by clogged intakes. This purpose is applicable to space heaters as well as to central heating and ventilating systems. We conclude that the trial court did not err in instructing the jury on sec. Ind 24.5860.
Testimony and the language of the instruction made it clear that the applicability of these code provisions was limited by subsequent changes. The jury was advised of the changes and was not misled with regard to the applicability of the code. We do not address the contention of the appellants Clary and Merriman, which was not raised by the utility, that the installation contrary to Wis.Adm.Code sec. Ind 24.5860 (1954) was not causal because had the heater been installed in conformity to the code the accident might have happened sooner. Cf. Butler v. The State, 102 Wis. 364, 365-66, 78 N.W. 590, 590 (1899) ().
Clary was the supervisor of the Division of Hotels and Restaurants within DHSS and Merriman was the division inspector responsible for the district which included the motel. "The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty." [Footnote omitted.] Lister v. Board of Regents, 72 Wis.2d 282, 300, 240 N.W.2d 610, 621 (1976). An exception to the immunity accorded public officers is the liability for the negligent performance of "ministerial" acts. This exception to immunity was stated in Lister, 72 Wis.2d at 300-01, 240 N.W.2d at 621-22:
The most generally recognized exception to the rule...
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