McGarrity v. Welch Plumbing Co.
| Citation | 312 N.W.2d 37,104 Wis.2d 414 |
| Decision Date | 03 November 1981 |
| Docket Number | No. 80-639,80-639 |
| Parties | , 25 Wage & Hour Cas. (BNA) 1059, 95 Lab.Cas. P 55,363 John E. McGARRITY and Patrick McGarrity, Plaintiffs-Respondents-Petitioners, v. WELCH PLUMBING CO. and the Hanover Insurance Company, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Robert D. Sundby (argued), Jon P. Axelrod and DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, on brief, for petitioners.
Carroll Metzner (argued), and Bell, Metzner & Gierhart, S.C., Madison, on brief, for defendants-appellants.
Bronson C. La Follette, Atty. Gen., and Roy G. Mita, Asst. Atty. Gen.,amicus curiae brief, for the Department of Industry, Labor and Human Relations.
This is a review of an unpublished decision of the court of appeals 1 which reverses the judgment of the circuit court for Dane county, P. Charles Jones, circuit judge, and remands the matter to the circuit court for a new trial on the issues of both liability and damages. We reverse the decision of the court of appeals. We find no error in the trial of the issue of liability, but we hold that the circuit court erred in admitting certain evidence on the issue of damages, and we remand the matter to the circuit court to determine damages under sec. 805.15(6), Stats. 1979-80.
This review arises from a personal injury action brought by Patrick McGarrity, a minor, against Welch Plumbing Company and Hanover Insurance Company. McGarrity was injured while helping his sixteen-year-old friend (Steven Welch) unload pipes from a truck at a Welch Plumbing Company construction and building operation. McGarrity's hand was crushed against a wall while the truck was being driven by Steven Welch. At the time of the accident Steven Welch was an employee of Welch Plumbing Company; McGarrity was not. The parties disagree as to whether Steven Welch was authorized to ask McGarrity to assist in unloading the pipes.
The jury determined that Welch Plumbing Company was 45 percent causally negligent for employing Steve Welch, a minor, 25 percent causally negligent for failing to supervise the boys, and 20 percent causally negligent in the operation of the truck. McGarrity was found 10 percent causally negligent. The jury awarded McGarrity $35,000 in damages.
Although the parties raise several issues in their briefs, we consider only those two issues which were properly preserved for appeal and review, namely (1) did the trial court err in instructing the jury that if Welch Plumbing violated sec. Ind 70.06, Wis.Adm.Code (1969), such a finding is a finding of negligence on the part of Welch Plumbing; and (2) did the trial court err in admitting medical testimony which was expressed in terms of mere possibility and conjecture. 2
In instructing the jury the circuit court defined ordinary care and negligence and advised the jury that a violation of a safety statute constitutes negligence. The circuit court then submitted the following special verdict question and accompanying instruction to the jury:
The second verdict question instructed the jury that if it had answered Question No. 1 "Yes," then it was to answer whether Welch Plumbing Company's negligence was a cause of the accident.
This instruction is based on the rule that violation of a legislative or quasi-legislative enactment is negligence per se. This court has held that when the legislature or an administrative agency prescribes what particular acts shall or shall not be done, the statute or rule may be interpreted as establishing a standard of care, "deviation from which constitutes negligence." Wells v. Chicago & Northwestern Trans. Co., 98 Wis.2d 328, 331-332, 296 N.W.2d 559 (1980); Kalkopf v. Donald Sales & Mfg. Co., 33 Wis.2d 247, 254, 147 N.W.2d 277 (1967); Reque v. Milwaukee & S. T. Corp., 7 Wis.2d 111, 114a, 95 N.W.2d 752, 97 N.W.2d 182 (1959); Prosser, Law of Torts sec. 36, p. 190 (4th ed. 1971).
Welch Plumbing does not dispute the doctrinal validity of the rule of negligence per se. Welch Plumbing contends, however, that the circuit court erred in instructing the jury in using sec. Ind 70.06 of the Wisconsin Administrative Code in determining the standard of care in this negligence action because McGarrity is not within the class of persons protected by the administrative rule. This court has stated that in order for a violation of a safety statute to constitute negligence per se, it must appear that the person or property injured was within the class sought to be protected by the statute or rule. Fleury v. Wentorf, 82 Wis.2d 105, 110, 262 N.W.2d 68 (1978); Restatement (Second) of Torts (1964) secs. 286(a), 288(d) ().
The issue thus posed by the parties in this court, and previously in the court of appeals and in the circuit court, is whether McGarrity, under the circumstances of this case, is protected by sec. Ind 70.06, Wis.Adm.Code and the statutes pursuant to which this rule was promulgated. Interpretation of an administrative rule, like interpretation of a statute, is generally characterized as a question of law. The effect of such a characterization is that on review this court need not defer to the determination of the circuit court or of the court of appeals; the circuit court and the court of appeals are in no better position to interpret the statute or rule than this court.
We begin by analyzing the pertinent statutes and rules in effect on February 25, 1972, the date McGarrity was injured, and their relationship to each other. The key statutory provisions are secs. 103.65, 103.66 and 103.69, Stats. 1969. The rule in issue is sec. Ind 70.06, Wis.Adm.Code.
The circuit court's jury instruction incorporated sec. Ind 70.06, Wis.Adm.Code, which was promulgated by the Department of Industry, Labor and Human Relations (DILHR). This rule designates employments and places of employment deemed dangerous to minors and prohibits an employer from employing or permitting minors to work in such employments. Sec. Ind 70.06 provided as follows:
The legislature has expressly empowered DILHR to create classifications of employments for minors such as found in sec. Ind 70.06, Wis.Adm.Code. by sec. 103.66, Stats. 1969, which authorizes DILHR to fix reasonable classifications of employments and places of employment for minors and to issue orders prohibiting the employment of minors in employments and places of employment prejudicial to minors and to carry out the purposes of secs. 103.65 to 103.82. 3 One of the purposes of sec. 103.65, 4 to which sec. 103.66 refers, is to protect the minor employee, other employees and frequenters. Thus DILHR is authorized by statute to issue orders proscribing certain employment of minors for the purpose of protecting the minor employee, other employees and frequenters.
Although the legislature empowered DILHR to classify employments dangerous or prejudicial to minors, the legislature in sec. 103.69, Stats. 1969, nevertheless set forth its own classification (schedule) of the employments and places of employment deemed dangerous or prejudicial to minors. Sec. 103.69 does, however, provide that the legislatively-mandated classifications are only effective until altered or amended by DILHR pursuant to sec. 103.66(1).
Sec. Ind 70.06, Wis.Adm.Code, quoted above, by its terms expressly alters the legislative classifications set forth in sec. 103.69. Sec. 103.69, Stats.1969, provides inter alia as follows:
Sec. 103.69 speaks of employment and places of employment dangerous or prejudicial to minors. Unlike secs. 103.65 and 103.66, sec. 103.69 does not expressly address the issue of protection...
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