Peplinski v. Fobe's Roofing, Inc.

Decision Date12 May 1995
Docket NumberNo. 93-0568,93-0568
Citation193 Wis.2d 6,531 N.W.2d 597
PartiesRobert PEPLINSKI, Plaintiff-Appellant-Petitioner, v. FOBE'S ROOFING, INC., a Wisconsin corporation and CNA Insurance, a foreign insurance corporation, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioner there were briefs by Vincent A. Maeder, Jerome A. Maeder and Jerome A. Maeder, S.C., Wausau and oral argument by Jerome A. Maeder & Vincent A. Maeder.

For the defendants-respondents there was a brief by Mark P. Wendorff and Patterson, Richards, Hessert, Wendorff & Ellison, Wausau and oral argument by Mark P. Wendorff.

WILCOX, Justice.

This case involves review of a published decision of the court of appeals which affirmed a decision of the circuit court for Portage County, Honorable John V. Finn, Judge. See Peplinski v. Fobe's Roofing, Inc., 186 Wis.2d 308, 519 N.W.2d 346 (Ct.App.1994). The court of appeals affirmed a judgment entered on a jury verdict finding that Fobe's Roofing, Inc. was not negligent in a work-related accident in which Robert Peplinski was injured. On review, we consider the following issues:

(1) What is the appropriate standard for reviewing the question of whether a res ipsa loquitur jury instruction should have been given by the circuit court?;

(2) Did the circuit court err by not granting Peplinski's request for a res ipsa loquitur jury instruction?;

(3) Did the circuit court err in denying Peplinski's request for jury instructions relating to "lookout," "management and control," and the specific duties of Fobe's Roofing to Peplinski pursuant to a modified version of WIS JI-CIVIL 1022.2 and 1022.4?

The court of appeals concluded that the circuit court made no errors in regard to the jury instructions. See Id. at 314-22, 519 N.W.2d at 348-51. We affirm.

On July 6, 1990, Robert Peplinski was working as a plumber for Kohl's Plumbing and Heating, Inc. on a project at the University of Wisconsin-Stevens Point. During the course of his work installing a toilet, a large cast iron pipe fell from the rafters of the ceiling onto Peplinski's hand, causing severe injuries. Several weeks earlier, Peplinski had installed the pipe in such a manner that a portion extended through the ceiling. To accomplish this task, he had bolted "unistruts" to the pipe and laid them across the joists in the rafters of the ceiling. The unistruts rested on the bottom of the ceiling rafters but were not clamped or wired to them. Thus, for the pipe to fall, the unistruts had to move off of the bottom of the ceiling rafters.

Following its fall from the ceiling rafters, the pipe was discarded as construction refuse. Consequently, no detailed inspection was able to be made of the pipe. Further, precise measurements of the size of the hole in the ceiling, the length of the unistrut, and the length of the pipe extending beyond the ceiling were not obtained. Measurements for these items were contested by the parties at trial. Uncontested, however, is the fact that between the time Peplinski installed the pipe and the accident, masons constructed a concrete block wall that extended from the floor to the bottom of the roof deck in the area of the unistruts holding up the pipe. Also undisputed is the fact that Fobe's Roofing was working on the roof at the time of the incident and had in its control a motorized cart that carried materials across the roof.

Peplinski subsequently brought an action against Fobe's Roofing asserting that its negligence was the cause of his injuries. In October 1992, a jury trial was held on the matter. During the proposed jury instruction conference Peplinski asked the circuit court to include a res ipsa loquitur instruction. The circuit court declined:

With respect to Res lpsa, the court rules that, or is ruling that instruction should not be given because the plaintiff's theory is a specific act of negligence of the employee of the defendant, that is the hitting of the stack pipe on the roof of this building by a defendant's employee. There is no evidence in the record of some other type of negligent conduct on the part of the defendant, and ... I think that the Supreme Court has stated that the Res lpsa instruction should not be given in a circumstance where the plaintiff has proven, submitted substantial proof in support of the plaintiff's theory that it was a specific act of negligence on the part of the defendant, rather than a Res lpsa situation where no specific act of negligence is proven.

The circuit court also denied Peplinski's request for the following jury instructions specifying the duty and liability of Fobe's Roofing: (1) a modified and combined WIS JI-CIVIL 1055, "Lookout;" and WIS JI-CIVIL 1105, "Management and Control;" and (2) a modified and combined version of WIS JI- CIVIL 1022.2 and 1022.4, "Negligence of General Contractor: Increasing Risk of Injury to Employee of Subcontractor" and "Negligence: Contractor." Instead, the circuit court gave the jury the general negligence instruction as to both parties. The circuit court also gave the jury an instruction relating to the duty of a contractor, WIS JI-CIVIL 1022.4.

The jury returned a verdict finding no negligence on the part of either Peplinski or Fobe's Roofing. Following motions after verdict, judgment was entered on the verdict in favor of Fobe's Roofing dismissing Peplinski's complaint "on the merits, with prejudice, together with costs and disbursements of this action." Peplinski appealed to the court of appeals which affirmed the circuit court in all respects. Peplinski filed a petition for review which was granted. Further facts necessary for a resolution of the case are set forth below.

This case requires us to revisit the troubling question of what the appropriate standard of review 1 is when considering whether the evidence adduced at trial is sufficient for the circuit court to give a res ipsa loquitur instruction to the jury. The parties point out that this issue has been raised previously in both the court of appeals and the supreme court and there is, to say the least, inconsistency of opinion. Our task then is to trace and clarify the law on the issue.

The doctrine of res ipsa loquitur has long been a part of Wisconsin jurisprudence. For example, in Weggeman v. Seven-Up Bottling Co., 5 Wis.2d 503, 509, 93 N.W.2d 467, 472 (1958), we noted that the procedural effect of res ipsa loquitur in Wisconsin is that of a permissible inference rather than a rebuttable presumption. Further, in Ryan v. Zweck-Wollenberg Co., 266 Wis. 630, 649, 64 N.W.2d 226, 231 (1954), we explained that three elements must be present before the application of the doctrine is appropriate: (1) the accident must be of a kind that ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. 2 Interestingly, however, not until 1963 did this court specifically address the question of what standard should be utilized when reviewing a circuit court's ruling as to the grant or denial of a res ipsa loquitur jury instruction.

In Fehrman v. Smirl, 20 Wis.2d 1, 121 N.W.2d 255 (1963) (Fehrman I ), the plaintiffs appealed a decision by the circuit court to deny them the benefit of a res ipsa loquitur instruction. This court concluded that "[b]ecause of the errors which occurred in the rulings on evidence, and in the instructions, and because we deem plaintiffs were entitled to a proper res ipsa loquitur instruction, we think it probable that justice may have miscarried.... [and] order a new trial...." Id. at 28, 121 N.W.2d at 269. Of more importance here is the fact that on motion for rehearing we explained: "[w]hether the evidence presented warrants the giving of a res ipsa loquitur instruction always presents a question of law for the trial court to pass on." Id. at 28b, 122 N.W.2d at 439. Peplinski contends that based on the doctrine of stare decisis, this first pronouncement concerning the applicable standard of review should control, i.e., the standard of review should be de novo because we declared that whether the evidence warrants the giving of a res ipsa loquitur instruction "always presents a question of law."

One year after Fehrman I, this court revisited the res ipsa loquitur issue in Fehrman v. Smirl, 25 Wis.2d 645, 131 N.W.2d 314 (1964) (Fehrman II ). In reviewing the decision of the circuit court to give an instruction on res ipsa loquitur, we stated:

When proof of negligence is offered, the trial judge, in contemplating the instructions which he will give to the jury, must evaluate the testimony to determine if there has been such substantial proof of negligence as to render superfluous the giving of an instruction on res ipsa loquitur. Sometimes the question as to the adequacy of the proof of negligence will be a close one; it will be within the sound discretion of the trial judge to determine whether the giving of the instruction will be redundant.


In any event, in the instant case, it was not an abuse of discretion for the trial court to have given the res ipsa loquitur instruction.

Id. at 653, 131 N.W.2d at 318 (emphasis added). Thus, just one year after Fehrman I, this court apparently changed course on the applicable standard of review for rulings concerning a res ipsa loquitur instruction.

Subsequent to Fehrman I and Fehrman II, several cases have been decided wherein the issue of the standard of review for res ipsa loquitur instructions has been considered either directly or indirectly by this court. These cases, while not split equally on the issue, express views adopting both a de novo and erroneous exercise of discretion standard of review. For example, in Kelly v. Hartford Casualty Ins. Co., 86 Wis.2d 129, 139, 271 N.W.2d 676, 681 (1978), this court stated...

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