Powell v. Milwaukee Area Technical College Dist. Bd.

• Decision Date: 20 January 1999
• Docket Number: No. 97-3040,97-3040
• Citation: 225 Wis.2d 794,594 N.W.2d 403
• Parties: , 1999 O.S.H.D. (CCH) P 31,793 Rita POWELL, Plaintiff-Appellant, v. MILWAUKEE AREA TECHNICAL COLLEGE DISTRICT BOARD, Wisconsin Electric Power Company and Joe Zauner, Defendants-Respondents, ABC Insurance Co., XYZ Insurance Company and Primecare Health Plan, Inc., Defendants. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 403

594 N.W.2d 403

225 Wis.2d 794, 1999 O.S.H.D. (CCH) P 31,793

Rita POWELL, Plaintiff-Appellant, v. MILWAUKEE AREA TECHNICAL COLLEGE DISTRICT BOARD, Wisconsin

Electric Power Company and Joe Zauner,

Defendants-Respondents,

ABC Insurance Co., XYZ Insurance Company and Primecare

Health Plan, Inc., Defendants.

No. 97-3040.

Court of Appeals of Wisconsin.

Oral Argument Jan. 20, 1999.

Opinion Released March 23, 1999.

Opinion Filed March 23, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Dale R. Nikolay of Law Offices of Dale R. Nikolay, S.C., of Milwaukee, with oral argument by Dale R. Nikolay.

On behalf of the defendants-respondents, the cause was submitted on the brief of Robert P. Ochowicz and Patti J. Kurth of Kasdorf, Lewis & Swietlik, S.C., of Milwaukee, with oral argument by Robert P. Ochowicz.

Before WEDEMEYER, P.J., SCHUDSON and CURLEY, JJ.

CURLEY, J.

Rita Powell appeals from two orders in this negligence case alleging a violation of the Safe Place Statute. One order, granting partial summary judgment to the respondents, concluded that Milwaukee Area Technical College (MATC) had immunity from suit pursuant to § 893.80(4), STATS. The other order, granting summary judgment to the respondents, dismissed all the remaining causes of action.

Originally Powell sued Joe Zauner, her instructor, MATC, and Wisconsin Electric Power Company (WEPCO) after she fell from a utility pole during a line mechanic class offered by MATC held in a yard outside a building owned by WEPCO and partially leased to MATC. ¹ She asserts that the trial court erred in concluding that: (1) this was an appropriate case for summary judgment; (2) Zauner was MATC's loaned employee, thereby qualifying him for immunity from suit pursuant to § 893.80(4), STATS.; and (3) WEPCO, although the owner and lessor of the property, could not be liable under the safe place statute because the pole was a temporary condition maintained and controlled by MATC. We conclude that the matter was ripe for summary judgment as there were no disputed issues of material fact. We affirm the trial court's ruling, concluding that, after applying the legal tests to the undisputed facts, Zauner was a loaned employee of MATC engaged in a discretionary act which qualified him for immunity pursuant to § 893.80(4), and WEPCO, as the owner and lessor of the property where the class was conducted, had no safe place statute liability because it had no control over the utility pole or its maintenance.

I. BACKGROUND.

Powell was injured when she slipped and fell approximately six feet from a utility pole during a line mechanic training class offered by MATC. The pole from which she fell was donated by WEPCO and installed by the students in the line mechanic class taken by Powell. The fall occurred outside a building leased to MATC by WEPCO for $10.00 per year. Under the lease agreement, MATC was entitled to use a portion of the building and a garage owned by WEPCO as long as the leased premises were used as a training facility. The lease also required WEPCO to be responsible for janitorial services and maintain and repair the property including the common areas. The instructors for the line mechanic class were Wayne Lohr and Joe Zauner. The instructors were hired by MATC to teach the class but remained paid WEPCO employees.

Powell sued Zauner, MATC, and WEPCO to recover damages for her injuries caused by the fall. She claimed that the parties were negligent under the safe place statute for failing to maintain a safe place of employment. The respondents brought a summary judgment motion in which they asserted that Zauner was a loaned employee of WEPCO and, as such, his negligent acts were the responsibility of MATC, not WEPCO. The respondents further argued that since Zauner was engaged in a discretionary act at the time of the accident, both MATC and Zauner were immune from liability pursuant to § 893.80(4), STATS. ² The respondents also posited that WEPCO could not be held legally responsible, under § 101.11(1), STATS., ³ although it owned the property and leased it to MATC, because the site of the accident was not a place of employment as defined in § 101.01(11). Additionally, WEPCO argued that, as the owner of a public building, it had no liability for maintenance of the pole because the utility pole did not qualify as a structural defect or unsafe condition.

The trial court adopted the respondents' reasoning, finding that Zauner was a loaned employee, and thus, that he and MATC were immune from suit because the alleged negligent acts were discretionary acts immunized by § 893.80(4), STATS. With respect to WEPCO, the trial court found as a matter of law that WEPCO was not responsible because the poles did not represent a structural defect and, additionally, the maintenance of the poles was the sole responsibility of Zauner and MATC. Accordingly, the trial court found WEPCO had no liability.

II. ANALYSIS.

This case arises from a grant of summary judgment. The standard for reviewing summary judgment has been often repeated and we need not repeat it here. See Thompson v. Threshermen's Mut. Ins. Co., 172 Wis.2d 275, 280, 493 N.W.2d 734, 736 (Ct.App.1992). We are obligated to apply the same standard as the trial court. See id. Our review is de novo. See id. Consequently, we will affirm the summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id.

This matter was appropriate for summary judgment.

Powell argues that the record is such that it renders summary judgment inappropriate. She claims that "the determination that the instructors of the line mechanic training program were borrowed servants ⁴ of MATC was an erroneous application of law to disputed facts." A careful look at Powell's reasons for claiming that there are material disputes of fact reveals, however, that it is not the facts which she disputes, but the legal conclusions arrived at when applying the loaned employee test. Powell argues that a dispute exists because evidence in the record established that Zauner was a WEPCO employee, while the respondents argued in their brief in support of their summary judgment motion that he was an employee of MATC. These propositions, however, are not conflicting as both statements were true. Zauner was a paid WEPCO employee who was on loan to MATC to teach. Consequently, he was also an employee of MATC. We conclude there were no disputed material facts and this matter was ripe for summary judgment. See id.

Zauner was a loaned employee of WEPCO.

As noted, Zauner was an employee of WEPCO when he agreed to teach a line mechanic course for MATC. WEPCO claims that Zauner became a loaned employee when he taught the course. We agree.

While ordinarily an employer is responsible for the negligent acts of an employee, if an employee falls into the category of a loaned employee, the borrowing employer (special employer) can be totally responsible for the negligent acts of the loaned employee under certain circumstances. As the respondents accurately state, "The test for determining whether an employee retained his employment with his loaning employer (the general employer) or became the employee of the borrowing employer (the special employer) was first set forth in Seaman Body Corp. v. Industrial Comm'n, 204 Wis. 157, 235 N.W. 433 (1931), and was subsequently applied in Bauernfeind v. Zell, 190 Wis.2d 701, 714-15, 528 N.W.2d 1, 6 (1995)." ⁵

The Seaman test was most recently examined by the supreme court in Borneman v. Corwyn Transport, Ltd., 219 Wis.2d 346, 580 N.W.2d 253 (1998). The Borneman court discussed two aspects of the Seaman test. First, three elements exist which underlie the analysis.

The relation of employer and employee exists as between a special employer to whom an employee is loaned whenever the following facts concur: (a) Consent on the part of the employee to work for a special employer; (b) Actual entry by the employee upon the work of and for the special employer pursuant to an express or implied contract to do so; (c) Power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.

Id. at 353, 580 N.W.2d at 256.

These three elements and the following four questions are closely related, but "most cases interpreting and applying the Seaman test have emphasized the four vital questions rather than the three elements." Id. at 354, 580 N.W.2d at 256. Thus, our analysis will center on the second aspect of the Seaman test:

(1) Did the employee actually or impliedly consent to work for a special employer? [;] (2) Whose was the work he was performing at the time of injury? [;] (3) Whose was the right to control the details of the work being performed? [; and] (4) For whose benefit primarily was the work being done?

Borneman, 219 Wis.2d at 354, 580 N.W.2d at 256.

At the summary judgment motion hearing, Powell conceded that the first three questions of the Seaman test could be answered affirmatively. In her appellate briefs, however, Powell claimed only two of the questions could be answered "yes." She now contends that the special employer did not have the right to control the details of the work performed, and she continues to argue, as she did at the summary judgment motion, that the primary beneficiary of Zauner's work was WEPCO. We are satisfied, however, that under this test, Zauner was a loaned employee.

The record clearly supports a conclusion that Zauner agreed to work for MATC; that he was performing MATC's work by teaching at the time of the injury; that MATC had the right to control the details of Zauner's work; and that Zauner's work was primarily for the benefit of MATC. The undisputed evidence supporting these conclusions consists of Zauner's affidavit wherein he states that, although paid by WEPCO, he became an...