Rabitoy v. Billington
| Decision Date | 16 April 2019 |
| Docket Number | Appeal No. 2018AP270 |
| Citation | 387 Wis.2d 685,2019 WI App 26,928 N.W.2d 804 (Table) |
| Parties | Timothy RABITOY, Plaintiff-Appellant, v. Robert O. BILLINGTON and Billington Contracting, Inc., Defendants-Respondents, ABC Insurance Company and Richard Klobucher, Defendants. |
| Court | Wisconsin Court of Appeals |
¶1 Timothy Rabitoy was severely injured when a truck rolled off a car hoist while he and his friend, Richard Klobucher, were attempting to repair the truck’s transmission. Rabitoy appeals a summary judgment dismissing his claims against the owner of the hoist, Robert Billington (Billington), and Billington’s business, Billington Contracting, Inc. (Billington Contracting). The issues on appeal are: (1) for purposes of Rabitoy’s claim under the Safe Place Act, whether the hoist constituted an unsafe condition associated with Billington’s property—and, if so, whether Billington had notice of this fact; and (2) for purposes of Rabitoy’s other claims against Billington or Billington Contracting, whether Klobucher’s use of the hoist was within the scope of his employment with either of them.1 We affirm.
¶2 The following facts are undisputed for purposes of summary judgment. During all relevant times, Billington was the sole owner of real property located in South Range, Wisconsin ("the property"). Billington used the property to store equipment owned by Billington Contracting, a Minnesota corporation in the business of dredging, as well as crushing and hauling gravel. Billington was a fifty percent owner of Billington Contracting.
¶3 In 2006, Billington purchased a "used" vehicle hoist. The purpose of the hoist was to raise and lower vehicles. Billington installed the hoist in a building located on the property.
¶4 Sometime in 2010 or 2012, Billington allowed Klobucher to move into a residence on the property. Billington did so because he learned that Klobucher—whom he knew through a business contact—had fallen on hard times and was sleeping in his vehicle. Billington did not charge Klobucher rent, and he also paid Klobucher’s electric and cell phone bills.
¶5 In return, Klobucher acted as a "watchman" on the property. He also performed odd jobs for Billington, such as mowing the property’s grass. Further, Klobucher—an auto mechanic by trade—at Billington’s request, repaired vehicles owned by Billington and Billington Contracting located on the property. However, Billington expressly prohibited Klobucher from using the property to do any repair work on third-parties' vehicles. Despite this prohibition, in October 2013, Klobucher allowed Rabitoy to bring a truck onto the property for repairs. Klobucher decided to do so "because I've known [Rabitoy] so long and so well."
¶6 To perform the repair work, Klobucher used the hoist to lift the truck. Klobucher and Rabitoy then went underneath the truck and began an inspection of the truck’s undercarriage. Shortly thereafter, the truck rolled off the front of the lift and pinned Rabitoy to the floor, causing him severe injuries.
¶7 Rabitoy subsequently brought this action against Klobucher, Billington, and Billington Contracting. As relevant to this appeal, he asserted claims of vicarious liability and negligent hiring, training and supervision against both Billington and Billington Contracting. He also asserted a Safe Place Act claim against Billington.2
¶8 Billington and Billington Contracting moved for summary judgment. Following a hearing, the circuit court issued an order granting summary judgment and dismissing Billington and Billington Contracting from the case. Rabitoy now appeals. Additional relevant facts are included below.
¶9 We review a grant of summary judgment de novo. Tews v. NHI, LLC , 2010 WI 137, ¶40, 330 Wis. 2d 389, 793 N.W.2d 860. The summary judgment methodology is well established. Id. , ¶41. We first examine the pleadings to determine whether claims for which relief may be granted have been stated. Id. If so, we examine the moving party’s submissions to determine whether it has made a prima facie case for summary judgment. Id. If a prima facie case for summary judgment exists, we examine the opposing party’s affidavits and other proof to determine whether summary judgment is appropriate. Id.
¶10 Summary judgment must be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2017-18).3 A factual issue is genuine, for purposes of summary judgment, if a reasonable jury could find in favor of the nonmoving party on that issue. Central Corp. v. Research Prods. Corp. , 2004 WI 76, ¶19, 272 Wis. 2d 561, 681 N.W.2d 178. A fact is material when it would influence the outcome of the controversy. Id.
¶11 The purpose of the summary judgment procedure is to avoid trials when there is nothing to try. Tews , 330 Wis. 2d 389, ¶42. In reviewing the parties' submissions, we draw all reasonable inferences in the light most favorable to the party against whom summary judgment was granted. See Pum v. Wisconsin Physicians Serv. Ins. Corp. , 2007 WI App 10, ¶6, 298 Wis. 2d 497, 727 N.W.2d 346 (2006). Whether an inference is reasonable and whether more than one inference may be drawn are questions of law we decide de novo. See id.
¶12 On appeal, Rabitoy first contends that the circuit court erred in dismissing on summary judgment his Safe Place Act claim against Billington. The court concluded Rabitoy’s safe place claim failed because "the undisputed facts establish that the building within which [Rabitoy] was allegedly injured did not constitute ‘a place of employment’ or a ‘public building[.]’ "
¶13 We conclude the circuit court properly granted Billington summary judgment on Rabitoy’s safe place claim, albeit for a different reason. See Mercado v. GE Money Bank , 2009 WI App 73, ¶2, 318 Wis. 2d 216, 768 N.W.2d 53 (). Specifically, we assume without deciding that Billington’s building in which Rabitoy was injured was a place of employment, but we conclude that Rabitoy failed to introduce evidence that created a genuine issue of material fact as to whether a violation of the safe place statute occurred.
¶14 Wisconsin’s safe place statute requires that every employer shall "furnish a place of employment which shall be safe for employees therein and for frequenters thereof[.]" WIS. STAT. § 101.11. This statute imposes a more stringent duty of care than the ordinary care otherwise applicable to one’s conduct. Hofflander v. St. Catherine’s Hosp., Inc. , 2003 WI 77, ¶87, 262 Wis. 2d 539, 664 N.W.2d 545. Nevertheless, it does not render an employer an insurer, nor does it create a duty that is breached simply because an employer’s premises could be made safer. Id.
¶15 An employer may be held liable under the safe place statute for injuries caused by three types of hazardous conditions in a qualifying property: (1) structural defects; (2) unsafe conditions associated with a structure; or (3) unsafe conditions unassociated with a structure. Powell v. Milwaukee Area Tech. Coll. Dist. Bd. , 225 Wis. 2d 794, 811, 594 N.W.2d 403 (Ct. App. 1999). Under the safe place statute, the duty of an employer is broader than that of an owner of a public building, as the latter cannot be held liable for an unsafe condition unassociated with a structure. See Barry v. Employers Mut. Cas. Co. , 2001 WI 101, ¶21 n.4, 245 Wis. 2d 560, 630 N.W.2d 517. Here, we need not decide whether Billington owed Rabitoy the broader duty of an employer or the narrower duty of an owner of a public building. In either case, we conclude Billington was entitled to summary judgment on Rabitoy’s safe place claim.
¶16 In his amended complaint, Rabitoy alleged that Billington violated the safe place statute by "allowing an unsafe condition on his property." To succeed on such a claim, a plaintiff must prove that: (1) there was an unsafe condition; (2) the unsafe condition caused injury; and (3) the owner of the structure had either actual or constructive notice of the unsafe condition prior to the injury. Hofflander , 262 Wis. 2d 539, ¶89. Our supreme court has explained that the requirement that a plaintiff show an unsafe condition is necessary for a viable safe place claim because the statute does not provide relief for "simply negligent acts." Megal v. Green Bay Area Visitor & Convention Bureau, Inc. , 2004 WI 98, ¶23, 274 Wis. 2d 162, 682 N.W.2d 857.
¶17 Here, Rabitoy failed to introduce any evidence establishing the existence of an unsafe condition—much less an unsafe condition that caused his injuries. Rather, his submissions made clear that his safe place claim arose exclusively from allegedly negligent acts by Klobucher. In opposing Billington’s motion for summary judgment, Rabitoy argued that Both of those arguments relate to Klobucher’s potentially negligent acts. They do not relate to unsafe conditions on the premises, and therefore do not fall within the ambit of the safe place statute and Billington’s or Billington Contracting’s potential liability under the statute.
¶18 In his reply brief on appeal, Rabitoy argues there is a disputed issue of material fact as to whether the hoist was an unsafe condition because the hoist "may have failed." In support, he asserts a jury could have concluded that the hoist was in disrepair or defective because: (1) Billington purchased the hoist in a "used" condition and testified in his deposition that he never "put a nickel or a dime into it"; and (2) Klobucher testified in his deposition that the "flaps" on the hoist—which are intended to keep a vehicle in place—only extended upward two, rather than the normal three, inches when Rabitoy’s truck was lifted.
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