Ribarich v. U.S. & J. Leonard Spodek

• Decision Date: 24 March 2015
• Docket Number: 14-cv-735-bbc
• Citation: Ribarich v. United States, 14-cv-735-bbc (W.D. Wis. Mar 24, 2015)
• Court: U.S. District Court — Western District of Wisconsin
• Parties: RHONDA RIBARICH, Plaintiff, v. UNITED STATES OF AMERICA and J. LEONARD SPODEK, Defendants.

RHONDA RIBARICH, Plaintiff, v. UNITED STATES OF AMERICA and J. LEONARD SPODEK, Defendants.¹

14-cv-735-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

March 24, 2015

OPINION AND ORDER

On December 20, 2012, plaintiffRhonda Ribarich was walking across the parking lot to the United States Postal Service building in Beloit, Wisconsin, when she slipped on a patch of ice and fell, sustaining injuries.Plaintiff is bringing this suit against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346, and against private landowner J. Leonard Spodek, alleging that both may be held liable for her injuries undercommon law negligence and the Wisconsin Safe Place Statute.Wis. Stat. § 101.11.

Currently before the court are the government's motion to dismiss the Safe Place Statute claim set out in count II of the complaint, dkt. # 5, and defendant Spodek's motion to join the government's motion and to dismiss the same claim as to him.Dkt. # 7.I will grant the motion to join, but will deny the motion to dismiss on its merits as to defendant Spodek.The government argues that it cannot be held liable under the Wisconsin Safe Place statute because that statute applies only to "employers" and "owners" of a "place of employment" or a "public building" and the United States Postal Service parking lot is neither a "public building" nor a "place of employment" within the meaning of the statute.

Plaintiff did not respond to the argument that the parking lot is not a public building, so I will grant defendants' motion as to that issue.Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926(7th Cir.2007)("A failure to oppose an argument permits an inference of acquiescence and acquiescence operates as a waiver.")(internal quotations omitted).I need not decide whether the parking lot where the accident occurred could qualify as a "place of employment" within the meaning of the Safe Place statute under any circumstances, but I am granting the government's motion because I conclude as a matter of a law that the Postal Service is not an "owner" or "employer" of a "place of employment."However, I am denying the motion as to defendant Spodek because he may be an owner or employer of a place of employment even if the government is not.Accordingly, he will haveto file his own motion if he believes the Safe Place claim against him should be dismissed.

OPINION

The Wisconsin Safe Place statute provides that "[e]very employer and every owner of a place of employment or a public building . . . shall so construct, repair, or maintain such place of employment or public building as to render the same safe."Wis. Stat. § 101.11(1).The statute defines a place of employment as "every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade, or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade, or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit. . . ."Wis. Stat. § 101.01(11).

The question raised by the government's motion is whether the Postal Service is an employer or an owner of a place of employment.In support of its motion, the government makes two arguments: 1) because plaintiff did not allege in her complaint that the post office is a place of employment, this court should disregard her arguments on that point; and 2) the post office cannot be a place of employment within the meaning of the statute because the Postal Service is a governmental organization that is not operated for profit.

A.Notice of the Claim

In its opening brief in support of its motion to dismiss, the government argued that the Safe Place Statute could not apply because the post office parking lot is neither a public building nor a place of employment as defined in the statute.However, in its reply brief, the government argued for the first time that the court should not consider whether the post office is a place of employment because plaintiff did not include this issue in her complaint.Dft.'s Reply Br., dkt. # 13, at 3.

I am rejecting the government's second argument for several reasons.First, the government raised this argument for the first time in its reply brief.Narducci v. Moore, 572 F.3d 313, 324(7th Cir.2009) )(district court entitled to find that argument raised for first time in reply brief is forfeited).Second, the purpose of Rule 8 is to give defendants notice of the plaintiff's claim.Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078(7th Cir.1992).By arguing in its opening brief that the post office is not a place of employment, the government conceded that it knew that plaintiff's complaint was raising that issue, so it cannot argue successfully that it was caught off guard.Finally, even if I agreed with the government that plaintiff should have been more specific in her complaint, that problem could be remedied easily with an amendment.Accordingly, I decline to dismiss this claim on the ground that plaintiff did not provide adequate notice.

B.Merits

1.Relevant law

a. American Exchange Bank

In arguing that the Postal Service may be held liable under the Safe Place statute, plaintiff relies on American Exchange Bank of Madison v. United States, 257 F.2d 938(7th Cir.1958).In that case, the court held that

[t]here can be no question . . . that the post office in Madison was a place of employment. . . .The Madison post office provided all the usual services of a post office.Over 1100 post office boxes were located therein and at least seventy-five persons were employed on the premises.Certainly, a trade or business was being carried on.In addition, the building provided rooms for the Department of Justice, and for the United States district Court and offices pertaining to the operation of that Court.

Id.Without conducting their own analyses, other district courts have relied on American Exchange Bankto find that other post offices in the state qualify as a "place of employment" under the Safe Place statute.E.g., Bean v. United States, 219 F. Supp. 8, 10(E.D. Wis.1963);O'Melia v. United States, 195 F. Supp. 174, 175(E.D. Wis.1961).

The problem with American Exchange Bankand its progeny is that they disregarded a key part of the statute.The fact that the defendant has employees and engages in business is not enough to qualify as an "employer"; the employer must also be acting "for direct or indirect gain or profit."Wis. Stat. § 101.11(1).In cases decided afterAmerican Exchange Bank, Wisconsin courts have "consistently held that in order to be a place of employmentunder [the Safe Place statute], a building must be used for a profit making enterprise."Ruppa v. American States Insurance Co., 91 Wis. 2d 628, 639, 284 N.W.2d 318, 322(1979).See alsoVoeltzke v. Kenosha Memorial Hospital, Inc., 45 Wis. 2d 271, 278, 172 N.W.2d 673, 676(1969)("The critical factor here, place of employment, is dependent on the profit motive of the defendant.");Haerter v. West Allis, 23 Wis. 2d 567, 570, 127 N.W.2d 768, 770(1964)("In the absence of a showing of the profit motive on the part of the city, the city will not be held to the higher standard of care required by the safe-place law.");Kelbley v. Tower Insurance Co., 1989 WL 154395, *3, 152 Wis. 2d 772, 450 N.W.2d 254(Ct. App.1989)(unpublished)("'[P]lace of employment' requires the employment be for 'gain or profit.'The profit motive refers to that of the employer, not that of the employee.");Schmorrow v. Sentry Insurance Co., 138 Wis. 2d 31, 42, 405 N.W.2d 672, 677(Ct. App.1987)("profit motive" is the "critical factor").

Because the court did not consider in American Exchange Bankwhether the Postal Service had a profit motive, in more recent decisions district courts have questioned whether the case remains good law and some courts have declined to follow it.Society Insurance v. United States, No. 11-cv-301-bbc(W.D. Wis.June 12, 2012)(Crabb, J.)("I doubt that American Exchange Bankwould stand in light of the Wisconsin Supreme Court's subsequent construction of the safe place statute.");Burroughs v. United States, 2005 WL 1793590, *1 at n.1(E.D. Wis., July 27, 2005)("I conclude that American Exchange Bank is no longergood law.");Brooks v. United States, 91-cv-142-jcs(W.D. Wis.Oct. 24, 1991)(Shabaz, J.)("In light of the numerous subsequent Wisconsin Supreme Court holdings that non-profit operations can never constitute a place of employment, this court declines to apply American Exchange Bank to this [slip and fall in the post office parking lot] case.").Because I am required to interpret a Wisconsin statute as the Wisconsin Supreme Court would interpret it, James Michael Leasing Co. LLC v. PACCAR, Inc., 772 F.3d 815, 820(7th Cir.2014), I conclude that I must follow Ruppa and the other Wisconsin cases rather than American Exchange Bank.

b. Application of the Safe Place statute to governmental organizations

Although Wisconsin law is clear that a defendant cannot be held liable without a profit motive, there is some uncertainty regarding how that standard is applied in the context of governmental organizations.In Ruppa, 91 Wis. 2d at 639, 284 N.W.2d at 322, the state supreme court held that "[i]nstitutions operated by nonprofit or governmental organizations are not places of employment," suggesting that all governmental organizations are excluded categorically from the Safe Place statute.Id.(emphasis added).Other cases have suggested a similar bright-line rule.Presser v. Siesel Construction Co., 19 Wis. 2d 54, 64, 119 N.W.2d 405, 411(1963)(construction site was not place of employment because it was "under the sole control of the government");Kelbley, 1989 WL 154395, at *3("[A] longline of cases exempts municipal corporations from the provisions governing places of...