Sampson v. Laskin

• Decision Date: 07 January 1975
• Docket Number: 304,Nos. 303,s. 303
• Citation: 224 N.W.2d 594,66 Wis.2d 318
• Parties: Miner SAMPSON, Plaintiff-Respondent, v. Arthur J. LASKIN et al., d/b/a Milwaukee Terminal Bldg., Defendants and Third Party Plaintiffs-Appellants, LIBERTY MUTUAL INSURANCE CO., Third Party Defendant-Respondent. Wayne R. BYDYNKOWSKI, Admr. of the Estate of John R. Bydynkowski, deceased, Plaintiff-Respondent, v. Arthur J. LASKIN et al., d/b/a Milwaukee Terminal Bldg., Defendants and Third Party Plaintiffs-Appellants, LIBERTY MUTUAL INSURANCE CO., Third Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 594

224 N.W.2d 594

66 Wis.2d 318

Miner SAMPSON, Plaintiff-Respondent, v. Arthur J. LASKIN et al., d/b/a Milwaukee Terminal Bldg., Defendants and Third Party Plaintiffs-Appellants, LIBERTY MUTUAL INSURANCE CO., Third Party Defendant-Respondent.

Wayne R. BYDYNKOWSKI, Admr. of the Estate of John R.

Bydynkowski, deceased, Plaintiff-Respondent, v. Arthur J. LASKIN et al., d/b/a Milwaukee Terminal Bldg., Defendants and Third Party Plaintiffs-Appellants, LIBERTY MUTUAL INSURANCE CO., Third Party Defendant-Respondent.

Nos. 303, 304.

Supreme Court of Wisconsin.

Jan. 7, 1975.

Kluwin, Dunphy, Hankin & McNulty, Milwaukee, for appellants.

Demet & Demet, Milwaukee, for plaintiffs-respondents.

Kasdorf, Henderson, Dall, Lewis & Swietlik, Milwaukee (Harold A. Dall & Russell M. Ware, Milwaukee, of counsel), for third party defendants-respondents.

ROBERT W. HANSEN, Justice.

As to the defendants, the jury found them negligent with respect to maintaining the elevator in question, and found such negligence to be a cause of the death and injuries involved. As to plaintiff, John Bydynkowski, the jury found him negligent with respect to his own safety, but found such negligence not to be a cause of his death. As to plaintiff, Miner Sampson, the jury found him negligent with respect to his own safety, but found such negligence not to be a cause of his injuries.

'CAUSE' OR 'LEGAL CAUSE'. With the issue of causation involved, both as to any negligence on the part of the defendants and any properly found negligence on the part of the plaintiffs, we begin with the concept of causation adopted by this court and the test for causation that follows therefrom. In this state negligence is causal if it is a substantial factor in producing the injuries or death complained of. ¹ The cause of an accident is not determined by its most immediate factor. ² The doctrine of proximate cause in the strict sense of that term has been abandoned for the substantial-factor concept of causation to properly express 'cause' or 'legal cause.' ³ Consequently, there may be several substantial factors contributing to the same result. ⁴ The contribution of these factors under our comparative negligence doctrine are all considered and determined in terms of percentages of total cause. ⁵ It follows that, in resolving questions as to causation in the case before us, we will apply what this court has termed '. . . the substantial-factor concept of causation, under which there may be several substantial factors contributing to the same result. . . .' ⁶

NEGLIGENCE OF DEFENDANTS. The sole allegations of liability against the defendants, as owners and operators of the Terminal building facility, were that they did not have the premises in as safe a condition as required by the safe-place statute, ⁷ and that the defendants maintained an elevator with a bypass switching device in violation of the state administrative code. ⁸ The jury finding of negligence on the part of the defendants with respect to maintaining the elevator is not challenged on this appeal. It is clearly sustained by the evidence as is the jury verdict that such negligence on the part of the defendants was a cause, under the substantial-factor test, of the death and injuries involved. While the presence of the bypass switch was not the most immediate factor in causing the falls involved, it was a substantial factor contributing to the result.

NEGLIGENCE OF PLAINTIFFS. The jury found that the plaintiffs, Sampson and Bydynkowski, were negligent with respect to their own safety. That jury finding of plaintiffs' negligence is clearly supported by the evidence. As employees of an independent contractor working upon the premises of an owner, the plaintiffs had the legal status of frequenters working in a place of employment. ⁹ As such, they were under an obligation to exercise ordinary care for their own safety. ¹⁰ As to an employee of an independent contractor working on a roof, this court has said that the question becomes '. . . whether it was reasonable, under the circumstances, for the plaintiff to proceed as he did unaware of the dangers about him,' adding that, '. . . where the plaintiff is preoccupied by his work, momentarily distracted or familiar with the premises, his conduct in relation to the then existing dangers may be reasonable.' ¹¹ We do not deal here with an absorption in work or momentary preoccupation that results in '. . . only a limited ability to watch out for the hazards. . . .' ¹² Here the obvious and apparent hazard was created by the two workmen, not unobserved by them. The court has said that an employee '. . . obviously cannot ignore potential dangers. . . .' ¹³ Neither can he create them. Here the plaintiffs were in control of the conditions at the time of the accident. They placed the elevator in the particular position which exposed the drop to the bottom of the shaft. They put down the plate and they straddled the space between the elevator and the tail gate of the truck. The one who survived testified that he knew that he had grease on the bottom of both of his shoes, and that one foot slipped. One reasonable inference from the testimony is that the falls were caused by the slipping of a grease-covered shoe. Other inferences might include the plate slipping (It was found at the bottom of the shaft.) or the two pushing the heavy barrel losing their balance, but all possible inferences have the plaintiffs in a position of obvious, existing peril which they created. Alternatives to the barrel-moving procedure here followed, such as the use of a smaller pickup truck or of a lifting crane or awaiting procurement of a heavier plate, certainly would have been clumsier and more time consuming, albeit less perilous. Here the plaintiffs selected the means to be used and deliberately placed themselves in a precarious position by trying to push a heavy barrel forward onto a truck, while balancing themselves over an eighteen-inch gap with a twenty-six-foot open pit beneath them. The jury verdict finding negligence on the part of the plaintiffs is upheld.

However, the jury also found that the negligence on the part of the plaintiffs was not a cause of the death and injuries involved. That finding cannot stand. Under the substantial-factor test, the negligence of the plaintiffs, to wit, the acts on their part that resulted in their standing, pushing a heavy barrel, straddling an eighteen-inch gap over a twenty-six-foot drop, one with grease on the bottom of his shoes, certainly was a substantial factor in causing their fall. As a matter of law, they are guilty of contributory negligence, meaning negligence that contributed to their falling as a substantial factor in causing the falling. ¹⁴ In the Mustas Case, involving injuries sustained by an employee of an independent contractor when he walked across a rough concrete floor, the jury found the plaintiff negligent in exercising reasonable care for his own safety, but, as did the jury here, found that such negligence was not causal. Setting aside that jury answer as to lack of causation, this court held: '. . . In the present case a causal connection between Mustas' failure to exercise reasonable care for his own safety to discover the ice and the concrete block is so clear by the the undisputed facts that we must hold as a matter of law it was a substantial factor in producing his fall.' ¹⁵ In the case before us, we hold, as a matter of law, that the negligence found by the jury on the part of the plaintiffs was a substantial factor in causing their falls to the bottom of the elevator shaft. As in Mustas, the jury's finding that the plaintiffs were negligent, and our holding that such negligence under the existing facts was causal as a matter of law, requires reversal and remand for a new trial on the issue of the comparison of negligence between plaintiffs and defendants. ¹⁶

While reversal is required solely on the issue of causation as to plaintiffs' negligence, and although the new trial directed will be limited to the issue of comparative negligence, we will take up the other issues raised on this appeal.

ADMINISTRATIVE CODE. Defendants' claim of error is to the trial court's permitting the safety engineer and state elevator inspector to testify to the violation of the state 'Elevator Code.' ¹⁷ They read the provisions of sec. 35.01, ¹⁸ as controlling and referring to all provisions of the Wisconsin Administrative Code. Plaintiffs maintain the reference to 'this code' pertains only to ch. 35, which is entitled 'Safety in Construction,' ¹⁹ relying in part on the preamble contained in sec. Ind. 35.001. ²⁰ Cases cited by defendants deal with violations of safety provisions contained in ch. 35 and with injuries sustained during new construction. ²¹ The construction sought by defendants would defeat the indicated purpose of ch. 4, which specifies safety standards for elevators in public buildings and places of employment, as set forth in sec. Ind. 4.01. ²² Most chapters of the Wisconsin Administrative Code pertaining to industrial regulations have preambles using the words 'this code,' and we do not read such references as providing that each such was to govern all other chapters. We reiterate that: 'Failure to comply with a general safety order applying to places of employment promulgated by the industrial commission (now ILHR Dept.) constitutes a violation of the safe-place statute.' ²³

NEGLIGENCE OF EMPLOYER. Although Kirby Goodman, the plaintiffs' employer, was not a party to this action, a question in the special verdict was submitted to the jury as to his negligence. The jury found no negligence on his part, and defendants now claim that such employer was negligent as a matter of law. A contention similar to that here raised was presented to this court in a case involving injury to an employee of an independent contractor that resulted from the employee coming in contact with an open, high tension,...