Soletski v. Krueger Int'l, Inc., Appeal No. 2017AP2063

• Citation: 385 Wis.2d 787,924 N.W.2d 207,2019 WI App 7
• Decision Date: 15 January 2019
• Docket Number: Appeal No. 2017AP2063
• Parties: John H. SOLETSKI, Plaintiff-Appellant, State of Wisconsin Department of Health Services, Involuntary-Plaintiff, v. KRUEGER INTERNATIONAL, INC., Federal Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA, Defendants-Respondents, Hartford Underwriters Insurance Company, Defendant.
• Court: Court of Appeals of Wisconsin

385 Wis.2d 787

924 N.W.2d 207

2019 WI App 7

John H. SOLETSKI,^† Plaintiff-Appellant,State of Wisconsin Department of Health Services, Involuntary-Plaintiff,

v. KRUEGER INTERNATIONAL, INC., Federal Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA, Defendants-Respondents,Hartford Underwriters Insurance Company, Defendant.

Appeal No. 2017AP2063

Court of Appeals of Wisconsin.

Submitted on Briefs May 22, 2018

Filed January 15, 2019

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ralph J. Tease, Edward J. Vopal and Susan R. Tyndall of Habush, Habush & Rottier, S.C., Waukesha.

On behalf of the defendants-respondents, the cause was submitted on the brief of Robert M. Charles and David H. Weber of Law Firm of Conway, Olejniczak & Jerry, S.C., Green Bay; Kevin A. Christensen of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Milwaukee; and John M. Thompson of Everson, Whitney, Everson & Brehm, S.C., Green Bay.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 John Soletski appeals a grant of summary judgment in favor of Krueger International, Inc., and its insurers, Federal Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA.¹ In this appeal relating to his personal injury action, Soletski contends the circuit court erred by determining that: (1) his safe-place claim was barred by the builder’s statute of repose; (2) his common-law negligence and negligent entrustment claims were barred by the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor’s employee while that employee is performing the contracted work; and (3) Krueger’s claims for taxable costs were not forfeited despite the fact that the judgment was not perfected within thirty days of its entry.

¶2 We conclude the statutory exposure period set forth in the builder’s statute of repose had expired by the time Soletski was injured by a structural defect, and no exception to the statute of repose applies. Therefore, Soletski’s safe-place claim is barred. We also determine that Soletski’s negligence claims are barred by the independent contractor rule as set forth in Wagner v. Continental Casualty Co. , 143 Wis.2d 379, 421 N.W.2d 835 (1988). Finally, we conclude that when a party timely files a proposed bill of costs within the thirty-day time limit set forth by WIS. STAT. § 806.06(4) (2015-16),² that party’s right to recover costs is not forfeited simply because the circuit court does not resolve an objection to the bill of costs within thirty days. Accordingly, we affirm.

BACKGROUND

¶3 Krueger owns and operates a furniture production facility in Green Bay that was built in 1972. In 2012, Krueger hired Spectrum Maintenance Services, LLC (Spectrum), a professional cleaning company, to clean its facility.

¶4 On September 9, 2012, two of Spectrum’s employees, Soletski and Clifford Couillard, were cleaning the facility’s ceiling. To do so, Soletski and Couillard were positioned on the platform of a scissor lift. Krueger owned this particular lift, but it allowed Spectrum to use the lift in exchange for a credit on Krueger’s final bill. Couillard operated the lift by raising it so that he and Soletski could clean an approximately ten-foot area of the ceiling. After they were done with this area, Couillard lowered the platform, moved the lift forward, and the two repeated their cleaning process. At some point, Couillard unknowingly moved the lift onto an unmarked ramp and then raised the platform. As a result of the platform being raised on top of an incline, the lift overturned and Soletski suffered serious injuries.

¶5 Soletski subsequently made a successful worker’s compensation claim against Spectrum. He also sued Krueger, asserting claims of common-law negligence, negligent entrustment, and violation of Wisconsin’s safe-place statute, WIS. STAT. § 101.11. Soletski claimed, in relevant part, that the ramp where the accident occurred was unsafe due to a lack of both warning markings and guardrails, and that Krueger had failed to properly warn, train and supervise Spectrum employees on the use of the scissor lift.

¶6 Krueger moved for summary judgment, arguing that Wisconsin’s builder’s statute of repose, WIS. STAT. § 893.89, barred all of Soletski’s claims relating to structural defects at Krueger’s facility. Further, Krueger argued that Soletski’s remaining claims were barred by Wagner . The circuit court agreed with Krueger and granted its summary judgment motion.

¶7 On September 6, 2017, the circuit court entered its judgment and dismissed Soletski’s action "with prejudice and statutory costs." Krueger filed proposed bills of costs within thirty days of this entry of judgment.³ Soletski then filed objections, and the circuit court clerk attempted to schedule a hearing on the disputed costs. However, by the time the clerk contacted Soletski to schedule a hearing, thirty days had passed since the entry of judgment. Consequently, Soletski argued that a hearing was unnecessary because Krueger had forfeited its rights to recover costs by failing to timely perfect the judgment under WIS. STAT. § 806.06(4).

¶8 The circuit court rejected Soletski’s argument, and held a hearing on the disputed costs on November 17, 2017, nearly three months after the judgment was entered. The court concluded that Krueger had timely filed its proposed costs within thirty days of entry of judgment, as required by WIS. STAT. § 806.06(4), and therefore awarded Krueger its requested costs. Soletski now appeals.

DISCUSSION

¶9 We review a grant of summary judgment independently, applying the same methodology as the circuit court. Mair v. Trollhaugen Ski Resort , 2006 WI 61, ¶ 14, 291 Wis.2d 132, 715 N.W.2d 598. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). The purpose of summary judgment is to avoid trials when there is nothing to try. Tews v. NHI, LLC , 2010 WI 137, ¶ 42, 330 Wis.2d 389, 793 N.W.2d 860. In reviewing the parties' submissions, we draw all reasonable factual inferences in the light most favorable to the nonmoving party.

Pum v. Wisconsin Physicians Serv. Ins. Corp. , 2007 WI App 10, ¶ 6, 298 Wis.2d 497, 727 N.W.2d 346. Whether an inference is reasonable and whether more than one inference may be drawn are questions of law. Id.

¶10 This case also presents an issue of statutory interpretation, which is a question of law that we review de novo. Mair , 291 Wis.2d 132, ¶ 15, 715 N.W.2d 598. Statutory interpretation begins with the language of the statute; if the language’s meaning is plain, we ordinarily stop the inquiry. Id. The language of a statute is not interpreted in isolation, however; it must be read in the context in which it is used, in relation to the language of surrounding or closely related statutes in a reasonable manner, so as to avoid absurd or unreasonable results. Id.

I. Safe-place claim

¶11 Soletski first argues the circuit court erred in determining that the builder’s statute of repose barred his claim that Krueger violated the safe-place statute, WIS. STAT. § 101.11. The safe-place statute is a negligence statute that imposes, as relevant here, a heightened duty on owners of public buildings to construct, repair and maintain their buildings safely. See Mair , 291 Wis.2d 132, ¶ 19, 715 N.W.2d 598. The statute does not address negligent acts; instead, it addresses unsafe property conditions.⁴ See Megal v. Green Bay Area Visitor & Convention Bureau, Inc. , 2004 WI 98, ¶¶ 9-11, 274 Wis.2d 162, 682 N.W.2d 857.

¶12 There are two types of property conditions for which the owner of a public building can be held liable under the safe-place statute: (1) structural defects; or (2) unsafe conditions associated with a structure. Rosario v. Acuity & Oliver Adjustment Co. , 2007 WI App 194, ¶ 15, 304 Wis.2d 713, 738 N.W.2d 608. A structural defect refers to a hazardous property condition inherent in a structure by reason of design or construction. Id. , ¶ 16. In contrast, an unsafe condition associated with a structure refers to a property feature that was safely designed and constructed but, due to improper repair or maintenance, has become dangerous over time. Mair , 291 Wis.2d 132, ¶ 23, 715 N.W.2d 598.

¶13 For purposes of the builder’s statute of repose, the distinction between these two property conditions is critical because the statute "was intended to apply" to claims relating to structural defects, but not to claims relating to unsafe conditions relating to a structure. Id. , ¶ 28. This distinction reflects that the two types of property conditions result from breaches of two separate statutory duties. Rosario , 304 Wis.2d 713, ¶ 17, 738 N.W.2d 608. Specifically, a structural defect is created by a "breach of the statutory duty to safely construct," whereas an unsafe condition associated with a structure is created by a "breach of the statutory duty to repair or maintain." Id.

¶14 A safe-place act claim that relates to a structural defect is barred by the builder’s statute of repose when the claim is brought after the statutory exposure period.⁵ Mair , 291 Wis.2d 132, ¶ 29, 715 N.W.2d 598. Here, Soletski acknowledges the statute of repose would bar his claims if his injuries were caused "solely by [Krueger’s] failure to mark its ramp when it was designed and installed[.]" Nonetheless, Soletski argues the circuit court erred by concluding that the statute of repose barred his claims related to the unmarked and unguarded ramp because: (1) the ramp was an unsafe condition associated with the structure, not a structural defect; (2) Krueger had a duty to inspect its facility and warn Spectrum about the ramp’s existence; (3) the statute of repose’s maintenance exception, WIS. STAT. § 893.89(4)(c), applies; and (4) his negligence claims are not limited to unsafe property conditions. We discuss each argument in turn.

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