Steinke v. Poppe

• Decision Date: 25 August 2020
• Docket Number: Appeal No. 2019AP2028
• Citation: 949 N.W.2d 888 (Table),2020 WI App 60,394 Wis.2d 188
• Parties: David A. STEINKE, Plaintiff-Appellant, v. Scott R. POPPE, Scott's Septic Pumping, LLC and State Farm Fire and Casualty Company, Defendants-Respondents, Humana Insurance Company, Defendant.
• Court: Wisconsin Court of Appeals

394 Wis.2d 188

949 N.W.2d 888 (Table)

2020 WI App 60

David A. STEINKE, Plaintiff-Appellant,

v. Scott R. POPPE, Scott's Septic Pumping, LLC and State Farm Fire and Casualty Company, Defendants-Respondents,Humana Insurance Company, Defendant.

Appeal No. 2019AP2028

Court of Appeals of Wisconsin.

DATED AND FILED August 25, 2020

PER CURIAM.

¶1 David Steinke appeals a summary judgment dismissing his lawsuit against Scott R. Poppe, Scott's Septic Pumping, LLC, and State Farm Fire and Casualty Company (collectively, "Poppe"). Steinke argues the circuit court erred by concluding, as a matter of law, that after pumping Steinke's septic tank, Poppe did not have a duty to warn Steinke about the poor condition of the septic tank's cover or to take other action to prevent Steinke from falling through the cover into the tank. We agree with the court that the undisputed facts establish Poppe owed Steinke no such duty. We therefore affirm.¹

BACKGROUND

¶2 Steinke purchased a house in Sawyer County in June 2013. The house had a septic tank, which had been installed in 1982. The septic tank was steel, which was typical for septic systems dating from that time. The tank had a cover (or lid) that was flush with the ground and was covered with dirt, which held the cover in place. Steel septic tanks are no longer common. Instead, modern septic tanks are typically made of concrete and have covers that are padlocked and raised above ground level.

¶3 In November 2013, Steinke hired Poppe to pump his home's septic tank. Poppe is a licensed septic tank pumper. He does not, however, repair or inspect septic systems.

¶4 When Poppe arrived at Steinke's property on November 4, 2013, he first spoke with Steinke to obtain directions to the septic tank, as he had never pumped it before. Poppe then went to the area where Steinke told him the septic tank was located and found the tank's lid by poking the ground with a metal rod. Poppe removed the dirt that was covering the lid and noticed that the lid was rusted. He then removed the lid, pumped the tank dry, put the lid back in place, and re-covered it with dirt.

¶5 At his deposition, Poppe testified that after he finished pumping Steinke's septic tank in November 2013, he went back to Steinke's house and told Steinke that his septic tank needed a new lid because the current lid was rusted. Steinke then paid Poppe, and Poppe left the premises. Poppe subsequently submitted a report to Sawyer County indicating that he had pumped Steinke's septic tank and that he did not observe any ponding of wastewater or effluent on the surface of Steinke's property.

¶6 Steinke testified at his deposition that he had no memory of the November 2013 pumping. He conceded, however, that he must have been present that day based on the date of the check he used to pay Poppe. Steinke did not dispute Poppe's testimony that he told Steinke the septic tank's lid needed to be replaced in November 2013; he simply had no memory of that conversation.

¶7 Steinke again hired Poppe to pump his home's septic tank in 2016. On September 9, 2016, Poppe went to Steinke's property and drove directly to the septic tank, as he remembered where it was located. Poppe testified that when he removed the dirt covering the tank's lid, he saw that the lid was still rusted and was in "even worse" condition than before. After Poppe finished pumping the tank, he put the lid back in place and re-covered it with dirt. He did not put a board over the lid or rope off the area. He testified he did not see the lid as "a potential hazard if somebody stepped on it" because he had stepped on the lid when trying to locate it, and nothing happened.

¶8 Poppe testified he knocked on the door of Steinke's house after he finished pumping the septic tank in September 2016, but no one answered. Poppe explained he had intended to tell Steinke again that he needed to replace the tank's lid because it was rusted, which could allow water and dirt to get into the tank. Poppe testified it never occurred to him to warn Steinke that if he stepped on the lid he could fall into the septic tank. He also asserted that it is not his responsibility to tell a homeowner about the condition of their septic tank's lid. He stated, however, that he generally does so as a matter of courtesy.

¶9 Steinke conceded he was home when Poppe pumped his septic tank in September 2016, but he testified he never heard Poppe knock on his door that day. It is undisputed that Poppe left Steinke's property in September 2016 without speaking to Steinke. Poppe again filed a report with Sawyer County indicating that he had pumped Steinke's septic tank and that he did not observe any ponding on the surface of Steinke's property.

¶10 On the morning of October 4, 2016—just under one month after Poppe pumped Steinke's septic tank the second time—Steinke went for a walk around his property. Steinke knew that he was walking in the general vicinity of the septic tank's lid, but he did not know the lid's exact location. When Steinke unknowingly stepped onto the lid, it gave way, and he fell into the septic tank. Steinke testified the fluid in the tank was deep enough to reach his chest. Steinke was in the tank for approximately five and one-half hours before he was able to climb out.

¶11 As a result of his fall into the septic tank, Steinke sustained abrasions on his elbows and knees. At the time of his deposition in August 2018, Steinke testified he no longer had any physical pain associated with the fall. He testified, however, that he suffers from recurring nightmares related to the fall and attends therapy to cope with the fall's mental and emotional effects.

¶12 In December 2017, Steinke filed the instant lawsuit against Poppe, alleging that Poppe had a duty "to repair or to notify ... Steinke ... of problems with the septic system that made it a human health and safety hazard," and that Poppe was negligent by failing to do so. Steinke also alleged Poppe was negligent by failing to "ensure the problems with the septic system which made it a human health and safety hazard were open and obvious or were guarded with a barrier which would prevent humans from falling into the system." Poppe moved for summary judgment, arguing Steinke's negligence claims failed because Poppe did not owe Steinke a duty to inspect the septic tank's cover or to warn him of its rusted condition.

¶13 The circuit court granted Poppe's summary judgment motion. In its oral ruling, the court explained that Poppe was hired to pump Steinke's septic tank, not inspect it. As such, the court reasoned that Poppe's only duties were to "make sure that everything is done in a sanitary manner. That there is not any dangerous spills of the refuse that is in the septic tank. And to make sure that there is not any standing water out on the drain field, or anything like that." The court continued:

There is no requirement from what the Court can see on Mr. Poppe to inform or to inspect and to say, hey, this septic covering is not doing well. It looks like it's in rough shape. And so I somehow I'm going to either flag this septic system or to tell Mr. Steinke that he can no longer use this septic tank until he gets it replaced. That was beyond the scope of what Mr. Poppe was hired to do. He was hired to pump the tank in a professional manner under the statutory code, or the administrative code, and the local ordinances. And by all accounts he did that.

¶14 The circuit court also noted it was undisputed that Poppe had informed Steinke of the lid's rusted condition when he pumped the tank in 2013. The court concluded that doing so "[fell] outside of Mr. Poppe's responsibility as far as what he was hired to do" and was instead "just good business practice." In any event, the court reasoned that even though Poppe had informed Steinke of the lid's condition in 2013, Steinke's fall into the septic tank in 2016 was not "foreseeable."

¶15 The circuit court ultimately entered a written order granting Poppe's summary judgment motion and dismissing Steinke's claims with prejudice. Steinke now appeals.

DISCUSSION

¶16 We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle , 2007 WI App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2) (2017-18).²

¶17 In order to prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care on the part of the defendant; (2) a breach of that duty of care; (3) a causal connection between the defendant's breach and the plaintiff's injury; and (4) actual loss or damage resulting from the breach. Hocking v. City of Dodgeville , 2009 WI 70, ¶10, 318 Wis. 2d 681, 768 N.W.2d 552. Here, the circuit court concluded Poppe was entitled to summary judgment because the undisputed facts established that he did not have a duty to inspect the lid of Steinke's septic tank or to warn Steinke of the lid's rusted condition.

¶18 "Wisconsin has adopted the minority view from Palsgraf v. Long Island Railroad Co. , 248 N.Y. 339, 162 N.E. 99 (1928), which established that everyone owes a duty to the world at large." Hocking , 318 Wis. 2d 681, ¶12. That duty, however, is not unlimited and is instead restricted to what is reasonable under the circumstances. Id. Thus,

[i]f a person, without intending to do harm, acts, or fails to do an act, that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property, he or she is not exercising ordinary care under the circumstances, and is therefore negligent.

Hoida, Inc. v. M & I Midstate Bank , 2006 WI 69, ¶30, 291 Wis. 2d 283, 717 N.W.2d 17. "Ordinary care involves the concept...