Tatera v. Fmc Corp.

Decision Date20 July 2010
Docket NumberNo. 2008AP170.,2008AP170.
Citation2010 WI 90,786 N.W.2d 810
PartiesWalter TATERA, deceased and Vicki Tatera, individually and as Special Administrator of the Estate of Walter Tatera, Plaintiffs-Appellants,v.FMC CORPORATION, Defendant-Respondent-Petitioner,United Healthcare and American Medical Security, Subrogated Defendants,Kelsey-Hayes Company p/k/a K H Corporation, Defendant.
CourtWisconsin Supreme Court

COPYRIGHT MATERIAL OMITTED

For the defendant-respondent-petitioner there were briefs by Mark S. Des Rochers and Mark Des Rochers, Attorney at Law, LLC, Appleton, and oral argument by Mark S. Des Rochers.

For the plaintiffs-appellants there was a brief by Jill A. Rakauski, Steven R. Penn, and Penn Rakauski, Racine, and oral argument by Jill A. Rakauski.

An amicus curiae brief was filed by James A. Friedman, Josh Johanningmeier, Bryan J. Cahill, and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin Insurance Alliance, and oral argument by Bryan J. Cahill.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of a published decision of the court of appeals 1 that affirmed in part and reversed in part an order of the Milwaukee County Circuit Court, Judge Timothy G. Dugan presiding, which granted summary judgment to FMC Corporation (FMC) on the negligence and strict liability claims brought by Vicki Tatera and the Estate of Walter Tatera, her late husband (collectively Tatera). Tatera seeks to hold FMC liable for Walter Tatera's 2 death from malignant mesothelioma, a cancerous disease which allegedly resulted from his work machining asbestos-containing products supplied by FMC. The court of appeals agreed that FMC was entitled to summary judgment on Tatera's strict liability claim but reversed and remanded on the negligence claim, holding that Tatera presented a prima facie case of negligence under Restatement (Second) of Torts § 388 (1965) and that Wagner v. Continental Casualty Co., 143 Wis.2d 379, 421 N.W.2d 835 (1988), did not bar the claim against FMC. FMC petitioned this court for review, 3 and we accepted. We now reverse the decision of the court of appeals.

¶ 2 As a general rule, a principal employer 4 is not liable in tort for injuries sustained by an independent contractor's employee while he or she is performing the contracted work. Wagner, 143 Wis.2d at 400-01, 421 N.W.2d 835. There are, however, two exceptions to that general rule. If either exception is met, the principal employer may be liable. Consequently, accepting Tatera's allegations as true, we must analyze the two exceptions. Pursuant to the first exception, we must determine whether the principal employer, here, FMC, committed an affirmative act of negligence by negligently (1) failing to warn Walter and his employer of the health hazards associated with asbestos; (2) failing to warn them of the danger and harm of asbestos after the products were supplied; (3) failing to investigate or test for the health effects of asbestos prior to supplying the products; (4) failing to instruct Walter and his employer in the use of precautionary measures relating to asbestos-containing products; or (5) supplying unsafe asbestos-containing products. Pursuant to the second exception, we must determine whether the activity of machining an asbestos-containing friction disk is extrahazardous. If we conclude that either exception applies, Tatera has here presented sufficient facts to state a claim for negligence.

¶ 3 We conclude that Tatera's negligence claim against FMC falls within the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor's employee while he or she is performing the contracted work. In this case, neither of the two exceptions to that general rule applies. First, even accepting Tatera's allegations as true, we conclude that FMC's conduct did not constitute an affirmative act of negligence. Rather, Tatera's allegations of negligence are grounded in FMC's alleged omissions. By definition, the negligent failure to warn, failure to investigate or test, and failure to instruct are omissions, not affirmative acts of negligence. Moreover, the act of supplying asbestos-containing friction disks does not itself constitute an affirmative act of negligence because liability for such an act is necessarily premised in failing to warn, an omission. Second, we conclude that machining an asbestos-containing friction disk does not qualify as an extrahazardous activity because steps may be taken to minimize the risk of injury. Because we hold as a matter of law that FMC is not liable in tort to Tatera, Tatera's negligence claim under Restatement (Second) of Torts § 388 is necessarily barred.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4 Walter Tatera died from malignant mesothelioma on September 20, 2004. Mesothelioma is a rare form of cancer in which malignant cells develop in the mesothelium, a membrane that covers and protects most of the body's internal organs. State v. Harenda Enters., Inc., 2008 WI 16, ¶ 79, 307 Wis.2d 604, 746 N.W.2d 25 (Ziegler, J., dissenting) (citing National Cancer Institute, Mesothelioma: Questions and Answers 1 (2002), http:// www. cancer. gov/ images/ Documents/ 67 e 63 bef- d 6 e 0- 4 c 0 f- 9 c 7 a- e 8 aa 56 ed 969 c/ Fs 6_ 36. pdf). “Most people who develop mesothelioma have worked on jobs where they inhaled asbestos particles.” Harenda, 307 Wis.2d 604, ¶ 79, 746 N.W.2d 25 (Ziegler, J., dissenting) (internal quotations omitted). From fall 1968 through 1993, Walter was employed full-time by B&M Machine Products (B&M), a machining shop owned by his father and located in Hales Corners, Wisconsin.5

¶ 5 In 1967, FMC purchased Stearns Electric Company (Stearns), a Milwaukee-based manufacturer of industrial electric brakes that occasionally outsourced some of its machining work to B&M.6 Stearns' brake systems were comprised of several component parts, many of which were metal. One of the few non-metal component parts was a friction disk,7 which up until 1986 contained some form of asbestos.8 Asbestos-containing friction disks were among the component parts that Stearns supplied to B&M. Walter and other B&M employees machined 9 the asbestos-containing friction disks to achieve a desired size and shape. The friction disks were then returned to Stearns for incorporation into the finished brake systems. It is undisputed that every asbestos-containing friction disk supplied to B&M from Stearns was not manufactured by Stearns. Instead, Stearns purchased the friction disks from several different manufacturers.

¶ 6 According to Richard Hotchkiss (Hotchkiss), who was employed by B&M from 1954 until July 1972, Stearns did not instruct B&M on how to machine the friction disks; instead, Stearns provided B&M with a drawing illustrating only the desired result:

Q [Attorney Des Rochers, counsel for FMC]: ... Before you needed to machine something, you needed to know how to do it; right?
A [Hotchkiss]: Yeah.
Q: Okay. And is it your recollection that there would have been a drawing that showed you how to machine these spacers 10 the very first time that you did it?
A: No.

Q: Okay.

A: There would be a drawing there to show you what it looked like and what the sizes were, and you made it that way.
Q: Okay. There was a drawing that you followed for purposes of machining these spacers; is that right?
A: Yeah. It didn't tell you how to make it, though.
Q: Okay.
A: You could do it anyway you wanted, as long as it turned out like the picture on the-on the drawing.
....
Q: Ste[a]rns [ ] did not tell you how to machine these spacers?
A: No.
Q: They just had a drawing in there that some draftsman had done to show dimensions?
A: Right.

¶ 7 At the time, Hotchkiss was unaware that the friction disks contained asbestos: “I didn't know if they had asbestos in them. At the time, there was no big thing about asbestos.” However, he acknowledged the dust caused by the machining and testified that Walter's father installed a vacuum system to collect the dust in the shop. Hotchkiss wore a surgical mask only [o]nce in a while” and did not train Walter to wear a mask while machining the friction disks:

Q: ... And when you trained [Walter] Tatera how to machine brake linings, did you wear a mask?
A: No.
Q: Did you instruct him to wear a mask?
A: No.

Nevertheless, Hotchkiss reported that Walter wore a surgical mask while machining: “Well, I had a hard time breathing when I wore that mask, so I didn't wear it, probably not as often as I-but [Walter] did wear it.”

¶ 8 Walter died from malignant mesothelioma on September 20, 2004. According to his death certificate, he had been diagnosed with the disease three months earlier.

¶ 9 On September 17, 2004, Tatera filed a complaint against FMC and several other defendants,11 alleging negligence and strict products liability. 12 As to the negligence claim, Tatera alleged that FMC had a duty to exercise reasonable care for the safety of Walter and those who worked with or were exposed to FMC's asbestos-containing products and that FMC knew or should have known that exposure to those products caused disease or death. In particular, Tatera claimed that FMC was negligent by committing “the following acts or omissions” that allegedly caused Walter's injuries:

a. Failed to adequately warn [Walter] or others of the health hazards of asbestos;

b. Failed to warn [Walter] or others of the danger and harm of the asbestos after the products or equipment were installed at the premises;

c. Failed to investigate or test for the health effects of asbestos prior to distribution and sale;
d. Failed to instruct [Walter], his employers or others in the use of precautionary measures relating to asbestos-containing products and/or
e. Manufactured, supplied, installed, or removed unsafe asbestos-containing products.

¶ 10 In its answer, FMC denied the allegations and asserted that it otherwise had no duty to Walter and was immune from Tatera's claims. On that basis, FMC moved for...

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