Transportation Ins. Co., Inc. v. Hunzinger Const. Co.

Decision Date14 September 1993
Docket NumberNo. 92-2349,92-2349
Citation507 N.W.2d 136,179 Wis.2d 281
PartiesTRANSPORTATION INSURANCE COMPANY, INC., Donald Kind and Fran Kind, Plaintiffs-Respondents, v. HUNZINGER CONSTRUCTION COMPANY, a domestic corporation, The Aetna Casualty & Surety Company, Vigilant Insurance Company, Cesarz Company, Inc., and ABC Insurance Company, Defendants-Appellants, v. SCHROEDER & HOLT ARCHITECTS, LTD., a domestic corporation, and Howard Schroeder, individually, Defendants-Respondents, Iglinski, Inc., and West Bend Mutual Insurance Company, Defendants.
CourtWisconsin Court of Appeals

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

This is an appeal from the trial court's grant of summary judgment dismissing cross-claims against an architectural firm and one of its employees. We affirm.

I.

Donald Kind brought this action to recover for injuries he received while working at the Northridge Plaza Shopping Center in April of 1990. According to his second amended complaint, he "was removing cement plaster soffit from the canopy of the shopping center when the suspension system for the soffit suddenly and catastrophically failed." The second amended complaint alleged that the suspension system's failure was caused, inter alia, by the negligence of the shopping center's architects, Howard Schroeder and Schroeder & Holt Architects, Ltd., a successor corporation to Rasche, Schroeder, Holt & Associates, Ltd., the firm that worked on the initial design and construction of the building in 1974, and Hunzinger Construction Company, the project's general contractor. 1

The architects were alleged to be negligent for failing to adequately design the suspension system and supervise its construction both in 1974 and in 1978 when, according to the second amended complaint, there was "additional construction" at Northridge Plaza. Additionally, the second amended complaint alleged that the architects were negligent in failing to "inspect or detect the inadequacy of the suspension system" in 1978. The second amended complaint also alleged that Hunzinger, the general contractor, was negligent for not installing an adequate suspension system in 1974, for not adequately inspecting the suspension system in 1978, and for not adequately installing a suspension system during the 1978 construction. Hunzinger and the subcontractors cross-claimed against Schroeder and Schroeder & Holt "for contribution and/or indemnification" in the event Hunzinger and the subcontractors were found liable to Kind.

Schroeder and Schroeder & Holt filed a motion for summary judgment seeking, as phrased in the motion, judgment in their favor "and against all other parties." In support of the motion, Schroeder submitted affidavits making the following averments:

He was president of Schroeder & Holt.

Kind's accident "occurred on a part of the Northridge Plaza Shopping Center canopy that was originally constructed in 1974, for which [Schroeder] was the responsible architect."

He was also the responsible architect for the 1978 addition to the Northridge Plaza Shopping Center but that the addition "was not part of the canopy on which [Kind]'s accident occurred." 2

At the time of the 1978 construction, he "had no need to inspect the suspension system of the canopy ceiling that was constructed in 1974," and had not been "informed of any problems with the canopy ceiling and had no other reason to foresee that there was any problem whatsoever with the suspension system."

That although the specifications for the 1974 construction omitted "certain details regarding how the soffit should be suspended," it "is customary and ordinary to omit certain details because it is within the common knowledge of the contractor to know how to suspend a soffit ceiling" of the type used in the Northridge Plaza Shopping Center.

"It is ordinary and customary in the architectural profession to omit certain details from specifications, designs and drawings, when it is understood that the omitted information is within the common knowledge of the general and/or subcontractors. If detail is omitted from an architect's specifications, designs or drawings for which the contractor needs further explanation, the contractor knows that it may question the architect when he periodically visits the job site."

That he periodically visited the construction site in 1974 and "was available" to answer any questions that the contractor might have had concerning the suspension of the canopy ceiling.

That as a result of his periodic visits to the job site in 1974, he was "generally aware of how the canopy ceiling was being suspended, and did not note a problem with it."

In 1974, he worked for Rasche, Schroeder, Holt & Associates, Ltd., the directors of which agreed to stop doing business as a firm as of June 30, 1977, but to remain as a corporation "solely for the purpose of collecting receivables and paying outstanding obligations." The corporation was "involuntarily dissolved" by the Wisconsin Secretary of State on June 14, 1988.

On July 2, 1977, Schroeder and Donald Holt formed Schroeder & Holt as a separate corporation.

The Hunzinger employee who was the project supervisor on the Northridge Plaza job testified at deposition that he agreed with the general proposition that architects' drawings were not always as clear as he would like, and agreed that if they omitted a detail so that he was uncertain as to how something should be accomplished he "would feel that [we] should ask the architect." He also testified that how to suspend the canopy was not shown in the architect's drawings for the Northridge Plaza job, and that he never asked the architect how the soffit should be hung. In his deposition, Schroeder acknowledged that the canopy could be dangerous if it were not adequately suspended.

The trial court granted summary judgment to Schroeder and Schroeder & Holt on the design issue, noting that it was undisputed that although Schroeder's plans and specifications for the 1974 construction did not specify how the canopy soffit should be suspended, it was accepted and customary practice in the industry that "the proper method of canopy suspension" be left to the general contractor: "It is wholly undisputed that the custom of the industry was to leave the details of the soffit suspension to the general contractor." (Emphasis in original.)

The trial court also ruled that it believed that Schroeder, in his supervisory capacity, "retained a potential duty of reasonable care to ensure that the soffit was properly constructed and that harm was foreseeable if it was not properly constructed." (Emphasis in original.) Nevertheless, the trial court granted summary judgment to Schroeder and Schroeder & Holt on the supervision issue because Schroeder's work on the

Northridge Plaza job in 1974 was as an employee of Rasche, Schroeder, Holt & Associates. In the trial court's view, there was "no basis in law for maintaining an action against Schroeder & Holt, or Howard Schroeder individually, for the latter's work on the soffit in 1974" because there was "no indication that Schroeder & Holt succeeded to the liabilities of the firm known as Rasche, Schroeder, Holt & Associates, Ltd."

Hunzinger and its insurance carriers, and one of the subcontractors and its insurance carrier, appeal. 3 We affirm.

II.

1. Summary judgment is used to determine whether there are any disputed issues for trial. U.S. Oil Co., Inc. v. Midwest Auto Care Services, Inc., 150 Wis.2d 80, 86, 440 N.W.2d 825, 827 (Ct.App.1989). Appellate courts and trial courts follow the same methodology. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). First, the pleadings are examined to determine whether they state a claim for relief. See ibid. If they do, and if the responsive pleadings join issue, the court must then examine the evidentiary record to determine whether there is a "genuine issue as to any material fact," and, if not, whether a party is thereby entitled to "judgment as a matter of law." Rule 802.08(2), Stats. 4

The well-known purpose of summary judgment is "to avoid trials where there is nothing to try." Rollins Burdick Hunter of Wisconsin, Inc. v. Hamilton, 101 Wis.2d 460, 470, 304 N.W.2d 752, 757 (1981). Summary judgment is thus consistent with the underlying purpose of the rules of civil procedure "to secure the just, speedy and inexpensive determination of every action and proceeding." Rule 801.01(2), Stats. In a real sense, it is akin to the motion for dismissal at the end of a plaintiff's case-in-chief, which the trial court should grant if "there is no credible evidence" in support of the elements on which the plaintiff bears the burden of proof, Rules 805.14(1) & (3), Stats.; see Christianson v. Downs, 90 Wis.2d 332, 337, 279 N.W.2d 918, 921 (1979), but comes at an earlier stage in the proceedings.

Just as a defendant moving for dismissal at the close of the plaintiff's case must demonstrate that the evidence is insufficient to sustain the plaintiff's burden on one or more elements of the plaintiff's proof, see Christianson, 90 Wis.2d at 334-335, 279 N.W.2d at 919-920, a party seeking summary judgment must "establish a record sufficient to demonstrate ... that there is no triable issue of material fact on any issue presented." Heck & Paetow Claim Serv., Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834 (1980). The ultimate burden, however, of demonstrating that there is sufficient evidence to either continue with the trial (in the case of a motion to dismiss at the end of the plaintiff's case) or to go to trial at all (in the case of a motion for summary judgment) is on the party that has the burden of proof on the issue that is the object of the motion. Thus, Christianson held that a motion to dismiss was properly granted because the plaintiffs in that medical-malpractice action had failed to produce...

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