Viola v. Wis. Elec. Power Co.

• Decision Date: 27 December 2013
• Docket Number: No. 2013AP22.,2013AP22.
• Citation: 842 N.W.2d 515,352 Wis.2d 541,2014 WI App 5
• Parties: Anthony VIOLA, Individually and as Special Administrator of the Estate of Robert Viola and Christopher Viola, Individually, Plaintiff–Appellant, v. WISCONSIN ELECTRIC POWER CO., Defendant–Respondent, Allied Insulation Supply Co., Inc., Foster Wheeler Energy Corporation, General Electric, Metropolitan Life Insurance Company, Oakfabco, Inc., Owens Illinois, Inc., Rapid American Corporation and Trane US, Inc., Defendants.
• Court: Wisconsin Court of Appeals

352 Wis.2d 541

842 N.W.2d 515

2014 WI App 5

Anthony VIOLA, Individually and as Special Administrator of the Estate of Robert Viola and Christopher Viola, Individually, Plaintiff–Appellant,

v. WISCONSIN ELECTRIC POWER CO., Defendant–Respondent,Allied Insulation Supply Co., Inc., Foster Wheeler Energy Corporation, General Electric, Metropolitan Life Insurance Company, Oakfabco, Inc., Owens Illinois, Inc., Rapid American Corporation and Trane US, Inc., Defendants.

No. 2013AP22.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 5, 2013.

Opinion Filed Dec. 27, 2013.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert G. McCoy of Cascino Vaughan Law Offices, of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of James A. Niquet, Travis J. Rhoades, and Stacy K. Luell of Crivello Carlson S.C., of Milwaukee.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

CURLEY, P.J.

¶ 1 Anthony Viola, individually and as special administrator of the estate of his father, Robert Viola, and Christopher Viola ¹ appeal the trial court's grant of summary judgment on the claim asserted against Wisconsin Electric Power Company for violation of the Safe Place statute, Wis. Stat. § 101.11 (2009–10).² Viola sued Wisconsin Electric under the Safe Place statute, alleging that the presence of asbestos in the air during and following routine repairs to Wisconsin Electric's buildings constituted an unsafe condition associated with the premises. Viola also alleged that Wisconsin Electric had actual and/or constructive notice of the condition, but failed to take any steps to remedy it. On appeal, Viola contends that the trial court erred in concluding that the presence of asbestos in Wisconsin Electric's premises as alleged in Viola's amended complaint was not an “unsafe condition,” but rather, a negligent “act of operation” barring recovery. We agree with Viola, and therefore reverse and remand for trial.

Background

A. Nature of the Case

¶ 2 Robert Viola worked as an insulator or “pipe coverer” from the mid–1950s to the early 1980s. Over the course of twenty-five years, he worked for various companies, and some of the projects on which he worked were located at properties owned by Wisconsin Electric. While working in buildings owned by Wisconsin Electric, Viola was exposed to asbestos dust, which was released into the air when asbestos-containing insulation was installed, removed, and/or replaced. As a result of his asbestos exposure, Viola developed malignant mesothelioma in May 2009 and died in December of that year. Viola sued numerous defendants, including Wisconsin Electric, for negligence relating to his asbestos exposure.

B. Allegations Against Wisconsin Electric

¶ 3 As pertinent to this appeal, Viola's amended complaint alleged the following with regard to Wisconsin Electric:

Defendant Wisconsin Electric Power Company is a Wisconsin corporation and at all times was or is doing business within the State of Wisconsin, under the name Wisconsin Electric Power Company....

This claim is asserted against the following defendants (collectively the premises defendants) who owned premises at which decedent may have been exposed to asbestos:

a. A.O. Smith Corporation;

b. Rockwell Automation, Inc.;

c. Miller Brewing Company;

d. Pabst Brewing Company;

e. Wisconsin Electric Power Company.

Decedent [Robert Viola] worked as an employee of independent contractors in places of employment owned and/or controlled by the premises defendants.

During times when decedent was working at the premises, asbestos products were being installed or removed so as to create the condition of airborne asbestos on a regular and frequent basis.

Defendants knew of the condition of airborne asbestos in the workplace.

Defendants knew or should have known of the health hazards of asbestos.

During decedent's employment at the premises, each defendant owed a duty to furnish and maintain a place of employment as safe as the nature of its business would reasonably permit as set forth under the common law and codified in Wisconsin Statute § 101.11, titled “Employer's duty to furnish safe employment and place.”

Defendants violated their duty to furnish a safe workplace for decedent in one or more of the following ways:

a. failing to adequately warn decedent of the dangers of harm from exposure to asbestos;

b. failing to instruct decedent adequately about safety precautions for exposure to asbestos;

c. failing to establish adequate safety measures to protect decedent from exposure to asbestos;

d. failing to adequately test for asbestos where decedent worked;

e. employing any contractor which failed to take reasonable precautions against the danger of asbestos;

f. allowing the use of asbestos containing products at the premises;

g. failing to assign or hire personnel qualified to recognize, evaluate and control asbestos exposures at the premises.

As a direct and proximate result of the acts and omissions of the premises defendants above, decedent and plaintiffs were injured as described above.

(Some punctuation added; some numbering omitted.)

C. Discovery

¶ 4 Discovery yielded numerous facts supporting Viola's claim, none of which Wisconsin Electric has contradicted.³ These facts, which we derive from Viola's appellate brief, are supported by the record.

¶ 5 For example, Viola submitted evidence that, as a result of the installation, repair, and removal of asbestos-containing products, he was in constant contact with asbestos dust while working in Wisconsin Electric's buildings:

The ... facilities where the decedent Robert A. Viola worked in the 1960's were filled with airborne asbestos. In those days [Wisconsin Electric] contractually required that its power generation equipment, transmission conduits, and other fixtures be insulated with asbestos. At [Wisconsin Electric]'s Oak Creek Power Plant, more than

423,924 square feet—the equivalent of over seven football fields—of asbestos block insulation, more than 95,765 feet—over 18 miles—of asbestos covering material, and at least 7,204 bags of asbestos cement were affixed to the structures....

All the tradesmen—pipe fitters, welders, steel workers, electricians, mechanics, construction workers, as well as [Wisconsin Electric]'s own employees—were constantly exposed to airborne asbestos. At Oak Creek Unit 5, where Mr. Viola worked “twelve hours a day” for about eight months, large numbers of people from different trades toiled together in partially enclosed spaces where the release of asbestos dust would circulate for all the workers to breath[e].

....

The men and women who worked at [Wisconsin Electric]'s Oak Creek plant were regularly exposed to other types of asbestos products such as magnesia covering material. When the boilers or turbines went off-line, called “outages,” old magnesia covering insulation had to be torn off and new material was applied. This product was required by [Wisconsin Electric]'s contract specifications to have “not less than 10% long asbestos fibers”.... The magnesia covering “came in a bag,” and people who toiled on the turbine maintenance work, like Mr. Viola, were exposed to this “fibrous, flaky material” that was “very dusty.”

....

At the end of one of his twelve-hour shifts, Mr. Viola's clothing matched [Wisconsin Electric]'s own published description of workers “dipped in flour.” His clothes would be covered in the insulation material [Wisconsin Electric] mandated be used to protect its structures: “you would be very dusty.”

¶ 6 The evidence included the following testimony from Viola's deposition:

Now I could be working on the very far end of that powerhouse, and I could be mixing a mud box of asbestos cements; and there could be six different trades working on the ... other end of that powerhouse and, because on most construction sites there's a draft in the building, this is like a chimney. I mean you throw something up in the air, you're going to see it floating. It doesn't take off, but it floats; and that asbestos fiber mixing in that box got up high enough, or wherever it got up, and just slowly filtered, filtered, filtered, filtered to the other end of that building; and in between its travel, there must have been 40 men breathing in that fiber and not knowing it.

¶ 7 Additionally, Viola submitted evidence that Wisconsin Electric either knew or should have known not only that individualsworking in its buildings were continually exposed to asbestos, but also that this exposure was harmful:

Years before Mr. Viola started to work at [Wisconsin Electric], industry management also knew that asbestos represented a serious hazard to workers. Dr. Henry A. Anderson gave this uncontradicted testimony:

In my opinion, with reasonable medical certainty, by the decades of the 1930s and 1940s it was known or could have been known by the medical community, industry management, workers' compensation insurers and occupational regulatory authorities that asbestos dust inhalation posed a significant human health hazard and that asbestos fibers penetrated deep into the lungs where they persisted, could not be removed, led to irreversible and progressive tissue damage which caused diseases which were incurable and could lead to disability and death.

....

The head of the health and safety department at WEPCO, Russell Selbo, testified that he knew that asbestos insulation was present at the plants:

Q. .... While you were working as a test engineer, you knew asbestos—and this is back in the '40's, early '50's—you knew asbestos was being used at the power plant at Wisconsin Electric; is that right?

A. I knew that the insulating material contained asbestos.

Q. And then you went into the safety department in 1956 with knowledge that asbestos was being used at the Wisconsin Electric power plants including Oak Creek; is that right?

A. I realized that it was contained in the insulation that was being used in the plants.

¶ 8 Viola also submitted...