Kelli Brandenburg v. Robert Luethi ( 2014 )


Menu:
  •                                                                     
    2014 WI 37
    SUPREME COURT            OF     WISCONSIN
    CASE NO.:              2012AP2085
    COMPLETE TITLE:        Kelli Brandenburg and Bruce Brandenburg,
    Plaintiffs-Appellants,
    v.
    Briarwood Forestry Services, LLC,
    Defendant,
    McMillan-Warner Mutual Insurance Company and
    Robert Luethi,
    Defendants-Respondents-Petitioners.
    REVIEW OF A DECISION OF THE COURT OF APPEALS
    
    348 Wis. 2d 265
    , 
    831 N.W.2d 825
    (Ct. App. 2013 – Unpublished)
    OPINION FILED:         June 12, 2014
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         January 15, 2014
    SOURCE OF APPEAL:
    COURT:              Circuit
    COUNTY:             Trempealeau
    JUDGE:              John A. Damon
    JUSTICES:
    CONCURRED:
    CONCUR/DISSENT:     ABRAHAMSON, C.J., BRADLEY, J., PROSSER, J.,
    concur in part; dissent in part. (Opinion
    filed.)
    NOT PARTICIPATING:
    ATTORNEYS:
    For the defendants-respondents-petitioners, the cause was
    argued       by   Thomas    Terwilliger,   with   whom   on   the   briefs   was
    Timothy J. Burnett and Terwilliger, Wakeen, Piehler & Conway,
    S.C., Wausau.
    For the plaintiffs-appellants, the cause was argued by Dan
    Arndt, with whom the brief was Emily Ruud and Arndt, Buswell, &
    Thorn S.C., Sparta.
    
    2014 WI 37
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.     2012AP2085
    (L.C. No.    2011CV57)
    STATE OF WISCONSIN                            :             IN SUPREME COURT
    Kelli Brandenburg and Bruce Brandenburg,
    Plaintiffs-Appellants
    v.                                                              FILED
    Briarwood Forestry Services, LLC and Jeffrey L.
    Steinke,                                                         JUN 12, 2014
    Defendants,                                            Diane M. Fremgen
    Clerk of Supreme Court
    McMillan-Warner Mutual Insurance Company and
    Robert Luethi,
    Defendants-Respondents-Petitioners.
    REVIEW of a decision of the Court of Appeals.                  Affirmed.
    ¶1    N. PATRICK CROOKS, J.      The question we address in this
    case    is    whether    Robert   Luethi,    who      hired      an    independent
    contractor     to   spray   herbicide   on   his     property,        may   be    held
    liable to his neighbors, the Brandenburgs, for the extensive,
    permanent damage they claim the spraying caused to 79 trees on
    adjoining property.         Bruce Brandenburg, who owned property at
    the top of a steep slope above Luethi's pasture, claimed damage
    to all eight trees on his land; Kelli Brandenburg, who also
    No.    2012AP2085
    owned property at the top of the slope, claimed damage to 71 of
    115 trees on her land.
    ¶2     More specifically, we must determine whether this case
    falls into one of the exceptions to the well-settled independent
    contractor rule that states that, in general, "one who contracts
    for the services of an independent contractor is not liable to
    others for the acts of the independent contractor."1
    ¶3     Under     one    of      those       exceptions,              the     "inherently
    dangerous    activity"      exception,          an    employer       of    an     independent
    contractor    may    be     liable    for       the        torts     of    an     independent
    contractor    if    the   activity     of       the        independent         contractor     is
    inherently    dangerous.          This      exception           is    what       the     parties
    disagree about.      Plaintiffs say the exception is good law and it
    applies   here     because    this    activity             is   inherently            dangerous.
    Luethi says that it is not good law and does not apply here.
    Further, he argues that the exception is unworkable and should
    be altered or abandoned altogether.
    ¶4     The    "inherently       dangerous"             exception      has        long   been
    recognized in treatises, in our case law and in case law from
    other    jurisdictions.        The     test          for    whether       an     activity     is
    inherently dangerous has two parts. An activity is inherently
    dangerous 1) if the activity poses a naturally expected risk of
    1
    Lofy v. Joint Sch. Dist. No. 2, 
    42 Wis. 2d 253
    , 263, 
    166 N.W.2d 809
     (1969).
    2
    No.    2012AP2085
    harm and 2) if it is possible to reduce the risk of the activity
    to a reasonable level by taking precautions.2
    ¶5      For the reasons explained below, we see no reason to
    abandon      our    precedent    concerning      the   "inherently      dangerous"
    exception.         It is a widely accepted and long-established rule of
    negligence law that is rooted in good policy.                The rule imposes
    liability on the parties who are in the best position to take
    precautions to avoid harm to third parties where the activity to
    be done is inherently dangerous.
    ¶6      We    therefore    turn    to   the   exception's    application.
    In   some negligence cases, including somewhat unusual negligence
    claims such as the one against Luethi, "[w]e require a plaintiff
    to   plead    facts,     which   if     proved   true,   would    establish    the
    following 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 of the
    duty of care and the plaintiff's injury, and (4) actual loss or
    damage resulting from the [breach]."3
    ¶7      Under Wisconsin law, "every person is subject to a
    duty to exercise ordinary care in all of his or her activities"
    and, therefore, "the elements of duty and breach are usually
    presented to the trier of fact in a question asking whether the
    defendant was negligent, and then the elements of causation and
    2
    Wagner v. Cont'l Cas. Co., 
    143 Wis. 2d 379
    , 392-93, 
    421 N.W.2d 835
     (1988).
    3
    Hoida, Inc. v. M & I Midstate Bank, 
    2006 WI 69
    , ¶23, 
    291 Wis. 2d 283
    , 
    717 N.W.2d 17
    .
    3
    No.     2012AP2085
    damages are addressed."4         Thus, generally, a trier of fact in a
    usual negligence case is presented with three questions: was the
    defendant    negligent?,   was    that   negligence   the   cause    of   the
    harm?, and what are the damages?5         As noted above, this case is
    somewhat different.
    ¶8     The threshold question is whether Luethi may be liable
    for the negligence of the independent contractor he hired to
    spray herbicides.     To answer that, we have to examine the nature
    of the activity itself because if spraying is an inherently
    dangerous activity, then it gives rise to a duty of ordinary
    care for Luethi for the acts of the independent contractor.               If,
    on the other hand, the activity is not inherently dangerous (and
    if no other exceptions apply), the duty of ordinary care is that
    4
    Behrendt v. Gulf Underwriters Ins. Co., 
    2009 WI 71
    , ¶¶3,
    14, 
    318 Wis. 2d 622
    , 
    768 N.W.2d 568
    .
    5
    Id., ¶16.   There we stated:
    In Nichols v. Progressive Northern Insurance Co., we
    reiterated that Gritzner and Rockweit were 'still good
    law in Wisconsin.' There we held that in a negligence
    case, a defendant's conduct is not examined in terms
    of whether or not there is a duty to do a specific
    act, but rather whether the conduct satisfied the duty
    placed upon individuals to exercise that degree of
    care as would be exercised by a reasonable person
    under the circumstances.
    See also Hoida, 
    291 Wis. 2d 283
    , ¶30 n.15 (applying
    Palsgraf minority approach and stating, "[T]he majority
    opinion clearly concludes that [defendants] have a duty to
    exercise ordinary care under the circumstances.   What the
    majority opinion turns on is whether the circumstances of
    this case require [defendants] to undertake all the
    affirmative acts that [plaintiff] requests.").
    4
    No.    2012AP2085
    of the independent contractor, and Luethi cannot be liable for
    the acts of the other person.
    ¶9        In many cases, this determination of whether a given
    activity is inherently dangerous will be one of fact, but in the
    unusual case where the facts are undisputed and no reasonable
    jury could find otherwise,6 it is appropriate to decide it as a
    question of law.            As the relevant suggested verdict form in
    Wisconsin Jury Instruction——Civil 1022.6 notes, "There are times
    when the [question about inherent dangerousness] will not be
    necessary."
    ¶10       The record contains uncontroverted evidence that the
    chemical      used   here    is    capable      of   killing      56   "woody       plant"
    species,      including     oak,    birch,      poplar    and     maple     trees.       It
    therefore poses a "naturally expected risk of harm" to trees on
    neighboring     properties.         The    record     also      contains        undisputed
    testimony and exhibits showing that it is possible to reduce
    that risk by taking precautions.                 Therefore, both parts of the
    inherently dangerous test are satisfied, and we agree with the
    court    of    appeals      that     under      Wisconsin       law,       under     these
    circumstances,       "spraying       the       herbicides       was    an       inherently
    dangerous      activity,     and,    as    a    result,     the    general        rule   of
    6
    See Morgan v. Pa. Gen. Ins. Co., 
    87 Wis. 2d 723
    , 735-36,
    
    275 N.W.2d 660
     (1979) (on the question of causation in a
    negligence case, stating that "whether negligence was a cause-
    in-fact of an injury is a factual question for the jury if
    reasonable men could differ on the issue, and the question only
    becomes one of law for judicial decision if reasonable men could
    not disagree").
    5
    No.    2012AP2085
    nonliability     for    an    independent       contractor's      torts       did   not
    apply."7
    ¶11    The threshold question in the negligence determination
    is resolved here in favor of a determination that Luethi may be
    liable for the acts of the independent contractor on the grounds
    that the spraying here was an inherently dangerous activity——it
    posed a risk of naturally expected harm, and it was possible to
    reduce the risk.         With that question resolved, the negligence
    claim    may    now     proceed,    with       the    plaintiffs         having     the
    opportunity to show that Luethi failed to use ordinary care with
    regard to the activity and that such failure was the cause of
    the damage claimed,8 followed by an appropriate damage question.
    ¶12       This    is    consistent       with   the   approach      applied     in
    Wisconsin      Jury    Instruction——Civil        1022.6     and    the       Suggested
    Verdict Form 1 (Inherently dangerous activity).                          It is also
    7
    Brandenburg v. Luethi, No. 2012AP2085, unpublished slip
    op., ¶24 (Wis. Ct. App. Apr. 23, 2013).
    8
    The suggested verdict form that follows Wisconsin Jury
    Instruction——Civil   1022.6,    Liability   of    one employing
    independent contractor, presents three questions.
    The first is, "Was the work performed                        by    the    (owner)
    (principal contractor) inherently dangerous?"
    The second is, "If you answered 1 "yes," then answer this
    question: Did (owner) fail to use ordinary care in (describe the
    work done)?"
    And the third is, "If you answered question 2 "yes," then
    answer this question: Was that failure to use ordinary care a
    cause of (injury to (third person)) (damage to (third person)'s
    property)?"   A note states, "There are times when the [first]
    question will not be necessary."
    6
    No.    2012AP2085
    consistent with the Restatement sections on which we have relied
    in the prior cases addressing this question.
    ¶13    The   Restatement      sections    describe       a    framework       that
    imposes liability on an employer for the acts of the independent
    contractor where three facts are established: that there exists
    a     naturally     expected   risk       of   harm,   that     there       exists    an
    opportunity to take precautions against the harm, and that the
    employer "knows or has reason to know" that it poses a risk and
    requires precautions.              The concurrence/dissent           rightly points
    out    that    Wisconsin     case    law   clearly     adopts       the   "inherently
    dangerous exception" as described in the Restatement sections
    discussed herein.          However, it is equally clear that Wisconsin
    courts have rejected a strict liability approach in "inherently
    dangerous" cases.           Adopting such an approach would erase the
    distinction between "inherently dangerous" and "extrahazardous
    activity," which we explicitly declined to do in Wagner.                        Wagner
    v. Cont'l Cas. Co., 
    143 Wis. 2d 379
    , 392-93, 
    421 N.W.2d 835
    (1988).
    ¶14    At    this    point    in    the   case,    there       has    been     no
    determination by a trier of fact of what Luethi knew or had
    reason to know about the danger inherent in the work.                        To impose
    strict       liability     would    therefore     contravene        the     applicable
    section of the Restatement and change the law by erasing one
    requirement——making an employer liable for activities even where
    it is not established that the employer knew or had reason to
    know of the danger inherent in the work.                   The lack of clarity
    on the analysis in prior cases is partly due to the fact that
    7
    No.    2012AP2085
    this particular question has not been squarely addressed because
    the application of the "inherently dangerous" exception has been
    mentioned in other contexts rather than being subjected to full
    analysis.      Nevertheless, imposing strict liability without any
    resolution of the knowledge requirement, within the framework of
    the duty of ordinary care, is unsupported by the Restatement
    sections.      This "knows or has reason to know" factor seems to
    come into play on the question of whether Luethi failed to use
    ordinary care with regard to the activity.                        No resolution of
    that    question    has   been    made       at    this   point    in    the    record;
    therefore, the court of appeals correctly stated that the case
    should be remanded for the relevant further determinations to be
    made,   specifically      whether      Luethi      exercised      ordinary      care   to
    prevent damage to the Brandenburgs' property.
    ¶15    We therefore affirm the court of appeals and remand
    this    matter     to   the   circuit        court    for   further       proceedings
    consistent with this opinion.
    I.        BACKGROUND
    ¶16    Luethi hired an independent contractor who sprayed a
    potent herbicide——one capable of killing oak, birch, poplar and
    maple trees and 52 other woody species, according to its label——
    on part of his property to rid it of a plant called prickly ash,
    which   had    grown    thickly       on    the    property,   with      some    plants
    reaching a height of seven feet.                  There was no written contract
    between Luethi and the contractor, and Luethi placed no time
    restrictions on the spraying company.
    8
    No.    2012AP2085
    ¶17     A few days after the herbicide was applied, Luethi's
    neighbors, the Brandenburgs, noticed that leaves were falling
    off    of    the     birch   trees    and    other   plants   on   their    property.
    Based on an investigation that identified the herbicide as the
    cause of the damage,9 they sued Luethi as well as the independent
    contractor,          Briarwood    Forestry,      and    its   employee      and   its
    insurer.10         The only basis in the complaint for the claim was
    that the independent contractor was negligent for failing to
    take       precautions       to   prevent     the    damage   to    their    trees——
    specifically, to keep the chemicals from drifting onto adjoining
    property.
    ¶18     The     circuit       court    for    Trempealeau      County,     the
    Honorable John A. Damon presiding, looked to a six-factor test
    9
    The complaint alleges the following:
    [B]etween July 22, 2008, and October 20, 2008, [an]
    employee of the [Wisconsin Department of Agriculture,
    Transportation, and Consumer Protection] . . . led an
    investigation . . . .   Through laboratory analysis of
    samples taken from the trees and other plants on the
    plaintiffs' . . . property[,] the investigation
    determined that the active ingredient found in Garlon
    4 Specialty Herbicide and Agrisolutions 2,4-D LV4 was
    the direct cause of the total loss and extensive
    damage to said trees and other plants . . . .
    10
    The record shows that a third-party complaint was
    subsequently filed by Briarwood Forestry stating that "[b]ecause
    of a mistake, the policy was issued by [the insurer], excluding,
    rather than specifically including, liability coverage for
    damages related to or resulting from the spray application of
    herbicides."    The complaint stated that Briarwood Forestry
    "believed they had liability insurance coverage for liability
    that may result from or be related to the spray application of
    herbicides" and attributed the mistake to "an error in the
    communication between the agent and the insurance company."
    9
    No.    2012AP2085
    discussed in a case from a Kansas district court that bore some
    factual resemblance to this case in that it also involved a
    claim    concerning     damage   caused     to   plants    by     a     neighbor's
    herbicide spraying.       See Desaire v. Solomon Valley Co-op, Inc.,
    No. 94-1271-PFK (D. Kan., Sept. 14, 1995).                The circuit court,
    applying the factors cited in that case,                  held that spraying
    herbicides was not "abnormally dangerous" or "ultrahazardous."
    Therefore, it held that Luethi had no duty to the Brandenburgs
    and that only the independent contractor could be liable for any
    damage the spraying caused.           The circuit court therefore granted
    Luethi's summary judgment motion.
    ¶19   In making its ruling, the circuit court stated, "I
    can’t find that [under] the language used in Desaire this was
    abnormally dangerous and I can't find this reaches the level of
    ultrahazardous activity[.]"
    ¶20   On appeal, the court of appeals reversed that ruling
    on the grounds that the circuit court had relied on an improper
    standard.    The relevant question was, the court of appeals said,
    whether the activity was inherently dangerous——not whether it
    was   abnormally    dangerous    or    ultrahazardous.           Brandenburg    v.
    Luethi, No. 2012AP2085, unpublished slip op., ¶¶1, 16 (Wis. Ct.
    App. Apr. 23, 2013).
    ¶21   Applying the test for inherently dangerous activities
    that we clarified in Wagner, 
    143 Wis. 2d at 392-93
    , the court of
    appeals concluded       that   "the risk of harm" posed by                spraying
    herbicides "is one that could be naturally expected to arise in
    the     absence    of   precautions."       Brandenburg     v.     Luethi,     No.
    10
    No.    2012AP2085
    2012AP2085, unpublished slip op., ¶22 (Wis. Ct. App. Apr. 23,
    2013).    It also concluded, "Undisputed evidence also showed that
    the risk of harm could be reduced to a reasonable level by
    taking certain precautions."             Id., ¶23.        "Consequently, spraying
    the herbicides was an inherently dangerous activity . . . ."
    Id., ¶24.     Its holding was essentially that no reasonable jury
    could find otherwise on the facts in the record and that the
    circuit   court     had   erred     when    it     used    a    test     derived       from
    Restatement    (Second)     of     Torts,       Section    520.        (We     note    that
    Section 520 had also been the basis for the Desaire court's
    holding.)      As   the    court    of     appeals    noted,      that       Restatement
    section     falls   under       "Strict     Liability"         and     defines        those
    circumstances where there can be liability "without the need of
    a finding of negligence."           Restatement (Second) of Torts                     § 520
    cmt. f (1977).       It therefore reversed the judgment and remanded
    for further proceedings.
    ¶22     We granted review.
    II.    STANDARD OF REVIEW
    ¶23     "Whether      the    circuit    court    has       applied    the    correct
    legal standard is a question of law reviewed de novo."                          Landwehr
    v. Landwehr, 
    2006 WI 64
    , ¶8, 
    291 Wis. 2d 49
    , 
    715 N.W.2d 180
    .                            As
    noted above, the circuit court applied the standard employed in
    Desaire, which, in the course of answering a different question
    presented,     contained        discussion       about     what      factors      courts
    consider in determining "whether a given action is abnormally
    dangerous."    Desaire v. Solomon Valley Co-op, Inc., No. 94-1271-
    PFK at *4 (D. Kan., Sept. 14, 1995).
    11
    No.    2012AP2085
    ¶24    The circuit court granted               Luethi's summary judgment
    motion.      "There is a standard methodology which a trial court
    follows when faced with a motion for summary judgment."                            Green
    Spring Farms v. Kersten, 
    136 Wis. 2d 304
    , 314-15, 
    401 N.W.2d 816
    (1987).      "The first step of that methodology requires the court
    to examine the pleadings to determine whether a claim for relief
    has been stated."       
    Id.
    If a claim for relief has been stated, the inquiry
    then shifts to whether any factual issues exist. Under
    section 802.08(2), Stats., summary judgment must be
    entered "if 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."
    
    Id.
     "When this court is called upon to review the grant of
    a summary judgment motion . . . we are governed by the
    standard articulated in section 802.08(2), and we are thus
    required to apply the standards set forth in the statute
    just as the trial court applied those standards."   
    Id. at 315
    .
    III. DISCUSSION
    ¶25    The claims in this case are simple negligence claims.
    The   only   twist    is    the    fact    that    it     involves   an   independent
    contractor.     The legal principles for negligence cases involving
    independent contractors are discussed in the treatise Prosser
    and Keeton on Torts.          In the section concerning negligence and
    independent contractors, the treatise writers describe how the
    courts moved from a general rule of liability for one hiring an
    independent     contractor        to    the     present    general   rule     of   non-
    liability. W. Page Keeton et al., Prosser and Keeton on Torts
    § 71,   at    509    (5th    ed.       1984).      The     independent      contractor
    12
    No.    2012AP2085
    exception to that general rule appears in its current form in
    cases as early as 1851.            Id. at 509, n.4.           The treatise authors
    state that courts "continue[] to repeat the general rule of
    nonliability      with      exceptions"    and    state       that    the    exceptions
    "overlap and shade into one another." Id. at 510.
    ¶26     The treatise explains the origins of the inherently
    dangerous activities exception, in an 1876 case,11 which held the
    employer       could   be    found    liable     for    the    negligence       of    the
    contractor, and it notes that "'[i]nherent danger' converges not
    only    with    'special     precautions'      but     also    with   'non-delegable
    duty.'"      Id. at 512 n.44.
    ¶27     By 1895, we had recognized as "well-established" both
    the independent contractor rule and the "inherently dangerous"
    exception.        In   a    case     involving    extensive      flood       damage   to
    property allegedly caused by someone opening a dam in order to
    drive logs down a river, we stated that we had "repeatedly held"
    that the well-established general rule is to the
    effect that, where one person employs another to
    furnish the materials and do a specific job of work as
    an independent contractor, he does not thereby render
    himself liable for injuries caused by the sole
    negligence of such contractor or his servants; and
    that the well-recognized exception to such general
    rule, to the effect that where the performance of such
    contract, in the ordinary mode of doing the work,
    necessarily or naturally results in producing the
    defect or nuisance which caused the injury, then the
    11
    The case, Bower v. Peate, 1 Q.B. 321 (1876), "gave rise
    to an exceptional category of work likely to be peculiarly
    dangerous 'unless special precautions are taken.'" W. Page
    Keeton et al., Prosser and Keeton on Torts § 71, at 512 (5th ed.
    1984).
    13
    No.     2012AP2085
    employer is subject to the same                  liability       to   the
    injured party as the contractor.
    Carlson    v.   Stocking,   
    91 Wis. 432
    ,     436,    
    65 N.W. 58
       (1895)
    (emphasis added) (quotations omitted)               (citing earlier cases).
    The rule was stated in that case in the context of a dispute
    about whether the person whose acts had allegedly caused the
    damage was an independent contractor.               Id. at 432.        As detailed
    below, later cases continued the practice of repeatedly citing
    the rule of non-liability with an exception for activities that
    could be characterized as inherently dangerous.12
    ¶28    Nevertheless,    Luethi      argues     that    the    law     does    not
    impose     liability   on   him   for        the   acts    of   the    independent
    contractor in this instance, and if it does, it should not.                         He
    advances two types of arguments. First, he makes a series of
    arguments about why the inherently dangerous exception is not or
    should    not   be   recognized   in     Wisconsin    law,      especially       where
    homeowners are concerned.         Second, he argues that even if the
    exception is recognized by Wisconsin law, it does not apply in
    12
    We agree with the general statement of the inherently
    dangerous exception as set forth by the Chief Justice's
    concurrence/dissent.   Concurrence/Dissent, ¶5.   However, we are
    not convinced that our precedent has fully explained the steps
    applicable   to   the  analysis   of  the   inherently   dangerous
    exception.     For example, in setting forth the inherently
    dangerous exception the concurrence/dissent quotes Brooks v.
    Hayes, 
    133 Wis. 2d 228
    , 
    395 N.W.2d 167
     (1986). However, Brooks
    did not apply the inherently dangerous exception at all;
    therefore, it did not illuminate any analysis in terms of the
    inherently dangerous exception's application.     Instead, Brooks
    concerned the negligence of an independent contractor under "a
    breach of contract theory." 
    Id. at 241
    . In contrast to Brooks,
    our opinion today sets forth the proper analysis in applying the
    inherently dangerous exception to the general rule.
    14
    No.    2012AP2085
    this    case    because     herbicide     spraying        is   not   an    inherently
    dangerous       activity.         The     Brandenburgs         contend     that    the
    "inherently      dangerous"      exception     is   clearly     expressed     in   the
    law, is straightforward to apply, and is consistent with good
    policy.      They argue that it applies on the facts of this case. 13
    We address the arguments in turn.
    ¶29     Luethi   argues    first    that     the    inherently      dangerous
    exception does not control because it "has been a confusing and
    evolving doctrine in Wisconsin, which has been described but not
    applied."       He contends that "no precedent has applied the rule
    the Brandenburgs now seek to resurrect in more than 25 years,"
    that "no applicable precedent subsequent to Lofy14 . . . has
    actually applied the rule in either direction," and that in the
    cases cited, the rule, though stated, has never operated to
    allow recovery for a plaintiff.
    ¶30     Even though there may not be a Wisconsin case on all
    fours with the specific facts in this case, we see no reason
    13
    The Brandenburgs argue, in the alternative, that even if
    a higher standard is required before holding that an employer
    may be liable for the acts of an independent contractor, it is
    met here because spraying qualifies as an extrahazardous
    activity under the test set forth in Wagner, 
    143 Wis. 2d at
    392-
    93   (defining an extrahazardous activity as "one in which the
    risk of harm remains unreasonably high no matter how carefully
    it is undertaken").    Because we resolve this case on the basis
    of the "inherently dangerous" exception to the independent
    contractor rule, we do not address their alternative argument.
    14
    Lofy, 
    42 Wis. 2d 253
    .
    15
    No.    2012AP2085
    that the accepted rule needs to be revisited.15           The law is well-
    founded in the Restatement, very familiar to treatise writers,
    and   often    repeated   in   Wisconsin    cases    dating   to    the   early
    nineteenth century. See Carlson, 
    91 Wis. 432
     (citing earlier
    cases).      In Finkelstein v. Majestic Realty Corp., 
    198 Wis. 527
    ,
    
    224 N.W. 743
       (1929),    which   involved     contractors     apparently
    knocking loose a piece of terra cotta that fell from a balcony
    and killed a child below, the court observed,
    It is conceded that the contractors were independent
    contractors, and that ordinarily the owner cannot be
    held   liable  for   the   negligent  acts  of   such
    contractors. On the other hand, it is also clear that
    there are exceptions to the general rule, which
    consist of cases like the one herein involved, where
    the work itself is inherently dangerous to the public
    . . . .
    Id. at 536-37.
    ¶31     We mentioned the exception again, in 1931, in Medley
    v. Trenton Investment Company, 
    205 Wis. 30
    , 
    236 N.W. 713
     (1931),
    a case in which a landlord was sued for the wrongful death of a
    tenant after a contractor fumigated a neighboring apartment and
    the victim died from exposure to the fumes:
    [I]t does not follow, because the relationship . . .
    was that of independent contractor and employer, that
    the defendant may not be liable. . . . As between
    owners and principal contractors and third persons, it
    seems clear, under our decisions, that the owner or
    principal contractor is not liable for the negligent
    15
    See State v. Kucik, No. 2009AP933-CR, unpublished slip
    op., ¶46 (Wis. Ct. App. Nov. 16, 2010) (Fine, J., concurring)
    ("Simply put, there is no specific on-all-fours case because the
    issue has apparently not come up before now.    That, of course,
    is no reason to not decide the issue.").
    16
    No.    2012AP2085
    acts of an independent contractor unless the act to be
    done or the work to be performed is inherently
    dangerous or naturally or necessarily creates the
    nuisance or the defect . . . .
    Id. at 35-36.
    ¶32    The principle was invoked in Lofy by plaintiffs who
    sought      to   hold   a    school    district     liable       for    the    alleged
    negligence of a bus driver who was an independent contractor.
    Lofy v. Joint Sch. Dist. No. 2, 
    42 Wis. 2d 253
    , 263, 
    166 N.W.2d 809
       (1969).       There     we    noted    the   rule    and    the    "inherently
    dangerous"       exception    and   then     rejected     the    argument     that   it
    applied in that case:
    The general rule is that one who contracts for the
    services of an independent contractor is not liable to
    others for the acts of the independent contractor.
    There are exceptions to the rule, such as where
    services     contracted    for     involve    inherent
    danger . . . .     The operation of a bus between
    Cumberland and Madison over modern highways cannot be
    considered inherently dangerous.
    
    Id. at 263
    .
    ¶33    We have also looked to the Restatement (Second) of
    Torts in prior cases and have examined the principles set forth
    in sections 413, 416 and 427 in resolving questions arising in
    negligence claims involving independent contractors.16
    Sections   416  and   427  impute  the  independent
    contractor's negligence to the principal employer
    irrespective of whether the employer is himself or
    herself at fault on the basis that the dangerous
    16
    Restatement (Third) of Torts, Section 59, states that it
    replaces sections 416 and 427.     Neither party cited to that
    section or in any way relied on it, and we will thus not discuss
    it further.
    17
    No.    2012AP2085
    activities involved give rise            to a nondelegable duty.
    "They arise in situations in              which, for reasons of
    policy, the employer is not              permitted to shift the
    responsibility for the proper            conduct of the work to
    the contractor."
    Wagner, 
    143 Wis. 2d at 391
       (quoting   Restatement (Second)          of
    Torts, Introductory Note to secs. 416-429).                We cited to both
    Prosser    and   Keeton's   treatise    and    the    Restatement      for   these
    principles in Snider v. Northern States Power Co., 
    81 Wis. 2d 224
    , 233, 
    260 N.W.2d 260
     (1977):
    This principle of imposing liability on an otherwise
    immune contracting owner is limited to enterprises in
    which there is a high degree of risk in relation to
    the environment or a specific unreasonable risk to
    third parties. The emphasis is upon the peculiar
    nature of the risk and on the need for special and
    unusual care. Prosser, supra, at 472-73. Restatement
    2d, Torts, in discussing this nondelegable duty,
    refers to "peculiar unreasonable risk" (sec. 413, p.
    384), "peculiar risk" (sec. 416, p. 395), and "special
    danger to others . . . inherent in or normal to the
    work" (sec. 427, p. 415).
    ¶34    As   Snider     recognized,       these   sections      overlap     in
    certain respects.17
    17
    It appears that Section 413 could have potential
    application to the facts of this case; however, the Brandenburgs
    did not allege in the complaint that any harm was caused by
    Luethi. Rather, the sole basis identified in the complaint for
    the claim was the negligence of Briarwood Forestry Services,
    LLC, and its employee for failing to ensure that the herbicide
    was safely applied.    Section 413 is entitled "Duty to Provide
    for Taking of Precautions Against Dangers Involved in Work
    Entrusted to Contractor," and it falls under Chapter 15,
    Liability of an Employer of an Independent Contractor, under the
    heading, "Topic 1, Harm Caused by Fault of Employers of
    Independent Contractors." It states:
    One who employs an independent contractor to do work
    which the employer should recognize as likely to
    create, during its progress, a peculiar unreasonable
    18
    No.   2012AP2085
    ¶35   Section 416 is entitled "Work Dangerous in Absence of
    Special Precautions" and it falls in Chapter 15, Liability of an
    Employer of an Independent Contractor, under the heading, "Topic
    2: Harm Caused by Negligence of a Carefully Selected Independent
    Contractor."   It states:
    One who employs an independent contractor to do work
    which the employer should recognize as likely to
    create during its progress a peculiar risk of physical
    harm to others unless special precautions are taken,
    is subject to liability for physical harm caused to
    them by the failure of the contractor to exercise
    reasonable care to take such precautions, even though
    the employer has provided for such precautions in the
    contract or otherwise.
    Restatement (Second) of Torts § 416 (1965).
    ¶36   A comment to Section 416 states in part:
    There is a close relation between the rule stated in
    this Section, and that stated in § 427, as to dangers
    inherent in or normal to the work. . . . The rules
    stated in the two Sections have been applied more or
    less interchangeably in the same types of cases, and
    frequently have been stated in the same opinion as the
    same rule, or as different phases of the same rule.
    The rule stated in this Section is more commonly
    stated   and   applied  where   the   employer  should
    anticipate the need for some specific precaution, such
    as a railing around an excavation in the sidewalk.
    risk of physical harm to others unless special
    precautions are taken, is subject to liability for
    physical harm caused to them by the absence of such
    precautions if the employer (a) fails to provide in
    the contract that the contractor shall take such
    precautions, or (b) fails to exercise reasonable care
    to provide in some other manner for the taking of such
    precautions.
    Restatement (Second) of Torts § 413 (1965).
    19
    No.    2012AP2085
    The rule stated in § 427 is more commonly applied
    where the danger involved in the work calls for a
    number of precautions . . . .
    Id., §416, cmt. a.
    ¶37    Section    427   is   entitled     "Negligence    as     to   Danger
    Inherent in the Work" and it falls under the same chapter and
    topic heading.     It states:
    One who employs an independent contractor to do work
    involving a special danger to others which the
    employer knows or has reason to know to be inherent in
    or normal to the work, or which he contemplates or has
    reason to contemplate when making the contract, is
    subject to liability for physical harm caused to such
    others by the contractor's failure to take reasonable
    precautions against such danger.
    Id., § 427.      A comment to this section clarifies that, like the
    rule stated in Section 416, "the rule here stated applies only
    where the harm results from the negligence of the contractor in
    failing to take precautions against the danger involved in the
    work itself, which the employer should contemplate at the time
    of his contract."     Id. § 427 cmt. d.        Further, "the rule stated
    here has no application . . . as to negligence in the operative
    details of the work which involve no peculiar risk, which the
    employer may reasonably assume will be carried out with proper
    care."   Id.
    ¶38    The    court     of   appeals      concisely     summarized      the
    applicable     principles   derived    from   our   case    law,    which   has
    consistently referenced the Restatement sections above:
    Following Lofy and Wagner, the  following   principles
    are clear: (1) a principal employer is generally not
    liable for an independent contractor's negligence; (2)
    a principal employer may be liable to a third
    20
    No.    2012AP2085
    party for the independent contractor's negligence, if
    the independent contractor was performing inherently
    dangerous work; and (3) a principal employer may be
    liable to the independent contractor's employee, if
    the          independent         contractor          was
    performing extrahazardous work.    The Brandenburgs are
    not     employees     of    Briarwood.      Thus,     to
    hold Luethi liable     for   Briarwood's     negligence,
    the Brandenburgs must show that Briarwood's work was
    inherently dangerous. Contrary to Luethi's assertions,
    they    need    not    show   that    the    work    was
    extrahazardous. . . .
    If the [circuit] court felt the need to reference the
    Restatement, it should have looked to § 427, which is
    directly on point. . . .
    Under Wagner and the applicable jury instruction, two
    elements   are  necessary   for  an   activity  to  be
    considered inherently dangerous: (1) the activity must
    pose a naturally expected risk of harm; and (2) it
    must be possible to reduce the risk to a reasonable
    level by taking precautions. Based on the undisputed
    facts, we conclude as a matter of law that Briarwood's
    application of herbicides met this standard.
    Brandenburg   v.    Luethi,   No.    2012AP2085,       unpublished    slip    op.,
    ¶¶16, 20, 21, (Wis. Ct. App. Apr. 23, 2013) (citations omitted).
    We agree.
    ¶39     While   it   is   true   that    in   some    earlier     cases   the
    distinction    between    the   categories        of    "extrahazardous"      and
    "inherently dangerous" activities appears unclear, we dispelled
    any confusion on that point in              Wagner, when we specifically
    explained the difference between the two: "We do not regard an
    activity which is inherently dangerous because of the absence of
    special precautions to be synonymous with an activity that is
    extrahazardous.      A person engaged in an activity of the first
    type, i.e., one that is inherently dangerous without special
    21
    No.     2012AP2085
    precautions, can take steps to minimize the risk of injury."
    Wagner, 
    143 Wis. 2d at 392
    .
    ¶40      In short, we have consistently acknowledged the rule
    and the exception that applies here. The lack of cases in which
    the exception has applied in precisely the way it applies here
    does not persuade us that the rule does not exist.18
    ¶41      Luethi also argues that, if the "inherently dangerous"
    exception       is   good    law,     homeowners      and    landowners       should   be
    exempt from its application because no Wisconsin cases dealing
    with this exception have applied it to an individual homeowner.
    For     the     reason      already       given——that       absence    of     factually
    identical cases does not persuade us of the invalidity of the
    rule——we disagree.           Nor has Luethi pointed us to precedent as a
    legal       basis    supporting       a    contrary     rule    if    an     individual
    homeowner is involved.
    ¶42      In a similar vein, he argues that if liability exists
    as    to    a   homeowner,     public       policy    factors19      should    preclude
    18
    We are not unaware that the exception has its occasional
    detractor.    A dissenting opinion in a 1992 Colorado case
    concluded that the exception was impractical and unnecessary and
    stated that "clearer more predictable theories of liability are
    available to address the policy considerations that purportedly
    support the inherently dangerous doctrine." Huddleston by
    Huddleston v. Union Rural Elec. Ass'n, 
    841 P.2d 282
    , 295 (Colo.
    1992) (Rovira, J., dissenting).
    19
    We have summarized those factors as follows:
    In Colla v. Mandella, 
    1 Wis. 2d 594
    , 598–99, 
    85 N.W.2d 345
     (1957) this court first articulated the following
    six public policy factors that could be used by courts
    to limit liability in negligence claims: 1) [T]he
    injury is too remote from the negligence; 2) Recovery
    22
    No.    2012AP2085
    liability under these circumstances.              Specifically, he argues
    that the injury is too remote from the negligence, that the
    injury    is    wildly   out    of     proportion        to   the    tortfeasor's
    culpability, that allowing recovery would place an unreasonable
    burden on the tortfeasor, and that allowing recovery would enter
    a field that has no sensible or just stopping point.                      In support
    of his public policy arguments, he relies on our holdings in
    Casper v. American International South Insurance Co., 
    2011 WI 81
    , 
    336 Wis. 2d 267
    , 
    800 N.W.2d 880
    , and Hoida, Inc. v. M & I
    Midstate Bank, 
    2006 WI 69
    , 
    291 Wis. 2d 283
    , 
    717 N.W.2d 17
    .
    ¶43    In    the   first   case,    Casper,     we    found     the    that   the
    injury was too remote from the negligence to permit a finding of
    liability for Chief Executive Officer (CEO) Jeffrey Wenham, who
    had approved a route that was driven by Mark Wearing, a truck
    driver who, while under the influence of multiple drugs, caused
    a tragic accident:
    [The CEO] did not hire Wearing. He did not train
    Wearing. He did not supervise Wearing. In fact, he
    never met the man driving the truck that collided with
    is too wholly out of proportion to the culpability of
    the negligent tort-feasor; 3) [I]n retrospect it
    appears too highly extraordinary that the negligence
    should have brought about the harm; 4) Allowing
    recovery would place too unreasonable a burden upon
    [the tortfeasor]; 5) Allowing recovery would be too
    likely to open the way to fraudulent claims; or 6)
    Allowing recovery would enter a field that has no
    sensible or just stopping point.
    Fandrey ex rel. Connell v. Am. Family Mut. Ins. Co., 
    2004 WI 62
    ,
    ¶1 n.1, 
    272 Wis. 2d 46
    , 
    680 N.W.2d 345
     (internal quotations
    omitted).
    23
    No.    2012AP2085
    the Caspers' vehicle that day in May. Any negligence
    on [the CEO's] part was remote from the Caspers'
    injury in terms of time, distance, and cause.
    Casper, 
    336 Wis. 2d 267
    , ¶96.
    ¶44   In     Hoida,     the     plaintiff         sought     recovery    from    a
    disbursing agent of money that was disbursed to a subcontractor
    who took $650,000 in construction loan proceeds without doing
    the work.      Hoida, 
    291 Wis. 2d 283
    , ¶43.                  We declined on public
    policy grounds to assign liability to a disbursing agent for a
    construction        loan,     where    that       agent     "acted    solely    at     the
    direction" of the bank. We did so on the grounds that permitting
    recovery would place too unreasonable a burden on such agents to
    verify details of the progress of construction projects.                         
    Id.
    ¶45   Luethi analogizes his position to that of the CEO in
    Casper,      for     whom     the     ultimate       harm     was     not     reasonably
    foreseeable, and to the disbursing agent in Hoida, who would
    have    been       unreasonably       burdened      by     the     responsibility       of
    checking on the progress of the work.                      The plaintiffs disagree
    that such analogies are valid.
    ¶46   We do not see the situation of a person hiring an
    independent        contractor        doing    inherently          dangerous    work     as
    raising the types of concerns that precluded liability in the
    cases Luethi cites.            He cannot be compared to the CEO who did
    not hire or even meet the truck driver who caused the harm and
    whose only connection to the accident was the fact that he had
    approved the route the driver was on.                     Nor is a person who hires
    an independent contractor to do inherently dangerous work on his
    own    property      fairly    compared       to    a     disbursing    agent     for   a
    24
    No.    2012AP2085
    construction loan.           This is true for many reasons, including
    that the property where the work was done was Luethi's own.
    Also, the construction project was of a magnitude much larger
    than a one-time application of herbicide.
    ¶47     Further,     the     public    policy    factors        have   in    fact
    already been balanced in favor of potential liability in these
    cases.       Public policy reasons underlie the "inherently dangerous
    activity"       exception      in    the   first    place,    as   the     Restatement
    sections discussed note.             As one court observed, the "inherently
    dangerous" exception "accords with basic intuitions of fairness,
    and     it    is   also    consistent        with   what     is    often      efficient
    economically."         Huddleston by Huddleston v. Union Rural Elec.
    Ass'n, 
    841 P.2d 282
    , 287 (Colo. 1992).                        The reason for its
    existence is that the employer is in a better position than
    third       parties   to   take     precautions     against     harm     to   unwitting
    third parties, and should not be permitted to shift liability to
    a     contractor       where        inherently      dangerous      activities        are
    involved.20        We do not agree that the injury is so remote from
    the negligence that public policy precludes liability – indeed
    it follows directly from it.               Also, we do not agree that holding
    Luethi       liable    imposes       an    unreasonable      burden      under     these
    circumstances.
    20
    Restatement (Second) Torts, Introductory Note to §§ 416-
    429.   ("[F]or reasons of policy, the employer is not permitted
    to shift the responsibility for the proper conduct of the work
    to the contractor.")
    25
    No.     2012AP2085
    ¶48    Alternatively, Luethi asks that we adopt a rule that
    liability may exist for a homeowner only where an activity is
    "extrahazardous," using the test employed by the Kansas district
    court in Desaire, which applied the six factors from Restatement
    (Second)   of   Torts   §   520.     Section   520,   which     falls    in   the
    division   concerning       strict    liability,      defines       "abnormally
    dangerous" activities using the following standard:
    In determining whether an activity is abnormally
    dangerous, the following factors are to be considered:
    (a) existence of a high degree of risk of some harm to
    the person, land or chattels of others;
    (b) likelihood that the harm that results from it will
    be great;
    (c) inability to eliminate the risk by the exercise of
    reasonable care;
    (d) extent to which the activity is not a matter of
    common usage;
    (e) inappropriateness of the           activity     to    the     place
    where it is carried on; and
    (f) extent to which its value to the community is
    outweighed by its dangerous attributes.
    Restatement (Second) of Torts § 520 (1977).
    ¶49    The Desaire decision relied on Section 520.                  From the
    cases to which the Desaire court cites, it can be inferred that
    the claim involved in the case may have been a claim for strict
    liability rather than a negligence claim though that is not
    26
    No.    2012AP2085
    clearly stated.21           What is clear is that application of the
    factors from Section 520 is appropriate where a claim for strict
    liability      is   made.     To    apply    such   a   standard     to    negligence
    claims such as this one would be a departure from Wisconsin law,
    as the court of appeals correctly noted.22                     To import strict
    liability      from   a   products    liability     context    to    a     negligence
    claim would mean "reliev[ing] [a plaintiff] of proving specific
    acts    of    negligence      and    protect[ing]       him   from    [applicable]
    defenses . . . ."           Dippel v. Sciano, 
    37 Wis. 2d 443
    , 460, 
    155 N.W.2d 55
     (1967).
    21
    This is partly because the Desaire court was not actually
    deciding the "abnormally dangerous" activity issue; it was
    merely commenting on the issue in the context of deciding a
    completely unrelated matter, that "the state district court did
    not issue a final and hence binding order on the Co-op's
    independent contractor status." Desaire v. Solomon Valley Co-op,
    Inc., No. 94-1271-PFK, at *3 (D. Kan., Sept. 14, 1995).
    22
    The court of appeals stated,
    Moreover, even absent any conflict with Wisconsin law,
    we are not convinced that Desaire's reliance on § 520
    was correct. Section 520 is found in Chapter 21 of the
    Restatement, which deals with situations in which a
    person may be subject to strict liability for harm
    caused by abnormally dangerous activities. See, e.g.,
    Restatement (Second) of Torts §§ 519, 520B, 520C
    (1977). Chapter 21 does not address employer liability
    for harm caused by an independent contractor. That
    topic is instead discussed in Chapter 15, which
    contains a section that specifically addresses an
    employer's   liability    for   inherently   dangerous
    activities. See id., § 427 ("Negligence as to Danger
    Inherent in the Work").
    Brandenburg v. Luethi, No. 2012AP2085,                   unpublished        slip
    op., ¶20, (Wis. Ct. App. Apr. 23, 2013).
    27
    No.     2012AP2085
    ¶50   Having established what the law in Wisconsin is, we
    turn   to    Luethi’s    final   argument,    which    is    that    even    if   the
    "inherently dangerous" exception is the law and the Wagner and
    Lofy standards govern, herbicide spraying does not qualify as
    inherently dangerous.        The plaintiffs, of course, disagree.
    ¶51   To support his argument that herbicide spraying is not
    inherently dangerous, Luethi points to Comment f to Restatement
    (Second) of Torts, Section 413.         That section states:
    One who employs an independent contractor to do work
    which the employer should recognize as likely to
    create, during its progress, a peculiar unreasonable
    risk of physical harm to others unless special
    precautions are taken, is subject to liability for
    physical harm caused to them by the absence of such
    precautions if the employer
    (a) fails to provide in the contract                      that       the
    contractor shall take such precautions, or
    (b) fails to exercise reasonable care to provide in
    some other manner for the taking of such precautions.
    Restatement (Second) of Torts § 413 (1965).
    ¶52   The comment to which Luethi refers provides that "the
    extent of the employer's knowledge and experience in the field
    of work to be done is to be taken into account," and Luethi
    asserts that in light of this comment, he cannot be held liable
    because he "had no knowledge of the peculiar risks involved, nor
    special precautions needed to mitigate them, nor any reason to
    foresee      [the      contractor]    would        ignore     standard        safety
    precautions     such    as   instructions     on    the     chemicals'      labels."
    Luethi's knowledge or lack thereof are matters to be considered
    as to whether he exercised ordinary care.
    28
    No.    2012AP2085
    ¶53   Section 413, the section with the comment to which
    Luethi cites, falls into the first part of Chapter 15 of the
    Restatement       (Second),           "Liability       of      an     Employer        of     an
    Independent Contractor." The chapter is divided into two parts:
    the   first,     Topic      1,     covers      "Harm    Caused        by    the     Fault    of
    Employers of Independent Contractors," and the second, Topic 2,
    covers "Harm Caused by the Negligence of a Carefully Selected
    Independent Contractor."                Topic 2, which includes sections 416
    and 427, which we discussed above, overlaps with Section 413, as
    was acknowledged in Snider, in that all three contain language
    conditioning liability on, among other things, what the employer
    "should recognize" or "has reason to know" about the nature of
    the danger involved in the work.
    ¶54   Under sections 416 and 427, an employer's assertions
    of a lack of knowledge about an activity's dangerousness are not
    dispositive       on    the      question       of    its     inherent        dangerousness
    because     liability       may     be    imposed       for       activity        "which    the
    employer    should       recognize        as    likely       to      create       during    its
    progress    a    peculiar        risk    of    physical       harm    to     others    unless
    special precautions are taken" (as Section 416 states), and for
    activity    involving         "a    special         danger    to      others       which    the
    employer knows or has reason to know to be inherent in or normal
    to    the   work,      or     which      he    contemplates          or    has     reason    to
    contemplate when making the contract" (as Section 427 states).
    ¶55   The     Restatement          sections      at     issue        thus    explicitly
    condition liability not on actual knowledge but on the inherent
    dangers     an    employer         of    an    independent           contractor       "should
    29
    No.     2012AP2085
    recognize,"        "has      reason    to        know,"       or   "has         reason   to
    contemplate."        This "knows or has reason to know" factor seems
    to come into play on the question of whether Luethi failed to
    use ordinary care with regard to the activity.
    ¶56    In    many    cases,     the   determination          of   an      activity's
    inherent dangerousness will be a question of fact.23                         However, in
    certain circumstances involving undisputed facts, a court may
    hold an activity is inherently dangerous as a matter of law.                             As
    noted above, Wisconsin Jury Instruction–Civil 1022.6 includes a
    note referring to the threshold "inherently dangerous" question
    that says, "There are times when the [first] question will not
    be necessary."
    ¶57    For example, in Lofy, this court held as a matter of
    law   that    "[t]he      operation    of    a     bus    between       Cumberland       and
    Madison     over    modern      highways    cannot       be   considered        inherently
    dangerous."        Lofy, 
    42 Wis. 2d at 263
    .              See also Brooks v. Hayes,
    
    133 Wis. 2d 228
    , 
    395 N.W.2d 167
     (1986).                            Here the court of
    appeals,     citing       the    extensive       and     uncontroverted          evidence,
    determined that certain precautions could reduce the risk to a
    reasonable level:
    At   the    fact-finding   hearing,    Brian   Borreson,
    Briarwood's   owner,   testified  that    when  spraying
    herbicides, there is a risk that drift will occur and
    cause damage to neighboring properties. Lee Shambeau,
    23
    See, e.g., Mueller v. Luther, 
    31 Wis. 2d 220
    , 230-231,
    
    142 N.W.2d 848
     (1966) and Wis. JI——Civil, 1022.6, Liability of
    One Employing Independent Contractor (including as a suggested
    verdict form a jury question on whether the work performed was
    inherently dangerous).
    30
    No.    2012AP2085
    Luethi's expert witness, also described various ways
    that sprayed herbicides can cross property lines, and
    he admitted that herbicide drift can cause harm. In
    addition, the Brandenburgs' expert, Gary LeMasters,
    testified that spraying herbicides involves a risk of
    drift onto neighboring properties. Luethi did not
    present any evidence to the contrary. Thus, the
    undisputed   evidence  established   that  Briarwood's
    spraying of the herbicides posed a risk of harm.
    Moreover,   common  sense   dictates  that  herbicides
    sprayed outdoors on one property will not necessarily
    be contained to that property. Consequently, the risk
    of harm is one that could be naturally expected to
    arise in the absence of precautions.
    Undisputed evidence also showed that the risk of harm
    could be reduced to a reasonable level by taking
    certain   precautions.  Both   Borreson  and   Shambeau
    testified that various practices can be used to reduce
    the possibility of drift, including: (1) avoiding
    spraying during high velocity winds; (2) spraying when
    the wind is blowing away from a neighbor's property;
    (3) spraying in cooler weather; (4) using low pressure
    spray nozzles; (5) using a thickening agent; and (6)
    keeping spray nozzles close to the ground. While these
    practices do not completely eliminate the possibility
    of drift, Borreson testified they "should be fairly
    effective in controlling the situation[.]" Similarly,
    Shambeau testified that the risk of drift can never be
    eliminated "100 percent," but it can be reduced by
    taking precautions. LeMasters agreed that the risk
    cannot be completely eliminated, but he stated the
    herbicides in question can be "applied safely without
    drift[.]" The circuit court aptly summarized the
    witnesses' testimony, stating that, although the risk
    of harm can never be eliminated entirely, it can be
    reduced "to a large degree by using reasonable care."
    The undisputed evidence therefore established that
    Briarwood's application of the herbicides posed a
    naturally expected risk of harm, and that certain
    precautions could be taken to reduce the risk to a
    reasonable level.
    Brandenburg   v.   Luethi,   No.   2012AP2085,   unpublished    slip   op.,
    ¶¶22-24 (Wis. Ct. App. Apr. 23, 2013).
    31
    No.     2012AP2085
    ¶58        We agree with the court of appeals for the reasons it
    stated that in this case, under our precedent, the activity is
    inherently      dangerous,       because         the    activity      poses      a    naturally
    expected       risk    of   harm,     and    taking       certain     precautions           could
    reduce the risk to a reasonable level.
    ¶59        That determination resolves the threshold question in
    this claim as to Luethi.                    Because the activity involved was
    inherently dangerous, Luethi may be liable despite hiring an
    independent contractor.               The next questions to answer are 1)
    whether Luethi failed to use ordinary care with regard to any
    danger inherent in the herbicide spraying that he knew or had
    reason    to    know    about,       and    2)    if    so,    whether      any      harm    that
    occurred was caused by the spraying.                          As the court of appeals
    noted, "[T]he factual question remains for the jury to determine
    whether    Luethi       exercised      ordinary         care    to    prevent        damage    to
    the Brandenburgs' property."                Id., ¶24.
    IV.    CONCLUSION
    ¶60        The record contains uncontroverted evidence that the
    chemical       used    here    is    capable       of     killing     56    "woody      plant"
    species,       including      oak,    birch,       poplar      and    maple      trees.        It
    therefore poses a "naturally expected risk of harm" to trees on
    neighboring      properties.           The       record    also      contains        undisputed
    testimony and exhibits showing that it is possible to reduce
    that risk by taking precautions.                       Therefore, both parts of the
    inherently dangerous test are satisfied, and we agree with the
    court     of    appeals       that     under        Wisconsin        law,      under        these
    circumstances,         "spraying       the        herbicides         was    an       inherently
    32
    No.     2012AP2085
    dangerous       activity,      and,    as    a    result,     the   general        rule   of
    nonliability       for    an    independent        contractor's          torts    did     not
    apply."24
    ¶61    The threshold question in the negligence determination
    is resolved here in favor of a determination that Luethi may be
    liable on the grounds that the spraying here was an inherently
    dangerous activity.            With that question resolved, the negligence
    claim     may     now     proceed,       with      the    plaintiffs        having        the
    opportunity to show that Luethi failed to use ordinary care with
    regard to the activity and that such failure was a cause of the
    damage    claimed,       followed      by   an    appropriate       damages       question.
    This is consistent with the approach applied in Wisconsin Jury
    Instruction——Civil            1022.6   and       the   Suggested        Verdict    Form     1
    (Inherently dangerous activity).                  It is also consistent with the
    Restatement sections on which we have relied in the prior cases
    addressing this question.
    ¶62    The    Restatement         sections        describe     a    framework       that
    imposes liability on an employer for the acts of the independent
    contractor where three facts are established: that there exists
    a   naturally      expected       risk      of    harm,      that   there       exists    an
    opportunity to take precautions against the harm, and that the
    employer "knows or has reason to know" that it poses a risk and
    requires precautions.             The concurrence rightly points out that
    Wisconsin       case    law    clearly      adopts     the    "inherently        dangerous
    24
    Brandenburg v. Luethi, No. 2012AP2085, unpublished slip
    op., ¶24 (Wis. Ct. App., Apr. 23, 2013).
    33
    No.     2012AP2085
    exception" as described in the Restatement sections discussed
    herein.       However, it is equally clear that Wisconsin courts have
    rejected a strict liability approach in "inherently dangerous"
    cases.       Adopting such an approach would erase the distinction
    between      "inherently    dangerous"     and    "extrahazardous            activity,"
    which we explicitly declined to do in Wagner.
    ¶63    At   this    point    in    the    case,     there       has     been   no
    determination by a trier of fact of what Luethi knew or had
    reason to know about the danger inherent in the work.                        To impose
    strict       liability    would    therefore     contravene        the       applicable
    section of the Restatement and change the law by erasing one
    requirement——making an employer liable for activities even where
    it is not established that the employer knew or had reason to
    know of the danger inherent in the work.                    The lack of clarity
    on the analysis in prior cases is partly due to the fact that
    this particular question has not been squarely addressed because
    the application of the "inherently dangerous" exception has been
    mentioned in other contexts rather than being subjected to full
    analysis.       Nevertheless, imposing strict liability without any
    resolution of the knowledge requirement, within the framework of
    the duty of ordinary care, is unsupported by the Restatement
    sections.       This "knows or has reason to know" factor seems to
    come into play on the question of whether Luethi failed to use
    ordinary care with regard to the activity.                       No resolution of
    that   question     has    been    made   at    this     point    in     the    record;
    therefore, the court of appeals correctly stated that the case
    should be remanded for the relevant further determinations to be
    34
    No.   2012AP2085
    made, specifically "whether Luethi exercised ordinary care to
    prevent damage to the Brandenburgs' property."
    ¶64   We therefore affirm the court of appeals and remand
    this    matter   to   the   circuit    court   for   further   proceedings
    consistent with this opinion.
    By the Court.—Affirmed and cause remanded to the circuit
    court for further proceedings consistent with this opinion.
    35
    No.    2012AP2085.ssa
    ¶65    SHIRLEY         S.    ABRAHAMSON,        C.J.     (concurring       in     part,
    dissenting in part).               When a landowner employs an independent
    contractor to perform an activity that this court declares is
    inherently dangerous as a matter of law, who should bear the
    cost of the damage to the innocent neighbor's property?                               Should
    it   be   the     employer        who   hires       the    independent    contractor      to
    perform the inherently dangerous activity and reaps the benefits
    of that activity?             Or should it be the innocent neighbor who
    suffers     the    damages        caused       by    the    independent       contractor's
    negligence?1
    ¶66    Our    case      law       has    already      answered     this    question:
    "[A]n     employer      of    an    independent           contractor     is   vicariously
    liable     for    the   torts       of    an    independent       contractor       if    the
    activity of the independent contractor is inherently dangerous."2
    1
    In these situations liability has been imposed on the
    employer based on two policy concerns:     Fairness and economic
    efficiency.    Huddleston v. Union Rural Elec. Ass'n, 
    841 P.2d 282
    , 287 (Colo. 1992). See Alan O. Sykes, The Economics of
    Vicarious Liability, 93 Yale L. J. 1231, 1271-73 (1984).
    2
    Brooks v. Hayes, 
    133 Wis. 2d 228
    , 233-34, 242-43, 
    395 N.W.2d 167
     (1986).    Although Brooks was not decided on the
    grounds that the inherently dangerous exception applied, it did
    properly state the test for the vicarious liability of an
    employer for the torts of its independent contractor while
    performing an inherently dangerous activity.     Simply because
    Brooks was decided on other grounds does not render its
    statement of law inaccurate.      Wisconsin does not consider
    statements germane to a controversy as dicta.     See Zarder v.
    Humana Ins. Co., 
    2010 WI 35
    , ¶52 n.19, 
    324 Wis. 2d 325
    , 
    782 N.W.2d 682
    .
    See also Wagner v. Cont'l Cas. Co., 
    143 Wis. 2d 379
    , 391,
    
    421 N.W.2d 835
     (1988) (cited by majority op., ¶39); Finkelstein
    v. Majestic Realty Corp., 
    198 Wis. 527
    , 537, 
    224 N.W. 743
     (1929)
    (cited by majority op., ¶30); Medley v. Trenton Inv. Co., 
    205 Wis. 30
    , 36, 
    236 N.W. 713
     (1931) (cited by majority op., ¶31).
    1
    No.    2012AP2085.ssa
    ¶67    The majority opinion professes that it "sets forth the
    proper analysis in applying the inherently dangerous exception
    to the general rule,"3 but its analysis does not comport with the
    principles underlying the inherently dangerous exception.4
    ¶68    The general rule, upon which we all agree, is that
    employers of independent contractors are not generally liable
    for the torts committed by their independent contractors.                An
    Vicarious liability applies when the law imposes a duty on
    an employer, regardless of the employer's own actions, for the
    tortious actions of another:
    Vicarious liability is a form of strict liability
    without fault.    A master may be held liable for a
    servant's torts regardless of whether the master's own
    conduct is tortious. . . . [V]icarious liability is a
    separate and distinct theory of liability, and should
    not be confused with any direct liability that may
    flow from the master's own fault in bringing about the
    plaintiff's harm.     Vicarious liability is imputed
    liability.
    Kerl v. Dennis Rasmussen,          Inc.,   
    2004 WI 86
    ,     ¶21,    
    273 Wis. 2d 106
    , 
    682 N.W.2d 328
    .
    The majority opinion's use of the term "strict liability"
    is misleading.    Majority op., ¶¶13, 14, 62, 63.      Once the
    activity has been deemed "inherently dangerous," the plaintiff
    must still show that the independent contractor was causally
    negligent.    If there was negligence on the part of the
    independent contractor in performing that inherently dangerous
    activity, then the employer is also liable, regardless of his or
    her own personal negligence.
    3
    Majority op., ¶27 n.12.
    4
    This   opinion  addresses   the   "inherently dangerous"
    exception and does not address the "extrahazardous activity"
    exception, which has different rules for liability. See Wagner,
    
    143 Wis. 2d at 387-88, 391-98
    .
    2
    No.   2012AP2085.ssa
    employer may, however, be liable for the torts of an independent
    contractor in two circumstances:
    (1) "the employer may be liable for any negligence of
    his own in connection with the work to be done," and
    (2)    under      certain         circumstances     such      as     the
    independent         contractor's          performance      of      inherently
    dangerous activities, the employer may be "liable for the
    negligence     of     the   contractor,       although     [the     employer]
    has . . . done everything that could reasonably be required
    of him [or her]."5
    ¶69    These two bases of liability of the employer of an
    independent contractor are analyzed separately in the case law
    and the literature.
    ¶70    This case addresses only a claim against the employer
    (Luethi)    for   the    tortious      acts    committed   by   his    independent
    contractor.       The complaint does not allege that any wrongful
    acts were committed by Luethi.6               As the majority opinion notes,
    summary judgment determinations rely solely on allegations in
    the complaint.7
    ¶71    By    confusing      the     two    separate      inquiries     of    an
    employer's liability, the majority reaches the conclusion that
    vicarious liability attaches to the employer as a matter of law
    5
    W. Page Keeton et al., Prosser and Keeton on the Law of
    Torts § 71, at 510, 511 (5th ed. 1984).
    6
    Majority op., ¶17 ("The only basis in the complaint for
    the   claim    was   that  the   independent  contractor   was
    negligent . . . .").
    7
    Majority op., ¶24.
    3
    No.    2012AP2085.ssa
    for his or her independent contractor's torts in performing an
    inherently dangerous activity, but that such an employer can
    nonetheless       avoid   liability     if    he    or    she   exercised     ordinary
    care.
    ¶72    Because the court has already determined as a matter
    of law that the herbicide spraying by the independent contractor
    in the instant case constituted an inherently dangerous activity
    and     nothing     in    the   complaint          or     record   avers      Luethi's
    negligence, no inquiry into Luethi's level of care is necessary.
    ¶73    Accordingly, I agree with the majority opinion that
    the matter is to be remanded to the circuit court to determine
    whether     the   independent    contractor         was    causally      negligent    in
    damaging the neighbor's property.                 I disagree that on remand the
    circuit court must resolve the question of whether Luethi failed
    to use ordinary care with regard to the activity.                         Neither the
    complaint nor the summary judgment record raises the issue of
    the negligence of Luethi himself.
    ¶74    I reach my conclusions by reasoning as follows:
    I. The principles of tort law in the Restatements and
    the literature lead to the conclusion that an employer of
    an    independent    contractor        is    vicariously     liable     for    the
    causal      negligence     of     the       independent      contractor        who
    performs an inherently dangerous activity.                         See ¶¶75-89,
    infra.
    II. Wisconsin case law has adopted these principles
    and has applied them.           See ¶¶90-97, infra.
    4
    No.    2012AP2085.ssa
    III. By declaring as a matter of law that the activity
    of the independent contractor was inherently dangerous, the
    majority opinion has by definition already concluded as a
    matter of law that a reasonable person in the position of
    Luethi knew or had reason to know of the inherent danger in
    the activity.       See ¶¶98-104, infra.
    IV.     The   Wisconsin     jury       instruction       on     "inherent
    dangerousness,"      on   which   the    majority    opinion         rests   its
    reasoning, requires clarification in light of our existing
    case law.     See ¶¶105-118, infra.
    I
    ¶75   In order to clarify the nature of the liability in the
    instant case, I lay out the state of the law regarding instances
    in which an employer of an independent contractor is liable for
    the independent contractor's negligence.
    ¶76   The general rule, as I stated above, is that one who
    contracts for the services of an independent contractor is not
    liable to others for the acts of the independent contractor.8
    ¶77   An employer may, however, be liable for the torts of
    an   independent     contractor      under    a     variety     of       exceptional
    circumstances.      The Restatement (Second) of Torts organizes the
    bases for an employer's liability when he or she employs an
    independent contractor into two distinct categories:
    (1) "harm caused by fault of employers of independent
    contractors"9 and
    8
    Lofy v. Joint School Dist. No. 2, 
    42 Wis. 2d 253
    , 263, 
    166 N.W.2d 809
     (1969).
    5
    No.    2012AP2085.ssa
    (2) "harm caused by negligence of a carefully selected
    independent contractor."10
    ¶78    These     two   categories        are   described     in       the    Third
    Restatement as (1) "direct liability in negligence"11 and (2)
    "vicarious liability."12
    ¶79    In the first category, direct liability, an employer
    of an independent contractor may be held liable for the injuries
    caused by the employer's own negligence.13                 That is, liability
    for the employer exists on "occasions where the employer may be
    liable    for   his   [or   her]   own       negligence,   even       if    the   work
    entrusted to the contractor is such that the employer is not
    9
    Restatement (Second) of Torts ch. 15, topic 1, intro.
    note, at 371 (1965).
    10
    Restatement (Second) of Torts, ch. 15, topic 2, intro.
    note, at 371 (1965).        "The liability imposed is closely
    analogous to that of a master for the negligence of his servant.
    The statement commonly made in such cases is that the employer
    is under a duty which he is not free to delegate to the
    contractor."   
    Id.
       See also 2 Dan B. Dobbs, Paul T. Hayden &
    Ellen M. Bublick, The Law of Torts § 432 (2d ed. Practitioner
    Treatise Series 2011).
    The inherently dangerous doctrine is also sometimes
    referred to as a nondelegable duty or as a peculiar risk. See,
    e.g., Restatement (Second) of Torts §§ 416, 427 (1965); 2 Dan B.
    Dobbs et al., The Law of Torts § 432.
    11
    Restatement (Third) of Torts:                Liability for Physical and
    Emotional Harm, § 55, at 363 (2012).
    12
    Restatement (Third) of Torts:                Liability for Physical and
    Emotional Harm, § 57, at 400 (2012).
    13
    See Wagner, 
    143 Wis. 2d at 388
     ("[A] principal employer
    may be liable to the independent contractor's employee for
    injuries caused by the principal employer's affirmative act of
    negligence.") (citing Barth v. Downey Co., Inc., 
    71 Wis. 2d 775
    ,
    
    239 N.W.2d 92
     (1976)).
    6
    No.   2012AP2085.ssa
    otherwise         answerable     for       the    negligence       of       the
    contractor . . . ."14
    ¶80    The    Restatement   (Third)     of   Torts:     Liability      for
    Physical and Emotional Harm acknowledges a variety of potential
    negligent acts on the part of the employer that would create
    liability, as listed in the relevant sections of the Restatement
    (Second):15
    The hirer's negligence might take various forms,
    including the failure to use reasonable care in
    selecting a competent contractor;16 giving orders or
    directions  to   the   contractor  without  exercising
    reasonable care;17 failing to exercise reasonable care
    14
    U.S. Fid. & Guar. Co. v. Frantl                 Indus.,      Inc.,    
    72 Wis. 2d 478
    , 487, 
    241 N.W.2d 421
    , 426 (1976).
    15
    The comment to this section notes that "Sections 55 and
    56 subsume and replace the direct-liability provisions set out
    in §§ 410-415 of the Restatement Second of Torts." Restatement
    (Third) of Torts: Liability for Physical & Emotional Harm § 55
    cmt. a (2012).
    16
    This provision adopts and replaces the liability in
    selection of a contractor discussed in Restatement (Second) of
    Torts § 411, which states:
    § 411 Negligence in Selection of Contractor
    An employer is subject to liability for physical harm
    to third persons caused by his failure to exercise
    reasonable care to employ a competent and careful
    contractor
    (a) to do work which will involve a risk of physical
    harm unless it is skillfully and carefully done, or
    (b) to perform any duty which the employer owes to
    third persons.
    17
    This provision adopts and replaces the liability in
    orders or directions negligently given by the employer,
    discussed in Restatement (Second) of Torts § 410, which states:
    7
    No.    2012AP2085.ssa
    as to dangerous conditions on the land;18 failing to
    use reasonable care as to artificial conditions and
    § 410 Contractor's Conduct in Obedience to Employer's
    Directions
    The employer of an independent contractor is subject
    to the same liability for physical harm caused by an
    act or omission committed by the contractor pursuant
    to orders or directions negligently given by the
    employer, as though the act or omission were that of
    the employer himself.
    Similarly, if the employer retains control over the actions
    of the independent contractor's work, the employer remains
    liable for negligent acts caused by the work as discussed in
    Restatement (Second) of Torts § 414:
    § 414 Negligence     in   Exercising   Control   Retained     by
    Employer
    One who entrusts work to an independent contractor,
    but who retains the control of any part of the work,
    is subject to liability for physical harm to others
    for whose safety the employer owes a duty to exercise
    reasonable care, which is caused by his failure to
    exercise his control with reasonable care.
    18
    As the comment states, this liability for "failing to use
    reasonable care as to artificial conditions and activities on
    the land that pose a risk of physical harm to those off the
    land" replaces the specific rules relating to owners or
    possessors of land.    Restatement (Second) of Torts §§ 412, 415
    (1965).
    The Restatement (Second) of Torts, § 412, creates liability
    for failure of the principal employer to properly inspect the
    contractor's work to ensure that the land or chattel is in
    reasonably safe condition:
    § 412 Failure   to   Inspect   Work    of   Contractor    After
    Completion
    One who is under a duty to exercise reasonable care to
    maintain land or chattels in such condition as not to
    involve unreasonable risk of bodily harm to others and
    who entrusts the work of repair and maintenance to an
    independent contractor, is subject to liability for
    bodily harm caused to them by his failure to exercise
    such care as the circumstances may reasonably require
    8
    No.   2012AP2085.ssa
    activities on the land that pose a risk of physical
    harm to those off the land;19 and failing to exercise
    reasonable care as to the manner in which the
    him to exercise to ascertain whether the land or
    chattel is in reasonably safe condition after the
    contractor's work is completed.
    Restatement (Second) of Torts § 412, at 382 (1965).
    The Restatement (Second) of Torts, § 415, provides for
    liability when a principal employer landowner opens the land for
    public use and fails to exercise reasonable care in protecting
    the public from harms caused by an independent contractor:
    § 415 Duty to Supervise Equipment and Methods of
    Contractors or Concessionaires on Land Held Open to
    Public
    A possessor of land who holds it open to the public
    for any purpose is subject to liability to members of
    the public entering for that purpose for physical harm
    caused to them by his failure to exercise reasonable
    care to protect them against unreasonably dangerous
    activities of, or unreasonably dangerous conditions
    created    by,    an    independent   contractor    or
    concessionaire employed or permitted to do work or
    carry on an activity on the land.
    Restatement (Second) of Torts § 415, at 390 (1965).
    19
    The Restatement (Second) of Torts § 414A provides for
    liability when a principal employer landowner knows or has
    reason to know that the independent contractor's activities or
    conditions create an unreasonable risk to those outside the
    land:
    § 414A Duty of Possessor of Land to Prevent Activities
    and Conditions Dangerous to Those Outside of Land
    A possessor of land who has employed or permitted an
    independent contractor to do work on the land, and
    knows or has reason to know that the activities of the
    contractor or conditions created by him involve an
    unreasonable risk of physical harm to those outside of
    the land, is subject to liability to them for such
    harm if he fails to exercise reasonable care to
    protect them against it.
    9
    No.    2012AP2085.ssa
    contractor performs any part of the work over which
    the hirer has retained control.20
    Restatement     (Third)   of   Torts   § 55    cmt.      a    (2012)     (footnotes
    added).
    ¶81   In    those    cases   falling     in   the       first    category    of
    employer liability, in which the employer's own negligence is at
    issue, the employer is liable if the employer breached his or
    her duty of ordinary care.21
    20
    This   provision adopts  and   replaces  the  principal
    employer's liability for failure to take precautions against
    peculiar known risks of harm discussed in Restatement (Second)
    of Torts § 413:
    § 413 Duty to Provide for Taking of Precautions
    Against   Dangers Involved in Work Entrusted to
    Contractor
    One who employs an independent contractor to do work
    which the employer should recognize as likely to
    create, during its progress, a peculiar unreasonable
    risk of physical harm to others unless special
    precautions are taken, is subject to liability for
    physical harm caused to them by the absence of such
    precautions if the employer
    (a) fails to provide in the contract                        that      the
    contractor shall take such precautions, or
    (b) fails to exercise reasonable care to provide in
    some other manner for the taking of such precautions.
    21
    For example, in a case alleging negligent hiring or
    selection of an independent contractor, the jury determines
    whether the employer acted negligently in selecting the
    contractor based on competence, insurance, or other factors.
    See Wagner, 
    143 Wis. 2d at 389-90
    .
    The Restatement (Second) of Torts lists factors that
    determine the amount of care required in the selection and
    hiring of competent contractors:
    (1) [t]he danger to which others will be exposed if
    the contractor's work is not properly done; (2) the
    character of the work to be done——whether the work
    10
    No.   2012AP2085.ssa
    ¶82    Conversely,    in   cases    in   the   second    category,       i.e.,
    vicarious liability, the employer's own negligence is not at
    issue.      Once an activity falls into this second category, the
    liability of an employer of an independent contractor depends on
    the   tortious     acts    of    its   independent     contractor,       not    the
    tortious act of the employer.
    ¶83    The   Restatement     (Second)    of    Torts    explicitly       notes
    that for this category of liability, the potential negligence of
    the employer is irrelevant:
    The rules stated in the following §§ 416-429 [under
    the heading "Harm Caused by Negligence of a Carefully
    Selected Independent Contractor"], unlike those stated
    in the preceding §§ 410-415 [under the heading "Harm
    Caused   by   Fault   of   Employers   of    Independent
    Contractors"],   do  not    rest  upon    any   personal
    negligence of the employer.        They are rules of
    lies within the competence of the average man or is
    work which can be properly done only by persons
    possessing special skill and training; and (3) the
    existence of a relation between the parties which
    imposes upon the one a peculiar duty of protecting the
    other.
    Restatement (Second) of Torts § 411 cmt. C, at 378 (1965).
    Similarly, in a case alleging a failure to inspect the
    contractor's work, an employer of an independent contractor may
    be liable for failure to properly inspect the independent
    contractor's work to ensure that it was left in a reasonably
    safe condition.     See Brown v. Wis. Natural Gas Co., 
    59 Wis. 2d 334
    , 
    208 N.W.2d 769
     (1973).
    The Restatement (Second) of Torts recognizes that highly
    fact-based determinations are required to determine the amount
    of care required by the employer, because of "an almost infinite
    variety of construction and repair work done by all sorts and
    kinds of contractors on buildings and chattels used for
    infinitely varying purposes . . . ."    Restatement (Second) of
    Torts § 412 cmt. c, at 383 (1965).
    11
    No.    2012AP2085.ssa
    vicarious liability, making the employer liable for
    the   negligence   of   the   independent  contractor,
    irrespective of whether the employer has himself been
    at fault.    They arise in situations in which, for
    reasons of policy, the employer is not permitted to
    shift the responsibility for the proper conduct of the
    work to the contractor.     The liability imposed is
    closely analogous to that of a master for the
    negligence of his servant.
    Restatement (Second) of Torts ch. 15, topic 2, intro. note, at
    394 (1965) (emphasis added).
    ¶84    The        Restatement     (Third)    of    Torts:         Liability        for
    Physical    and    Emotional     Harm    echoes     this      declaration,           stating
    that the rules it sets forth are "consistent with the Second
    Restatement       of    Torts"   and    asserting      that    the     rules     in    this
    second category are "appropriately viewed as rules of vicarious
    liability."22          The Restatement (Third) goes on to reiterate the
    irrelevance of the principal employer's own negligence:                              "These
    rules subject the hirer, even absent the hirer's own negligence,
    to liability for harm caused by the tortious conduct of another
    actor——the independent contractor."23
    ¶85    The        Restatements      (Second)      and     (Third)          of    Torts
    identify the "inherently dangerous" exception as falling into
    this second category of vicarious liability.
    ¶86    Section 416 of the Restatement (Second) states that an
    employer is subject to vicarious liability for the torts of an
    independent       contractor     under    circumstances         with       an   increased
    risk that can be reduced through special precautions:
    22
    Restatement (Third) of Torts: Liability for Physical and
    Emotional Harm, § 57 cmt. A, at 401 (2012).
    23
    Id. (emphasis added).
    12
    No.   2012AP2085.ssa
    One who employs an independent contractor to do work
    which the employer should recognize as likely to
    create during its progress a peculiar risk of physical
    harm to others unless special precautions are taken,
    is subject to liability for physical harm caused to
    them by the failure of the contractor to exercise
    reasonable care to take such precautions, even though
    the employer has provided for such precautions in the
    contract or otherwise.
    2 Restatement (Second) of Torts § 416 at 395 (1965).
    ¶87     Similarly, Restatement (Second) of Torts § 427 states
    that an employer of an independent contractor in a situation
    involving    inherently      dangerous    activities       is    subject    to
    vicarious liability for harm caused by the contractor's tortious
    acts.
    One who employs an independent contractor to do work
    involving a special danger to others which the
    employer knows or has reason to know to be inherent in
    or normal to the work, or which he contemplates or has
    reason to contemplate when making the contract, is
    subject to liability for physical harm caused to such
    others by the contractor's failure to take reasonable
    precautions against such danger.
    Restatement (Second) of Torts § 427, at 415 (1965).
    ¶88     The   Restatement   (Third)   of   Torts:        Liability     for
    Physical and Emotional Harm echoes this rule, declaring that an
    employer    may   be   vicariously   liable    for   the    torts     of   its
    independent contractor if the activity carries a peculiar risk,
    i.e., a heightened risk if reasonable care is not taken:
    An actor who hires an independent contractor for an
    activity that the actor knows or should know poses a
    peculiar risk is subject to vicarious liability for
    physical harm when the independent contractor is
    negligent as to the peculiar risk and the negligence
    is a factual cause of any such harm within the scope
    of liability.
    13
    No.    2012AP2085.ssa
    Restatement        (Third)    of    Torts:       Liability    for        Physical     and
    Emotional Harm § 59 (2012).24
    ¶89    The view of the Restatements (Second) and (Third) and
    the law of vicarious liability of an employer of an independent
    contractor are reflected in the literature.                        The Prosser and
    Keeton treatise notes that the "inherently dangerous" exception
    is one of many exceptions to the general rule that there is no
    vicarious liability upon an employer for the causal negligence
    of the independent contractor.25                Specifically, this category of
    cases      goes    beyond    the     reasonable       precautions        taken   by   an
    employer, "hold[ing] the employer liable for the negligence of
    the     contractor,          although     [the        employer]      has . . . done
    everything that could reasonably be required of him [or her].
    They are thus cases of vicarious liability."26                   See also 2 Dan B.
    Dobbs, Paul T. Hayden, & Ellen M. Bublick, The Law of Torts
    § 432 (2d ed. Practitioner Treatise Series 2011);                          Francis M.
    Dougherty,        Annotation,      Liability     of   Employer     with     Regard    to
    Inherently        Dangerous        Work   for    Injuries     to     Employees        of
    Independent Contractor, 
    34 A.L.R. 4th 914
     (1984 & Supp.).
    II
    ¶90    Wisconsin case law has followed these tort principles
    explained above involving inherently dangerous activities.
    24
    The Restatement (Third) of Torts: Liability for Physical
    and Emotional Harm § 59 cmt. a (2012) notes that it replaces
    Sections 416 and 427 of the Restatement (Second).
    25
    W. Page Keeton et al., Prosser and Keeton on Torts § 71,
    at 512 (5th ed. 1984).
    26
    Id. at 511.
    14
    No.    2012AP2085.ssa
    ¶91    As the majority opinion correctly notes,27 our case law
    has cited Sections 416 and 427 of the Restatement (Second) of
    Torts when assessing whether an employer can be held vicariously
    liable for the torts of its independent contractor:                  "Sections
    416 and 427 impute the independent contractor's negligence to
    the principal employer irrespective of whether the employer is
    himself or herself at fault on the basis that the dangerous
    activities involved give rise to a nondelegable duty."                  Wagner
    v. Cont'l Cas. Co., 
    143 Wis. 2d 379
    , 391, 
    421 N.W.2d 835
     (1988)
    (emphasis added) (cited by the majority op., ¶33.).
    ¶92    In Hackett v. Western Union Tel. Co., 
    80 Wis. 187
    , 
    49 N.W. 822
       (1891),   this     court    recognized     that      employing   an
    independent contractor to do inherently dangerous work renders
    the employer liable for injuries caused by the sole negligence
    of the contractor.       The Hackett court described the liability as
    follows:
    [W]here the performance of such contract, in the
    ordinary mode of doing the work, necessarily or
    naturally results in producing the defect or nuisance
    which causes the injury, then the employer is subject
    to the same liability to the injured party as the
    contractor.
    Hackett, 80 Wis. at 193.
    ¶93    The   court    reiterated       this   principle     of   vicarious
    liability of an employer who employs an independent contractor
    to perform inherently dangerous activity in subsequent cases,
    notably in Carlson v. Stocking, 
    91 Wis. 432
    , 435, 
    65 N.W. 58
    (1895) (cited in majority op., ¶27) and Medley v. Trenton Inv.
    27
    Majority op., ¶33.
    15
    No.    2012AP2085.ssa
    Co., 
    205 Wis. 30
    , 36, 
    236 N.W. 713
     (1931) (cited in majority
    op., ¶31).
    ¶94    The majority opinion properly concludes that spraying
    herbicides is inherently dangerous as a matter of law in the
    context and facts of the instant case.                         Majority op., ¶¶58-60.
    If    an    activity     is    inherently         dangerous      and       an     independent
    contractor, in performing that activity, negligently causes harm
    to    a     third     party,    then       the    employer       of     the       independent
    contractor       is    liable,       irrespective         of    the        employer's       own
    negligence.
    ¶95    Applying the rule to the instant case, Luethi may be
    liable for the harm caused to the innocent neighbor plaintiff if
    it    is    proved     that    the     independent        contractor             was   causally
    negligent in spraying the herbicides, an inherently dangerous
    activity.       The only remaining question, in my opinion, for the
    circuit court on remand is whether the independent contractor
    was       causally    negligent       in     damaging      the        innocent         neighbor
    plaintiff's property.            The inquiry should end here.
    ¶96    Yet     the     majority     opinion     appends         a     confusing      and
    unnecessary additional step to the inquiry on remand.
    ¶97    I turn now to the majority opinion's additional step,
    requiring the innocent neighbor plaintiff to prove on remand
    that Luethi (the employer of the independent contractor in the
    present      case)    knew     or    had   reason    to    know       about        the   danger
    16
    No.    2012AP2085.ssa
    inherent in the spraying of the herbicide.                         See majority op.,
    ¶¶13-14, 53-56.28
    III
    ¶98    In the present case, this court has declared that as a
    matter      of   law     the    activity      of   the    independent             contractor
    spraying     herbicides        was    inherently    dangerous.29             In    order    to
    declare an activity "inherently dangerous" as a matter of law,
    the majority opinion rules that the activity poses a "naturally
    expected     risk      of    harm."      Majority        op.,   ¶¶4,         10,    11,    58.
    Wisconsin        Civil       Jury     Instruction         1022.6       explains           that
    "[i]nherently          dangerous      work    is   work     from       which       one     can
    naturally expect harm to arise unless something is done to avoid
    that harm."       If a risk of harm is "naturally expected," then the
    reasonable person, as a matter of law, knows or has reason to
    know that an increased risk of harm is "inherent in or normal to
    the work."30
    ¶99    Once the court has determined as a matter of law that
    the   activity      is      "inherently      dangerous,"        that     is,       that    the
    activity poses a naturally expected risk of harm, the court has
    28
    The majority opinion at ¶59 states: "The next questions
    to answer are 1) whether Luethi failed to use ordinary care with
    regard to any danger inherent in the herbicide spraying that he
    knew or had reason to know about . . . ."
    29
    Majority op., ¶¶58, 56 & n.23 (citing Mueller v. Luther,
    
    31 Wis. 2d 220
    , 230-231, 
    142 N.W.2d 848
     (1966)).
    30
    Restatement (Second) of Torts § 427 (1965).
    Ordinarily, as the majority opinion correctly notes, the
    issue of whether an activity is inherently dangerous is a
    question of fact for the fact finder. Majority op., ¶56.
    17
    No.    2012AP2085.ssa
    determined that a reasonable person in the position of Luethi
    knew     or    had     reason     to    know       the    activity    was    inherently
    dangerous.          Majority op., ¶¶8, 55.           The end!
    ¶100 Sister state jurisdictions have similarly recognized
    that    the    "knows     or    has    reason      to    know"   element    is   included
    within        the     designation        of     an       activity    as     "inherently
    dangerous."31
    ¶101 In Huddleston v. Union Rural Electric Association, 
    841 P.2d 282
     (Colo. 1992), the Colorado Supreme Court outlined the
    link between "inherently dangerous" activities and the "knows or
    has reason to know" element as follows:
    For purposes of the "inherently dangerous" activity
    exception,   therefore,  the  focus   is   on  dangers
    recognizable in advance or contemplated by the
    employer as being "inherent" in the activity, or the
    circumstances of performance, when carried out in its
    ordinary way, and not on risks created by or following
    from the contractor's unforeseeable departure from the
    ordinary or prescribed way of performing the work
    under the circumstances.
    Against this backdrop of the Restatement (Second) of
    Torts and related case law, we conclude that an
    activity will qualify as "inherently dangerous" when
    it presents a special or peculiar danger to others
    that is inherent in the nature of the activity or the
    particular circumstances under which the activity is
    to be performed, that is different in kind from the
    ordinary risks that commonly confront persons in the
    community, and that the employer knows or should know
    is inherent in the nature of the activity or in the
    particular circumstances under which the activity is
    to be performed.
    Huddleston, 841 P.2d at 289-90 (emphasis added).
    31
    See 2 Restatement (Third) of Torts:         Liability                          for
    Physical and Emotional Harm § 5, cmt. e, at 420 (2012).
    18
    No.   2012AP2085.ssa
    ¶102 Thus, in order to determine whether an activity is
    "inherently dangerous," a court must look to the "knows or has
    reason      to     know"     element        before       determining         an     activity
    "inherently dangerous," not the other way around.                                Whether the
    employer "knows or has reason to know" of the inherent danger is
    part of the objective test for determining whether an activity
    is inherently dangerous. If a danger is "inherent," it must
    necessarily be one that an employer of an independent contractor
    (using     the    reasonable       person     objective       standard)          expects   to
    occur from the particular activity.
    ¶103 Nevertheless,            the     majority     opinion       reasons      that   on
    remand the factfinder must determine whether a reasonable person
    knew or had reason to know what the court has already determined
    to   be    "the    naturally      expected        risk   of   harm."         I    find    this
    reasoning perplexing and contradictory to the majority opinion's
    holding that, as a matter of law, reasonable people know or have
    reason to know that the spraying of herbicides in the instant
    case is inherently dangerous.
    ¶104 The "knew or had reason to know" element is satisfied
    in   the    present       case    as    a   definitional        part    of       "inherently
    dangerous," rather than as an additional question of fact to be
    determined        after    this   court      declares     the    activity         inherently
    dangerous as a matter of law.
    IV
    ¶105 The       majority          opinion     declares     that      in      order    to
    determine whether vicarious liability exists for Luethi in the
    instant     case,     the    fact      finder     must    examine      "whether       Luethi
    19
    No.    2012AP2085.ssa
    failed to use ordinary care with regard to any danger inherent
    in the herbicide spraying that he knew or had reason to know
    about."   Majority op., ¶59.
    ¶106 Nevertheless, the majority opinion asserts that "if
    spraying [herbicides] is an inherently dangerous activity, then
    it gives rise to a duty of ordinary care for [the employer of
    the   independent   contractor]   for    the    acts     of     the   independent
    contractor."   Majority op., ¶8.         Yet, as our case law adopting
    the principles of tort law for inherently dangerous activities
    clearly demonstrates, the employer's behavior does not govern
    the liability of the employer for the causal tortious conduct of
    the   independent   contractor    who    is    engaged     in    an    inherently
    dangerous   activity.     The    employer      in   such      circumstances      is
    vicariously liable irrespective of his or her own fault.
    ¶107 The majority opinion asserts that the need to address
    the factual question of the due care of the employer who employs
    an independent contractor derives from Wisconsin's pattern jury
    instruction for the liability of an employer for the torts of an
    independent contractor and from Restatement (Second) of Torts
    § 413.
    A
    ¶108 The majority opinion comments on the special verdict
    form and the pattern jury instructions as follows:
    The suggested verdict form that follows Wisconsin Jury
    Instruction——Civil 1022.6, Liability of one employing
    independent contractor, presents three questions.
    The first is, "Was the work performed by the (owner)
    (independent contractor) inherently dangerous?"
    20
    No.    2012AP2085.ssa
    The second is, "If you answered 1 "yes," then answer
    this question: Did (owner) fail to use ordinary care
    in (describe the work done)?"
    And the third is, "If you answered question 2 "yes,"
    then answer this question: Was that failure to use
    ordinary care a cause of (injury to (third person)
    (damage to (third person)'s property)?"
    Majority op., ¶11 n.8.32
    ¶109 The instant case is a summary judgment case.                              No jury
    instruction or special verdict is involved.
    ¶110 The majority opinion confuses whose ordinary care and
    wrongdoing is at issue in the instant case, which is a vicarious
    liability     case.        It    is    the    independent         contractor's       causal
    negligence that matters, not Luethi's.                       Luethi was not spraying
    any herbicides himself in the instant case.                         He is vicariously
    liable for the causal negligence of his independent contractor
    in applying the herbicides——an inherently dangerous activity.
    ¶111 I am unpersuaded by the jury instruction's references
    to the employer's failure to use ordinary care.                          The comments to
    the jury instruction are not supported by the case law cited.33
    ¶112 The     Wagner        case,    cited        by    the   jury    instruction,34
    specifically     states         that    the        employer's     liability        for   the
    negligent     acts    of    its       independent          contractor     in    performing
    32
    See majority op., ¶¶10-12,                      61     (citing     Wis     JI——Civil
    1022.6, Suggested Verdict Form 1).
    33
    The   comments assert that "the risk of injury or damage
    (under the    inherently dangerous exception) from the work was so
    great that    the owner or principal contractor should have taken
    reasonable    steps to avoid it."      Wis JI——Civil 1022.6 cmt.
    (2005).
    34
    Wis JI——Civil 1022.6 at 1-2 (citing and quoting Wagner,
    
    143 Wis. 2d at 391
    ).
    21
    No.   2012AP2085.ssa
    inherently dangerous activities exists "irrespective of whether
    the employer is himself or herself at fault."35
    ¶113 The other cases cited in the comments to the jury
    instruction declare that the employer's own acts and negligence
    are irrelevant to the determination of the employer's vicarious
    liability for the causal negligence of an independent contractor
    performing an inherently dangerous activity:
    While it may be just to hold the party authorizing the
    work . . . exempt from liability for injury resulting
    from negligence which he had no reason to anticipate,
    there is, on the other hand, good ground for holding
    him liable for an injury caused by an act certain to
    be attended with injurious consequences, if such
    consequences are not in fact prevented, no matter
    through whose default the omission to take the
    necessary measures for prevention may arise.
    Wertheimer v. Saunders, 
    95 Wis. 573
    , 581, 
    70 N.W. 824
     (1897)
    (emphasis added).     That is, regardless of any wrongdoing on the
    part of the employer, when the activity is one that is "certain
    to be attended with injurious consequences," liability attaches
    to the employer for the causal negligence of the independent
    contractor.
    ¶114 In Finkelstein v. Majestic Realty Corp., 
    198 Wis. 527
    ,
    
    224 N.W. 743
     (1929) (also cited in the comments to the jury
    instruction), there were multiple theories of negligence of an
    independent contractor for a roof tile that fell onto a roadway:
    First,    the   employer's   failure    to   inspect;   and    second,   the
    negligence of the independent contractor in applying the roof
    tiles.     The Finkelstein jury found no negligence on the part of
    35
    Wagner, 
    143 Wis. 2d at 391
    .
    22
    No.    2012AP2085.ssa
    the independent contractors and thus only the employer's own
    negligence was at issue.           Nevertheless, the Finkelstein court
    stated the general rule for the liability of an employer who
    employs an independent contractor who negligently performs an
    inherently dangerous activity as follows:
    [I]f the injuries had resulted from the negligent act
    of the contractors, the owner would be jointly liable
    with them. But the jury has expressly absolved the
    contractors   from   negligence,  and   therefore the
    liability must rest solely upon the owner.
    Finkelstein v. Majestic Realty Corp., 
    198 Wis. 527
    , 537, 
    224 N.W. 743
     (1929).
    ¶115 Thus, it is clear, as we have explained previously,
    that    there   are     two   separate        inquiries   in   determining      the
    liability of an employer who employs an independent contractor:
    (1) whether the employer himself engaged in any wrongdoing; and
    (2) whether, in the case of an independent contractor performing
    an   inherently    dangerous     activity,       the    independent    contractor
    committed causal negligence in performing the activity.                     If the
    activity is inherently dangerous, the employer's liability is
    vicarious:        the    negligence      of     the    independent     contractor
    attaches to the employer regardless of the principal employer's
    own actions.
    ¶116 Rather than clarify the jury instruction, the majority
    opinion simply extends the confusion.                  I am persuaded that the
    Wisconsin Jury Instructions Committee should consider clarifying
    the jury instruction in light of the case law upon which the
    instruction relies.
    B
    23
    No.    2012AP2085.ssa
    ¶117 In      an    attempt      to   buttress      its        conclusion       that   the
    employer's personal duty of ordinary care is relevant in the
    instant case, the majority opinion also relies on Section 413 of
    the   Restatement         (Second)         of     Torts,        a     section        that    it
    acknowledges       is    entirely      inapplicable            to    the     instant     case.
    Section 413 discusses only the fault of the employer, not the
    vicarious liability at issue in the instant case.36
    ¶118 Indeed,        the    majority         opinion      properly           acknowledges
    that Section 413 is inapplicable to the instant case because the
    innocent neighbor plaintiff alleges no wrongdoing on the part of
    Luethi.37     Specifically, the plaintiffs "did not allege in the
    complaint that any harm was caused by [Luethi]."                                 Majority op.,
    ¶33 n.19.
    * * * *
    ¶119 By      muddling     through         direct    liability          and     vicarious
    liability of an employer who employs an independent contractor
    and failing to state the doctrines clearly, the majority opinion
    has injected confusion into the law.                     Furthermore, the majority
    opinion     has    shifted      the    liability         for    inherently           dangerous
    activities        from    an    employer          who    employs        the        independent
    contractor for an inherently dangerous activity, the person who
    reaped the benefits of the contracted work, to the innocent
    neighbor plaintiff, who had no knowledge about or control over
    the spraying of herbicides.
    36
    See majority op., ¶¶33, 51-53.
    37
    Majority op., ¶33 n.19.
    24
    No.    2012AP2085.ssa
    ¶120 The majority opinion has subverted the long-standing
    rationale for the "inherently dangerous exception," and indeed
    jeopardizes the vitality of the "inherently dangerous" doctrine.
    If    a        plaintiff       must    show    that     an    employer        who        employs    an
    independent contractor has breached the employer's own duty of
    ordinary care, in what way does a case of "inherently dangerous"
    activity         differ        from    any    other    negligence       claim        against       the
    employer?
    ¶121 As the Restatement (Third) of Torts:                             Liability for
    Physical and Emotional Harm explains, the "inherently dangerous
    activity" doctrine imposing vicarious liability on an employer
    of an independent contractor for the tortious actions of the
    independent contractor is motivated by public policy concerns.38
    That is, once the activity is one that a reasonable person knows
    or has reason to know would pose a peculiar risk, the liability
    for creating such a risk falls on the employer for the torts of
    the       independent          contractor,       not    the        innocent     third       parties
    harmed by such torts.
    ¶122 The     majority          opinion       has     apparently           converted        a
    longstanding rule that an employer of an independent contractor
    is vicariously liable for the torts of an independent contractor
    in performing inherently dangerous activities into one of an
    employer's liability for the employer's personal negligence and
    has       converted        a    rule    that    places        the    burden         of    risk     for
    inherently         dangerous          activities       on    the    person     creating          those
    38
    Restatement (Third) of Torts:   Liability for Physical &
    Emotional Harm § 59 cmt. d (2012). See also note 1, supra.
    25
    No.   2012AP2085.ssa
    dangers    into   a   rule   placing      that    burden   on    innocent     third
    parties.     This     outcome   is    contrary      to    the   letter    and   the
    rationale of our case law, the Restatements of Torts, treatises,
    and case law from other states.
    ¶123 For the reasons set forth, I write separately.
    ¶124 I    am      authorized     to   state    that    Justices     ANN   WALSH
    BRADLEY and DAVID T. PROSSER join this opinion.
    26
    No.   2012AP2085.ssa
    1