Fernando Martinez v. Michael Rullman

2023 WI App 30COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2021AP1720
† Petition for Review filed
Complete Title of Case:
FERNANDO MARTINEZ,
PLAINTIFF-APPELLANT,
MOLINA HEALTHCARE,
INVOLUNTARY-PLAINTIFF,
V.
MICHAEL RULLMAN D/B/A RULLMAN CONSTRUCTION, ACUITY , A
MUTUAL INSURANCE COMPANY, MICHAEL TODD GROUP, LLC,
WILLIAM RULLMAN AND ESTATE OF MICHAEL TODD RULLMAN,
DEFENDANTS-RESPONDENTS,†
LTJ CONSTRUCTION, INC. AND PEKIN INSURANCE COMPANY,
DEFENDANTS,
RICHARD STANKE D/B/A RSS CONSTRUCTION, INC. AND GRANGE
MUTUAL CASUALTY COMPANY,
DEFENDANTS-THIRD-PARTY PLAINTIFFS-CO-APPELLANTS,
V.
AM PAINTING, INC.,
THIRD-PARTY DEFENDANT.
Opinion Filed: May 10, 2023
Submitted on Briefs: September 15, 2022
Oral Argument:
JUDGES: Gundrum, P.J., Grogan and Lazar, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Gregory W. La Cost and Ronald F. Wittmeyer, Jr. of R.F.
Wittmeyer, Ltd., Arlington Heights, Illinois.
Co-Appellant
ATTORNEYS: On behalf of the defendants-third-party plaintiffs-co-appellants, the
cause was submitted on the briefs of Michael A. Snider and Jillian L.
Lukens of McCoy Leavitt Laskey LLC, Waukesha.
Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on
the brief of Lance S. Grady and Heidi M. Miller of Grady, Hayes &
Neary, LLC, Waukesha.
Non party
ATTORNEYS: A nonparty brief was filed by Edward E. Robinson of Cannon and
Dunphy, S.C., Brookfield, for the Wisconsin Association for Justice.
2
2023 WI App 30COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 10, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2021AP1720 Cir. Ct. No. 2018CV961
STATE OF WISCONSIN IN COURT OF APPEALS
FERNANDO MARTINEZ,
PLAINTIFF-APPELLANT,
MOLINA HEALTHCARE,
INVOLUNTARY-PLAINTIFF,
V.
MICHAEL RULLMAN D/B/A RULLMAN CONSTRUCTION, ACUITY, A MUTUAL
INSURANCE COMPANY, MICHAEL TODD GROUP, LLC, WILLIAM RULLMAN
AND ESTATE OF MICHAEL TODD RULLMAN,
DEFENDANTS-RESPONDENTS,
LTJ CONSTRUCTION, INC. AND PEKIN INSURANCE COMPANY,
DEFENDANTS,
RICHARD STANKE D/B/A RSS CONSTRUCTION, INC. AND GRANGE MUTUAL
CASUALTY COMPANY,
DEFENDANTS-THIRD-PARTY PLAINTIFFS-CO-APPELLANTS,
V.
No. 2021AP1720
AM PAINTING, INC.,
THIRD-PARTY DEFENDANT.
APPEAL from a judgment of the circuit court for Kenosha County:
CHAD G. KERKMAN, Judge. Affirmed in part; reversed in part and cause
remanded with directions.
Before Gundrum, P.J., Grogan and Lazar, JJ.
¶1 GROGAN, J. Fernando Martinez appeals from the circuit court
judgment granting summary judgment to a group of defendants—the Michael Todd
Group, LLC; the Estate of Michael Todd Rullman; William Rullman; and Acuity, a
Mutual Insurance Company (with the exception of William Rullman, we refer to
this group collectively as “the General Contractor” unless otherwise noted)—that
was in charge of the construction project where Fernando sustained serious injuries
after falling down an open elevator shaft while working for the painting
subcontractor, AM Painting, Inc.1 Richard Stanke d/b/a RSS Construction, Inc.
(collectively “Stanke” unless otherwise noted), a carpentry subcontractor, and his
1
The circuit court’s judgment referred to the Michael Todd Group, LLC (the general
contractor); the Estate of Michael Todd Rullman (substituted in for Michael Rullman d/b/a Rullman
Construction, the owner and operator of Michael Todd Group, LLC after Michael died during the
pendency of this lawsuit; William Rullman (Michael’s brother and an employee
of the general contractor); and Acuity Insurance (the general contractor’s insurer) as the
“MTG defendants.” As previously noted, we refer to this group, excluding William Rullman, as
“the General Contractor” unless necessary to refer to the parties individually. William Rullman
was an employee of the General Contractor, and we will refer to him individually as either William
Rullman or William throughout.
2
No. 2021AP1720
insurer, Grange Mutual Insurance Company, also appeal from the judgment
dismissing the General Contractor.
¶2 Fernando2 raises three arguments on appeal: (1) the circuit court erred
in granting summary judgment because there are genuine issues of material fact with
respect to his claims against the General Contractor for negligence and a violation
of the safe place statute, WIS. STAT. § 101.11 (2021-22);3 (2) William Rullman
should remain in the case even if we affirm the dismissal of the General Contractor
because he is not entitled to the defenses available to his employer; and (3) there is
no merit to Acuity’s claim that it was not timely served with the operative
Complaint. The General Contractor responds that the circuit court’s decision was
correct because the independent contractor rule applies, relieving it of any liability
from the negligence claim; the absence of an unsafe condition relieves it of any
liability under the safe place statute; and Acuity was not properly served as required
by statute.
¶3 Stanke argues that the circuit court erred in granting judgment to the
General Contractor on the safe place claim because the General Contractor had a
duty under the safe place statute, and therefore there are genuine issues of fact in
dispute from which a jury could find the General Contractor violated the safe place
statute. Stanke also argues that the General Contractor entered into a contractual
2
We refer to Fernando Martinez as Fernando throughout.
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
No. 2021AP1720
agreement requiring it to maintain safety for all workers/subcontractors and that this
agreement prevents it from delegating that duty to the subcontractors.4
¶4 We hold that the circuit court erred in granting summary judgment to
the General Contractor. First, as to the negligence claim, the independent contractor
rule—“that a principal employer is not liable to others for the torts of independent
contractors”5—does not apply under the circumstances in this case because the
General Contractor contracted to take on all responsibility for worker and
subcontractor safety related to the open elevator shaft. Second, the circuit court
erred when it found there was no basis for Fernando to present a safe place claim to
the jury. The disputed material facts in the Record demonstrate that the circuit court
erred both in concluding as a matter of law that there was no unsafe condition and
that the General Contractor’s duty under the safe place statute ended because it
installed boards across the shaft opening six months before the accident. Third, we
hold that William Rullman was properly dismissed and affirm that part of the
judgment. Finally, because the circuit court failed to properly address Acuity’s
argument regarding whether it was served with the operative Complaint, we decline
to address the merits of Acuity’s jurisdiction claim on appeal and instead remand
that issue to the circuit court.6
4
The Wisconsin Association for Justice filed an amicus curiae brief asserting similar
arguments—namely, that the independent contractor rule does not apply under the circumstances
present here because the General Contractor assumed a contractual duty of care and that the circuit
court erred in dismissing Fernando’s safe place claims.
5
See Wagner v. Continental Cas. Co., 143 Wis. 2d 379, 388, 421 N.W.2d 835 (1988).
6
We do note, however, that any decision on whether the circuit court has jurisdiction over
Acuity has no effect on Acuity’s contractual duties to its insured, both with respect to its duty to
defend and its duty to indemnify if the jury finds the General Contractor liable.
4
No. 2021AP1720
¶5 Because we reverse the circuit court’s grant of summary judgment and
remand for proceedings against the General Contractor, it is not necessary for us to
address Stanke’s arguments. See Water Well Sols. Serv. Grp., Inc. v. Consolidated
Ins. Co., 2016 WI 54, ¶33 n.18, 369 Wis. 2d 607, 881 N.W.2d 285 (cases should be
decided on the narrowest possible grounds).7 Accordingly, we affirm the summary
judgment in part, reverse the judgment in part, and remand for further proceedings
consistent with this opinion. Based on our reversal, we further hold that Stanke is
free to pursue his cross-claim against the General Contractor on remand.
I. BACKGROUND
¶6 The circumstances of this case arise from a multi-year, $1.7 million
residential remodeling project of Scott Dillion’s home—a two-story home with a
basement. Dillion hired the General Contractor on a handshake—there was no
written contract between these parties—to renovate his home, and as a part of that
project he wanted an elevator installed that would run between the basement, first
floor, and second floor. As a part of the remodeling project, the General Contractor
hired subcontractor AM Painting. Angel Macedo, who owned AM Painting, is
appellant Fernando Martinez’s uncle. Fernando’s father, Eduardo Martinez,8 had
7
The General Contractor contends that Stanke forfeited his rights to challenge his
dismissal from the lawsuit because Stanke did not make these arguments at the summary judgment
hearing and waited to make them in his motion for reconsideration (and then only with respect to
the safe place claim). Stanke asserts this is not true—that he argued at the summary judgment
hearing that the General Contractor, rather than he, owed a duty to Fernando. Moreover, Stanke
argues that the circuit court inconsistently applied the law, which caused him to raise the issue in
his motion for reconsideration. Forfeiture is a rule of judicial administration that a court is not
bound to apply. See State v. Counihan, 2020 WI 12, ¶¶25-27, 390 Wis. 2d 172, 938 N.W.2d 530(reciting the reasons for the forfeiture rule). Under these circumstances, we decline to apply
forfeiture. Based on our disposition, however, it is not necessary for us to specifically address
Stanke’s arguments except to note that Stanke may pursue his cross-claim against the General
Contractor upon remand.
8
We will refer to Eduardo Martinez as Eduardo.
5
No. 2021AP1720
worked as a painter with the company for a decade. AM Painting occasionally hired
Fernando, and in July 2017 he began working with AM Painting on the Dillion
project. Fernando reported to and took assignments from Eduardo.
¶7 On July 14, 2017, at about 10:30 a.m., AM Painting was working on
the second floor of the Dillion home. The second-floor work area consisted of a
hallway containing three doors, two of which led to bedrooms and one of which led
to the elevator shaft that did not yet have an elevator installed. The elevator door
opened into the hallway. Eduardo instructed Fernando to vacuum anything on the
second floor that had been sanded. Fernando began vacuuming the outside of the
elevator door and intended to open it to vacuum the other side. Although Fernando
does not remember opening the door, and no one else was in the hallway to see what
happened, Fernando fell down the elevator shaft from the second floor to the
basement. He suffered serious injuries requiring cranial and spinal surgeries.
¶8 It is Fernando’s fall down the elevator shaft that forms the basis for
this case. Fernando filed a personal injury lawsuit against the General Contractor,
homeowner Dillion, carpentry subcontractor LTJ Construction, Inc. (LTJ), and
Stanke, a carpenter LTJ hired9 to install the second-floor elevator-access
door.10 Fernando asserted two causes of action as to each defendant group—one
based on negligence and the other based on a violation of the safe place statute. All
9
To the extent there may remain a question as to whether LTJ hired Stanke, that issue is
not relevant to this appeal.
10
It took multiple filings and discovery at the circuit court level to narrow the defendants
to these four groups, which also include various insurers. It is unnecessary for our purposes to
detail these additional circuit court proceedings. The Second Amended Complaint is the operative
one at issue here.
6
No. 2021AP1720
of these defendants filed motions for summary judgment. The circuit court granted
summary judgment to Dillion11 and the General Contractor. The circuit court ruled
that the independent contractor rule applied and, as a result, the General Contractor
could not be held responsible. The circuit court further ruled that there was no
unsafe condition involved, and therefore Fernando could not maintain a safe place
claim against the General Contractor. It also “found” that Acuity was not served
within ninety days.
¶9 The court denied Stanke’s and LTJ’s summary judgment motions, and
those defendants remain in the circuit court case. As noted, Fernando asserts the
circuit court erred in granting the General Contractor’s summary judgment motion
and that the Record establishes genuine disputed issues of material fact for trial.
¶10 The Record, as material to our review, demonstrates the following.
The General Contractor needed to construct an elevator shaft so there would be
space to install an elevator that would travel from the basement to the second floor
of the home. In January 2017, William Rullman, an employee of the General
Contractor, cut through the floors to frame the elevator shaft and created an opening
in the second-floor hallway to provide a second-floor access door to the elevator.
After the door opening and shaft were in place, William barricaded the opening with
three two-by-four wood boards placed horizontally across the outside of the second-
floor access point in what he asserted during his deposition complied with OSHA12
construction standards. The drywall and electrical contractors confirmed the
11
Because Fernando does not appeal the judgment granting summary judgment to Dillion,
we do not discuss the circuit court’s reasons it dismissed Dillion.
12
OSHA stands for Occupational Safety and Health Administration.
7
No. 2021AP1720
presence of these guardrails when they performed their work a few months prior to
the accident.
¶11 Stanke was hired to install the door over the second-floor elevator
opening. When Stanke arrived to complete the work in early July 2017, he saw a
single two-by-four guardrail over the opening. He removed the board because he
could not install the door with this guardrail in place. After installing the door that
would be used to access the elevator, Stanke fastened a wood block—approximately
five inches by two inches—as a horizontal “latch” to hold the door closed using a
three-inch star screw. Stanke believed this “latch” sufficiently secured the door
because the door could not be easily opened with the wood block in place—in order
to open the elevator door, the wood block would need to be turned to a vertical
position, which he said “would take a lot of effort” because a star screw is difficult
to remove. Stanke did not reinstall the original two-by-four guardrail that he had
removed because its condition would not permit reusing it and he did not see any
other boards nearby. No one told Stanke that he needed to install OSHA-compliant
guardrails before or after installing the door, and he did not come prepared to do so.
¶12 Later the same month—July 2017—Fernando fell down the elevator
shaft while performing work on the Dillion construction project. After Fernando’s
fall, Macedo, the owner of AM Painting, heard Michael Rullman scolding
William Rullman for not having guardrails up over the second-floor elevator shaft
opening. According to William, after Fernando’s accident, Michael instructed him
to install guardrails, and he thereafter installed several two-by-four boards
horizontally across the opening that would prevent someone who opened the
elevator door from falling down the shaft. The installed door could be opened and
closed with these newly-installed guardrails in place.
8
No. 2021AP1720
¶13 William also testified at his deposition that he had previously posted
a handwritten warning sign on the second-floor elevator door and that he saw it on
the door one or two days before the incident. He also said there was a two-by-four
horizontal board across the door with the warning sign. Others testified that there
were no warning signs or two-by-four boards across the door on the date of the
accident.
¶14 Dillion gave deposition testimony that when he arrived at the home
on the date of the accident, he saw the wood block latch still in place horizontally
across the second-floor elevator door. Dillion testified that he heard
Michael Rullman tell the painters not to open the door or touch the wood block
latch. Dillion said that after the accident, he went to check the second-floor elevator
door and found it closed, but with the wood block latch in the vertical position.
Dillion opened the door and saw no guardrails in place.
¶15 The Record also contains a contract dated January 2017 between the
Michael Todd Group13 and Access Elevator, the company that would provide the
elevator. In the contract with Access Elevator, which appears to be the only written
contract the General Contractor entered into with any of the subcontractors (or
Dillion),14 the General Contractor agreed to be solely responsible for the safety of
all workers and subcontractors related to the elevator shaft until the elevator itself
had been installed. The contract stated:
Barricades and/or any/all other legal methods required by
any jurisdiction to prevent access into shaft shall be required
13
The contract refers to “Michael Rullman” and “Michaeltoddhomes” in the “contact” and
“project” areas. There is no dispute that this is Michael Todd Group, LLC, the general contractor
for the Dillion project.
14
The parties do not dispute that this project occurred without any written contracts, except
for the contract between Michael Todd Group, LLC and Access Elevator.
9
No. 2021AP1720
outside each floor landing for the protection of workmen and
all other subcontractors and/or occupants until the elevator
is installed completely and turned over to home owner.
These devices shall be the sole responsibility of GC.
¶16 Fernando submitted an expert report in opposing the summary
judgment motions. The expert opined:
The open elevator shaft into which Fernando Martinez
fell was an unreasonably dangerous structural defect, under
customary construction safety practices....
Custom and practice in safeguarding construction sites
prohibited the creation of uncovered holes in floors and
unguarded openings in walls. Customary construction
safety rules and practices applicable to renovation of single-
family homes in Wisconsin, were clearly defined in the
regulations, standards and guidelines attached hereto as
Exhibit 2. Safety rules published by NAHB, AGC, ASSE,
and OSHA regulations that govern construction in the
private sector in Wisconsin, represent custom and practice
as it pertained to covering floor holes and guarding openings
in walls. These standards and regulations were consistent in
defining a guardrail system as a minimum requirement for
safeguarding subject elevator shaft at the doorway through
which Fernando Martinez fell. If a customary guardrail
system had been in place, Fernando Martinez would not have
been injured.
¶17 The circuit court did not see any of these facts as determinative. It
concluded that the independent contractor rule, discussed by our supreme court in
Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 400-01, 421 N.W.2d 835(1988),15 relieved the General Contractor of any liability for Fernando’s negligence
claim because Fernando’s injury arose while he was working for an independent
subcontractor. Further, the circuit court concluded that the General Contractor was
entitled to summary judgment on the grounds that the elevator shaft did not
constitute an unsafe condition under the safe place statute, determining that the
15
The circuit court did not specifically reference this case in its rather cursory summary
judgment ruling.
10
No. 2021AP1720
General Contractor’s initial installation of the guardrails relieved it of any statutory
duty to keep the construction site as safe as the circumstances reasonably permit. It
also “found” that Acuity was not properly served. We address each conclusion in
turn.
II. STANDARD OF REVIEW
¶18 This case comes before us on review of a grant of summary judgment.
“‘Summary judgment is appropriate when there is no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law.’” Talley v.
Mustafa, 2018 WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55 (quoting Water Well
Sols. Serv. Grp., Inc., 369 Wis. 2d 607, ¶11). Appellate courts review a grant of
summary judgment de novo using the same methodology as the circuit court.
Talley, 381 Wis. 2d 393, ¶12. Summary judgment should be granted only when
there are no genuine issues of disputed material facts. Romero v. West Bend Mut.
Ins. Co., 2016 WI App 59, ¶17, 371 Wis. 2d 478, 885 N.W.2d 591. There are some
rare circumstances where, even though there is a disputed material fact, summary
judgment will not be precluded. Byrne v. Bercker, 176 Wis. 2d 1037, 1045, 501
N.W.2d 402 (1993). Disputed material facts may “become irrelevant if, in giving
full benefit to the party against whom summary judgment is sought, the claim
nevertheless is barred as a matter of law.” Id.III. DISCUSSION
¶19 We address each of the dispositive legal arguments in turn. First, we
conclude the circuit court erred in granting summary judgment based on the
independent contractor rule because the General Contractor assumed the duty to
safeguard the workers and all subcontractors with respect to the elevator shaft.
Under these circumstances, the independent contractor rule does not apply. See
11
No. 2021AP1720
Presser v. Siesel Constr. Co., 19 Wis. 2d 54, 59, 119 N.W.2d 405 (1963) (general
contractor may “by contract … assume a duty of care” it otherwise would not have).
Without the benefit of the independent contractor rule, the General Contractor
cannot be dismissed from this case because the Record contains genuine issues of
disputed material fact as to whether the General Contractor acted negligently in
protecting Fernando while he worked near the elevator shaft.
¶20 Second, we conclude the circuit court erred in concluding as a matter
of law that there was no unsafe condition based on its conclusion that the initial
installation of the guardrails relieved the General Contractor of any safe place
statutory duty. There were disputed issues of material fact with respect to the
General Contractor’s statutory duty to keep this workplace as safe as reasonably
possible as required by the safe place statute.
¶21 Third, William Rullman, who did not assume a safeguarding duty by
contract, is an employee of the General Contractor and, at all pertinent times, was
acting within the scope of his employment. William was not a party to the Access
Elevator contract to keep all workers/subcontractors safe around the elevator shaft,
and any negligence on his part would be imputed to the General Contractor.
Therefore, we conclude the circuit court did not err in granting summary judgment
to William.
¶22 Fourth, based on the summary judgment hearing transcript, it is not
apparent that the circuit court actually applied the summary judgment methodology
as required when it granted summary judgment in favor of Acuity. For the reasons
explained below, we therefore remand that issue to the circuit court so that it may
properly consider that issue in accordance with our summary judgment
12
No. 2021AP1720
methodology. Accordingly, we affirm the judgment in part, reverse the judgment
in part, and remand for further proceedings consistent with this opinion.16
A. Independent Contractor Rule
¶23 In Wagner, our supreme court held that “an employee of an
independent contractor is precluded from receiving worker’s compensation benefits
from the independent contractor and also maintaining a tort action against the person
who employs the independent contractor, the principal employer or general
contractor, unless the principal employer is affirmatively negligent with respect to
the employee.” Id., 143 Wis. 2d at 381-82. We refer to this as the independent
contractor rule. This rule stems from the fact that a subcontractor’s employee
injured on the job receives worker’s compensation from his direct employer and
should not also be able to recover payment from the general contractor in tort. See
id. at 385. Wagner concluded that a subcontractor’s employee injured on the job
may sue a general contractor for negligence only under very specific circumstances,
including when the injuries are “caused by the [general contractor’s] affirmative act
of negligence.” Id. at 388 (emphasis added).
¶24 Fernando asserts that the independent contractor rule does not apply
here either because the General Contractor’s acts constitute affirmative acts of
negligence or because the General Contractor assumed responsibility to safeguard
the elevator shaft in the contract it executed with Access Elevator. We are not
convinced that any of the General Contractor’s acts satisfy the definition of an
16
As noted, we decline to address the arguments Stanke raised on appeal because our
decision reversing the grant of summary judgment in favor of the General Contractor allows Stanke
to continue his cross-claim against the General Contractor upon remand.
13
No. 2021AP1720
affirmative, negligent act. However, we do agree that the existence of the Access
Elevator contract prohibits the application of the independent contractor rule.
¶25 An affirmative act of negligence requires “‘active misconduct’ that
increases the risk of harm to the employee.” Danks v. Stock Bldg. Supply, Inc.,
2007 WI App 8, ¶25, 298 Wis. 2d 348, 727 N.W.2d 846. Fernando contends there
are several affirmative, negligent acts by the General Contractor, such as
constructing the elevator shaft, creating the second-floor opening, not managing the
open shaft, failing to properly sequence the construction work, failing to promptly
install the elevator, and failing to secure adequate lighting by the elevator shaft. We
are not convinced.
¶26 Although constructing the elevator shaft and creating the
second-floor opening certainly are affirmative acts, neither of these are
“misconduct” that caused Fernando’s injuries. These acts occurred in early 2017,
after which William properly installed the guardrails. Fernando’s injuries occurred
in mid-July 2017, several months later. The other enumerated acts—failure to
manage the open shaft, failure to inspect to ensure the guardrails remained in place,
failure to sequence the contractors, failure to promptly install the elevator, and
failure to provide adequate lighting—are all acts of omission, not commission. See
Estate of Thompson v. Jump River Elec. Coop., 225 Wis. 2d 588, 601, 593 N.W.2d
901 (Ct. App. 1999) (acts of negligent omission involve “‘inaction or a failure to
take steps to protect’” (citation omitted)). Thus, the circuit court correctly
concluded there were no affirmative acts of negligence.
¶27 We agree with Fernando, however, that under Presser, the existence
of the contract wherein the General Contractor assumed sole responsibility to
14
No. 2021AP1720
protect the workers and all subcontractors makes the independent contractor rule
inapplicable. In Presser, the supreme court recognized that:
[T]he negligent performance or nonperformance of a duty
created by a contract may constitute actionable
negligence…. It imposes the standard of care and the
obligation to the plaintiff. A general contractor by contract
may assume a duty of care for the benefit of others than the
promisee over and above such common law liability for
negligence which would otherwise be applicable to the facts.
Id., 19 Wis. 2d at 59. Presser controls here because the contract the General
Contractor entered into with Access Elevator, like the contract in Presser, imposed
a duty “above such common law liability for negligence” with respect to
safeguarding the open elevator shaft. See id. Thus, Fernando’s negligence claim
against the General Contractor that would otherwise be barred by the independent
contractor rule may proceed based on the safety contract.
¶28 The Record is replete with genuine issues of material fact over
whether the General Contractor breached the contractual duty it assumed. Multiple
witnesses provided deposition testimony about the absence of guardrails or
OSHA-compliant barricades to prevent workers or subcontractors from falling
down the elevator shaft. Some witnesses saw a warning sign on the door, whereas
others did not. This dispute over whether the General Contractor complied with the
duty to maintain safety that it assumed by contract precludes summary judgment.
Thus, the circuit court erred in granting summary judgment to the General
Contractor on the negligence claim, and we reverse that part of the judgment.
B. Safe Place Statute
¶29 Fernando next asks us to reverse the circuit court’s grant of summary
judgment with respect to his safe place claim. He contends the circuit court erred
15
No. 2021AP1720
in concluding that, as a matter of law, the elevator shaft was not an unsafe condition
under WIS. STAT. § 101.11 and in concluding that, when the General Contractor
installed boards across the second-floor door opening in early 2017, it satisfied its
duty under the safe place statute. We conclude the circuit court erred in both
respects.
¶30 “Wisconsin’s safe place statute, WIS. STAT. § 101.11, is a negligence
statute that imposes a heightened duty on employers and owners of places of
employment and public buildings to construct, repair, or maintain buildings safely.”
Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶19, 291 Wis. 2d 132, 715 N.W.2d
598. Section 101.11(1), as relevant, provides:
Every employer shall furnish employment which shall be
safe for the employees therein and shall furnish a place of
employment which shall be safe for employees therein and
for frequenters thereof and shall furnish and use safety
devices and safeguards, and shall adopt and use methods and
processes reasonably adequate to render such employment
and places of employment safe, and shall do every other
thing reasonably necessary to protect the life, health, safety,
and welfare of such employees and frequenters.
It is undisputed that the safe place statute applies to the construction project because
the General Contractor was an employer at a place of employment (albeit
temporary), see Barth v. Downey Co., Inc., 71 Wis. 2d 775, 778, 239 N.W.2d 92(1976), and owed a duty to keep the place “‘in as safe a condition as the nature of
the premises reasonably permits.’” See Hofflander v. St. Catherine’s Hosp., Inc.,
2003 WI 77, ¶87, 262 Wis. 2d 539, 664 N.W.2d 545 (citation omitted). Our law
recognizes Fernando as a “frequenter” within the meaning of the safe place statute.
See Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210, 226, 284 N.W.2d 621(1979) (“An employee of an independent contractor doing work on the premises is
a frequenter working in a place of employment.”).
16
No. 2021AP1720
¶31 The meaning of “safe” in WIS. STAT. § 101.11 “does not mean
completely free of any hazards” and does not mean that “[j]ust because a place could
be made more safe” that the employer breached its duty. Megal v. Green Bay Area
Visitor & Convention Bureau, Inc., 2004 WI 98, ¶10, 274 Wis. 2d 162, 682
N.W.2d 857. Rather, the statute imposes a duty on an employer “to construct, to
repair, and to maintain a safe place of employment[.]” Barry v. Employers Mut.
Cas. Co., 2001 WI 101, ¶20, 245 Wis. 2d 560, 630 N.W.2d 517. An unsafe
condition arises under the safe place statute when the employer fails “to keep an
originally safe structure in proper repair or properly maintained.” Id., ¶27. Stated
otherwise, the unsafe condition occurs when an employer fails “to repair or maintain
the property and generally involve[s] the structure falling into disrepair or not being
maintained in a safe manner.” Mair, 291 Wis. 2d 132, ¶23. As material here, the
unsafe condition associated with the structure involves the open elevator shaft.
¶32 There does not appear to be any question that the elevator shaft itself
was properly constructed—it was not a structural defect under the safe place
statute—and it appears that William Rullman’s initial installation of the guardrails
prevented an unsafe condition. The circuit court therefore determined that the open
elevator shaft was not an unsafe condition because William initially installed the
purportedly OSHA-compliant guardrails over the opening. But the safe place
statute requirements extend beyond initial construction, and the General Contractor,
as the employer, therefore owed a duty to Fernando (a frequenter) to maintain the
open elevator shaft in a safe manner. See id. The Record is replete with disputed
issues of material fact as to whether the elevator shaft awaiting installation of the
elevator and concealed by a door similar to the bedroom doors on that floor was
maintained in a safe manner.
17
No. 2021AP1720
¶33 Fernando’s expert said that it was not. The expert opined that if the
General Contractor had maintained guardrails over the open elevator shaft
throughout the duration of the project, the unsafe condition would not have arisen.
A number of witnesses also provided deposition testimony about the presence and
absence of the guardrails. And there is a dispute over whether the wood block latch
that Stanke installed constituted “maintaining” the open elevator shaft in a safe
manner. Whether the General Contractor breached its duty to maintain the open
elevator shaft to prevent it from being an unsafe condition is therefore a question of
fact for the jury.17
C. William Rullman
¶34 The circuit court dismissed William Rullman from the lawsuit as a
part of the General Contractor defendant group. Fernando asks us to reverse the
circuit court’s decision in this regard because he sued William individually. As
noted, we affirm the circuit court’s dismissal of William from the lawsuit. William
17
The General Contractor insists it had no control over AM Painting. Fernando argues
that lack of control over AM Painting is not dispositive to relieve the General Contractor of liability
because the safety contract evidences the General Contractor retained control over safeguarding
the elevator shaft with respect to all the workers on the premises. Accordingly, we cannot say, as
a matter of law, that the General Contractor relinquished the control over the premises necessary
to relieve it of its duty under the safe place statute.
Moreover, although the General Contractor asserts that Hofflander v. St. Catherine’s
Hospital, Inc., 2003 WI 77, 262 Wis. 2d 539, 664 N.W.2d 545, precludes application of the safe
place statute, we conclude Hofflander is distinguishable and does not control. The General
Contractor argues that Fernando’s injury in this case, like that of the plaintiff in Hofflander, was
the result of an “‘act[] of operation,’” i.e., Fernando opening the elevator door or AM Painting
removing the wood block latch and therefore creating an unsafe condition, as opposed to an already
existing unsafe condition. See id., ¶94. In making this argument, however, the General Contractor
assumes there was no existing unsafe condition at all because, according to it, there was at least
some type of “barricade”—the “latch” Stanke constructed. Whether there was in fact some type of
barricade in place at the time of Fernando’s injury—and one that sufficiently complied with
applicable safety standards and WIS. STAT. § 101.11(1)—is a question that remains unresolved.
Accordingly, this is not an “‘act[] of operation’” situation like that in Hofflander.
18
No. 2021AP1720
did not guarantee the safety of the workers or subcontractors as he was not a party
to the contract with Access Elevator. Further, William is an employee of the
General Contractor, and the General Contractor will be responsible for William’s
negligence, if any, through the doctrine of respondeat superior. See, e.g., Lewis v.
Physicians Ins. Co. of Wis., 2001 WI 60, ¶12, 243 Wis. 2d 648, 627 N.W.2d 484(The doctrine of respondeat superior “allows a non-negligent employer to be held
liable for an employee’s actions.”).
D. Acuity
¶35 In its summary judgment motion, Acuity asserted that the circuit court
lacked jurisdiction over it because Fernando purportedly failed to timely serve the
Second Amended Complaint upon it as required by WIS. STAT. § 801.02(1) and that
this purported noncompliance was a fundamental defect. Acuity raises the same
argument on appeal. In response, Fernando argues, as he did at the summary
judgment stage, that Acuity waived its ability to assert that service was improper
pursuant to WIS. STAT. § 802.02(6).
¶36 In addressing this argument, the circuit court said only: “So I’m
granting the motion for summary judgment filed on February 12th with respect to
defendants Michael Todd Group, the Estate of Michael Todd Rullman, William
Rullman and Acuity, a Mutual Insurance Company. Also [I] find that Acuity was
not served within 90 days.” (Emphasis added.) The circuit court did not cite to any
law—statutory or otherwise—or provide any explanation or rationale for “finding”
that Fernando did not properly serve Acuity. Further, it did not discuss Fernando’s
argument that Acuity waived its service argument. These arguments, taken as a
whole, suggest that there are disputed issues of material fact that would preclude
summary judgment as to this issue. The circuit court, however, failed to adequately
19
No. 2021AP1720
address18 these arguments or state whether there were any disputed issues of
material fact.
¶37 Because we reverse the circuit court with respect to its grant of
summary judgment, we also remand this issue back to the circuit court so that it can
fully address and properly assess the parties’ dispute as to whether Acuity was
properly served and whether Acuity waived its right to assert a jurisdictional
defense.
IV. CONCLUSION
¶38 The independent contractor rule does not apply under the
circumstances here because the General Contractor contracted to assume sole
responsibility for worker and subcontractor safety with regard to the elevator shaft
when it entered the contract with Access Elevator. As a result, the circuit court erred
in granting summary judgment to the General Contractor with respect to Fernando’s
negligence claim. The Record contains genuine disputed issues of material fact as
to whether the General Contractor’s negligence caused Fernando’s injuries;
therefore, we reverse that part of the judgment. The circuit court also erred in
granting summary judgment to the General Contractor on the safe place claim
because there are disputed issues of material fact with respect to the General
Contractor’s statutory duty to keep this workplace as safe as reasonably possible as
required by the safe place statute. Whether the General Contractor breached its duty
18
The circuit court’s single sentence “finding” that Fernando did not properly serve Acuity
with the Second Amended Complaint appears almost as an afterthought because it was granting
summary judgment to Acuity’s insured, which perhaps led it to believe there was no need to further
address the jurisdiction argument itself as a result.
20
No. 2021AP1720
to safely maintain the open elevator shaft to prevent it from being an unsafe
condition is therefore a question of fact for the jury.
¶39 The circuit court did not err when it granted summary judgment to
William Rullman because William was not a party to the Access Elevator contract
and was at all times acting within the scope of his employment as an employee for
the General Contractor, and therefore, if the jury finds William negligent, the
General Contractor will be held liable. Finally, because the circuit court failed to
properly address Acuity’s jurisdictional argument, we remand that issue to the
circuit court with directions to do so.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.
21