Principal employer not liable to independent contractor in asbestos
By org jforward wisbar Joe Forward, Legal Writer, State
Bar of Wisconsin
July 29, 2010 – No exceptions applied to place liability on a
principal employer for the asbestos-related death of an independent
contractor, the Wisconsin Supreme Court recently held.
v. FMC Corporation, 2010 WI 90 (July 20, 2010), the supreme
court ruled 4-3 to reverse an appeals court decision that FMC Corp.
(FMC) negligently caused the death of Walter Tatera, who did work for
FMC as an independent contractor.
The majority – in an opinion written by Justice Annette K.
Ziegler – held that no exception applied to the general rule that
“a principal employer is not liable in tort for injuries sustained
by an independent contractor’s employee while he or she is
performing the contracted work.”
In 1967, FMC bought Stearns Electric Company (Stearns), a
Milwaukee-based manufacturer of industrial electric brakes. A part
within Stearns’ brake systems, a friction disk, contained some
form of asbestos until 1986. Stearns purchased the friction disks from
From 1968 to 1993, Walter Tatera worked for B&M Machine Products
(B&M) in Hales Corners.
Stearns outsourced some of its work to B&M, supplying B&M with
asbestos-containing friction disks for sizing and shaping. As an
employee of B&M, Tatera grinded and shaped the disks.
In 2004, Tatera died from malignant mesothelioma, a rare form of cancer
that has been linked to asbestos exposure. Tatera’s wife, as
special administrator to her husband’s estate, filed suit alleging
negligence and strict products liability.
Tatera claimed that the circumstances gave rise to a claim under
Restatement (Second) of Torts section 388, adopted by the supreme court.
Section 388 creates a cause of action in tort against a chattel supplier
who has reason to know the chattel is dangerous, no reason to believe
the supplied persons will know of the danger, and fails to exercise
reasonable care to inform them.
Tatera claimed FMC supplied B&M with asbestos-containing products,
failed to warn B&M workers of health hazards, failed investigate the
health effects of asbestos, and failed to instruct B&M workers on
precautionary measures necessary in working with asbestos containing
FMC moved for summary judgment on the general rule that principal
employers are not liable in tort to independent contractors, and no
The circuit court granted FMC’s motion. The appeals court
reversed, holding that section 388 applies to “suppliers,”
not just manufacturers, and exceptions applied to the general rule that
principal employers are not liable in tort to independent
Under Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 421
N.W.2d 835 (1988), a principal employer is not liable in tort for
injuries sustained by an independent contractor’s employee, the
supreme court explained.
The Wagner rule relies on the reasoning that a contract
between a principal employer and an independent contractor includes
payment for workers compensation coverage, the court explained. Thus,
workers compensation provides the remedy, not tort liability.
However, there are exceptions to theWagner rule if “the
principal employer committed an affirmative act of negligence” or
“the employee was injured while engaged in an extrahazardous
activity,” the court noted.
Affirmative act of negligence
Wisconsin precedent “requires more than an omission in order to
impose liability on a principal employer for injuries sustained by an
independent contractor’s employee,” the court explained. In
other words, the alleged negligent act “must be
Here, the court held that a “failure to warn, the failure to
investigate or test, and the failure to instruct are omissions, not
affirmative acts.” Additionally, the court recognized that
supplying asbestos-containing friction disks constitutes an affirmative
act, but this affirmative act is not enough to impose liability on FMC
for committing an affirmative act of negligence.”
Imposing negligence liability on a principal employer for the act of
supplying a dangerous chattel to an independent contractor, the court
wrote, “would undermine our three decades of precedent that
requires an affirmative act of negligence.”
While independent contractors have a cause of action against principal
employers when the activity is “extrahazardous,” no such
action arises for “inherently dangerous ones,” the court
explained. The distinction is that precautions can minimize the risk
associated with inherently dangerous activities, but risks cannot be
minimized with extrahazardous ones.
Here, the court held, “machining an asbestos-containing friction
disk is not an extrahazardous activity because steps may be taken to
minimize the risk of injury” by wearing protective equipment or
taking proper precautions.
Holding that no exception to the Wagner rule applied, the
court reversed the appeals court and barred Tatera’s negligence
claim against FMC.
The dissent written by Justice N. Patrick Crooks (joined by Abrahamson,
C.J. and Bradley, J.), argued that Tatera established, at a minimum, a
right to a trial based on the “affirmative act” exception to
the Wagner rule.
The dissent noted that the majority failed to address the interplay
between Restatement (Second) of Torts section 388 and the
Wagner rule, instead holding the Wagner rule
“Regardless of whether Wagner applies exclusively,
[section] 388 applies exclusively, or both apply, FMC is not entitled to
summary judgment in this case,” Justice Crooks wrote.
Tatera set forth genuine issues of material fact as to the elements of
[section] 388, Crooks explained, and “to the extent that
Wagner applies, it does not bar Tatera’s
The dissent argued that the “affirmative act” exception
applies “because FMC committed an affirmative act when it provided
asbestos-containing friction disks to B&M for its employees to grind
and manipulate without warning of the dangerous content.”
Mark Des Rochers of Appleton represented FMC. Jill Rakauski and Steven
Penn of Penn Rakauski, Racine, represented the Tatera estate.