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  • WisBar News
    January 06, 2014

    Estate Wins Appeal in Safe Place Statute Asbestos Case, Trial May Proceed

    Jan. 6, 2014 – A state appeals court has ruled in favor of an estate administrator who claims Wisconsin Electric Power Company knowingly allowed his father to work in the presence of asbestos without telling him, and claimant’s father died as a result.

    Specifically, Anthony Viola says Wisconsin Electric violated the state’s safe place statute, Wis. Stat. section 101.11, which requires employers “to furnish a place of employment which shall be safe for employees therein and for frequenters thereof.”

    Viola’s father, Robert Viola, worked as an pipe insulator for 25 years, often in buildings and power plants owned by Wisconsin Electric. The lawsuit claims that Viola was exposed to asbestos dust that later caused malignant mesothelioma. Robert Viola died in 2009.

    Wisconsin Electric was one of five major companies named as a defendant, and Anthony Viola said all of them violated the safe place statute by allowing Robert to work in those buildings without warning him or taking proper precautions to ensure his safety.

    Robert Viola worked between the mid-1950s through the 1980s, and during a time where power generation equipment was required to be insulated with asbestos. During this time, though, Wisconsin Electric knew asbestos was harmful, the lawsuit alleges.

    The trial court granted a motion for summary judgment in favor of Wisconsin Electric, concluding that the complaint alleged “acts of operation” and not “unsafe conditions.”

    That is, the safe place statute does not cover negligent acts of persons on the premises, and Wisconsin Electric argued that the complaint alleged negligent acts of persons.

    But in Estate of Viola v. Wisconsin Electric Power Co., 2013AP22 (Dec. 27, 2013), a three-judge panel for the District I Court of Appeals reversed the trial court’s decision.

    The panel noted that in safe place statute cases, there is only liability if an employer had actual or constructive notice of a defect creating an unsafe “structural” condition.

    But the panel cited cases in which the court ruled that the regular release of asbestos dust into the air creates an unsafe condition associated with the structure. The panel also distinguished cases in which the injured party caused the unsafe condition.

    “[W]e conclude that the presence of asbestos dust in the air at Wisconsin’s Electric’s premises was an ‘unsafe condition,’” wrote Judge Patricia Curley, remanding the case for a trial and noting evidence that creates genuine issues of material fact. 

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