April 28, 2026 – The asbestos dust that a steamfitter breathed, causing mesothelioma, resulted in safe-place statute liability for Pabst Brewing Co., a 5-2 majority of the Wisconsin Supreme Court decided recently in Estate of Carol Lorbiecki v. Pabst Brewing Co., 2026 WI 12.

“As the owner of the brewery, Pabst owed a non-delegable duty under the safe-place statute to frequenters on the premises, a category that includes employees of independent contractors like Lorbiecki,” Justice Rebecca Frank Dallet wrote for the majority.

Two dissenting justices, however, said the Supreme Court should have evaluated the evidence at summary judgment. Including trial evidence, they found the independent contractor’s work caused the place to become unsafe.

“As the plaintiff, Lorbiecki … did not assert that Pabst controlled his work and he failed to produce any evidence that the undisturbed asbestos at Pabst’s brewery created an unsafe condition on the premises,” wrote Justice Annette Kingsland Ziegler in a dissent joined by Justice Rebecca Grassl Bradley.

“As a matter of law, summary judgment should have been granted.”

Asbestos Dust

Pabst hired an independent contractor in the 1970s. Gerald Lorbiecki worked for the independent contractor as a steamfitter.

His job required that he “cut out existing insulated pipes and replaced them.” Asbestos insulated the pipes.

To remove the pipes, the steamfitters chipped off the insulation with whatever was handy. Asbestos dust flew into the air.

Asbestos is generally safe unless released. Contact with airborne particles can result in cancer. Lorbiecki died of mesothelioma, an asbestos-related cancer.

Pabst knew both that “pipe insulation in the brewery contained asbestos” and “airborne asbestos caused serious illness years before Lorbiecki worked there.”

Lorbiecki’s estate sued Pabst, among other defendants that were later dismissed on stipulations, claiming negligence for violating the duty of ordinary care and the safe-place statute.

Pabst moved for summary judgment because Lorbiecki “was an employee of an independent contractor and Pabst did not control his work.”

The Milwaukee County Circuit Court granted summary judgment for the common-law negligence claim but allowed the safe-place claim to go to trial.

After Lorbiecki’s estate finished the case, Pabst moved for judgment as a matter of law, arguing that the evidence did not support safe-place liability or punitive damages. The circuit court denied the motion.

The jury awarded Lorbiecki’s estate compensatory damages of $6,545,163.55 and $20 million in punitive damages.

Pabst moved for a judgment notwithstanding the verdict, which the circuit court denied.

The circuit court assigned to Pabst, the remaining defendant, $2,328,969 in compensatory damages and $4,657,937 in punitive damages.

Where to Begin?

The majority and dissent dispute where the Court should begin its analysis, at summary judgment or after trial.

The majority believed the time element was irrelevant. The issue was legal, not factual. The parties argued no “material difference” between the records before trial and after.

A concurrence, also written by Justice Dallet and joined by Justice Brian K. Hagedorn, prescribed that, in the proper case, the court should clarify the scope of appellate review.

Although logically the reviewing court “should rewind the clock,” the concurrence said, federal practice doesn’t work that way.

The dissent, on the other hand, believed the majority’s choice “effectively denies review” of the motion, and “effectuated a sea change in summary judgment review.”

Majority: Safe-Place Statute Liability

The safe-place statute, Wis. Stat. section 101.11, the majority explained, “establishes a duty greater than that of ordinary care.” Employers are required to “furnish a place of employment which shall be safe for employees therein and for frequenters thereof.”

“Frequenters” include employees of independent contractors.

“Tatera’s ‘general rule’ does not apply, however, to claims under the safe-place statute,” the majority said.

Nor does the exception in Potter v. City of Kenosha, 268 Wis. 361 (1955), apply to Pabst, the majority concluded.

Under Potter, the majority said, Pabst must show “both (1) that it did not control Lorbiecki’s work, and (2) that it turned over ‘control and custody’ of the place where the work was to be performed, in a safe condition.’”

Because Pabst required daily inspections and safety and sanitary requirements, the majority held “that a reasonable jury could find that Pabst retained control over the place where he worked.”

“Pabst knew of ‘many miles of’ pipes in its facility were insulated with asbestos, and that airborne asbestos was a danger to human health.” Pabst knew about the risk, the majority said, through choosing the work to be done and inspecting it.

Punitive Damages

Pabst sought reversal of its punitive damages award. It got part of what it asked for.

Pabst knew of an unsafe condition, the majority explained, continuing to use asbestos and cited by the Occupational Safety and Health Administration (OSHA) in 1986 for “broken asbestos-containing pipe insulation.”

As a result, “the jury could find by clear and convincing evidence that Pabst was, at a minimum, ‘aware that [its] conduct [wa]s substantially certain to result in [Lorbiecki’s] rights being disregarded.”

That was enough, the majority held, to instruct the jury on punitive damages.

Punitive damages under Wis. Stat. section 895.043(6) “may not exceed twice the amount of any compensatory damages recovered by the plaintiff.”

Contrary to the Court of Appeals, the majority said “recovered” means “only amounts that a plaintiff is legally entitled to receive after obtaining a judgment, and excludes amounts that the plaintiff cannot obtain as a matter of law.”

Pabst’s punitive damages, based on its share of fault, “are capped at $4,657,937.38.”

Dissent: ‘Should Never Have Proceeded to Trial’

Just like the circuit court erred, the dissent said, “the majority blurs the distinction between the duty an independent contractor owes to its employee and the duty a building owner owes to that employee.”

“At summary judgment, trial, and post-verdict, the same errors were repeated as the building owner’s liability to the employee of an independent contractor was seemingly assumed regardless of the required legal analysis and proof,” the dissent summarized.

Using Potter’s two-prong test, the dissent found no liability for Pabst.

“Lorbiecki never asserted that Pabst exercised ‘control,’” the dissent said. Instead, the plaintiff argued at summary judgment that it was unnecessary in a claim of “unsafe condition” based on “the mere presence of ‘asbestos-containing insulation.’”

Control means more than what the majority found, the dissent said. “To avoid liability, Pabst had to relinquish” control of “the details of the work.”

The owner still has to retain some control – and some safe-place liability – for its own employees. Retaining the right of inspection or changing plans, the dissent clarified, is not control.

No evidence exists in the record “that the asbestos at Pabst was unsafe at the relevant time” when Pabst permitted the independent contractor inside the brewery, the dissent explained.

“Lorbiecki’s argument was that the existence of asbestos, regardless of its form, constituted an ‘unsafe condition,’” the dissent said, but “[t]he independent contractor’s own actions in dismantling ventilation ducts created the danger.”

“The record at the time of summary judgment established that summary judgment should have been granted to Pabst,” the dissent concluded. “Delving into the record, this case should never have proceeded to trial.”

“After trial, the legal errors continued as the motion for judgment notwithstanding the verdict, which was essentially the motion for summary judgment renewed, should have been granted.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.