Independent Contractors – Inherently Dangerous Activities
Brandenburg v. Briarwood Forestry Servs. LLC, 2014 WI 37 (filed 12 June 2014)
HOLDING: A landowner who employed an independent contractor that engaged in “inherently dangerous” conduct (applying an herbicide) may be liable to adjacent property owners for damage to their property.
SUMMARY: Luethi hired a tree service, which sprayed an herbicide to kill the prickly ash that had grown on his property. The Brandenburgs, who owned adjacent property, alleged that the same herbicide killed dozens of trees on their land. They sued both the tree service and Luethi, alleging that the defendants failed to prevent the chemicals from drifting onto the plaintiffs’ property. The circuit court dismissed the claim against Luethi on grounds that the use of the pesticide was not “ultrahazardous.” In an unpublished decision the court of appeals reversed, ruling that application of the pesticide was “inherently dangerous” such that Luethi could be liable under an exception to the general rule shielding employers from the acts of their independent contractors.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court affirmed in an opinion authored by Justice Crooks. In general, a person who hires an independent contractor is not liable for the latter’s negligence, subject to an exception for “inherently dangerous activities” (¶ 25). Case law has “dispelled any confusion” between the categories of “extrahazardous” and “inherently dangerous” activities; the two are not synonymous, and people engaged in inherently dangerous conduct can take precautions to minimize harm (¶ 39). Those who engage in extrahazardous activity, however, may be strictly liable for damages (see ¶ 49).
“We agree with the court of appeals for the reasons it stated that in this case, under our precedent, the activity [application of the herbicide] 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” (¶ 58). The supreme court remanded the case for a determination of whether Luethi used ordinary care with regard to the herbicide and whether any such conduct caused the harm.
Chief Justice Abrahamson, joined by Justice Bradley and Justice Prosser, concurred in part and dissented in part. “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” (¶ 73).
Governmental Immunity – Emergency Vehicles – Wis. Stat. Section 346.03
Legue v. City of Racine, 2014 WI 92 (filed 25 July 2014)
HOLDING: The governmental immunity statute did not apply to a police officer’s violation of the duty to operate an emergency vehicle with due regard under the circumstances for the safety of all persons.
SUMMARY: The plaintiff was injured in a collision at an intersection in the city of Racine between her car and a Racine Police Department vehicle driven by Officer Matsen, the defendant. The officer was responding to an emergency dispatch with lights and siren activated. At the intersection, the officer slowed for a red light and maneuvered around other stopped vehicles; after entering the intersection, the officer collided with the car of the plaintiff, who had a green light.
A jury found the plaintiff and the officer each 50 percent causally negligent and awarded damages to the plaintiff of $129,799. On the defendant’s motion for judgment notwithstanding the verdict, the circuit court ruled as a matter of law that because the police officer’s decision to enter the intersection was discretionary, all her other allegedly negligent decisions were part of her discretionary decision and immune from suit. On the defendant’s motion for a directed verdict, the circuit court ruled that the police officer had a duty to exercise due regard but that in the instant case, the police officer’s negligence was not causal (see ¶ 34). The plaintiff appealed, and the court of appeals certified the case to the supreme court, which granted certification.
The appeal presented an issue of law at the juncture of Wis. Stat. section 893.80, which governs the immunity of municipal governments and their officers and employees, and Wis. Stat. section 346.03, which governs the rules of the road for emergency vehicles. The immunity statute declares that no suit may be brought against any governmental actor for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. These functions are synonymous with discretionary acts (see ¶ 4).
“If an act is discretionary, then governmental immunity provided by Wis. Stat. § 893.80(4) applies. There is no immunity, however, for liability associated with the performance of ministerial duties imposed by law” (¶ 42) (internal quotations omitted). The statute governing the rules of the road applicable to emergency vehicles sets forth statutory privileges of authorized emergency vehicles to exempt their operators from certain rules of the road but also explicitly states that an operator of an emergency vehicle is not relieved of the “duty to drive or ride with due regard under the circumstances for the safety of all persons….” Wis. Stat. § 346.03(5).
In a majority decision authored by Chief Justice Abrahamson, the supreme court concluded that “the police officer in the instant case who is alleged to have breached the duty of ‘due regard’ under
§ 346.03(5) is not immune from suit under § 893.80(4)” (¶ 92). Wisconsin Statutes section 346.03 sets forth a ministerial duty (see ¶ 124).
“The ministerial duty in the instant case is a duty to maintain a particular standard of care – namely a duty of ‘due regard under the circumstances.’ This duty is given additional clarification, but not precision, through the Racine internal police procedures detailing what due regard entails. As our case law has demonstrated, although not consistently, a duty need not dictate each precise undertaking that the government actor must implement in order to be ministerial” (¶ 131). The court further concluded that in this case there was credible evidence to support the jury verdict of causal negligence on the part of the officer (see ¶ 17).
Justice Ziegler filed a dissenting opinion that was joined by Justice Bradley and Justice Roggensack.
Power of Circuit Court to Compel an Employee to Accept Settlement of Claim – No Violation of the Jury Trial Right or Procedural Due Process
Adams v. Northland Equipment Co., 2014 WI 79 (filed 22 July 2014)
HOLDINGS: The power of the circuit court to compel an employee to accept settlement of a worker’s compensation claim does not violate the jury trial right under the Wisconsin Constitution, and the entry of such order in the present case did not deprive the employee of procedural due process.
SUMMARY: Adams sued Northland Equipment Co. and its insurer, Cincinnati Insurance Co., pursuant to Wis. Stat. section 102.29(1) (part of the worker’s compensation statutes) for personal injuries Adams sustained while plowing snow for his employer. Northland offered $200,000 to settle Adams’ claim. The employer’s worker’s compensation insurer, the League of Wisconsin Municipalities Mutual Insurance Co. (LWMMIC), accepted Northland’s offer and moved the circuit court to compel Adams to accept it as well. The circuit court granted LWMMIC’s motion.
On appeal, Adams contended that the circuit court erred because a worker’s compensation insurer cannot compel an employee to accept settlement of a third-party tort claim. Adams reasoned that Wis. Stat. section 102.29(1) cannot be interpreted to permit the circuit court to compel settlement because such an interpretation would violate his right to a jury trial, which article I, section 5 of the Wisconsin Constitution secures. He also argued that the circuit court’s order violates procedural due process and is the product of an erroneous exercise of discretion because, among other things, the circuit court did not conduct an evidentiary hearing. In an unpublished decision, the court of appeals affirmed.
In a majority opinion authored by Justice Roggensack, the supreme court affirmed the court of appeals. It concluded that “a circuit court may compel an employee to accept settlement of the claim the legislature created in Wis. Stat. § 102.29(1). In such a claim, both the employee and the worker’s compensation insurer share the right to sue third parties; the employee and the worker’s compensation insurer have an equal voice in the prosecution of the claim; recovery from the claim is apportioned in the manner described in § 102.29(1)(b); and the circuit court is empowered to resolve any disputes arising between the employee and the worker’s compensation insurer during the prosecution of their claim, including those disputes involving settlement” (¶ 82).
Although the statute does not identify a standard for the circuit court to employ when deciding whether to compel a party to accept settlement, the supreme court concluded that the circuit judge must evaluate “whether the settlement is reasonably fair to both parties” (¶ 72).
The majority further held that its interpretation of Wis. Stat. section 102.29(1) “does not violate Adams’ right to a jury trial because the claim § 102.29(1) creates is not the counterpart of a cause of action at law recognized at the time of the adoption of the Wisconsin Constitution. We further conclude that the circuit court’s authority to compel an employee to accept settlement does not violate procedural due process because judicial resolution of disputes is part of the statutory claim. Lastly, we conclude that the circuit court appropriately exercised its discretion by defining the dispute, taking stock of the relative positions of the parties and considering matters that impacted the fairness of the settlement” (¶ 83).
Although there was no evidentiary hearing on the motion to compel settlement, the circuit court had the benefit of the briefing and thorough questioning on defendants’ summary judgment motion plus additional materials the parties submitted relating to the motion to compel settlement (see ¶¶ 74-75).
Justice Bradley filed a dissenting opinion that was joined by the Chief Justice.