872 N.W.2d 124
Wis. Ct. App.2015Background
- Brenner, a Hunzinger Construction worker, fell through a large unmarked plywood-covered hole in a building and was severely injured while moving a panel.
- Charter Manufacturing had been a long-term tenant under a triple-net lease with exclusive possession and repair obligations; it removed machinery (leaving large holes) and hired contractors who covered the holes with untethered, unmarked plywood panels before vacating in Nov. 2009.
- Garland Brothers (owner) sold the building to Milwaukee World Festival, Inc. (MWF) in May 2011 in an "as-is, where-is" sale; MWF inspected the premises multiple times and obtained environmental reports showing the pits and photos of the panels prior to purchase.
- Brenners sued Charter, Garland Brothers, MWF and insurers for negligence and safe-place statutory claims; circuit court granted summary judgment for Charter and Garland Brothers based on Restatement (Second) of Torts § 352 (vendor immunity / caveat emptor).
- MWF appealed dismissal of Charter, arguing (1) a former tenant is not a "vendor" under § 352, and (2) even if § 352 applies, the § 353 concealment exception should bar immunity.
- The court affirmed: former tenant Charter qualifies as a "vendor" under § 352, and § 353 does not apply because MWF had (or had reason to have) knowledge of the hazard.
Issues
| Issue | Plaintiff's Argument (Brenner/MWF) | Defendant's Argument (Charter) | Held |
|---|---|---|---|
| Whether a former tenant qualifies as a "vendor" under Restatement (Second) of Torts § 352 | § 352 should not apply because Charter was a former tenant, not a seller/vendor | Former tenant who relinquished possession is entitled to vendor immunity under § 352 | Court: Former tenant qualifies as a vendor; § 352 immunity applies |
| Whether the § 353 concealment exception defeats vendor immunity | § 353 applies because Charter knew (or should have known) of the hazard and concealed it; MWF did not know of the specific danger | § 353 does not apply because MWF had actual or constructive knowledge from inspections and reports | Court: § 353 inapplicable — MWF had reason to know of covered holes, so concealment exception fails |
| Whether seller liability should rest on who had possession/control when injury occurred | Liability should attach to prior occupant if it created or left hazardous condition | Liability is limited to party in possession/control (buyer) because they are best able to prevent harm | Court: Liability rests with party in possession/control (MWF) at time of injury |
| Whether summary judgment was appropriate given undisputed facts | Disputed inferences could preclude summary judgment about knowledge | Undisputed record shows inspections, reports, and visibility that give buyer reason to know | Court: Summary judgment for Charter affirmed; no triable issue on knowledge exception |
Key Cases Cited
- Brock v. Rogers & Babler, Inc., 536 P.2d 778 (Alaska 1975) (former lessee who relinquished possession protected by § 352 because liability rests with possessor/control)
- Great Atlantic & Pacific Tea Co. v. Wilson, 408 N.E.2d 144 (Ind. Ct. App. 1980) (lessee who surrendered possession can be insulated from liability under § 352)
- McCarty v. Covelli, 514 N.W.2d 45 (Wis. Ct. App. 1994) (right of possession, not actual possession, is central to § 352 analysis)
- Ollerman v. O'Rourke Co., 288 N.W.2d 95 (Wis. 1980) (distinguishable; did not involve §§ 352/353 and does not abrogate caveat emptor application here)