992 N.W.2d 853
Wis. Ct. App.2023Background
- Plaintiff Fernando Martinez, a painter working for AM Painting, fell down an unfinished elevator shaft in a homeowner’s remodeling project and suffered severe injuries.
- The Michael Todd Group, LLC ("General Contractor") performed the renovation; its employee William Rullman initially framed the shaft and installed horizontal two-by-four guard boards months earlier.
- The General Contractor had a written contract with Access Elevator agreeing the GC would be solely responsible for barricades and safety around the shaft until the elevator was installed.
- Carpentry subcontractor Richard Stanke removed a guard board to install the access door and installed a small wood block "latch"; witnesses dispute whether any guardrails or warning signs existed at the time of Martinez’s fall.
- Circuit court granted summary judgment to the General Contractor, William, and insurer Acuity (finding independent-contractor rule applied, no unsafe condition under the safe place statute, and Acuity not timely served); Martinez appealed.
- Court of Appeals reversed summary judgment as to the General Contractor (negligence and safe place claims), affirmed dismissal of William, and remanded the service/jurisdiction issue as to Acuity for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the independent-contractor rule bars Martinez’s negligence claim against the General Contractor | Martinez: GC assumed safety responsibility by contract with Access Elevator, so independent-contractor defense is inapplicable | GC: Wagner-independent-contractor rule bars tort liability for injuries caused by subcontractor’s employee | Held: Independent-contractor rule does not apply because GC contractually assumed sole responsibility for safety; negligence claim may proceed |
| Whether the elevator shaft presented an "unsafe condition" under the Wisconsin safe place statute, §101.11 | Martinez: disputed facts (missing/removed guardrails; insufficient latch) create triable issue that GC failed to maintain a safe workplace | GC: initial guardrails were installed and thus no ongoing unsafe condition; act of operation by subcontractor caused the accident | Held: Summary judgment improper—there are genuine disputed facts about maintenance and whether the condition was unsafe under §101.11; for jury decision |
| Whether William Rullman may remain individually liable despite GC’s liability | Martinez: sued William individually; argues he should not get GC defenses | William/GC: William acted as GC employee and was not party to safety contract; respondeat superior applies | Held: Affirmed dismissal of William; he was an employee acting within scope and GC would be vicariously liable if he is negligent |
| Whether Acuity was timely served and thus whether the court had jurisdiction over Acuity | Martinez: service was proper and Acuity waived defects | Acuity: service on Second Amended Complaint was untimely under §801.02(1), depriving court of jurisdiction | Held: Circuit court’s single-sentence finding on service was insufficient; remanded for proper summary-judgment analysis of Acuity’s service/jurisdiction defense |
Key Cases Cited
- Wagner v. Continental Cas. Co., 143 Wis. 2d 379 (1988) (establishes independent-contractor rule barring tort claims by subcontractor employees except in limited circumstances)
- Presser v. Siesel Constr. Co., 19 Wis. 2d 54 (1963) (a general contractor may assume by contract a duty of care that creates tort liability)
- Mair v. Trollhaugen Ski Resort, 291 Wis. 2d 132 (2006) (describes scope of Wisconsin’s safe place statute and duty to maintain safe place of employment)
- Hofflander v. St. Catherine’s Hosp., Inc., 262 Wis. 2d 539 (2003) (distinguishes act-of-operation cases under §101.11)
- Danks v. Stock Bldg. Supply, Inc., 298 Wis. 2d 348 (2007) (defines "affirmative act of negligence" as active misconduct increasing risk)
- Talley v. Mustafa, 381 Wis. 2d 393 (2018) (summary judgment standard and de novo review)
- Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 369 Wis. 2d 607 (2016) (summary judgment methodology and narrow decision rule)
- Byrne v. Bercker, 176 Wis. 2d 1037 (1993) (circumstances where disputed facts may be irrelevant if claim barred as a matter of law)
- Estate of Thompson v. Jump River Elec. Coop., 225 Wis. 2d 588 (1999) (distinguishes acts of omission from affirmative acts)