Antwaun A. Ex Rel. Muwonge v. Heritage Mutual Insurance

Litem, ad A., minor, his Guardian Antwaun Muwonge, Plaintiffs-Appellants, Emmanuel L. Department of Health & Social of Wisconsin State County Department of Human and Racine Services Plaintiffs, Services, v. Heritage Company, Defendant- Mutual Insurance

Respondent, Company, Truck Insurance Ernestine Honeycutt, Company, Cigna Union Commercial Insurance Company, Mann Insurance and Horace Insurance

Company, Defendants, Matthews, The Reverend Gene a/k/a Gene Matthews Co., Insurance Gerald H. Bas Farm General State Bassinger, singer Insurance, Secura and Judith Defendants-Third-Party company, Milicevic, and Ziko mutual fs-Respondents,† Plaintif Apartment Managers, State d/b/a Racine Ernie VETO Casualty Hoornstra, Co., and Gerald Farm Fire & Defendants-Third-Party Plaintiffs, Serembiczky, R. Thomas, Roman Carl Maxine Halbur, Carbonneau, Joe H. Eisenman, John W. Martini, First Bank Southeast n/k/a A. Paulette City corporation, Bank, a domestic Firstar Third-Party Defendants. Racine, 30,1999. September denied for reconsideration †Motion Supreme Court 1, 1998. argument No. 97-0332. Oral December July Decided 9, 1999. (Also 456.) reported in 596 N.W.2d plaintiff-appellant For the there was brief Muwonge Muwonge Associates, & Emmanuel L. argument by L.

C.,S. Milwaukee and oral Emmanuel Muwonge. Heritage defendant-respondent, Mutual,

For the Simp- ofArthur P. the cause was submitted on brief Simpson Milwaukee. Deardorff, son and & defendant-third-party plaintiff-respon- For the by dent, Wayne Matthews, Reverend Gene there was brief Karyn Mingo Yankala, M. & Gimbel Youso and argument by Yankala, S.C., Milwaukee and oral Wayne M. Yankala. defendants-third-party plaintiffs-respon-

For the Bassinger dents, Gerald & Judith and State Farm by Insurance, General there was a brief A. Michael Mesirow, Kasdorf, Thomas A. Cabush and Lewis & argument by Swietlik, S.C., Milwaukee and oral Michael A. Mesirow. defendants-third-party plaintiffs-respon-

For the Company, dents, Ziko Milicevic & Secura Insurance (in appeals) by there was a brief the court T. James Murray, Molly Feldbruegge Jr., Peterson, C. and John- Murray, argument by S.C., son & and Milwaukee oral Murray, T. James Jr. by

Amicus curiae brief was filed Heiner Giese and Apart- &Giese Weden Law for the Offices, Milwaukee Wisconsin, ment Association of Southeastern Inc. by

Amicus curiae brief was filed Mark K. Thomsen Dunphy, and S.C., Cannon & Brookfield for the Wis- Academy Lawyers. consin of Trial Pyper,

Amicus curiae brief was filed Thomas M. Whyte, Hirschboeck, Dudek, M. Estes Elizabeth S.C., Milwaukee for the Wisconsin Realtors Associa- Management tion, The Institute for Real Estate Apartment The Wisconsin Association. BRADLEY, 1. ANN WALSH J. This case is

before the court on certification from the court of (1997 98). appeals pursuant to Wis. Stat. 809.61 — appeals following this court question: asks court to address prop- Does a landlord of an older residential rental test, for erty inspect, have law a common once the land- contamination from lead-based from flaking the walls? lord knows that danger presence the of lead We conclude that had determine that landlords foreseeable and was duty property for to test the residential a common law granting paint. erred in lead Because circuit court summary concluding judgment common and in that no part duty of existed, we reverse and remand that law decision. the circuit court's accepted

¶ In issue, 2. addition to the certified we appeal. He for review all issues raised in Antwaun A.'s Safe Place Statute. asserts a violation of Wisconsin's parts properties were not Because places affected of buildings, public employment of we conclude fail. We determine that this cause of action must also argument, contrary of that, to Antwaun A.'s a violation 151.07(2)(d) (1991-92)1 City § nor of neither Wis. Stat. 11.09.040(e) negligence § Ordinance constitutes Racine per Finally, not decide that Antwaun A. se. we any personal injury action maintain cause of based warranty habitability. Accordingly, implied on these summary grant we affirm the circuit court's issues against judgment Antwaun A.

¶ in 3. We are asked this case to determine when properties rental for landlords have a test their paint. May three-year-old A. Antwaun lead In diagnosed poisoning. lead He contends was with by paint peelings, poisoning lead this was caused ingested apart- chips he in flakes, and had various Stat. 1993 Wis. Act 433 renumbered Wis. § 151.07(2)(d) All further references to the Wiscon 254.166. as§ to the version unless otherwise sin Statutes will be 1991-92 noted. City apartments in the of Racine.

ments Two at are appeal. issue this (the Bassinger

¶ 4. First, and Judith Gerald Bas- (the singers) City owned a residence of Racine Bassinger Property) where Antwaun A. and his August mother, Maxine Thomas, resided from May property separate 1991. This contained three rental units. Second, Gene Matthews owned residence (the City Property)

in the of Racine Matthews where May aunt, Williams, Antwaun A.'s Willie resided from January March 1989 to 1994. Neither Antwaun A. nor Property, his mother ever resided at the Matthews although alleges frequently A. Antwaun that he awas guest Property at his aunt's residence. The Matthews single-family dwelling was a which Matthews rented to during appeal. Williams the time at issue in this Both Bassingers and Matthews were insured State Company. Farm General Insurance Shortly being diagnosed ¶ 6. after with lead poisoning, against A. suit Antwaun filed host of cor- porations, landlords, individual and their insurers. In complaint, alleged his Antwaun A. five causes of action as follows:

(1) common law negligence;

(2) 151.07(2)(d), Wis. violation of Stat. constitut- § se; ing negligence per

(3) warn;" "failure to

(4) City of the violation Racine Ordinance 11.09.040(e), se; constituting negligence per § (5) implied warranty habitability. breach of the complaint amended his later, Antwaun A. months Six Statute," "Safe Place of Wisconsin's add a violation 101.11(1), of action. as a sixth cause Stat. Wis. Bassingers, save the 7. All of the defendants with Farm either settled Matthews, and State from the suit for various were dismissed Antwaun or discovery, appeal.2 unimportant After for this reasons insurer, Insur and Ms Secura Defendant Ziko Milicevic ance, summary judgment motion at the circuit part of the were A. had concluded that Antwaun below. The circuit court court exposed any had been to lead produce evidence that he failed to oppose Milicevic's property Milicevic and failed to paint on the summary judgment. Milicevic and Secura were dis motion for from the action. missed appeal, included Milicevic A. filed this he

When Antwaun However, in the circuit respondents. much like and Secura as court, any argument A. did not set forth tMs court Antwaun that, having oppose failed to against Milicevic. We conclude court, summary judgment motion at the circuit Milicevic's Agnew v. to the dismissal. See Antwaun effect consented (1908). Baldwin, 263, 267, A. 116 N.W. 641 Antwaun 136 Wis. remand, argument. Upon Milicevic admitted as much at oral are dismissed from this action. and Secura Additionally, Heritage Company, Mutual Insurance March provided had insurance to Matthews from company that it argued to this court that should be 1994 to October First, that there was no from the case. it contends dismissed during period provided of time it poisoning of lead evidence Second, argues policy it its with coverage to Matthews. "pollution exclusion clause" Matthews contained coverage poisomng. for lead excludes recent decision in Peace v. Northwestern light

In of our Co., (1999), National Ins. 228 Wis. 2d 596 N.W.2d 429 we obligation provide Heritage is under no to cover- conclude that pollution age poisoning lead as that falls within for policy The clause here is exclusion clause of its with Matthews. Peace. appeared the one that identical 52 remaining brought these defendants various motions summary judgment. for granted summary judg-

¶ 8. The circuit court remaining every ment to all on as defendants one of Antwaun A.'s of action.3 causes The circuit court rea- apartments soned that of the neither violated the Safe Property Statute, Place the Matthews it because was Bassinger Property not statute covered and the peeling public because was not in a com- or negligence per mon area. As for Antwaun A.'s claims of 151.07(2)(d) se because the violation of Wis. Stat. City Ordinance, and the of Racine court the circuit legislative concluded that the bodies that enacted these express rules did not an intent for their violation to negligence per constitute se. that, 9. The circuit court further concluded Bassingers

while the and Matthews have had knowledge peeling chip- actual or constructive about or ping paint, suggested no evidence in the record that any either landlord edge actual or had constructive knowl- presence Noting properties.4 of the of lead their silent, that Wisconsin was law circuit court looked jurisdictions to various other that had decided ought issue. circuit court concluded that Wisconsin jurisdictions required to follow those other that have landlord to either knowl- have actual constructive edge duty of lead before to act attends. Finally,

¶ 10. the circuit court determined implied warranty the landlords violated no of habita- bility. posited only applicable It that such a was Marik, County, Wayne Judge. Circuit Court for Racine grouped negligence The circuit court the common law action, cause of action with the to warn" con "failure cause they cluding upon principles both were "based of common negligence." law precluded Matthews from This under lease.

a tenant negligent in being not a tenant Antwaun A. was since building. Similarly, circuit court concluded the his impose habitability warranty implied did not of the only damages Bassingers liability the because on Antwaun actionable. Since contract are under the lease injuries, seeking damages personal the cir- for A. was summary judgment granted in of the favor cuit court landlords. in its

¶ case was dismissed 11. Antwaun A.'s appeals entirety. appealed which to the court of He court. the case to this certified this court

¶ that when It is well settled applies summary judgment it a motion for reviews summary judg- the circuit court: same standards as genuine only granted if is no there ment should be moving party is entitled of material fact and issue judgment Boss, 97 Wis. as a matter of law. Grams (1980); Stat. 338-39, 473 Wis. 2d 294 N.W.2d interpret appeal requires that we both This 802.08. duty. scope of a common law statutes and assess indepen- questions of law that we review These are dently legal determinations rendered of City Land, Glendale, Deutsches Inc. v. circuit court. of (1999) (interpretation 583; 225 Wis. 2d 591 N.W.2d law); question Ceplina Milwau- v. South of statutes Board, 338, 341, 73 2d 243 N.W.2d 183 kee School Wis. (1976) (existence law); duty question scope In McCoy, 750, 754, 2d 142 Wis. re Revocable Trust of (Ct. 1987). App. N.W.2d

I. first whether the circuit court 13. We address against granting summary judgment Antwaun erred duty A. on his cause of based action common law ordinary testing paint. to exercise care for lead argues Antwaun A. that the circuit court erred when it concluded that the landlords were under no common law to test for lead absent actual or con- knowledge particular properties structive their paint. agree. result, contained lead As a We we con- prior that a clude a landlord of house constructed to duty 1978 under a common law to test for lead ordinary or, when the care, landlord knows in the use of peel- should have known that residence contained ing chipping paint. We therefore reverse the circuit grant summary judgment court's of in favor of the landlords. any negligence

¶ 14. As with claim, Antwaun A. (1) duty show must part that there exists: A care of on the (2) (3) duty; defendant; of the a breach of that a injury; causal connection between the conduct and the (4) damage an actual loss or as a result of the injury. Senecal, 409, v. 418, Rockweit 197 Wis. 2d 541 (1995). 742 N.W.2d This case a involves determination only prong: of duty the first whether the a landlords had paint, duty test so, for lead and if when that arose. persons duty

¶ 15. all In this state have a of rea- sonable care to refrain from acts that those unreasonably safety threaten the of v. others. Klassa Light Co., 176, Milwaukee Gas 273 Wis. 77 N.W.2d 397 (1956) (adopting Palsgraf Long v. R. Co., Island 162 1928) (N.Y. (Andrews, dissenting)). J., N.E. 103 duty it can it This arises "when be said that was fore- seeable that act or omission act cause his harm Corp. Builders, to someone." A.E. v. Link Investment (1974); Inc., 479, 483-84, 62 Wis. 2d 214 N.W.2d 764 55 Rolph 464 518, 532, 2d Cos., EBI 159 Wis. see also v. (1991). hinges duty Thus, of 667 the existence a N.W.2d negli- foreseeability. general principles of These on fully applicable gence landlord and tenant are in the Pagelsdorf America, 91 Ins. Co. context. of Safeco (1979); 742-43, 284 Wis JI- 2d N.W.2d Wis. (1996). Civil 8020 agree large part parties test on the 16. All employed it whether was should to ascertain be chipping paint peeling would

foreseeable nothing poisoning. than That test is result lead more specific general application has of the landlord ordinary circumstances to avoid to use care under the persons lawfully property exposing an from Pagelsdorf, 91 Wis. 2d at unreasonable risk harm. (1996);5 741-43; see also Restatement Wis JI-Civil (1965). (Second) p. applicable § 358, Torts, (1) essentially parts: whether test consists two ordinary in the care should landlord knew or use of presence peeling chipping of and have known about the paint; (2) the knew or in the use whether landlord and ordinary chipping known that the of care should have peeling paint and contained lead. Duty 8020: of Owner or Possessor of Real Wis JI-Civil Property Nontrespasser property An of must User. owner ordinary existing the circumstances to maintain use care under persons property premises exposing

his or her to avoid the with consent to an unreasonable risk of harm.... duty, premises performing In this an owner of must use ordi- property nary the care defects on which to discover conditions or expose person If of harm. an unreasona- to an unreasonable risk it, or, the if in the risk of harm existed and owner was aware of

ble it, ordinary then it use of care he or she should have been aware of danger or was his or her to either correct the condition or warn persons the other the condition or risk as was reasonable under of circumstances. primarily

¶ 17. not This case does concern the part the first of test.6 Both landlords had notice of paint apartments they deteriorating in the that rented undisputed to Antwaun A.'s mother and aunt. It is also any knowledge that the landlords did not have actual of paint properties during lead on their the time that Antwaun A. his relatives were tenants at the two properties.

¶ 18. The contested issue in this case concerns Bassingers whether or Matthews should have presence paint. of the of known lead The landlords they known, maintain should not that have as the any permit record is devoid of that facts would they presented any inference that were with informa- tip possibility tion that paint would them off of lead properties. on their Antwaun A. maintains that possibility the landlords should have known paint knowledge suggest lead common because would it would be foreseeable older houses in an paint. area urban contain lead parties agree

¶ 19. All that there is no Wisconsin directly law that this addresses issue. The landlords readily peeling Matthews admits that he received notice Property inspected by 1990 when the Matthews was Authority. however, County Housing Bassingers, Racine they peeling paint contend that were never notified of in the eventually bathroom where the lead was discovered. Rather, they they state that were and notified of cracked crum plaster ceiling bling on the of the bathroom rectified that problem. Bassingers1 attempt see merit in the

We no to draw a dis because, paint chips chips they plaster tinction between as argument, plaster admitted at oral in the bathroom was painted. paint-laden The dust and debris associated with crum plaster indistinguishable bling from the dust and debris only peeling paint. with associated the

57 country point the of from across us to a number cases Sonja position. support Larson, Landlord's their See of Injury Liability Child or Death Tenant's From of for 3(b) Poisoning, § 405, 419 - 24. A.L.R.5th Lead Paint 19 (1994). that landlord's to test These cases hold a paint triggered by peeling paint the of lead is not for prior year 1978, the to that use a house constructed paint concluded that was banned.7 Courts have of lead knowledge injuries not because of such are foreseeable dangers of are not within the common the knowledge lead Kolojeski Deisher, Inc., v. of landlords. John (Pa. 1968); Hayes Hambruch, 329, v. 841 239 A.2d 331 (D. 1994); Supp. 706, n.2 Md. also Garcia v. F. 711 see (Ill. 1989); App. 2 1356, 1359 Dist. Jiminez, 539 N.E.2d Brunson, 645 Joint Venture 4 v. A.2d Richwind c.f. (Md. 1994). Similarly, have 1147, 1155 courts con injuries such are not foreseeable because a cluded that ] expect portion "eat[ landlord would not tenant premises." Montgomery 238, Cantelli, v. 174 So. 2d (La. 1965); Realty, 240 see also Dunson v. Friedlander (Ala. 1979); see 792, 369 So. 2d 795 but Norwood (Mo. 1982); App. Lazarus, 634 S.W.2d 587 Acosta (N.Y. Corp., Realty 238 N.Y.S.2d 714 v. Irdank 1963). Sup. Ct. recognize While we the above cases represent majority position, them

and others like persuaded are not their rationales continue we they may Many as much force as have at one time. with adopted proposed the rule of law courts that landlords in this case were based facts that knowledge the 1960s and 1970s when arose from authority Pursuant its under the Consumer Product Act, 2057, 2058, Safety the Consumer Products § U.S.C. Safety lead for residential uses after Commission banned (1999). 27, 1978.16 February C.F.R. 1303.1 dangers paint widespread. Hayes, of lead was not 841 (lead Supp. poisoning diagnosed 1978); F. at 708 in (case 1979); Dunson, 369 So. 2d at 795 decided in (lead Kolojeski, poisoning diagnosed 239 A.2d at 330 (lead 1966); Montgomery, poison- 174 So. 2d at 239-40 ing early 1960s); occurred in the but see Brown v. (Md. 1998) (lead App. Dermer, 407, 707 A.2d 408 1985). poisoning diagnosed in

¶ applications 21. Some ofthe more recent of this binding precedent stretching rule are based on back e.g., Spratley, See, Felton, three decades. Felton v. (Pa. 1994) Super. (relying 640 A.2d 1361-62 on decision). Kolojeski Additionally, the 1968 some of these courts stated that their decision was based in part dangers paint on the fact that the of lead were not open possibility changed well known and left changed Hayes, Supp. facts would result in law. 841 F. Kolojeski, at n.2; 711 331; Felton, 239 A.2d at dissenting). 640 A.2d (Beck, J., at 1365-67 presents changed

¶ 22. We believe that this case changed application facts and warrants a of law. Here any negligence part of the landlords would have occurred no earlier than 1989 when Williams moved Property into the Matthews and 1990 when Antwaun Bassinger Property. Simply put, A. moved into the we persuaded dangers are that awareness of the of lead paint plane in 1989 or 1990 is on a different than the dangers twenty, thirty years ten, awareness of such or bearing earlier. This has a direct on whether it was peeling chipping foreseeable in 1989 or 1990 that pre-1978 in a house contained lead and whether ingested by it was foreseeable that lead children would physical anbe unreasonable risk of harm.8 agree We with those other courts which have concluded years "[i]t is proclivity well known that children of tender have legis- By federal, state, local the 1990s dangers identifying with lead associated lation only existed, Con- not but was well-established. Poisoning gress passed Paint the Lead-Based marking govern- Act in the federal Prevention abating comprehensive attempt at lead first ment's paint country. 91-695, Stat. 2078 Pub. L. No. this (codified (1971) seq.) legis- § at 4821 et As the 42 U.S.C. Congress history indicates, law discerned lative to that public problems a lack of awareness of the associated Cong., paint. Rep. 1432, No. 91st 2nd with lead Senate (1970), reprinted 6130, 116 in 1970 U.S.C.C.A.N. Sess. ("Aparadoxical insidious disease is 6131 feature of this receives."). of it lack attention agencies Congress,

¶ 24. In to federal addition promulgated related to the use and disclo- have rules paint. above, sure of lead As noted the Consumer Safety paint from Products Commission banned lead February use after of 1978. 16 C.F.R. residential (1999). § 1303.1 Both the Environmental Protection (EPA) Agency Department Housing of and Urban (HUD) Development have also set 1978 the thresh- as "target housing" housing likely for that is to old date — (1999); paint. § 40 C.F.R. 745.103 contain lead-based requires § 24 EPA all of resi- C.F.R. 35.86. The sellers housing prior to dential built to 1978 attach following statement to the contract to sell:

Every any real purchaser of interest in residential dwelling property on which a residential was built property may to is notified that such prior 1978 put they get into anything can into their hands their mouths." (Mo. Lazarus, 584, 1982); App. v. S.W.2d 587 see Norwood 634 (N.Y. 713, Realty Corp., 714 also Acosta Irdank N.Y.S.2d 1963). Sup. Ct.

present exposure paint lead from lead-based that lead young place developing at children risk poisoning. added). (emphasis §

40 C.F.R. 745.113 also 24 See 35.92(b)(1) (comparable regulation). § C.F.R. HUD Similarly, prohibited appli- ¶ 25. Wisconsin paint § 657u, cation of lead in 1980. ch. Laws 221, (codified 151.03). § at Wis. Stat. At time, the same legislature legislation adopted the tifying aimed at both iden- persons suffering poisoning

those lead from eradicating presence espe- houses, of lead cially occupied by age those children under six. (codified § 657u, ch. of 1979 Laws at Wis. Stat. 151.07). City In addition, of Racine enacted an prohibited ordinance in 1975 that lead from being used most surfaces. Since that ordi- culminating nance times, has been amended numerous in the current which version resembles Wis. Stat. 11.09.040(e). Through § 151.07. Racine Ord. its numer- City amendments, however, ous of has Racine not prohibition paint. wavered its of lead legislation ¶ 27. While the extent and duration of suggests danger in this area that of children ingesting paint chips foreseeable, lead is the existence legislation only is not the reason we reach this con- dangers poisoning clusion. The of lead and lead have frequent topics public campaigns. been service Con- copy printed tained within this is a of a record booklet reiterating dangers paint, especially in 1987 of lead it to as relates children. Additionally,

¶ 28. the mass media has fre- produced segments quently written or articles video paint, highlighting dangers associated with lead especially reports related to children. These have also the lead

repeatedly the bulk of that documented housing lead where poisoning older cases stem from ago years applied deteriorated. paint and has since was Poisoning Hits e.g., Paint Griffin, "Lead See, Latz Jean Chicago 15, 1989, Tribune, Oct. Generation," a New McGrath, J. 4632504; Dennis WL at 1989 available by Landlords," Denounced Ordinance "Lead-Paint August Minneapolis 8, 1989, available at Star-Tribune, Stop Loth, "When Will We 3808978; Renee 1989 WL Poisoning Globe, 21, 1988, Feb. Children?," Boston Our "HUD Rule on Remov 4597658; at 1988 WL available J., ing Slated," St. Feb. Paint Wall Lead-Based 285949.9 1986 WL-WSJ 1986, available at light considerations, we ¶ these In of all of 29. by duty adopt the landlords. advanced to decline dangers persuaded lead 1989, the that areWe extensively housing paint known was so in residential ascribing "a the landlords we would not be that people knowledge expertise .to ascribable. . not Kolojeski, training experience." special or without A.2d at 331. to test for we Instead conclude paint landlord of a residential whenever the

lead property arises either knows or before 1978

constructed peeling ordinary there is know that care should use of peeling property. paint chipping Where on the rental or pre-1978 chipping paint present residential in a or pre- lead be structure, it is foreseeable expose the inhabitants to which, accurate, if would sent conclu- Based on this risk of harm. an unreasonable newspaper fact, cursory for search on Westlaw In prior dangers to the of lead magazine articles related 1,000 over articles. 1990 returned well granting summary sion, circuit court erred in judgment Bassingers in favor of the and Matthews.

I I ¶ 31. Next we address Antwaun A.'s Safe Place Statute cause of Statute, action. Safe Place Wis. 101.11(1), categories § Stat. creates three different of persons by employers, covered the statute: owners of places employment, public buildings. and owners of Naaj Co., v. Aetna 121, 126, Ins. 218 Wis. 2d (Ct. 1998). App. N.W.2d 815 Antwaun A. asserts claims only categories. under latter two

A. quickly dispose ¶ 32. We are able of Antwaun apartments "place employ- A.'s claim that the were a "place employment" ment" under the A statute. defined as

every place, underground whether indoors or out or premises and the thereto appurtenant where either temporarily or or permanently any industry, trade on, any oper- business is carried or process where or ation, directly indirectly to any industry, or related business, or on, per- trade is carried and where any is, directly indirectly, son or another employed gain profit, for direct or indirect but does not any are place persons employed include where private domestic service which does not involve farming... use or in Stat. power of mechanical .Wis. 101.01(2)(f).

¶ 33. It is in the uncontroverted record Bassingers employed any neither the person nor Matthews regular properties. aon basis at their See Brueggeman Casualty Co., 141 Wis. Continental 2d 1987). (Ct. App. The 410-11, 415 N.W.2d 531 part,

"employment" is, A. refers to in Antwaun entry property to collect occasional onto landlords' part does not of a landlord Such conduct on the rent. place employment property as to all a of make the Coren, 13 Wis. 2d at all times. See Frion tenants (1961). 304, 108 N.W.2d Similarly,

¶ Antwaun A. contends 34. briefly living a tenant at one Matthews hired because property, repairs properties to make at the of the place employment property with makes the a act frequenters. respect This, too, is to all tenants Frion, in the rule established Wis. incorrect under appeal properties are not at issue in this 2d at 304. phrase places employment defined in the as that is Place Statute. Safe

B. argument properties ¶ that the 35. Antwaun A.'s buildings" phrase "public is defined in the as that were unavailing: Safe Place Statute also structure, building" any including "Public means building, porch, of such such as a parts exterior steps providing or means of platform exterior in in as a ingress egress, part place or used whole or trade, traffic, resort, occu- assemblage, lodging, more public by or use 3 or tenants. pancy, 101.01(2)(g). . .Wis. Stat. .

¶ that "tenant" above 36. Antwaun A. contends persons possession the landlords con- refers to while the number of units tend that the term building. refers squarely issue, addressed this We have never language prior but from our cases shows that land- argument. lords have the better Brewing Co., In Gobar v. Blatz Val 179 Wis. (1923),

256, 259, 191 N.W. 509 this court concluded two-story building that a with was two units not a "public building" upper under the statute. The unit was family unit residential rented to of four lower unit awas commercial unit rented an individ- ual who ran saloon. Id. at 256-57. See Holcomb v. also (1925) Szymczyk, 100-01, 186 99,Wis. 202 188 N.W. ("two-story arranged building, frame residence for and occupied by public four families" considered a build- ing); Lindau, 218, 219-20, Davis v. 270 70 Wis. N.W.2d (1955) (two-apartment building public 686 is not a building). interpretation

¶ Such an 38. of "tenant" excludes Property the Matthews the as it statute, from was a property only Bassinger Property, The with one unit. conceivably however, contained three units and could be under the covered statute.

¶ of the owner under Safe the Place only portions Statute extends or held those used out by public by to be used or tenants in common. Quatsoe, 128, 135, Lealiou v. 15 2d 112 Wis. N.W.2d (1961); Hemmingway Frion, 304; 2d at Wis. City Janesville, 304, 275 Wis. 81 N.W.2d 492 (1957). Here, concluded, as the court circuit record through excerpts deposition indicates of Thomas' peeling chipping paint present solely was open Thomas' bathroom. not an This was area public or shared the three tenants in common. It does not constitute a of the Place violation Safe Stat- summary correctly granted The circuit court

ute.10 judgment issue. of both landlords on this favor

I I I . the circuit court 40. We next address whether granting summary judgment against Antwaun erred in of Wis. A. his cause of action based on violation 151.07(2)(d) City § of Racine Ordinance Stat. 11.09.040(e). that a Antwaun A. maintains violation negligence per se. We of these enactments constitutes disagree.

¶ 41. of a statute does not automat- The violation liability. ically impose said that civil This court has questions must in the affirmative three be answered negli- the violation of a statute will constitute before gence per se: contends, however,

10 AntwaunA. that the bathroom was only Bassinger Property peeling place in the that had not chipping paint. points expert He to an affidavit of an wit Bassinger indicating porch the front of the ness the Property certainly a common area build — peeling ing experienced chipping paint and as well. The — however, difficulty expert, is that he did not view the with the years elapsed property until well over two had since Thomas apartment. the vacated at

While his affidavit indicates that the deterioration Property the Matthews "had existed there for some time" his Bassinger Property circum- statements about the were more expert only porch that on the "had spect. The indicated deteriorating prior my Considering length been to visit." visit, tenancy expert's the circuit time between Thomas' and the testimony appropriately court concluded that this is insufficient genuine issue of material fact that would war- to demonstrate jury. being rant the issue submitted to the 66 (1) the harm type inflicted was the the statute was (2) designed prevent; to the person injured was within the of persons sought class to protected; be (3) and there is expression some of legislative intent that the statute become a basis for imposition civil liability. Solsrud,

Tatur v. (1993). 735, 743, 498 174 Wis. 2d N.W.2d 232 repeatedly ¶ 42. This court has indicated that a interpreted impose greater duty statute will not be imposed "clearly than that the common law unless it beyond any expresses pur and reasonable doubt such pose by language unambiguous, clear, peremptory." Delaney Supreme Co., Investment (1947) (citations 374, 380, Wis. 29 N.W.2d 754 omit ted); see Co., also Bennett v. Larson 2d 681, Wis. (1984); 694, 348 N.W.2d 540 Burke v. Milwaukee & Transport Corp., Suburban 39 Wis. 2d 689-90, (1968);Kalkopf v. Mfg. 159 N.W.2d 700 Donald Sales & (1967). Co., 33 247, 254-56, Wis. 2d 147 N.W.2d 277 A may legislative history court also look to the of a stat legislature ute to discern whether intended a impose negligence per violation to se. Tatur, See Wis. 2d at 743-44; Bennett, 118 Wis. 2d at 694.

A. 151.07(2)(d) provides: 43. Wisconsin Stat. (2) If department determines lead-bear- ing paints present are in or upon any dwelling, department may:...

(d) Notify the owner of the dwelling of the presence of lead-bearing paints. The department remove, issue replace instructions or cover securely permanently these paints within 30 days, in a manner prescribes. the department within the lead-bearing paints to remove

failure prescribed prima neg- time shall be evidence facie of ligence any brought damages action to recover for injuries period expires. incurred the time after designed The statute is to discover and correct the poisoning. Department sources of lead When the of occupant Health and Social Services is that "an notified dwelling poisoning" department of a has lead blood inspect occupant's dwelling is authorized to "for the lead-bearing presence paints."11 of Wis. Stat. 151.07(1). Upon completion inspection, § of that department may protective take a number of mea- including notifying dwelling sures, the owner of the of issuing lead-based instructions to that owner for the removal of that hazard. Wis. Stat. 151.07(2). §

¶ 44. Antwaun A.'s claim that a violation this negligence per irretrievably statute constitutes se is snagged for reasons. two Both relate to the issue of expression legislative whether "there is some intent imposition that the statute become a basis for the liability." Tatur, civil 174 Wis. 2d at 744. nothing noted, 45. As the circuit court in the Bassingers

record indicates that either the or Mat- any department thews received notification from the properties paint. They that their contained lead did not lead-bearing paints pre- "fail to remove within the time department scribed" in violation of the statute. 151.07(2)(d). Wis. Stat. Antwaun A. finds this fact argues irrelevant and that it does not relieve landlords "independent duty. .imposed by of their . the statutes" to insure that lead is not found on the rental 11 Department of Health and Social Services is now the Department Family of Health and Services.

property. court rul- under the circuit He contends that vary duty ing, in effect with a landlord's will government conduct officials to available for resources inspections. argument ¶ mark. misses the 46. Antwaun A.'s duty" "independent a land- no have discovered We by "imposed" 151. Section Wis. Stat. ch. lord that is 151.07(2)(d) only upon duty on the landlord creates receiving presence of lead from notice of the nothing department. course, This, of does It does more. necessarily prover- off the mean that a landlord is not only does not that this statute hook; it means bial impose any heightened on a landlord over by imposed the common law. above light considerations, cannot ¶ of these we 47. In legislature expressed a clear inten- conclude that the beyond of Wis. that a violation a reasonable doubt tion 151.07(2)(d) negligence per See se.12 constituted Stat. may, legislature at 694. The Burke, 39 Wis. 2d legislation intent that evinces its course, enact negligence per impose law; it a violation of the se for chapter 151. not done so in has

B. 11.09.040(e) City dic- ¶ of Racine Ordinance paint. dwelling may lead contain that no tates exceptions. makes some However, the ordinance legally applied, having already paint, been Where automatically "tightly removed be it need not adheres" step areas risers, and other baseboards, walls, from present Nonetheless, a "chewable surface." do not two factors result, the other we need not address As a negligence per se. impose for a statute to that must be met requires "complete paint the ordinance removal" cer- any windows, handrails, tain areas such as might regardless chewable surface that exist in a house paint. Finally, of the condition of the the ordinance requires peeling, flaking, chipping that areas of stripped must either be bare or covered some plasterboard panel- durable material such as or wood ing; merely repainted. such surfaces not be indicated, 49. As the circuit court this ordi- history although nance traces its it has been amended and recreated several times since then. The important substance of these amendments is not to the resolution of this case. correctly,

¶ noted, 50. The circuit court that the City paint provision of Racine's lead was one of more City than a dozen standards that the necessary considered to be living quarters. for habitable In addition to paint provision, (e), the lead subsection other stan- ranging relatively dards included those from the minor (adequate space, (g)) kitchen cabinet subsection to the (structural integrity building, substantial of the sub- (d)). section legislative history

¶ 51. There is scant surround- ing the enactment and amendment of this ordinance. any The words of the ordinance do not declare intent to private right per- a establish of action in favor those sons affected a violation of the ordinance. See Jacobson, McNeill v. 2d 258-59, Wis. (1972). Indeed,

N.W.2d 611 the common council would result, seem to have disavowed such a as it created a penalty provision imposes reaching high fines as mentioning imposition as without $750 additional liability private of civil 11.09.070; suit. Racine Ord. generally, see Daun, Grube v. 210 Wis. 2d 689-91, (1997). 563 N.W.2d 523 Additionally, given placement

¶ 52. of the panoply regula- lead subsection with the of other (size ranging pedestrian screening tions from the (o)) weighty (necessity mesh, subsection to the of hav- ing (j)), bathroom, subsection we cannot conclude that the Racine Common Council intended a violation provisions carry liability. of these with it civil though Rather, it would seem as the common council safety public intended to "secure the or welfare of the entity." McNeill, as an 259; 55 Wis. 2d at see also Badger Kranzush v. State Co., Mut. Cas. 103 Wis. 2d (1981). 56, 75, 307 N.W.2d 256 above, 53. As noted Antwaun A. faces a stiff

burden to establish that the common council intended negligence per a violation of the ordinance to constitute Delaney, Burke, se. 694; 39 Wis. 2d at 251 Wis. at 380. We do not believe that he has met his burden and affirm the circuit court's decision that the violation of negligence per this ordinance did not constitute se.

VI Finally, ¶ 54. we address Antwaun A.'s claim granting summary judg- that the circuit court in erred warranty ment in favor of the landlords on his of habitability argument cause of action. Antwaun A.'s privity First, two-fold. he contends that no of contract implied is needed in order to assert a breach of the warranty habitability. posits Second, of he that dam- ages implied warranty habitability under the of are not damages encompass limited to contractual but also compensatory damages. disagree We on both counts. recognized

¶ 55. This court first the existence of implied warranty habitability an in Pines Per (1961). ssion, 2d Wis. N.W.2d 409 Under doctrine, the residential lease between a landlord implied promise and tenant carries with it an that the premises fit will be for human habitation. Id. at 596-97.

¶ 56. in Our cases this area of law have involved sought claims of a breach of the lease and have contrac- damages. tual Id. at 597. We can find no Wisconsin party compensatory case that has allowed a to seek damages implied warranty for the violation of the habitability. merely Antwaun A. asserts that this is by design. contrary, coincidental and not To the we agree artfully with the circuit court when it stated:

A claim tenant's for breach of the implied warranty of habitability is a breach of contract claim for con- tractual damages. injured An parties' claim for personal injuries is a tort claim negligence for compensatory damages. coexist, Such claims they may act, be caused by the same they may by be owned the same if party it is the tenant who injured. was It is not the breach warranty, how- ever, gives rise to the cause of action for the personal Instead, injury. it negligent is the act or omission. (N.Y. App. Gordon,

See also Stone v. 621 N.Y.S.2d 220 1995); Div. Fox, Mease v. 200 N.W.2d 796-97 (Iowa 1972). negligence 57. This distinction between breach of contract is consistent with our statements in Pagelsdorf, 744-45, 91 Wis. 2d at where we concluded require that it would be "anomalous" for the law to habitability grant immunity landlord to warrant but negligence maintaining prem- for "the landlord's general negligence principles." ises. . .under comports distinction described the circuit court also implied warranty with the codification of the of habita- damages bility in terms. contractual which addresses 704.07(4). Stat. Wis. implied

¶ A.'s 58. We conclude that Antwaun warranty habitability of cannot be cause action against A. because Antwaun maintained Matthews privity landlord. not in of contract with that was warranty implied habitability cause of Antwaun A.'s against Bassingers be maintained action cannot compensatory than contrac- he seeks rather because granted damages. properly The circuit court tual summary judgment in favor of landlords.

V. presence ¶ In sum, we conclude that the danger that the of lead was foreseeable and hold duty the residen- landlords had common law to test property paint. circuit court duty for lead Because the tial concluding existed in that no common law erred granting summary judgment, in we reverse and part How- circuit decision. remand that of the court's properly ever, we determine that the circuit court summary judgment in favor of the landlords entered by Antwaun A. the other causes of action raised all of Accordingly, parts those of the circuit court's we affirm decision.

By judgment court the Court.—The the circuit is part part cause and reversed and the affirmed remanded. (concurring). CROOKS, J. 60. N. PATRICK separately

Although mandate, I I write concur with majority's conclusion that a landlord's address the arises "whenever to test for lead-based property landlord of a residential constructed before ordinary 1978 either knows or in the use of care should peeling chipping paint know that there is or on the property." Majority op. agree rental at 62.1 that a land- duty lord's or, arises when the landlord knows in the ordinary care, use of flaking, peeling should know that that is chipping

or from the walls contains disagree majority's lead. I I concur because with the quite arbitrary prop- distinction between residential erty constructed Rather, before and after 1978. I conclude that a trier of fact should examine all of the presented given circumstances in a case to determine if duty a landlord had a to test for contamination from paint. Certainly, age premises lead-based the of the one but factor to consider. majority begins analysis by stating 61. The the

that issue this case is whether the landlord presence involved should have known of the of lead- paint. majority op. pertains based See at 56. This issue majority's to the second element of the test for ascer- taining foreseeability flaking, peeling chipping paint poisoning.1 would result in lead See majority op. majority foreseeability at 56. The bases its part, test, on both Wis JI —Civil 8020 and the (Second) (1965).2 § Restatement of Torts 358 I first 1 "(1) test, majority: as stated whether the land ordinary lord knew or in the use of care should have known (2) presence peeling chipping about and paint; and whether ordinary the landlord knew or in the use of care should chipping have known that contained peeling paint Majority op. lead." at 56. (Second) (1965), Restatement of Torts 358§ "Undisclosed Dangerous Lessor," Conditions Known to states:

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, artificial, whether natural or which involves unrea- language majority's foreseeability note that the in the language § test is not consistent with the in 358. Sub- 358(l)(a) (b) employ expression, sections "has phrase reason to know of the condition. ..." While the congruent "has reason to know" seem with the majority's phrase, known," "should have the Restate- (Second) specifically ment differentiates the two (Second) phrases. § See Restatement of Torts 12. Com- (a) explains "[t]hese ment two phrases. implies . .differ in that 'reason to know' no knowledge part on the of the whereas actor implies 'should know' that the actor owes another the duty ascertaining question." the fact in Restatement (Second) (1965). agree 12 Torts cmt. a I with the majority, express however, that we should the test using phrase, known," "should have because it is language more consistent with the in Wis JI —Civil 80203 and with the case law in Wisconsin.4 physical land, persons subject sonable risk of harm to on the

liability upon to the lessee and others land with the consent of physical by the lessee or his sublessee for harm caused the condi- possession, tion after the lessee has taken if (a) the lessee does not know or have reason to know of the involved, condition or the risk (b) condition, the lessor or knows has reason to know of the involved, and realizes or should realize the risk and has reason to expect that the lessee will not discover the condition or realize the risk. (2) condition, actively liability If the lessee conceals the stated (1)

in Subsection until continues the lessee discovers it and has opportunity precautions against reasonable to take effective it. liability only Otherwise the continues until the vendee has had opportunity reasonable to discover the condition and to take such precautions. language majority's The of Wis JI —Civil 8020 mimics the language: "know" and "should have "[i]f known" an unreasona it, or, ble risk of harm existed and the owner was aware of if in majority premises ¶ above, 62. As stated duty paint landlord's to test for lead-based on whether property a residential rental was constructed before majority op. disagree major- 1978. See at 60.1 with the ity's alone, property's age conclusion that a creates circumstances from which a landlord "should have chipping peeling paint. known" that lead exists in I disagree for several reasons. arbitrary. major- First, the 1978 date is

ity points paint out that lead-based was banned for residential uses the United States Con- Safety majority op. sumer Products Commission. See at illegal 58 n.7. While the use of lead-based became undoubtedly after some homes continued to be painted such with after that date. In some situa- majority's person tions, the test result in a having rents a residence built after 1978 not the same protection renting as one a residence built before though even the rental residence involved does contain paint.5 A lead-based landlord should not have differ- ordinary it, the use of care he or she should have been aware of then it or her was his to either correct the condition or danger persons or warn other of the condition or risk as was under recognize reasonable the circumstances." We that while phrase, it," exactly "should have been aware of is not phrase, known," phrases same as the "should have the two are analogous. Co., 710,

4 See Maciv. State Farm Fire & Cas. 105 Wis. 2d (Ct. 717, App. 1981)(quoting 314 N.W.2d 914 Wis JI —Civil 8020). Senecal, 409, n.6, See also Rockweit v. 197 Wis. 2d 423 (1995)(citing 541 N.W.2d 742 Wis JI —Civil 8020 with approval). 5 instance, property For if a tenant lives at a built after 1978 paint where the landlord did not know of in lead-based residence, may the tenant have no recourse since the landlord's triggered by age constructive notice is not of the residence. duty solely age ent to test based on the of the residence he or she owns.

¶ Second, 64. the ban on the use of lead-based paint coverage surrounding and the media it, enough provide particular is not landlord with possibility paint constructive notice ofthe of lead-based majority in a rental residence. The cites to both federal legislation prohibiting and state the use of lead-based paint, reports documenting as well as media the dan- gers paint. majority op. of lead-based See at 58-61. The majority implies danger that because the of lead-based paint is now more well-known, landlords who own resi- dences built before 1978 should know that their may paint. majority residences contain lead-based See op. at 60. majority opinion

¶ 65. The states that Wisconsin prohibited the use of lead-based in 1980, and that City adopted of Racine an ordinance in 1975 that banned the use of lead-based on most surfaces. majority op. adopt "magic" See at 61. If we are to date, why should it be rather than 1975 or 1980? majority However, never cites evidence any communication from which a landlord should "magic" year upon

know that the which the to test Indeed, is based is 1978. paint's dangers the mere fact that lead-based publicized

have been does not amount required by majority's notice,6 constructive as Moreover, may actually put danger by tenants be the test as majority stated because landlords who own residences built after 1978 security. be lulled into a false sense of 6In Mutual, Franklin Mutual Insurance Co. v.Meeme Town 179, 184, 68 Wis. 2d (1975)(quoting 228 N.W.2d 165 Thompson Fairyland, Co., 187, 192, Mutual Insurance 30 Wis. 2d (1966)), N.W.2d 200 this court defined constructive notice as "neither knowledge policy notice nor but.. .a determination that Spratley, 640 A.2d Felton

test. See Felton 1994). (Pa. Super. should notice Ct. Constructive simply his or because to a landlord attributed not be majority's dis- property The 1978. was built before her arbitrarily ban, creates on the 1978 tinction, based adequately majority has not The landlords. on suffi- have had however, that landlords demonstrated, that the federal ban to them communicated cient notice containing in 1978. If lead occurred on the use of showing may majority's intact, such a test remains every case.7 Id. in each and be needed any legal majority has not cited Third, the discussing arbitrary support In selection of 1978. for its Maryland appeals held court of notice, the constructive "[k]nowledge involves unrea- a condition which persons physical the land harm sonable risk merely general imputed from to a landlord not be age, knowledge properties construc- of like that other design might possibly such hazardous contain tion, or A.2d Brunson, 645 Richwind v. conditions." 1994). (Md. jurisdic- App. Instead, other Ct. 1154-55 may be notice held that constructive tions have if he be treated as person circumstances a should under certain majority's phrase, of the "should The use had actual notice." notice known," adoption of a constructive appears to be an have approach. regulations HUD which majority cites EPA and regarding lead-based require the attachment of statements housing. pre-1978 residential for the sale paint to contracts notice to those However, provide not such statements would housing pre-1978 since bought or sold which have not landlords Accordingly, effective. regulations HUD became these EPA and required does not obvi might be that such statements the fact under the landlord's notice the extent of ate the need to evaluate particular case. circumstances of each the facts and inspection of a inferred from a landlord's reasonable e.g., See, Lazarus, v. 634 S.W.2d residence. Norwood (Mo. 1982) App. (noting jury 584, Ct. that a found a 588 landlord knew or should have known that a residence paint because the landlord's contained lead-based weekly bought manager inspected property and residence); paint Felton, for the 640 A.2d at 1361. Another court held that a landlord must retain suffi- premises cient control of a residential rental to have paint property. constructive notice of lead-based on the Realty, by Inc., Brown Brown v. Marathon 1991). (N.Y. App. 219, 221 Div. I an N.Y.S.2d favor whereby totality approach fact examines the trier of determine a landlord of the circumstances to whether flaking, chipping, peel- had notice that or constructive Age ing paint in a residence contained lead. of the premises factor to consider. is one majority's Finally, disagree

¶ 68. I with the use the creation of such a 1978 distinction because properly legislature. In distinction is more left to the Co., 226, 259, 293 N.W.2d State v.Amoco Oil 97 Wis. 2d (1980) (citing Ferguson Skrupa, 372 U.S. (1963)), 730-731 this court stated:

The not its social and eco- court should substitute legislative judgment nomic beliefs for the body. legislature scope experiment has broad has the problems with solutions to economic regulate injurious commercial and busi- power long it not run afoul of the practices ness as as does constitution, constitution, federal federal state or statutes. major- incorporating test, its

In ity usurping the 1978 date into legislature. the 1978 the role ofthe With majority law date, the creates more than common substituting judicial duty engages legislating —it judg- legislature's for the its social and economic beliefs Co., 97 Wis. 2d at 259. ment. See Amoco Oil summary, agree mandate that In I with the lead-based arises to test for .a landlord's knows or should have known when the landlord flaking, peeling chipping lead. I write contains majority's only my distinction concern with the to state properties constructed before or between residential light legal sup- especially the lack of after negative port distinction, ramifications for that may landlords and tenants such a line have on both poisoning. I conclude that be victims of lead who circum- of fact should examine all relevant the trier if or in each case to determine a landlord knew stances flaking, chipping peeling should have known premises involved contained lead. an should not based on selection of to test be arbitrary date.

¶ reasons, I 70. For these concur. I that Justice JON am authorized state joins P. this concurrence. WILCOX

Case Details

Case Name: Antwaun A. Ex Rel. Muwonge v. Heritage Mutual Insurance

Court Name: Wisconsin Supreme Court

Date Published: Jul 9, 1999

Citation: 596 N.W.2d 456

Docket Number: 97-0332

Court Abbreviation: Wis.