Beard v. Lee Enterprises, Inc.

individually surviving spouse Jane A. and as Beard, Plaintiff-Appellant-Petitioner, Beard, R. Charles

v. Tribune, The La Crosse Enterprises, Inc., Lee Liberty Insurance Co., Mutual Defendants-

Respondents. Court Supreme argument No. Oral November 96-3393. 1998. Decided 9, 1999. April (Also 156.) reported in 591 N.W.2d

i plaintiff-appellant-petitioner For the there were by Flanagan Sauer, briefs John P. Becker, Stuber and Lynch, argument by Ltd., & LaCrosse and oral John P. Stuber. defendants-respondents

For the there was a brief by Gregory Egan, O'Flaherty J. Gerard and Parke O'Flaherty, argument by Ltd., Greg- LaCrosse and oral ory Egan O'Flaherty. J. and Gerard

¶ 1. WILCOX, JON P. J. Jane A. Beard seeks unpublished appeals review of court of decision affirming summary judgment entered the Cir- County, Mulroy, cuit Court for La Crosse Michael J. Judge, negligence against which dismissed her suit Enterprises, The La Crosse Tribune, Lee Inc., which newspaper, Liberty owns the Company, Mutual Insurance Tribune"). (collectively

their insurer "The appeal, argues Anthony Kropelin, On Beard that employed by minor at the time, was The Tribune and working that he was in a trade, street as defined under 103.21(1X1991-92),1 during prohibited Wis. Stat. hours when he was involved in a head-on collision that husband, killed Beard's Charles. Beard contends that Anthony's employer, absolutely as The Tribune is lia- allowing ble for him to work in violation of the child labor laws.

¶2. statutory regulating Based on the scheme §§ trades, street Wis. Stat. 103.21 103.31, as well as particular 102.60(7), statutes, related Wis. Stat. legislature we conclude envisioned some statutory All references are to the 1991-92 version of the statutes unless otherwise noted. part

degree knowledge, constructive, on the actual or alleged employer relation- about ship in a street trade a minor involved before with question is a factual can attach. Because there knowledge, actual or con- The had whether Tribune Anthony delivering for structive, that materials judgment. Tribune, we the circuit court's The reverse HH of the case. first set forth the facts 3. We testimony, portions deposition According of his to ques- Anthony Kropelin, at who was sixteen the time Douglas, accompanied frequently father, tion, his to newspapers pick up from The to bundles Tribune Doug- employees at distribution center. The Tribune's delivery agreement las with the had bundle paid newspaper for he The Tribune on a which was Anthony per trip his services.2 basis for distribution delivering father in the bundles for often assisted his Douglas paid him. which midnight Thursday, July Shortly

¶ 4. on before Anthony to 9,1992, and a friend drove his father's van pick up newspapers. He to Tribune bundles guys at tower for a "talked to the the distribution while," and then received his bundles delivered Douglas required agreement, was not Under distributed, money he purchase newspapers or collect carriers, vending papers from the individual merchants Rather, papers. to which he distributed the each Fri machines day manager Douglas consulted with north side distribution update and to the number of bundles to be delivered whom. Any delivery complaints requests regarding his tun were through manager. Douglas neled the distribution considered people to whom he distributed the bundles to be The Trib une's customers. approximately July

them. At a.m. 10, 1992, .3:00 Anthony pick up returned to The Tribune to bundles of Sunday paper's supplement the for his father to deliver upcoming Sunday to the route carriers for the edition. Anthony up Friday picked At time, that also morn- ing newspapers brother, for his James, who awas papers carrier Tribune, for The and then delivered Anthony to the houses James's carrier route.3 fin- delivery approximately ished that at 4:00 a.m. finishing Anthony ¶ 5. route, After James's began Sunday supple- to drive back with the home approximately ments still in the a.m., van. At 4:15 Anthony a husband, struck vehicle driven Beard's injuries Charles. died Charles as a result of suffered in the accident. July surviving spouse, Beard, 1993, In as a Pierringer4 agreement releasing Anthony

executed a liability. against from Beard then filed suit The Trib- complaint, alleged In une. her amended she absolute liability illegally during employing prohib- a for minor using negligence hours, ited common law for minor lacking age, experience, maturity training sufficient liability perform Anthony's negli- work, such and for gence theory respondeat superior. under the summary

¶ 7. The a motion Tribune filed judgment granted. court The circuit which circuit (1) Anthony that: best, court found at in an (2) subject collision; at time of the part route was route. James's of another carrier's James pay papers asked customers The Tribune for the and The gave percentage Tribune him a of that amount collected. A James, permit street trades was filed The Tribune for but with Anthony. not for Pierringer Hoger, v. 182, Wis. 2d See 124 N.W.2d 106 against Pierringer The all claims release acts to bar respon- upon either vicarious based Tribune independent superior; cause of no there is deat upon third-party based violation of a action favor the case and dismissed laws. The court the child labor appealed. Beard appeals majority affirmed.5 of the court 8. A any majority evidence determined that without

The the method or control over The exercised Tribune acting Anthony's outside home, he was travel route of scope employment; therefore, The Tribune of his for violations violated, or be held liable not have could Enterprises, Inc., Beard v. Lee the child labor laws. of, (Wis. App. slip op. unpublished Ct. at 7 96-3393, No. 1997). majority Sept. that without noted Anthony employee employer control, could not be trades law. Id. As to under the street The Tribune even majority negligence claim, the common law Beard's The could law, Tribune determined, as a matter Anthony permitting deliver held liable for not be newspapers minor, he was a a.m. because before 5:00 any operate time under at a motor vehicle licensed 343.06(1). unpublished slip op. at 9. § Beard, Wis. Stat. petitioned this court for review. Beard

I I ¶ ofreview. We Next, set forth the standard we rulings independently summary judgment review methodology using the circuit as that used the same 332, 39, 294 Boss, 97 2d court. v. Grams 338 — 5 level, her claim of Beard has abandoned appellate At the theory respondeat liability against The Tribune under the appeals did not address it. superior. The court of (1980). summary judgment A N.W.2d 473 motion for granted genuine must be when there is no issue of moving party judg- fact, material and the is entitled to 802.08(2). ment as a matter of law. Wis. Stat. interpretation 10. This case involves the Statutory Wis. Stat. 103.21, and related statutes. interpretation application and the of a statute are questions independent of law that we review of the appeals. Colby circuit court and court of v. Columbia (1996). County, 342, 349, 202 Wis. 2d N.W.2d h-i alleged 11. The case before us concerns an vio employer lation of the child labor laws. An who violates absolutely injuries the child labor laws is liable for resulting from the violation. D.L. v. Huebner, 110 Wis. (1983); 581, 2d 640, 329 N.W.2d 890 see also Ludke v. Burck, 440, 443, 160 Wis. 152 N.W. 190 Abso (1) proper plaintiff prove lute if the can that: employer violated the statute at or about the time injury; injury occurred. Huebner, injured party 2dWis. at 640. must also be within protected people, class i.e., minor, other employees frequenters. McGarrity v. Welch Plumb ing, (1981); Co., 414, Wis. 2d 312 N.W.2d 37 see also Wis. Stat. 103.65.

¶ 12. In order for there to be a violation of employer/employee laws, child labor there must an be relationship. argues Beard that under the street trades 103.21(1), definition in Wis. Stat. The Tribune had an employer/employee relationship Anthony. with Section 103.21(1), provides:

9 selling distributing newspapers minor or Every place, or public on the streets or other magazines or house, in an and an "employment" from is house agency or independent and each news "employe," (in agencies) selling each of all such the absence (in such or the absence all agency publisher of a or publisher, newspapers whose agencies) each distributes, is an magazines [the minor] sells or minor Every engaged of the minor. "employer" any "employment" in an and an other street trade is furnishing [the minor] "employe," person and each regularly or furnish- articles for sale distribution blacking [the boots is ing [the minor] material "employer". minor's] interpreting statute, must we 13. When legislature. give effect to the intent of the

ascertain and County, 464, 2d Sullivan v. 218 Wis. Waukesha (1998). determining legislative In 578 N.W.2d language intent, first look to the statute we City meaning is clear. Lake determine whether its Corp. City Mequon, 155, 163, 2d v. 207 Wis. (1997). language clear, If is we are N.W.2d looking beyond language prohibited to ascer- from such meaning. If, however, is its Id. statute tain ambiguous, beyond must look the statute's this court scope, history, language context, sub- and examine the ject purpose Sweat, v. matter, and statute. State (1997), quoting 409, 415, 208 Wis. 2d 561 N.W.2d 695 UFE, 274, 281-82, 2d LIRC, Inc. v. 201 Wis. N.W.2d 57 ambiguous statutory provision if rea- A meaning. Sweat, as

sonable minds could differ to its "Ambiguity in the 208 Wis. 2d at 416. can be found statutory provision itself, words of the the words they provision the interact and as with relate to provisions the other in statute and to other statutes." construing a statute, Id. When entire the section and to related sections are be considered its construction interpretation. Id.; Clausen, State v. 2dWis. 231, 244, 313 N.W.2d urges

¶ 15. Beard that under Wis. Stat. 103.21(1), relationship § an existed Anthony through Anthony's between and The Tribune paper's newspaper distribution of the agree bundles. We 103.21(1), standing clearly § alone, creates employment arrangement.6 ambigu- an However, such ity by in a statute can created be the interaction of two separate statutes, well as as the interaction ofwords single Sweat, structure and of a statute. 208 Wis. 2d at 103.21(1) 16. We conclude that Stat. Wis. ambiguous conjunction becomes when read in with §§ Stat. 103.31, statutes, 103.21 to related and 103.21(1) 102.60(7). particularly Wis. Stat. Section knowledge, makes no reference actual or construc- part employer. tive, on the of the Yet two other statutes governing §§ trades, street Wis. Stat. 103.25 and require degree knowledge 103.27, seem to some 103.25(1) part employer.7 requires Section 103.21(1), (Anthony) Under Wis. a minor who dis bundles) (in newspapers public place tributes in a or from house "employment" and "employe," to house is is in an relation independent (none), selling ship agency with either the news (none) Tribune) (The agency publisher newspapers or the (The Tribune) (Anthony) provider the minor distributes. The "employer." newspapers is the chapter Statutes which are contained in same and chapter's goals policy implementing assist should be permit employer a street trade before obtain permitted may employed work, and to minor be or 103.27(1) (2) obligates keep employer a § to and the in a authorized to work record file for each minor Knowledge requirement implicit is in the street trade. keep employer on file for and a record that an obtain employed in street trade. Because each minor a 103.21(1) knowledge, § con- no mention of we makes ambiguous. it is clude that Again, language is of the statute the when ambiguous light statutes, in related when construed of subject history, "scope, context, this looks to the court purpose Sweat, 208 2d the Wis. matter, and statute." scope, history, con- conclude, based on the at 417. We subject purpose matter, text, and of Wis. 103.21(1), implicit employer/employee in rela- intervening involving publisher, tionship a or an agency, trade, in some and a minor involved a street is part degree knowledge, constructive, on the actual or employing. employer is as to whom it legislative explanation in the 18. There is no knowledge, drafting record whether actual construc- possible. if v. Clau pari read materia and harmonized State (1982); sen, 231, 244, City 2d Lake 105 Wis. 313 N.W.2d 819 n.11, 155, Corp. City Mequon, 207 2d 165-66 v. Wis. (1997). relating to pari N.W.2d 100 In materia refers to statutes subject having purpose. the same common same matter (6th 1990). Dictionary rule ed. As a of statu Law Black's construction, tory read, apply pari requires materia a court to subject relating matter and statutes to same construe together. labor are to be viewed as cohe Id. child laws one enactment, Co., McGarrity Plumbing v. 104 Wis. 2d sive Welch 414, 427, (1981), pari and should be read in 312 N.W.2d materia. part employer finding

tive, on the to relevant employee/employer relationship under Wis. Stat. 103.21(1). origins However, statute, of this provisions, legisla- related combine show that the employer ture intended allow for an to establish that employed employer's the minor was without the actual knowledge. or constructive specifically

¶ 19. Earlier case held law knowledge, required constructive, actual or was not (1931) (the permit a violation of Wis. Stat. 103.05 old statute). Comm'n, Milwaukee News Co. v. Industrial 130, 271 N.W. 78 Milwaukee compensation News involved worker's claim injured riding minor who was while in the truck of an employee delivery company during of the news newspapers. Id. at 133.

¶ 20. The court found that the minor was an helper company's employee, assistant or of the news payment and as such all was entitled to the of benefits by employer employee the as was the the who minor at assisted. Id. employer 142. The determined that court the compensation, liable was for double under (1931), allowing per- § 102.60 a minor of age, permit mit (1931), who had no under Wis. Stat. 103.05 employee employer.

to an assist Milwau- News, kee 224 Wis. at The court that 143. concluded employer may permits "if violate 103.05 he but any permit. minor who has no . .to deliver merchan- illegally dise; and neither the to absence intent employ permit work, or such to of actual minor nor or knowledge permit lack constructive of the of such in News, constitutes an excuse law...." Milwaukee Wis. at 143. January in 21. Milwaukee News was decided By legislation specifi- proposed 1937,

1937. March was sought relating newsboys. newspapers cally to The to (7) (1935) § 102.60 new subsection to Wis. Stat. create a exempt publishers news- that would papers distributors firm) corporation (person, if the from require- precaution to see that "took reasonable by chapter regard in to street sales minors ments of 102.60(7) complied 1937 S.B. 379. Section were with." adopted not under the final version bill was May approved § 1, 162, in See ch. Laws 1937. newsboys (adding employes as covered under law). compensation worker's by July addition of However, 1937, sub- (7) (1935), relating to Wis. Stat. 102.60 to section illegally employed compensation for minors who are slightly approved, trades, was albeit differ- street with language. (creating § 2, 401, See ch. ent Laws of regulations provide coverage trades new for street to 102.60(7) newsboys). working for minors as Section read: (1) (6) provisions of section of subsections shall as defined apply employes

102.60 not [street trades] 102.07 if the subsection of section agency publisher shall establish affirmative proof at injury employe the time of with the actual or constructive knowl- employed not edge added.] such agency publisher. [Emphasis allowing By 401, Section ch. Laws of 1937. affirma- proof employer from that the minor was tive not knowledge employed with the actual or constructive directly employer, as this subsection enacted con- appears News, travenes the decision in Milwaukee and response in direct to be to that decision. (1995-96) 102.60(7) §

¶ 23. While Wis. Stat. still proof that the minor was allows affirmative not employed knowledge with the actual or constructive (ch. employer, appears it that the child labor laws 103), § which are the basis for claim, a 102.60 do not. Apparently conflicting provisions 24. of law should be construed so as to harmonize them and thus give leading effect to the idea behind the Sweat, law. (harmonizing 208 Wis. 2d at 422 §§ Wis. Stat. 973.20 939.74). 103.21(1) Reading harmony § and Wis. Stat. 102.60(7), with compensation Wis. Stat. the worker's applicable illegally statute employed, to minors who are

we conclude that an relation ship between a minor involved street trades and the agency publisher employer does not exist under 103.21(1) employed when the minor was without knowledge agency actual or constructive of the employer. comports legislature's This with the desire to protect employees frequenters minor, other and unregulated employ from the of minors in hazardous occupations, Huebner, see 110 Wis. 636; 2d at McGar rity, imposing 104 Wis. 2d at 427, without impossible publishers newspapers. burden on the addition, In it is unreasonable to assume legislature employer that intended to allow the present unwitting an affirmative defense for an viola- response tion of the child labor laws in to a worker's compensation alleged claim, but not for other violations. interpretation

¶ 26. This is also consistent with provisions relating other to street trades which must pari previously explained, be read in materia. As 103.25(1) 103.27(1) §§ obligate & employer keep to obtain and a record on file for each employed provisions minor imply in a street trade. These knowledge part employer.

actual on the unpermit- simply ignore employer cannot However, an trades no street that because and claim ted minors knowledge. Rather, permit no actual filed, it had was 102.60(7), con- Stat. that as with Wis. conclude we may proven, knowledge, as sufficient if be structive well. absolutely employer If to hold 27. we were relationship Stat. under Wis. on a

liable based degree 103.21(1), requiring knowl- some without employer, §§ part 103.25 edge on the superfluous and absurd rendered 103.27 would be and to are be Both outcomes result. situations would Koopmans, 678, 563 2d 210 Wis. v. avoided. State (1997); City Corp., 2d at 162. 207 Wis. Lake N.W.2d knowledge, actual conclude that reasons, we For these employer/employee implicit in the constructive, is or intervening involving publisher, relationship anor agency, under in a street trade involved and a minor 103.21(1), employer part it is as whom on employing. testimony conflicting is case, there In this any, knowledge, degree if that The Tribune

as to newspapers Anthony's relating distribution had ,Anthony newspaper on the stated that and bundles. guys night at accident, he talked with before he received for a while distribution tower did not The Tribune however the bundles. delivered Anthony permit file, nor did trades have street Anthony pay there is a factual his Because for work. it knowledge, question actual The Tribune had whether Anthony delivering materials constructive, summary brother, conclude that we for his father judgment inappropriate. Accordingly, we reverse the judgment. circuit court's

IV. If it is determined that The Tribune had knowledge, questions additional will need to be answered, such as whether The Tribune violated the injury. statute at or about the Huebner, time of the may Wis. 2d at 640. If The did, Tribune employment then the street Anthony's place be Beard, of and Charles party, may protected a third be within the class of people McGarrity, under the child labor laws. 104 Wis. possibility 2d at 427. Because there is a distinct that questions parties these thoroughly will arise and because the have issues,

briefed the we will address them in promoting judicial efficiency prompt the interest of and adjudication. Sentry Co., Hedtcke v. Ins. 109 Wis. 2d 461, 478-79, 326 N.W.2d 727 A. if 30. Even The had actual or Tribune construc- knowledge Anthony's employment, tive of there still is question Anthony working whether was in violation of the child labor laws8 at or about the time of the Department Industry, Labor and Human Relations (DILHR) has determined reasonable hours of prohibited types employment. minors as well as See Wis. points possible 103.24 and 103.65. Beard to two §§ viola (1) 71.04(3) (now tions: Wis. Admin. Code IND DWD § 271.04(3)) prohibits years age which minors 16 or 17 to be employed delivering newspapers, before 5:00 a.m. if nor after days p.m. preceding days 9:00 on school not later than 11:00 (2) days p.m. preceding days; not school and Wis. Admin. 70.06(13)(now 270.06(13)) prohibits Code IND DWD which approved of broad definitions accident. Courts have scope employment. 636; at see Huebner, 110 Wis. 2d Minneapolis, Marie St. Paul & Sault Ste. also Leora v. Ry. Co., 386, 393, 146 N.W.2d (minor way repair injured while on who was actually engaged conduct, track need not be railroad repair the scene of he was then rather when he left for engaged repair is a violation of the stat- track which ute). question to be decided However, this is a factual by jury. Accordingly, Huebner, 2d at 636. we 110 Wis. child vio- there was a labor law conclude whether occurred while lation and whether that violation scope employ- Anthony acting of his within questions also ment are factual which should be summary jury not decided on determined a and judgment.

B. brings ¶ the last issue must 31. This us to which party, Charles, a third is within be decided: whether protected people class under the child labor laws. the McGarrity, not, If he is then 104 Wis. 2d at 427. knowingly employed Anthony in whether Tribune Anthony of the child laws and whether violation labor employment scope at the time of the was within his injury pertinent. would not be McGarrity, explained

¶ As in the this court prevent child labor laws were enacted to minors from being employed permitted to in hazardous work occupations protect protect minors, in and to order to may injured frequenters fellow workers and who be as employment occupa- in a result of a minor's hazardous is, employed driving minors as motor vehicle drivers unless the alia, employment. inter occasional and incidental to the minor's McGarrity, legislature tions. 104 Wis. 2d at 427. The specifically empowered Department has of Indus- try, (DILHR)9 Labor and Human Relations promulgate regulating employment rules of minors protect employees frequenters. minor, other Id. argues

¶ 33. Beard that Charles was a fre- quenter highway -Anthony's argued place — employment. Because the child labor laws were protect public intended to upon as whole, a Beard insists interpretation frequenter a broad of the term in driving driving the context of because is not limited to place one like other hazardous contrast, activities. In The Tribune maintains that Charles was a member of general public pro- who would not fall within the persons sought protected by tected class of to be child labor laws. frequenter "every person, 34. A is defined as employe, may go place

other than an who in or be a public building under circumstances person trespasser." which render such other than a 101.01(2)(d).10 person Charles, Wis. Stat. who was employe, driving public high a Tribune not a way by Anthony's Clearly, when he was struck vehicle. public building, he was trespasser. neither nor was he a Anthony's 35. At issue then is what constitutes place employment frequenter and was Charles a 13, May 1997, Department As of Industry, Labor (DILHR) and changed Human Relations Department was to the (DWD). Development 3, 151,230. of Workforce 1997 Wis. Act §§ 1995, In these definitions were recreated in Wis. Stat. (1995-96) applicable 103.001 and made to chs. 103 to 106 (1995-96). See 1995 Wis. Act place employment time that he at the within that by place A the vehicle. was struck "every place, or out. . either whether indoors .where any industry temporarily permanently trade or busi- or any process operation, or on, ness is carried or where any industry, directly indirectly trade or or related to any person is business, on, is carried and where directly indirectly employed by another for direct or 101.01(2)(f). gain profit...." indirect Wis. Stat. approved of "a view of 36. Courts have broad places employment" in the case of the definition of Huebner, Huebner, 2d at 636. In minors. jury's employ- affirmed the verdict that a minor's court threshing legal oats —a ment, to assist assisting forage activity with —included wagon designated dangerous as was —which Similarly, Leora, 156 Wis. at minors. Id. at 635-36. legally employed 393, minor, who was as a section helped railroad, to maintain and hand on the also assigned pro- repair the railroad track —a section of activity. injured Although the minor was as the hibited point repairs crew traveled handcar to the where necessary, the court found that the entered were crew upon its work when it embarked on the handcar for engaged repair- repair then in track scene of ing. Id. directly point,

¶ 37. these cases are not While they cases, In refused are instructive. both the court provision narrowly child to limit the construe the labor only injuries directly employer's related to prohibited task to do so defeat the because would purpose protect statute's children from the dan- —to gers upon extremely attendant certain hazardous dangers usually occupations, children do not which appreciate. Huebner, 110 Wis. 2d 636; Leora, at Wis. at 393. Anthony employed In case, 38. this was in a newspaper sup-

street trade —he delivered bundles of plements vending carriers, merchants and machines newspaper and he delivered the to homes on his employment brother's carrier route. When the at issue (which may may signifi- is a street trade or not involve driving), by very cant its definition,11 it follows that the place employment public place is the in which the public In deliveries occur. this case, the street is where operations related to street trades on, were carried Anthony employed by and where The Tribune for 101.01(2)(f). profit. See Wis. Stat. place

¶ 39. A is to be safe and protect safety life, must health, and welfare of every frequenter place employment. of such McGar- rity, Frequenters protected 104 Wis. 2d at 426. are they may injured because be as a result of a minor's employment. might See id. at 426-27. Other drivers be engaged harmed a minor in a street trade which driving. classify involves It reasonable, therefore, frequenters, such other drivers as to the extent the present engaged minor is. and is in a street trade in violation of the child labor laws. (1) In case, this if it is determined that: knowledge

Tribune had actual or constructive (2) Anthony's employment; The Tribune violated a law; child labor such violation occurred at or about 103.21(6) 11 Astreet trade is defined in Wis. Stat. as: selling, sale, offering for, for, [T]he soliciting collecting display- ing distributing any articles, goods, merchandise, or commercial service, posters, circulars, newspapers magazines, or the black- boots, ing any public place from, street or other house to [Emphasis added.] house. injury; public that the time of the then we conclude the highway Anthony's place employment and be of could highway, driving public could Charles, on the who was frequenter protected the child intended to be abe Anthony present and the extent that labor laws to newspa- may engaged in the distribution of have been pers a of the trade. If there was violation street —a and laws when the accident occurred child labor protected people, of class Charles was within the any stemming injuries from be for Tribune would liable Huebner, 110 2d at 637. that violation.12 Wis. recognize stating ¶ 41. that there are cases We highway "place employment"; how- a is a of that not ever, the context of these cases were decided within Padley e.g., alleged place See safe statute violations. v. Village Lodi, 661, 662-63, 233 290 N.W. 136 Wis. (1940); Luberts, 387, 389, v. 230 284 N.W. Herrick Wis. (1939). interpret place employment 27 If we were to manner, in the context of street trades in a similar we effectively law, would eviscerate street trades purpose protecting § 103.21-103.31, and its construing statutes, minors and others. courts When presume legislature intends must statute pur- interpreted to be a manner that advances the poses purposes. statute, not defeats those Verdolijak Paper Corp., v. Mosinee 2dWis. (1996). pre- 635, 547 Therefore must N.W.2d we legislature the child labor sume that enacted including prevent street trades —to minors from laws— working laws, If a minor is in violation of the child labor factor. See D.L. any contributory negligence not a minor is v. Huebner, 581, 642-44, 110 Wis. 2d 329 N.W.2d 890 Rather, contributory negligence application has in an abso no Id. at against employer. lute case being employed occupations in hazardous in order to protect frequenters minors, workers, fellow at the place minor's which in the context of a public place. street trade includes a street or other McGarrity, 104 Wis. 2d at 427. A42. street trade is defined Wis. Stat. selling distributing any

§ 103.21 as the of articles on public place street, other or house to house. Section 103.21(6). phrase specifically Where a word or meaning defined in statute, its is as defined in the statutory statute, and no other rule of construction applied. need be Fredricks v. Comm'n, Industrial only Wis. 519, 522, 91 2d N.W.2d 93 It is when a phrase specifically word or is used and is not defined approved usage therein that common and of such word phrase accepted statutory or and other rules of con apply. struction Id. Because 103.21 defines a "street occurring public place, trade" as in a we are limited to this reasons, definition. For these we conclude that determining "place employment" when the for a engaged public places minor in trade, a street the limi place tation under the safe statutes does not and apply. cannot

V. agrees ¶ 43. The concurrence with all but one of by majority, the conclusions reached is the question employer's liability. of the See concurrence at employer absolutely 29-32. We would hold an liable illegally employed injures whether an minor employe frequenter; him/herself, another or a the con- currence would not. Instead the concurrence would only employer absolutely hold an where the ille- liable injured gaily-employed See minor him/herself. concurrence at 27-28. appears position to be The concurrence's 44. regarding employer's based

inconsistent premise injured. is Such a on the sheer luck of who enacting legislative purpose for undermine the would protect minor, other the child laws —to labor bodily injury frequenters employees caused from employment, engaged in Wis. minors hazardous 103.65(1), McGarrity, 2d at and to 104 Wis. subject penalties, Huebner, 110 to criminal the violator 2d at 645.

VI. knowledge, sum, In conclude that actual we implicit employer/employee constructive, in an intervening relationship involving publisher, or agency, and a minor involved a street trade under 103.21(1), part employer as to Wis. Stat. employing. case, In this there is a factual whom it is knowledge, question had actual whether Tribune Anthony delivering constructive, that its bun- question newspapers. If this is answered dles and issues, affirmative, there are several other as here- mentioned, tofore must be determined before which absolutely liable. therefore The Tribune can be held We judgment, and remand the cause to the reverse proceedings circuit court for further consistent with opinion. this

By appeals the Court.—The decision of the court of reversed, is and the cause is remanded to the circuit court.

24 {concurring). BRADLEY, J. 46. ANN WALSH majority genuine agree I that a While with the issue of concerning Anthony Kropelin's material fact exists agree majority status, I do not with the question that an answer to that results in affirmative majority liability Enterprises. for Lee absolute opinion past is correct that this court has in the deter- mined that a violation of the child can labor laws impose liability employer. Majority op. on the absolute 9; Huebner, 581, 640-41, v. 110 at D.L. Wis. 2d (1983). majority opinion However, N.W.2d incorrectly liability concludes that absolute automati- cally results from a violation of the child labor laws regardless injured. today, not, That is until who of this state. law majority negligence opinion

¶47. The confuses per liability. prior cases, se with absolute Based on our negligence per liability se rather than is the absolute proper analytical in this case. This seem- framework ingly significant practical it minor detail carries with consequences. Negligence per liability

¶ 48. se and absolute are legal concepts they generally related in that stem both statutorily imposed from standards of care violations they plaintiff reduce the elements that a must both successfully negligence prove In a to assert claim. typical negligence plaintiff prove action, the must four (1) prior recovery: the defendant had a elements (2) (4) duty plaintiff causing it to the breached plaintiffs injury. Davidson, Nelson v. 155 Wis. 2d Any 674, 679, a defen- N.W.2d proves plaintiff after these four elements is dant faces negligence comparative then reduced attributed plaintiff. Stat. 895.045. from, Negligence per ¶ 49. se results the violation legislature of a statute in which the appropriate has decreed Huebner, standard of care. 2d at Page 640; Keeton, W. Prosser and Keeton on the Law of (5th 1984) (hereinafter "Keeton, Torts 229-30 ed. Law Torts"). cases, In such when a fact finder concludes of that a party duty statute, has violated the and breach "conclusively are Keeton, determined." Law Torts at 230; Huebner, However, see also 110 Wis. 2d 640. at "[n]egligence per liability per se is not se" and plaintiff prove must still that the defendant's breach duty injury. plaintiffs its awas substantial cause ofthe Contributory Negligence Prosser, William L. as Defense Statute, to Violation 32 Minn. L. Rev. (1948); Similarly, Huebner, 110 Wis. 2d at 640. ability defendant retains the to minimize or neutralize finding negligence showing plain- with a that the negligence equal greater tiffs perpetrated by to or than that Keeton,

the defendant. Law Torts at liability ¶ 50. While absolute is also the result of statutory consequences significantly violation, a its are negligence per more instances, severe than se. In these statutory only legal a violation results not in a conclu- duty, sion defendant breached a but also in similar conclusion that the breach was the cause of the plaintiffs injury. Huebner, 110 Wis. 2d at 640. Where liability standard, absolute is the a defendant cannot liability plaintiffs minimize its as the own contribution injury to his or her is not considered. Id. The relevant (1) inquiry is thus reduced to Did the defendant violate plaintiff injured? statute, theWas Id. potency, ¶ 51. Because of its absolute rarity only in the law. It will exist in those limited legislature clearly circumstances where the has "so protect particular persons against intended to class of inability protect Keeton, their own themselves." Law (Second) 230; Torts, 483, Torts at Restatement e, f. cmt.

¶ 52. The cases in which we have held an employer absolutely liable a violation of the child person labor laws occurred where the child was the injured. (child injured Huebner, 110 2d at Wis. 588-91 accident); in Co., farm Reiten v. J. S. Stearns Lumber (1918) (child injured 605, 606, 165 166 Wis. N.W. 337 in accident); company Appleton lumber Green v. Woolen (child injured Mills, 145, 155 162 Wis. 958 N.W. factory accident); in Co., Pinoza v. Chair 152 Northern (1913) (child injured 473, 479-81, Wis. 140 84 N.W. accident); factory Winnebago Mfg. Sharon v. Furniture (1910) (child injured Co., 185, 124 141 Wis. N.W. 299 accident); ripsaw Hasslinger, see also Tisdale v. 79 Wis. (1977); 194, 197-98, 2d 255 N.W.2d 314 Hertz Drivur Commission, Stations v. Industrial 254 Wis. self 309, 35 N.W.2d 910 Conversely, employed ¶ 53. this court has negligence per se standard in those cases where the injured McGarrity illegally-employed child another. v. Plumbing 414, 422-23, 2d Co., Welch Wis. (1981) (non-employee injured by child N.W.2d laws); employed in violation of the child labor see also Contrary Huebner, 2d at 641 n.11. to the Wis. majority opinion, precedent compels apply our us to injured negligence per party se standard because the allegedly employed here is not the minor. being nearly

¶ 54. Aside from it our law for liability ninety years, applying the child absolute when injures injured negligence per se the child is when excep- public policy. furthers In the another laudable imposed, it is cases tional where absolute only persons that class of is deemed unable so because safety appreciate provide for its either to own danger Prosser, 32 Minn. L. Rev. at of its actions. Keeton, Law Torts at 230. 118-20; legally incapa- Much like a child is deemed consenting § 948.02, contact, sexual Wis. ble legally incapable contributing to his or a child is also injury employed child her in violation ofthe labor when result, has that the laws. As a this state determined employer illegally employs a child cannot benefit who ignorance inexperience from that child's ing contribut- injury. Hüebner, 110 2d at to his or her own 640-42; Sharon, 141 Wis. at 190. The child labor laws legislature certain activi- exist because the considers dangerous too for children. See Wis. Admin. Code ties 1997). (May illegally employed An child DWD 270.06 injured employment who is then only proves in the course of that legislature's point.

the To allow the employer mitigate liability by arguing its that the to responsible child's actions are for his or her own injury contending in that statute all essence was — perversely turns the child labor law on its too correct — (Second) § 483, Torts, c, head. See Restatement cmts. e, f present ¶ 56. Those same considerations are not illegally when, case, as in this someone other than the injury. employed An child suffers the adult such as certainly persons Beard was not within a class of legally incapable contributing injury. to his But for majority child, the fact that Beard was killed a hardly suggest any negligence would his behalf liability I should not factor into the calculation.1 see no 1 majority negligence per The contends that this se/absolute liability dichotomy "appears regarding to be inconsistent employer's injured." based on the sheer luck of is who policy to him reason either law or relieve of that burden this case. analysis compels

¶ 57. The above to conclude me Enterprises that under these facts Lee could not be absolutely negli- best, held gent per At it could held liable. be holding

se. Before however, such a court particular must conclude that the violations of these impose consequences statutes civil and a fact-finder relationship must conclude that an existed.

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

(1) the harm inflicted type was the statute was (2) designed prevent; person injured to persons sought within the class of protected; be expression legislative there is some intent that the statute become a basis for the imposition liability. civil

Majority op. majority forget, at 24. The seems to or at least overlook, appropriate negligence per the fact that se under hardly duty Enterprises test Lee home free. It has breached a nothing escape and can do that fact.

Moreover, ways. majority has "sheer luck" cuts both nothing say persons about the fact that under its test who are by injured illegally-employed prove an minor do not need to any that causation and are absolved from of their own actions injury. only advantages contribute to their These result from having injured illegally-employed the "sheer luck" of been minor. Solsrud, 743, 498

Tatur v. (1993). 174 Wis. 2d N.W.2d argues Beard that a violation of Stat. negligence per agree. §§ 103.24 and 103.65 creates Ise. particular ¶ First, 59. these statutes and the promulgated pursuant administrative rules to them regulate type may engage a minor employ- in as well as the hours and conditions of that e.g., See, § ment. Wis. Admin. Code DWD chs. 270 & 1997). 270.06(13) (May 271 driving Rule DWD declares that public highway, except a motor vehicle on a driving during where such is incidental and done daylight dangerous activity hours, is a for the minor. Considering that Charles Beard was killed in the mid- night, injury type dle of the that was of the that the designed prevent. statute was § See also DWD 270.05(2) (regulating work); hours that a minor can (same). DWD 271.04 Second, 60. under code, the administrative employee frequenter

Beard must either abe fellow or a persons protected by in order to fall within the class of majority the statute. DWD 270.06. Like the I con- Kropelin engaged clude that because in a street public highway traveling trade, on which he was place employment. Majority op. became his at 20-21. by driving Therefore, at accident, the time of the on the public highway frequenter Beard was a and within the persons protected by class of the statutes. Id. at 21-22. legislature Third, I conclude that the has §§ intended that a violation of either Wis. 103.24 gives liability. or 103.65 short, rise to civil In the stat- expression utes at issue here indicate "such a clear safety [minor employees, concern for the other employees, frequenters], plainly committed so to the responsibility [employers], [I] conclude that the [employers] charged exposed so are to civil they charged." their failure to do that with which are 256, 271, v. Bignell, Walker 100 Wis. 2d 301 N.W.2d (1981). See also McGarrity, 418-19; 447 104 2d at Wis. Co., & Chicago Transp. Wells v. North Western 98 Wis. 328, 332-34, 2d 296 559 N.W.2d In I sum, with the that a agree majority issue of material fact as genuine exists to whether of Lee Anthony Kropelin employee Enterprises was Summary of Wis. Stat. 103.21.2 purposes judg- § However, ment therefore I erroneously granted. agree jury's cannot with the that a affirmative majority to that results in Lee question Enterprises answer absolutely Rather, liable to Beard. under our being long-standing precedent, jury's affirmative answer in would result Lee Enterprises being negligent —but not in it result necessarily being Liability liable. would agree majority interplay

2 I also with the that the between suggests Wis. Stat. 103.21 and 103.25-103.275 that an §§ § employer knowledge must have either actual or constructive However, Majority I employ. op. that a minor is in its at 11 — 13. majority's justifying agree cannot with the that conclusion in part legislature's chapter the stat modification of 102 of at utes. Id. 13 — 15.

Chapter regulates compensation chap 102 worker's while separate concepts in regulates employment. ter 103 These are purposes ultimate need the law whose definitions of terms and harmony. pari Statutes should be read in materia not be they chapter and when are found within the same concern City subject-matter. City Corp. Mequon, Lake v. same (Wis. 155, n.11, Wis. 2d 165-66 558 N.W.2d 236.13(l)(c) 236.11); Sweat, 409, 2d State v. § (1997) (different 417, 561 N.W.2d 695 subsections Wis. Stat. 231, 973.20); Clausen, State v. 105 Wis. 2d 313 N.W.2d (1982) (different Code, of Wis. Adm. AG subsections 110.02). applies No similar maxim to statutes outside of chapter subject matter. same

only additionally jury if Beard convinced a that Lee Enterprises' negligent injury actions caused his greater proportion any negligent than actions of his Accordingly, I own. concur. I am authorized to state that CHIEF JUS- joins opinion.

TICE SHIRLEY S. ABRAHAMSON this

Case Details

Case Name: Beard v. Lee Enterprises, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Apr 9, 1999

Citation: 591 N.W.2d 156

Docket Number: 96-3393

Court Abbreviation: Wis.