Jacqueline DIXSON, a minor, by her Guardian ad Litem, Dale R. Nikolay and Kathryn Dixson, Plaintiffs, v. WISCONSIN HEALTH ORGANIZATION INSURANCE CORPORATION, Defendant, Becky Mae CARSON and Allstate Insurance Co., Defendants-Third-Party Plaintiffs-Appellants-Petitioners, v. ORIENTAL INVESTMENT COMPANY, Third-Party Defendant, MILWAUKEE COUNTY, Third-Party Defendant-Respondent.
No. 97-3816
Supreme Court of Wisconsin
Decided July 12, 2000
2000 WI 95 | 612 N.W.2d 721
For the third party defendant-respondent there was a brief and oral argument by Louis Edward Elder, principal assistant corporation counsel, Milwaukee.
¶ 1. DIANE S. SYKES, J. This case raises the question of whether Milwaukee County, by virtue of its federally-mandated duty to inspect a rent assistance property, had a duty to test the property for the presence of lead-based paint. Two-year-old Jacqueline Dixson and her mother, Kathryn, sued their landlord, Becky Mae Carson, for injuries Jacqueline suffered as a result of ingesting lead-based paint, allegedly in the duplex they rented from Carson. Shortly before Jacqueline‘s diagnosis, and pursuant to federal regulations, the apartment had been inspected by Mil
¶ 2. Carson and her insurer impleaded Milwaukee County for contribution, alleging that the County was negligent in its performance of the inspection. The County moved for summary judgment, and the circuit court granted the motion, concluding that the County had no duty to inspect or test for lead-based paint. The court of appeals affirmed. We conclude that the County‘s federally-mandated duty to inspect the rent assistance property in this case did not include the duty to test for the presence of lead-based paint. Accordingly, we affirm.
¶ 3. The relevant facts are from the pleadings and the affidavit of the County‘s rent assistance program coordinator. They are as follows. Sometime in 1989, Kathryn Dixson and her two-year-old daughter, Jacqueline, moved into a duplex owned by Becky Mae Carson located at 3414 North 23rd Street in Milwaukee. At the time, Dixson participated in a federal Department of Housing and Urban Development (HUD) rent assistance program administered by Milwaukee County.
¶ 4. Dixson informed the county rent assistance program coordinator of her move in February 1990. At that time, the County required Dixson to read and sign a lead-based paint notice. The notice contained a general warning to participants in the program of the dangers of lead-based paint. It also advised tenants living in properties built before 1978 to ask their landlords about the presence of lead-based paint.
The dwelling unit appears to be in compliance with HUD Lead Based Paint regulations,
24 C.F.R., part 35 of the title, issued pursuant to theLead Based Paint Poisoning Prevention Act, 42 U.S.C. 4801 . The Owner may be required to provide a certification that the dwelling is in accordance with such HUD regulations.
Both the county inspector and Kathryn Dixson signed the inspection form. Next to the inspector‘s signature, the form stated, “I hereby certify that I have inspected this dwelling unit and have determined that to the best of my knowledge it complies with the requirements of
¶ 6. Sometime in the fall of 1990 Jacqueline Dixson was diagnosed with lead poisoning. Kathryn Dixson and Dale Nikolay, Jacqueline‘s Guardian ad Litem, filed suit against Carson and her insurer, Allstate Insurance Company (collectively, Carson), seeking damages for injuries Jacqueline suffered as a result of her ingestion of lead-based paint, allegedly in the duplex.
¶ 7. On August 11, 1995, Carson impleaded Milwaukee County for contribution based upon the County‘s inspection of the Dixsons’ duplex in connec
¶ 8. The County moved for summary judgment, arguing that it had no legal duty to conduct tests for lead-based paint. The County argued that the duty to test for lead-based paint rested with the landlord and could not be shifted to the County by virtue of its duty under the rent assistance program to conduct quality inspections of participating rental units.
¶ 9. The County relied upon an affidavit from Kim Jines, the Rent Assistance Program Coordinator. The affidavit stated that under the program, the County had no duty to test participating properties for lead-based paint. At most, the County had a “duty to conduct initial and annual quality inspections so as to provide decent, safe, and sanitary units.”
¶ 10. The Circuit Court for Milwaukee County, the Honorable Arlene D. Connors, granted summary judgment in favor of the County, dismissing both Carson‘s third-party action and the Dixsons’ direct claim. The court found that the County‘s rent assistance quality inspection was not a guarantee that no lead-based paint existed in the apartment, because the inspection report only stated that the property “appeared” to comply with pertinent HUD regulations regarding lead paint. Because Carson offered no evidence contradicting the County‘s affidavit disclaiming a duty to test for lead-based paint, the court found there was “no
¶ 11. Carson appealed and the court of appeals affirmed in an unpublished decision. The court characterized the dispositive issue as whether the County “voluntarily assume[d] a duty to inspect for lead based paint,” citing Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96, 113, 522 N.W.2d 542 (Ct. App. 1994), and Restatement (Second) of Torts § 323 (1965). The court of appeals concluded that there had been no assumption of duty, because the inspection report merely advised that the apartment “appeared” to comply with HUD regulations regarding lead paint.
¶ 12. We accepted review on the issue of the County‘s duty to inspect or test for lead-based paint. However, the case presents an initial jurisdictional question of whether Carson was required to file a notice of claim pursuant to
¶ 13. The threshold jurisdictional issue requires us to determine whether the notice of claim requirement of
893.80 Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits. (1) Except as provided in subs. (1g), (1m), (1p) and (8), no action may be brought or maintained against any...governmental subdivision or agency thereof nor against any officer, official, agent or employe of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the...subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant...subdivision or agency or to the defendant officer, official, agent or employe....
¶ 14. Carson‘s claim against Milwaukee County is for contribution. A cause of action for contribution is separate and distinct from the underlying cause of
¶ 15.
¶ 16. In Coulson we interpreted
¶ 17.
¶ 18. Thus, in
¶ 19. DNR v. City of Waukesha, 184 Wis. 2d 178, 515 N.W.2d 888 (1994), and City of Racine v. Waste Facility Siting Board, 216 Wis. 2d 616, 575 N.W.2d 712 (1998), both cited by the County in support of the requirement of a notice of claim here, are distinguishable. Each involved a recognizable, accrued, non-contingent claim (an action for injunctive relief in City of Waukesha and a declaratory judgment action in City of Racine) as opposed to a contingent claim such as one for contribution. Neither case undermines our conclusion that
¶ 20. The jurisdictional question thus resolved, we reach the substantive issue in the case: whether the County, by virtue of the federally-mandated inspection of the rent assistance property in this case, had a duty to test for lead-based paint. We conclude that it did not.
¶ 21. A cause of action for negligence requires: 1) a duty of care on the part of the defendant, 2) a breach of that duty, 3) a causal connection between the con
¶ 22. We start from the general premise that “‘the duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act....‘” Rockweit, 197 Wis. 2d at 419-20 (quoting A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 483-84, 214 N.W.2d 764 (1974)). Carson argues that the County‘s duty of ordinary care in this case included the requirement of inspecting and testing for lead-based paint under the “Good Samaritan” rule expressed in Restatement (Second) of Torts § 324A (1965).5 Essentially, this rule requires one who
¶ 23. Carson misconstrues the federal regulations that require the County, in its role as administrator of the rent assistance program, to inspect properties occupied by rent assistance recipients. Although the applicable line item on the County‘s inspection form certified that the Dixsons’ unit “appeared to comply” with the provisions of
¶ 24. Two subparts of
¶ 26. The other relevant provision in
¶ 27. When an inspection is conducted pursuant to
¶ 28. The federal regulations do contain a provision that requires the County to conduct lead-based paint testing, but it does not apply to the circumstances presented here.
In the case of a unit constructed prior to 1978, for a Family which includes a child under the age of seven years with an identified EBL condition [excessive absorption of lead—a confirmed concentration of lead in whole blood of 25 ug/dl or greater], the initial inspection under s 882.209(h)(1), or a periodic inspection under s 882.211(b), shall include a test for lead-based paint on chewable surfaces [all chewable protruding painted surfaces up to five feet from the floor or ground, which are readily accessible to children under seven years of age, e.g., protruding corners, windowsills and frames, doors and frames, and other protruding woodworks].
¶ 29. While a standard of ordinary care may under certain circumstances be defined by legislation or government regulations, see Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 658, 476 N.W.2d 593 (Ct. App. 1991), and Restatement (Second) of Torts § 286 (1965), we cannot conclude that the regulations in this case required the County to test for lead-based paint. The regulations clearly require lead-based paint testing only under very specific circumstances not present here. Furthermore, there is no evidence that the County voluntarily undertook to test for lead-based paint, and so the “Good Samaritan” rule of the Restatement § 324A does not apply.
¶ 30. The County never stated or otherwise implied that the Dixsons’ duplex had been tested and found to be free from lead-based paint. Rather, the inspection form signed by the County inspector and Kathryn Dixson stated that the premises “appeared” to comply with the provisions of
¶ 31. Furthermore, the inspection form clearly warned that the responsibility for any lead-based paint on the property rested with the landlord; it stated that the property owner “may be required to provide a certification that the dwelling is in accordance with such HUD Regulations.” The County also warned participants in the rent assistance program that if they lived in a rental unit built before 1978, they should ask their landlord about the presence of lead-based paint.
¶ 32. The law of this state places the responsibility for lead paint testing on the property owner. In Antwaun A. v. Heritage Mutual Insurance Co., 228 Wis. 2d 44, 62, 596 N.W.2d 456 (1999), we concluded that a duty to test for lead-based paint arises whenever the landlord of a residential property constructed before 1978 either knows or should know that there is peeling or chipping paint in the property. We see no justification for shifting the duty to test for lead paint from the property owner to the County based upon federal regulations that impose upon the County a limited duty to inspect for deteriorating paint surfaces in properties leased by rent assistance recipients. To impose such a wholesale shift of responsibility would create two classes of property owners—one that has a duty to test for lead-based paint under Antwaun A., and another that is relieved of that duty because it leases to tenants who receive federal rent assistance through Milwaukee County or any other public housing authority.
¶ 33. Therefore, we conclude that when Milwau
By the Court.—The decision of the court of appeals is affirmed.
¶ 34. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). The majority opinion unduly narrows the third-party plaintiffs’ claim against Milwaukee County and, as a result, dismisses the claim, concluding that the County had no duty to inspect the plaintiffs’ apartment for lead-based paint. Because such a conclusion, even if accurate, does not resolve the case, I dissent.
¶ 35. As the majority opinion properly notes (majority op. at ¶ 2), the third-party complaint alleged that the county was negligent in its inspection of the plaintiffs’ apartment, and that such negligence was a proximate cause of the plaintiffs’ injuries. The County subsequently made a motion for summary judgment, on two separate grounds. First, the County argued that it could not be liable for injuries suffered by the plaintiffs since the plaintiffs did not rent an apartment owned by the County. Second, the County asserted that the action should be dismissed for failure to prosecute because the plaintiffs and the third-party plaintiffs had failed to show up at a scheduled deposition at which counsel for the County appeared. The County included
¶ 36. Both the plaintiffs and the third-party plaintiffs responded to the defendants’ motion for summary judgment. The plaintiffs argued that summary judgment was not appropriate because the County had conceded that it had a duty to inspect the apartment and that it was a question for the jury to determine whether the inspection was negligent and the cause of the plaintiffs’ injuries. The third-party plaintiffs’ motion in opposition to the defendants’ motion for summary judgment similarly argued that such relief was not appropriate because “[t]here clearly exists an issue of fact as to whether Milwaukee County was negligent in its inspection of the home....”
¶ 37. The third-party plaintiffs’ brief included an affidavit from the third-party plaintiffs’ attorney. The affidavit included portions of the transcript of the plaintiffs’ deposition, in which a plaintiff testified that a representative from the County had inspected the apartment on two separate occasions and had not mentioned anything about lead-based paint. The third-party plaintiffs also included the inspection form that the Milwaukee County Department of Public Works had filled out and signed, certifying that the plaintiffs’ apartment complied with the standards listed therein.
¶ 38. The County subsequently filed a motion entitled “motion to dismiss.” That motion asserted that the affidavit submitted by the attorney for the third-
¶ 39. The circuit court dismissed the third-party action against Milwaukee County because the inspection report only stated that the apartment “appeared” to comply with the pertinent HUD regulations regarding lead-based paint. The circuit court held that the third-party plaintiffs had not submitted any evidence to refute the contention made in the affidavit of the Coordinator that the County did not have a duty to test for lead-based paint.
¶ 40. The court of appeals affirmed, utilizing a similar rationale. The court of appeals characterized the dispositive issue as whether the “county voluntarily assume[d] a duty to inspect for lead-based paint.” The court of appeals held that no assumption of duty had taken place, since the inspection form merely stated that the apartment “appeared” to comply with the regulations. The court of appeals further held that the third-party plaintiffs had failed to submit any evidence to suggest that the inspection report was erroneous in its limited assertion that the apartment appeared to comply with the federal lead-based paint regulations.
¶ 41. This court‘s majority opinion agrees with the circuit court and court of appeals, which held that the federal regulations do not create an affirmative duty on the County to inspect for lead-based paint. Rather, according to the majority, the regulations cre-
¶ 42. In my view the majority opinion‘s analysis of the claim against the County is faulty. The majority examined whether the County voluntarily undertook an affirmative duty to test for lead-based paint or whether such a duty arises from the federal regulations. Majority op. at ¶ 20. But neither of these analyses reflects Wisconsin‘s well-established negligence law. In Wisconsin, as this court has repeatedly explained, the first element of a negligence claim is a duty of care, and that duty is established under state law whenever it is foreseeable to the defendant that his or her act or omission to act might cause harm to some other person. At the very least, every person is subject to a duty to exercise ordinary care in all of his or her activities. This court has not adopted the Restatement‘s provisions regarding the voluntary assumption of duties in evaluating negligence claims. Instead, the general framework governing the duty of care in Wisconsin negligence actions is as follows: A person is
¶ 43. Thus the ultimate question in this case is not whether the County voluntarily undertook an affirmative duty to inspect but whether, under all the circumstances, the County did not exercise with due care when it inspected the apartment and represented to both the landlord and prospective tenant that the unit appeared to comply with HUD regulations related to lead-based paint. 3
¶ 44. The third-party complaint against the County was not based solely on the County‘s failure to
¶ 45. The majority opinion concludes that the negligence claim was properly dismissed on summary judgment because the third-party plaintiffs did not submit evidence suggesting that the County breached its duty to conduct a visual inspection for faulty paint. Majority op. at ¶ 30. This conclusion is in error because the County did not move for summary judgment on the grounds that its inspection had not been negligent. Rather, the County‘s summary judgment motion (and subsequent “motion to dismiss“) was based on the limited premise that the County did not have a duty to inspect for lead-based paint because the County did not own the apartment. As the third-party plaintiffs argue in their brief to this court, a motion for summary judgment based on the lack of a legal duty because of lack of ownership does not require the non-movants to present factual evidence as to the inadequacies of the inspection.
¶ 46. I would remand this cause to the circuit court for a determination of whether, under all the circumstances, the County exercised due care in its inspection and representation. If the County wishes to
¶ 47. For the reasons stated, I dissent.
Notes
A person is negligent when [he or she] fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.
(1) No civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of such officer‘s employe‘s or agent‘s duties, unless within 90 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of the persons involved, including the name of the state officer, employe or agent involved (emphasis added).
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
The use of the word “protect” in the introduction is apparently a typographical error and should instead read “perform.” Miller v. Bristol-Myers Co., 168 Wis. 2d 863, 883 n.7, 485 N.W.2d 31 (1992).