Tatera v. FMC Corp.

and deceased Walter Tatera individually as Tatera Vicki Special of the Administrator Tatera,

Estate of Walter Plaintiffs-Appellants,

v. FMC Corporation, Defendant-Respondent-Petitioner, Healthcare

United Security, Medical American Subrogated Defendants, Company

Kelsey-Hayes Corporation, p/k/a HK Defendant. Court Supreme March argument Oral No. 2008AP170. July —Decided WI 90 810.) (Also reported in 786 N.W.2d For the defendant-respondent-petitioner there were Rockers, Mark S. Des Rockers and Mark Des briefs by Law, LLC, at Attorney and oral Appleton, argument by Mark S. Des Rockers.

For the plaintiffs-appellants Jill there was a brief by Rakauski, Penn, Rakauski, A. R. Steven and Penn Jill Racine, and oral A. Rakauski. argument by An amicus curiae brief was filed by James A. Friedman, Josh Cahill, J. Johanningmeier, Bryan and Kahn, S.C., & Godfrey Madison, on behalf of the Wisconsin Alliance, Insurance argument oral J. Cahill. Bryan 1. ANNETTE ZIEGLER, KINGSLAND J. This is

a review of a decision of published the court of appeals1 that affirmed in part and reversed an order part County Court, Milwaukee Circuit Judge G. Timothy Dugan presiding, granted which summary judgment (FMC) FMC Corporation on the negligence strict liability brought by claims Vicki Tatera and the Estate Tatera). Tatera, of Walter her late husband (collectively Corp., Tatera v. FMC App 2009 WI 319 Wis. 2d 768 N.W.2d 198. Tatera's2 liable for Walter hold FMC

Tatera seeks to mesothelioma, cancerous dis malignant death from machining his work resulted from allegedly ease which The FMC. by supplied asbestos-containing products entitled to FMC was agreed of appeals court claim but liability Tatera's strict on summаry judgment claim, hold negligence on the and remanded reversed negli facie case of a prima that Tatera presented ing (Second) of Torts 388 Restatement under gence Co., (1965) Casualty v. Continental Wagner and that (1988), not bar the did 379, 421 N.W.2d 835 143 Wis. 2d this court for FMC. FMC petitioned against claim the decision now reverse We review,3 accepted. and we of appeals. of the court is not rule, a principal employer4 a general 2. As by independent sustained injuries in tort for

liable she is performing while he or contractor's There 143 Wis. 2d at 400-01. Wagner, work. contracted 2 Tatera clarity, hereinafter refer to Walter For we will individually. referring to him name when we are his first 3 of the court petition her cross review Tatera withdrew summary granting the order FMC decision to affirm appeals' of Accordingly, only the liability claim. on the strict judgment court. is at issue before this negligence claim 4 independent contractor entity that hires an person or "general "principal employer,"the variously referred to as the is contractor," Co., See, e.g., Wagner v. Cont'l Cas. the "owner." (1988) 382, (using "principal 421 N.W.2d 835 Wis. 2d interchangeably); Snider v. "general contractor" employer" and (1977) Co., 224, 228, 2d 260 N.W.2d260 81 Wis. N. States Power "owner"); Jump River Electric Thompson v. (using Estate of (Ct. n.1., App. & 593 N.W.2d 901 Coop., 225 Wis. 2d 1999) interchangeably). "owner" (using "principal employer" and consistent, employer." "principal will use the term To remain we general exceptions rule. If however, to are, two may employer principal exception be met, either allegations acсepting Consequently, as Tatera's liable. exceptions. analyze Pursuant to the two true, we must exception, determine whether the we must the first principal employer,here, FMC, an affirmative committed (1) failing by negligently negligence to warn Walter act of employer the health hazards associated with his (2) danger failing them of the to warn asbestos; supplied; products were harm of asbestos after (3) investigate failing effects of or test for the health (4) failing products; supplying prior asbestos precau- employer in the and his use instruct Walter asbestos-containing relating prod- tionary measures (5) asbestos-containing prod- supplying unsafe ucts; or exception, must we Pursuant to the second ucts. machining activity an determine whether asbestos-containing If we friction disk is extrahazardous. exception applies, here Tatera has either conclude that negligence. presented to state a claim for sufficient facts negligence claim ¶ that Tatera's 3. We conclude prin- general against that a rule FMC falls within injuries cipal employer sustained is not liable tort for independent he or while an contractor's performing case, In work. this is the contracted she general exceptions rule to that neither of two allegations accepting applies. Tatera's as First, even FMC's conduct did not constitute true, conclude that we negligence. Rather, Tatera's alle- an affirmative act of allegеd negligence grounded gations in FMC's are negligent By warn, failure to definition, omissions. investigate test, to instruct are and failure failure to negligence. Moreover, acts of omissions, not affirmative asbestos-containing supplying friction disks the act of

.327 not itself constitute an affirmative act of negligence does such an act is liability necessarily premised because warn, Second, failing an omission. we conclude that friction does not machining asbestos-containing disk as an extrahazardous because qualify activity steps may be taken to minimize the risk of Because we hold injury. a matter of that FMC not in tort as law is liable Tatera, Tatera's claim under Restatement negligence (Second) of Torts barred. necessarily

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE malignant Walter Tatera died from mesothe 20, lioma on 2004. Mesothelioma is a rare September form of cancer in which cells in the malignant develop mesothelium, a membrane that covers and most protects Enters., of the internal v. body's organs. State Harenda Inc., 16, 79, 604, WI 307 Wis. 2d 746 N.W.2d 25 J., (Ziegler, (citing Institute, National Cancer dissenting) Questions (2002), Mesothelioma: http:// Answers www.cancer.gov/images/Documents/67e63bef-d6e0-4c0f "Most people who de 9c7a-e8aa56ed969c/Fs6_36.pdf). mesothelioma velop jobs have worked on where they Harenda, inhaled asbestos particles." 307 Wis. 2d (internal J., 79 (Ziegler, dissenting) omit quotations ted). From fall 1968 through Walter was employed full-time by (B&M), B&M Machine Products a machin owned his father located in ing shop by and Hales Cornеrs, Wisconsin.5 In 1967, FMC Stearns purchased Electric (Stearns), a

Company Milwaukee-based manufacturer of industrial electric brakes that out- occasionally

5 periodically 1963, 1964, Walter also B&M worked at and 1967.

328 to B&M.6 Stearns' work machining some of its sourced component of several were systems comprised brake metal. One of the few of which- were many parts, disk,7 which a friction was component parts non-metal of asbestos.8 contained some form until 1986 up the com- among disks were Asbestos-containing friction and to B&M. Walter Stearns supplied ponent parts asbestos- machined9 B&M employees other and a desired size friction disks to achieve containing to Stearns then returned The friction disks were shape. It is brake systems. into the finished for incorporation friction disk asbestos-containing every undisputed was not manufactured from Stearns to B&M supplied the friction Instead, purchased Stearns. Stearns manufacturers. different disks from several 6 case, references to FMC of this our various purposes For interchangeable. are and Stearns

7 interchange record, is used the term "friction disk" In the lining," all refer lining" "friction brake ably with "friction and use consistency, we will component part. For ring to the same "friction disk." the term 8 naturally given to a number is the name "Asbestos strength, high tensile occurring minerals with fibrous chemicals." woven, to heat most ability to be and resistance (EPA), Agency Asbes Protection States Environmental United Information, http://www.epa.gov/asbestos/pubs/help. tos: Basic 2010). (last valuable July 2, Beсause of their html visited widely in manufac have been used asbestos fibers properties, tiles, cement shingles, paper and goods, including roofing tured textiles, products such coatings, and friction products, plastics, Id.-, Cancer parts. National clutch and brake automobile as (2009), http:// Institute, Exposure Cancer Risk Asbestos www.eancer.gov/images/documents/5ac7d2fc-27df-4ecc-839f dc5bcl909e01/FS3_21.pdf. cut, finish shape, or "[t]o is defined as The verb "machine" English Heritage Dictionary The American by machine." 1992). (3d ed.

Language 1076 to Richard Hotchkiss According (Hotchkiss), who was B&M from employed by 1954 until July Stearns did not instruct B&M on how to machine the disks; instead, friction Stearns B&M with a provided drawing illustrating only the desired result:

Q [Attorney DesRochers, for FMC]:... counsel you Before something, you needed to machine needed it; right? to know how to do A Yeah. [Hotchkiss]:

Q: Okay. your And is it recollection that there drawing would have been a you that showed how to machine spacers10 very you these time first did it?

A: No.

Q: Okay. A: There drawing you would be a there to show what looked were, you it like and what the sizes way. made it that

Q: Okay.There drawing you was a followed for purposes machining spacers; right? these is that you it,

A: Yeah. It though. didn't tell how to make equated Hotchkiss "spacers" with disks) friction brake lin (or ings purposes, our supplied friction to B&M Stearns: work, spacer you're calling Q: was that what brake— lining work?

brake — lining, too, A: That brake was material. Machining you spacers, Q: these what referred to as is that you seeing

what [Walter] have a recollection of Tatera do? A: Yeah.

Q: Okay. wanted, long as as anyway you could do it A: You drawing. on picture the —on out like the it turned machine you how to did not tell Q: [] Ste[a]rns spacers? these

A: No. drawing in there that some

Q: had a They just dimensions? done to show had draftsman Right. A: that ‍​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‌​‌‌​‌​​​​‌‌‌‌​​‌‌‌​​‌‌​​‌‌​‌‌‍unaware time, Hotchkiss was At the they if "I didn't know contained asbestos:

friction disks big no there time, At the was in them. had asbestos acknowledged the thing However, he asbestos." about machining that testified caused dust system to collect a vacuum father installed Walter's surgical mask shop. Hotchkiss wore in the the dust only "[o]nce not train Walter and did in a while" machining the friction disks: mask while wear a Tatera how Q: you [Walter] trained ... And when you wear a mask? linings, did brake to machine A: No. mask? him to wear a

Q: you Did instruct A: No. reported wore a Walter that

Nevertheless, Hotchkiss machining: I a hard surgical "Well, had while mask breathing mask, I didn't wear so Iwhen wore time [Walter] did it." probably wear as I—but not as often it, 8. Walter died from malignant mesothelioma on September certificate, to his death According he had been with the disease three months diagnosed earlier. 17, 2004, 9. On September Tatera filed a com- FMC

plaint against defendants,11 and several other al- leging negligence and strict products liability.12 As to the negligence claim, Tatera that FMC had a alleged duty to exercise care for the safety reasonable of Walter and those who worked with or were exposed FMC's asbestos-containing products and that FMC knew or should have known exposure to those products caused disеase or In death. Tatera particular, claimed that FMC was negligent by "the committing following acts or omissions" that caused allegedly Walter's inju- ries: adequately

a. Failed to warn [Walter] or others of the asbestos; health of hazards Failed danger b. to warn or of [Walter] others

harm of the products equip- asbestos after the or ment were installed at the premises; investigate c. Failed to or test for the health effects of prior sale; asbestos to distribution and [Walter], d. Failed to employers instruct his or others in the precautionary use of relating measures asbestos-containing products and/or 11 defendants, Of only Kelsey-Hayes those FMC and Com pany Kelsey-Hayes remain. Company party is not a to this appeal.

12Following death, Walter's complaint Tatera amended her wrongful include a death subsequently claim. She amended her complaint times, two more the most of recent which 2,2006. occurred on negligence against October Her claim FMC remained unchanged throughout. installed, or removed un- Manufactured, supplied,

e. asbestos-containing products. safe allegations FMC denied answer, In its duty to Walter had no that it otherwise asserted basis, On that claims. from Tatera's immune and was May summary judgment 12, 2006, on FMC moved for citing principal Wagner general a rule under behalf) (in employer case, FMC on Stearns' this by employ- immunity asserted from tort claims afforded (here, independent principal's contractor ees of B&M). exсep- argued narrow neither of the FMC alleged namely, acts applied: no affirmative Tatera tions part negligence of FMC, and Walter's work on the asbestos-containing machining disks was not friction extrahazardous. response, that Restate Tatera maintained In (Second) adopted this court 388,13 of Torts

ment Service, Inc., 2000 WI Mobile Fleet Transtech v. Strasser provides her with 2d 613 N.W.2d 87, 236 Wis. argued recovery Tatera further in tort. method of (Second) (1965), "Chattel § of Torts Restatement Use," provides: for Intended Dangerous to be Known person directly through a chattel supplies a third One who supplier subject liability the to those whom to use is for another or to consent of the other expect chattel with the to use the should by use, physical by harm caused endangered probable for its be person for which and chattel in the manner for use of the supplier supplied, if the it is whose use likely (a) is or is that the chattel or has reason to know knows supplied, and dangerous it is for the use for which to be (b) use the that those whose has no reason to believe condition, dangerous supplied will realize its chattel is (c) of its care to inform them reasonable fails to exercise likely to be make it dangerous or of the facts which condition dangerous. that does not Wagner bar her claim negligence against FMC because her complaint alleged that FMC commit- ted an act of affirmative negligence by "[m]anufactur- [ing], supplying], installing], or removing] unsafe In asbestos-containing products." alternative, Tat- era that argued Wagner is "because inapplicable work- ing with asbestos-containing is an products abnormally dangerous activity." 6, on Initially, September Judge Clare

L. Fiorenza denied FMC's motion for summary judg- However, ment. on August 2007, due to judicial rotation, Judge Timothy G. Dugan replaced Judge Fiorenza as the presiding in judge this case. FMC subsequently renewed motion, its and Judge Dugan agreed to hear it over Tatera's objection. On November 27, 2007, Judge Dugan granted FMC's motion for summary judgment. The circuit court first determined (Second) the duty to warn under Restatement Torts 388 is inapplicable case, this reasoning § 388 applies only manufacturers, and FMC did not manufacture friction asbestos-containing disks. Second, the circuit court agreed with FMC that Wagner barred Tatera's negligence claim. According to the court, circuit Tatera alleged FMC's failure warn, which does not constitute an affirmative act of negli- In gence. addition, on the relying Seventh Circuit Court Appeals decision Anderson v. Marathon Petroleum (7th Co., 801 F.2d 936 Cir. 1986), the court concluded that the activity of working with asbestos "is inherently dangerous and not extrahazardous." Accordingly, circuit court determined that neither of the exceptions to Wagner applied. 13. On May 12, 2009, the court of appeals re-

versed the circuit court's order granting summary judg- ment to FMC on the negligence claim. Tatera v. FMC App Corp., ¶ 2d 688, 319 Wis. 768 2009 WI appeals that the The court of concluded N.W.2d 198. determining thаt Restatement erred circuit court (Second) suppliers § inapplicable like of Torts 388 (Second) § "Nothing in of Torts 388 FMC: Restatement applicability limits the itself or case law Wisconsin property." only the rule to those who manufacture the According appeals, put ¶ the court of Tatera Id., 37. go proof the 388 claim to sufficient to allow forth genuine id., ¶¶ least, forward, 41-44, and in the see summary judgment precluded fact issues of material including B&Mthat favor, whether FMC warned FMC's asbestos and that asbestos the friction disks contained assuming Finally, dangerous, id., ¶ without 47. was deciding independent contractor, the was an that B&M Wagner's general appeals rule of court of held that negligence against immunity claim did not bar Tatera's exceptions applied. ¶ Id., the FMC because two First, concluded that FMC committed negligence the court supplying the asbestos- act of affirmative containing Id., Second, B&M. friction disks to the "ultra-hazardous material court determined recognized exception applie[d]" as a because asbestos is (citing dangerous Tile, ¶¶ Id., material. 52-53 Wausau Cnty. Corp., 235, 261, 2d Inc. v. Concrete Wis. (1999)). N.W.2d445 petitioned review, this court for and we 14. FMC

accepted 3, 2009. We now reverse on November appeals. decision of the court of OF II. STANDARD REVIEW granted properly circuit court 15. Whether question summary judgment to FMC is a of law that we applying independently, same standards review See Cnty. Racine v. Oracular used circuit by the court. Milwaukee, Inc., 25, 24, 682, 2010 WI 323 2dWis. 781 N.W.2d 88. "shall be if thе Summary judgment rendered pleadings, depositions, interrogatories, answers to file, affidavits, admissions on with the if together any, show that is no genuine any there issue as material fact and is entitled a moving party judgment 802.08(2) (2007-08).14 § as a matter of law." Wis. Stat. In case, this arewe concerned with the of a scope principal duty to an employer's independent contractor's em ployee, presents an issue of which law that we evaluate Wagner, de novo. 143 2d at A Wis. 384-85. principal employer injuries is liable in tort for sustained an independent only contractor's in employee two circum stances: if the committed an principal employer affir id. at mative negligence, 388, act of if the was while injured an engaged extrahazardous activ ity, id. at 401. Both present questions of law. See id. at Co., Snider N. 402; v. States Power 224, 233, 81 2dWis. Danks v. 260 Bldg. Stock (1977); N.W.2d 260 Supply, Inc., 348, 2007 WI 298 App Wis. 2d 727 N.W.2d 846.

III. ANALYSIS In Wagner, this court joined of majority jurisdictions other in holding that a principal is employer generally not liable tort for injuries sustained by an independent contractor's employee while he or she the contracted work. performing 143 Wis. 2d at 400-01. We were persuaded "[a]ny other holding would circumvent bedrock principles Wisconsin worker's subsequent All to the references Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. injured

compensation employee's at An law." Id. compensation right "shall to recover benefits worker's against remedy" employee's "exclusive his or her be" the 102.03(2). recognize § employer. that for Wis. Stat. We 102.03(2), principal employer purposes of a is not "employer" independent direct considered the employee, pursuant Wis. Stat. contractor's § 102.29(1), injured employee bring is entitled to against "any party." Wagner, action other See tort Thompson Jump 385; at v. River Wis. 2d Estate of (Ct. Coop., 588, 593, 2d 593 N.W.2d901 Electric 225 Wis. 1999). Wagner App. in that Nevertheless, we concluded a generally protected principal employer should be from already liability it assumed finan tort because has such injuries responsibility independent the for to cial employees. is, That 2d at 399-400. contractor's Wis. employer price principal contract between the the pay independent presumed to contractor is include the coverage; "[t]he compensation thus, ment for worker's injury remedy employee a for the has —worker's employer compensation principal has which the —for recognize indirectly paid." important to Id. at 399.15It is injured employee claim; rather, a the is not without compensation, in not or her claim sounds worker's his Wagner, favorably In the Seventh Circuit we cited tort. Appeals Anderson, in the of decision in which Court employer similarly principal a is not held that court 15Here, sought Walter the record is void as to whether employer, from his compensation received worker's benefits 102.06, injured § employee's Stat. if an B&M. Pursuant to Wis. carry compensation, prin employer fails to worker's the direct compensation for cipal employer may paying be liable worker's as of employee. has not 102.06 a method to the Tatera raised FMC, recovery against and we assume that Tatera therefore compensation from B&M. opportunity seek worker's had the to injuries liable for sustained an independent contractor's the injured employee because for the risks of a combi- compensated employment by nation to wages, benefits, of entitlement worker's a compensation, compensation for which the package in the principal employer paid contract Id. at 400 price. 941). Anderson, 801 at the (citing F.2d "Since principal is the indirect its employer employees, contractor's make the common tort for principal liable law the accidents be befalling employees those would inconsis- tent with bedrock that workers' principle compen- are rights sation exclusive common tort rights." law Anderson, 801 F.2d at 941. reaffirm Today, we consideration policy adopted first Wagner. Moreover, liability on imposing principal employer injuries sustained by independent contractor's employee runs counter to the notion that has principal employer relinquished control to the Rasmussen, Kerl independent contractor. See v. Dennis Inc., 2004 WI 2d 106, Wis. 682 N.W.2d Therefore, contractor, not independent employer, is in the best principal position guard against injuries while employees performing the ("If id., contracted work. See 27 a does not principal ¶ have control or the right day-to-day control the conduct of the physical then the agent, opportunity and incentive to and promote safety the of due exercise care are not and present, imposing liability without fault becomes difficult to on justify grounds."). fairness At time, the our same case recognizes law two to the a exceptions general rule that principal is employer not liable in tort for injuries sustained by an contractor's he independent employee while or she is the performing work. contracted The first exception was in recognized over three decades Barth ago v.

338 (1976), Downey Co., 775, 783, 239 92 2d N.W.2d 71 Wis. negligence pertains com- an affirmative act of and employer. indepen- by principal is, That an mitted the injuries may employee recover for contractor's dent by principal employer's affirmative act of a caused (citing negligence. Wagner, Barth, at 388 71 143 Wis. 2d 783); Danks, 2d 298 Wis. Wis. 2d at see also exception decades was articulated over two second liability principal ago Wagner imposes on a and qualifies employer extra- as for contracted work Accordingly, principal 143 2d at 401. hazardous. Wis. injuries employer may sustained an be liable for independent while he or she contractor's Id.) activity. engaged see also extrahazardous Thompson, 225 Wis. 2d at 595-96. Estate of argues need not reach these 19. Tatera that we general exceptions case, non- this the two liability because in employers protecting principal not does rule apply asserts, so, This is she in the first instance. relationship is not between FMC and B&M the because independent principal employer contractor one of reject Tatera's and bailee.16We one of bailor but instead "signifies a contract result legal in the sense "Bailment" thing by bailor to the bailee on delivery of a ing from his in accordance with that it be restored to bailor condition was bailed purpose for which it directions as soon as the or her (2005). bailment Bailments Traditional is satisfied." 8 C.J.S. returned to delivery goods that are consist of the transactions they delivered. form in which were in the same bailor Video, Inc., 1294, 1296 & 621 N.E.2d v. Click Camera Collins (Ohio McCarroll, see, 1993); v. App. e.g., Henricksen Ct. (1970) (recognizing the 368, 373, 173 N.W.2d 153 Wis. 2d deliv relationship one of bailment when bailor as parties' transporting it to purposes to the ered his horse bailee 339 and argument conclude that B&M is charac- properly terized as an independent contractor. Indianapolis parade). However,

from for a given increasing complexity of commercial relationships, bailment law has ex- panded many transactions, to include including new varied incomplete goods the 'bailment of purpose for the having manufacture, Collins, repair, bailee or improve otherwise them." 1296; 621 at § N.E.2d 8 C.J.S. Bailments 4. It is this latter evidently transaction tо which Tatera characterizing refers when relationship FMC's with B&M as one of bailment.

We note that Tatera did not argument advance her bailment in the appeals circuit court or court of nor did she raise the issue response petition ‍​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‌​‌‌​‌​​​​‌‌‌‌​​‌‌‌​​‌‌​​‌‌​‌‌‍her to FMC's for contrary, up review. To the court, until she filed her brief to this appeared Tatera to concede that FMC and relationship B&M's principal employer was one of independent contractor. In FMC's brief in support of its motion for summary judgment, "plaintiff FMC stated that has disputed not FMC's assertion that Mr. employer, Tatera's B&M Machine, independent was the contractor and that Stearns was principal." its In response, her brief in Tatera did quarrel not Arguments with that statement. raised for the first time on appeal generally are Hallman, deemed forfeited. See Marotz v. 89, 16, 2007 WI 2d Wis. 734 N.W.2d 411. Further more, "unless ordered supreme court," otherwise peti a tioning party precluded raising arguing from an issue not set (Rule) 809.62(6). petition. forth in the Wis. Stat.

Moreover, assuming deciding without that the contract machine friction disks was indeed transaction, a bailment points authority Tatera to no apparent her belief that a relationship of bailor and bailee and relationship of principal employer and independent mutually contractor are exclusive. (Ala. Co., 1983) Contra Rose v. Miller & 432 So. 2d (recognizing general rule that the owner of a chattel who surrenders entire "independent control thereof to an contraсtor or bailee" injuries is not liable for to an of that contractor). independent independent fact that contractor cases construction, often involve a contract for opposed as to the machining goods, does not mean that a contract for construc- prerequisite tion is a to the independent classification of con- person An contractor independent ¶ services for another contracts to perform entity subject the other nor to the 'is not controlled but" his physical to control with to right respect other's Kerl, of the undertaking.'" in the performance conduct (Second) of 106, 24 Restatement (quoting 273 Wis. 2d 2(3) JI —Civil 4060. (1958)); see also Wis Agency, the term con- "independent used parties Whether rather, "the in their contract is not dispositive; tractor" control or labels to factual indicia of test looks beyond Kerl, 24; 106, 2d see also to control." Wis. right ("The Snider, most important single 2d at 232 Wis. is an inde- whether a determining person criterion in owner, is the to which degree contractor pendent contractor, retains than the independent rather work."). case, In the details of the this to control right an con- independent characterized as B&M is properly disks for to machine friction tractor. B&M contracted Stearns, respect B&M retained control with but con- was machining. machining performing Hotchkiss, a according at B&M's shop, ducted not instruct the B&M B&M Stearns did employee, long friction disks. So as to machine the employees how like the B&M picture," disks "turned out the friction it chose. See machine them in the manner was freе to Snider, (concluding plaintiffs 2d at 232 that the 81 Wis. contractor" independent "indisputably was employer made no employer attempt because the principal and was of the contracted work control the details conformed completed that "the work only concerned Kenneth Krommen- the contract specifications"). with Instead, inquiry is "factual indicia the focus of the tractor. Rasmussen, Inc., to control." Kerl v. Dennis right control or 106, 24, 273 Wis. 2d 682 N.W.2d 2004 WI similarly acker, a Stearns' since testified as to Stearns' lack of control:

Q Rakauski, [Attorney you on behalf of Do Tatera]: understanding have an actually what B&M was doing parts? to these

A machining them, [Krommenacker]: Other than Accordingly, contrary argument to Tatera's otherwise, independent B&M served as an FMC, contractor to principal employer. relationship 21. Because we conclude that the properly

between FMC and B&M is characterized as principal employer independent one of Wagner's general contractor, non-liability

rule of is, controls. That exceptions applies, unless one of the two FMC is not injuries by liable in tort for sustained Walter, B&M's employee, machining while he was the friction disks. exceptions We address each of the in turn. Negligence A. Act Affirmative of principal employer may ¶ 22. A be liable to an independent injuries contractor's for caused by principal employer's negli- affirmative act of gence. Wagner, exception 143 Wis. 2d at 388. This was Barth, first articulated in in which this court concluded "something meaning that negligence extra," an affirmative act of injury, necessary

that increased the risk of against principal employer to sustain an action a brought by independent employee. an contractor's 71 783; Danks, Wis. 2d at see also 348, Wis. 2d inquiry alleged negligent The relevant is whether the constituting act an "was act of commission an affirma- tive act of or whether it was an act of negligence not rise to the level of an affirma- omission which does act." 143 Wis. 2d at 389. even Wagner, Accordingly, tive negligence the traditional would though concept omission, for a addition to impose liability negligent act, affirmative see Wis JI —Civil negligent case law more than an precedent requires Wisconsin in order on a impose liability principal omission sustained an injuries independent employer employer's alleged contractor's employee. principal act must be affirmative. negligent 23. For we concluded that example, Wagner, an contractor negligently hiring independent the act of demolition work did not constitute affir- perform act of rather an omission. 143 negligence mative but 2d The defendants' failure to check the Wis. at 390. contractor's credentials could not be independent " misconduct; instead, viewed as active it was 'passive inaction or a failure to take steps protect' plaintiff al., from harm." Id. Keeton et Prosser (quoting PageW. (5th and Keeton the Law at ed. on Torts Snider, 1984)); see also 81 Wis. 2d at 239 (concluding that the that the plaintiffs' argument рrincipal failure to furnish control over employer's supervisory its contractors constituted an affirmative independent act of the negligence commonly accepted "defie[d] 'affirmative'"). meaning of In 24. Estate the estate of an Thompson, to hold the

independent employee sought contractor's liable for the death on principal employer employee's account of the affirmative principal employer's alleged case, In that negligence. acts of Wis. 2d at 600-01. Emblom Brothers Construc- Thompson, employed by (Emblom), electrocuted fatally tion was while Company a lines. Id. at utility carrying energized removing pole Electric River Jump Emblom had a contract with River) an overhead to construct (Jump Cooperative old line, removing which entailed electrical distribution ones, the transferring new utility poles, installing Id. was electrocuted while Thompson electrical lines. energized wire that touched an wire. holding a support Id. At the not time, Thompson wearing protective was other- Emblom's instructions gloves, despite rubber Id. wise. that it was argued per- estate Thompson's River, against Jump

mitted to an action tort bring non-liability, the on principal employer's general despite River committed affirmative the that grounds Jump Id. at 600. In the estate acts of negligence. particular, safety that committed various vio- alleged River Jump electrical distri- lations, designed the new negligently line, into incorрorate safety precautions bution failed the from the design, support hang allowed wire removal, and failed to utility pole's old before pole those remedy against danger and take precautions Id. The estate further alleged situations presented. the circuit court River's erroneously granted Jump summary judgment genuine motion for becáuse issue of material River concerning Jump fact existed whether dangerous safety knew or should have known of the violations. Id. 26. The court affirmed the circuit appeals order granting summary judgment Jump

court's River, concluding alleged negligent River's Jump of negli- conduct did not constitute affirmative acts " but instead inaction or a failure to gence 'passive from harm.'" Id. at 601 protect plaintiff (quoting 390). Wagner, Wis. 2d at The court determined that River's its failure to Jump alleged negligence "lay id., violations," safety and act and its regarding discover in incorporate safety "fail[ure] its precautions alleg- id. at edly dangerous design," both of which constituted passive inaction for which Jump River could not be held liable. Id. at 601-02. Danks, 27. Similarly, the court of appeals

¶ held as a matter of law that a was principal employer not injuries liable for sustained the by independent contractor's because neither employee the principal nor employer its committed affirmative acts employee negligence. case, Danks, 298 Wis. 2d 2. In that ¶ of C&R (C&R), Concrete was while injured assisting loading truss onto a truck at a construc- Id., tion site. 4. C&R had by been hired Stock ¶ (Stock) Inc. Building Supply, to load trusses crane Id., onto Stock's flatbed truck. 1. Stock's employee, ¶ drove to the Wagner, construction site in the truck and Id., it. parked 11-12. then on Wagner stood ¶¶ flatbed and used hand signals direct the crane owner, C&R's operator, as to the direction the truss Id., should move and when it should be lowered. 12. ¶ Danks flatbed, was at the rear of the positioned using a guide the truss onto the truck. Id. When two-by-four bed, truss was about feet above the truck it eight fell, and Danks was discovered on the street near laying Id., the rear of the truck. 13. Danks suffered a spinal ¶ Id., cord injury from the accident. ¶ 28. The circuit court dismissed Danks' tort claims against Stock and and Danks Wagner, appealed. Id., argued Danks that Stock was not protected by because, rule of general non-liability alia, inter Wagner committed an act negligence: affirmative he in a was to see that position truss was improperly attached to the crane cable but failed to warn Danks or C&R's owner that the truss was lifted and moved being Id., in an hazardous manner. 33. The improper concluding rejected argument, appeals Danks' of court 'passive Wagner's miscon- "at most conduct was " negligence that in- act of duct,' "not an affirmative loading from the risk of harm to Danks creased the operation." Id. 29, Turning before to the facts of the case now -alleged negligent FMC's court,

this we conclude that negli- act of did not constitute an affirmative conduсt gence. complaint allegations in are Tatera's namely, alleged grounded omission, the failure in FMC's health hazards associ- to warn Walter and B&M of the asbestos-containing products. and ated with asbestos Specifically, alleges negligent complaint acts: five (1) adequately health hazards the failure to warn of the (2) danger asbestos; the failure to warn of the of products (3) equipment after the or harm of the asbestos premises; inves- installed at the the failure to were prior tigate asbestos or test for the health effects of (4) sale; to instruct in the distribution and the failure precautionary relating use of measures to asbestos- (5) supply, containing products; manufacture, asbestos-containing installation, or removal of unsafe alleged negligent products.17 acts are The first four disposed dispatch. By definition, of the failure to with investigate warn, test, and the failure the failure to omissions, As the to instruct are not affirmative acts. appeals recognized Danks, court of the failure to 17Stearns, behalf, supplied on FMC's the asbestos- undisputed every containing friction disks to B&M. It is asbestos-containing supplied friction disk to B&M from Stearns Instead, purchased was not manufactured Stearns. Stearns Accord the friction disks from several different manufacturers. FMC, only ingly, we are concerned with act as asbestos-containing products." "supplyfing] ... unsafe misconduct,'" warn is "at most 'passive not an affirma- tive act of 298 Wis. 2d negligence. Likewise, FMC's failure alleged or test investigate for the health effects of asbestos is akin to Jump River's alleged failure to discover and act the electrical regarding safety violations Estate Thompson, see 225 Wis. 2d 601; at such conduct does not constitute an affirmative " act of negligence but rather 'passive inaction or a failure to take to steps the from harm." protect' plaintiff 143 Wis. 2d at 390 Wagner, (quoting PageW. Keeton et 373). al., 56,§ at supra, 30. The fifth act negligent alleged against FMC

¶ relates to FMC supplying the fric- asbestos-containing tion disks to B&M to be machined. not as Though four, as the explicit previous this act is also grounded FMC's failure to alleged warn. to Tatera's Contrary and the argument ‍​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‌​‌‌​‌​​​​‌‌‌‌​​‌‌‌​​‌‌​​‌‌​‌‌‍court of conclusion other- appeals' Tatera, wise, 688, 51,18 see 319 Wis. 2d the act of ¶ the supplying friction disks asbestos-containing to B&M does not itself constitute an affirmative act of negligence. act of supplying asbestos- friction disks is containing "affirmative," no doubt but the mere fact that FMC supplied disks to B&M is not enough on FMC impose liability for committing an affirmative act of is, That a negligence. supplying chattel dangerous does not alone rise to give negligence. The crux of Tatera's claim is the alleged failure warn appeals case, The court of concluded that in this "the negligent act was an supplying affirmative act. The act was asbestos-containing linings employees brake to B&M's for grinding. It was FMC's providing affirmative act of the materi B&M, als to intending employees grind would Tatera, them shapes down to the correct and sizes." 2d 319 Wis. 688, 51. ¶ See Re- supplied. of the chattel dangerousness

of the (Second) dis- § 388. As previously of Torts statement act. is not an affirmative cussed, the failure to warn Banks, 2d 298 Wis. exception Tatera to create attempts from employers protecting principal

the general rule liability negligence traditional liability by imposing a employer supplies § under 388 onto a principal contractor to be machined. chattel to an independent to attach would However, liability such permitting decades of precedent undermine our three completely negligence. Liability an affirmative act of that requires necessarily pre- chattel is dangerous supplying chattel's dangerousness, to warn of the failing mised (Second) of Torts an omission. See Restatement Strasser, 58; 2d Wis 388(c); see also 236 Wis. act would be exception JI —Civil 3242. The affirmative met if employer's liability eviscerated a principal thereby to so hold and an omission. We decline through Because precedent. over three decades overturn did not constitute an FMC's conduct alleged negligent the first negligence, exception affirmative act of is here non-liability inappli- rule of Wagner's general cable. Activity

B. Extrahazardous renders an otherwise 32. A second exception sus- injuries liable for protected principal employer A employee. tained an contractor's by independent sustained may injuries be liable for principal employer he or an contractor's while by independent activity. Wagner, she is an extrahazardous engaged 225 401; Thompson, 143 Wis. 2d at see also Estate of 348 activity19 Wis. 2d at 595-96. An extrahazardous is "one unreasonably high in which the risk of harm remains carefully Wagner, no matter how it is undertaken." activity Wis. 2d at 392. An that is extrahazardous is "inherently dangerous contrasted one with that is be- special precautions." cause of the absence of Id. at 393. employee engaged inherently dangerous An in an activ- ity steps injury. can take to minimize the risk of Id. at Wagner, expressly recog- 392. In this court declined to independent nize a cause of action contractor's employee against principal employer injuries sus- engaged type activity. tained while in the latter Id. at 393, 400-01.

¶ 33. The distinction between an extrahazardous activity inherently dangerous activity and an is not always accordingly, examples obvious, and some are Thompson, appeals instructive. In Estate the court of working high voltage electricity held that with is inher- ently dangerous, not extrahazardous. 225 Wis. 2d at Thompson 596. The court concluded that when was engaged activity electrocuted, he was not in an in which unreasonably high the risk of harm remained no matter carefully steps how it was undertaken. Id. Instead, could have been taken to minimize the risk of Thompson's injury, including wearing gloves, rubber using equipment utility pole, mechanical to remove the covering pole. appeals recog- Id. As the court of activity nized, in order for an to be taken out of the law, In our case the term syn "extrahazardous" is used onymously "abnormally dangerous." with the term Wagner, See 392; Inc., 2d Bldg. Supply, Wis. at Danks v. Stock 2007 WI 8, n.4, App 348, 846; 23 298 Wis. 2d 727 N.W.2d Estate of Thompson, 225 2d at Wis. 595 n.5.

349 not be need extrahazardous, injury "the risk of realm of minimized." Id. eliminated, just deci- Court of Appeals Circuit The Seventh 34. case, In in Anderson point. on especially sion could not tanks storage oil sandblasting held that court because abnormally dangerous20 be considered in sand- engaged that an employee demonstrated record the risk of minimize to precautions could take blasting em- Anderson, a sandblaster 801 F.2d at injury. (Tri-Kote) until from 1970 Tri-Kote, Inc. by ployed disease caused silicosis, lung a serious 1983, from died of time. long period over a in silicon dust breathing by Anderson his employment, Id. at 938. Throughout Marathon contract with on Tri-Kote's mainly worked (Marathon) inside of clean the Company Petroleum Id. by sandblasting. tanks oil storage Marathon's liable for to hold Marathon sought Anderson's widow that his silicosis was death, alleging husband's her tanks storage in the confined sandblasting by caused dust. Id. of silicon clouds thereby breathing only until up introduced Evidence was himself protect wore to mask that Anderson form of of wire hood," consisting a "desert silicon dust was from Id. of his nose and mouth. in front mesh except Seventh Circuit declined rule that general claim from the Anderson's tort no common law has contrаctor's independent Id. at 940. employer. the principal right against tort not be record, could sandblasting According 20 courts, applied definition Wisconsin Similar to the by the Anderson activity defined "abnormally dangerous" was if very injury even "might well result one which court as Marathon Anderson v. all due skill and caution." conducted with 1986). (7th Co., F.2d Cir. Petroleum abnormally dangerous classified as because sandblast- ers could take to reduce the risk of steps injury. serious Id. "if Specifically, the sandblaster is not with equipped the ridiculous 'desert hood' but with a face mask proper a attached, which fresh-air hose is so that the worker is fresh air rather than breathing air filled with silicon dust, the in worker is no Id. danger." In case, this we conclude as matter of law that an machining asbestos-containing friction disk is not an extrahazardous activity because steps may be taken to minimize the risk of injury.21 Therefore, while inherently dangerous, of an activity machining friction asbestos-containing disk does not create an to FMC's exception protection from tort liability. Simi- lar with working high voltage Estate electricity, 596, 225 Wis. 2d at Thompson, in sandblasting Anderson, a confined space, 940, 801 F.2d at the activity of machining disk is not asbestos-containing extrahazardous because the risk of can mini- injury be mized by wearing protective equipment taking proper precautions. (2009); See 29 C.F.R. 1926.1101(g) United States of Labor: Department Occupational & Health Safety (OSHA), Administration Asbestos Control, http://www.osha.gov/SLTC/asbestos/control. (last 2010) 9, html visitеd July (providing exposure 21It important proper inquiry to note that is not working exposed whether Walter was with to an extrahaz Tatera, material. See ardous (citing 319 Wis. 2d ¶¶ Tile, Cnty. Corp., Wausau Inc. v. 235, 261, Concrete 2d Wis. (1999)). Instead, whether, 593 N.W02d 445 our focus is when work, performing injured the contracted was activity. Wagner, See engaged in an extrahazardous 143 Wis. 2d case, performing at 402. In this B&M's contracted work for FMC, engaged activity machining Walter was in the asbestos- containing friction disks. must therefore We determine whether activity is extrahazardous. prevented by products can be

to asbestos friction engineering controls, actions, administrative and wear- particular, ing personal protective equipment). In Occupational Safety and Health National Institute of (NIOSH) protecting approved respirators em- has breathing ployees asbestos from air contaminated with § 1910.134; Insti- dust. See 29 C.ER. National Cancer (2009), Exposure tute, http://www.cancer.gov/images/documents/5ac7d2fc-27 Risk 4 Asbestos and Cancer (stating df-4ecc-839f-dc5bcl909e01/FS3_21.pdf protect and workers can them- construction industrial exposure by wearing selves from asbestos NIOSH- approved respirators). Accordingly, machining if while asbestos-containing disks, friction had been Walter equipped proper respirator opposed simple with a as to a surgical inhaling mask, his risk of asbestos dust and developing mesothelioma would have been minimized. activity machining asbestos-containing an friction disk is therefоre not "one in which the risk of harm unreasonably high carefully remains no matter how it is undertaken" and cannot be classified as extrahazardous. Wagner, See 143 Wis. 2d at 392. summary, alleged In we conclude that FMC's

negligent conduct did not constitute an affirmative act of negligence, machining asbestos-containing an fric- activity. Therefore, tion disk is not an extrahazardous negligence against excepted Tatera's claim FMC is not general Wagner FMC, from the rule articulated in as a principal employer, injuries is not liable in tort for by independent Walter, sustained contractor's em- ployee, performing he while was the contracted work of machining asbestos-containing friction disks. Because we hold as a matter of law that FMC is not liable in tort negligence Tatera, Tatera's under claim Restatement (Second) necessarily of Torts 388 is barred.

IV CONCLUSION negligence claim conclude that Tatera's 38. We general prin- against rule that a FMC falls within injuries cipal employer in tort for sustained is not liable independent contractor's while he or an performing case, In this the contracted work. she exceptions general to that rule neither of the two applies. allegations accepting as First, even Tatera's that FMC's conduct did not constitute true, we conclude negligence. Rather, Tatera's alle- an affirmative act of gations alleged negligence grounded are FMC's By negligent warn, definition, failure to omissions. investigate test, failure to instruct are failure to negligenсe. Moreover, omissions, acts of not affirmative asbestos-containing supplying friction disks the act of negli- act of itself constitute an affirmative does not gence necessarily liability for such an act is because premised failing warn, Second, we omission. machining asbestos-containing fric- conclude that activity qualify disk does not as an extrahazardous tion may steps of taken to minimize the risk because be injury. of law that FMC is Because we hold as a matter negligence Tatera, Tatera's claim not liable tort to (Second) § 388 is necessar- under Restatement of Torts ily barred. appeals

By the Court.—The decision of the court is reversed. (dissenting). This CROOKS, PATRICK J. 39. N. opposite clearly result from that

case demands majority. plaintiffs, Vicki Tatera and reached Tatera), (collectively, at a the Estate of Walter Tatera right their to a trial on minimum, established their negligence act of the on an affirmative claim for based supplied Tatera's defendant, FMC, in which it Walter employer asbestos-containing with friction disks for grinding warning employer without of the disks' dangerous Accordingly, granting summary content. judgment clearly inappropri- defendant, FMC, for the majority's deny ate. The decision to Tatera a trial under presented the circumstances here is not defensible. Summary judgment remedy, ¶ 40. is a drastic primarily nonmoving party it because denies the a trial. Accordingly, reviewing it is the circuit court's and duty carefully courts' to consider these motions prudently. case, In this the circuit court did not fulfill its regard, majority, by affirming duties in that and the conclusion, that court's fails to fulfill its duties as well. appeals, Rather, like the court I would summary judgment inappropriate conclude that here is following genuine First, for the two reasons. there are issues of material fact in this case as to whether proofs support Tatera's the elements of Restatement (Second) (1965) (hereinafter Torts 388 described as 388"). "§ Second, 388" or "section I am satisfied that to proper the extent that it is under these circumstances apply Wagner Co., v. Continental Cas. 143 Wis. 2d (1988) (holding generally, 379, 388, 421 N.W.2d835 injuries are contractors not liable in tort for the subcontractor), employees of a it does not bar Tatera's exception claim because the affirmative act to its rule applies. Accordingly, quite inappropriate it seems grant summary judgment for FMC in situation, this opportunity and Tatera should have an to move forward to a Hence, trial. I dissent.

¶ 42. To demonstrate how far afield the circuit majority's court's decision—and the affirmation of it— stray principles underlying summary judg- from the important methodology ment, it is the discuss for assessing summary judgment motions for at the circuit

354 A court and court levels. court should appellate grant "if the an summary judgment pleadings, depositions, file, and admissions on interrogatories, swers to to affidavits, if show that there is no any, with gether material fact and any issue as to genuine is entitled to as a matter of moving party judgment law." 802.08(2) added). § As (emphasis Wis. Stat. we have observed, summary judgment remedy" is a "drastic a trial. Lecus v. Am. Mut. denies the nonmoving party Co., (1977). Ins. 183, 189, 2d 260 241 81 Wis. N.W.2d Reviewing summary judgment a motion for should be a trial on affidavits and depositions." Id. "not... moving must "leave no room for party controversy." Yellick, 504, 512, 2dWis. Schlumpf v. 288 N.W.2d 834 (1980). explained methodology 43. We for a circuit reviewing

court to use when a motion for summary Boss, in Grams v. 97 Wis. 2d 294 N.W.2d judgment (1980). First, the circuit court "examines the mov- ... affidavits or other ing party's proof determine whether has made a facie case moving party prima ]802.08(2)." summary judgment [Wis. under Stat. Id. at 338. To make a facie case for successfully prima summary "a defendant must show a judgment, moving Id. defense would defeat the plaintiff." [that] moving party prima If the has made a facie case for summary judgment, the court must examine the affi- proof opposing party... davits and other of the facts, disputed determine whether there exist material undisputed material facts from which reasonable drawn, may alternative inferences be sufficient to en- party opposing title the to a trial.

Id. 44. Our a motion for methodology reviewing

summary identical to that of the circuit judgment court, and our review of the decision of the court of is to review the circuit court's appeals decision to grant Kersten, summary judgment. See Green Farms v. Spring (1987). 304, 314-15, 136 2d 401 N.W.2d Accord Wis. 816 it is to chronicle what at the ingly, important happened circuit hearing court on the motion for summary judg ment as it relates to Tatera's negligence claim. observed, 45. As the Vicki majority Tatera filed a claim for FMC1 in 2004 on behalf negligence against husband, of hеrself and her deceased Walter Tatera (Walter), who died in 2004 shortly after being diagnosed with malignant mesothelioma. Walter was a full-time (B&M) with B&M Machine Products from 1968 to 1993. One of Walter's duties his during employ- at ment B&M was to and cut friction in grind disks used systems. disks, industrial electric brake which were FMC, made several manufacturers and sold to were supplied by FMC to B&M to them shape to FMC's desired and then specifications return the finished disks to FMC to in systems. install brake That process the disks caused a machining significant amount of dust to accumulate in the B&M At least until shop. 1986, the disks supplied FMC to B&M contained asbes- tos. 46. FMC moved for summary judgment on the

basis the rule Wagner, protecting a principal from for torts employer liability committed against contractors, of its employees independent prevented Tatera's suit from moving forward.2 It asserted that FMC; however, against only Tatera made other claims negligence pertinent claim is to our review. noted, majority summary As the FMC first moved

judgment May County and the Milwaukee Circuit Court, Fiorenza, Judge L. presiding, Clare denied the motion in exceptions Wagner applied, neither of the to the rule i.e., that FMC had not committed an act affirmative negligence machining containing and that friction disks response, asbestos was not extrahazardous. In Tatera gave that asserted the circumstances here rise to a (Second) § 388, claim under Restatement of Torts provides supplies directly which that "one who or through person a third a chattel fоr another to use" is supplier in if liable tort it can be shown that the knew product dangerous, or had reason to that know supplier using the product had no reason to believe those recognize dangerousness,

would its and the supplier dangerous fails to warn those users of the argued provided condition. Tatera that because 388 recovery they in tort, them method of established that Wagner FMC committed an affirmative act and was inapplicable. argued However, that, Tatera also in the Wagner apply, alternative, to the extent that did it did activity not bar the claim because the extrahazardous exception Wagner applied. to the rule accompany response

¶ their mo- To FMC's summary judgment, provided appropri- tion Tatera support in- First, ate evidence to their claim. Tatera excerpts deposition Raymond cluded of a Mazurek (Mazurek), employee, an FMC that indicated that However, rotation, September ‍​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‌​‌‌​‌​​​​‌‌‌‌​​‌‌‌​​‌‌​​‌‌​‌‌‍judicial Judge due to Timothy Dugan replaced Judge presiding Fiorenza as the G. judge August in this case in renewed motion for 2007. FMC its summary judgment, objected, Judge Dugan and Tatera but agreed to hear the motion. Judge Dugan's grant summary

It is November 2007 However, judgment I for FMC that is the focus of our review. significant Judge Fiorenza FMC's believe that it is denied summary judgment, appeared first motion for which to be roughly by Judge Dugan. identical to the motion assessed

(1) purchased asbestos-containing FMC friction disks (2) 1980s; the 1970s and that FMC knew that sоme of (3) asbestos; materials on those disks contained 1974 and FMC tested some of those materials for testing produced asbestos content and that that docu- (4) likely observed; ments that Mazurek had FMC supplying safety sheets,' started material data which regarding would have contained information materials required disks, inwere when OSHA them to do (5) early so, supplied 1980s; in the which was late 1970s or FMC upon request, those data sheets to customers provided but Mazurek was unaware of whether FMC shops specifically, those data sheets to machine (6) put warnings B&M; and FMC never in or on the containing asbestos-containing products. boxes on its provided ¶ 48. Tatera also an affidavit from Rich- (Hatfield), knowledge- ard Hatfield a scientist who was asbestos-containing able about brake and clutch mate- measuring rials, and had who conducted studies "how much asbestos is brakes, released from the abrasion of clutches[,] and friction wear dust." His studies indicated asbestos-containing that friction materials can release asbestos fibers from minimal abrasion to the material's surface. His studies in that, fact, indicated asbestos present containing dust is in boxes unused brakes or Accordingly, explained clutches. he that it is unneces- sary asbestos-containing "for friction un- materials to dergo changes substantial before these materials will release asbestos fibers." Finally, produced

¶ 49. Tatera also an affidavit Henry physician specialized Anderson, from Dr. a who occupational medicine, and environmental as well as by exposure. diseases caused asbestos Dr. Anderson opinion majority malig- that, stated in his "the vast of by expo- nant mesothelioma cases are caused asbestos exposures "all" to indicated that He further sure." years occurring the more than ten before asbestos malignant diagnosis to the of mesothelioma contribute general, malignant "has mesothelioma, disease; that latency period of [20] to ^[40] years after exposure to there is level of "safe" asbestos"; and that no known exposure no asbestos, to below there be which would malignant developing mesothelioma. risk of hearing, granted circuit court 50. After a the summary judgment to dismissed Tatera's FMC and holding § apply negligence did to claim, that not only applied FMC because that section manufactur- the did not manufacture disks. ers, FMC that because Tatera was circuit court further concluded general independent contractor, the the of an barring against Wagner a contractor rule in claims injured employee applied, of a subcontractor exceptions applied. of rule neither the two reasoned, circuit FMC was that, Because of the court summary judg- granted FMC's liable. It motion for not negligence Tatera's claim. ment and dismissed appeals holding reversed, 51. The court of (2) (1) Wagner applies suppliers § FMC; such as claim because both affirmative did not bar Tatera's activity exceptions applied; and act and extrahazardous (3) proofs Tatera sufficient that there were had offered genuine the claim material fact as to whether issues of satisfied elements reviewing reiterate, task, in this court's To appeals, is to decision the court of review grant summary judgment

circuit court's decision summary-judgment our method- FMC. Consistent with proofs, ology,then, is to to Tatera's as the this court look nonmoving party, light it. in the most favorable to the not examination, on we will reverse Based that 359 of summary circuit court's unless grant judgment the reveals record that there are of genuine issues material fact case, and that the moving party this FMC —is —in not entitled to as a judgment matter of law. See Strasser Serv., Inc., v. Fleet 87, 28, Transtech Mobile 2000 WI 435, 236 Wis. 2d 613 N.W.2d 142. To begin, there to be appear open questions

presented by the parties does not majority acknowledge. in Namely, for an employee Walter situation, Tatera's must the rule Wagner limiting the of a liability for torts principal involving the employee of an independent contractor Or apply?3 proper of theory liability the rule under 388 liabil- imposing 3The court of appeals acknowledged Wagner that whether applied should Corp., be here is unclear. Tatera See v.FMC 2009 80, 49, App 688, WI 2d 319 Wis. (stating 768 N.W.2d198 (without its application Wagner of was on "assuming the basis of deciding)" that it applied).

Additionally, any I am unaware of cases from this court or of appeals court applying Wagner or the affirmative act analysis purposes determining liability рrincipal of a tort in a case involving published chattel. The few cases from appellate Wisconsin applying Wagner courts are construction cases, and utility See, not cases a involving e.g., chattel. Danks Inc., Bldg. v. Supply, 8, Stock App 348, 2007 WI 2d 298 Wis. 727 (involving injury N.W.2d846 an to an of a subcontrac tor to load site); hired at truss construction Thomp Estate of Jump son v. Coop., 588, River Elec. 2d 225 Wis. N.W.2d 901 (Ct. 1999) App. (involving injury to an employee of a utility Moreover, subcontractor hired to remove poles). pre-Wagner appellate cases our from courts in which the courts principal assessed whether a committed an affirmative act for purposes establishing liability were also construction See, utility e.g., chattel —cases. Barrons v. J.H. —not Findorff & Sons, Inc., (1979) (construction 89 Wis. 2d 278 N.W.2d827 case); Co., v. Snider N. States Power 81 Wis. 2d 260 N.W.2d (1977) case). (utility danger- ity supplier known, a of a on who fails to warn unsuspecting to users? Or do both rules ous condition apply, § Wagner apply? if Moreover, both and 388 how order) (and apply rules, those two what does a court policies regarding competing based on liabil- which are ity? questions, Rather than answer those difficult summarily majority B&M an concludes because is Wagner apply. Majority independent contractor, must op., ¶ claim does not fit 21. It then holds that Tatera's exceptions that of the narrow would under either two liability to FMC. allow extend to my regardless Wagner view, In of whether 54. § exclusively, exclusively, applies applies or both judgment аpply, summary in this FMC is not entitled to Again, methodology we set forth for case. have summary judgment requires reviewing grant of us to (1) genuine of determine whether Tatera raised issues (2) judg- FMC material fact and is entitled to whether agree as I the court of ment a matter law. with § appeals' applicable case; is to conclusion that 388 this genuine set forth issues of material fact that Tatera § 388; that, as to the elements of to extent Wagner applies, it not Tatera's claim. Accord- does bar judgment ingly, as a matter of FMC is not entitled law. grant summary judgment First, a for improper minimum, has,

FMC is Tatera at a because § prima 388, under Section established a facie case adopted, Strasser, has see 236 Wis. 2d which Wisconsin provides: Dangerous Known to be for Intended 388. Chattel Use per- directly through a third supplies

One who liability subject son a chattel for another to use those whom supplier expect should to use the chattel with the consent of the other or to be endan- gered by probable use, its physical harm caused the use of by the chattel in the manner for which and a person for supplied, whose use it is if the supplier

(a) knows or has reason to know that the chattel is likely dangerous or is to be for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel supplied dangerous is will realize its condition, and

(c) to fails exercise reasonable care to inform them dangerous of its condition or of the facts which make it likely dangerous. to be agree appeals' 56. I with the court of conclusion § applies supplier.

that 388 to FMC as a The text of the clearly designates applies suppliers. rule that it to support comments attached to the section that conclu- (Second) § sion. See Restatement of Torts 388 cmt. a (describing supplier chattel); as "one who id., lends" a ("These apply cmt. c rules, therefore, sellers, to lessors, irrespective donors, lenders, of whether the chattel is by ("One by person."); made them or id., a third cmt. d supplying a chattel to be used or dealt with others is subject liability to under the rule stated in this Sec- ...."). supplier, given tion Here, FMC is a it provided grinding. the friction disks to B&Mfor Accord- ingly, nothing clearly precludes § applying 388 from under these circumstances. Looking proofs light at Tatera's in the most agree

favorable Tatera, to I also with the court of appeals prima that Tatera established a facie case § under 388. I reach that conclusion on the basis of (1) proofs, including deposition Tatera's Mazurek's de- scribing knowledge of friction disks' asbestos FMC's material data content, extent to which FMC used knowledge, safety FMC to sheets, and that Mazurek's (2) warnings placed products; on the Dr. Hatfield's never relationship between asbestos as to the causal affidavit exposure diagnosis malignant mesothelioma; and (3) asbestos-containing indicating that Hatfield's studies products as friction disks will release asbestos such any changes" to the material. absent "substantial fibers put court, FMC does not In its briefs this arguments it that Tatera forth as to whether believes § supporting the of 388. elements failed state facts Rather, court's conclusion it endorses circuit alternatively, argues, § inapplicable that even liability against FMC if Tatera had asserted claim of by Wagner pursuant is still barred that claim upon premised an "affirmative claim is not because the machining negligence asbestos- act" of containing and because is That is friction disks not extrahazardous. approach majority appears adopt al- the the though explain not as or its rationale.

it does state much assuming Wagner ap- ¶ is Nevertheless, 59. judgment plicable as case, FMC is not entitled to to this exceptions of law because at least one the a matter of liability shielding principals affirma- rule from its —the exception applies act here. tive — Wagner, general rule that In we stated 60. bring employees a claim for a cannot of subcontractor against principal negligence unless at contractor Wagner, exceptions applies. 2dWis. of two least one may principal employer be liable for First, a at employee injuries independent contractor's to the principal employer's affirmative act "caused negligence." injuries employee's Second, if the

See id. inherently dangerous performing aсtivi- occur "while ties," a principal be employer may held liable. See id. My focus is on the affirmative act of negligence exception. 61. This court has had only a opportunities few what explain sort of behavior might constitute an affirmative act of In negligence. those cases, it notable that we have yet to explain what an affirmative is; rather, act we have only explained what an affirma- tive act is not. For example, a Wagner, contractor hired a subcontractor to do demolition work. Wagner, the subcontractor, was injured in the course of the demolition, and evidence indicated that the subcontractor did not have sufficient equipment take proper safety precautions. Id. at 383. Wagner sued the principal contractor, alleging that it was liable for his injuries, because it had negligently hired the sub- contractor when it failed to check if the subcontractor had proper equipment followed necessary safety procedures. Id. at 382-84. The court held that principal employer was not liable for Wagner's injuries because it had not committed an "affirmative act of negligence" when it neglected to check the credentials of the subcontractor who employed Wagner. Id. at 390. Similarly, Barth v. Downey, Wis. 2d 775, 782-84, 239 N.W.2d 92 (1976), the first case in which we articulated the "affirmative standard, act" we held that the failure to provide safe working environ- ment was not an affirmative Likewise, act. other сases in which we or the court of appeals have considered this question have found similarly passive acts such as to a failure to investigate or failure to provide safe work- ing environment not to be affirmative Danks, acts. See (failure 298 Wis. 2d 26 to check ¶ credentials of a subcontractor is not an act); affirmative Estate of (failure Thompson, 225 Wis. 2d at 601 to discover and act upon safety act). violations is not an affirmative

364 to understand those seems majority 63. ¶ an that allegation for that to stand the proposition cases is an something necessarily "failure" to do any includes of not an affirmative act negli- omission and therefore act here (stating that op., gence. majority ¶ See "because negligence an affirmative act of cannot be necessarily premised failing an act is liability for such omission"); (stating permit that warn, an ¶ omission is where an liability to attach to a principal our three de- undermine completely "would present an affirmative act of requires of that cades precedent negligence"). indefensible. That be appears 64. conclusion definition, some sort of its includes

Negligence, by very ("A person Wis. JI —Civil 1005 failure or omission. See (she) (he) ordinary to exercise when negligent is fails added). care.") It to have an impossible is (emphasis without some sort of negligence" "affirmative act of in the chain of act somewhere occurring failure to the very at negligence, An affirmative act of causation. act least, of affirmative must include a combination that, of when taken negligence linked with an act alleged. caused the harm together, could have the acts Here, act unlike patently B&M FMC with supplied in the above cases: described to grind employees disks B&M's asbestos-containing Supplying them of the disks' content. warning without act, an affirmative disks is asbestos-containing is the act disks' content failing dangerous to warn aby harm is death disease and the negligence, alleged If act to asbestos. this by exposure known to be caused I act could one, fail to see what is not an affirmative act exception. fit within the affirmative possibly the majority In it regard, appears some To the same recognizes reaching avoid point. do, however, conclusion that I question it breaks the act in down by components disposes its individual and of component each on the it is basis that insufficient —on negligence. its own—to be an affirmative act of Its bases description alleged its FMC's act of affirmative from complaint, majority op., Tatera's ¶¶ word See for word.4 allegations, complaint 9.2, That five listed four of investigate, which describe failures to warn, and to alleges instruct, and of one which that that FMC supplied, "[m]anufactured, installed, or removed unsafe asbestos-containing products." Id. It then takes each allegation description to be a literal of the act. That methodology dispatch it tо allows with the first four describing "[b]y "failure," acts definition, because the investigate warn, failure to failure test, the or omissions, the failure to are instruct not affirmative Majority op., ¶ acts." In other words, the majority's may negli- view, FMC's "failures" have been gent, those but failures are not affirmative acts. majority

¶ 67. Yet, the then the fifth considers allegation supplying asbestos-containing friction — opposite reasoning disks—and it knocks down with the

4Well, majority almost word word: the ignores an important conjunction. In the complaint, Tatera listed five allegations of negligence, by "and/or," linked sug which would gest any allegations that one of the a combination thereof would Heritage constitute a claim. See Dictionary American of (3d 1992) English the Language 109 (defining ed. as "and/or" "[u]sed to indicate either or both by items connected involved"). it are majority ignores distinction, each allegation own, assesses on its essentially replacing the in the allegation op., with See majority "or." ¶¶ "and/or" To majority 29-30. insisting extent that that courts must base whether something decisions on is an affirmative act plaintiffs should, on text of the complaint, majority at a minimum, accurately reflect that text. writes, it It "The act dismissed the first four. which asbestos-containing

supplying is no the friction disks supplied 'affirmative,' the that FMC but mere fact doubt impose liability enough not on disks to B&M is to the committing negligence." act of FMC for affirmative Majority op., (majority's emphasis). By ¶ the 30 may reasoning, majority's acted seems, it FMC have affirmatively allegatiоn negligently. in that fifth but not logic majority's

¶ I that the is twisted. 68. believe allegations acts first are not affirmative If the four they merely allegations negligence, of state because supplying disks, act, i.e., the the how could affirmative Essentially, opportu- gap? loses fill that Tatera the not nity much on an trial, to move to not so based ‍​‌‌‌‌‌​‌‌​‌‌​​​​‌‌‌​‌‌​‌​​​​‌‌‌‌​​‌‌‌​​‌‌​​‌‌​‌‌‍forward presented application in to the circumstances law formatted the case, this allegations but because Tatera's counsel complaint manner it did. the in the that committed ¶ FMC an affirmative act 69. Because asbestos-containing provided to it friction disks when grind manipulate employees to and without for its B&M Wagner warning dangerous the ex- content, of the —to bar applies operate to Tatera's tent that case not —does summary Accordingly, FMC is entitled to claim.5 not negli- judgment on basis Tatera's claim for that go explained gence herein, Moreover, as should forward. genuine to material fact as Tatera raised issues of Hence, are satisfied. elements whether judgment summary that not on FMC is entitled basis. extrahaz appeals The court of also determined exception I do here exception applies. not address

ardous view, Because, my unnecessary for me do so. it is because exception exception applies, that is sufficient affirmative act Wagner to lift the bar. Here, the majority commits a grievous

fundamental error by failing to abide standards and principles underlying summary judgment. In so doing, it robs Tatera of the opportunity and right present this case to a jury. 71. For the reasons, I foregoing respectfully

dissent. I am authorized to state that Chief Justice

SHIRLEY A. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

Case Details

Case Name: Tatera v. FMC Corp.

Court Name: Wisconsin Supreme Court

Date Published: Jul 20, 2010

Citation: 786 N.W.2d 810

Docket Number: 2008AP170

Court Abbreviation: Wis.