Summary Judgments Based on Wisconsin Safe Place Statute and Statute of Repose Denied U.S. District Court, Eastern District of Wisconsin, May 15, 2017
The court issued another decision in a case originally reported in Asbestos Case Tracker on May 15, 2017. Plaintiffs Daniel and Beverly Ahnert originally filed a case in 2010 alleging Daniel Ahnert developed asbestosis; that case was transferred to the MDL of the Eastern District of Pennsylvania. In 2013 Beverly Ahnert filed a new case in the Eastern District of Wisconsin after Daniel Ahnert died of asbestos-related diseases. In September 2014, the 2011 case was remanded back to Wisconsin. The plaintiff then moved to consolidate the 2010 case with the 2013 case. The court deferred the ruling until outstanding motions for summary judgment were decided in the 2013 case. After various rulings, in March 2017 this court denied the pending summary judgment motions and granted plaintiff’s motion to consolidate. Here, the court decided Wisconsin Electric’s summary judgment arguments regarding whether the Safe Place Statute and the Wisconsin Construction Statute of Repose (SCOR) barred the plaintiff’s claims, and denied both.
The plaintiffs alleged Wisconsin Electric was the owner or operator of premises where asbestos products were used; Daniel Ahnert worked at three Wisconsin Electric facilities. The court provided an extensive summary of the evidence produced before analyzing the applicable law. The Wisconsin Safe Place statute created a non-delegable statutory duty for premises owners, distinct from legal obligations arising under common law. The statute provided that every employer shall furnish safe employment for employees, including furnishing safety devices and safeguards. Owners need not guarantee absolute safety, but “‘must provide an environment as free from danger to the life, health, safety, or welfare of employees and frequenters as the nature of the premises reasonably permit.'” In addition, case law focused on the condition of the structure causing the injury; generally, there were three unsafe property conditions – structural defects; unsafe conditions associated with the structure of the building; unsafe conditions not associated with the structure. Wisconsin case law has held that the release of asbestos dust during regular repair created an unsafe condition sufficient to support a claim that the premises owner violated this statute.
Here, Wisconsin Electric relied upon the contract with Babcock & Wilcox requiring it to remove any asbestos prior to Daniel Ahnert’s employment. Wisconsin Electric argued it had no duty under the Safe Place Statute because it did not supervise or control Daniel Ahnert. However, the duty under the Safe Place Statute was non-delegable, thus the law did not support this argument. Further, a genuine dispute of material fact existed regarding whether unsafe conditions existed on the premises.
The Wisconsin Statute of Repose limited the time in which plaintiff could bring an action for injury resulting from improvements to real property. However, Wisconsin Electric did not meet its burden to show that Daniel Ahnert’s injuries resulted from work intended to make improvements to real property. The defendant did not submit sufficient evidence to show that his work on the boiler systems was an improvement to real property, and not just maintenance.