Summary
In Anderson the court properly stated the rule that supervisory employees could be held liable for failure to exercise ordinary care toward an employee to whom under the circumstances they owed duties as co-employees.
Summary of this case from Lupovici v. Hunzinger Const. Co.Opinion
No. 230.
Argued November 28, 1972. —
Decided January 3, 1973.
APPEAL from orders of the circuit court for Brown county: DONALD W. GLEASON, Circuit Judge. Affirmed.
For the appellants there was a brief by Everson, Whitney, O'Melia, Everson Brehm, attorneys, and John C. Whitney of counsel, all of Green Bay, and oral argument by John C. Whitney.
For the plaintiff-respondent there was a brief by Richard Greenwood and Kaftan, Kaftan, Kaftan, Kuehne Van Egeren, S.C., all of Green Bay, and oral argument by J. Robert Kaftan.
For the defendant-respondent there was a brief by Welsh, Trowbridge, Planert Schaefer of Green Bay and oral argument by Vance M. Waggoner of Green Bay.
This is a third-party action for severe personal injuries received by the plaintiff-respondent, Delbert E. Anderson, during an exhibition hockey match at the Brown County Arena. According to the complaint, as amended three times, Anderson was engaged in the performance of his duties as a civil defense employee of Brown county during the evening of October 10, 1966. An exhibition hockey game was in progress between the Chicago Blackhawks and the Green Bay Bobcats. In the course of the game, the famous Bobby Hull, then a player with the Blackhawks, propelled a hockey puck out of the rink and into the face of Anderson who was then tending to the doors on the north side of the building. The complaints allege, inter alia, that Anderson lost an eye and suffered extensive injuries to his cheekbone, mouth and teeth. The complaints further allege that Green Bay Hockey, Inc., leased the building from Brown county for a period of five years beginning in 1964 for the purpose of promoting hockey games.
The plaintiff recovered under the Workmen's Compensation Act and thereafter initiated a third-party action in order to further recover for his injuries. The plaintiff's original summons and complaint named as defendant Green Bay Hockey, Inc. An amended summons and complaint additionally named John Holloway, Robert Stuart, Sam Halloin, Cyril Cornell, Donald Marnocha, and Thomas Lewis as defendants (appellants here along with Brown county). Holloway was the arena manager and the others were members of the Brown County Board's arena committee. This amended complaint contained three distinct causes of action or theories of recovery: violation of the safe-place statute, common-law negligence, and conducting an ultra hazardous activity.
This latter aspect of the second amended complaint is not before the court. A demurrer thereto was sustained and not appealed to this court.
The defendants-appellants demurred to plaintiff's amended complaint and a second amended complaint was then served. This complaint states in pertinent part:
"Cause of Action Under The Safe Place Statute
". . .
"3. That the building hereinafter described is a building owned and operated by Brown county, and that said building is an arena building which has been used for the purpose of renting the same to various and sundry individuals for a rental that was intended to show a profit to Brown county which rental of said premises was for the purpose of putting on various types of entertainment by the renter in which the public was invited and in which persons were employed and particularly the plaintiff herein was employed as hereinafter designated. That the Brown County Board of Supervisors was in control of the premises and that they designated the defendants, Robert Stuart, Sam Halloin, Cyril Cornell, Donald Marnocha, and Thomas Lewis as an arena committee who were charged at all times hereinafter mentioned with the duty of maintaining and managing the premises and that they had the control and custody of the arena which was a place of employment and public building at all times hereinafter mentioned, such duty being all in accordance with the provisions of chapter [sic] 101.01(13), Wisconsin Statutes.
". . .
"10. That all of the defendants were negligent and careless and violated the provisions of section [sic] 101 of the Wisconsin Statutes in negligently maintaining the area immediately to the north and south of the goals on the hockey rink in the Brown County Veteran's Memorial Arena, aforedescribed, by failing to furnish a place of employment and a place for frequenters as safe as the nature of the place reasonably permitted, in the following respects:
"(a) By failing to furnish an adequate screen or adequate screens to prevent flying hard hockey pucks from endangering personnel.
"(b) By failing to give warnings of the danger of flying hard hockey pucks to employees and frequenters.
"(c) By failing to rope off, partition or screen off the area behind the spectator section immediately behind the north goal to prevent persons from unknowingly exposing themselves to danger therein.
"(d) By failing to promulgate rules and regulations to prevent playing personnel from driving hard hockey pucks out of the rink.
". . .
"Common-Law Negligence Complaint
". . .
"16. That the defendants, prior to and at the time of the aforedescribed incident were negligent and careless and negligently maintained the interior of the Brown County Veteran's Memorial Arena and the hockey rink proper and especially the area immediately to the north and south of the goals of the aforedescribed hockey rink in the Brown County Veteran's Memorial Arena in the following respects:
"(a) By failing to furnish an adequate screen or adequate screens to prevent flying hard hockey pucks from endangering personnel.
"(b) By failing to give warnings of the danger of flying hard hockey pucks to employees and frequenters.
"(c) By failing to rope off, partition or screen off the area behind the spectator section immediately behind the north goal to prevent persons from unknowingly exposing themselves to danger therein.
"(d) By failing to promulgate rules and regulations to prevent playing personnel from driving hard hockey pucks out of the rink.
and the defendants knew or should have known in the exercise of ordinary care that the same was imminently dangerous to person and property and the defendants failed to exercise ordinary care in protecting same.
"That at all times hereinbefore mentioned, that the entire premises including the fixtures thereon were under the exclusive control and management of the Green Bay Hockey, Inc., and of the arena committee consisting of all of the individual defendants above set forth and that as managers of the said building the defendants were charged with the duty of carefully maintaining said premises and constructing thereon safeguards which would prevent the very injury that occurred in this case."
This second amended complaint was also demurred to by the individual defendants. The trial court issued a decision overruling the demurrer and entered an order to that effect.
The first of plaintiff's amended complaints also named Brown county as a party defendant under a sec. 270.58, Stats., indemnity theory. Brown county demurred to the amended complaint. This demurrer was overruled by the trial court.
The individual defendants and Brown county appeal.
Two issues are raised on this appeal:
1. Did the trial court err in overruling the demurrer to the second amended complaint which alleged a cause of action under the safe-place statute and one in commonlaw negligence against these managerial employees of Brown county?
2. Did the trial court err in overruling the demurrer of Brown county to the amended complaint which alleged such county to be an indemnitor of the employees under sec. 270.58, Stats.?
1. Individual defendants' demurrer. Appellants contend that the plaintiff's second amended complaint does not state a cause of action under either the safe-place statute or common-law negligence principles. The general demurrer interposed by the individual defendants raises the question of whether the amended complaint states any cause of action. This general rule, of course, is made unequivocally clear by sec. 263.07, Stats., which is expressly tied into sec. 263.27, which provides that such pleadings "shall be liberally construed, with a view to substantial justice between the parties."
Sec. 263.27, Stats.
It is clear that under our very recent decisions in Wasley v. Kosmatka and Pitrowski v. Taylor, the complaint does not state a cause of action insofar as it seeks to apply the safe-place standard of care. In Wasley we stated:
(1971), 50 Wis.2d 738, 184 N.W.2d 821.
(1972), 55 Wis.2d 615, 201 N.W.2d 52.
"To recognize a third-party action assessing a `safeplace' standard of care against an individual defendant who also is an officer of the corporation (which is the employer for workmen's compensation benefits) would allow the plaintiff to circumvent the immunity that is granted an employer by the workmen's compensation statute." (Citing sec. 102.03(2), Stats.)
Supra, footnote 3, at page 742.
Plaintiff contends that his complaint states a cause of action against all of the individual defendants under the safe-place statute, and specifically, secs. 101.06 and 101.01(9), Stats. 1969, thereof, in that liability attaches not only to an "employer" but also to an "owner of a place of employment." It is clear, however, that the duty of the owner of a place of employment does not add to the duty owed by an employer to an employee, and under sec. 102.03(2) the workmen's exclusive remedy against the employer and the workmen's compensation carrier is the compensation received under the workmen's compensation statute.
While it is clear that the complaint does not state a cause of action against the individual defendants under the safe-place statute, it is equally clear, particularly in view of the holding in Pitrowski v. Taylor that the complaint does state a common-law cause of action. In Pitrowski the plaintiff was seeking to recover damages for personal injuries sustained by her husband while he was loading a truck for his employer. The plaintiff had joined a coemployee of her husband, a supervisory employee and the president of the employer corporation, together with various insurers. In response to the contention of the liability insurer of the employer that Wasley bars suits against supervisory employees of an employer, this court stated:
". . . All that this court held in Wasley was that a safe-place action can be brought only against an employer corporation and not against an employee of the corporation. Wasley made it clear that, as to the safe-place statute, `. . . it is the employer who is liable, rather than an agent of the employer. . . .'"
Supra, footnote 4, at page 624.
Noting the trial court's determination that the supervisory personnel could be held liable under the safe-place standard of care to be an erroneous view of the law, the supreme court held the negligence of the supervisory employees, if any, "must rest upon commonlaw failure to exercise ordinary care toward an employee to whom, under the circumstances, they owed a duty." The supreme court remanded the case to the trial court for a determination of whether the corporate president or supervisory employee, "either or both," were negligent in failing to exercise ordinary care toward a fellow employee under common-law negligence principles.
Id. at page 627.
2. Brown county demurrer. The parties herein agree that the cause of action against Brown county depends entirely upon whether or not the individual defendants herein are suable coemployees of Delbert E. Anderson. Since we have concluded that the amended complaint states a proper cause of action against the individual defendants as third-party coemployees, secs. 270.58 and 260.11(1), Stats., and cases interpretive thereof permit the county's being made a party to the action. The first demurrer properly overruled, the second is also properly overruled.
Sec. 270.58(1), Stats.: "Where the defendant in any action or special proceeding is a public officer or employe and is proceeded against in his official capacity or is proceeded against as an individual because of acts committed while carrying out his duties as an officer or employe and the jury or the court finds that he acted in good faith the judgment as to damages and costs entered against the officer or employe shall be paid by the state or political subdivision of which he is an officer or employe. . . ."
Sec. 260.11(1), Stats.: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein . . . ."
Larson v. Lester (1951), 259 Wis. 440, 444, 49 N.W.2d 414.
By the Court. — Orders affirmed.
The following memorandum was filed March 14, 1973.
The specific questions concerning the status and conduct of defendants-appellants are questions of fact to be resolved after trial. At this stage, analyzing the complaint on demurrer, the complaint (insofar as it asserts a common-law action) alleges acts of common-law negligence on the part of all defendants-appellants, as coemployees, which acts are alleged to have caused plaintiff's injury. These acts are specifically set forth in paragraph 16, subs. (a), (b) and (c) of the complaint. These allegations state a sufficient cause of action against all the defendants-appellants. Insofar as the complaint alleges negligence for the failure to promulgate rules and regulations to prevent playing personnel from driving hard hockey pucks out of the rink, this alleges the breach of a legislative act for which the defendants-appellants cannot be held liable in this action. Therefore, insofar as paragraph 16(d) is concerned the complaint does not allege a valid cause of action.
Motion for rehearing denied without costs.