Haverman, Jill et al v. Packaging Corporation of America

Brief in Opposition

W.D. Wis.January 17, 2017

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN JILL L. HAVERMAN, individually and as special administrator of the ESTATE OF DUSTIN HALE and JOHN HALE, Plaintiffs, and HANOVER INSURANCE COMPANY, Involuntary Plaintiffs, v. Case No.: 15-CV-524 PACKAGING CORPORATION OF AMERICA, Defendant and Third-Party Plaintiff, v. INLAND SYSTEMS, INC., Third-Party Defendant. ______________________________________________________________________________ PLAINTIFFS’ RESPONSE TO DEFENDANT PACKAGING CORPORATION OF AMERICA’S BRIEF IN SUPPORT OF SUMMARY JUDGMENT ______________________________________________________________________________ I. Introduction Defendant and Third Party Plaintiff Packaging Corporation of America (“PCA”) has moved this Court for summary judgment on all claims asserted by the plaintiffs, Jill Haverman and John Hale, on behalf of their deceased adult son, Dustin Hale. Plaintiffs have asserted claims based in negligence, wrongful death, as well as violations of Wisconsin’s Safe Place Statute, Wis. Stat. §101.11, against PCA. Summary judgment is inappropriate in this action Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 1 of 29 2 because genuine issues of material fact exist which preclude the granting of PCA’s motion. For that reason, plaintiffs respectfully request this Court to deny PCA the relief requested and permit this matter to proceed to trial. II. Statement of Facts This action arises from a catastrophic accident on July 2012 which fatally injured Dustin Hale as well as Dennis Gougeon, both employees of Inland Systems, Inc. (“Inland”), while they cleaned a silo owned and operated by PCA on PCA’s property in Tomahawk, Wisconsin. [See, PCA’s PSOF ¶¶1-2] PCA hired Inland to come onto its property when the silo was clogged and needed cleaning due to an excessive buildup of fly ash. [Id., ¶¶7, 11, 13] Omitted from PCA’s brief was the complete incompetence of the persons employed by PCA to manage its silos and ensure that both the cleaning process and those coming onto the premise to assist with the cleaning process were operating in a safe manner. [See, PPSOF, ¶¶1- 17, 20, 35, 36, 37]1 Despite having the undisputed responsibility to ensure all safety procedures were being followed by those, like Inland, who are permitted on its property to clean the silo, and that all OSHA requirements were being met, the undisputed facts in this case demonstrate that PCA employees were not even knowledgeable about such procedures and requirements; had never watched the cleaning of its silo before this incident; and never inspected its own silos. [Id., ¶¶9, 14, 17, 44, 45, 52, 58] Moreover, although PCA had created written procedures for cleaning its hoppers and monitored the temperature inside its hoppers, it determined it need not have similar procedures for cleaning its ash silos and had no way of determining whether there were hot spots in its silo. [Id., ¶18, 32, 33] 1 All references to the relevant factual background in support of plaintiffs’ response brief are referred to as PPSOF (plaintiffs’ proposed statement of facts) Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 2 of 29 3 Similarly, the facts of this case demonstrate that although PCA employees were aware, prior to the accident, that the silo which it permitted Inland to clean contained hot, unburned byproduct of its coal burning system and was hotter than it had ever been on any prior occasion, PCA employees had no knowledge how to test the temperature of the silo; had no knowledge where the temperature gauge was located; had no method, procedure, process or measuring device to determine how much hot ash a contractor like Inland would encounter in the silo or the internal temperature of the silo; PCA employees not only permitted Inland but pressured Inland employees to clean the silo on the day of the accident. [Id., ¶¶21-31, 34, 39-42, 57, 59, 60, 64, 73-79, 81-82, 93-94] In fact, despite knowledge of the overheating and the fact that the situation may require additional attention by PCA, it determined it need not schedule those employees to be on site on the day of the accident when the cleaning took place. [Id., ¶¶83-84] Finally, the evidence developed in this case demonstrates that although PCA considered the process of cleaning a team effort between it and Inland, PCA knew something was different about the cleaning process on this occasion. Specifically, PCA knew that the silo contained more build up than normal; knew that the heat in the silo was significant enough to prevent cleaning for several days although it did not supply the actual internal temperature of the silo to Inland at any time prior to the accident; knew about a fire in its landfill the day before the accident but did not disclose that occurrence to anyone from Inland; and when Inland employees suggested PCA take certain action prior to the accident to alleviate the heat inside the silo, PCA determined no such action was necessary and pressured Inland to proceed with the cleaning process on the day of the accident. [Id., ¶¶43, 47-51, 53-56, 59, 61-67, 70-74] Had the action suggested by Inland been taken by PCA, as requested, this tragic accident would never have occurred. [Id., ¶¶88, 100] Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 3 of 29 4 As demonstrated below and through plaintiffs’ proposed statement of facts, which are incorporated herein in their entirety, material issues of fact abound on the questions of whether PCA violated its nondelegable duty under Wisconsin’s safe place statute and was negligent in its actions both prior to and on the day of the accident, rendering PCA’s motion for summary judgment completely inappropriate. III. Standard for Summary Judgment Fed. R. Civ. P. 56 provides the standard applicable for motions for summary judgment. In pertinent part, it provides summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Because PCA is moving for summary judgment, its bears the burden of proof. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In seeking summary judgment, it is PCA’s burden to prove there are no genuine issues of material fact that exists. Id. All that is required of the plaintiffs to defeat PCA’s motion for summary judgment is to identify a genuine issue of material fact. That fact need not “be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id., at 248-49. Any factual issues of controversy must be resolved in favor of the non-movant to the extent that the motion must be denied where facts specifically averred by the non-movant contradict facts specifically averred by the movant. In other words, even if factual disputes do exist, the non-moving party’s version of events is accepted as true at this stage of the proceedings. Id., at 255. The moving party must Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 4 of 29 5 leave no room for controversy, as the motion for summary judgment cannot be a trial on affidavits and depositions. Schlumpf v. Yellick, 94 Wis.2d 504, 512, 288 N.W.2d 834 (1980). The standard on motions for summary judgment is stringent because the finding that PCA seeks through its motion is a drastic one, as it attempts to deny the nonmoving party its right to a trial by jury. See, Lecus v. Am. Mutual Ins. Co., 81 Wis.2d 183, 189, 260 N.W.2d 241 (1977). Moreover, as noted below, plaintiffs’ claims sound in negligence. Negligence is ordinarily an issue for the fact-finder and not for summary judgment. Summary judgment is uncommon in negligence actions because the court "must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that the moving party failed to exercise ordinary care." Erickson v. Prudential Ins. Co., 166 Wis.2d 82, 93, 479 N.W.2d 552 (Ct.App. 1991), quoting Shannon v. Shannon, 150 Wis.2d 434, 442, 442 N.W.2d 25 (1989); see also Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 2, 241 Wis.2d 804, 623 N.W.2d 751. Ordinarily a court cannot so state. As one circuit court of appeals has explained: Because of the peculiarly elusive nature of the term "negligence" and the necessity that the trier of facts pass upon the reasonableness of the conduct in all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where historical facts are concededly undisputed. Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir.1965). In this case, facts exists which overwhelmingly support a finding that PCA failed to meet its burden of proof on summary judgment and that genuine issues of material fact exist which preclude the entry of summary judgment. Therefore, plaintiffs respectfully request that this Court deny PCA’s motion for summary judgment and permit plaintiffs to have their day in court. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 5 of 29 6 IV. Analysis PCA’s motion is based on many arguments which have no basis in fact or law. First, PCA argues that it is entitled to judgment as a matter of law on plaintiffs’ safe place claim on three separate bases: (1) that PCA did not retain control over the premises upon which the decedent was performing services at the time of his death; (2) that there was no unsafe condition associated with the premises; and (3) PCA had no notice, constructive or otherwise, of an unsafe condition. As demonstrated more fully below, none of these arguments have any basis in fact or law and should be summarily denied. Second, in response to plaintiffs’ claim sounding in negligence, PCA claims it committed no affirmative acts of negligence; that the decedent and his employer, Inland Systems, Inc. (“Inland”) were more negligent than PCA; that PCA owed no legal duty to Inland employees while on its premises; that plaintiffs cannot prove causation; and that all other claims of plaintiffs fail because they cannot prove negligence. Again, these arguments have no basis in law or fact and should be rejected. A. Plaintiffs Have Asserted a Viable Claim Sounding in Violation of Wisconsin’s Safe Place Statute Pursuant to Wis. Stat. §101.11(a), parties liable under the safe place law are owners of public buildings, owners of places of employment and employers. Naaj v. Aetna Ins. Co., 579 N.W.2d 815, 218 Wis.2d 121 (Wis. App. 1998). The legislative purpose of §101.11 is to impose upon the employer or owner liability for all injuries resulting from the hazards, risks, and dangers incident to the methods, processes, and conditions of the business. Besnys v. Herman Zohrlaut Leather Co., 147 N.W. 37, 157 Wis. 203 (1914). The safe place statute creates a non- delegable statutory duty for premises owners that creates legal obligations distinct from those Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 6 of 29 7 arising under common law. See, Barry v. Employers Mutual Casualty Co. 2001 WI 101, ¶¶18- 20, 245 Wis. 2d 560, 630 N.W.2d 517; see also, Anderson v. Proctor & Gamble Paper Products Co., 924 F.Supp.2d 996, 1001 (E.D. Wis. 2013); Novak v. City of Delavan, 31 Wis.2d 200, 207, 143 N.W.2d 6 (1966). The person who has the duty under the safe place statute cannot assert that another to whom he had allegedly delegated the duty is to be substituted as the primary defendant in his stead for a violation of its safe place obligations. Dykstra v. Arthur G. McKee & Co., 100 Wis.2d 120, 132, 301 N.W.2d 201 (1981). Under any circumstances, it is the owner or the employer who must answer to the injured party. Id. The safe place statute is a negligence statute that establishes a different, heightened statutory duty than that of ordinary care imposed at common law. Barry, supra ¶18; see also, Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI. 98, ¶22, 274 Wis.2d 162, 178. It imposes a duty on property owners to maintain its premises so as to make them safe for employees as well as “frequenters.” See, Barth v. Downey Co., Inc., 71 Wis.2d 775, 778 239 N.W.2d 92 (1976) . An employee of an independent contractor doing work on the premises, as in this case, is considered a frequenter working in a place of employment. See, Hortman v. Becker Construction Co., Inc., 92 Wis.2d 210, 226, 284 N.W.2d 621 (1979); see also, Ozzello v. Peterson Builders, Inc., 743 F.Supp.2d 1302 (E.D. Wis. 1990) The statute also requires owners to furnish and use safety devices and safeguards, and to adopt methods and processes reasonably adequate to render the place of employment safe. See, Anderson, supra, p. 1001-1002. While an owner does not need to guarantee absolute safety, under the statute it must provide an environment as free from danger to the life, health and safety of employees and frequenters as the nature of the premises will reasonably permit. See, Wagner v. Cincinnati Cas. Co., 2011 WI App. 85, ¶¶14-15, 334 Wis.2d 516, 525. Whether a place is Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 7 of 29 8 considered reasonably safe is dependent upon the facts and circumstances of the particular case and presents a question of fact for the jury in all but the most exceptional cases. McGuire v. Stein's Gift & Garden Ctr., 178 Wis.2d 379, 398, 504 N.W.2d 385, 393 (Ct.App.1993). While acknowledging the duty owed under the safe place statute, PCA argues the statute does not apply in this case because (1) PCA did not retain control over the premises; (2) the silo was not an unsafe condition associated with the structure; and (3) PCA did not have actual or constructive notice of an unsafe condition. As demonstrated below, the facts of this case do not support any of PCA’s arguments and each one should be rejected by this Court. 1. Questions of Fact Exist Regarding Whether PCA Retained Control Over the Facility in General and Over the Silo Specifically Under the safe place statute, an owner of a premise is only absolved of its statutory duty if it relinquishes complete control of the premises and the premises are in a safe condition at that time. [Emphasis added] See, Hrabak v. Madison Gas & Electric Co., 240 F.2d 472, 477 (7th Cir. 1957); Kaltenbrun v. City of Port Washington, 156 Wis.2d 634, 646, 457 N.W.2d 527, 531 (Wis. App. 1990). The owner of the premises must have control over the place such that it can carry out its duty to furnish a safe place of employment. See, Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 607, 111 N.W.2d 495, 498 (1961); see also, Anderson, supra, pg. 1003-1004. Moreover, under the safe-place statute, liability is imposed if the premises are not kept as free from danger as the nature of the place will reasonably permit. Szalacinski v. Campbell, 314 Wis.2d 286 760 N.W.2d 420, (WI App. 2008). The question of whether an employer or owner retained a right of control is a jury question. Lee v. Junkans, 18 Wis. 2d 56, 61, 117 N.W.2d 614, 617 (1962); Lemacher v. Circle Construction Co., 72 Wis. 2d 245, 250, 240 N.W.2d 179 (1976) (trial court erred in failing to instruct the jury that duty of general contractor in safe-place case depended upon extent to which Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 8 of 29 9 general contractor retained control and supervision). Moreover, whether a place is reasonably safe within the meaning of the statute is dependent on particular facts and circumstances presented in each case. Dykstra, supra, 100 Wis.2d at 132. In all but the most exceptional cases, this determination is a factual determination left for the jury’s consideration. See, McGuire v. Stein's Gift & Garden Ctr., supra; Henderson v. Milwaukee County, 543 N.W.2d 544, 198 Wis.2d 747 (WI App. 1995); review denied 546 N.W.2d 472; and Dykstra, supra. In Anderson, supra, the owner of the building owned and operated the factory where the independent contractor performed his work. The independent contractor performed his work along side employees of the owner; the owner exercised oversight of the independent contractor’s work and determined when that work would be accomplished; and the independent contractor was hired by the owner to make its machines operational. These facts were enough to create genuine disputes of fact concerning the safe place claim, and summary judgment was denied. Id., pg. 1004. Similarly, here, the undisputed facts establish that PCA owned the mill where the Inland employees performed their work; the Inland employees performed their work in conjunction with PCA employees, in that PCA employees met with Inland to discuss the particular job and how best to accomplish the job; the Inland employee’s schedules were determined by PCA in regard to when they would come onto the premises and when it would release the silo to Inland; and the Inland employees were hired by PCA to make PCA’s own silos operational. [PCA’s PSOF ¶¶1- 2; PPSOF ¶¶3-4, 7, 20, 35, 38, 39-41, 43, 47, 61, 74] These facts, similar to those in Anderson, supra, easily create genuine issues of fact in regard to a violation of the safe place statute, and therefore PCA’s arguments on this issue fail. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 9 of 29 10 In an effort to absolve itself of liability in this matter, PCA argues it did not retain the requisite level of control over Inland’s work or its own silo to subject it to safe place liability. First and foremost, in order to absolve itself from liability, PCA must have relinquished complete control of the premises to Inland and demonstrate that when it did, the premises were in as safe a condition, and free from danger to the life, health and safety of employees and frequenters, as the nature of the premises would reasonably permit. The standard, as discussed above, is that PCA relinquish control over the premises - - not over Inland’s work. Moreover, as demonstrated above, the facts do not support a finding that PCA relinquished control over its premises in a manner that would absolve it of liability in this matter. PCA also argued that the contract between it and Inland demonstrates that the parties intended for Inland to control, direct and supervise the details of its work. As noted above, this claim must fail, as the duties imposed on owners/employers under the safe place statute are non- delegable, and the owner/employer cannot assert that another to whom it had allegedly delegated the duty is to be substituted as the responsible party for violation of a safe place obligation. See, Dykstra, supra, 100 Wis.2d at 132. Moreover, PCA argues that the evidence to support the proposition that it did not retain control over the premises can be found in the testimony of “three PCA employees,” although PCA refers to only two - - Mr. Fiala and Mr. Flynn. Moreover, none of the testimony goes to the ultimate issue of whether PCA relinquished control over the premise at a time when the premise was in a safe condition. Given the tragedy which ultimately ensued, it appears obvious that PCA did not. At most, the testimony establishes that PCA was not responsible for supervising Inland’s work and that PCA never directed Inland on the specifics of how to do its work.2 2 This is similar to the references to the testimony of Mr. Hale and Mr. Padden, which testimony merely established that Inland employees did not look to PCA to tell them specifically how to clean the silo. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 10 of 29 11 However, this evidence falls short of demonstrating that PCA relinquished control over the premises or that it turned over the premises in a safe condition. First, Inland and PCA would meet once PCA hired Inland to come onto the premises to make its silo operational to discuss the specifics of the job. [PCA’s PSOF ¶43] Second, although PCA contends that it established safety procedures and requirements for Inland to follow, the evidence is undisputed that neither the safety director nor the manager of waterblasting had any idea what those procedures or requirements were. [PPSOF ¶¶1-9, 14-15, 17, 45] Additionally, PCA never inspected its own silo; did nothing to check the temperature of the silo; did not even know or have a process to gauge the temperature; was aware prior to the accident that the silo was extraordinarily hot and had more build up than normal; and that the silo was requiring cleaning on a more frequent basis. [Id., ¶¶10-12, 28, 29, 30-32, 48-52, 55, 57-60, 73-74, 79, 81, 93-94] Despite all those facts and despite being asked by Inland to cool the silo by flooding it or otherwise, PCA did nothing to either cool the silo or confirm that it was safe for Inland to clean prior to the accident. [Id., ¶¶56, 62, 65, 66-67, 70-74, 81] All of these undisputed facts establish that PCA failed in its obligation to determine whether the premise was safe. Throughout PCA’s argument on the issue of safe place, it completely fails to discuss the second prong of the control element - - whether the premises were in a safe condition at the time it allegedly relinquished control to Inland. As noted above, not only must PCA have relinquished control over the premises which, as demonstrated above, it did not, PCA must have relinquished such control when the silo was in a safe condition. Consistent with the requirement, the safe place statute imposes a duty on the owner and/or employer to make timely and adequate periodic inspections to ascertain whether all devices are safely functioning for the benefit of both Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 11 of 29 12 frequenters as well as employees. Karis v. Kroger Co. 26 Wis.2d 277, 132 N.W.2d 595 (1965). A failure to make such inspections can render the owner/employer liable for violation of the statute. Wisconsin Bridge & Iron Co. v. Industrial Commission, 8 Wis.2d 612, 99 N.W.2d 817, (1959). Here, it is undisputed that no such inspections were ever made of the silo. [PPSOF ¶¶33, 52] The only mention PCA makes in its submission regarding this element is a statement that “PCA released the silo to Inland . . . when Inland believed it was safe.”3 (PCA’s brief, p. 5) First, the requirement is not that Inland believed it was safe - - PCA had a duty, before releasing it to Inland, to inspect the silo to ascertain whether it was safe. PCA made no such inspection - - either before Inland started the job in question or ever. In fact, PCA’s own superintendent in charge of the silos admitted he never inspected the silo, and the manager of PCA’s waterblasting department similarly admitted that not only has he never inspected the silo, he had no knowledge of how the silo was cleaned; never watched a cleaning; had no idea what the temperature of the silo was; no idea how to check the temperature; no idea where the temperature gauges were; was not knowledgeable of what the safety procedures or requirements were; and no one at PCA did anything prior to the accident to evaluate or determine whether the silo was in a safe condition for Inland to begin its work. [Id., ¶¶9-17, 29, 44-45, 52, 81-82] Moreover, PCA readily admits that the silo in question, prior to “releasing” it to Inland as PCA alleges, was hotter than it had ever been, as PCA could not recall one instance wherein it took four days or more to cool the silo down. [Id., ¶¶53-54, 59, 65, 73-74, 79, 93-94] In fact, the testimony not only establishes that Inland employees were not even able to get close to the top of the silo on the day prior to the accident because it was so hot, but PCA had done nothing 3 The statement of fact to which PCA cites in support of this argument merely reads that PCA released the silo to Inland. Nothing in the proposed statement of fact states or even mentions the safety element. See PCA’s PSOF ¶39. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 12 of 29 13 to monitor the temperature of the silo prior to “releasing” it to Inland and the superintendent of power was not even knowledgeable of the fact that Inland had no way of testing the temperature themselves prior to cleaning the silo. [Id., ¶¶10-12, 14-15, 18, 28-32, 53] Moreover, it is undisputed that while Inland was called by PCA on prior occasions when the residue in the silo was 2-3 inches thick, on the date the accident occurred the residue was characterized as being 3- 4 feet thick, PCA had no idea why nor did PCA attempt to determine why, thereby signaling that PCA permitted the silo to continue to function without properly monitoring the hot ash and permitted the condition of the silo to become dangerous. [Id., ¶¶23-26, 33, 49-51, 55, 60, 63-64, 81-82] Finally, while PCA acknowledges conflicting testimony, its own waterblasting manager testified that Mr. Hale, the owner of Inland, had requested that the silo be filled with water prior to Inland attempting to clean the silo, but that request was denied for reasons PCA could not explain. [Id., ¶¶47, 56-61-62, 65-67] Moreover, although PCA alleges that Inland utilized its own equipment, the facts demonstrate that on the day of the accident, Inland was utilizing a fire hose that was the property of PCA and an aerial lift that was the property of another contractor performing work on the premises. (Id., ¶92) PCA also readily admits it hired Inland to come onto its property simply to clean its silo in order to render it operational; that PCA owned the silo; that PCA exercised oversight of Inland’s work in regards to when the work would be completed and the equipment to be made available to it to complete the work. PCA’s own expert, Donald Olsen, admitted that PCA was the owner of the property and was in control of the property and had an obligation to ensure that all those that came onto the property were safe. [Id., ¶6, 20, 98] The evidence in this case overwhelmingly demonstrates that questions of fact exist on the issue of whether PCA relinquished complete control over its premises and whether PCA failed to Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 13 of 29 14 comply with its duty to make timely and adequate inspections of the silo in order to ascertain whether it was in a safe condition prior to turning it over to PCA, and that those issues are jury questions in all but the most exceptional circumstances. As such, summary judgment in favor of PCA on plaintiffs’ safe place claim is inappropriate and should be denied. 2. Questions of Fact Exist Regarding Whether the Silo Was an Unsafe Condition and Whether PCA Had Notice of the Unsafe Condition. Under the safe-place statute, "an owner is liable for two types of conditions that cause injury: (1) structural defects; and (2) unsafe conditions associated with the structure of the building." Mair v. Trollhaugen Ski Resort, 2005 WI App 116, ¶ 12, 283 Wis.2d 722, 699 N.W.2d 624, aff'd 2006 WI 61, 291 Wis.2d 132, 715 N.W.2d 598; Wagner, supra, 2011 WI App. 85, ¶¶16-17; Williams v. International Oil Co., 267 Wis. 227, 229, 64 N.W.2d 817 (1954). Under the statute, "structural defects" arise from the design or construction flaws when a building element is put in place, whether as an original part of a structure or as a replacement and, in contrast, "unsafe conditions associated with the structure” are those that arise from repair or maintenance or a failure to repair or maintain an element of a building over time that was previously safe. See, Wagner, supra; see also, Rosario v. Acuity & Oliver Adjustment Co., 304 Wis.2d 713, ¶11, 738 N.W.2d 608 (WI App. 2007) and Barry, supra, ¶¶25-28. An unsafe condition has been further defined as a property hazard that arises from the failure to keep an originally safe structure in proper repair or property maintained. See, Barry, supra. While a property owner need not have any notice of a structural defect to be liable, the owner must have actual or constructive notice of the defect to be liable for an unsafe condition associated with the structure of the building." Rosario, 304 Wis.2d 713 at ¶12. Here, PCA had both. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 14 of 29 15 The term "safe" as used in the safe place statute is relative in nature, depends upon the facts and conditions present and the use to which the place is put. Id. Moreover, as noted above, whether a particular place is safe is a jury question in all but the most exceptional of cases. For purposes of its argument, PCA contends that the fly ash silo was not an unsafe condition associated with the structure until Inland employees decided to perform its waterblasting work on the day of the accident. This argument completely ignores all of the testimony discussed above concerning the extreme temperature of the silo prior to Inland performing its work; the amount of fly ash build up in the silo prior to Inland performing its work; the fact that no one from PCA ever inspected the silos or even witnessed the cleaning of the silos on any prior occasion; the fact that PCA did not monitor, and had no way of monitoring, the inside temperature of the silo before “releasing” it to Inland; and the fact that the manager in charge of the waterblasting services did not even know what the safety requirements for the job were. The testimony cited by PCA in its brief concerning the fly ash silo being the same as any other fly ash silo and that Inland had cleaned hundreds of similar silos in the past is related only to the actual set up of the silo and the materials contained within the silo that needed to be cleaned. The testimony does not relate to the actual condition of the particular silo prior to and on the date of the accident, a condition which PCA permitted to exist despite evidence that something was not normal and that conditions in this silo were different than in the past. (See, PPSOF, ¶¶48-51, 53-55, 59, 93-94) Most significantly, PCA makes the claim that “there is no evidence that the fly ash silo was abnormal or unsafe, in and of itself” and rather it was the act of cleaning it that made it unsafe.” (PCA brief, p. 9) Furthermore, PCA claims that no evidence exists that Flynn, Fiara or Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 15 of 29 16 Kummerfeldt had reason to believe the fly ash silo was not in a ready condition for cleaning on the day of the accident. Id. In regard to the first argument, nothing could be further from the truth, as demonstrated by all of the evidence noted above. Moreover, an Inland employee testified unequivocally that PCA was pressuring Inland to clean the silo, notwithstanding the extreme heat coming from the silo, because the cleaning of the silo was a number one priority for PCA that had to get done. [Id. ¶¶74-78] In regard to the second argument, the undisputed evidence could lead to a conclusion that PCA had no reason to believe the fly ash silo was not in a ready condition, but only because none of those PCA employees did anything to determine whether the silo was or was not in a ready condition. As noted below, the standard is based upon a reasonably diligent owner. PCA’s failure to monitor the temperature, the amount of fly ash, or any other aspect of the silo prior to “releasing” it to Inland does not absolve it of its nondelegable duties under the safe place statute or its liability for its failure to do so. In fact, as noted above, the testimony in this case establishes that PCA employees were not aware of the temperature of the silo; had no safety protocol in place regarding the cleaning of the silos; did nothing to monitor the contents of the silo; were unaware of the safety or OSHA requirements for cleaning a silo; permitted build up in the silo to an extent never seen before; were aware of a fire in the landfill the day before the accident but did not make anyone at Inland aware of that fact; and were aware they had never needed four days to cool a silo prior to this time. [See, PPSOF ¶¶9-12,14-18, 22-26, 28-34, 45, 48-52, 54, 58-60, 64, 81-82, 93-94, 97] Notwithstanding all of this prior knowledge, PCA expects this Court to rule as a matter of law that PCA had no reason to believe the silo was in a dangerous condition prior to “releasing” the silo to Inland. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 16 of 29 17 The evidence in this case clearly demonstrates that the silo was in an unsafe condition associated with the structure which PCA permitted to operate without regard to the lack of any safety monitoring. PCA should therefore be held liable under the safe place statute as evidence exists to support a finding that PCA had actual and/or constructive notice of the defect. To find that PCA failed to maintain the premise in as safe as the nature of the place reasonably permitted, PCA needed actual or constructive notice of the unsafe condition in time to take reasonable precautions to remedy the situation or that the condition existed for such a length of time before the accident that PCA or its employees, in the exercise of reasonable diligence (which includes a duty of inspection), should have discovered the condition in time to take reasonable precautions to remedy the situation. See, WI JI-Civil 1900.4; see also, Kochanski v. Speedway SuperAmerica, LLC 356 Wis.2d 1, 850 N.W.2d 160 (2014); Barry, supra, 245 Wis.2d at 576-577. The inquiry of notice is a question of fact for the jury in all but the most exceptional of cases. See, Gulbrandsen v. H&D, 2009 WI App. 138, ¶14, 321 Wis.2d 410, 773 N.W.2d 506; see also, Gerdmann v. United States Fire Ins. Co., 119 Wis.2d 367, 371, 350 N.W.2d 730 (Ct.App.1984) and Megal, supra, 2004 WI 98, ¶20. As demonstrated above, PCA had both actual and constructive notice of the unsafe condition of the silo prior to Inland beginning its work. Its actual knowledge flowed from the facts that the silo had never been this hot before, never needed four days to cool, and the unusual amount of buildup inside the silo that had never been seen before. Its constructive knowledge stemmed from its awareness of a fire that had occurred the day before the accident, which it did not make Inland aware of, and the fact that Inland was attempting to tell PCA that something was not right on the days prior to the accident and PCA did nothing to investigate the matter further or ensure that the silo was in a safe condition on the day of the accident. As all of these facts Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 17 of 29 18 support a conclusion that PCA had knowledge of the dangerous condition that existed within the silo prior to turning it over to Inland to clean, genuine issues of fact remain on this issue and therefore PCA’s motion for summary judgment should be denied. B. Summary Judgment is Inappropriate on Plaintiffs’ Negligence Claims PCA is not entitled to summary judgment on plaintiffs’ negligence claims because the question of whether PCA breached its duty to the plaintiffs is one of fact to be decided by the jury. Wisconsin courts have long held that negligence cases are particularly inappropriate for summary judgment: Because of the peculiarly elusive nature of the term “negligence” and the necessity that the trier of fact pass upon the reasonableness of the conduct in all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment, even where historical facts are concededly undipusted. See, Lambrecht v. Kaczmarczyk, 241 Wis.2d at 808; see also, Bain v. Tielens Const., Inc., 2006 WI App 127, ¶ 6, 294 Wis.2d 318, 718 N.W.2d 240 Therefore, in a negligence case, summary judgment is considered a drastic measure that is rarely appropriate. See, Ceplina v. South Milwaukee Sch. Bd., 73 Wis.2d 338, 342-43, 243 N.W.2d 183 (1976) 1. Questions of Fact Exist on the Question of Whether PCA Committed Affirmative Acts of Negligence As noted by PCA in its brief, in Wagner v. Continental Cas. Co., 143 Wis.2d 379, 388, 421 N.W.2d 835 (1988), the Court stated the general rule that employees of a subcontractor cannot bring a claim for negligence against the principal contractor unless at least one of two exceptions applies, one of which is that a principal employer may be held liable for injuries to the independent contractor's employee caused by the principal employer's affirmative act of negligence. Wagner, supra. PCA argues it only committed acts of omission rather than Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 18 of 29 19 commission, and therefore it cannot be held liable to plaintiffs. As the evidence established in this case points to numerous affirmative acts of negligence by PCA, this argument should be rejected. Admittedly, the Wisconsin Supreme Court has enjoyed only a few opportunities to explain the type of behavior that could constitute an affirmative act of negligence. In those cases, however, it is notable that the Court has yet to provide a definitive explanation of what an affirmative act is; rather, it has only explained what an affirmative act is not. See, i.e, Wagner, 143 Wis.2d at 390; Barth v. Downey, 71 Wis.2d 775, 782-84, 239 N.W.2d 92 (1976); see also, i.e., Danks v. Stock Bldg. Supply, Inc., 2007 WI App 8, ¶26, 298 Wis.2d 348, 727 N.W.2d 846 (failure to check credentials of a subcontractor is not an affirmative act); Estate of Thompson v. Jump River Electric Coop., 225 Wis.2d 588, 601, 593 N.W.2d 901 (Ct.App.1999) (failure to discover and act upon safety violations is not an affirmative act). At best, as explained by the Wagner Court, “something extra” that increases the risk of injury to the independent contractor is necessary to sustain an action against a principal employer. Tatera v. FMC Corporation, 2010 WI 90, 328 Wis.2d 320, 342, 786 N.W.2d. 810. In other words, the evidence must demonstrate that PCA engaged in some active conduct that increased the risk of harm to Inland and its employees, including the deceased plaintiff. Danks, supra, 2007 WI App. 8, ¶29. In Barth, the Court affirmed a finding that a new trial was required on the issue of common law negligence. The Court noted that the trial court had found the “something extra” to be the prodding or pressuring by the company for the plaintiff to increase the tempo of his work, and the Supreme Court commented that the question of whether such prodding constituted the “something extra” was a close one which would have to be determined on retrial. Id., 71 Wis.2d at 783-784. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 19 of 29 20 In this case, not only did PCA pressure Inland into getting the work done, despite temperature and excessive build up concerns, PCA acted affirmatively in increasing the risk of harm to Inland. The “something extra” in this case that demonstrates that PCA engaged in active conduct that increased the risk of harm to Inland and plaintiffs includes all of the following: 1. PCA’s affirmative act in continuing to use the silo without regard to the amount of build-up that was accumulating or the temperature of the silo or its contents; 2. PCA’s affirmative act of operating its silo and permitting workers to clean the inside of the silo without equipment that could test the internal temperature of the silo; 3. PCA’s affirmative act of fostering incomplete combustion through its choice of fuels in its silo without regard to the reasons therefore; 4. PCA’s affirmative direction and/or pressuring of Inland to get the job done as it was a top priority, despite knowledge of a dangerous condition that existed in the silo; 5. PCA’s affirmative act of commanding Inland to perform the cleaning services on the silo despite its knowledge that its silo had never taken such a long period of time to cool in the past; 6. PCA’s affirmative act of opening the doors of the silo (which arguably made the silo and its contents even hotter) as opposed to flooding the silo as requested by Inland the day before the accident; 7. PCA’s affirmative act of creating a safety protocol for cleaning out its hoppers but deciding no such protocol was required for cleaning its silos; 8. PCA’s affirmative act of requiring hot work permits for certain jobs performed on site and deciding not to utilize such permits for the cleaning of the silo, which would have required someone from PCA to inspect the silo prior to Inland’s attempt to clean the silo; 9. PCA’s affirmative act for permitting procedures on its premises that led to fires in its landfill, which fires provided PCA with notice that something within their procedures and protocols were lacking; 10. PCA’s affirmative act of creating a work schedule for its managers and supervisors of waterblasting activities that did not require them to be on site when such work was being completed; Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 20 of 29 21 11. PCA’s affirmative act of releasing the silo for cleaning despite its knowledge that there had been a fire in its landfill prior to the accident; and 12. PCA’s affirmative act of permitting Inland to perform its cleaning operations without being knowledgeable of the applicable safety precautions and OSHA regulations and by not enforcing its own requirements for personal protective equipment. [See, PPSOF, ¶¶9, 14, 17, 18, 22-28,30-34, 45, 48-52, 54-60, 63-65, 74-84, 97, 102-103 ] PCA’s own expert, Mr. Olsen, admitted that three of the acts noted above - - running the silo with knowledge of incomplete combustion; mandating that Inland clean the silo despite the temperature of the silo; and its insistence to get the job done were all affirmative acts committed by PCA and were all causative of the accident. [Id.,¶100] These affirmative acts by PCA, each by themselves or in the aggregate, are sufficient evidence to support plaintiffs’ claim that PCA may be held liable as a premises owner or primary employer for its own negligence. For these reasons, PCA’s motion should be denied and this matter should move forward to trial. 2. Summary Judgment is Inappropriate on Issue of Comparative Negligence PCA also argues that summary judgment is appropriate because, even if PCA could be found liable in safe place and negligence, plaintiffs’ negligence exceeded that of PCA. Any such argument must fail. First, summary judgment is particularly inappropriate in cases involving questions of comparative causal negligence. For instance, in Hansen v. New Holland N. Am., Inc., 215 Wis.2d 655, 669, 574 N.W.2d. 250 (WI App. 1997), the Court of Appeals made clear that “the instances in which a court may rule that, as a matter of law, one party’s negligence exceeded that of another’s are extremely rare.” Id. Moreover, the Wisconsin Supreme Court has Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 21 of 29 22 issued a particular admonishment against the use of summary judgment in comparative negligence cases: Summary judgment is a poor device for deciding questions of comparative negligence . . . If a defendant, on summary judgment, is to be permitted to set forth in his affidavits the conduct of the plaintiff, and seek summary judgment on the ground that the plaintiff’s negligence outweighs his own as a matter of law, the only recourse for plaintiff is to set forth in his counter-affidavits all of the conduct of the defendant. The upshot is a trial on affidavits, with the trial court ultimately deciding what is peculiarly a jury question. Our summary judgment statute does not authorize a trial by affidavit. The granting of summary judgment on this ground cannot be sustained. Cirillo v. Milwaukee, 34 Wis.2d 705, 716-717 (1967) Notwithstanding this clear pronouncement, that is what PCA is requesting this court do. In support of its motion, PCA argues that summary judgment is appropriate because plaintiffs’ negligence exceeded that of PCA. In the words of the Supreme Court above, the granting of summary judgment on this ground simply cannot be sustained. Furthermore, based upon all of the testimony cited above concerning PCA’s liability under the safe place statute, PCA’s negligence clearly outweighed any negligence of Inland or the plaintiffs, and therefore the argument should be rejected on that ground as well. 3. Under Principles of Common Law Negligence, Wisconsin Law Recognizes a Duty of Care to All to Protect Others from Foreseeable Harm PCA next argues that it is entitled to summary judgment because it did not owe a legal duty of care to Inland employees on the date of the accident. That proposition is contrary to well established law in Wisconsin. Under well established principles of common law negligence, every person owes a duty of care to the world at large to protect others from foreseeable harm. Jankee v. Clark County, 2000 WI 64, ¶ 53, 235 Wis.2d 700, 612 N.W.2d 297. Put another way, every person has a duty Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 22 of 29 23 to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner v. Michael R., 2000 WI 68, ¶¶ 20, 22, 235 Wis.2d 781, 611 N.W.2d 906. In Wisconsin, a duty to use ordinary care is established whenever it is foreseeable to the defendant that his or her act or failure to act might cause harm to some other person. Id., ¶ 20. Under the general framework governing the duty of care, a "person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property." Id., ¶ 22, quoting WIS JI-CIVIL 1005. The Wisconsin Supreme Court has observed: As a general rule ... the existence of negligence is a question of fact which is to be decided by the jury. To hold that a person is not negligent as a matter of law, the court must be able to say that no properly instructed, reasonable jury could find, based upon the facts presented, that the defendants failed to exercise ordinary care. This court has stated that summary judgment does not lend itself well to negligence questions and should be granted in actions based on negligence only in rare cases. See, Ceplina, supra, 73 Wis.2d 338, 342-43. Moreover, the Supreme Court has often stated that "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear. Summary judgment is not to be a trial on affidavits and depositions." See, Lecus v. American Mut. Ins. Co., supra, 81 Wis.2d at 189. In support of its argument, PCA claims that it did not owe any duty to Inland or the plaintiffs on the date of the accident because it was not foreseeable to PCA that Inland employees would attempt to clean the silo in the manner that they did. In opposing PCA’s motion, plaintiffs have provided this court with ample evidence in the form of deposition testimony which, when viewed in a light most favorable to plaintiffs, create genuine issues of Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 23 of 29 24 material fact as to this negligence inquiry. All of the testimony referenced above demonstrates that PCA had actual notice or constructive notice that a dangerous situation existed on its property; it did nothing to adequately investigate the situation or alleviate the potential consequences of that situation; and did not inform Inland of the landfill fires that had occurred the day before. As such, PCA is not entitled to summary judgment as a matter of law. 4. Issues of Causation Do not Lend Themselves to Summary Judgment Based upon the Facts Presented in this Case and the Claims Alleged In its brief, under both claims of safe place liability and negligence, PCA contends summary judgment is appropriate because causation cannot be established. PCA’s arguments are, at best, misguided. First and foremost, under most circumstances, causation is not a proper issue for summary judgment, as it presents a question of fact. There are several potential causes of the accident in this case, including PCA permitting its silo to operate with knowledge of the existence of incomplete combustion and abnormal build up; PCA’s knowledge, both through its own employees as well as Inland’s employees, that the silo was hotter than ever before but doing nothing to alleviate condition prior to requiring Inland to clean the silo, despite a specific request by Inland employees to cool down the silo by introducing water into it; by having employees oversee both the operation of and cleaning of the silo without knowledge of the applicable safety precautions or OSHA regulations, to name but a few. Based upon the facts presented by plaintiffs, it is up to a jury to determine which act or acts by PCA were causative of the accident and plaintiffs’ injuries. Second, the rule of law established under the safe place statute when a plaintiff establishes negligence in violation of the safe place statute is that the plaintiff need not prove Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 24 of 29 25 causation, and the burden of proof is on the owner to rebut the presumption of causation. Frederick v. Hotel Investments, Inc., 48 Wis.2d 429, 434, 180 N.W.2d 562 (1970). In other words, when a safe-place violation has been proven, the law presumes the damage was caused by the failure to perform the safe-place duty to maintain the premises as safe as the nature of the place reasonably permits. See, Fondell v. Lucky Stores, 85 Wis.2d 220, 226, 270 N.W.2d 205, 209 (1978). Such a presumption is not conclusive in the face of rebutting testimony, and the chain of causation can be refuted by a defendant. Id., 85 Wis.2d at 230-31. However, the testimony cited by PCA in its brief does not come close to providing evidence that would rebut the presumption. PCA contends that “the testimony in the record shows that plaintiffs cannot establish that the burst of steam that killed Dustin and Dennis was casually related to the condition of the fly ash silo itself, absent Inland’s waterblasting on the date of the accident, and therefore causation cannot be established.” (PCA’s brief, p. 16) However, PCA’s own expert testified that PCA’s affirmative acts of permitting the silo to run with knowledge of incomplete combustion; with knowledge that the silo was hotter than it had ever been before; and PCA’s insistence to get the job done at all costs were causative of the accident, presenting this court with more than enough evidence to create an issue of fact on the question of causation to render summary judgment inappropriate. [See, PPSOF ¶¶100] This same testimony is enough to defeat PCA’s argument as it relates to plaintiffs’ negligence claim. 5. None of PCA’s Other Arguments Entitle it to Summary Judgment Finally, PCA contends it is entitled to judgment as a matter of law on plaintiffs’ claim of negligent infliction of emotional distress because plaintiffs cannot prove that PCA committed any acts of negligence. As that argument has already been addressed above, and as plaintiffs Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 25 of 29 26 have provided this court with sufficient evidence to deny PCA’s motion, this portion of PCA’s motion should also be denied. Similarly, PCA’s motion on the wrongful death cause of action must be denied on the same basis. Finally, PCA contends that because PCA’s actions do not rise to the level required for a punitive damage award, that claim also should be dismissed. PCA bases its argument on the contention that PCA never acted with a purpose to cause the result that occurred; was unaware that the result that ultimately did occur was substantially certain to occur based on its conduct; and that the record is devoid of any admissible evidence that permits even an inference that PCA was aware that an accident would occur. (PCA’s brief, p. 20) Wis. Stat. § 895.043(3) sets forth the legal standard for punitive damages as follows: The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. A defendant acts with "intentional disregard," within the meaning of the punitive damages statute if he or she: (1) acts with a purpose to cause the result or consequence, or (2) is aware that the result or consequence is substantially certain to occur from the person's conduct. See, Strenke v. Hogner, 2005 WI 25, ¶ 3, 279 Wis. 2d 52, 694 N.W.2d 296; see also, Berner Cheese Corp. v. Krug, 312 Wis.2d 251, 752 N.W.2d 800 (2008). Any such showing does not require an intent to cause injury; rather, it reconfirms the common-law principle that punitive damages can be premised on conduct that is a disregard of rights. See, Strenke, supra; see also, Forst v. SmithKline Beecham Corp., 602 F.Supp.2d 960 (E.D.Wis. 2009). At this stage of the proceedings, plaintiffs’ burden is simply to demonstrate whether evidence exists that, if believed by the jury, would be sufficient so that a reasonable jury could find that the plaintiffs had proved by clear and convincing evidence that PCA was aware that its Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 26 of 29 27 conduct was substantially certain to result in plaintiffs' rights being disregarded. See, Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis.2d 4, 694 N.W.2d 320 For instance, in Wischer, evidence that the subcontractor for a retractable roof failed to follow the load chart for the crane; failed to adhere to common practices used with other lifts at other sites; and failed to calculate maximum safe wind speed for a crane 45 stories high that was lifting, on a windy afternoon, a billboard-size roof panel that weighed almost a million pounds, was sufficient evidence that the subcontractor was aware that its conduct was substantially certain to result in the workers' rights being disregarded when they entered into a suspended basket in an attempt to attach a roof panel, so as to warrant submitting question of a punitive damages award to the jury. See, Wischer, supra. Similarly, for purposes of this action, all of the affirmative acts of negligence noted above, along with the numerous failures of PCA to attempt in any way to ensure the safety of the Inland workers while they were on PCA’s premises tending to PCA’s silo, would be sufficient evidence that PCA was aware that its conduct was substantially certain to result in Inland’s rights, and specifically Dustin and Dennis’ rights, being disregarded when they attempted to clean the silo. For that reason, summary judgment on this issue is inappropriate and should be denied. V. Conclusion PCA, as an owner of the premises in question and the silo which Inland was hired to clean, had a nondelegable duty under Wisconsin law to ensure that its premises was safe to those coming onto it. PCA completely failed in its duty. PCA not only employed managers and supervisors who simply had no knowledge of the safety procedures or OSHA regulations applicable to cleaning its silo; they had never even witnessed such a cleaning prior to the days Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 27 of 29 28 before the accident which forms the basis for this action; they ignored requests by those knowledgeable of the cleaning process that water needed to be introduced into the silo to continue the cooling process due to the excess heat and build up in the silo; and they ordered the cleaning process to move forward despite knowledge of a dangerous, hot condition on the premises. These facts, coupled with the fact that PCA never relinquished complete control over the silo, create genuine issues of fact of whether PCA is liable under the safe place statute. Similar arguments exist in regard to plaintiffs’ claims sounding in negligence. It is undisputed PCA owed a duty to those coming upon its premises to ensure their safety, and PCA did nothing to ensure that safety, as its employees had no idea what the applicable safety requirements even were. Moreover, enough evidence exists in regard to causation that summary judgment or that element should fail. As all of the acts noted above create genuine issues of fact on the issue of breach of duty and causation, PCA’s motion for summary judgment should be denied. The drastic remedy sought by PCA would result in plaintiffs losing their right to move forward and present these facts, which are to be taken in the light most favorable to plaintiffs at this stage of the litigation, to a jury for a determination of whether PCA should be held liable to plaintiffs for its negligence in causing the deaths of Dustin Hale and Dennis Gougeon. Any such result would be completely inappropriate in this action and plaintiffs request that PCA’s motion be denied in its entirety. Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 28 of 29 29 Dated at Madison, Wisconsin, this 17th day of January, 2017. PETERSON, JOHNSON & MURRAY, S.C. Attorneys for Plaintiffs, Jill Haverman, John Hale, and Estate of Dustin Hale By: ___s/Michael P. Crooks Michael P. Crooks State Bar No. 1008918 P.O. ADDRESS: Suite 900 3 South Pinckney Street Madison, WI 53703 (608) 256-5220 \\mad01\vol1\DOCS\1220\0135\00967676.DOC Case: 3:15-cv-00524-jdp Document #: 78 Filed: 01/17/17 Page 29 of 29