Behrendt v. Gulf Underwriters Insurance Co.
768 N.W.2d 568 (2009)
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Rule of Law:
An employer is not vicariously liable for an employee's acts that are not intended to serve the employer's purpose, nor is it directly negligent for injuries caused by an unforeseeable, third-party modification to an item created by an employee under a personal-use policy.
Facts:
- Silvan Industries, a manufacturer of pressurized tanks, had a policy permitting employees to use company equipment and scrap materials for personal 'side jobs'.
- The policy expressly prohibited employees from making pressurized tanks for personal use.
- Silvan employee James Fisher, assisted by a co-worker, used scrap metal to build a 55-gallon, non-pressurized oil collection tank as a favor for his son-in-law, Daniel Linczeski.
- In compliance with company policy to prevent pressurization of scrapped or side-project tanks, holes were cut into the tank before it left Silvan's premises.
- Linczeski subsequently hired a plumber to plug the holes and install valves on the tank.
- Later, Linczeski further modified the tank by adding a fitting for an air hose, enabling the tank to be emptied using air pressure.
- Approximately ten years after the tank was built, Kenneth Behrendt, an employee of Linczeski, was using the pressurized tank when it exploded, causing him serious injury.
Procedural Posture:
- Kenneth Behrendt sued Silvan Industries, Inc. in Marinette County Circuit Court (trial court) for negligence and vicarious liability.
- The circuit court granted summary judgment in favor of Silvan, dismissing both claims.
- Behrendt, as appellant, appealed the summary judgment to the Wisconsin Court of Appeals (intermediate appellate court).
- The court of appeals affirmed the circuit court's decision, finding no vicarious liability and no duty of care for the negligence claim.
- Behrendt sought review of the court of appeals' decision from the Wisconsin Supreme Court.
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Issue:
Under Wisconsin law, is an employer (1) vicariously liable for an employee's creation of a defective product as a personal 'side job,' or (2) directly negligent for its policy allowing such side jobs, when the product was later modified by a third party in an unforeseeable manner, leading to an injury?
Opinions:
Majority - N. Patrick Crooks, J.
No. The employer is neither vicariously liable nor directly negligent. For vicarious liability to attach, an employee's conduct must be 'actuated, at least in part, by a purpose to serve the employer.' Fisher built the tank for his own personal reasons as a favor to a family member, not to serve Silvan. The general morale boost from the company's side-job policy is too indirect to bring Fisher's specific actions within the scope of employment. Regarding direct negligence, while Wisconsin law recognizes a universal duty of ordinary care, Silvan did not breach this duty. A breach is determined by foreseeability. It was not foreseeable as a matter of law that a non-pressurized tank, built with holes specifically to prevent pressurization, would be substantially modified by third parties years later, turned into a pressure vessel, and subsequently explode. Because the risk of harm was unforeseeable, no reasonable person could find that Silvan breached its duty of care by having its side-job policy.
Concurring - Shirley S. Abrahamson, C.J.
Yes, I agree with the result. I write separately to critique the other concurring opinion's attempt to draw a sharp distinction in negligence analysis between misfeasance (a negligent act) and nonfeasance (a negligent omission). This distinction is tenuous, misleading, and a 'throwback to earlier but not better days.' Wisconsin negligence law has a unified standard applicable to all conduct, whether it is an act or an omission, which is whether the defendant's conduct was consistent with the standard of reasonable and ordinary care under the circumstances.
Concurring - Patience Drake Roggensack, J.
Yes, I agree with the result. I write to clarify that the analysis of duty in a negligence claim should differ depending on whether the allegation is based on a failure to act (nonfeasance) or an affirmative act negligently performed (misfeasance). In a failure-to-act case, the initial focus is on the scope of the duty itself to determine if action was required. In a negligent-act case, like this one (where the affirmative act was creating the side-job policy), the analysis properly focuses on breach. The majority correctly analyzes this case as one involving an affirmative act and appropriately focuses on whether Silvan breached its duty of care.
Analysis:
This decision refines Wisconsin's negligence framework by distinguishing between the concepts of duty and breach. It reaffirms the state's broad, Palsgraf-dissent-based view that a duty of ordinary care is nearly universal. However, it moves the critical foreseeability analysis from the question of duty to the question of breach. By holding that an unforeseeable risk of harm means there is no breach of duty as a matter of law, the court provides a mechanism to dismiss claims based on highly attenuated chains of events without narrowing the fundamental legal concept of duty. This precedent will guide lower courts to grant summary judgment in cases where harm results from bizarre or unforeseeable intervening causes, focusing on the reasonableness of the defendant's conduct rather than the existence of a duty.
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