¶ 1 This is a review of a published decision of the court of appeals
¶ 2 As a general rule, a principal employer
¶ 3 We conclude that Tatera's negligence claim against FMC falls within the general rule that a principal employer is not liable
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶ 4 Walter Tatera died from malignant mesothelioma on September 20, 2004. Mesothelioma is a rare form of cancer in which malignant cells develop in the mesothelium, a membrane that covers and protects most of the body's internal organs. State v. Harenda Enters., Inc., 2008 WI 16, ¶ 79, 307 Wis.2d 604, 746 N.W.2d 25 (Ziegler, J., dissenting) (citing National Cancer Institute, Mesothelioma: Questions and Answers 1 (2002), http://www.cancer.gov/images/Documents/67e63bef-d6e0-4c0f-9c7a-e8aa56ed969c/Fs6_36.pdf). "Most people who develop mesothelioma have worked on jobs where they inhaled asbestos particles." Harenda, 307 Wis.2d 604, ¶ 79, 746 N.W.2d 25 (Ziegler, J., dissenting) (internal quotations omitted). From fall 1968 through 1993, Walter was employed full-time by B&M Machine Products (B&M), a machining shop owned by his father and located in Hales Corners, Wisconsin.
¶ 5 In 1967, FMC purchased Stearns Electric Company (Stearns), a Milwaukee-based manufacturer of industrial electric brakes that occasionally outsourced some of its machining work to B&M.
¶ 6 According to Richard Hotchkiss (Hotchkiss), who was employed by B&M from 1954 until July 1972, Stearns did not instruct B&M on how to machine the friction disks; instead, Stearns provided B&M with a drawing illustrating only the desired result:
¶ 7 At the time, Hotchkiss was unaware that the friction disks contained asbestos: "I didn't know if they had asbestos in them. At the time, there was no big thing about asbestos." However, he acknowledged the dust caused by the machining and testified that Walter's father installed a vacuum system to collect the dust in the shop. Hotchkiss wore a surgical mask only "[o]nce in a while" and did not train Walter to wear a mask while machining the friction disks:
Nevertheless, Hotchkiss reported that Walter wore a surgical mask while machining: "Well, I had a hard time breathing
¶ 8 Walter died from malignant mesothelioma on September 20, 2004. According to his death certificate, he had been diagnosed with the disease three months earlier.
¶ 9 On September 17, 2004, Tatera filed a complaint against FMC and several other defendants,
¶ 10 In its answer, FMC denied the allegations and asserted that it otherwise had no duty to Walter and was immune from Tatera's claims. On that basis, FMC moved for summary judgment on May 12, 2006, citing the general rule under Wagner that a principal employer (in this case, FMC on Stearns' behalf) is afforded immunity from tort claims asserted by employees of the principal's independent contractor (here, B&M). FMC argued that neither of the narrow exceptions applied: namely, Tatera alleged no affirmative acts of negligence on the part of FMC, and Walter's work of machining asbestos-containing friction disks was not extrahazardous.
¶ 11 In response, Tatera maintained that Restatement (Second) of Torts § 388,
¶ 12 Initially, on September 6, 2006, Judge Clare L. Fiorenza denied FMC's motion for summary judgment. However, on August 1, 2007, due to judicial rotation, Judge Timothy G. Dugan replaced Judge Fiorenza as the presiding judge in this case. FMC subsequently renewed its motion, 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 that the duty to warn under Restatement (Second) of Torts § 388 is inapplicable in this case, reasoning that § 388 applies only to manufacturers, and FMC did not manufacture the asbestos-containing friction disks. Second, the circuit court agreed with FMC that Wagner barred Tatera's negligence claim. According to the circuit court, Tatera alleged FMC's failure to warn, which does not constitute an affirmative act of negligence. In addition, relying on the Seventh Circuit Court of Appeals decision in Anderson v. Marathon Petroleum Co., 801 F.2d 936 (7th Cir.1986), the court concluded that the activity of working with asbestos "is inherently dangerous and not extrahazardous." Accordingly, the circuit court determined that neither of the exceptions to Wagner applied.
¶ 13 On May 12, 2009, the court of appeals reversed the circuit court's order granting summary judgment to FMC on the negligence claim. Tatera v. FMC Corp., 2009 WI App 80, ¶ 32, 319 Wis.2d 688, 768 N.W.2d 198. The court of appeals concluded that the circuit court erred in determining that Restatement (Second) of Torts § 388 is inapplicable to suppliers like FMC: "Nothing in Restatement (Second) of Torts § 388 itself or Wisconsin case law limits the applicability of the rule only to those who manufacture the property." Id., ¶ 37. According to the court of appeals, Tatera put forth sufficient proof to allow the § 388 claim to go forward, see id., ¶¶ 41-44, and in the least, genuine issues of material fact precluded summary judgment in FMC's favor, including whether FMC warned B&M that the friction disks contained asbestos and that asbestos was dangerous, id., ¶ 47. Finally, assuming without deciding that B&M was an independent contractor, the court of appeals held that Wagner's general rule of immunity did not bar Tatera's negligence claim against FMC because the two exceptions applied. Id., ¶ 49. First, the court concluded that FMC committed an affirmative act of negligence by supplying the asbestos-containing friction disks to B&M. Id., ¶ 51. Second, the court determined that the "ultra-hazardous material exception applie[d]" because asbestos is recognized as a dangerous material. Id., ¶¶ 52-53 (citing Wausau Tile, Inc. v. Cnty. Concrete Corp., 226 Wis.2d 235, 261, 593 N.W.2d 445 (1999)).
¶ 14 FMC petitioned this court for review, and we accepted on November 3, 2009. We now reverse the decision of the court of appeals.
II. STANDARD OF REVIEW
¶ 15 Whether the circuit court properly granted summary judgment to FMC is a question of law that we review independently, applying the same standards
¶ 16 In Wagner, this court joined the majority of other jurisdictions in holding that a principal employer is generally not liable in tort for injuries sustained by an independent contractor's employee while he or she is performing the contracted work. 143 Wis.2d at 400-01, 421 N.W.2d 835. We were persuaded that "[a]ny other holding would circumvent the bedrock principles of Wisconsin worker's compensation law." Id. at 401, 421 N.W.2d 835. An injured employee's right to recover worker's compensation benefits "shall be" the employee's "exclusive remedy" against his or her employer. Wis. Stat. § 102.03(2). We recognize that for purposes of § 102.03(2), a principal employer is not considered the direct "employer" of an independent contractor's employee, and pursuant to Wis. Stat. § 102.29(1), the injured employee is entitled to bring a tort action against "any other party." See Wagner, 143 Wis.2d at 385, 421 N.W.2d 835; Estate of Thompson v. Jump River Electric Coop., 225 Wis.2d 588, 593, 593 N.W.2d 901 (Ct.App.1999). Nevertheless, we concluded in Wagner that a principal employer should be generally protected from such tort liability because it has already assumed financial responsibility for injuries to the independent contractor's employees. 143 Wis.2d at 399-400, 421 N.W.2d 835. That is, the contract price between the principal employer and the independent contractor is presumed to include payment for worker's compensation coverage; thus, "[t]he employee has a remedy for the injury—worker's compensation—for which the principal employer has indirectly paid." Id. at 399, 421 N.W.2d 835.
¶ 17 Moreover, imposing liability on a principal employer for injuries sustained by an independent contractor's employee runs counter to the notion that the principal employer has relinquished control to the independent contractor. See Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 24, 273 Wis.2d 106, 682 N.W.2d 328. Therefore, the independent contractor, not the principal employer, is in the best position to guard against injuries to employees while performing the contracted work. See id., ¶ 27 ("If a principal does not control or have the right to control the day-to-day physical conduct of the agent, then the opportunity and incentive to promote safety and the exercise of due care are not present, and imposing liability without fault becomes difficult to justify on fairness grounds.").
¶ 18 At the same time, our case law recognizes two exceptions to the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor's employee while he or she is performing the contracted work. The first exception was recognized over three decades ago in Barth v. Downey Co., 71 Wis.2d 775, 783, 239 N.W.2d 92 (1976), and pertains to an affirmative act of negligence committed by the principal employer. That is, an independent contractor's employee may recover for injuries caused by a principal employer's affirmative act of negligence. Wagner, 143 Wis.2d at 388, 421 N.W.2d 835 (citing Barth, 71 Wis.2d at 783, 239 N.W.2d 92); see also Danks, 298 Wis.2d 348, ¶ 17, 727 N.W.2d 846. The second exception was articulated over two decades ago in Wagner and imposes liability on a principal employer for contracted work that qualifies as extrahazardous. 143 Wis.2d at 401, 421 N.W.2d 835. Accordingly, a principal employer may be liable for injuries sustained by an independent contractor's employee while he or she is engaged in an extrahazardous activity. Id.; see also Estate of Thompson, 225 Wis.2d at 595-96, 593 N.W.2d 901.
¶ 19 Tatera argues that we need not reach these two exceptions because in this case, the general non-liability rule protecting principal employers does not apply in the first instance. This is so, she asserts, because the relationship between FMC and B&M is not one of principal employer and independent contractor but instead one of bailor and bailee.
¶ 20 An independent contractor is a person or entity that contracts to perform services for another but "`is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.'" Kerl, 273 Wis.2d 106, ¶ 24, 682 N.W.2d 328 (quoting Restatement (Second) of Agency, § 2(3) (1958)); see also Wis. JI—Civil 4060. Whether the parties used the term "independent contractor" in their contract is not dispositive; rather, "the test looks beyond labels to factual indicia of control or right to control." Kerl, 273 Wis.2d 106, ¶ 24, 682 N.W.2d 328; see also Snider, 81 Wis.2d at 232, 260 N.W.2d 260 ("The most important single criterion in determining whether a person is an independent contractor is the degree to which the owner, rather than the independent contractor, retains the right to control the details of the work."). In this case, B&M is properly characterized as an independent contractor. B&M contracted to machine friction disks for Stearns, but B&M retained control with respect to performing the machining. The machining was conducted at B&M's shop, and according to Hotchkiss, a B&M employee, Stearns did not instruct the B&M employees how to machine the friction disks. So long as the friction disks "turned out like the picture," B&M was free to machine them in the manner it chose. See Snider, 81 Wis.2d at 232, 260 N.W.2d 260 (concluding that the plaintiff's employer was "indisputably an independent contractor" because the principal employer made no attempt to control the details of the contracted work and was
Accordingly, contrary to Tatera's argument otherwise, B&M served as an independent contractor to FMC, the principal employer.
¶ 21 Because we conclude that the relationship between FMC and B&M is properly characterized as one of principal employer and independent contractor, Wagner's general rule of non-liability controls. That is, unless one of the two exceptions applies, FMC is not liable in tort for injuries sustained by Walter, B&M's employee, while he was machining the friction disks. We address each of the exceptions in turn.
A. Affirmative Act of Negligence
¶ 22 A principal employer may be liable to an independent contractor's employee for injuries caused by the principal employer's affirmative act of negligence. Wagner, 143 Wis.2d at 388, 421 N.W.2d 835. This exception was first articulated in Barth, in which this court concluded that "something extra," meaning an affirmative act of negligence that increased the risk of injury, is necessary to sustain an action against a principal employer brought by an independent contractor's employee. 71 Wis.2d at 783, 239 N.W.2d 92; see also Danks, 298 Wis.2d 348, ¶ 17, 727 N.W.2d 846. The relevant inquiry is whether the alleged negligent act "was an act of commission constituting an affirmative act of negligence or whether it was an act of omission which does not rise to the level of an affirmative act." Wagner, 143 Wis.2d at 389, 421 N.W.2d 835. Accordingly, even though the traditional concept of negligence would impose liability for a negligent omission, in addition to a negligent affirmative act, see Wis. JI—Civil 1005, Wisconsin case law precedent requires more than an omission in order to impose liability on a principal employer for injuries sustained by an independent contractor's employee. The principal employer's alleged negligent act must be affirmative.
¶ 23 For example, in Wagner, we concluded that the act of negligently hiring an independent contractor to perform demolition work did not constitute an affirmative act of negligence but rather an omission. 143 Wis.2d at 390, 421 N.W.2d 835. The defendants' failure to check the independent contractor's credentials could not be viewed as active misconduct; instead, it was "`passive inaction or a failure to take steps to protect' the plaintiff from harm." Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984)); see also Snider, 81 Wis.2d at 239, 260 N.W.2d 260 (concluding that the plaintiffs' argument that the principal employer's failure to furnish supervisory control over its independent contractors constituted an affirmative act of negligence "defie[d] the commonly accepted meaning of `affirmative'").
¶ 24 In Estate of Thompson, the estate of an independent contractor's employee sought to hold the principal employer liable for the employee's death on account of the principal employer's alleged affirmative acts of negligence. 225 Wis.2d at 600-01, 593 N.W.2d 901. In that case, Thompson, employed by Emblom Brothers Construction Company (Emblom), was fatally electrocuted while removing a utility pole carrying energized lines. Id. at 591, 593 N.W.2d 901. Emblom had a contract with
¶ 25 Thompson's estate argued that it was permitted to bring an action in tort against Jump River, despite the principal employer's general non-liability, on the grounds that Jump River committed affirmative acts of negligence. Id. at 600, 593 N.W.2d 901. In particular, the estate alleged that Jump River committed various safety violations, negligently designed the new electrical distribution line, failed to incorporate safety precautions into the design, allowed the support wire to hang from the old utility pole before the pole's removal, and failed to remedy and take precautions against the danger those situations presented. Id. The estate further alleged that the circuit court erroneously granted Jump River's motion for summary judgment because a genuine issue of material fact existed concerning whether Jump River knew or should have known of the dangerous safety violations. Id.
¶ 26 The court of appeals affirmed the circuit court's order granting summary judgment to Jump River, concluding that Jump River's alleged negligent conduct did not constitute affirmative acts of negligence but instead "`passive inaction or a failure to protect the plaintiff from harm.'" Id. at 601, 593 N.W.2d 901 (quoting Wagner, 143 Wis.2d at 390, 421 N.W.2d 835). The court determined that Jump River's alleged negligence "lay in its failure to discover and act regarding safety violations," id., and its "fail[ure] to incorporate safety precautions in its allegedly dangerous design," id. at 602, 593 N.W.2d 901, both of which constituted passive inaction for which Jump River could not be held liable. Id. at 601-02, 593 N.W.2d 901.
¶ 27 Similarly, in Danks, the court of appeals held as a matter of law that a principal employer was not liable for injuries sustained by the independent contractor's employee because neither the principal employer nor its employee committed affirmative acts of negligence. 298 Wis.2d 348, ¶ 2, 727 N.W.2d 846. In that case, Danks, an employee of C&R Concrete (C&R), was injured while assisting in loading a truss onto a truck at a construction site. Id., ¶ 4. C&R had been hired by Stock Building Supply, Inc. (Stock) to load trusses by crane onto Stock's flatbed truck. Id., ¶ 1. Stock's employee, Wagner, drove to the construction site in the truck and parked it. Id., ¶¶ 11-12. Wagner then stood on the flatbed and used hand signals to direct the crane operator, C&R's owner, as to the direction the truss should move and when it should be lowered. Id., ¶ 12. Danks was positioned at the rear of the flatbed, using a two-by-four to guide the truss onto the truck. Id. When the truss was about eight feet above the truck bed, it fell, and Danks was discovered laying on the street near the rear of the truck. Id., ¶ 13. Danks suffered a spinal cord injury from the accident. Id., ¶ 4.
¶ 28 The circuit court dismissed Danks' tort claims against Stock and Wagner, and Danks appealed. Id., ¶ 1. Danks argued that Stock was not protected by the general rule of non-liability because, inter alia, Wagner committed an affirmative act of negligence: he was in a position to see that the truss was improperly attached to the crane cable but failed to warn Danks or C&R's owner that the truss was being lifted and moved in an improper and hazardous manner. Id., ¶ 33. The court of
¶ 29 Turning to the facts of the case now before this court, we conclude that FMC's alleged negligent conduct did not constitute an affirmative act of negligence. The allegations in Tatera's complaint are grounded in FMC's alleged omission, namely, the failure to warn Walter and B&M of the health hazards associated with asbestos and asbestos-containing products. Specifically, the complaint alleges five negligent acts: (1) the failure to adequately warn of the health hazards of asbestos; (2) the failure to warn of the danger and harm of the asbestos after the products or equipment were installed at the premises; (3) the failure to investigate or test for the health effects of asbestos prior to distribution and sale; (4) the failure to instruct in the use of precautionary measures relating to asbestos-containing products; and (5) the manufacture, supply, installation, or removal of unsafe asbestos-containing products.
¶ 30 The fifth negligent act alleged against FMC relates to FMC supplying the asbestos-containing friction disks to B&M to be machined. Though not as explicit as the previous four, this act is also grounded in FMC's alleged failure to warn. Contrary to Tatera's argument and the court of appeals' conclusion otherwise, see Tatera, 319 Wis.2d 688, ¶ 51, 768 N.W.2d 198,
¶ 31 Tatera attempts to create an exception to the general rule protecting principal employers from liability by imposing traditional negligence liability under § 388 onto a principal employer that supplies a chattel to an independent contractor to be machined. However, permitting such liability to attach would completely undermine our three decades of precedent that requires an affirmative act of negligence. Liability for supplying a dangerous chattel is necessarily premised in failing to warn of the chattel's dangerousness, an omission. See Restatement (Second) of Torts § 388(c); see also Strasser, 236 Wis.2d 435, ¶ 58, 613 N.W.2d 142; Wis. JI—Civil 3242. The affirmative act exception would be eviscerated if a principal employer's liability is met through an omission. We decline to so hold and thereby overturn over three decades of precedent. Because FMC's alleged negligent conduct did not constitute an affirmative act of negligence, the first exception to Wagner's general rule of non-liability is here inapplicable.
B. Extrahazardous Activity
¶ 32 A second exception renders an otherwise protected principal employer liable for injuries sustained by an independent contractor's employee. A principal employer may be liable for injuries sustained by an independent contractor's employee while he or she is engaged in an extrahazardous activity. Wagner, 143 Wis.2d at 401, 421 N.W.2d 835; see also Estate of Thompson, 225 Wis.2d at 595-96, 593 N.W.2d 901. An extrahazardous activity
¶ 33 The distinction between an extrahazardous activity and an inherently dangerous activity is not always obvious, and accordingly, some examples are instructive. In Estate of Thompson, the court of appeals held that working with high voltage electricity is inherently dangerous, not extrahazardous. 225 Wis.2d at 596, 593 N.W.2d 901. The court concluded that when Thompson was electrocuted, he was not engaged in an activity in which the risk of harm remained unreasonably high no matter how carefully it was undertaken. Id. Instead, steps could have been taken to minimize the risk of Thompson's injury, including wearing rubber gloves, using mechanical equipment to remove the utility pole, or covering the pole. Id. As the court of appeals recognized, in order for an activity to be taken out of the realm of extrahazardous, "the risk of injury need not be eliminated, just minimized." Id.
¶ 34 The Seventh Circuit Court of Appeals decision in Anderson is especially on point. In that case, the court held that sandblasting oil storage tanks could not be
¶ 35 The Seventh Circuit declined to except Anderson's tort claim from the general rule that an independent contractor's employee has no common law tort right against the principal employer. Id. at 940. According to the record, sandblasting could not be classified as abnormally dangerous because sandblasters could take steps to reduce the risk of serious injury. Id. Specifically, "if the sandblaster is equipped not with the ridiculous `desert hood' but with a proper face mask to which a fresh-air hose is attached, so that the worker is breathing fresh air rather than air filled with silicon dust, the worker is in no danger." Id.
¶ 36 In this case, we conclude as a matter of law that machining an asbestos-containing friction disk is not an extrahazardous activity because steps may be taken to minimize the risk of injury.
¶ 37 In summary, we conclude that FMC's alleged negligent conduct did not constitute an affirmative act of negligence, and machining an asbestos-containing friction disk is not an extrahazardous activity. Therefore, Tatera's negligence claim against FMC is not excepted from the general rule articulated in Wagner. FMC, as a principal employer, is not liable in tort for injuries sustained by Walter, the independent contractor's employee, while he was performing the contracted work of machining asbestos-containing friction disks. Because we hold as a matter of law that FMC is not liable in tort to Tatera, Tatera's negligence claim under Restatement (Second) of Torts § 388 is necessarily barred.
¶ 38 We conclude that Tatera's negligence claim against FMC falls within the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor's employee while he or she is performing the contracted work. In this case, neither of the two exceptions to that general rule applies. First, even accepting Tatera's allegations as true, we conclude that FMC's conduct did not constitute an affirmative act of negligence. Rather, Tatera's allegations of negligence are grounded in FMC's alleged omissions. By definition, the negligent failure to warn, failure to investigate or test, and failure to instruct are omissions, not affirmative acts of negligence. Moreover, the act of supplying asbestos-containing friction disks does not itself constitute an affirmative act of negligence because liability for such an act is necessarily premised in failing to warn, an omission. Second, we conclude that machining an asbestos-containing friction disk does not qualify as an extrahazardous activity because steps may be taken to minimize the risk of injury. Because we hold as a matter of law that FMC is not liable in tort to Tatera, Tatera's negligence claim under Restatement (Second) of Torts § 388 is necessarily barred.
The decision of the court of appeals is reversed.
¶ 39 N. PATRICK CROOKS, J. (dissenting).
This case clearly demands the opposite result from that reached by the majority. The plaintiffs, Vicki Tatera and the Estate of Walter Tatera (collectively, Tatera), at a minimum, established their right to a trial on their claim for negligence based on an affirmative act of the defendant, FMC, in which it supplied Walter Tatera's employer with asbestos-containing friction disks for grinding without warning the employer of the disks' dangerous content. Accordingly, granting summary judgment for the
¶ 40 Summary judgment is a drastic remedy, primarily because it denies the nonmoving party a trial. Accordingly, it is the circuit court's and reviewing courts' duty to consider these motions carefully and prudently. In this case, the circuit court did not fulfill its duties in that regard, and the majority, by affirming that court's conclusion, fails to fulfill its duties as well.
¶ 41 Rather, like the court of appeals, I would conclude that summary judgment here is inappropriate for the following two reasons. First, there are genuine issues of material fact in this case as to whether Tatera's proofs support the elements of Restatement (Second) Torts § 388 (1965) (hereinafter described as "§ 388" or "section 388"). Second, I am satisfied that to the extent that it is proper under these circumstances to apply Wagner v. Continental Cas. Co., 143 Wis.2d 379, 388, 421 N.W.2d 835 (1988) (holding that generally, contractors are not liable in tort for the injuries to employees of a subcontractor), it does not bar Tatera's claim because the affirmative act exception to its rule applies. Accordingly, it seems quite inappropriate to grant summary judgment for FMC in this situation, and Tatera should have an opportunity to move forward to a trial. Hence, I dissent.
¶ 42 To demonstrate how far afield the circuit court's decision—and the majority's affirmation of it—stray from the principles underlying summary judgment, it is important to discuss the methodology for assessing motions for summary judgment at the circuit court and appellate court levels. A court should grant summary judgment "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 judgment as a matter of law." Wis. Stat. § 802.08(2) (emphasis added). As we have observed, summary judgment is a "drastic remedy" that denies the nonmoving party a trial. Lecus v. Am. Mut. Ins. Co., 81 Wis.2d 183, 189, 260 N.W.2d 241 (1977). Reviewing a motion for summary judgment should "not ... be a trial on affidavits and depositions." Id. The moving party must "leave no room for controversy." Schlumpf v. Yellick, 94 Wis.2d 504, 512, 288 N.W.2d 834 (1980).
¶ 43 We explained the methodology for a circuit court to use when reviewing a motion for summary judgment in Grams v. Boss, 97 Wis.2d 332, 294 N.W.2d 473 (1980). First, the circuit court "examines the moving party's ... affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under [Wis. Stat. § ]802.08(2)." Id. at 338, 294 N.W.2d 473. To successfully make a prima facie case for summary judgment, "a moving defendant must show a defense [that] would defeat the plaintiff." Id.
¶ 44 Our methodology in reviewing a motion for summary judgment is identical to that of the circuit court, and our review of the decision of the court of appeals is to review the circuit court's decision to grant summary judgment. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15,
¶ 45 As the majority observed, Vicki Tatera filed a claim for negligence against FMC
¶ 46 FMC moved for summary judgment on the basis that the rule in Wagner, protecting a principal employer from liability for torts committed against employees of its independent contractors, prevented Tatera's suit from moving forward.
¶ 47 To accompany their response to FMC's motion for summary judgment, Tatera provided appropriate evidence to support their claim. First, Tatera included excerpts of a deposition of Raymond Mazurek (Mazurek), an FMC employee, that indicated that (1) FMC purchased asbestos-containing friction disks in the 1970s and 1980s; (2) that FMC knew that some of the materials on those disks contained asbestos; (3) in 1974 and 1975, FMC tested some of those materials for asbestos content and that that testing produced
¶ 48 Tatera also provided an affidavit from Richard Hatfield (Hatfield), a scientist who was knowledgeable about asbestos-containing brake and clutch materials, and who had conducted studies measuring "how much asbestos is released from the abrasion of brakes, clutches[,] and friction wear dust." His studies indicated that asbestos-containing friction materials can release asbestos fibers from minimal abrasion to the material's surface. His studies indicated that, in fact, asbestos dust is present in boxes containing unused brakes or clutches. Accordingly, he explained that it is unnecessary "for asbestos-containing friction materials to undergo substantial changes before these materials will release asbestos fibers."
¶ 49 Finally, Tatera also produced an affidavit from Dr. Henry Anderson, a physician who specialized in occupational and environmental medicine, as well as diseases caused by asbestos exposure. Dr. Anderson stated that, in his opinion "the vast majority of malignant mesothelioma cases are caused by asbestos exposure." He further indicated that "all" exposures to asbestos occurring more than ten years before the diagnosis of malignant mesothelioma contribute to the disease; that malignant mesothelioma, in general, "has a latency period of  to  years after exposure to asbestos"; and that there is no known level of "safe" exposure to asbestos, below which there would be no risk of developing malignant mesothelioma.
¶ 50 After a hearing, the circuit court granted summary judgment to FMC and dismissed Tatera's negligence claim, holding that § 388 did not apply to FMC because that section applied only to manufacturers, and FMC did not manufacture the disks. The circuit court further concluded that because Tatera was the employee of an independent contractor, the general rule in Wagner barring claims against a contractor by an injured employee of a subcontractor applied, and neither of the two exceptions to that rule applied. Because of that, the circuit court reasoned, FMC was not liable. It granted FMC's motion for summary judgment and dismissed Tatera's negligence claim.
¶ 51 The court of appeals reversed, holding that (1) § 388 applies to suppliers such as FMC; (2) Wagner did not bar Tatera's claim because both the affirmative act and extrahazardous activity exceptions applied; and (3) Tatera had offered sufficient proofs that there were genuine issues of material fact as to whether the claim satisfied the elements of § 388.
¶ 52 To reiterate, this court's task, in reviewing the decision of the court of appeals, is to review the circuit court's decision to grant summary judgment to FMC. Consistent with our summary-judgment methodology, then, this court is to look to Tatera's proofs, as the nonmoving party, in the light most favorable to it. Based on that examination, we will not reverse the circuit court's grant of summary judgment unless the record reveals that there are genuine issues of material fact and that the moving party—in this case, FMC—is not entitled to judgment as a matter of law. See Strasser v. Transtech Mobile
¶ 53 To begin, there appear to be open questions presented by the parties that the majority does not acknowledge. Namely, for an employee in Walter Tatera's situation, must the rule in Wagner limiting the liability of a principal for torts involving the employee of an independent contractor apply?
¶ 54 In my view, regardless of whether Wagner applies exclusively, § 388 applies exclusively, or both apply, FMC is not entitled to summary judgment in this case. Again, the methodology we have set forth for reviewing a grant of summary judgment requires us to determine (1) whether Tatera raised genuine issues of material fact and (2) whether FMC is entitled to judgment as a matter of law. I agree with the court of appeals' conclusion that § 388 is applicable to this case; that Tatera set forth genuine issues of material fact and as to the elements of § 388; and that, to the extent that Wagner applies, it does not bar Tatera's claim. Accordingly, FMC is not entitled to judgment as a matter of law.
¶ 55 First, a grant of summary judgment for FMC is improper because Tatera has, at a minimum, established a prima facie case under § 388. Section 388, which Wisconsin has adopted, see Strasser, 236 Wis.2d 435, ¶ 58, 613 N.W.2d 142, provides:
¶ 56 I agree with the court of appeals' conclusion that § 388 applies to FMC as a supplier. The text of the rule clearly designates that it applies to suppliers. The comments attached to the section support that conclusion. See Restatement (Second) of Torts § 388 cmt. a (describing supplier as "one who lends" a chattel); id., cmt. c ("These rules, therefore, apply to sellers, lessors, donors, or lenders, irrespective of whether the chattel is made by them or by a third person."); id., cmt. d ("One supplying a chattel to be used or dealt with by others is subject to liability under the rule stated in this Section...."). Here, FMC is a supplier, given that it provided the friction disks to B&M for grinding. Accordingly, nothing clearly precludes § 388 from applying under these circumstances.
¶ 57 Looking at Tatera's proofs in the light most favorable to Tatera, I also agree with the court of appeals that Tatera established a prima facie case under § 388. I reach that conclusion on the basis of Tatera's proofs, including (1) Mazurek's deposition describing FMC's knowledge of the friction disks' asbestos content, the extent to which FMC used material data safety sheets, and that to Mazurek's knowledge, FMC never placed warnings on the products; (2) Dr. Hatfield's affidavit as to the causal relationship between asbestos exposure and diagnosis of malignant mesothelioma; and (3) Hatfield's studies indicating that asbestos-containing products such as friction disks will release asbestos fibers absent any "substantial changes" to the material.
¶ 58 In its briefs to this court, FMC does not put forth arguments as to whether it believes that Tatera failed to state facts supporting the elements of § 388. Rather, it endorses the circuit court's conclusion that § 388 is inapplicable and argues, alternatively, that even if Tatera had asserted a claim of liability against FMC pursuant to § 388, that claim is still barred by Wagner because the claim is not premised upon an "affirmative act" of negligence and because machining asbestos-containing friction disks is not extrahazardous. That is the approach that the majority appears to adopt although it does not state as much or explain its rationale.
¶ 59 Nevertheless, assuming that Wagner is applicable to this case, FMC is not entitled to judgment as a matter of law because at least one of the exceptions to its rule shielding principals from liability— the affirmative act exception—applies here.
¶ 60 In Wagner, we 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. Wagner, 143 Wis.2d at 388, 421 N.W.2d 835. First, a principal employer may be liable for injuries to the independent contractor's employee "caused by the principal employer's affirmative act of negligence." See id. Second, if the employee's injuries occur "while performing inherently dangerous activities," a principal employer may be held liable. See id. My focus is on the affirmative act of negligence exception.
¶ 61 This court has had only a few opportunities to explain what sort of behavior might constitute an affirmative act of negligence. In those cases, it is notable that we have yet to explain what an affirmative act is; rather, we have only explained what an affirmative act is not. For example, in Wagner, a contractor hired a subcontractor
¶ 62 Similarly, in Barth v. Downey, 71 Wis.2d 775, 782-84, 239 N.W.2d 92 (1976), the first case in which we articulated the "affirmative act" standard, we held that the failure to provide a safe working environment was not an affirmative act. Likewise, other cases 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 a safe working environment not to be affirmative acts. See Danks, 298 Wis.2d 348, ¶ 26, 727 N.W.2d 846 (failure to check credentials of a subcontractor is not an affirmative act); Estate of Thompson, 225 Wis.2d at 601, 593 N.W.2d 901 (failure to discover and act upon safety violations is not an affirmative act).
¶ 63 The majority seems to understand those cases to stand for the proposition that an allegation that includes any "failure" to do something is necessarily an omission and therefore not an affirmative act of negligence. See majority op., ¶ 3 (stating that the act here cannot be an affirmative act of negligence "because liability for such an act is necessarily premised in failing to warn, an omission"); ¶ 31 (stating that to permit liability to attach to a principal where an omission is present "would completely undermine our three decades of precedent that requires an affirmative act of negligence").
¶ 64 That conclusion appears to be indefensible. Negligence, by its very definition, includes some sort of failure or omission. See Wis. JI—Civil 1005 ("A person is negligent when (he) (she) fails to exercise ordinary care.") (emphasis added). It is impossible to have an "affirmative act of negligence" without some sort of failure to act occurring somewhere in the chain of causation. An affirmative act of negligence, at the very least, must include a combination of an affirmative act linked with an act of negligence that, when taken together, could have caused the harm alleged.
¶ 65 Here, the act is patently unlike the acts described in the above cases: FMC supplied B&M with asbestos-containing disks for B&M's employees to grind without warning them of the disks' content. Supplying the asbestos-containing disks is an affirmative act, failing to warn of the disks' dangerous content is the act of negligence, and the harm alleged is death by a disease known to be caused by exposure to asbestos. If this act is not an affirmative one, I fail to see what act could possibly fit within the affirmative act exception.
¶ 66 In some regard, it appears that the majority recognizes that point. To avoid reaching the same conclusion that I do, however, it breaks down the act in question by its individual components and disposes of each component on the basis that it is insufficient—on its own—to be an affirmative act of negligence. Its bases its description of FMC's alleged affirmative act from Tatera's complaint, word for
¶ 67 Yet, the majority then considers the fifth allegation—supplying asbestos-containing friction disks—and knocks it down with the opposite reasoning by which it dismissed the first four. It writes, "The act of supplying the asbestos-containing friction disks is no doubt `affirmative,' but the mere fact that FMC supplied the disks to B&M is not enough to impose liability on FMC for committing an affirmative act of negligence." Majority op., ¶ 30 (majority's emphasis). By the majority's reasoning, it seems, FMC may have acted affirmatively in that fifth allegation but not negligently.
¶ 68 I believe that the majority's logic is twisted. If the first four allegations are not affirmative acts because they merely state allegations of negligence, how could the affirmative act, i.e., supplying the disks, not fill that gap? Essentially, Tatera loses the opportunity to move forward to trial, not so much based on an application of law to the circumstances presented in this case, but because Tatera's counsel formatted the allegations in the complaint in the manner that it did.
¶ 69 Because FMC committed an affirmative act when it provided asbestos-containing friction disks to B&M for its employees to grind and manipulate without warning of the dangerous content, Wagner—to the extent that case applies—does not operate to bar Tatera's claim.
¶ 70 Here, the majority commits a grievous and fundamental error by failing to abide by the standards and principles underlying summary judgment. In so doing, it robs Tatera of the opportunity and right to present this case to a jury.
¶ 72 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
We note that Tatera did not advance her bailment argument in the circuit court or court of appeals nor did she raise the issue in her response to FMC's petition for review. To the contrary, up until she filed her brief to this court, Tatera appeared to concede that FMC and B&M's relationship was one of principal employer and independent contractor. In FMC's brief in support of its motion for summary judgment, FMC stated that "plaintiff has not disputed FMC's assertion that Mr. Tatera's employer, B&M Machine, was the independent contractor and that Stearns was its principal." In her brief in response, Tatera did not quarrel with that statement. Arguments raised for the first time on appeal are generally deemed forfeited. See Marotz v. Hallman, 2007 WI 89, ¶ 16, 302 Wis.2d 428, 734 N.W.2d 411. Furthermore, "unless ordered otherwise by the supreme court," a petitioning party is precluded from raising or arguing an issue not set forth in the petition. Wis. Stat. (Rule) § 809.62(6).
Moreover, assuming without deciding that the contract to machine friction disks was indeed a bailment transaction, Tatera points to no authority for her apparent belief that a relationship of bailor and bailee and a relationship of principal employer and independent contractor are mutually exclusive. Contra Rose v. Miller & Co., 432 So.2d 1237, 1239 (Ala. 1983) (recognizing the general rule that the owner of a chattel who surrenders entire control thereof to an "independent contractor or bailee" is not liable for injuries to an employee of that independent contractor). The fact that independent contractor cases often involve a contract for construction, as opposed to the machining of goods, does not mean that a contract for construction is a prerequisite to the classification of independent contractor. Instead, the focus of the inquiry is "factual indicia of control or right to control." Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 24, 273 Wis.2d 106, 682 N.W.2d 328.
It is Judge Dugan's November 2007 grant of summary judgment for FMC that is the focus of our review. However, I believe that it is significant that Judge Fiorenza denied FMC's first motion for summary judgment, which appeared to be roughly identical to the motion assessed by Judge Dugan.
Additionally, I am unaware of any cases from this court or the court of appeals applying Wagner or the affirmative act analysis for purposes of determining liability of a principal in tort in a case involving chattel. The few published cases from Wisconsin appellate courts applying Wagner are construction and utility cases, not cases involving a chattel. See, e.g., Danks v. Stock Bldg. Supply, Inc., 2007 WI App 8, 298 Wis.2d 348, 727 N.W.2d 846 (involving an injury to an employee of a subcontractor hired to load a truss at construction site); Estate of Thompson v. Jump River Elec. Coop., 225 Wis.2d 588, 593 N.W.2d 901 (Ct.App.1999) (involving an injury to an employee of a subcontractor hired to remove utility poles). Moreover, the pre-Wagner cases from our appellate courts in which the courts assessed whether a principal committed an affirmative act for purposes of establishing liability also were construction or utility—not chattel—cases. See, e.g., Barrons v. J.H. Findorff & Sons, Inc., 89 Wis.2d 444, 278 N.W.2d 827 (1979) (construction case); Snider v. N. States Power Co., 81 Wis.2d 224, 260 N.W.2d 260 (1977) (utility case).