Behrendt v. Gulf Underwriters Insurance

Supreme Court of Wisconsin · 2009 · Torts

TortsNegligenceVicarious LiabilityScope of EmploymentForeseeabilitySummary Judgmentordinary carebreach

Facts

Silvan manufactured pressurized tanks and had a policy allowing employees to do personal side projects with company equipment and scrap materials, but the policy prohibited making pressurized vessels as side jobs and Silvan cut holes in scrap tanks to prevent pressurized use. Fisher, a Silvan employee, and a co-worker built a non-pressurized tank as a side job for Fisher's son-in-law's oil change business, using scrap metal and without payment to Silvan. After delivery, third parties modified the tank by plugging holes, adding valves, and eventually adding a fitting so compressed air could be used to empty it. Years later, while Behrendt was using the tank with air pressure at work, it exploded and injured him.

Issue

Whether Silvan could be held directly liable in negligence for maintaining a policy permitting employee side jobs that resulted in the tank's creation, and whether Silvan could be held vicariously liable for Fisher's conduct in building the tank. More specifically, the court considered whether any foreseeable risk made Silvan's conduct a breach of ordinary care and whether Fisher acted within the scope of employment.

Rule

Every person ordinarily has a duty to exercise ordinary care under the circumstances so as not to create an unreasonable risk of injury to others. In a specific case, a lack of foreseeable risk may support summary judgment on the ground that there was no breach of that duty, not that there was no duty. For vicarious liability, an employer is liable only if the employee's conduct was within the scope of employment, that is, actuated at least in part by a purpose to serve the employer; if the evidence supports only the conclusion that the conduct was outside the scope of employment, summary judgment is proper.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Madison, Wisconsin, North Forge Metalworks lets employees use scrap wood and shop tools after hours to build personal shelving, but expressly forbids any side project involving gas-fired equipment. To prevent misuse, the company removes burner ports from discarded heater shells before allowing them to leave. Five years later, a purchaser of an employee-made storage cabinet installs a homemade propane burner into one of those altered shells and is injured in an explosion.

If the injured purchaser sues North Forge for negligence based on its side-project policy, which is the strongest analysis?

Explanation. The majority opinion states that Wisconsin generally recognizes a duty of ordinary care in all activities. The proper inquiry here is not no duty, but whether the employer breached that duty. Where undisputed facts show the employer prohibited the dangerous category of item and took steps to prevent that use, and the injury depended on later third-party modifications, a court may hold as a matter of law that no reasonable jury could find breach because the risk was not foreseeable. (Derived from Behrendt v. Gulf Underwriters Insurance (n.d.).)