In a 4-3 decision authored by Justice Crooks, joined by Justices Roggensack, Ziegler, and Gableman (Chief Justice Abrahamson concurring/dissenting, joined by Justices Bradley and Prosser) the Supreme Court held that a property owner may be held liable for damage caused by an independent contractor hired to perform work on his or her property. The case is Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37.

Background

The facts in the case are straight forward. The defendant (Robert Leuthi) hired an independent contractor to spray herbicide on his property. The spraying drifted to the plaintiffs/neighbors’ property, damaging a number of trees. The plaintiffs sued the the property owners for the negligence of the independent contractor. The circuit court ruled in favor of the defendant/employer, while the court of appeals reversed holding that the act of spraying was “inherently dangerous” and thus was an exception to the rule exempting liability of the employer for the actions of an independent contractor.

Wisconsin Supreme Court Decision

The Supreme Court engaged in a lengthy analysis of Wisconsin’s law as it relates to the negligence of independent contractors and the “inherently dangerous” exception. The Court explained the general rule that a principal employer is not generally liable for an independent contractor’s negligence. However, the exception to that rule is that if the independent contractor was performing an “inherently dangerous” activity which caused harm to the plaintiff, the employer (the defendant in this case) could be liable for the independent contractor’s negligence. The Court further explained that the employer can still avoid liability depending on whether the employer exercised “ordinary care.” Therefore, the Court held in this case that the activity of spraying an herbicide could be considered an inherently dangerous activity, yet the employer could still not be liable for the independent contractor’s negligence if it is determined that the employer exercised “ordinary care.” The Court therefore remanded the decision back to the lower court to decide: 1) whether the employer failed to use ordinary care with regard to any danger inherent in the herbicide spraying that he know or had reason to know about, and 2) if so, whether any harm that occurred was caused by the spraying.

Concurring/Dissenting Opinion

The dissent agreed with the majority that the matter was to be remanded to the circuit court to determine whether the independent contractor was negligent in damaging the neighbor’s property. However, the dissent disagreed that the lower court was to decide whether the property owner failed to use “ordinary care” with regard to the activity of spraying the herbicide. Instead, the dissent argued that because it was already determined that the spraying of herbicide was inherently dangerous activity, there was no need to inquire into the property owner’s level of care. According to the dissent, the determination that the activity of spraying herbicide was inherently dangerous means that the employer was automatically liable for the independent contractor’s negligence.

In an unanimous decision authored by Justice Patrick Crooks (Justice David Prosser not participating), the Wisconsin Supreme Court held that a sheriff deputy could not seek underinsured motorist coverage under her employer’s insurance policy when she was struck by a vehicle in a cross-walk. The case is Jackson v. Wisconsin County Mutual Ins. Corp., 2014 WI 36.

Background
The plaintiff, Rachelle Jackson, was working as a deputy sheriff for Milwaukee County at the Milwaukee airport. While on duty on a sidewalk, a motorist approached Jackson and asked her for directions.

After providing the driver with directions, Jackson directed the driver back out into the traffic. As Jackson walked in the crosswalk in front of the vehicle, the driver unexpectedly moved forward and hit Jackson, injuring her.

Jackson sued many parties, including her employer’s insurer, Wisconsin County Mutual Insurance Corporation, seeking underinsured motorist coverage (UIM).

The insurance company argued that Jackson was not “using an automobile” as required by the insurance policy. The district court agreed, holding that Jackson was not entitled to the UIM coverage. The Court of Appeals, District 1, reversed holding that Jackson “manipulated” the vehicle being driven by the motorist who struck her and thus was “using” the vehicle, entitling her to coverage under the policy.

Issue
Whether the plaintiff was “using” the vehicle being driven by the driver who struck the plaintiff, entitling her to underinsured motorist coverage under her employer’s insurance policy.

Supreme Court Decision
The Supreme Court reversed the court of appeals. The court began its analysis by noting that Jackson satisfied two out of the three requirements allowing her to obtain UIM coverage under her employer’s insurance policy: 1) she was within the scope of her employment, and 2) she was insured under the policy.

However, the court determined that Jackson did not meet the third requirement – she was not “using an automobile” as prescribed under the policy. The court looked to the definition of “using” under the policy, which included “driving, operating, manipulating, riding in and any other use.”

The court explained that the only way Jackson could possibly be covered under this definition is under the “manipulating” or “other use” provisions. The court proceeded to review a number of cases where a person not driving the vehicle was deemed to be using the vehicle. However, the court determined that the facts in this case did not arise to Jackson controlling or using the vehicle that ultimately hit and injured her.

According to the court, “[u]nlike the cases in which the person guiding or giving directions was ‘controlling’ and therefore deemed a user of the vehicle, Jackson did not exercise such control over the vehicle to the extent that she essentially became the user. She was not communicating with, signaling, or exercising active control over the vehicle at the time of the injury.”

The court therefore concluded that Jackson could not recover under the policy because her actions did not “constitute using a vehicle in any way that is consistent with interpretations of ‘use’ in Wisconsin case law or with those of cases from other jurisdictions.”