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Supreme Court ruling muddies legal waters for industry

By Denise Lockwood
Special to The Daily Reporter

A state Supreme Court ruling that absolved a Milwaukee brake maker of liability in the death of an independent contractor could muddy the legal waters industry wide, legal professionals warn.

The court ruled this week that FMC Corp. was not negligent in the death of Walter Tatera, a former Hales Corners machine shop worker who died of cancer in 2004.

Tatera’s estate had filed a lawsuit against FMC claiming that the company sent brake disks to him for machining that contained asbestos. The lawsuit claimed that FMC committed an affirmative act of negligence by not telling Tatera that the disks contained asbestos.

Kenneth Voss — a construction attorney and real estate attorney with DeWitt, Ross and Stevens Law Firm in Milwaukee — said the ruling raises questions for contractors.

“So then what is an affirmative act of negligence?” he said. “Maybe a prime failed to warn a subcontractor of a safety issue. If that conduct doesn’t fall within the general rule the case deals with, would the subcontractor be responsible for the prime’s negligence because it’s not an affirmative act?”

S. Michael Christensen, president of Madison-based H&H Industries Inc., said the ruling clouds the meaning of what constitutes acts of negligence and extra hazardous activities. The lawsuit by Tatera’s estate also claimed that working with the asbestos brake disks constituted an extra hazardous activity.

“If they know about it, then they’ve got to deal with it,” Christensen said of employers such as general contractors who employ subcontractors. “If I am working as a subcontractor on a building, say a GC is cutting a hole in the roof, and if the GC knows it’s unstable because of design issues they have and I fall through that roof, I’m going to be a millionaire if I live and if they knew about those issues.”

Christensen said he would feel the same way if he was acting as a general contractor.

“If I hire a subcontractor and I knew there was a hazard on the site and I don’t tell the subcontractor, I know I’m wide open to a lawsuit,” he said.

Kimberly Hurtado, a construction law attorney and managing shareholder of Hurtado SC in Wauwatosa, said the lesson for all contractors is to carefully read contracts to be sure of work site responsibilities. And if anyone on a job site suspects a problem, she said, they should be sure to mention it so the issue can be examined.

“I’ve got a feeling that the courts are going to have to revisit this,” Christensen said. “I think they’ve got this so muddy and so gray. They are leaving the door open to a lot of interpretation.”

One comment

  1. I’m not an attorney, but have read some of the cases we publish, and it seems to me there are two issues here. One, the machinist working on the brake discs should know that these things have often been made with asbestos and should have taken precautions. FMC may not have known it had asbestos. What if it had a crack and flew apart on the machinist lathe and knocked him in the head. Would FMC have been negligent because the disc was inherently unsafe because it had a crack (hairline that FMC could not observe or know of)? No, of course not.

    There’s also an issue of proximity and of contract. The brake disk was sent to him as a independent task for him to perform on his own shop. There was no subcontract, there was no proximity to FMC’s facilities or site, etc. On a jobsite, the responsibilties of safety are well established and spelled out in contracts.

    The court ruled correctly.

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