Donna Brenner, as Personal Representative for the Estate of Russell T. Brenner and Donna Brenner, Individually, Plaintiffs-Respondents,
Amerisure Mutual Insurance Company, Garland Brothers Joint Venture and Garland Brothers, Inc., Defendants, Charter Manufacturing Co. and Ace American Insurance Company, Defendants-Respondents, National Casualty Company and Milwaukee World Festival, Inc., Defendants-Appellants-Petitioners.
Submitted on Briefs Oral Argument: October 26, 2016
OF A DECISION OF THE COURT OF APPEALS Reported at: 365 Wis.2d
476, 872 N.W.2d 124');">872 N.W.2d 124 (2015 WI.App. 85 - Published)
of Appeal: County Court Circuit Milwaukee Richard J.
the defendants-appellants-petitioners, there were briefs by
Pamela M. Schmidt and Scopelitis, Garvin, Light, Hanson &
Feary, P.C., Milwaukee, and oral argument by Pamela M.
the plaintiffs-respondents, there was a brief by Susan R.
Tyndall, Timothy S. Trecek and Habush Habush & Rottier,
S.C., Milwaukee, and oral argument by Susan R. Tyndall.
BRADLEY, R.G., J. did not participate.
The question before the court is whether Charter
Manufacturing Company ("Charter"), the former
long-term tenant of property owned by Garland Brothers Joint
Venture ("Garland Brothers"), could be liable for
injuries to Russell T. Brenner, a construction worker who
labored at the former Garland Brothers building after it had
been sold to Milwaukee World Festival, Inc.
For 211/2 years, Garland Brothers owned the property located
at 607 Polk Street in the city of Milwaukee (the
"Property"). For 20 of those years, Charter housed
its wire manufacturing business at the Property under a
triple net lease.One of Charter's tasks in making the
facilities operational was the installation of heat treatment
furnaces in a below-grade "pit" in one of the
buildings. The furnaces extended up from the pit and through
a hole cut into the metal grate floor above it.
Fast forwarding 20 years, Charter notified Garland Brothers
that it would terminate its lease at the end of 2009. The
lease obligated Charter to remove its machinery (including
the heat treatment furnaces) from the Property before
surrendering possession. Additionally, Garland Brothers asked
Charter to perform several maintenance and repair tasks. One
such request was to fill in the pit where the heat treatment
furnaces had been located. Garland Brothers later revoked
this request in exchange for Charter's commitment to
leave the pit in a "clean and safe condition."
Charter hired Pieper Electric to help it remediate the
Property before the end of the lease. Pieper Electric, in
turn, subcontracted with Harrison Metals to remove the heat
treatment furnaces. Completion of that task left holes in the
metal grate floor through which the furnaces had once
protruded. Because the holes could pose a danger, Harrison
Metals created short plywood boxes to cover them. Harrison
Metals did not mark the boxes to indicate their function or
tether them in place. In late December 2009, Garland Brothers
performed a final walkthrough of the Property with its
experts and Charter representatives. Because Garland Brothers
had performed numerous inspections throughout the life of the
lease, the heat treatment furnaces would have been
conspicuous by their absence during this final walkthrough.
Garland Brothers did not raise any concerns about the pit,
the holes in the floor above it, or the method of covering
Charter released possession of the Property to Garland
Brothers on December 31, 2009. Garland Brothers thereafter
maintained sole possession of the Property until MWF
purchased it in "as-is, where-is" condition
"with all faults" and took possession on May 3,
2011. MWF had originally slated for demolition the building
Charter had occupied but subsequently changed its plans.
MWF was on the Property multiple times before purchasing it.
Its general counsel, for example, personally conducted
walkthroughs of the Property while Charter was still
occupying it and observed the heat treatment furnaces
extending through the metal grate floor. MWF also had a
designer inspect the building several times and had the
designer specifically consider the feasibility of creating an
entryway where the heat treatment furnaces stood. MWF's
construction director was also on the Property prior to the
purchase to plan for future work. Environmental tests
performed as part of due diligence in the sale of the
Property also identified the existence of the pit.
After completing the purchase of the Property, MWF hired
Hunzinger Construction ("Hunzinger") to perform
demolition and renovation work on the Property. As part of
their work, Hunzinger employees, including Mr. Brenner,
removed the plywood boxes present in the building. Mr.
Brenner did not know that some of these boxes covered holes
once occupied by the heat treatment furnaces. Consequently,
while removing one of these boxes, he fell through a hole and
sustained severe injuries.
Mr. Brenner and his wife sued MWF, Garland Brothers, and
Charter (as well as their insurers) alleging negligence and
violation of Wisconsin's safe-place statutes. As
particularly relevant here, the Brenners said Charter was
negligent because it concealed or failed to disclose to MWF
the holes in the metal grate flooring under the plywood
Charter and Garland Brothers moved for summary judgment,
relying primarily on the doctrine of caveat emptor as
described in the Restatement (Second) of Torts § 352
(Am. Law Inst. 1965) (hereinafter "§ 352").
The circuit court dismissed both parties, concluding that the
caveat emptor principle precluded judgment against
them. The Brenners subsequently settled with
Charter and Garland Brothers, which they documented with a
settlement agreement that included a Pierringer
MWF appealed Charter's dismissal. MWF's interest in this
question is in ensuring it is exposed to no more than the
correct quantum of liability. Notwithstanding Charter's
dismissal from the case, if the matter proceeds to trial, a
jury would need to apportion liability amongst all eligible
defendants--even those who have been dismissed through
settlements. If the law of negligence makes Charter eligible
for liability, MWF's exposure potentially decreases,
resulting in a smaller judgment against it. If Charter is not
eligible for liability, the potential judgment against MWF
On appeal, MWF argued that Charter was not a
"vendor" under § 352, and even if it was, it
would still be liable pursuant to the exception from
exemption described in Restatement (Second) of Torts §
353 (Am. Law. Inst. 1965) (hereinafter "§
353"). In a published decision, the court of appeals
affirmed the circuit court's summary judgment in favor of
Charter. The court of appeals based its opinion on
the caveat emptor doctrine as described in § 352,
concluding that Charter was a "vendor" within the
meaning of the Restatement test. It further found that,
because MWF had reason to know of the danger posed by the
wooden boxes that covered the holes, § 353 did not
negate the immunity supplied by the caveat emptor doctrine.
We granted MWF's timely petition for review and now
affirm the court of appeals.
STANDARD OF REVIEW
This matter is before us on review of a grant of summary
judgment dismissing the Brenners' negligence claim
against Charter. Summary judgment is appropriate where there
are no material facts in dispute and the moving party is
entitled to judgment as a matter of law. See Wis.Stat. §
802.08(2) (2015-16). We review a grant of summary judgment de
novo, applying the same methodology as the circuit court.
Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis.2d
359, 843 N.W.2d 373. While our review is independent from the
circuit court and court of appeals, we benefit from their
analyses. Preisler v. Gen. Cas. Ins. Co., 2014 WI
135, ¶16, 360 Wis.2d 129, 857 N.W.2d 136. Whether a duty
exists under the circumstances, and the scope of any such
duty, are questions of law we decide de novo. Hocking v.
City of Dodgeville, 2009 WI 70, ¶7, 318 Wis.2d 681,
768 N.W.2d 552.
We must determine whether the law of negligence could make
Charter liable to the Brenners. Success in that endeavor
requires establishing the following: (1) a duty of care owed
by Charter; (2) a breach of that duty; (3) a causal
connection between the breach and the Brenners' injury;
and (4) actual loss or damage resulting from the injury.
Gritzner v. Michael R., 2000 WI 68, ¶19, 235 Wis.2d 781,
611 N.W.2d 906. On summary judgment, only the first
issue--whether Charter owed the Brenners a duty of care--was
at issue. It is also the only element we address in our
MWF asks us to find that the tort-based duty of a real estate
tenant continues even after the tenant vacates the property.
The Brenners say, and the circuit court and court of appeals
agreed, that the caveat emptor doctrine terminated
Charter's duty after it surrendered possession of the
Property to Garland Brothers. MWF tells us that caveat emptor
is an archaic proposition and that we would do well to join
the twenty-first century by abandoning this concept in favor
of principles described in the Restatement (Third) of Torts:
Physical and Emotional Harm § 51 (Am. Law Inst. 2012)
(hereinafter "§ 51"). MWF says the old ways,
memorialized in §§ 352 and 353, create dangerous
dynamics, the effects of which caused Mr. Brenner's
injury. Alternatively, if we should decide not to adopt the
Restatement (Third) of Torts on this question, MWF says
caveat emptor (as described in the Restatement (Second) of
Torts) does not apply to long-term former tenants like
Charter. And if it does, MWF says, there are exceptions to
this immunity from liability that operate against Charter
under the facts of this case.
General principles governing "duty"
Before analyzing the caveat emptor doctrine, we must first
describe the duty it is supposed to affect. MWF says it is
"unquestionable" that Charter would owe a duty to
the Brenners absent the doctrine of caveat emptor
"because everyone owes a duty to everyone else."
(Citing Behrendt v. Gulf Underwriters Ins. Co., 2009
WI 71, 318 Wis.2d 622, 768 N.W.2d 568.)
This characterization of Behrendt suggests we have concluded
that every negligence claim arrives at court with the first
element already proven as a matter of law, or that we have
eliminated the first line from the negligence quatrain. We
have not. See, e.g., A.E. Inv. Corp. v. Link Builders,
Inc., 62 Wis.2d 479, 484, 214 N.W.2d 764 (1974)
("Duty is still an important factor in determining
whether an act is negligent.").
What we said in Behrendt is that "everyone owes to the
world at large the duty of refraining from those acts that
may unreasonably threaten the safety of others."
Behrendt, 318 Wis.2d 622, ¶17 (bracket and internal
marks omitted) (quoting Alvarado v. Sersch, 2003 WI
55, ¶13, 262 Wis.2d 74, 662 N.W.2d 350). Immediately
following this statement, however, we explained that
"[w]hat is within the duty of ordinary care depends on
the circumstances under which the claimed duty arises. For
example, what is comprised within ordinary care may depend on
the relationship between the parties or on whether the
alleged tortfeasor assumed a special role in regard to the
injured party." Behrendt, 318 Wis.2d 622,
¶18 (quoting Hoida, Inc. v. M & I Midstate
Bank, 2006 WI 69, ¶32, 291 Wis.2d 283, 717 N.W.2d
One of the most significant circumstances relating to the
nature of Charter's duty in this case is the relationship
between the parties, as evidenced by the sequence in which
the defendant parties possessed the Property. As relevant
here, Charter was the first to possess. Garland Brothers then
took possession upon expiration of Charter's lease.
Finally, MWF gained possession of the Property through its
purchase from Garland Brothers.
Therefore, whether Charter is potentially liable in
negligence to the Brenners depends on whether its duty
"to the world at large . . . [to] refrain  from those
acts that may unreasonably threaten the safety of others,
" Behrendt, 318 Wis.2d 622, ¶17 (internal
marks and citation omitted), extended to telling not just
Garland Brothers, but all future strangers who may
come into possession of the Property, that there were holes
in the floor under the plywood boxes.
The only support MWF identified for this proposition was
§ 51, in conjunction with its over-simplification of our
holding in Behrendt. So we review § 51 to
determine whether it provides any insight on the nature of
Charter's duty under these circumstances.
Restatement (Third) of Torts: Physical & Emotional Harm
MWF urges us to adopt § 51 because it believes this
provision describes a superior view of what the law of
premises liability ought to be. This section states:
Subject to [Restatement (Third) of Torts: Physical &
Emotional Harm] § 52, a land possessor owes a duty of
reasonable care to entrants on the land with regard to:
(a) conduct by the land possessor that creates risks to
entrants on the land;
(b) artificial conditions on the land that pose risks to
entrants on the land;
(c) natural conditions on the land that pose risks to
entrants on the land; and
(d) other risks to entrants on the land when any of the
affirmative duties provided in Chapter 7 is applicable.
§ 51. This provision does not define "land
possessor, " but we need only flip back to Restatement
(Third) of Torts: Physical & Emotional Harm § 49
(Am. Law Inst. 2012) (hereinafter "§ 49") for
possessor of land is
(a) a person who occupies the land and controls it;
(b) a person entitled to immediate occupation and control of
the land, if no other person is a possessor of the land under
Subsection (a); or
(c) a person who had occupied the land and controlled it, if
no other person subsequently became a possessor under