Soletski v. Krueger Int'l, Inc.
Soletski v. Krueger Int'l, Inc.
Opinion of the Court
*793¶1 John Soletski appeals a grant of summary judgment in favor of Krueger International, Inc., and its insurers, Federal Insurance Company and National Union *210Fire Insurance Company of Pittsburgh, PA.
¶2 We conclude the statutory exposure period set forth in the builder's statute of repose had expired by the time Soletski was injured by a structural defect, and no exception to the statute of repose applies. Therefore, Soletski's safe-place claim is barred. We also determine that Soletski's negligence claims are barred by the independent contractor rule as set forth in Wagner v. Continental Casualty Co. ,
BACKGROUND
¶3 Krueger owns and operates a furniture production facility in Green Bay that was built in 1972. In 2012, Krueger hired Spectrum Maintenance Services, LLC (Spectrum), a professional cleaning company, to clean its facility.
¶4 On September 9, 2012, two of Spectrum's employees, Soletski and Clifford Couillard, were cleaning the facility's ceiling. To do so, Soletski and Couillard were positioned on the platform of a scissor lift. Krueger owned this particular lift, but it allowed Spectrum to use the lift in exchange for a credit on Krueger's final bill. Couillard operated the lift by *795raising it so that he and Soletski could clean an approximately ten-foot area of the ceiling. After they were done with this area, Couillard lowered the platform, moved the lift forward, and the two repeated their cleaning process. At some point, Couillard unknowingly moved the lift onto an unmarked ramp and then raised the platform. As a result of the platform being raised on top of an incline, the lift overturned and Soletski suffered serious injuries.
¶5 Soletski subsequently made a successful worker's compensation claim against Spectrum. He also sued Krueger, asserting claims of common-law negligence, negligent entrustment, and violation of Wisconsin's safe-place statute, WIS. STAT. § 101.11. Soletski claimed, in relevant part, that the ramp where the accident occurred was unsafe due to a lack of both warning markings and guardrails, and that Krueger had failed to properly warn, train and supervise Spectrum employees on the use of the scissor lift.
¶6 Krueger moved for summary judgment, arguing that Wisconsin's builder's statute of repose, WIS. STAT. § 893.89, barred all of Soletski's claims relating to *211structural defects at Krueger's facility. Further, Krueger argued that Soletski's remaining claims were barred by Wagner . The circuit court agreed with Krueger and granted its summary judgment motion.
¶7 On September 6, 2017, the circuit court entered its judgment and dismissed Soletski's action "with prejudice and statutory costs." Krueger filed proposed bills of costs within thirty days of this entry of judgment.
¶8 The circuit court rejected Soletski's argument, and held a hearing on the disputed costs on November 17, 2017, nearly three months after the judgment was entered. The court concluded that Krueger had timely filed its proposed costs within thirty days of entry of judgment, as required by WIS. STAT. § 806.06(4), and therefore awarded Krueger its requested costs. Soletski now appeals.
DISCUSSION
¶9 We review a grant of summary judgment independently, applying the same methodology as the circuit court. Mair v. Trollhaugen Ski Resort ,
*797Pum v. Wisconsin Physicians Serv. Ins. Corp. ,
¶10 This case also presents an issue of statutory interpretation, which is a question of law that we review de novo. Mair ,
I. Safe-place claim
¶11 Soletski first argues the circuit court erred in determining that the builder's statute of repose barred his claim that Krueger violated the safe-place statute, WIS. STAT. § 101.11. The safe-place statute is a negligence statute that imposes, as relevant here, a heightened duty on owners of public buildings to construct, repair and maintain their buildings safely. See Mair ,
¶12 There are two types of property conditions for which the owner of a public building can be held liable under the safe-place statute: (1) structural defects; or (2) unsafe conditions associated with a structure. Rosario v. Acuity & Oliver Adjustment Co. ,
¶13 For purposes of the builder's statute of repose, the distinction between these two property conditions is critical because the statute "was intended to apply" to claims relating to structural defects, but not to claims relating to unsafe conditions relating to a structure.
*799whereas an unsafe condition associated with a structure is created by a "breach of the statutory duty to repair or maintain."
¶14 A safe-place act claim that relates to a structural defect is barred by the builder's statute of repose when the claim is brought after the statutory exposure period.
¶15 Soletski first argues that the condition of the ramp changed what would otherwise be a structural defect into an unsafe condition associated with *800the structure. In support, he relies on our supreme *213court's statement in Mair that "defects in the lighting or paint color" could be considered unsafe conditions associated with a structure. Mair ,
¶16 This argument fails because although Soletski points to evidence that the floor was dirty, he does not point to any evidence that the condition of the ramp obscured any marking on the ramp or that, if the ramp was clean, he would have been able to distinguish between the ramp and a flat surface. Again, an unsafe condition associated with a structure arises from "a failure to keep an originally safe structure in proper repair or properly maintained."
¶17 Second, Soletski argues Krueger's failure to inspect its facility and warn Spectrum about the ramp's existence-either explicitly or by marking the ramp with paint-allows his safe-place claim to escape the bar imposed by the builder's statute of repose. We are not persuaded. In essence, this argument presupposes that the ramp, by design, constituted a hazard and that Krueger had a duty to discover and take proactive steps to mitigate that hazard. As noted by *801Krueger in its briefs, we have already considered and rejected such an argument in Rosario .
¶18 In Rosario , the plaintiff tripped on a three-inch step while exiting an office building and broke her foot. Rosario ,
¶19 Like the Rosario court, we reject the contention that the bar imposed by the builder's statute of repose may be avoided by arguing that a hazard such as an uneven floor or inclined surface should be discovered by a property owner and either fixed or marked. If this logic were followed, a duty to inspect and warn would render the statutory exposure period meaningless because a plaintiff could always allege that a defendant should have inspected its premises and either fixed or warned of any alleged defect. Rosario prohibits such a result.
¶20 Third, Soletski contends the builder's statute of repose's maintenance exception, WIS. STAT. § 893.89(4)(c), applies. This exception allows claims that would otherwise be barred by the statute of repose to proceed against "[a]n owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property." Sec. 893.89(4)(c). Soletski argues this exception applies for two reasons: (1) he was generally involved in the maintenance of *802Krueger's facility; and (2) Krueger negligently maintained the ramp by allowing it to become dirty.
¶21 We do not agree that the maintenance exception is applicable to the facts of this case. To begin, Soletski's argument *214that he meets the exception because he was involved in general maintenance at Krueger's facility fails under Hocking v. City of Dodgeville ,
¶22 Our supreme court rejected this argument.
¶23 As to Soletski's argument that Krueger's maintenance of the ramp itself was negligent, we agree with Krueger that Soletski had forfeited this argument by not raising it in the circuit court. See *803State Farm Mut. Auto. Ins. Co. v. Hunt ,
¶24 We reject this argument because it is contrary to well-established precedent. "[C]ountless [cases] have reaffirmed that the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court." Townsend v. Massey ,
¶25 Ultimately, Soletski's safe-place claim rests on the notion that the unmarked and unguarded ramp *804created a hazardous condition at Krueger's facility. However, Soletski presents no evidence that the ramp had been improperly maintained or repaired since its construction in 1972. Therefore, the ramp is, by definition, a structural defect. Because the statutory exposure period set forth in the builder's statute of repose had expired before Soletski was injured, and no exception to the *215statute of repose applies, Soletski's safe-place claim is barred.
¶26 Soletski also makes several arguments as to why the builder's statute of repose does not bar his claims of "independent negligence," because Krueger had duties "related to safe operation of the equipment, not [just] the condition of the premises." In short, Soletski contends that "separate negligence alone suffices to defeat application of" the statute of repose. We agree that the statute of repose does not bar all of Soletski's claims. However, we disagree with Soletski's conclusion that because the statute of repose does not pose a complete bar to all of his claims, "[r]eversal is required." Instead, like the circuit court, we analyze Soletski's common-law negligence and negligent entrustment claims under the applicable independent contractor rule found in Wagner .
II. Common-law negligence and negligent entrustment
¶27 Soletski argues the circuit court erred by determining that his negligence claims were barred under the independent contractor rule as set forth in Wagner . This rule provides that a principal employer is generally not liable in tort for injuries sustained by an independent contractor's employee while he or she is *805performing the contracted work.
¶28 The relevant inquiry under the first exception is whether the principal employer has committed an act of commission, as opposed to an act of omission.
¶29 However, Soletski does point to one affirmative act Krueger performed-the act of supplying Spectrum the scissor lift from which Soletski ultimately *806fell. But as Soletski acknowledges, his own expert concluded that "the lift was not defective." Because the lift itself was not defective, Soletski cannot show that Krueger committed an affirmative act of negligence by providing the lift to Spectrum. See
¶30 Soletski raises two additional arguments as to why the independent contractor rule from Wagner should not bar his claims. First, he argues that the owner's manual for the scissor lift gave rise to duties that Krueger, as the owner of the lift, could not delegate to Spectrum. Specifically, he contends "the lift's Operation and Safety Manual imposed duties on *216[Krueger], including ensuring that operators are qualified and inspecting for and warning of hazards." But, Soletski cites no legal authority to support the existence of an "owner's manual exception" to the Wagner independent contractor rule. Moreover, he does not explain why a principal employer could not delegate a duty created by an owner's manual to an independent contractor when it provides a piece of equipment to the contractor. We decline to address this undeveloped argument further. See State v. Pettit ,
¶31 Second, Soletski argues the safe-place statute creates a heightened duty of care that renders the independent contractor rule in Wagner inapplicable. We need not address this argument because it presupposes that Soletski's safe-place claim is not barred by the builder's statute of repose. As discussed above, this notion is incorrect.
¶32 In short, the circuit court properly determined that Soletski's common-law negligence and negligent entrustment claims were barred by the rule that *807a 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. See Wagner ,
III. Taxable costs
¶33 Finally, Soletski argues the circuit court erred by awarding Krueger its requested costs more than thirty days after entry of judgment. WISCONSIN STAT. § 806.06(4) provides that a prevailing "party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs." A judgment is perfected "by the taxation of costs and the insertion of the amount thereof in the judgment." Sec. 806.06(1)(c). Here, the parties agree that Krueger timely requested its costs. They also agree that due to Soletski's prompt objection and the necessity for a hearing on the disputed costs, the judgment was not ultimately perfected until more than thirty days after the entry of judgment.
¶34 Relying on Hartman v. Winnebago County ,
¶35 We are not persuaded that Hartman and Purdy dictate that the thirty-day time limit for perfection set forth in WIS. STAT. § 806.06(4) may be overcome only by a stay or stipulation. Rather, we agree with Krueger that a prevailing party's timely filing of its bill of costs within thirty days of the entry of judgment satisfies the time limit set forth in § 806.06(4).
¶36 In Hartman , our supreme court held that attorneys' fees must be taxed and inserted in the judgment within thirty days of the entry of judgment under WIS. STAT. § 806.06(4). Hartman ,
¶37 To hold that WIS. STAT. § 806.06(4) requires a prevailing party not only to file its request for costs within thirty days of the entry of judgment, but to actually effect the taxation of those costs, would lead to absurd results. Wisconsin courts are directed to read *809statutes sensibly and restrain the words of a statute if a literal construction of the words would lead to absurdities. See Jankowski v. Milwaukee Cty. ,
¶38 Moreover, we conclude that interpreting the thirty-day time limit set forth in WIS. STAT. § 806.06(4) to be satisfied by a timely filing of a prevailing party's proposed bill of costs is necessary in order to harmonize § 806.06(4) with WIS. STAT. § 814.10(3). Section 814.10(3) grants a clerk of circuit court the power to "adjourn" the taxation of costs when a party objects to a proposed bill of costs. Because both §§ 806.06(4) and 814.10(3) deal with the taxation of costs, we must read the two statutes in a harmonious fashion. See CED Props., LLC v. City of Oshkosh ,
*810¶39 In sum, we conclude that when a party timely files its proposed bill of costs within the thirty-day time limit set forth by WIS. STAT. § 806.06(4), its right to recover costs is not forfeited simply because the costs are objected to and the circuit court does not resolve that objection within thirty days. Instead, a circuit court clerk may exercise the adjournment powers granted by WIS. STAT. § 814.10(3) to effectively toll the thirty-day time limit for a reasonable time, until the circuit court can conduct a hearing to resolve the dispute. As that is precisely what happened in this case, we affirm the circuit court's award of costs to Krueger.
By the Court. -Judgment affirmed.
In this opinion, the term "Krueger" refers both to the principal defendant, Krueger International, Inc., and, when in relation to arguments and litigation conducted by all defendants-respondents (including Krueger International, Inc.'s insurers named as defendants in this action), to all defendants-respondents.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
On September 13, 2017, an identical judgment was entered by the circuit court, without explanation to the parties. However, on appeal the parties do not dispute that September 6, 2017, was the effective date for the entry of judgment and that Krueger timely filed its bills of costs within thirty days of this date.
We note that throughout his briefs, Soletski conflates issues regarding his safe-place claim-i.e., his claim related to the condition of the unmarked and unguarded ramp-and his claims regarding alleged acts of negligence. Therefore, we have exercised our authority to structure and frame the issues independently of the manner in which the parties have presented them. See State v. Waste Mgmt. of Wis., Inc. ,
On April 3, 2018, our state legislature amended
In regard to this independent contractor rule, the term "principal employer" is used interchangeably with the terms "owner" or "general contractor." Tatera v. FMC Corp. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.