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COURT OF APPEALS DECISION DATED AND RELEASED September 27, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2787
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
KURT KOLLER, RICHARD
T. KLUNCK,
KENNETH J. THELEN,
JENNIFER THELEN,
VICTORIA S. THELEN, a
minor,
JACOB D. THELEN, a
minor,
DANIEL R. CORDY,
BRENDA S. CORDY
DEANNA R. CORDY, a
minor,
DANIEL J. CORDY, a
minor,
JUDITH H. NACK,
WILLIAM P. JUNK, SR.,
BONNIE L. JUNK, KANDIE
A. JUNK,
MICHAEL J. MILLER and
WESTFIELD INSURANCE
COMPANY,
Plaintiffs,
v.
LIBERTY MUTUAL
INSURANCE
COMPANY and SHOPKO
STORES, INC.,
Defendants-Respondents,
CONTINENTAL CASUALTY COMPANY
and HOWARD IMMEL, INC.,
Defendants-Third Party Plaintiffs,
v.
DHO, INC.,
and WESTFIELD
INSURANCE
COMPANY,
Third Party Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JOHN B. MURPHY, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. DHO, Inc. and Westfield Insurance Company
(collectively, DHO) appeal from a summary judgment dismissing claims against
Shopko Stores, Inc. and its insurer, Liberty Mutual Insurance Company
(collectively, Shopko), for personal injuries caused by the collapse of a
concrete wall during the construction of a Shopko store. The issue is whether Shopko, under its
contract with Howard Immel, Inc., the general contractor, retained any control
over the project such that it owed the injured workers a duty of care. We conclude that despite Shopko's right to
make changes in the plans and specifications, the contract assigned all
responsibility for the means, methods and safety of construction to Immel. We affirm the judgment.[1]
DHO was the masonry
subcontractor in the construction of a new Shopko store. When a concrete block wall collapsed,
several DHO employees were severely injured and one was killed. Those employees or their representatives
brought an action against Shopko for negligence and violation of the safe-place
statute. Immel was also alleged to be
negligent. Immel filed a third-party
complaint against DHO for indemnification.
Shopko's negligence
allegedly results from the conduct of the on-site construction manager (OSCM)
employed by Shopko.[2] In a preconstruction meeting, DHO was
directed by Immel representatives and Chester Konitzer, the OSCM, that the wall
would be built to its full height with pockets left for later insertion of
steel joists. The architectural plans
provided for pockets of approximately 4x3 inches. Mark Elmer, DHO supervisor, testified that Konitzer directed DHO
to make 8x18 inch pockets in the wall so that the steel workers would have
adequate room to work. On the date of
the accident, a Friday, Konitzer indicated that the wall had to be completed
that day because the steel was coming the following Monday.
Prior to the day of the
accident, DHO had built the wall to the height of four feet and utilized a
"low lift" grouting method.[3] The construction plan called for low lift
grouting but authorized grouting in eight-foot lifts if sufficient clean out
holes were placed. As construction of
the wall proceeded, grouting was not available at the time at which it should
have first been used. Konitzer directed
DHO to continue building the wall upward until the grout arrived. When the wall was as high as eight feet, DHO
began to grout as directed by Konitzer and at the same time continued to build
new wall. The wall collapsed at
approximately the level where the pockets were placed.[4]
Shopko sought summary
judgment on the ground that it was not negligent as a matter of law because it
had no control over the methods of construction used in the project. Although Shopko conceded that the wall
collapsed because of improper procedures utilized in its construction, it
argued that under Kaltenbrun v. City of Port Washington, 156
Wis.2d 634, 643, 457 N.W.2d 527, 530 (Ct. App. 1990), it owed no duty of care
because authority over and control of the means and methods of construction had
been contractually assigned to Immel.
In Kaltenbrun,
156 Wis.2d at 642, 457 N.W.2d at 530, we recognized that when an owner
undertakes a construction project, the owner has a duty to exercise reasonable
care. We concluded that by contracting
with an independent contractor, relinquishing all control over the site and
specifically obligating the contractor to implement all safety precautions
associated with the project, the owner has discharged its duty to act with due
care. Id. at 642-43,
457 N.W.2d at 530. We held "that an owner who has
contracted with a reliable and qualified independent contractor to implement
all safety precautions associated with the work has fulfilled its duty of
reasonable care to those employees of the general contractor or those employed
by subcontractors whom the general contractor has hired." Id. at 643, 457 N.W.2d at 530.
We must examine the
contract between Shopko and Immel.[5] Shopko contends that under the contract
Immel had the sole responsibility and authority to control all aspects of the
means and methods of construction, including necessary safety precautions. Subparagraph 3.3.1 provides:
The Contractor shall supervise and direct
the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible
for and have control over construction means, methods, techniques, sequences
and procedures and for coordinating all portions of the Work under the
Contract, unless Contract Documents give other specific instructions concerning
these matters.
Subparagraph
10.1.1 provides that the contractor "shall be responsible for initiating,
maintaining and supervising all safety precautions and programs" regarding
the project.
The above contract
provisions have the effect of contracting away all authority at the construction
site and satisfying Shopko's duty of care.
DHO argues that despite these provisions, Shopko retained significant
control of the project, particularly through its OSCM and provisions which gave
the OSCM authority usually reserved for the architect.
The contract gave the
OSCM the authority to act on Shopko's behalf only to the extent provided in the
contract documents.[6] The OSCM was given authority under
subparagraph 2.5.4 to prepare "change orders and construction change directives"
as well as "authorize minor changes in the Work as provided in Paragraph
7.4"[7] Under paragraph 7.4.1, the OSCM had
authority to order minor changes in the work which did not require an
adjustment of the contract sum or timetable and not inconsistent with the
intent of the contract documents. The
provision concluded that "[s]uch changes shall be effected by written
order issued as clarifications and shall be binding on the Owner and
Contractor."
The authority of the
OSCM to make minor changes in the work distinguishes the contract here from
that in Kaltenbrun.
Shopko concedes that it had authority to make changes in plans and
specifications and that the OSCM's duties included more than mere
inspection. Thus, Shopko has retained
more than the mere right of inspection and the holding in Kaltenbrun
does not directly apply.
However, the contract
contains the following language in paragraph 2.5.7:
The OSCM will not have control over or
charge of and will not be responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions and programs in
connection with the Work, since these are solely the Contractor's
responsibility as provided in Paragraph 3.3.
The OSCM will not be responsible for the Contractor's failure to carry
out the Work in accordance with the Contract Documents. The OSCM will not have control over or
charge of and will not be responsible for acts or omissions of the Contractor,
Subcontractor, or their agents or employees, or of any other persons performing
portions of the Work.
Further, subparagraph
3.3.3 provides:
The
Contractor shall not be relieved from obligations to perform the Work in accordance
with the Contract Documents either by activities or duties of the Architect in
the Architect's administration of the Contract, by the activities or duties of
the OSCM, or by tests, inspections, or approvals required or performed under
Paragraph 13.5 by persons other than the Contractor.
Under these provisions,
Immel remained solely responsible for the means and methods of construction and
safety. Although, as Shopko concedes,
Konitzer's directions involved the ability to change plans, Immel was obligated
to carry out those directions as it saw fit to ensure safety.
We need not address
whether Shopko is responsible under apparent authority or respondeat superior
principles. The change in the size of
the pockets and the grouting method did not change the contract price or
completion schedule. The change was a
minor change in the work which the OSCM was authorized to make under the terms
of the contract. Yet Immel assumed
responsibility under the contract.[8]
We conclude that Shopko
was entitled to judgment as a matter of law because even though the changes
which contributed to the collapse were required by Shopko through its OSCM,
under the contract Immel was responsible for safety, means and methods of
construction.
By the Court.—Judgment
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Despite that DHO has no claim or potential cause of action for contribution against Shopko, we determined that DHO has standing to appeal the summary judgment. Koller v. Liberty Mut. Ins. Co., 190 Wis.2d 264, 526 N.W.2d 799 (Ct. App. 1994).
[2] For the purposes of summary judgment, we accept, as does Shopko, that the facts in the affidavits in opposition to summary judgment are true.
[3] A low lift grouting method requires grout to be poured into the cells of the concrete blocks every four feet in height. A high lift grouting method permits building to a higher height provided "clean out" holes are left which will permit the grout to get down to the bottom.
[4] An expert civil engineer opined that Konitzer's direction to use nonstandard grouting methods and to cut voids into the concrete block large enough to accommodate the steel joists was a failure to exercise reasonable care and a cause or substantial factor resulting in the collapse.
[5] The methodology we apply in summary judgment analysis has been stated often and we need not repeat it. Wegner v. Heritage Mut. Ins. Co., 173 Wis.2d 118, 123, 496 N.W.2d 140, 142 (Ct. App. 1992). Summary judgment should be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also Roebke v. Newell Co., 177 Wis.2d 624, 632, 503 N.W.2d 295, 297 (Ct. App. 1993). Interpretation of a contract is a question of law. Ondrasek v. Tenneson, 158 Wis.2d 690, 694, 462 N.W.2d 915, 917 (Ct. App. 1990).
[7] The contract defines the term "Work" as "the construction and service required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor" and "may constitute the whole or a part of the Project."