Ruling could muddle construction law

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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 last 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 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.”

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.”