Juan Delgado v. Robert Dvorak, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 28, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1045 Cir. Ct. No. 2020CV361

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

JUAN DELGADO,

PLAINTIFF-APPELLANT,

V.

ROBERT DVORAK, JR., VICTORIA DVORAK AND ALLSTATE PROPERTY
AND CASUALTY INSURANCE CO.,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Walworth County:
LEE S. DREYFUS, JR., Judge. Affirmed in part; reversed in part and cause
remanded for further proceedings.

Before Neubauer, Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1045

¶1 PER CURIAM. Juan Delgado appeals a grant of summary
judgment in favor of Robert Dvorak, Jr., Victoria Dvorak, and Allstate Property
and Casualty Insurance Company (collectively, “Dvorak”). We conclude the
circuit court appropriately granted summary judgment on Delgado’s asserted
violation of the safe-place statute, WIS. STAT. § 101.11(1) (2021-22).1

¶2 We also conclude summary judgment was inappropriate on
Delgado’s ordinary negligence claim as the circuit court improperly foreclosed
liability based on its conclusion that Dvorak owed no duty to Delgado. Contrary
to the circuit court’s determination, it is well established in Wisconsin that all
persons have a duty of reasonable care to refrain from acts that unreasonably
threaten the safety of others. Rather than curtailing liability based on the absence
of a duty, Wisconsin uses six public policy factors to determine when a defendant
should be absolved of his or her otherwise negligent conduct. Accordingly, we
reverse that portion of the judgment and remand for further proceedings.

BACKGROUND2

¶3 Dvorak hired PNR Painting Plus, Inc. (PNR), to paint a building
exterior at his residence in Lake Geneva. Delgado was one of the painters on the
job, which lasted two to three weeks. Delgado had been a painter for fifteen years
and had used ladders his entire career, utilizing standard safety features,

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
In accordance with our standard of review, the facts set forth in this section are those
facts most favorable to Delgado as the nonmoving party.

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equipment, and protocols. PNR provided the ladders and equipment that Delgado
used, and Delgado testified that his supervisors “directed and controlled” his work.

¶4 On the last day of the job, Dvorak gave the painters a list of work he
wanted performed. He had previously spoken with the painters directly only a few
times. Dvorak requested that Delgado touch up the paint on a particular peak of
the house, necessitating the use of an extension ladder. The ladder was equipped
with metal claws, which Delgado wanted to use to ensure the ladder was stable.3
Dvorak instructed Delgado not to use the claws on the driveway as, according to
Delgado’s testimony, they would have dug “a good half inch” into the fresh
blacktop. Instead, Dvorak told him to use the rubber side of the ladder feet.
Dvorak also prohibited Delgado from drilling a piece of wood into the home’s
fascia that could be tied to the ladder for stability, and he told Delgado “he did not
want the ladder in the soil … on his flower bed area.”

¶5 Delgado asked his coworker to serve as a spotter to make sure that
the ladder was stable and “didn’t kick out.” Delgado nonetheless fell from the
ladder at a height of approximately thirty feet and was injured.

¶6 As relevant here, he brought suit against Dvorak, alleging a violation
of the safe-place statute and ordinary negligence. Dvorak moved for summary
judgment on those claims. Following a hearing, the circuit court ordered
Delgado’s negligence claim dismissed based on Delgado’s failure to establish a
duty on Dvorak’s part, but it held the safe-place claim in abeyance subject to

3
Delgado testified “the bottoms of that ladder have … safety feature[s] that are claws
typically to either level out or dig in to increase stability on the ladder … under the appropriate
circumstances.”

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additional briefing. Following an additional hearing, the court ordered Delgado’s
safe-place claim dismissed. Delgado now appeals.

DISCUSSION

¶7 We review a grant of summary judgment de novo. Estate of
Paswaters v. American Fam. Mut. Ins. Co., 2004 WI App 233, ¶13, 277 Wis. 2d
549, 692 N.W.2d 299. Summary judgment is appropriate when the moving party
is entitled to judgment as a matter of law and no genuine issue of material fact
exists. WIS. STAT. § 802.08(2). At the summary judgment stage, all facts and
reasonable inferences from those facts are viewed in the light most favorable to
the nonmoving party. Bohm v. Leiber, 2020 WI App 52, ¶8, 393 Wis. 2d 757,
948 N.W.2d 370.

¶8 We begin with Delgado’s safe-place claim. Delgado recites
wholesale WIS. STAT. § 101.11(1), which contains myriad provisions designed to
ensure workplace safety. Where it controls, the safe-place statute “imposes a more
stringent duty of care than the ordinary care otherwise applicable to one’s
conduct.” Hofflander v. St. Catherine’s Hosp., 2003 WI 77, ¶87, 262 Wis. 2d
539, 664 N.W.2d 545.

¶9 Delgado’s brief is unclear as to which of the safe-place provisions he
is relying on. His arguments and case law citations vacillate between different
provisions. At some points, he appears to rely on the statutory directive that
“every owner of a place of employment or a public building … shall so construct,
repair or maintain such place of employment or public building as to render the
same safe.” WIS. STAT. § 101.11(1)). At other points, he seems to argue the
operative provision is the one that requires an employer to “furnish a place of
employment which shall be safe for employees therein and for frequenters

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No. 2022AP1045

thereof.” Id. We reject both approaches and conclude the circuit court properly
granted summary judgment on his safe-place claim.

¶10 To the extent Delgado relies on the statutory directive requiring a
place of employment or a public building to be constructed, repaired, or
maintained in such a way as to render it safe, it does not encompass the alleged
negligence here. Liability under that directive covers two types of property
conditions that cause injury: “(1) structural defects; and (2) unsafe conditions
associated with the structure of the building.” Crisanto v. Heritage Relocation
Servs., 2014 WI App 75, ¶20, 355 Wis. 2d 403, 851 N.W.2d 771. There is no
allegation here that a structural issue produced the injury.4

¶11 Delgado’s reliance on the general duty of an employer to furnish a
safe place of employment for employees and frequenters likewise fails. An
employer can be a person who has “control or custody of any … place of
employment,” see WIS. STAT. § 101.01(4), and a work site can constitute a
temporary place of employment, see Barth v. Downey Co., 71 Wis. 2d 775, 778,
239 N.W.2d 92 (1976). But cases have consistently held that to be liable under the
safe-place statute for keeping an unsafe place of employment, the defendant must
have a profit-making motive. Ruppa v. American States Ins. Co., 91 Wis. 2d 628,
639, 284 N.W.2d 318 (1979); Voeltzke v. Kenosha Mem’l Hosp., Inc., 45 Wis. 2d

4
The closest Delgado comes on this point is by quoting his expert’s report opining that
the “lack of slip resistance on the asphalt pavement was an unreasonable unsafe condition on the
property.” Delgado’s claim, however, does not appear to be that the pavement was inherently
unsafe. Rather, his expert’s opinion was that “Dvorak reasonably should have known that with
the restriction of not being able to utilize the claws that the condition on the pavement was not
reasonably safe when using an extension ladder with rubber footing only.” The additional
prohibition on the use of the ladder’s safety mechanism brings this outside the foregoing aspect of
the safe-place statute.

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No. 2022AP1045

271, 278-80, 172 N.W.2d 637 (1969). The fact that PNR’s employees were using
the premises for profit-making purposes does not make Dvorak liable as the owner
of a place of employment. See Voeltzke, 45 Wis. 2d at 280; see also Rogers v.
City of Oconomowoc, 24 Wis. 2d 308, 315, 128 N.W.2d 640 (1964); Haerter v.
City of West Allis, 23 Wis. 2d 567, 570, 127 N.W.2d 768 (1964).

¶12 Moreover, Delgado has failed to create a genuine issue of material
fact regarding whether Dvorak exercised the requisite control of the premises
under the safe-place statute. Though Delgado was not Dvorak’s employee, “[a]n
owner … can owe a duty under the safe-place statute to a frequenter when a
hazardous condition is created, but only if the owner … has reserved a right of
supervision and control.” Barth, 71 Wis. 2d at 778-779. Delgado argues it is this
right of supervision and control that makes Dvorak liable for violating the
heightened duties imposed by the safe-place statute.

¶13 But “[m]ere possession is not the equivalent of control or custody.”
Novak v. City of Delavan, 31 Wis. 2d 200, 207, 143 N.W.2d 6 (1966). The
concept of ownership as used in the safe-place statute implies an “ever present
duty” to correct safety issues with the premises. Id. (citing Freimann v.
Cumming, 185 Wis. 88, 91, 200 N.W. 662 (1924)). Though Dvorak instructed
Delgado on various measures he did not want employed, we are unpersuaded that
he exercised a degree of supervision and control of the work so as to subject
himself to the heightened duties of the safe-place statute. See Potter v. City of
Kenosha, 268 Wis. 361, 372, 68 N.W.2d 4 (1955) (holding that when an owner
reserves only a right of inspection, he or she does not become liable for the
creation of a hazardous condition on the premises); see also Lee v. Junkans, 18
Wis. 2d 56, 60-61, 117 N.W.2d 614 (1962).

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No. 2022AP1045

¶14 Resolution of the safe-place allegations only partially answers the
question of whether summary judgment was appropriate, however. The safe-place
statute does not create a cause of action; it “merely lays down a standard of care
and if those to whom it applies violate the provisions thereof they are negligent.”
Krause v. Veterans of Foreign Wars, Post No. 6498, 9 Wis. 2d 547, 552, 101
N.W.2d 645 (1960) (citation omitted). Even when, as here, the heightened duties
of the safe-place statute do not apply, Dvorak could still be liable under ordinary
negligence principles. The four required elements of an actionable negligence
claim are: (1) the existence of a duty of care on the part of the defendant; (2) a
breach of that duty of care; (3) a causal connection between the defendant’s breach
of the duty of care and the plaintiff’s injuries; and (4) actual loss or damage
suffered as a result of the breach. Nichols v. Progressive N. Ins. Co., 2008 WI 20,
¶11, 308 Wis. 2d 17, 746 N.W.2d 220.

¶15 At the summary judgment hearing, the circuit court expressed
confusion regarding the basis for Dvorak’s alleged duty. The court repeatedly
asked Delgado to identify what duty Dvorak specifically owed to Delgado—a
question that was never fully briefed. But an analysis that focuses on whether the
alleged tortfeasor had a duty to the injured party “is incorrect under Wisconsin
law. In Wisconsin, everyone has a duty to act with reasonable care.” Gritzner v.
Michael R., 2000 WI 68, ¶24 n.4, 235 Wis. 2d 781, 611 N.W.2d 906. Put another
way, “[i]n this state all persons have a duty of reasonable care to refrain from
those acts that unreasonably threaten the safety of others.” Smaxwell v. Bayard,
2004 WI 101, ¶32, 274 Wis. 2d 278, 682 N.W.2d 923 (citations omitted). Among
other things, this broad formulation of duty in Wisconsin means that summary
judgment “is usually inappropriate on the question [of] whether a party was

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No. 2022AP1045

negligent.” Danks v. Stock Bldg. Supply, Inc., 2007 WI App 8, ¶16, 298 Wis. 2d
348, 727 N.W.2d 846.

¶16 The duty of ordinary care encompasses the concept of foreseeability,
“in that a reasonable person exercising ordinary care would have foreseen injury
as a consequence of his act.” Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69,
¶30, 291 Wis. 2d 283, 717 N.W.2d 17. And the duty is always informed by “what
would be reasonable given the facts and circumstances of the particular claim at
hand.” Id., ¶32. Thus, the duty “may depend on the relationship between the
parties or on whether the alleged tortfeasor assumed a special role in regard to the
injured party.” Id.

¶17 Here, Delgado faces an additional hurdle in that he was performing
work on behalf of a third-party contractor when he was injured. Wisconsin case
law establishes a general rule that “one who hires an independent contractor is not
liable in tort for injuries sustained by an independent contractor’s employee while
he or she is performing the contracted work.” Danks, 298 Wis. 2d 348, ¶17.
However, an exception to this general rule exists when the plaintiff can show that
the owner committed “affirmative acts of negligence” that increased the risk of
harm to the injured party. Id. “[A]cts of omission” are insufficient, as is “‘passive
inaction or a failure to take steps to protect’ the plaintiff from harm.” Estate of
Thompson v. Jump River Electr. Coop., 225 Wis. 2d 588, 601, 593 N.W.2d 901
(1999) (citation omitted).

¶18 Though the facts here are generally undisputed, the inferences from
those facts—which inform the legal conclusion that a party was or was not
negligent—create an issue for trial. Based on the facts, a jury could reasonably
conclude that Dvorak appropriately requested that the painters not cause damage

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No. 2022AP1045

to his property while performing the work. Moreover, a jury could credit
Delgado’s long experience using ladders as a painter to conclude he was in a better
position than Dvorak to know whether he was performing work in an unsafe
manner. In other words, the jury could reasonably determine that Dvorak did not
commit an affirmative act of negligence that increased the risk of harm to
Delgado.

¶19 Conversely, a jury could reasonably conclude that Dvorak was
negligent in his instructions to Delgado about where and how the painting could
occur. The jury could conclude that Dvorak’s specific directive to Delgado about
where he could place the ladder, coupled with him prohibiting the use of the
ladder’s claws on a new driveway and stabilization using the home’s fascia, were
affirmative acts of negligence that increased the risk of harm to Delgado and
violated Dvorak’s duty of ordinary care. It could also conclude that the risk of
harm was foreseeable under the circumstances. It is for the jury to decide which
of these conclusions appropriately allocates liability under the facts of this case.5

¶20 This conclusion that a genuine dispute of material fact exists would
typically end our review of the matter, but we additionally observe that our review
of the appellate record suggests the focus on summary judgment was not truly on
whether Dvorak owed a duty to Delgado, but on whether the law should impose
liability on a homeowner under these circumstances. Wisconsin courts may step

5
There is no basis, however, for a finding that Victoria Dvorak was liable under ordinary
negligence principles. Delgado merely suggests that Robert Dvorak acted as an agent for his wife
and that she is therefore liable to the same extent as Robert. He cites no law for this assertion,
whereas Dvorak cites Lange v. Andrus, 1 Wis. 2d 13, 17, 83 N.W.2d 140 (1957), to the contrary
(holding that “[t]he mere fact of marriage does not empower the husband to act as agent for the
wife.”). Accordingly, we conclude summary judgment was properly granted in favor of Victoria
Dvorak on Delgado’s negligence claim.

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No. 2022AP1045

in to curtail liability in six circumstances: (1) the injury is too remote from the
negligence; (2) the injury is wholly out of proportion to the tortfeasor’s
culpability; (3) in retrospect, it appears too highly extraordinary that the
negligence should have resulted in the harm; (4) allowing recovery would place
too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too
likely to open the way for fraudulent claims; and (6) allowing recovery would
enter a field that has no just or sensible stopping point. Gritzner, 235 Wis. 2d 781,
¶¶26-27. When older cases hold that an actor had no “duty” to the injured party,
that determination “is essentially one of public policy” based on the six factors
described above, rather one based on duty or causation. Rockweit by Donohue v.
Senecal, 197 Wis. 2d 409, 425, 541 N.W.2d 742 (1995).

¶21 At the summary judgment hearing, the circuit court expressed
dismay at Delgado’s responses to its questioning, emphasizing that the “duty”
Delgado was proposing was vague and that it would be unreasonable to impose
liability merely because a homeowner had asked a contractor not to damage
property. Dvorak invited the court to consider the implications if Delgado’s
position were “carried forward,” asserting it would create “an absurd end point” if
a homeowner had a duty to “acquiesce to whatever work they hire a person to do
by whatever means they choose to do it.” These inquiries and arguments bear the
indicia of a public policy analysis rather than a determination based on the absence
of a duty.

¶22 While we could independently consider whether public policy bars
liability under the circumstances of this case, see Fandrey ex rel. Connell v.
American Fam. Mut. Ins. Co., 2004 WI 62, ¶29, 272 Wis. 2d 46, 680 N.W.2d
345, for three reasons we conclude the circuit court should be given the first
opportunity to apply the correct framework. First, this court benefits from a

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circuit court’s summary judgment analysis. Summers v. Touchpoint Health Plan,
Inc., 2008 WI 45, ¶15, 309 Wis. 2d 78, 749 N.W.2d 182. Second, the circuit court
should be given the opportunity to identify which of the six public policy
considerations, if any, it concludes are applicable to preclude liability. See
Fandrey, 272 Wis. 2d 46, ¶30. Third, the court deserves the opportunity to
consider whether the case should first be submitted to the jury before determining
whether public policy considerations preclude liability. See Gritzner, 235 Wis. 2d
781, ¶26.

¶23 We stress that our remand in this case is open ended, encompassing
whatever proceedings the circuit court deems necessary to resolve the negligence
claim as set forth above. Our holding is limited to our conclusion that summary
judgment was not appropriate on duty grounds, and therefore further proceedings
are necessary. We do not mandate that the circuit court decide on remand—absent
an appropriate motion—whether public policy precludes liability, nor do we
express any opinion regarding the merits of applying public policy to preclude
liability in this case. Our discussion of public policy is intended merely to
illustrate that the parties’ arguments and the circuit court’s conclusion appear to be
directed at that inquiry rather than the question of duty.

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded for further proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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