Madison Newspapers, Inc. v. Pinkerton's Inc.

DYKMAN, J.

(concurring in part; dissenting in part). I am concerned that, without intending to do so, the majority may have taken a significant step backward in Wisconsin negligence law. Cases asserting both tort and contract claims are not new. For many years, plaintiffs have been asserting negligence and contract claims arising out of the same set of facts. In Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951), the plaintiff hired a carpenter to repair a porch railing. The complaint alleged that the carpenter did so negligently, causing the plaintiffs injuries when the plaintiff leaned against the railing and it collapsed. Id. at 143-44, 47 N.W.2d at 902. The carpenter moved to dismiss the complaint, asserting that the plaintiffs only remedy was in contract. Id. at 145, 47 N.W.2d at 903. In holding that the plaintiffs complaint stated a claim in tort, the supreme court reasoned:

Ordinarily, a breach of contract is not a tort, but a contract may create the state of things which furnishes the occasion of a tort. The relation which is essential to the existence of the duty to exercise care may arise through an express or implied contract. *481Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract. In such a case, the contract is mere inducement creating the state of things which furnishes the occasion of the tort. In other words, the contract creates the relation out of which grows the duty to use care. Thus, a person who contracts to make repairs can be held liable for his negligence in doing the work.

Id. at 146, 47 N.W.2d at 903 (quoted source omitted).

Colton has not been overruled. Indeed, in Greenberg v. Stewart Title Guar. Co., 171 Wis. 2d 485, 495, 492 N.W.2d 147, 152 (1992) (citations omitted), the supreme court said:

In Landwehr [v. Citizens Trust Co., 110 Wis. 2d 716, 723, 329 N.W.2d 411, 414 (1983)], we explained that our language in Colton was meant to indicate that the " 'state of things' which arises out of a contract furnishes the occasion for the tort, but not the underlying duty for the tort." We concluded that "there must be a duty existing independently of the performance of the contract for a cause of action in tort to exist." We reaffirm that holding today.

In Milwaukee Partners v. Collins Engineers, Inc., 169 Wis. 2d 355, 485 N.W.2d 274 (Ct. App. 1992), we considered the exact issue facing us in this case: whether a tort duty exists independent of a contractual obligation. A building owner asserted a negligence claim against an engineering firm which had negligently failed to discover that the building was structurally unsound. Id. at 359-60, 485 N.W.2d at 275-76. We decided:

*482As we have seen, Milwaukee Partners' complaint alleges that Collins Engineers "failed to exercise the degree of care, skill, and judgment" in making the inspection "usually exercised under like or similar circumstances by engineers licensed to practice in Wisconsin." This allegation states a claim in tort if Collins Engineers owed Milwaukee Partners a duty of due engineering care in the fulfillment of its contractual obligations.

Id. at 361, 485 N.W.2d at 276 (quoted source omitted). See also Jacobs v. Karls, 178 Wis. 2d 268, 277, 504 N.W.2d 353, 356-57 (Ct. App. 1993) (notwithstanding a contract, a landlord has an independent duty to use ordinary care in keeping premises in safe condition and the tenant may sue in tort for breach of this duty). I do not think it is possible to distinguish the instant case from Milwaukee Partners.

How then does the majority analyze this case? First, it concludes that this case is indistinguishable from McDonald v. Century 21 Real Estate Corp., 132 Wis. 2d 1, 390 N.W.2d 68 (Ct. App. 1986). Then it declines to review the issue of whether MNI's complaint states a negligence claim because MNI has failed to discuss any cases addressing the concept of "duty" in Wisconsin. I would not dissent if this was the only reason the majority concluded that MNI could not prevail on its negligence claim. But it is the majority's handling of McDonald which concerns me.

First, our ultimate conclusion in McDonald was, as here, that the appellant failed to cite authority to support their position. But I also believe that an examination of McDonald's facts shows that despite Wisconsin's broad definition of duty, it was not foreseeable that the real estate agency's failure to prequalify buyers would cause damages. Second, because the *483majority relies on McDonald alone, it does not consider Milwaukee Partners. I have explained why that case, one decided more recently than McDonald, should control the issue here. Third, and most importantly, I believe that Wisconsin's concept of "duty" requires a different result.

The majority holds that Pinkerton's had no duty to MNI by reasoning:

Indeed, the only reason Pinkerton's employees were on MNI's property in the first place was because of the contract, and whatever tasks and obligations Pinkerton's undertook in this regard originated not in some independently existing common-law duty but in the terms and conditions of the document.

Majority op. at 475. But I do not think we can conclude that Pinkerton's had no independent duty to MNI without considering how Wisconsin law defines "duty" in negligence cases. I will therefore review some of the cases which explain that concept.

I start with Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1299-1300 (7th Cir. 1991) (footnotes omitted), where the court said:

Wisconsin cases have sustained causes of action analogous to the tort of negligent supervision of employees. In Kamp v. Coxe Brothers & Co., 122 Wis. 206, 99 N.W. 366 (1904), the Wisconsin Supreme Court examined whether a wrongful death action could exist against an employer when an incompetent employee failed to warn a fellow employee of danger and that employee was killed. The court held that "the master who negligently or knowingly employs or retains an incompetent servant is liable for injuries thereby resulting to fellow servants who are not themselves negligent." Id. [,] 99 N.W.2d at 341. The court reasoned further that *484one "who knowingly exposes another to an imminent peril should respond for the result." Id. While the facts and, to some extent, the policy concerns underlying the Kamp decision are analogous to this case, it is not controlling. The Wisconsin Supreme Court's holding is limited to interpreting an exception to the common law fellow-servant rule that a master has a duty to select servants who will not endanger fellow servants through negligence on the job.
Later Wisconsin cases have recognized claims arising from the failure to supervise adequately the work of an independent contractor. A.E. Inv. Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 214 N.W.2d 764, 765 (1974) (architect allegedly failed to supervise adequately the construction of a building); Laesch v. L & H Indus., Ltd., 161 Wis. 2d 887, 469 N.W.2d 655, 657 (1991) (railroad allegedly failed to supervise adequately a contractor hired to remove rails from a right of way). Also, in the context of medical malpractice, the Wisconsin Supreme Court has held that a hospital has a duty to employ competent physicians. Johnson v. Misericordia Community Hosp., 99 Wis. 2d 708, 301 N.W.2d 156, 170-71 (1981) (hospital had a duty to hire competent doctors which it could breach by allowing an unqualified surgeon to perform negligently an operation).

I realize that Midwest found no cause of action in negligence for reasons not relevant here and that we are not bound by federal decisions on state issues. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 307, 340 N.W.2d 704, 712-13 (1983). Nonetheless, the Wisconsin cases cited in Midwest lead me to the conclusion that Wisconsin recognizes a cause of action in negligent training or supervision. If we expand our inquiry from negligent training or supervision cases to *485cases discussing the concept of duty in general, then this result is confirmed.

Wisconsin takes a minority view on this subject, and we should carefully examine what that concept entails. A good example is A.E. Inv. Corp., 62 Wis. 2d at 483-85, 214 N.W.2d at 766-67 (citations omitted), where the court said:

We believe that the narrow concept of duty relied on by the defendant architect has long been discarded in Wisconsin law. The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act. This is the view of the minority in Palsgraf v. Long Island R. R. Co. (1928), 248 N.Y. 339, 162 N.E. 99. This court . . . expressly adopted the Palsgraf minority rationale in Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N.W.2d 397. The history of this court's rejection of the no duty-no liability concept of the majority in Palsgraf is capsulized in Schilling v. Stockel (1965), 26 Wis. 2d 525, 531, 133 N.W.2d 335....
A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones. In addition, he is liable to unforeseeable plaintiffs.
As held in Schilling, once it is determined that a negligent act has been committed and that the act is a substantial factor in causing the harm, the *486question of duty is irrelevant and a finding of nonli-ability can be made only in terms of public policy.

In Schuster v. Altenberg, 144 Wis. 2d 223, 236-38, 424 N.W.2d 159, 165 (1988) (citations omitted), a more recent iteration of Wisconsin's view of "duty," the court said:

[I]t is a fundamental precept of Wisconsin negligence law that" [t]he concept of duty in Wisconsin, as it relates to negligence cases, is inexorably interwoven with foreseeability."....
More generally, the ... cases demonstrate that reliance upon a no duty-no liability theory is misplaced in Wisconsin: a "duty” exists when it is established that it was foreseeable that an act or omission to act may cause harm to someone.

More recently, the supreme court restated this issue succinctly: "Wisconsin law considers conduct to be negligent if it involves a foreseeable risk of harm to anyone. In Wisconsin, the doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability." Bowen v. Lumbermens Mut. Casualty Co., 183 Wis. 2d 627, 644, 517 N.W.2d 432, 439 (1994).1 Thus, Wisconsin law requires that we look at foresee*487ability when determining whether Pinkerton's had a duty to MNI to supervise its employees so as to avoid harm to its clients.

We must examine MNI's complaint to see whether it alleges that Pinkerton's actions carried a foreseeable risk of injury. The pertinent allegations of negligence are:

18. At all times material herein, Pinkerton's owed plaintiff MNI a duty of reasonable care with respect to providing necessary security, accessories, supervision and training of security personnel at said Madison, Wisconsin, facility and were required to use reasonable care in the selection, hiring, training and supervision of security and fire protection personnel assigned to provide said service.
20. Defendant Pinkerton's knew or should have known of the anti-social and dangerous propensities of said Jeffrey Breunig and the foreseeable harm to others that might result from employing and assigning said Jeffrey Breunig as a security and fire protection guard.
21. Defendant Pinkerton's failed to use reasonable care and was otherwise careless and reckless with respect to providing necessary security guards and supervision to ensure satisfactory security and fire protection at said Madison, Wisconsin, facility, including, but not limited to, the following particulars:
A. Failure to use reasonable care in the selection, investigation and training of security and fire protection personnel;
B. Failure to use reasonable care in the supervision of security and fire protection personnel;
*488C. Failure to use reasonable care to provide necessary and adequate fire protection security services;
D. Failure to properly investigate plaintiff MNI's suspicions that said Jeffrey Breunig was not an appropriate person to be a security guard;
E. Failure to remove said Jeffrey Breunig from the premises or properly supervise him following the first fire on September 20,1987;
F. Failure to conduct an appropriate background check on said Jeffrey Breunig before hiring him as a security guard;
G. Failure to properly train said Jeffrey Breunig after hiring him as a security guard; and
H. Otherwise failed to exercise the care and skill required of security and fire protection guards.

If, as MNI's complaint alleges, Pinkerton's was careless and reckless in providing the necessary security, accessories, supervision and training of security personnel, was it not foreseeable that some harm (not necessarily the harm that occurred) might have come to someone (not necessarily a client) who came in contact with an unsupervised and untrained security guard? Stated differently, if Pinkerton's failed to conduct the appropriate background check of an employee before hiring him or her, was it not foreseeable that some harm could come to someone who dealt with the guard?

I conclude that a failure to check a security guard's background, a failure to remove or warn MNI of a sus*489pected arsonist, and a failure to supervise the guard when Pinkerton's knew, or ought to have known, of the guard's dangerous propensities would, if proven, have been a breach of Pinkerton's duty to its clients. That is all that is required under Wisconsin's approach to "duty" in negligence cases. And that is why I respectfully dissent from part I of the majority's decision.

The court explained the breadth of its rule:

In Osborne v. Montgomery, 203 Wis. 223,234 N.W. 372 (1931), the court adopted the dissenting opinion of Judge Andrews in Pal-sgraf on the concept of duty and foreseeability: "Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others .... Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought to be the danger zone...." Palsgraf, 248 N.Y. at 360.

Bowen v. Lumbermens Mut. Casualty Co., 183 Wis. 2d 627, 644 n.12, 517 N.W.2d 432, 439 (1994).