Torts — safe place statute — asbestos

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Wisconsin Court of Appeals

Civil

Torts — safe place statute — asbestos

The presence of asbestos is an “unsafe condition,” rather than a negligent “act of operation.”

“Thus, relying on Anderson and Calewarts to guide our analysis, we conclude that Viola’s amended complaint does allege an ‘unsafe condition.’ The amended complaint alleges that Viola worked in premises where pipes where covered with asbestos-containing insulations. The regular maintenance and/or repair of the premises required that the asbestos be disturbed. The asbestos was disturbed—in some instances by the decedent while performing work in the usual way as required by the decedent’s employer and/or Wisconsin Electric. There is no evidence that Viola performed any of this necessary maintenance or repair work negligently. Furthermore, Wisconsin Electric knew about the asbestos and its health hazards, but failed to protect Viola from these hazards. Finally, Viola died from mesothelioma caused by his asbestos exposure. Given these facts, we conclude that the presence of asbestos dust in the air at Wisconsin’s Electric’s premises was an ‘unsafe condition’ and that Viola’s amended complaint properly alleges a negligence claim asserting Wisconsin Electric’s violation of the Safe Place statute.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP22 Viola v. WEPCO

Dist. I, Milwaukee County, Witkowiak, J., Curley, J.

Attorneys: For Appellant: Pollack, Michael A., Milwaukee; McCoy, Robert G., Chicago; For Respondent: Schuett, Laura E., Milwaukee; Niquet, James A., Milwaukee; Rhoades, Travis J., Milwaukee; Luell, Stacy Kay, Milwaukee