By: Rick Benedict//April 26, 2017//
WI Supreme Court
Case Name: Donna Brenner v. Amerisure Mutual Insurance Company, et al
Case No.: 2017WI38
Focus: Negligence
Mr. Brenner and his wife sued MWF, Garland Brothers, and Charter (as well as their insurers) alleging negligence and violation of Wisconsin’s safe-place statutes. As particularly relevant here, the Brenners said Charter was negligent because it concealed or failed to disclose to MWF the holes in the metal grate flooring under the plywood boxes. Charter and Garland Brothers moved for summary judgment, relying primarily on the doctrine of caveat emptor as described in the Restatement (Second) of Torts § 352 (Am. Law Inst. 1965) (hereinafter “§ 352”). The circuit court dismissed both parties, concluding that the caveat emptor principle precluded judgment against them. The Brenners subsequently settled with Charter and Garland Brothers, which they documented with a settlement agreement that included a Pierringer release. MWF appealed Charter’s dismissal.4 MWF’s interest in this question is in ensuring it is exposed to no more than the correct quantum of liability. Notwithstanding Charter’s dismissal from the case, if the matter proceeds to trial, a jury would need to apportion liability amongst all eligible defendants——even those who have been dismissed through settlements. If the law of negligence makes Charter eligible for liability, MWF’s exposure potentially decreases, resulting in a smaller judgment against it. If Charter is not eligible for liability, the potential judgment against MWF could increase. On appeal, MWF argued that Charter was not a “vendor” under § 352, and even if it was, it would still be liable pursuant to the exception from exemption described in Restatement (Second) of Torts § 353 (Am. Law. Inst. 1965) (hereinafter “§ 353”). In a published decision, the court of appeals affirmed the circuit court’s summary judgment in favor of Charter.5 The court of appeals based its opinion on the caveat emptor doctrine as described in § 352, concluding that Charter was a “vendor” within the meaning of the Restatement test. It further found that, because MWF had reason to know of the danger posed by the wooden boxes that covered the holes,
Affirmed
Concur:
Dissent: