Carlson, Todd v. Tactical Energetic Entry Systems, LLC et al
Filing
57
ORDER that Defendants Tactical Energetic Entry Systems, LLC and Maxum Indemnity Company's motion for attorneys' fees (dkt. # 30 ) is GRANTED. Plaintiff is ordered to pay defendants $4,356.00 in attorneys' fees. Defendants' mo tion for summary judgment (dkt. # 33 ) is GRANTED with respect to plaintiff's Safe Place Statute claim and GRANTED IN PART AND DENIED IN PART with respect to plaintiff's negligence claim. Signed by District Judge William M. Conley on 6/26/15. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TODD A. CARLSON,
v.
Plaintiff,
TACTICAL ENERGETIC ENTRY
SYSTEMS, LLC, and MAXUM
CASUALTY INSURANCE COMPANY,
OPINION AND ORDER
14-cv-248-wmc
Defendant,
and
CITIES & VILLAGES MUTUAL INSURANCE
COMPANY,
Subrogated Party.
Plaintiff Todd A. Carlson, a police officer with the City of Superior Police
Department, brings claims for negligence and violation of Wisconsin’s Safe Place Statute,
Wis. Stat. § 101.11, against Tactical Energetic Entry Systems, LLC (“TEES”), and its
insurer, Maxum Casualty Insurance Company. In particular, Carlson alleges that TEES’s
administration and oversight of a training exercise was lacking and resulted in Carlson
needlessly sustaining a significant injury to his left wrist. Before the court is defendants’
motion for summary judgment (dkt. #33) which the court will grant in part because: (1)
Carlson has failed to come forward with expert testimony required to prove all but one of
his negligence theories; and (2) TEES is neither an employer or owner for purposes of the
Safe Place Statute. 1 Carlson will be allowed to proceed on a single negligence theory
1
Cities & Villages Mutual Insurance Company was also named by TEES as a subrogated
party.
based on his claim that after providing training on a so-called “spider-hang” technique
specifically using a fixed wall, it was negligent to require police trainees to then undergo a
timed, competitive race through a tactical course that called for use of a spider hang
without at least providing a warning that no fixed wall existed below the roof line that
called for the use of the spider-hang technique.
UNDISPUTED FACTS 2
A. The Parties
Plaintiff Todd Carlson has been a duly licensed law enforcement officer employed
by the City of Superior Police Department in Superior, Wisconsin since January 1995.
Carlson currently serves as a patrol officer. For five to six years, he has also been a part
of the “Emergency Response Team,” which is the Superior Police Department’s SWAT
unit.
Defendant Tactical Energetic Entry Systems, LLC, provides tactical training to law
enforcement officers and military personnel.
While noting that its focus is on
mechanical, explosive and thermal breaching, plaintiff does not dispute this. When the
program at issue occurred in October 2011, TEES trainer John Mayer was part owner of
the company. Mayer relinquished his ownership interest in February 2014. TEES is
2
Defendants failed to file a reply in support of their proposed findings of facts, leaving
the court to guess as to how defendants might respond to those facts plaintiff disputed.
Moreover, in response to virtually every one of plaintiff’s proposed findings of facts,
defendants simply “objected” that the proposed fact was irrelevant and immaterial.
While perhaps true for some facts, this general objection does not aid the court in setting
forth the undisputed facts. With those concerns aside, for purposes of summary
judgment, the court finds the following facts to be material and undisputed except as
otherwise noted.
2
currently owned by Alan Brosnan and Pamela Vaughan, with Brosnan as the majority
owner. 3
Mayer had been involved in tactical training since November 1986, and he began
teaching tactical courses in August 2005. Mayer claims to be certified in the following
TEES courses:
hostage rescue/high risk warrant course; sniper course; dignitary
protection course; explosive handlers course; explosive entry course; advance explosive
entry course; thermal and ballistic breaching course; and mechanical and ballistic
breaching instructors course. Mayer is also certified by the National Rifle Association to
instruct the NRA’s handgun course and by the Tactical Firearms Training Team to
instruct a combat arts seminar course. Mayer has also received a number of certificates
and diplomas from various organizations including the United States Army.
B. Breaching Training Course
In response to a request, TEES submitted a proposal to the Eau Claire Police
Department Lieutenant Rodney Stearns, which included the general requirements to
conduct a proper breaching course. 4 This proposal was accepted, with the Eau Claire
3
The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §
1332(a). Plaintiff Carlson is a citizen of Minnesota. (Am. Not. of Removal (dkt. #8) ¶
7.) Defendant TEES is a citizen of Mississippi. (Id. at ¶ 8 (alleging that TEES has two
members, both of whom are individuals and citizens of Mississippi).) Defendant Maxum
Indemnity Company is citizen of Georgia, having been organized in that state and with
its principal place of business also in Georgia. (Id. at ¶ 9.) The amount in controversy
exceeds $75,000. (Id. at ¶ 10; Compl. (dkt. #8-1) p.8 (listing relief requested as
compensatory damages, medical expenses, lost wages, and pain and suffering, among
other items).)
4
The parties fail to provide any definition of “breaching.” From the court’s cursory
research, “[d]oor breaching is a process used by military, police, or emergency services to
3
Police Department to act as the hosting agency for a training to be held in October 2011.
Most of the equipment needed for the training was provided by the Eau Claire Police
Department, ultimately including doors on which the trainees could practice mechanical
and ballistic breaching techniques. Lieutenant Stearns also arranged for the training to
take place at Volk Field in Camp Douglas, Wisconsin.
TEES played no role in arranging for the use of Volk Field, nor does TEES
currently have, nor did it ever have, an ownership interest in or lease agreement for the
use of Volk Field. In addition, TEES’s instructor Mayer had never been to Volk Field
before the day of the training program.
The program itself was designed to train participants on breaching techniques so
that they could return to their departments and train other officers. The planned topics
included: the history and theory of non-explosive methods of entry; equipment selection;
carriage of tools and shotgun; breaching inward opening doors; breaching outward
opening doors; ballistic breaching techniques; planning considerations; scenario-based
training; lesson plan development; and how to properly present the lesson plans.
Mayer was not only the sole instructor for the course, but also the sole
representative of TEES at Volk Field. Deputies Peter Forbes and Spence Olson (both
presumably of the Eau Claire Police Department, although defendants fail to specify)
force open closed and/or locked doors. A wide range of methods are available, one or
more of which may be used in any given situation. These methods may be divided up
into mechanical breaching, ballistic breaching, explosive breaching, and thermal
breaching.” “Door Breaching,” Wikipedia, https://en.wikipedia.org/wiki/Door_breaching
(last visited June 26, 2015).
4
served as liaison officers, assisting Mayer logistically and administratively, although
Mayer had sole discretion as to which techniques to teach in the course.
Upon arrival at Volk Field on October 10, 2011, Deputy Forbes testified at his
deposition that Mayer, Olson and Forbes walked the entire obstacle course to observe
what types of structures were available. During the walk through, Forbes testified that
Mayer negotiated each obstacle to check it for safety.
TEES policy requires such a
walkthrough to inspect the course for hazards or safety risks. 5 Mayer also made and
hung some doors for trainees to practice breaching techniques.
C. October 2011 TEES Breaching Course
The first day of the breaching course was October 11, 2011. Plaintiff Carlson was
one of the trainees.
The trainees were taught breaching techniques through verbal
instruction and physical demonstration, as well as by performing the techniques under
Mayer’s supervision. Where the structures at a facility are sufficient, Mayer typically
taught the trainees how to execute a “spider-hang technique” -- a descent technique in
which one lowers his body by hanging from a ledge and then controls his descent to the
ground. 6
Defendants further explain that the technique is a “military and law
enforcement technique used to clear the front of the obstacle, [and] descend from the
5
While Mayer testified that he did not recall if he walked through the course prior to the
training at Volk Field, it is undisputed that a walkthrough took place in light of Forbes’
testimony.
6
Plaintiff does not dispute this but points out that the spider-hang is “not part of the
guide for the course.” (Pl.’s Resp. to Defs.’ PFOFs (dkt. #47) ¶ 64.)
5
roof or structure that minimizes exposure to hostile fire or detection and minimizes the
impact upon landing on the ground.” (Defs.’ PFOFS (dkt. #35) ¶ 66.) 7
After Mayer demonstrated this technique, Carlson and other trainees were given
an opportunity to practice it on a cement wall. Carlson emphasizes that during this
stage, the trainees were instructed to brace their feet against the wall as they descended.
Defendants dispute this characterization, explaining in part that the trainees were
instructed to maintain three points of contact until they started their descent, at which
point they would maintain only two points of contact -- their hands -- until the point
where they were able to drop to the ground. (Defs.’ Resp. to Pl.’s PFOFs (dkt. #53) ¶
12; see also Pl.’s PFOFs (dkt. #48) ¶ 13.)
The next day, October 12, 2011, the training culminated with a “full mission
scenario,” essentially a timed, competitive event incorporating all of the techniques
taught during the course under stressful conditions.
It was during this scenario that
Carlson was injured.
Defendants contend that the full mission scenario was explained to the trainees in
the classroom before going out onto the obstacle course area.
Plaintiff nevertheless
contends that only “portions” were explained, and that most notably, there was no
mention that the roof line below which trainees were expected to drop using the spiderhang technique “was a dugout,” which Carlson maintains he only later learned meant no
7
Based again on the court’s cursory research, it would appear that this technique is also
known as the “spider drop,” which seems a more apt description since no wires or other
equipment is used. Instead, it appears to be a technique used to hang from the edge of a
structure to reduce the distance to the ground and then drop in a controlled manner to
land safely.
6
wall was present below the roof to brace one’s feet against before executing a “drop.”
(Pl.’s Resp. to Defs.’ PFOFs (dkt. #47) ¶ 72.) Indeed, an overhead view of the obstacle
course was drawn out for the trainees on a white board in the classroom, demonstrating
to the trainees where they should go and providing at least some description of the
techniques to be used. After these verbal instructions, the trainees were then walked
through at least part of the obstacle course, but plaintiff maintains that the trainees were
not shown the dugout below the roof line at this time. During the walkthrough, Mayer
again instructed the trainees as to which techniques to use for at least some of the
obstacles.
The class was then divided into two groups, with Carlson in the first group.
Carlson’s injury occurred on the obstacle labeled “roof” or “dugout,” where the trainees
had been told to use the spider-hang technique to control their descent.
Unaware that
this part of the obstacle had no vertical wall face, Carlson described what happened next
at his deposition:
I get to the edge of the roof, get down on my stomach to the
edge of the roof. I swing the first leg over. I’m hooked on the
edge of the roof with my one toe. As I’m bringing the second
leg down and feeling for [] the wall [] to plant my feet against
[] as trained to support myself and control my descent, my
feet don’t find a wall; my feet continue to swing inside to the
point where I’ve -- I’ve now lost my balance, and the weight
of my -- my lower half of my body is pulling me off of the
edge of this roof. And I can’t -- with the weight that I have
attached to me, there is no -- nothing for my feet to catch in
support underneath.
(Deposition of Todd A. Carlson (“Carlson Depo.”) (dkt. #44) 99.)
Carlson fell
backwards, somehow arched his back to use his hands and arms to brace before hitting
7
the ground and injuring his left wrist. This injury required surgery where a steel plate
and numerous screws were inserted. At least one other trainee also fell, which he too
attributed to the absence of a vertical wall for bracing. 8
D. Negligence Theories
In his amended complaint, Carlson alleges that Mayer directed him “to proceed to
an unseen, and unseeable, obstacle which was not proper for the ‘spider hang’
technique.” (Am. Compl. (dkt. #8-2) ¶ 11.) Carlson further alleges that TEES was
negligent by failing to “exercise proper control and authority over the training area” and
“did not adequately inspect, build, regulate and otherwise provide and maintain a safe
area to conduct said training.” (Id. at ¶ 12.) In response to interrogatories, Carlson
clarified his negligence claim as:
TEES, by their employees or instructors, was negligent in
their administration and oversight of the training exercises.
Specifically, they failed to appropriately assess safety
concerns, failed to accurately instruct trainees regarding
techniques to use at specific points in the training, and
provided ineffective and dangerous instruction to their
trainees.
(Affidavit of Michael K. Roberts (“Roberts Aff.”), Ex. I (dkt. #39-9) ¶ 24.)
8
In his proposed findings of facts, plaintiff notes evidence of other unsafe aspects of the
training course, including unstable pieces of concrete, protruding nails and pieces of
rebar. These facts are not directly material to plaintiff’s claim of negligence leading to his
injury, although they may undermine TEES’s claim that Mayer adequately inspected the
area, serve as evidence of the general unsafe nature of the obstacle course, or perhaps is
offered in support of plaintiff’s safe place claim.
8
The Preliminary Pretrial Conference Order set a deadline of September 15, 2014,
for plaintiff as the proponent of his negligence and Safe Place Act, Wis. Stat. § 101.11,
claims to disclose expert testimony. (5/20/14 Order (dkt. #14) ¶ 2.) On September 17,
2014, plaintiff served his expert disclosure on defendants, naming eleven medical experts
and one liability expert, Jon V. Tofte.
Defendants then filed a motion to exclude
plaintiff’s expert witnesses on the basis that the disclosures failed to meet the
requirements of Federal Rule of Civil Procedure 26(a)(2). In response, plaintiff served
amended expert disclosures, naming one medical expert and a new liability expert,
Dennis Skogen.
Plaintiff also filed a motion to enlarge the time to serve his expert
disclosures.
On November 13, 2014, after holding a hearing, the court decided the parties’
cross-motions concerning expert disclosures.
While sanctioning plaintiff for the
disruption caused by his failures to make timely, complete expert disclosures, the court
gave plaintiff until November 21, 2014, to serve expert disclosures in compliance with
Rule 26(a)(2). 9 The court also extended the deadline by which defendants were to serve
their expert disclosures, as well as the dispositive motion deadline. On November 19,
2014, plaintiff served an amended expert disclosure retaining the one medical expert but
9
Specifically, the court sanctioned plaintiff by requiring him to pay defendants’
reasonable attorneys’ fees and costs incurred in having to bring and respond to these
motions and ordered defendants to submit their request and set a deadline for plaintiff’s
response. (11/13/14 Order (dkt. #29) p.10.) Defendants submitted a request for
$4,356.00 and provided time records and hourly rates in support of the request.
(11/18/14 Affidavit of Michael K. Roberts (dkt. #31) ¶¶ 2-3.) Plaintiff did not file a
response. Since the amount requested is well-documented and appears reasonable, the
court will award it in full.
9
withdrawing Skogen as an expert. Critically, for purposes of the motion before this court,
plaintiff failed to name any other liability expert. Defendants timely served their expert
disclosure, naming Robert Willis as their liability expert.
OPINION
I. Expert Testimony Requirement
“Whether expert testimony is necessary to support a given claim is a question of
law.”
Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶ 26, 289
Wis. 2d 252, 710 N.W.2d 680. The general rule in Wisconsin is expert testimony is
required for “matters involving special knowledge or skill or experience on subjects which
are not within the realm of the ordinary experience of mankind, and which require
special learning, study or experience.” Payne v. Milwaukee Sanitarium Found., 81 Wis. 2d
264, 376, 260 N.W.2d 386, 392 (1977); see also Cramer v. Theda Clark Mem’l Hosp., 45
Wis. 147, 150, 172 N.W.2d 427, 428 (1969).
In response, plaintiff points to Wisconsin’s adoption of the dissenting position in
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928), that “[e]very one owes to the
world the duty of refraining from those acts that may unreasonably threaten the safety of
others.” Id. at 103 (Andrews, J., dissenting). While this is the law in Wisconsin, see
Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 644 n.12, 517 N.W.2d 432, 439
n.12 (1994), the general adoption of this general principal does not provide the standard
required to decide if special expertise is required to assist a lay jury in understanding the
level of care required for a particular activity. “That standard is inherently quite abstract
10
and must be defined more specifically for any given case.” Lees v. Carthage Coll., 714 F.3d
516, 522 (7th Cir. 2013) (citing Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 32,
291 Wis. 2d 283, 717 N.W.2d 17).
In other words, while Wisconsin recognizes a
general duty of care, the scope of that duty varies, and in certain circumstances, expert
testimony is required to determine the specifics of defendant’s duty of care and, relatedly,
whether defendant breached that duty. See Lees, 714 F.3d at 522 (“Where the specifics
of a defendant’s duty of care involve specialized knowledge, plaintiffs must introduce
expert testimony to establish this element of a negligence claim.”) (citing Payne, 260
N.W.2d at 392).
For their part, defendants’ primary argument is that expert testimony is required
because the negligence claim rests on Mayer’s professional judgment. (Defs.’ Br (dkt.
#34) 13.)
But expert testimony is not required in all cases concerning professional
negligence or malpractice claims. Instead, “expert testimony will generally be required to
satisfy this standard of care as to those matters which fall outside the area of common
knowledge and lay comprehension.” Racine Cnty v. Oracular Milwaukee, Inc., 2009 WI
App 58, ¶ 40, 317 Wis. 2d 790, 767 N.W.2d 280 (quoting Pierce v. Colwell, 209 Wis. 2d
355, 362, 563 N.W.2d 166 (Ct. App. 1997)); see also In re Estate of Rille ex rel. Rille, 2007
WI 36, ¶ 43 n.22, 300 Wis. 2d 1, 728 N.W.2d 693 (“Not all cases alleging negligence of
licensed professionals require expert testimony: ‘[T]he necessity for expert testimony
depends upon the type of negligent acts involved.’” (quoting Payne, 81 Wis. 2d at 27576, 260 N.W.2d 286)). Accordingly, the critical question here is whether the standard of
11
care required for tactical police training falls outside of “common knowledge and lay
comprehension.” Oracular Milwaukee, 2009 WI App 58, at ¶ 40.
The crux of plaintiff’s negligence claim is that TEES (through its agent Mayer)
breached a duty of care owed to plaintiff by having him use a technique -- the spiderhang -- (1) on an inappropriate structure for use of that technique and (2) for which
plaintiff had not been adequately trained. Based on the record at summary judgment,
the court agrees that a lay jury would require expert guidance to understand: (1) whether
the spider-hang technique should only be used where an individual can brace himself
against a solid wall; and (2) whether a trainee instructed to use this technique against a
solid wall would be able to translate that lesson to a situation lacking the wall.
Notwithstanding plaintiff’s argument to the contrary, this assessment requires specialized
knowledge. “It is one thing for a jury unaided by expert testimony . . . to assess the care
with which the defendant in an automobile accident case drove, for that is something
with which almost all jurors are familiar; it is another thing for a jury to determine the
right standard of care to which to hold” a technical training company like defendant
TEES. Shadday v. Omni Hotels Mgmt. Corp., 477 F.3d 511, 515 (7th Cir. 2007); see also
Lees, (“[E]xpert testimony is required to establish the standard of care in negligence cases
. . . which involve issues of safety, security[,] and crime prevention.”) (quoting Varner v.
District of Columbia, 891 A.2d 260, 267 (D.C. 2006)); Caldwell v. J.H. Findorff & Son, Inc.,
2005 WI App 111, ¶ 28, 283 Wis. 2d 508, 698 N.W.2d 1232, 2005 WL 1077466, at *8
(Ct. App. Apr. 21, 2005) (unpublished) (“[E]xpert evidence is necessary here to establish
12
a general contractor’s standard of care when installing a soffit, or in supervising and
inspecting a subcontractor’s installation of a soffit, for a building of this type.”).
The cases cited by plaintiff in opposition are either distinguishable from the case
at hand or simply fail to advance his argument.
First, plaintiff looks to Dakter v.
Cavallino, 2014 WI App 112, ¶¶ 39-40, 358 Wis. 2d 434, 856 N.W.2d 523, for support.
In that case the Wisconsin Court of Appeals did not consider whether expert testimony
was required. Rather, the Dakter court simply explained that the superior knowledge of
the defendant factors into the standard of care he owed. Id. While Mayer’s superior
knowledge of tactical training certainly factors into the standard of care he owed to
Carlson, it does not address whether a lay jury could determine what the standard of care
itself was in light of the technical nature of tactical training generally and the spider-hang
technique specifically. Second, plaintiff cites Trinity Lutheran Church, 2006 WI App 22,
at ¶ 26. In that case, the plaintiff did present expert testimony on what caused a water
main pipe to break. Id. at ¶ 10. The Trinity court held, however, that expert testimony
was not required to support the basic proposition that with “the exercise of reasonable
care by those working on a construction site and those responsible for coordinating the
work, a water lateral should not be struck by a backhoe.” Id. at ¶ 27. Here, if anything,
the opposite would seem more likely: even with the exercise of reasonable care, a trainee
engaged in physically demanding exercises may get hurt. That is why those involved in
athletic events are generally required to sign waivers of liability -- some risks are inherent
in the activity.
13
Of course, this is not to say that TEES (or its agent Mayer) are free from all
liability claims. Rather, the court simply agrees with defendants that what duty TEES
owed Carlson and the other participants with respect to where and how to teach the
spider hang technique falls outside a lay jury’s “common knowledge and lay
comprehension.” Oracular Milwaukee, 2009 WI App 58, at ¶ 40.
This still arguably leaves Carlson’s claim that TEES and Mayer’s should have
reasonably foreseen that a trainee would have expected that the spider-hang technique as
taught would be effective during the more intense, competitive race through an obstacle
course, at least without any instruction on the proper technique for hanging and
dropping without a fixed wall. Defendants rightly point out that the unexpected is an
essential part of any training exercise, just as it is in police work generally, and argue that
Carlson should have known this without any instruction or warning, which certainly
rings true, but this is an argument that a lay jury can understand and decide without
expert guidance.
Specifically, Carlson maintains (1) he was instructed that the spider-hang
technique is only used with one’s legs against a fixed wall, something defendants dispute;
and (2) he was directed to use that technique when dropping off the roofline during a
timed training exercise at the close of the course without a sufficient overview of the
specific obstacle, something defendants also dispute. Assuming a jury credits Carlson’s
testimony, which seems unlikely but not wholly unreasonable on the current record, a lay
jury may decide that Mayer’s October 11th instruction of the spider-hang technique
14
failed to meet the basic safety standards of a police trainer. 10
Indeed, defendants
essentially concede plaintiff’s version of the instruction would be wrong and assert that
Mayer taught no such thing.
Similarly, again assuming the jury credits Carlson’s
testimony, a lay jury may decide that leaving trainees with at least the general impression
that they should expect a fixed wall below a roofline would not meet that same standard.
Here, too, defendants maintain they did no such thing.
In the end, the court finds expert testimony is necessary for Carlson to present a
negligence claim based on any theory that use of the spider-hang technique in the “roof”
obstacle, viewed in isolation, was a breach of a standard of care. Rather, to prove his
claim, Carlson must demonstrate first that Mayer’s instruction of the technique limited it
to instances where a vertical wall was available for placement of the trainees’ feet, and
second that Mayer failed to either (a) inform the trainees generally that the obstacle
course may require them to adapt the techniques taught to new situations or (b) apprise
the trainees that there was no fixed wall beneath the roof obstacle. In other words, if
Carlson can prove that Mayer failed to teach TEES’s approved technique for the spider
hang (Roberts Aff., Ex. G (dkt. #39-7) p.9) and warn the trainees of the general or
specific risks of failing to adapt that technique to new circumstances, then a lay jury may
find that Mayer’s instruction and description of the obstacle course breached the duty of
care he owed Carlson and the other trainees. It will be for the court, with the parties’
input, to fashion an appropriate jury instruction to define that standard for the jury.
10
Of course, if the court determines that Carlson’s version is wholly incredible or
unreasonable based on the evidence at trial, it may still direct a verdict on this remaining
negligence theory.
15
Finally, plaintiff appears to argue that preventing even some of his negligence
theories from reaching a jury based on the lack of expert testimony is an “extraordinary
step.” (Pl.’s Opp’n (dkt. #46) 9.) While the court does not make such decisions lightly,
it is the court’s responsibility to decide whether a standard of care and the defendants’
breach of that standard is “reasonably comprehensible to the jury.”
Trinity Lutheran
Church, 2006 WI App 22, at ¶ 26 (quoting City of Cedarburg v. Allis-Chambers Mfg. Co., 33
Wis. 2d 560, 567, 148 N.W.2d 13 (1967)). The record reflects that plaintiff himself
recognized the need for expert testimony and -- for reasons remain unclear -- repeatedly
failed to secure an expert, or at least an expert willing to opine formally as to TEES’s
breach of the appropriate standard of case.
In reviewing motions to strike under Federal Rule of Civil Procedure 703 and
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993), most courts, including this
one, will allow expert testimony to go to the jury, because most criticisms go to the
factual assumptions underlying the expert’s opinion or the weight the jury should place
on that opinion. This is not such a situation; rather, plaintiff rolled the dice by simply
failing to proffer any expert testimony. Because expert testimony was needed here on the
standard of care and TEES’s alleged negligence with respect to all but one of plaintiff’s
theories, the court will narrow plaintiff’s negligence claim to that theory alone and
partially grant defendants’ motion for summary judgment as to any other claim. 11
11
Defendants also argue that expert testimony is needed to demonstrate that “the ‘roof’
structure was unsafe or in hazardous condition” for purposes of proving a violation of
Wisconsin’s Safe Place Statute. (Defs.’ Br. (dkt. #34) 16.) Defendants fail to cite any
case law in support of this argument. Regardless, the court finds defendants’ alternative
16
II. Application of Safe Place Statute
Wisconsin’s Safe Place Statute provides in pertinent part:
Every employer shall furnish employment which shall be safe
for the employees therein and shall furnish a place of
employment which shall be safe for employees therein and for
frequenters thereof and shall furnish and use safety devices
and safeguards, and shall adopt and use methods and
processes reasonably adequate to render such employment
and places of employment safe, and shall do every other thing
reasonably necessary to protect the life, health, safety, and
welfare of such employees and frequenters. Every employer and
every owner of a place of employment or a public building now
or hereafter constructed shall so construct, repair or maintain
such place of employment or public building as to render the
same safe.
Wis. Stat. § 101.11(1) (emphasis added). In its opening brief, defendants contend that
TEES is not an owner of Volk Field and, therefore, cannot be liable under the Safe Place
Statute.
In response, plaintiff essentially concedes, as it must, that TEES is not the owner
of Volk Field. Instead, plaintiff contends that TEES was an employer and Carlson was a
frequenter of Volk Field.
With respect to this argument, the relevant portion of
Wisconsin’s Safe Place Statute -- as quoted fully above -- requires employers to furnish a
safe place of employment for frequenters of that place of employment.
Wis. Stat. §
101.11(1). Plaintiff, however, fails to advance any argument or direct the court to any
evidence in the record that TEES is an employer. More critically, plaintiff offers no legal
authority for the proposition that TEES’s one time use of Volk Field for a training
basis for summary judgment -- that TEES fails to meet the definition of either an owner
or employer -- provides a sounder basis for granting defendants’ motion as to that claim.
17
exercise by one of its agents somehow renders it TEES’s place of employment. 12 Since
the opposite would seem substantially more likely, the court will also grant defendants’
motion for summary judgment of plaintiff’s Safe Place Statute claim.
ORDER
IT IS ORDERED that:
1) Defendants Tactical Energetic Entry Systems, LLC and Maxum Indemnity
Company’s motion for attorneys’ fees (dkt. #30) is GRANTED. Plaintiff is
ordered to pay defendants $4,356.00 in attorneys’ fees.
2) Defendants’ motion for summary judgment (dkt. #33) is GRANTED with
respect to plaintiff’s Safe Place Statute claim and GRANTED IN PART AND
DENIED IN PART with respect to plaintiff’s negligence claim as set forth
above.
Entered this 26th day of June, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
12
Wis. Stat. § 101.01(4) defines an employer as “any person, firm, corporation, . . . as
well as any agent, manager representative or other person having control or custody of
any employment, place of employment or any employee.”
18
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