Makela, Douglas v. United States of America
Filing
24
ORDER granting 14 Motion to Dismiss Count II of the Amended Complaint; granting 21 Motion to Substitute Party and extend 90-day deadline under Rule 25. Signed by District Judge William M. Conley on 4/1/2019. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JONATHAN MAKELA, as Personal
Representative of the Estate of Douglas
Makela,
Plaintiff,
OPINION AND ORDER
v.
18-cv-424-wmc
UNITED STATES OF AMERICA,
Defendant.
In this lawsuit, the personal representative of the estate of Douglas R. Makela is
seeking damages from the United States of America for personal injuries arising under the
Federal Tort Claims Act, 28 U.S.C.A. § 2671 et. seq.1
Before the court is defendant’s
motion to dismiss any claims under Wis. Stat. § 101.11, Wisconsin’s Safe Place Statute,
on the basis that the statute does not apply as a matter of law. (Dkt. #15.) For the reasons
that follow, the court will grant that motion.
ALLEGATIONS OF FACT2
Douglas Makela was a resident at the Tomah Veterans Affairs Medical Center
(“Tomah VA”). At the time of the incident at issue here, Makela was participating in the
homeless veterans program run by the Veterans Assistance Foundation out of Building 407
on the Tomah VA campus. On December 29, 2015, while walking from Building 407 to
Plaintiff Douglas Makela passed away on October 7, 2018, shortly after the filing of this lawsuit.
Plaintiff seeks to substitute Jonathan Makela, as the personal representative of the Estate of Douglas
Makela as plaintiff. (Dkt. #21.) That motion is granted, and the court has corrected the caption
to reflect this substitution.
1
Under Federal Rule of Civil Procedure 12(b)(6), the court “accept[s] as true all of the well-pleaded
facts in the complaint and draw[s] all reasonable inferences in favor of” plaintiff. Jakupovic v. Curran,
850 F.3d 898, 902 (7th Cir. 2017) (internal citation omitted).
2
the smoke shack at the Tomah VA, Makela allegedly slipped and fell on accumulated ice
and/or snow on the walkway and struck a bench with his body causing severe injury.
Plaintiff alleges that the United States failed to maintain the walkway in violation of
Wisconsin’s Safe Place Statute. Plaintiff also asserts a negligence claim, which is not a part
of the present motion.
OPINION
Wisconsin’s Safe Place Statute imposes a duty on every employer and every owner
of a public building to “construct, repair or maintain such place of employment or public
building as to render the same safe.” Wis. Stat. § 101.11. The statute imposes a higher
standard of care than that imposed by ordinary negligence. Megal v. Green Bay Area Visitor
& Convention Bureau, Inc., 2004 WI 98, ¶ 9, 274 Wis. 2d 162, 682 N.W.2d 857. Here,
that statute’s applicability turns on whether the walkway between the Tomah VA and
Building 407 qualifies as a “place of employment” under Wis. Stat. § 101.01(11) and/or a
“public building” under Wis. Stat. § 101.01(12).
Because the court finds that the
walkway does not meet the legal definition of either, the court will grant defendant’s
motion to dismiss.3
I. Place of Employment
The Safe Place Statute provides that a “place of employment”:
includes every place, whether indoors or out or underground
and the premises appurtenant thereto where either temporarily
or permanently any industry, trade, or business is carried on,
Because of this holding, the court need not address the government’s other ground for dismissal
of plaintiff’s Safe Place claim -- that the accumulated ice and snow on the walkway presented a
“temporary condition.”
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2
or where any process or operation, directly or indirectly related
to any industry, trade, or business, is carried on, and where any
person is, directly or indirectly, employed by another for direct
or indirect gain or profit.
Wis. Stat. § 101.01(11) (emphasis added).
Wisconsin has generally followed a bright-line rule that non-profit or government
institutions are not places of employment because they lack this profit-generating motive.
See, e.g., Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 639, 284 N.W.2d 318 (1979)
(“Institutions operated by nonprofit or governmental organizations are not places of
employment[.]”); Atl. Specialty Ins. v. United States, No. 16-cv-282-wmc, 2017 WL
1380625, at *2 (W.D. Wis. Apr. 17, 2017) (“Congress has made the determination as a
matter of law that the Postal Service is a governmental organization that is not operated
for profit.”) (internal quotations omitted). As plaintiff correctly points out, however, there
is no categorical exemption for government or non-profit institutions. Accordingly, “courts
should conduct an individualized inquiry to determine whether the intent of a particular
organization is to make a profit.” Flodin v. United States, No. 13-CV-853-BBC, 2015 WL
3651806, at *2 (W.D. Wis. June 11, 2015).
Here, this inquiry is easily resolved because the Tomah VA is a government
organization that does not directly or indirectly generate a “gain or profit.”
The
Department of Veterans Affairs “is an executive department of the United States,” 38
U.S.C. § 301(a), and the law requires the Tomah VA to deposit revenues in the
Department of Veterans Affairs Medical Care Collections Fund, 38 U.S.C. § 1729A. Any
amounts collected are then used for expenses and furnishing medical care and services to
veterans, not to generate a gain or profit. 38 U.S.C. § 1729A(c)(1)(A)-(B); see also Flodin,
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2015 WL 3651806, at *2 (“Congress has established as a matter of law that the purpose
of the clinic is to provide service to veterans, not to make money[.]”).
Acknowledging that the Tomah VA lacks a for-profit motive, Makela argues that
the Veterans Assistance Foundation, which operates the homeless veterans program in
Building 407, “in essence, acted as a for-profit entity” and transformed the building and
its appurtenances into a place of employment. (Pl.’s Br. In Opp’n (dkt. #16) 6.) The
Veteran’s Assistance Foundation is also a 501(c)(3) non-profit organization whose mission
is “to identify and address the issues faced by Veterans and low income persons.” 4 The
fact that the Foundation raises money neither changes its status as a non-profit, nor does
it make it an employer within the meaning of the safe place statute. See Voeltzke v. Kenosha
Mem’l Hosp., Inc., 45 Wis. 2d 271, 281, 172 N.W.2d 673 (1969) (“The fact that employees
of other employers . . . use the parking lot does not make the hospital an owner of a place
of employment[.]”).
Still, plaintiff further argues that the determination of an institution’s non-profit
status is premature at the pleading stage, relying on Leitner v. Milwaukee County, 94 Wis. 2d
186, 287 N.W.2d 803 (1980). (Pl.’s Opp’n (dkt. #16) 9.) However, Leitner dealt with an
employee of a for-profit business under contract with a publicly-owned zoo. Leitner, 94
Wis. 2d 186. There, the primary issue was whether to analyze the profit motive of the
property owner (a municipality) or an independent contractor employed on the property.
Id. at 190. No similar issue exists in the present case, as a government organization -- the
Tomah VA -- is both the owner and employer. Moreover, subsequent decisions make clear
See Veterans Assistance Foundation, Inc.
https://www.guidestar.org/profile/39-1798221.
4
4
2016
Form
990,
(Sep.
10,
2018),
that discovery would be a “pointless exercise” where Congress has already determined that
a “governmental organization . . . is not operated for profit.” Ribarich v. United States, No.
14-CV-735-BBC, 2015 WL 1321661, at *5 (W.D. Wis. Mar. 24, 2015) (“Although Leitner
may provide the general rule, I do not think that aspect of Leitner applies in this case.
Congress has made the determination as a matter of law that the Postal Service is
governmental organization that is not operated for profit[.]”); Atl. Specialty Ins., 2017 WL
1380625, at *2. Here, Congress has established as a matter of law that the purpose of the
VA clinic is not to make a profit. Flodin, 2015 WL 3651806, at *2.
II. Public Building
A “public building” under the Safe Place Statute
means any structure, including exterior parts of such building,
such as a porch, exterior platform, or steps providing means of
ingress or egress, used in whole or in part as a place of resort,
assemblage, lodging, trade, traffic, occupancy, or use by the
public or by 3 or more tenants.
Wis. Stat. § 101.01(12) (emphasis added).
The United States contends that the walkway on which Makela was injured falls
outside this definition, and the court agrees. First, it is not a “structure,” nor does it have
the characteristics of a building. Second, the Wisconsin Supreme Court has consistently
held that a sidewalk is not a public building. See, e.g., Bauhs v. St. James Congregation,
Madison, 255 Wis. 108, 110, 37 N.W.2d 842 (Wis. 1949) (“It is clear that a sidewalk is
not a structure.”); see also Meyers v. St. Bernard’s Congregation, 268 Wis. 285, 287-88, 67
N.W.2d 302 (Wis. 1954) (“[A] sidewalk area outside the building cannot be considered a
part of the building.”).
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While plaintiff appears to concede the sidewalk is not a public building, he
nonetheless argues that the statute still applies because the walkway is “appurtenant” to a
place of employment. (Pl.’s Opp’n (dkt. #16) 9.) As the United States correctly points
out, however, the phrase “appurtenant to” is only included in the definition of “place of
employment.” (Def.’s Reply (dkt. #19) 5.) Those words are notably absent from the
definition of “public building.”
Compare Wis. Stat. § 101.01(11) (defining “place of
employment”), with Wis. Stat. § 101.01(12) (defining “public building”). Instead, the
definition explicitly defines what “exterior parts” of a building are included, and while
“steps providing means of ingress and egress” are included, sidewalks are not. Because the
Tomah VA is not a place of employment, the fact that the walkway is appurtenant to the
building is meaningless.
ORDER
IT IS ORDERED that:
1) Defendant United States of America’s motion to dismiss count II of the
amended complaint (dkt. #9) is GRANTED.
2) Plaintiff’s motion for substitution of parties and to extend 90-day deadline
under Rule 25 (dkt. #21) is GRANTED. The clerk’s office is directed to change
the caption to reflect this substitution.
Entered this 1st day of April, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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