Behrendt v. Gulf Underwriters Ins. Co.

2009 WI 71, 318 Wis. 2d 622, 768 N.W.2d 568



In a negligence case, a defendant's conduct is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.


Plaintiff worker sought review of the appellate decision which affirmed a grant of summary judgment in favor of defendants, a company and its insurer in the worker’s action after he was injured when a tank exploded while he was using it at his job in an oil change business. The tank had been fabricated as a favor to the workers’ employer and it was made as a side job by someone who worked at the company at the time – it was subsequently customized for use in the oil change business. The worker claimed that the company was negligent in permitting the tank to be made as a side job and vicariously liable for its employee’s conduct in making the tank.


Whether a company who outsourced the fabrication of a gas tank which exploded on customers is liable under negligence?




Summary judgment was appropriate on the vicarious liability claim because the only evidence presented was the tank was a side project that was completed for the employee’s own purposes and thus was that the tank was a side project that was employment. As for the negligence claim, it was not foreseeable that under the company’s policy of allowing employees to do side projects, a non-press and explode and cause injury. The lack of foreseeable risk meant that the company could not have been said to have failed the exercise of ordinary care. Judgment affirmed.


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