The 5-2 decision, written by Justice Rebecca Frank Dallet, affirmed in part and reversed in part a Court of Appeals ruling in Estate of Lorbiecki v. Pabst Brewing Company. Chief Justice Jill Karofsky and Justices Brian Hagedorn, Janet Protasiewicz and Susan Crawford joined the majority.
Gerald Lorbiecki worked at the Pabst brewery in the mid-1970s as a member of Steamfitters Union Local 601, employed by an independent contractor. He was diagnosed with mesothelioma in 2017 and died before trial. A Milwaukee County jury awarded $6,545,163.55 in compensatory damages and $20 million in punitive damages, apportioning 22% of the compensatory liability to Pabst. The circuit court imputed non-party Sprinkmann Sons' 20% share to Pabst under the non-delegable duty imposed by the safe-place statute and, after applying the statutory cap on loss-of-society damages, set Pabst's share of compensatory damages at $2,328,968.69.
The court rejected Pabst's argument that the "general rule" in Tatera v. FMC Corporation — that a principal employer is not liable to an independent contractor's employee performing contracted work — bars the claim. "Tatera was a common-law negligence case, and the 'general rule' it applied is one about the common-law duty of ordinary care, not the heightened duty of care imposed by the safe-place statute," Dallet wrote.
The court held that a reasonable jury could find Pabst retained control over the work site, citing a company memorandum requiring contractors to notify Pabst before welds or cuts "so that all necessary precautions are taken to prevent a fire or explosion in and around our plant." A reasonable jury could also find that airborne asbestos — not the undisturbed asbestos in the pipes — was the unsafe condition, the court said, noting that the brewery contained "many miles" of asbestos-insulated pipe and that between 1963 and 1974 Sprinkmann delivered "hundreds of pounds, thousands of feet of asbestos-containing insulation going into the bottle house."
On punitive damages, the court held the evidence supported submission to the jury. "We have repeatedly emphasized that punitive damages are not available for mere negligence," Dallet wrote, quoting Wischer v. Mitsubishi Heavy Industries America that such damages are available "[o]nly when the wrongdoer's conduct is so aggravated that it meets the elevated standard of an 'intentional disregard of rights.'" The jury heard evidence that Pabst was on notice by 1971 that airborne asbestos was harmful, that asbestos insulation continued to be delivered to the brewery until new asbestos pipe insulation was banned in 1975, and that OSHA cited Pabst in 1986 for broken asbestos pipe insulation. The court said a jury could infer from Pabst's daily inspections and its notification rule for welds and cuts that the company was aware steamfitters' work released asbestos into the air.
The court reversed the Court of Appeals on the punitive-damages cap in Wis. Stat. § 895.043(6), which limits punitive damages to twice the compensatory damages "recovered by the plaintiff." The majority held the phrase "includes only amounts that a plaintiff is legally entitled to receive after obtaining a judgment, and excludes amounts that the plaintiff cannot obtain as a matter of law." Because Pabst was the sole remaining defendant at trial, the cap is twice the $2,328,968.69 attributable to Pabst, or $4,657,937.38.
In a concurrence joined by Justice Hagedorn, Dallet wrote separately to flag an unanswered question about what factual record appellate courts should review when considering a denied summary-judgment motion after trial. "[W]ithout clear guidance about the proper record to review on appeal, litigants and courts may be unsure about the scope of appellate review," she wrote.
Justice Annette Kingsland Ziegler dissented, joined by Justice Rebecca Grassl Bradley. Ziegler wrote that Pabst should have received summary judgment because Lorbiecki produced no evidence that the brewery was unsafe before the independent contractor began work. "The mere presence of asbestos on the property, particularly in an undisturbed state, does not qualify as an 'unsafe condition' on this record," she wrote. The dissent argued the majority "creates strict liability for premises' owners who hire independent contractors to remove or safely work with asbestos, even if the asbestos is undisturbed prior to that work."
The ruling leaves intact the $6,986,906.07 judgment entered by the Milwaukee County Circuit Court, which had already applied the narrower punitive-damages cap the Supreme Court reinstated.