Beard v. Lee Enterprises, Inc.

591 N.W.2d 156, 225 Wis. 2d 1, 1999 Wisc. LEXIS 28
CourtWisconsin Supreme Court
DecidedApril 9, 1999
Docket96-3393
StatusPublished
Cited by32 cases

This text of 591 N.W.2d 156 (Beard v. Lee Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beard v. Lee Enterprises, Inc., 591 N.W.2d 156, 225 Wis. 2d 1, 1999 Wisc. LEXIS 28 (Wis. 1999).

Opinions

JON P. WILCOX, J.

¶ 1. Jane A. Beard seeks review of an unpublished court of appeals decision affirming the summary judgment entered by the Circuit Court for La Crosse County, Michael J. Mulroy, Judge, which dismissed her negligence suit against The La Crosse Tribune, Lee Enterprises, Inc., which owns the newspaper, and Liberty Mutual Insurance Company, their insurer (collectively "The Tribune"). On appeal, Beard argues that Anthony Kropelin, a minor at the time, was employed by The Tribune and that he was working in a street trade, as defined under Wis. Stat. § 103.21(1X1991-92),1 during prohibited hours when he was involved in a head-on collision that killed Beard's husband, Charles. Beard contends that as Anthony's employer, The Tribune is absolutely liable for allowing him to work in violation of the child labor laws.

¶2. Based on the statutory scheme regulating street trades, Wis. Stat. §§ 103.21 to 103.31, as well as related statutes, in particular Wis. Stat. § 102.60(7), we conclude that the legislature envisioned some [6]*6degree of knowledge, actual or constructive, on the part of the employer about an alleged employment relationship with a minor involved in a street trade before liability can attach. Because there is a factual question whether The Tribune had knowledge, actual or constructive, that Anthony was delivering materials for The Tribune, we reverse the circuit court's judgment.

HH

¶ 3. We first set forth the facts of the case. According to portions of his deposition testimony, Anthony Kropelin, who was sixteen at the time in question, frequently accompanied his father, Douglas, to The Tribune to pick up bundles of newspapers from employees at The Tribune's distribution center. Douglas had a bundle delivery agreement with the newspaper for which he was paid by The Tribune on a per trip basis for his distribution services.2 Anthony often assisted his father in delivering the bundles for which Douglas paid him.

¶ 4. Shortly before midnight on Thursday, July 9,1992, Anthony and a friend drove his father's van to The Tribune to pick up the bundles of newspapers. He "talked to the guys at the distribution tower for a while," and then received his bundles and delivered [7]*7them. At approximately .3:00 a.m. on July 10, 1992, Anthony returned to The Tribune to pick up bundles of the paper's Sunday supplement for his father to deliver to the route carriers for the upcoming Sunday edition. At that time, Anthony also picked up the Friday morning newspapers for his brother, James, who was a carrier for The Tribune, and then delivered the papers to the houses on James's carrier route.3 Anthony finished that delivery at approximately 4:00 a.m.

¶ 5. After finishing James's route, Anthony began to drive back home with the Sunday supplements still in the van. At approximately 4:15 a.m., Anthony struck a vehicle driven by Beard's husband, Charles. Charles died as a result of injuries suffered in the accident.

¶ 6. In July 1993, Beard, as a surviving spouse, executed a Pierringer4 agreement releasing Anthony from liability. Beard then filed suit against The Tribune. In her amended complaint, she alleged absolute liability for illegally employing a minor during prohibited hours, common law negligence for using a minor lacking sufficient age, experience, maturity or training to perform such work, and liability for Anthony's negligence under the theory of respondeat superior.

¶ 7. The Tribune filed a motion for summary judgment which the circuit court granted. The circuit court found that: (1) at best, Anthony was in an employment at the time of the subject collision; (2) the [8]*8Pierringer release acts to bar all claims against The Tribune based upon either vicarious liability or respon-deat superior; and (3) there is no independent cause of action in favor of a third-party based upon a violation of the child labor laws. The court dismissed the case and Beard appealed.

¶ 8. A majority of the court of appeals affirmed.5 The majority determined that without any evidence that The Tribune exercised control over the method or route of Anthony's travel home, he was acting outside the scope of his employment; therefore, The Tribune could not have violated, or be held liable for violations of, the child labor laws. Beard v. Lee Enterprises, Inc., No. 96-3393, unpublished slip op. at 7 (Wis. Ct. App. Sept. 25, 1997). The majority noted that without employer control, Anthony could not be an employee of The Tribune even under the street trades law. Id. As to Beard's common law negligence claim, the majority determined, as a matter of law, that The Tribune could not be held liable for permitting Anthony to deliver newspapers before 5:00 a.m. because he was a minor, licensed to operate a motor vehicle at any time under Wis. Stat. § 343.06(1). Beard, unpublished slip op. at 9. Beard petitioned this court for review.

II

¶ 9. Next, we set forth the standard of review. We review summary judgment rulings independently using the same methodology as that used by the circuit court. Grams v. Boss, 97 Wis. 2d 332, 338—39, 294 [9]*9N.W.2d 473 (1980). A motion for summary judgment must be granted when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 10. This case involves the interpretation of Wis. Stat. § 103.21, and related statutes. Statutory interpretation and the application of a statute are questions of law that we review independent of the circuit court and court of appeals. Colby v. Columbia County, 202 Wis. 2d 342, 349, 550 N.W.2d 124 (1996).

h-i

¶ 11. The case before us concerns an alleged violation of the child labor laws. An employer who violates the child labor laws is absolutely liable for injuries resulting from the violation. D.L. v. Huebner, 110 Wis. 2d 581, 640, 329 N.W.2d 890 (1983); see also Ludke v. Burck, 160 Wis. 440, 443, 152 N.W. 190 (1915). Absolute liability is proper if the plaintiff can prove that: (1) the employer violated the statute at or about the time of the injury; and (2) the injury occurred. Huebner, 110 Wis. 2d at 640. The injured party must also be within the protected class of people, i.e., the minor, other employees or frequenters. McGarrity v. Welch Plumbing, Co., 104 Wis. 2d 414, 427, 312 N.W.2d 37 (1981); see also Wis. Stat. § 103.65.

¶ 12.

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Bluebook (online)
591 N.W.2d 156, 225 Wis. 2d 1, 1999 Wisc. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beard-v-lee-enterprises-inc-wis-1999.