Umansky v. ABC Insurance

2009 WI 82, 769 N.W.2d 1, 319 Wis. 2d 622

• Court: Wisconsin Supreme Court
• Decided: June 17, 2009
• Docket: 2007AP385
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This is a review of a published court of appeals decision¹ that reversed a grant of summary judgment for the petitioner and remanded the case to the circuit court. This wrongful death case concerns a claim by cross-respondents (the Umanskys) that Barry Fox (Fox), the director of facilities for Camp Randall Stadium, negligently caused the death of Richard Umansky (Umansky) by failing to enforce a specific safety regulation at Camp Randall. Umansky was a television cameraman for ABC, Inc. He fell approximately eight feet to his death from a four-foot by eight-foot platform supplied by the University. There was no railing on Umansky's platform at the time. The Wisconsin legislature has adopted federal safety regulations and made them applicable for all public buildings, and such regulations require that railings be installed on platforms like the one from which Umansky fell.

¶ 2. As a state employee, however, Fox enjoys immunity from liability unless, under the circumstances, at least one of the limited exceptions to immunity applies. We must address whether Fox's obligation pursuant to statute to act to ensure that Camp Randall Stadium complies with the Occupational Safety and Health Administration (OSHA) regulation requiring a railing on certain types of platforms creates a ministerial duty exception to the standard rule of state employee immunity. Specifically, the narrow question we address is whether Fox had a ministerial duty under 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50 (Aug. 2004),² to have a rail on the platform from which Umansky fell. Finding that no exception applied, the Dane County Circuit Court, the Honorable John C. Albert presiding, granted summary judgment for Fox. The Umanskys appealed. The court of appeals reversed, making a number of rulings favorable to the Umanskys related to the issue of whether Fox had a ministerial duty and is thus unable to claim immunity.

¶ 3. However, the court of appeals declined to address one of Fox's arguments, newly made on appeal, deeming it waived. Because of the potential impact of the new argument³ on a determination of whether Fox's employer was required by state law to comply with the applicable regulation, the court of appeals stopped short of holding that the regulation applied to Fox's employer, leaving that determination to be made on remand to the circuit court. The court of appeals thus made a number of rulings⁴ with which we agree and which we adopt and ultimately concluded that Fox was not entitled to summary judgment on the ground of immunity:

[W]e conclude Fox was responsible for compliance with state and federal safety regulations and this job responsibility is sufficient to impose on him the duty to comply with 29 C.F.R. § 1910.23(c)(1) insofar as the regulation applies to his employer. We further conclude that, given the height and structure of the platform from which Umansky fell, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the platform, if Fox's employer was required by state law to comply with this regulation as to this platform.

Umansky v. ABC Ins. Co., 2008 WI App 101, ¶ 3, 313 Wis. 2d 445, 756 N.W.2d 601. Fox petitioned for review and we granted his petition.

¶ 4. We now adopt and affirm those court of appeals' rulings listed above. We conclude that Fox had a ministerial duty here. His job description provided that he was responsible for compliance with state and federal safety regulations, including 29 C.F.R. § 1910.23(c)(1). "[Gjiven the height and structure of the platform from which Umansky fell, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the platform . . .." Umansky, 313 Wis. 2d 445, ¶ 3. Further, because we reach and ultimately reject the argument that the regulation at issue does not apply to Fox's employer, our holding resolves the remaining question from the court of appeals' rulings. We thus remand to the circuit court, having answered the threshold question concerning Fox's immunity from suit by concluding that Fox had a ministerial duty to perform the act of ensuring that the platform complied with the applicable regulation. The focus of the circuit court must be on breach, causation, comparison of fault, and damages, not on the question of by whom the deceased was employed. We remand for a trial on the Umanskys' negligence claim.

¶ 5. We first set forth the factual background and the applicable legal framework in Parts I and II. In Part III, we address the specific regulation that creates the ministerial duty exception here. In Part iy we discuss the applicability of the regulation to all public buildings of a public employer. In Part y we discuss the inapplicability of the Safe Place Statute to this case.

I. BACKGROUND

¶ 6. The court of appeals set forth the facts and procedural history as follows:

Umansky was employed as a cameraman by ABC Inc. On November 21, 2003, he was found lying unconscious beneath a platform from which he had been working at the University of Wisconsin's Camp Randall Stadium. He later died as a result of injuries sustained from falling from the platform to the concrete walkway below.

Umansky's parents and the Estate of Richard Umansky filed this action against Fox, claiming that Umansky's fall was caused by Fox's negligence. The amended complaint alleged that Fox was responsible for the safety of Camp Randall Stadium, including compliance with state and federal safety regulations, and that he was negligent in failing to ensure that the platform was reasonably safe and in failing to comply with the applicable regulations, including failing to provide railings on the platform in violation of 29 C.F.R. § 1910.23(c)(1).

[After a motion to dismiss was denied,] Fox moved for summary judgment based on discretionary act immunity for public employees. He submitted his affidavit in which he averred that the platform from which Umansky fell had been in use by ABC Inc. and other broadcasting companies for several years prior to the accident, and no one had indicated to him that the platform was not safe or did not comply with applicable regulations. Umansky's submissions included Fox's deposition, the Occupational Safety and Health Administration (OSHA) accident investigation report, and a citation and notification of penalty to ABC Inc. for a violation of 29 C.F.R. § 1910.23(c)(1). The regulation provides: "Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder...."

Umansky, 313 Wis. 2d 445, ¶¶ 6-9.

¶ 7. As noted above, the circuit court granted Fox's motion for summary judgment, reasoning that neither the ministerial duty exception nor the known danger exception applied in this case; because it found no applicable exception, the circuit court found that Fox's immunity as a state employee barred a suit. As noted above, the court of appeals reversed.

II. STANDARD OF REVIEW AND RELEVANT LAW

¶ 8. We review a grant of summary judgment de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2) (2001-02)⁵.

¶ 9. Immunity for public officers and employees is grounded in common law, Kimps v. Hill, 200 Wis. 2d 1, 9, 546 N.W.2d 151 (1996), and is based largely on "public policy considerations that spring from an interest in protecting the public purse and a preference for political rather than judicial redress" for actions. Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis. 2d 323, ¶ 23, 646 N.W.2d 314.

¶ 10. The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Kimps, 200 Wis. 2d at 10. The rule, however, is subject to exceptions, representing a "judicial balanc[e] [struck between] the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress." Lister v. Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). The exception at issue in this case is that a state employee "is not shielded from liability for the negligent performance of a purely ministerial duty." Kimps, 200 Wis. 2d at 10.

¶ 11. The definition of ministerial duty has remained substantially the same since it was adopted in 1955 in Meyer v. Carman, 271 Wis. 329, 73 N.W.2d 514 (1955): " 'A... duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.'" C.L. v. Olson, 143 Wis. 2d 701, 711-12, 422 N.W.2d 614 (1988) (quoting Lister, 72 Wis. 2d at 301).

¶ 12. The defense of discretionary act immunity for public officers and employees assumes negligence and focuses on whether the action or inaction upon which liability is premised is entitled to immunity. Lodl, 253 Wis. 2d 323, ¶ 17. The proper scope of the common law doctrine of discretionary act immunity, when there are no disputed facts, is a question of law. Bicknese v. Sutula, 2003 WI 31, ¶ 15, 260 Wis. 2d 713, 660 N.W.2d 289.

III. THE MINISTERIAL DUTY EXCEPTION

¶ 13. We begin by setting the question we are to answer into context. The Umanskys' claim is that Fox negligently caused the death of Umansky. The amended complaint alleges:

At all times pertinent to this action [Fox] was responsible for the condition of the Camp Randall Stadium where Richard Umansky was killed, and was specifically responsible for the safety of the facility, including compliance with the state and federal regulations.

On information and belief, the incident was caused by the negligence of Barry Fox ... in failing to ensure the platform from which Richard Umansky fell was reasonably safe, failing to comply with OSHA regulations, failing to comply with Wisconsin safety regulations for similar structures, failing to establish appropriate guidelines and practices to ensure compliance with OSHA and State safety regulations, failing to provide and maintain a safe environment within Camp Randall Stadium, failing to provide railings on the platform from which Richard Umansky fell in violation of 29 CFR 1910.23(c)(1)....

¶ 14. Of course, before the Umanskys can proceed to attempt to prove their negligence case, they must first defeat Fox's defense of immunity, to which he is entitled as a state employee unless an exception applies.⁶ The Umanskys argue that the ministerial duty exception applies to defeat Fox's immunity.⁷ As discussed above, "a public officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty." Kimps, 200 Wis. 2d at 10. We turn, then, to this preliminary question. To answer it, we will consider the relevance of safety regulations applicable to the platform under state law for the limited purpose of establishing whether the regulations satisfy the definition of a ministerial duty and therefore constitute an exception to the rule giving Fox immunity from liability.

¶ 15. If Fox was subject to a "purely ministerial duty" to have a railing installed on the platform, he is not immune from liability. As we noted previously, a duty is a "purely ministerial duty" if it is "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." C.L., 143 Wis. 2d at 711 (citing Lister, 72 Wis. 2d at 301).

¶ 16. We first need to determine whether a source of law "imposes, prescribes and defines the time, mode and occasion for [the] performance [of a specific task]." C.L., 143 Wis. 2d at 711. At the beginning of its analysis, the court of appeals identified the specific act at issue and the law which requires it:

[T]he allegation of a failure to provide railings in violation of 29 C.F.R. § 1910.23(c)(1) does allege a specific act Fox failed to perform, and this, the plaintiffs assert, is the source of his ministerial duty.

29 C.F.R. § 1910.23(c)(1) provides: (c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing [defined in paragraph (e)(1)⁸] (or the equivalent as specified in paragraph (e)(3)⁹ of this section) [.]

OSHA regulations in general, and this one in particular, do not apply directly to the University of Wisconsin because a state and its subdivisions are excluded from the definition of "employer." Williams-Steiger Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, § 3(5), 84 Stat. 1590, 1591 (1970); 29 C.F.R. § 1910.2(c). However, Wis. Admin. Code § Comm 32.15 provides, with certain exceptions not applicable here, that "all places of employment and public buildings of a public employer shall comply with the federal [OSHA] requirements adopted under s. Comm 32.50." Wisconsin Admin. Code § Comm 32.50(2) adopts 29 C.F.R. pt. 1910, thus making § 1910.23 applicable to places of public employment and to public buildings.

Umansky, 313 Wis. 2d 445, ¶¶ 25-27.

¶ 17. The court of appeals examined 29 C.F.R. § 1910.23(c)(1) and observed, "The regulation does not allow for the option of no railing in these circumstances and the regulation is very specific as to what type of railing is required. The duty to have a railing meeting the regulation's requirements is imposed by law, it is absolute, certain and imperative, and it requires performance in a specified manner and upon specified conditions that are not dependent upon the exercise of judgment or discretion." Id., ¶ 48. In addition, the court of appeals noted that Fox, in his deposition testimony, had stated that regarding oversight of facility safety, the "day-to-day single responsibility does lie with me" and that the platform's compliance with OSHA requirements "ultimately... would have been my decision." Id., ¶ 50.

¶ 18. That determination by the court of appeals —that the highly specific safety regulation in force under Wisconsin law for railings on platforms created a ministerial duty such that there is an exception to the ordinary rule of immunity — was the basis for the court of appeals' reversal of the grant of summary judgment. We agree with the court of appeals that because 29 C.F.R. § 1910.23(c)(1) "imposes, prescribes and defines the time, mode and occasion. . . with such certainty that nothing remains for judgment or discretion" and because Wis. Admin. Code § Comm 32.50(2) makes it applicable to public buildings of a public employer, Fox was under a ministerial duty to act to ensure a railing was on the platform.

IV FOX ARGUES THAT ANY DUTY RUNS ONLY TO PUBLIC EMPLOYEES OR ONLY TO A PLATFORM ON WHICH PUBLIC EMPLOYEES WORK

¶ 19. First, Fox contends that the duty created by the OSHA regulation pursuant to administrative code provisions, which in turn are pursuant to statute,¹⁰ is a duty only to public employees. Because Umansky was not a public employee, Fox argues, the duty does not run to him. The basis for this argument is that the relevant administrative code provision notes that its purpose is to create work safety standards for public employees,¹¹ and the underlying statute has the stated purpose of giving public employees workplace safety protections equivalent to those afforded to private employees under OSHA.¹² We therefore turn our attention from the specific regulation that creates a ministerial duty here to the statute and administrative code sections that authorized it. The stated purpose of the statute is to offer equivalent occupational safety protections. That purpose is turned on its head by Fox's reading that argues for a divided, haphazardly applicable ministerial duty to comply with the explicit OSHA regulation requiring a railing on a platform. That such an approach is unworkable is readily apparent given the nature of the ministerial duty created by this regulation. The regulation, 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. §§ Comm 32.15 and 32.50, created a ministerial duty to comply with the safety regulation requiring railings on platforms such as the one involved here. Fox urges the peculiar conclusion that even though the administrative code adopted pursuant to Wis. Stat. § 101.055 admittedly requires the necessary safety provisions in "all places of employment and public buildings,"¹³ the statute's stated purpose of protecting public employees somehow justifies allowing the breach of a ministerial duty with impunity, so long as the person injured or killed happens not to be a public employee.

¶ 20. There is nothing in the statute or in the administrative code provisions which says that compliance with 29 C.F.R. § 1910.23(c)(1) is intended, and is relevant, only when a public employee is injured or killed. Since OSHA does not apply to public employees,¹⁴ there was a need to adopt a Wisconsin OSHA to include those employees. There is nothing to indicate that the legislature intended to create different safety standards for public and private employers and employees; rather, as we noted previously, the intent was to create identical safety standards.¹⁵

¶ 21. There is no dispute that the legislature required all public buildings to be brought into compliance with OSHA minimum standards. There is no dispute that Camp Randall Stadium is a public building, and there is no dispute that the University of Wisconsin is a public employer. It was Fox's responsibility, as director of facilities for Camp Randall Stadium, to be sure that the Stadium complied with OSHA regulations. Period. The OSHA regulation at issue in this case created a ministerial duty, and nothing in our case law on ministerial duty supports the proposition that such a duty can be limited by reference to whether only a particular person is owed that duty.

¶ 22. As we noted earlier in this opinion, the court of appeals deemed a new argument Fox raised at oral argument before it waived and declined to address it though the court left open the possibility that the argument could be pursued on remand to the circuit court. Before this court, Fox made a similar argument. The argument overlaps considerably with the argument just discussed; Fox contends that the question is not whether the platform was generally required to have a railing, but whether the platform was required to have a railing at the time Umansky fell. Fox submits that because there has been no evidence submitted that a public employee was using the platform at the time Umansky fell,¹⁶ the Umanskys have failed to allege facts that would establish a ministerial duty and that summary judgment should therefore be granted in his favor. This is a variation on his earlier argument. The first, addressed above, turns on the identity of the person injured (i.e., if two persons were on the platform and both fell, no ministerial duty exception could apply as to the private employee, and a claim by that person's representative would be barred by immunity). This argument focuses on the platform itself, and the use of the platform by a public employee at the relevant time (i.e., only if it were alleged that a public employee was occupying the platform at the moment the private employee fell, the ministerial duty exception would apparently apply, and a claim by the private employee's representative would not be barred by immunity).

¶ 23. As noted previously, the court of appeals deemed this argument waived but noted that this argument could be developed further at the circuit court. We disagree. Since the issue was raised again here, we exercise our discretion to reach it, rather than deem it waived.¹⁷ Fox's argument to this court was that the material facts — that no public employee was on the platform at the time Umansky fell and that Umansky himself was not a public employee — were undisputed. Because Fox argues that at least one of those conditions would have to be met in order to establish a ministerial duty, he contends that absent such evidence, summary judgment in his favor is appropriate.

¶ 24. Since we have established that a ministerial duty exception arises from 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50, and Fox's role as the person responsible for acting to ensure that the facilities comply with the regulations, and because we have already rejected Fox's argument that the statute's purpose limits the applicability of the duty to public employees, we view any argument as to other people occupying or. not occupying the platform as not material and therefore not necessary to our holding as set forth herein.

¶ 25. We therefore answer in the affirmative the narrow question presented and conclude that the Umanskys can proceed to trial in the circuit court on their claim of negligence. The questions of breach, causation, comparison of fault, and damages will of course need to be addressed by the trier of fact.

V. THE SAFE PLACE STATUTE

¶ 26. In addition, Fox argues that the OSHA regulations in force pursuant to Wis. Admin. Code §§ Comm 32.15 and 32.50 and pursuant to Wis. Stat. § I0l.055(3)(a)¹⁸ articulate the standard under the safe place statute, Wis. Stat. § 101.11.¹⁹ The statute adopting OSHA standards for public employees is therefore properly read, Fox asserts, in tandem with the safe place statute. Fox then points to case law that holds that the obligations the safe place law imposes on employers cannot be delegated. See, e.g., Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 132, 301 N.W.2d 201 (1981) ("[T]he person who has that duty cannot assert that another to whom he has allegedly-delegated the duty is to be substituted as the primary defendant in his stead for a violation of safe place provisions."); Pitrowski v. Taylor, 55 Wis. 2d 615, 627, 201 N.W.2d 52 (1972) ("[T]he duty of complying with [the safe place statute] is on the employer[.]... It cannot be delegated to or placed upon ... officers or employees.").

¶ 27. We are, of course, not dealing here with a claimed violation of the safe place statute at all. The complaint of the Umanskys makes it clear that the claim underlying the questions we address here as to immunity is one of common law negligence. We agree with the court of appeals that there is "no logical connection between an employer's inability to shift its liability for a safe place violation to a third party and its ability to delegate to an employee the duty to comply with applicable safety regulations." Umansky, 313 Wis. 2d 445, ¶ 31. This is not a safe-place statute case, and the rules concerning such claims do not govern here.

VI. CONCLUSION

¶ 28. We now adopt and affirm those court of appeals' rulings listed above. We conclude that Fox had a ministerial duty here. His job description provided that he was responsible for compliance with state and federal safety regulations, including 29 C.F.R. § 1910.23(c)(1). "[G]iven the height and structure of the platform from which Umansky fell, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the platform____" Umansky, 313 Wis. 2d 445, ¶ 3. Further, because we reach and ultimately reject the argument that the regulation at issue does not apply to Fox's employer, our holding resolves the remaining question from the court of appeals' rulings. We thus remand to the circuit court, having answered the threshold question concerning Fox's immunity from suit by concluding that Fox had a ministerial duty to perform the act of ensuring that the platform complied with the applicable regulation. The focus of the circuit court must be on breach, causation, comparison of fault, and damages, not on the question of by whom the deceased was employed. We remand for a trial on the Umanskys' negligence claim.

By the Court. — The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for a trial on the claim of negligence.

1 Umansky v. ABC Ins. Co., 2008 WI App 101, 313 Wis. 2d 445, 756 N.W.2d 601.

2 All subsequent references to the Wisconsin Administrative Code are to the August 2004 version unless otherwise indicated. The relevant language in the sections cited herein has remained unchanged since it took effect on March 1, 1999.

3 The new argument was that Fox was entitled to summary judgment because the plaintiff had not alleged facts showing that the platform was a workspace for public employees, and thus had made no showing that Fox's employer had a duty of any sort with respect to the platform. In other words, the argument was that any duty to ensure the safety of the platform would have belonged to the employer of the private employee who used it. Here the argument by the petitioner has brought into sharp focus the issue as to whether the regulations apply to public buildings of a public employer such as Fox’s employer.

4 The court of appeals stated:

[W]e make a number of rulings related to the exception. First, the nondelegability to third parties of an employer's duty under the safe place statute does not prevent suit against a state employee for failure to comply with a safety regulation adopted pursuant to Wis. Stat. § 101.055(3) (2001-02). Second, the "law" that is the source of the ministerial duty need not specify the employee position responsible for carrying out the duly; it is sufficient if the "law" imposes a duty that is ministerial and other evidence establishes that a particular employee is responsible for carrying out that duty. Third, a regulation that otherwise imposes a ministerial duty is not discretionary simply because the supervisory employee responsible for compliance with the regulation has discretion with respect to assigning tasks to carry out that duty. Fourth, 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50, imposes a ministerial duty to have a railing meeting the specifications of the regulation on a platform that meets the requirements of the regulation.

Umansky, 313 Wis. 2d 445, ¶ 2.

5 All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

6 The Umanskys suggest that this court should use this case to state a new rule limiting the discretionary immunity doctrine to those state employees involved in legislative or judicial policymaking. Under such an approach, they argue, Fox would have no immunity. We decline to do so.

7 The Umanskys argue that another exception, the "known danger" exception, applies as well. That exception, set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), is present where "the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act." C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988). In regard to that exception, we agree with the court of appeals that it is not clear from the amended complaint that "the platform presents the type of compelling danger that warrants an exception to immunity." Umansky, 313 Wis. 2d 445, ¶ 69. The known danger exception "has been reserved for situations that are more than unsafe, where the danger is so severe and so immediate" that a response is demanded. Id., ¶ 70. There is no need for us to address that exception any further here.

8 29 C.F.R. § 1910.23(e)(1) provides:

A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be approximately halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard.

9 29 C.F.R. § 1910.23(e)(3)(v) provides:

Other types, sizes, and arrangements of railing construction are acceptable provided they meet the following conditions: (a) A smooth-surfaced top rail at a height above floor, platform, runway, or ramp level of 42 inches nominal; (b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure; (c) Protection between top rail and floor, platform, runway, ramp, or stair treads, equivalent at least to that afforded by a standard intermediate rail....

10 Wis. Stat. § 101.055(3)(a). See infra, ¶ 26 n.18

11 Wis. Admin. Code § Comm 32.001: "Purpose. This chapter establishes minimum occupational safety and health standards for public employees."

12 Wis. Stat. § 101.055(1):

Intent. It is the intent of this section to give employees of the state, of any agency and of any political subdivision of this state rights and protections relating to occupational safety and health equivalent to those granted to employees in the private sector under the occupational safety and health act of 1970 (5 USC 5108,5314,5315 and 7902; 15 USC 633 and 636; 18 USC 1114; 29 USC 553 and 651 to 678; 42 USC 3142-1 and 49 USC 1421).

13 Wis. Admin. Code § Comm 32.002.

14 29 U.S.C.A. § 652(5) (defining an employer governed by the regulations as "not includ[ing] the United States (not including the United States Postal Service) or any State or political subdivision of a State").

15 See Wis. Stat. § 101.055(1), supra, ¶ 19 n.12

16 At the court of appeals, the argument was presented slightly differently: "Fox asserts that the regulation did not apply because there is no evidence this platform was ever used by a public employee as a workspace." Umansky, 313 Wis. 2d 445, ¶ 63. However, Fox abandoned that version of the argument before this court. In his brief, he instead stated a more limited argument:

The question is not whether 29 C.F.R. § 1910.23(c)(1) required the platform to have a railing at all times but whether Wis. Admin. Code §§ Comm 32.15 and 32.50 required the platform to have a railing at the time decedent fell. And the answer is no because there is no evidence that any public employees were using the platform at that time." (Emphasis added.)

At oral argument, Fox argued, somewhat inconsistently with the brief, that such facts

would not make any difference as a practical matter because even if public employees had been using the platform at the time Mr. Umansky fell, there would still be no duty on the part of the State that could be delegated to Fox that would run to Mr. Umansky [because] he was a private employee.

Contrary to the dissent's assertion, before this court, Fox sought only to reverse the court of appeals and made no request in the alternative for a remand for additional fact-finding related to the question of the platform's use by public employees. Justice Ziegler's dissent, ¶¶ 105-07

17 State v. Caban, 210 Wis. 2d 597, 609, 563 N.W.2d 501 (1997) ("The rule of waiver is one of judicial administration and does not limit the power of an appellate court in a proper case to address issues not raised in the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). This court has the power in the exercise of its discretion, to consider issues raised for the first time on appeal.")

18 Wis. Stat. § 101.055(3) Public employee safety and health:

(a) The department shedl adopt, by administrative rule, standards to protect the safety and health of public employees. The standards shall provide protection at least equal to that provided to private sector employees under stemdards promulgated by the federed occupational safety and health administration!] ....

19 Wis. Stat. § 101.11 Employer's duty to furnish safe employment and place:

(1) 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.