In Rabitoy v. Billington (2018AP270), the Court of Appeals District III held that a property owner was not liable for injuries sustained when an employee on his property misused equipment outside the scope of his employment.

Defendant Robert Billington employed Richard Klobucher, who lived on Billington’s property, for odd jobs on the property including repairing Billington’s vehicles. Although Billington expressly prohibited using his property for work on third-party vehicles, Klobucher decided to use Billington’s truck hoist to repair a truck belonging to his friend, plaintiff Timothy Rabitoy. During the repair work, the truck rolled off the hoist and injured Rabitoy. Rabitoy filed the instant lawsuit against Billington and Klobucher, claiming violation of Wisconsin’s safe place statutes, vicarious liability, and negligent hiring, training and supervision.

The appeals court dismissed all of Rabitoy’s claims. The Safe Place Act (Wis. Stat. § 101.11) did not apply because Rabitoy failed to introduce evidence that there was any unsafe condition. Instead, Rabitoy’s claims focused on Klobucher’s negligence in using the property equipment. Furthermore, there was no evidence Billington had notice of an unsafe condition on the property.

Finally, the court dismissed Rabitoy’s vicarious liability and negligent supervision claims because Klobucher was acting outside the scope of his employment. There was no issue of material fact as to whether Klobucher was acting in his capacity as Billington’s employee because Billington had expressly prohibited work on third-party vehicles.