## Facts

- Silvan Industries manufactured pressure vessels subject to strict manufacturing codes and inspection requirements.
- Silvan allowed employees to use company equipment and scrap materials for personal “side projects,” but rendered scrapped pressurized tanks unusable for pressurized service by cutting holes in them.
- A Silvan employee fabricated a tank at Silvan as a side project using company materials; the tank was intended as a non-pressurized vessel.
- The tank was later given to Behrendt’s employer for use in an oil-change business and was modified to repair the cut hole so it could be pressurized to collect oil.
- After several years of use, the tank exploded while Behrendt was using it, causing serious injuries.
- Behrendt sued Silvan for (1) negligence in permitting the tank to be made under the side-project policy and (2) vicarious liability for the employee’s fabrication; Gulf Underwriters Insurance Co. was sued as Silvan’s insurer.
- The circuit court granted summary judgment to Silvan and Gulf; the court of appeals affirmed; the Wisconsin Supreme Court granted review.

## Issues

1. Whether Silvan was vicariously liable for the employee’s fabrication of the tank because the conduct occurred within the scope of employment.
2. Whether Silvan breached its duty of ordinary care by maintaining a side-project policy that created a foreseeable risk leading to Behrendt’s injuries, such that summary judgment was improper.

## Decision

- The Wisconsin Supreme Court affirmed summary judgment for Silvan and Gulf on both theories.
- The employee’s fabrication was a personal side job for the employee’s own purposes and therefore outside the scope of employment, defeating vicarious liability.
- Silvan owed a duty of ordinary care, but the sequence leading to the injury was not foreseeable as a matter of law; thus, Silvan was not in breach.
- Because no genuine issue of material fact existed on scope of employment or foreseeability/breach, summary judgment was appropriate.

## Legal Principles

- An employer is vicariously liable for an employee’s act only if the act is within the scope of employment; personal side projects, even using employer equipment or materials, may fall outside that scope.
- In Wisconsin negligence law, the existence of a duty is generally stated broadly: every person has a duty to exercise ordinary care in all activities.
- Foreseeability operates in evaluating breach and limiting liability; if there is no foreseeable risk of harm to the injured person, the defendant is not in breach of the duty of ordinary care.
- Foreseeability and breach may be resolved as a matter of law at summary judgment when the causal chain is too remote and speculative.

## Conclusion

The court held that Silvan was not vicariously liable because the employee’s tank fabrication was a personal side job outside the scope of employment, and Silvan was not negligent because it was not foreseeable that a non-pressurized side-project tank would later be altered for pressurized use and explode years afterward.


Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, 318 Wis. 2d 622, 768 N.W.2d 568 (Wis. 2009)