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Behrendt v. Gulf Underwriters Insurance Co

Citation. 768 N.W.2d 568 (Wis. 2009).
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Brief Fact Summary.

Employee who works for a company which uses pressurized air tanks takes a de-pressurized, de-commissioned tank home for personal use in an unrelated business, consistent with the company’s policy, and one of the employees of his side business is injured when the repurposed tank explodes.

Synopsis of Rule of Law.

Defendants generally owe a duty of reasonable care to all plaintiffs; however, the breach of this duty hinges on the foreseeability of the harm suffered by a plaintiff.


Plaintiff sustained injuries when a tank he was using during the scope of his employment exploded. The tank was constructed by another employee at Silvan then subsequently refabricated for use in the oil change business.

The company policy typically requires strict manufacturing codes for pressurized tanks to be used, which includes third party inspection. The company permits employees to use scrapped metal, after being modified, for use as “side jobs.”

Linczeski repurposed the oil tank for use in his own business, which involved extensive modifications. During Plaintiff’s use of the tank while working for Linczeski, the air tank exploded.


Whether Defendant owed a duty of care to Plaintiff, and if so, was the explosion of the repurposed tank the foreseeable result of the company’s policy allowing side jobs?


Yes, Defendant owed Plaintiff a duty of reasonable care; however, the injury was not foreseeable and thus no breach of this duty occurred, making summary judgment proper.

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