768 N.W.2d 568 (2009) 2009 WI 71

Kenneth J. BEHRENDT, Plaintiff-Appellant-Petitioner,
v.
GULF UNDERWRITERS INSURANCE CO. and Silvan Industries, Inc., Defendants-Respondents,
Auto Owners Insurance Co., Peter Harding, Cincinnati Insurance Co., W.D.M. Enterprises of Marinette, WI and James E. Fisher, Defendants.

No. 2006AP2910.

Supreme Court of Wisconsin.

Argued March 3, 2009. Decided July 9, 2009.

*570 For the plaintiff-appellant-petitioner there were briefs by Mark S. Young, Rhonda L. Lanford, and Habush Habush & Rottier S.C., Milwaukee, and oral argument by Mark S. Young.

For the defendants-respondents there was a brief by John J. Laffey, Michael D. Rosenberg, Sarah Thomas Pagels, and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral argument by John J. Laffey.

¶ 1 N. PATRICK CROOKS, J.

This is a review of an unpublished court of appeals decision^[1] affirming an order granting summary judgment to Silvan Industries, Inc. (Silvan) and its insurer, Gulf Underwriters Insurance Co. (Gulf). Silvan and Gulf were among those sued by Kenneth Behrendt (Behrendt) after he was injured when a tank exploded while he was using it at his job in an oil change business. The tank had been fabricated as a favor to Behrendt's employer; it was made as a side job by someone who worked at Silvan at the time, and it was subsequently customized for use in the oil change business. Behrendt claimed that Silvan was negligent in permitting the tank to be made as a side job and vicariously liable for its employee's conduct in making the tank, but Silvan won dismissal of the claims, and the court of appeals affirmed. Behrendt sought review here of the court of appeals' decision.

¶ 2 For the reasons set forth below, we affirm the grant of summary judgment on both the vicarious liability claim and the negligence claim. In order for an employer to be vicariously liable for an employee's act, the act must have been within the scope of employment. We agree with the court of appeals that summary judgment is appropriate on the claim of vicarious liability because the only evidence presented was that the tank was a side project that was completed for the employee's own purpose and thus was outside the scope of employment.

¶ 3 As to the negligence claim, we reach the same result as the court of appeals though we arrive at that result via a somewhat different analysis. We agree with both the circuit court and the court of *571 appeals that the focus here is properly on whether Silvan could have foreseen the effects of its policy. We also agree that, as a matter of law, it was not foreseeable that under Silvan's policy of allowing employees to do side projects, a non-pressurized tank built as a side job would later be modified and pressurized and, years later, explode and cause injury. However, while the court of appeals affirmed the grant of summary judgment on the grounds that the lack of foreseeability meant that Silvan had no duty to Behrendt, we reiterate our prior holdings in the vast majority of cases that every person is subject to a duty to exercise ordinary care in all of his or her activities. Silvan was subject to such a duty with regard to its policies on side jobs, and under these circumstances that duty required Silvan to exercise care that its policy on side jobs did not create an unreasonable risk of injury to Behrendt.

¶ 4 However, we then look at whether Silvan breached that duty by failing to exercise the care a reasonable person would use in similar circumstances. In most cases, whether a defendant breached a duty is a question of fact that is submitted to the jury and thus is not appropriate for summary judgment. In this case, however, it is the lack of foreseeable risk that convinces us, as a matter of law, that Silvan cannot be said to have failed to exercise ordinary care with regard to its policy on side jobs. Further, there is no material fact in dispute as to Silvan's policies about side jobs and its prohibition on employees making pressurized vessels as side jobs for personal use. There is in addition uncontroverted evidence in the record that Silvan took steps such as having holes cut into any tanks that were considered as scrap—as well as testimony of the tank's owner that this tank itself originally had holes in it—and that the point of cutting holes into the tanks was to keep them from being used with air pressure. Summary judgment is appropriate on the negligence claim because under these circumstances Silvan did not breach its duty to act with ordinary care.

I. BACKGROUND

¶ 5 Behrendt's claims arise from the explosion of a tank, and the tank, to which fixtures were later added, was originally built as a side job by a Silvan employee. The questions raised in this appeal thus concern Silvan's policy of permitting employees to use company equipment and scrap materials to make items for personal use. Silvan manufactures tanks to be used under pressure, such as air receivers and water tanks. Pressurized vessels are subject to strict manufacturing codes and third-party inspection; after each tank is tested, inspected and certified, it is labeled and registered with the National Board of Boilers and Pressure Vessel Inspectors.^[2] Silvan's policy permitting side jobs prohibited employees from making pressurized tanks, and a system was in place to prevent employees' personal use of any tanks that were scrapped by the company: holes were cut in any scrapped tanks to make them worthless as pressurized vessels.

¶ 6 As noted above, one of the side jobs made by a Silvan employee is at the center of this case. When Daniel Linczeski (Linczeski) decided to open an oil change business, he needed a piece of equipment to collect oil drained from vehicles, and he went to his father-in-law, James Fisher (Fisher), who worked at Silvan. Fisher and a co-worker at Silvan, Rex Sommers (Sommers), welded pieces of scrap metal to create a large flat-bottomed cylinder *572 with a domed top. The tank, which was several feet high and held about 55 gallons of oil, was delivered to Linczeski. Testimony in the record indicates that after the tank was fabricated, the system for collecting and disposing of oil was modified over a period of weeks. Linczeski got Peter Harding (Harding), a plumber, to plug several holes in the side of the tank. The plumber also fitted the tank with valves— one for the top that allowed oil to be drained into the tank but could be closed to keep oil from splashing out when the tank was moved, and one at the bottom of the tank to allow oil to be drained out of the tank. Other changes were made to make the tank more convenient to use; for example, wheels were added to the bottom to make it easy to move around, and studs were added to the side so that wrenches could be hung on the tank. Linczeski's modifications ultimately included having one of the plugs that had originally plugged a hole taken off the tank and substituting instead a fitting that could be hooked up to an air hose. Air pressure could then be used to empty the tank.^[3]

¶ 7 The tank was apparently used without incident until June 15, 2004, when Behrendt, an employee of Linczeski's, was using the tank with air pressure. It exploded, and he was injured. Behrendt sued Silvan, alleging negligence; he also sued Fisher for negligence and, in connection with Fisher's alleged negligence, alleged vicarious liability against Silvan for Fisher's acts as its employee.^[4] Behrendt alleged that the shape of the tank and the welds holding it together made it dangerous to be used with air pressure; therefore, he argued, Fisher was liable for fabricating it, and Silvan was both vicariously liable as his employer and liable in its own right for having a policy permitting side jobs. Silvan argued it was only the subsequent pressurizing of the tank that was the reason for the explosion, and that in any event, the original construction was outside the scope of Fisher's employment. Therefore, Silvan argued, the company was not liable under any theory.

¶ 8 All the defendants moved for summary judgment. The Marinette County Circuit Court, Judge David G. Miron presiding, denied Fisher's and Harding's motions for summary judgment. The circuit court granted Silvan's summary judgment motion on Behrendt's strict liability claim because Silvan did not manufacture the tank. The circuit court also granted Silvan's summary judgment motion on the negligence claim and on the vicarious liability claim, ruling that public policy factors barred a finding of negligence against Silvan because the negligence was too remote from the injury and because allowing recovery would open the door to fraudulent *573 claims and would have no sensible or just stopping point.^[5]

¶ 9 Behrendt appealed. The court of appeals affirmed the circuit court decision. Behrendt v. Gulf Underwriters Ins. Co., No. 2006AP2910, unpublished slip op., 2008 WL 495621 (Wis.Ct.App. Feb. 26, 2008). The court of appeals affirmed dismissal of the vicarious liability claim against Silvan because Fisher was not working within his scope of employment at Silvan when he built the tank. Id., ¶ 9. The court stated that the side projects were "solely for the employees' personal benefit" and thus were so little actuated by the purpose of serving the employer that as a matter of law there was no vicarious liability. Id., ¶¶ 8-9.

¶ 10 The court of appeals also affirmed summary judgment as to the negligence claim on the grounds that Silvan had no duty to Behrendt because any harm caused by Fisher was unforeseeable: "[T]his lack of foreseeability and absurdly attenuated chain of events ... supports the circuit court's ruling...." Id., ¶ 13. The court of appeals stated that "[t]he only facts relevant to Silvan's duty are the existence of its policies permitting side jobs but prohibiting manufacture of pressure vessels." Id.

II. STANDARD OF REVIEW

¶ 11 Review of a grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate if there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2007-08). This Court views the facts in the light most favorable to the non-moving party. Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, ¶ 32, 237 Wis.2d 19, 614 N.W.2d 443.

¶ 12 Vicarious liability can be ruled out, as a matter of law, if the evidence presented supports only the conclusion that the conduct is outside the scope of employment. Block v. Gomez, 201 Wis.2d 795, 805, 549 N.W.2d 783 (Ct.App.1996).

III. DISCUSSION

A. Negligence claim

¶ 13 We begin with the question of whether summary judgment was properly granted on the claim of negligence against Silvan.

¶ 14 "The analysis of the four elements necessary to state a claim for actionable negligence is the first consideration for a court when deciding motions for summary judgment...." Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 25, 291 Wis.2d 283, 717 N.W.2d 17. The four elements are "(1) [a] duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995). "However, in Wisconsin, the elements of duty and breach are usually presented to the trier of fact in a question asking whether the defendant was negligent, and then the elements of causation and damages are addressed." Nichols v. Progressive Northern Ins. Co., 2008 WI 20, ¶ 12, 308 Wis.2d 17, 746 N.W.2d 220 (citing Wis. JI—Civil 1005 (2006)).

*574 ¶ 15 The court of appeals, relying on language in A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764 (1974), and Rolph v. EBI Companies, 159 Wis.2d 518, 464 N.W.2d 667 (1991), affirmed the grant of summary judgment on the grounds that the first element, a duty of care on the part of the defendant, was not present here. Behrendt, unpublished slip op., ¶ 11. The court focused on the issue of foreseeability, ruling that it was unforeseeable as a matter of law that a non-pressurized tank made as a side job by an employee would later be pressurized and, after years of use, explode and cause injury. Id., ¶ 13 The court said "[d]uty is established `when it can be said that [an act's potential to harm] was foreseeable....'" Id., ¶ 11 (quoting Rolph, 159 Wis.2d at 532, 464 N.W.2d 667). The court of appeals held that in this case no duty was established as to Silvan because it cannot be said that it was foreseeable that Silvan's alleged act, permitting employees to do side jobs, would lead to injury. Id., ¶ 13.

¶ 16 We agree with the court of appeals that the question of foreseeability is the proper one on which to focus. However, we disagree that the consideration of foreseeability necessarily leads to a finding of no duty in this case. Our analysis is framed by recent case law in which this court addressed questions of duty and breach. In Nichols v. Progressive Northern Insurance Co., 2008 WI 20, ¶¶ 45, 47, 308 Wis.2d 17, 746 N.W.2d 220, we reiterated that Gritzner^[6] and Rockweit were "still good law in Wisconsin." Nichols, 308 Wis.2d 17, ¶¶ 47, 746 N.W.2d 220. There we held that "in a negligence case, a defendant's conduct `is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.'" Id., ¶ 45, 746 N.W.2d 220 (quoting Gritzner v. Michael R., 2000 WI 68, 235 Wis.2d 781, 611 N.W.2d 906).

¶ 17 As has been often stated, "Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad [248 N.Y. 339, 162 N.E. 99 (1928)]. In that dissent, Judge Andrews explained that `[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.'" Alvarado v. Sersch, 2003 WI 55, ¶ 13, 262 Wis.2d 74, 662 N.W.2d 350 (citations omitted).

¶ 18 As we stated in Hoida, "[W]hat is within the duty of ordinary care depends on the circumstances under which the claimed duty arises. For example, what is comprised within ordinary care may depend on the relationship between the parties or on whether the alleged tortfeasor assumed a special role in regard to the injured party." Hoida, 291 Wis.2d 283, ¶ 32, 717 N.W.2d 17. In Hoida, the plaintiff, a subcontractor who had been defrauded on a construction project, had argued that the duty of ordinary care encompassed requirements for the defendant bank to take steps to be sure that third parties were being paid for the work they did for the party which had taken the construction loan. The bank was, Hoida alleged, required by a duty of ordinary care "to identify the subcontractors and materialmen for the project; to verify that sufficient work on the project had been completed to `justify disbursement'; and to collect lien waivers from [the plaintiff] before disbursing funds from [the tortfeasor's] loan." Id., ¶ 20. In holding that the duty of ordinary care did not extend to those affirmative acts, we said that the *575 duty of ordinary care "is determined by what would be reasonable given the facts and circumstances of the particular claim at hand." Id., ¶ 32. In that case, among the circumstances we considered was contractual language limiting the duties. ("These contractually assumed obligations and agreed upon limitations for [the bank] shaped its duty of ordinary care in disbursing the proceeds of the construction loan because they set out what the parties agreed was reasonable under the circumstances." Id., ¶ 38.)

¶ 19 Additionally, we find two comments to language in Section 7 of the Third Restatement of Torts^[7] helpful in clarifying the role foreseeability plays in the analysis. The Restatement says, "An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." Restatement (Third) of Torts: Liability for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005).^[8] The comments accompanying this stated principle are helpful because they make a clear distinction between the determinations required for duty and for breach.

Sometimes reasonable minds cannot differ about whether an actor exercised reasonable care under § 8(b). In such cases courts take the question of negligence away from the jury and determine that the party was or was not negligent as a matter of law. Courts sometimes inaptly express this result in terms of duty. Here, the rubric of duty inaccurately conveys the impression that the court's decision is separate from and antecedent to the issue of negligence. In fact, these cases merely reflect the one-sidedness of the facts bearing on negligence, and they should not be misunderstood as cases involving exemption from or modification of the ordinary duty of reasonable care.

Id., cmt. i (emphasis added).

Courts do appropriately rule that the defendant has not breached a duty of reasonable care when reasonable minds cannot differ on that question. These determinations are based on the specific facts of the case, are applicable only to that case, and are appropriately cognizant of the role of the jury in factual determinations. A lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination. Rather it is a determination that no reasonable person could find that the *576 defendant has breached the duty of reasonable care.

Id., cmt. j (emphasis added).

¶ 20 Though some language in prior Wisconsin cases invokes foreseeability inquiries in connection with duty—in fact, the court of appeals quoted that language in its analysis—the approach set forth in Section 7, Comments i and j, is most consistent with the approach we have taken on the issue of duty in the vast majority of our cases. See Nichols, 308 Wis.2d 17, 746 N.W.2d 220.

¶ 21 Occasionally, there are cases where a negligence claim fails because the duty of care does not encompass the acts or omissions that caused the harm,^[9] but this is not one of them. The allegations are that the tank involved here was built at Silvan with its materials under a policy that permitted workers to fabricate personal projects at work. Under Wisconsin law and our Palsgraf minority approach, Silvan had a duty to exercise ordinary care under the circumstances so that its policy permitting side jobs did not create "an unreasonable risk of injury" to Behrendt.

¶ 22 We next turn to the question of whether that duty was breached. We recognize that ordinarily, the issue of breach is one for the jury; however, there are exceptions in rare cases.^[10] Admittedly, we have not always clearly drawn the distinction between duty and breach of duty. "`Where the facts alleged to give rise to a duty are agreed upon, the question of the existence of a duty is one of law. This question is closely related to the question of whether a defendant is not negligent as a matter of law, i.e., based on the facts presented, no properly instructed, reasonable jury could find the defendant failed to exercise ordinary care. Generally, this question is for the jury and should be decided as a matter of law before trial only in rare cases.'" Rockweit, 197 Wis.2d at 419, 541 N.W.2d 742 (emphasis added) (quoting Olson v. Ratzel, 89 Wis.2d 227, 251-52, 278 N.W.2d 238 (Ct.App.1979)).

¶ 23 In a case where there is no genuine issue of material fact as to the breach and where there is a lack of foreseeable risk, it can be said as a matter of law that, based on the facts presented, there is no breach because "no properly instructed, reasonable jury could find the defendant failed to exercise ordinary care." Id. This is such a case.

¶ 24 Behrendt argued that summary judgment is not appropriate here because there are disputed facts,^[11] but we are not *577 persuaded that those facts are material to the question of breach. Rather, we, like the court of appeals, are satisfied that the material fact here is "the existence of [Silvan's] policies permitting side jobs but prohibiting manufacture of pressure vessels." Behrendt, unpublished slip op., ¶ 13.

¶ 25 The circuit court and court of appeals both noted the lack of foreseeability. The circuit court alluded to it when it discussed the "too remote" public policy consideration. The court of appeals more pointedly discussed "precisely this lack of foreseeability and absurdly attenuated chain of events" and concluded that it was "simply unforeseeable, as a matter of law," that Silvan's policy of permitting certain types of side jobs would result in harm. Id. The court of appeals reasoned that there was too much distance in the chain— beginning with Silvan's policy, an employee's fabrication of a tank as a side job, and the decision by a third party to modify the tank, and ending with the explosion of the tank some ten years later—for the risk of injury to be foreseeable. Id. We agree.

¶ 26 As we noted earlier, there is helpful language in the Third Restatement of Torts that explains the relationship among duty, breach, and foreseeability:

Courts do appropriately rule that the defendant has not breached a duty of reasonable care when reasonable minds cannot differ on that question. These determinations are based on the specific facts of the case, are applicable only to that case, and are appropriately cognizant of the role of the jury in factual determinations. A lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination. Rather it is a determination that no reasonable person could find that the defendant has breached the duty of reasonable care.

Restatement (Third) of Torts § 7 cmt. j (Proposed Final Draft No. 1, 2005) (emphasis added).

¶ 27 Here the lack of foreseeable risk is the basis for the determination that there was no breach, and, therefore, the granting of summary judgment as to the negligence claim was proper.

¶ 28 We recognize that this court has taken other paths in analyzing cases depending on the facts of each case. As noted above, under other circumstances, occasionally a claim may fail because a defendant's duty of care did not extend to the alleged acts or omissions. And certainly this case, like others, might be reviewed and legitimately resolved on public policy grounds. In that regard, we recognize that both the circuit court and the court of appeals alluded to public policy concerns presented by this case.

¶ 29 The application of public policy factors to preclude recovery for negligence has a long history in Wisconsin. See Colla v. Mandella, 1 Wis.2d 594, 85 N.W.2d 345 (1957). In Colla, we articulated the six public policy factors that Wisconsin courts use today to limit liability in negligence claims: (1) "the injury is too remote from the negligence"; (2) the recovery is "`wholly out of proportion to the culpability of the negligent tort-feasor'"; (3) the harm caused is highly extraordinary given the negligent act; (4) recovery "would place too unreasonable a burden" on the negligent tort-feasor; (5) recovery would be "too likely to open the way to fraudulent claims"; and (6) recovery would enter into "`a field that has no sensible or just stopping point.'" Id. at 599, 85 N.W.2d 345 (citations omitted); see also Fandrey v. Am. Family Mut. Ins. Co., 2004 WI 62, ¶¶ 30-35, 272 Wis.2d 46, 680 N.W.2d 345. Any one of the six factors, if applicable, could preclude liability. Hoida, 291 Wis.2d 283, ¶ 41, 717 N.W.2d 17.

*578 ¶ 30 Here, the first factor would be relevant. As recognized above, both the circuit court and the court of appeals noted the attenuated chain of events. The circuit court referenced public policy factors in its decision: "So I think the too remote analysis is appropriate here.... I don't have any problem applying the public policy consideration at this point to cut off responsibility here."

¶ 31 However, we are satisfied that an analysis which clarifies that foreseeability is properly taken into consideration as to breach is the better approach here because it makes clear that we are not deviating from the Palsgraf minority position that we have adhered to in the vast majority of our cases.

B. Vicarious liability claim

¶ 32 The second claim we consider is Behrendt's claim of vicarious liability against Silvan. As we noted above, we review the grant of summary judgment de novo, and summary judgment can be appropriate for a claim of vicarious liability if the conduct is clearly outside the scope of employment. Vicarious liability can be ruled out as a matter of law if the evidence presented supports only the conclusion that the conduct is outside the scope of employment. Block, 201 Wis.2d at 805, 549 N.W.2d 783. We hold that summary judgment was proper as to this claim. We agree with the court of appeals' application of Block to the evidence presented here.

¶ 33 Behrendt alleged in the complaint that Fisher performed negligent acts "while in the scope of his employment" and Silvan, as his employer is "therefore vicariously liable for any damages caused by his negligence." In his brief to this court, Behrendt argued that issues of fact exist as to whether Silvan is vicariously liable for the acts of Fisher or Sommers. Behrendt's arguments on vicarious liability that depend on the acts of the co-worker, Sommers, are unavailing because they are irrelevant. The court of appeals correctly noted in a footnote that arguments about vicarious liability are only relevant as to Fisher's conduct because allegations of vicarious liability are related to Behrendt's claim against Fisher. No claim was brought by Behrendt against Sommers. We thus turn to the basis for the vicarious liability claim: whether the acts by Fisher that are allegedly negligent were within the scope of his employment at Silvan.

¶ 34 We have explained that a vicarious liability claim arises where "an employer is alleged to be vicariously liable for a negligent act or omission committed by its employee in the scope of employment. Thus, vicarious liability is based solely on the agency relationship of a master and servant." L.L.N. v. Clauder, 209 Wis.2d 674, 698 n. 21, 563 N.W.2d 434 (1997) (citing Shannon v. City of Milwaukee, 94 Wis.2d 364, 370, 289 N.W.2d 564 (1980); Restatement (Second) of Agency § 219(1) (1957)) (distinguishing between vicarious liability and negligent supervision). In other words, vicarious liability, premised on the negligent act committed by an employee, does not exist absent a finding that an employee was negligent.

¶ 35 The question as to vicarious liability is whether at the time of the act alleged, the employee's conduct was within the scope of his employment, which we have defined as conduct that is "actuated, at least in part, by a purpose to serve the employer." Olson v. Connerly, 156 Wis.2d 488, 500, 457 N.W.2d 479 (1990). The question on summary judgment is whether there is any genuine issue of material fact about that.

¶ 36 Behrendt argued that the act of building the tank was "actuated, at least in part, by a purpose to serve the employer" because it was done under the umbrella of *579 Silvan's policy of letting employees do these side jobs, and that policy had the purpose of serving Silvan because it increased employee morale.

¶ 37 Silvan argued that the party whose acts are in question is Fisher and that there is no evidence put forward that Fisher thought his acts were serving Silvan. Silvan additionally argued that the question is not whether the policy permitting side jobs benefited Silvan, but rather whether the employee himself or herself was at least partly actuated by the purpose of serving the employer.

¶ 38 Behrendt's assertion that the policy of allowing the side jobs provided the benefit to Silvan of improved employee morale, even if it is true, does not mean that the worker who fabricated the tank was actuated by a purpose to serve the employer. The question is whether in making the tank Fisher (against whom negligence is alleged) was actuated by a purpose to serve the employer.

¶ 39 Block focuses on the employee's intended purpose. Block, 201 Wis.2d at 806, 549 N.W.2d 783. The evidence in the record indicates that the tank, like the other side jobs, was built as a personal benefit to the employee. Fisher enlisted a co-worker to help fabricate the tank. Silvan was never paid for the tank or the materials or the labor. There is nothing in the record that shows any purpose to benefit the employer or any resulting benefit to the employer, either.

¶ 40 The court of appeals observed that "these side projects were solely for employees' personal benefit" and that no evidence was introduced that would lead it to conclude otherwise. Behrendt, unpublished slip op., ¶ 9. It therefore held that summary judgment in Silvan's favor was proper on the question of vicarious liability. For the same reasons, we agree.

IV. CONCLUSION

¶ 41 For the reasons set forth, we affirm the grant of summary judgment on both the vicarious liability claim and the negligence claim. In order for an employer to be vicariously liable for an employee's act, the act must have been within the scope of employment. We agree with the court of appeals that summary judgment is appropriate on the claim of vicarious liability because the only evidence presented was that the tank was a side project that was completed for the employee's own purpose and thus was outside the scope of employment.

¶ 42 As to the negligence claim, we reach the same result as the court of appeals though we arrive at that result via a somewhat different analysis. We agree with both the circuit court and the court of appeals that the focus here is properly on whether Silvan could have foreseen the effects of its policy. We also agree that, as a matter of law, it was not foreseeable that under Silvan's policy of allowing employees to do side projects, a non-pressurized tank built as a side job would later be modified and pressurized and, years later, explode and cause injury. However, while the court of appeals affirmed the grant of summary judgment on the grounds that the lack of foreseeability meant that Silvan had no duty to Behrendt, we reiterate our prior holdings in the vast majority of cases that every person is subject to a duty to exercise ordinary care in all of his or her activities. Silvan was subject to such a duty with regard to its policies on side jobs, and under these circumstances, that duty required Silvan to exercise care that its policy on side jobs did not create an unreasonable risk of injury to Behrendt.

¶ 43 However, we then look at whether Silvan breached that duty by failing to exercise the care a reasonable person would use in similar circumstances. In most cases, whether a defendant breached *580 a duty is a question of fact that is submitted to the jury and thus is not appropriate for summary judgment. In this case, however, it is the lack of foreseeable risk that convinces us, as a matter of law, that Silvan cannot be said to have failed to exercise ordinary care with regard to its policy on side jobs. Further, there is no material fact in dispute as to Silvan's policies about side jobs and its prohibition on employees making pressurized vessels as side jobs for personal use. There is in addition uncontroverted evidence in the record that Silvan took steps such as having holes cut into any tanks that were considered as scrap—as well as testimony of the tank's owner that this tank itself originally had holes in it—and that the point of cutting holes into the tanks was to keep them from being used with air pressure. Summary judgment is appropriate on the negligence claim because under these circumstances Silvan did not breach its duty to act with ordinary care.

The decision of the court of appeals is affirmed.

¶ 44 SHIRLEY S. ABRAHAMSON, Chief Justice (concurring).

I join the majority opinion. I write separately to address the issues raised in Justice Roggensack's concurring opinion.

¶ 45 Negligence law has evolved over the centuries and continues to evolve. No one has said that negligence law is easy to understand and apply or that all of our cases fit together altogether comfortably and without any tension. Any attempt to synthesize our case law should be applauded.

¶ 46 But the problem with the concurrence, as I see it, is that it tries to make things simpler than they are and is therefore misleading. To quote Albert Einstein, "everything should be made as simple as possible but not simpler."

¶ 47 Justice Roggensack's concurrence essentially argues that the negligence analysis in Wisconsin differs depending on whether a defendant's alleged negligence is viewed as a negligent act or a negligent failure to act. The distinction between a negligence claim arising "from an allegation of a failure to act" and "a claim asserting that the act in question was negligently performed" is central to the argument set forth in the concurrence.^[1]

¶ 48 The concurrence concludes that when a defendant's alleged negligence is viewed as an omission rather than an affirmative act, the court must first determine whether the defendant's general duty to exercise reasonable and ordinary care implied a more specific duty to perform the act that was omitted.^[2] Furthermore, if the court determines that the defendant's general duty to exercise reasonable and ordinary care did not imply a specific duty to perform the omitted act, the defendant as a matter of law cannot be negligent.^[3]

¶ 49 The concurrence applies a different analysis when a defendant's alleged negligence is viewed as an affirmative act negligently performed or undertaken. The *581 concurrence asserts that under these circumstances, the question of negligence simply is whether the defendant exercised ordinary care under the circumstances when performing or undertaking the act.^[4] No time need be spent, according to the concurrence, analyzing whether the defendant's general duty to exercise reasonable and ordinary care implied a more specific duty to engage (or to refrain from engaging) in any particular conduct.

¶ 50 There are three essential problems with the concurring opinion's analysis.

¶ 51 First, attempts to distinguish between a negligent act (misfeasance) and a negligent omission (nonfeasance) have a long history in the law, and the distinction is generally recognized as a tenuous and misleading one. The concurrence is a throwback to earlier but not better days.

¶ 52 Second, Justice Roggensack's summary of the Wisconsin negligence cases law is incorrect. The decisions of this court set forth a unified negligence standard, applicable to all conduct, whether classified as an act or omission. The cases show that the question of negligence is whether the defendant's conduct (be it an act or omission) was consistent with the standard of reasonable and ordinary care. The cases also show that when a defendant's alleged negligence is viewed as an omission, Wisc