Pao Moua and Chia Vang v. City of La Crosse

�� COURT OF APPEALS

�� DECISION

�� DATED AND RELEASED

�� September 26, 1996

�� NOTICE

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See � 808.10 and Rule 809.62, Stats.

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.

No.� 95-2807

STATE OF WISCONSIN�� IN COURT OF APPEALS

�� DISTRICT IV��

��

PAO MOUA and CHIA VANG

as Co-Personal Representatives and

PAU MOUA and CHIA VANG,

Individually,

�� Plaintiffs-Appellants,

�� v.

CITY OF LA CROSSE, a Municipal Corporation,

and CITIES AND VILLAGES MUTUAL INSURANCE

COMPANY,

�� Defendants-Respondents.

��

�� APPEAL from a judgment of the circuit court for La Crosse County:� JOHN J. PERLICH, Judge.� Affirmed.

�� Before Eich, C.J., Vergeront, J., and Robert D. Sundby, Reserve Judge.

�� PER CURIAM. Pao Moua and Chia Vang appeal from a summary judgment dismissing their complaint against the City of La Crosse and its insurer.� The appellants commenced this wrongful death action after their eight-year-old daughter, Mai Kou Moua, drowned at a public beach in La Crosse.� The trial court granted summary judgment under the recreational immunity statute, � 895.52, Stats.� The issue is whether a trier of fact could reasonably infer from the submissions in opposition to summary judgment that La Crosse was liable under the malicious acts exception to recreational immunity.� Because we conclude that no such inference is available, we affirm.

�� Under the appellants' version of the incident, Mai Moua Vang, then six, accompanied Mai Kou to the beach on the day of the accident.� At some point, Mai Moua noticed that Mai Kou was having difficulty in the water.� She approached a City of La Crosse lifeguard and asked the lifeguard to help Mai Kou.� The lifeguard responded "just a minute."� Mai Kou continued to have problems in the water and Mai Moua again went to get the lifeguard, but could not find her.� Mai Kou was later removed from the water unconscious, and subsequently died.� According to Mai Moua, the beach was open and there were other people on the sand and in the water when Mai Kou drowned.

�� The City submitted testimony and affidavits from the lifeguards on duty that day who denied all aspects of Mai Moua's version of the accident.� According to the lifeguards, while they were present no children approached them for help, and none were ever observed having difficulty in the water.� They testified that they had closed the beach early that day and had gone home well before the drowning occurred.

�� The complaint undisputedly states a claim.� It is also undisputed that the City presented a prima facie case for dismissal on summary judgment, as its witnesses deny every material allegation against them.� Therefore, under summary judgment methodology, the dispositive issue is whether the appellants' affidavits in opposition to summary judgment contain evidence that creates a genuine issue as to any material fact or allows reasonable conflicting inferences to be drawn from the undisputed facts.� Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 477 (1980).� We determine this issue in the same manner as the trial court and without deference to its decision.� In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582 (Ct. App. 1983).

�� Taking all the appellants' facts as true, dismissal is still appropriate because the necessary inference of malice remains unavailable.� An exception to recreational immunity applies if an injury is caused by a malicious act.� Section 895.52(4)(b), Stats.� A malicious act under that section is one that results from hatred, ill will, a desire for revenge, or is inflicted under circumstances where insult or injury was intended.� Ervin v. City of Kenosha, 159 Wis.2d 464, 485, 464 N.W.2d 654, 663 (1991).� An act may be reckless, grossly negligent or willful, but not malicious.� Id. at 482, 464 N.W.2d at 662.� Here, the appellants' submissions show, at best, grossly negligent behavior.� There is no evidence that the City's lifeguard brushed off Mai Moua's request out of hatred, ill will, or desire to inflict injury or revenge.� And that is not a reasonable inference from their momentary contact.�

�� By the Court.�Judgment affirmed.

�� This opinion will not be published.� See Rule 809.23(1)(b)5, Stats.�