COURT OF
APPEALS DECISION DATED AND
RELEASED April
18, 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. 93-2894
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
ESTATE
OF DONALD R. LANGE, BY
SANDRA
M. LANGE, SPECIAL ADMINISTRATRIX
OF THE
ESTATE OF DONALD R. LANGE, AND
SANDRA
M. LANGE, INDIVIDUALLY,
Plaintiffs-Appellants,
v.
WILLIAM
P. WHEELER, CITY OF HORICON
AND
WAUSAU INSURANCE COMPANIES,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Dodge County: WILLIAM MCMONIGAL, Judge. Reversed and cause remanded.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
SUNDBY,
J. Minutes after City of Horicon Police Officer William P.
Wheeler allowed Craig Fuller to operate a motor vehicle on a public highway,
Fuller crashed into a utility pole and a cement milkhouse, killing himself and
two passengers and seriously injuring plaintiff, Daniel L. Voelker. Voelker and representatives of the decedents
brought this tort liability action against the City, Wheeler, and the
defendants' insurers. After considering
the submissions of the parties, the trial court granted defendants' motion for
summary judgment dismissing plaintiffs' complaints. The trial court concluded that, on the undisputed facts, Wheeler
was immune from liability under § 893.80(4), Stats.[1]
The
trial court erroneously decided the question of Wheeler's negligence, not the
question of his immunity for his acts.[2] On a motion to dismiss based on immunity,
the public officer is assumed to be negligent.
Kimps v. Hill, 187 Wis.2d 508, 514, 523 N.W.2d 281, 285
(Ct. App. 1994), aff'd, No. 92-2736, slip op. (Apr. 10, 1996). Whether the officer is immune is a question
of law. See id. at
513, 523 N.W.2d at 284. If the material
facts are undisputed, a court may properly enter judgment as a matter of
law. See Heck & Paetow
Claim Service, Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834
(1980).
We recently reviewed
summary judgment methodology in Landreman v. Martin, 191 Wis.2d
787, 800-01, 530 N.W.2d 62, 66-67 (Ct. App. 1995). In the usual case, we first examine whether the complaint states
a claim and whether the answer raises a material issue of fact. Id. at 800, 530 N.W.2d at
66. In this case, defendants concede
that plaintiffs' complaints state a claim.
We therefore examine the moving parties' proof to determine whether they
state a prima facie case for summary judgment. If they do, we next look to the opposing parties' affidavits to
determine whether material facts are in dispute which entitle the opposing
party to a trial. Id. at
800, 530 N.W.2d at 66-67. If at any
point we determine that there is a genuine issue of fact entitling the opposing
party to a trial, we reverse the summary judgment and remand the matter for
further proceedings. See id.
at 800, 530 N.W.2d at 67.
In
this case, we conclude that defendants' proof does not establish a prima
facie case that Officer Wheeler is immune from tort liability under
§ 893.80(4), Stats., or was
not negligent in allowing Fuller to operate a motor vehicle on a public
highway.
Most
of the facts are undisputed; it is the inferences which the parties draw from
those facts which are at variance. The
following facts are taken from the parties' statements of fact and from
Wheeler's deposition.
On
March 6, 1991, at approximately 2:00 a.m., Wheeler stopped a vehicle operated
by William Masche after it failed to observe a stop light in the City of
Horicon. Craig Fuller, Donald Lange and
Daniel Voelker were passengers. Because
Masche's operating privilege had been revoked, Wheeler would not allow him to
continue to operate the vehicle. Lange
and Fuller volunteered to drive.
Officer Wheeler administered a preliminary breath test (PBT) to both. Wheeler determined that Lange was
intoxicated. Fuller admitted that he
had been drinking and Wheeler obtained PBT readings of .06, .07, .08, and
.09. Wheeler made a written report on
March 6, 1991, to the Horicon Chief of Police of these test results. In his deposition, Wheeler was asked the
following question and gave the following answer:
QIs it
fair to say you had a problem with the machine [the breathalyzer] that night
functioning properly?
AThere was something that wasn't quite the same that
I've never ran into before when I did use it as far as getting it cleared.
Wheeler
also deposed that when he administers a PBT, he already knows that he is going
to be arresting the operator for operating while under the influence. He also testified that he doesn't use the
PBT unless he first suspects that the operator is intoxicated. He conceded that if an operator's blood
alcohol level was .05 or above, that could cause "some type of
impairment."
Wheeler
admitted that he did not administer field sobriety tests to Fuller.
By
their proof, defendants have raised the question whether Wheeler exercised the
discretion a reasonably competent police officer would have exercised in the
same circumstances. We conclude that
the factfinder could infer from Wheeler's own testimony that he did not
exercise that discretion. He admitted
that the PBT was not operating properly and he got four different readings when
he tested Fuller for intoxication. He
also admitted that he knew that a reading of .05 blood alcohol content could
cause "some type of impairment."
He did not administer field sobriety tests, from which the factfinder
could infer that he did not follow proper police procedure. Further, he did not follow his usual
procedures. When he believed it
necessary to administer a PBT to an operator, he intended to arrest the
operator for operating while under the influence. Of course, in this case, Fuller had not yet operated the vehicle,
but he was about to, with Wheeler's permission.
We
therefore conclude that defendants have failed to establish a prima facie
case for summary judgment. Further, the
factfinder could infer from plaintiffs' proof that Wheeler allowed Fuller to
operate a motor vehicle on a public highway knowing he was intoxicated. Plaintiffs submitted a letter from Forensic
Associates, Inc. of April 14, 1993, in which Dr. Richard E. Jensen stated that
it was likely that Fuller's blood alcohol concentration was slightly greater
than .20 percent by weight ethyl alcohol in his blood stream when Wheeler
stopped Masche's vehicle. He also
opined that Fuller would have displayed obvious signs of intoxication because
of his young age and lack of experience in the consumption of alcoholic
beverages. He further concluded that
Wheeler should have been aware that an operator can be impaired at alcohol concentrations
as low as .05 percent by weight ethyl alcohol.
Of course, Wheeler admitted that he was so aware.
It
is also undisputed that a blood sample taken from Fuller at the scene of the
accident showed a blood alcohol content of .20 percent.
If
Fuller was intoxicated, Wheeler had no discretion to allow him to operate a
motor vehicle on a public highway. See
Barillari v. City of Milwaukee, 194 Wis.2d 247, 258, 533 N.W.2d
759, 763 (1995) (officer's duty to act in face of known danger may be absolute,
certain and imperative). Wheeler's duty
to see that Fuller did not operate a motor vehicle while intoxicated was
ministerial.
The
burden of showing that there are no disputed issues of fact or inferences to be
drawn from undisputed facts precluding summary judgment rests on the moving
party. Grams v. Boss, 97
Wis.2d 332, 338, 294 N.W.2d 473, 477 (1980).
The burden is a very heavy one.
"A summary judgment should not be granted unless the moving party
demonstrates a right to a judgment with such clarity as to leave no room for
controversy; some courts have said that summary judgment must be denied unless
the moving party demonstrates his entitlement to it beyond a reasonable doubt." Id.
Defendants
argue that plaintiffs had to show that Wheeler "knew" Fuller was
intoxicated. Even if we accept that
proposition, the undisputed facts permit a factfinder to reach that conclusion. Questions as to knowledge and state of mind
cannot ordinarily be decided on summary judgment.
Questions
involving a person's state of mind, e.g., whether a party knew or should
have known of a particular condition, are generally factual issues
inappropriate for resolution by summary judgment. See No. 10A C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure §§ 2729-2730, at 229, 238 (2d ed. 1983). However, where the palpable facts are
substantially undisputed, such issues can become questions of law which may be
properly decided by summary judgment. See
Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). But summary judgment should not be granted
where contradictory inferences may be drawn from such facts, even if
undisputed. United States v.
Perry, 431 F.2d 1020, 1022 (9th Cir. 1970).
Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985).
Contradictory
inferences abound in this case, making summary judgment inappropriate. We therefore reverse the judgment and remand
for trial.[3]
By
the Court.—Judgment reversed
and cause remanded.
Not recommended for
publication in the official reports.
No. 93-2894(D)
DYKMAN,
J. (dissenting). Within the last year, the
supreme court has explained how we are to analyze § 893.80(4), Stats., in cases against police
officers and the municipalities which employ them. The case is Barillari v. City of Milwaukee, 194
Wis.2d 247, 533 N.W.2d 759 (1995). The
principles in Barillari were recently restated by the supreme
court in Kimps v. Hill, No. 92-2736 (Wis. Apr. 10, 1996). In Barillari, a murdered
woman's family sued the city because city police detectives promised to arrest
their daughter's ex-boyfriend and then failed to do so, thereby permitting him
to murder the woman. The case came to
the court on summary judgment and the court concluded that the city was immune
from liability as a matter of law. Id.
at 262, 533 N.W.2d at 765. Barillari
is not new law. It discusses
municipal immunity in the specific context of the discretion given to police
officers in the performance of their duties.
That is the situation here, though this time the plaintiffs assert that
a police officer should have known that a person was intoxicated and threatened
him with an arrest if he insisted on driving.
The
rule of municipal and public officer immunity for injuries resulting from acts
performed within the scope of a municipal employee's public office is found in § 893.80(4),
Stats., which provides:
No suit may be
brought against any volunteer fire company organized under ch. 213, political
corporation, governmental subdivision or any agency thereof for the intentional
torts of its officers, officials, agents or employes nor may any suit be
brought against such corporation, subdivision or agency or volunteer fire
company or against its officers, officials, agents or employes for acts done in
the exercise of legislative, quasi‑legislative, judicial or quasi‑judicial
functions.
Section
893.80(4), Stats., sets forth the
general rule that a public officer or employee is immune from personal
liability for injuries resulting from acts performed within the scope of the
individual's public office. Barillari,
194 Wis.2d at 257, 533 N.W.2d at 763.[4] The rule is subject to three
exceptions. First, a public officer or
employee does not enjoy immunity if he or she engages in conduct which is
malicious, willful, or intentional. Id. Second, a public officer or a municipality
is not immune for the negligent performance of a ministerial duty. Id. "A public officer's duty is ministerial only when it is
absolute, certain and imperative, involving merely the performance of a
specific task when the law imposes, prescribes and defines the time, mode and
occasion for its performance with such certainty that nothing remains for
judgment or discretion." Id.
at 257-58, 533 N.W.2d at 763 (quoted sources omitted). Third, a public officer is not immune when
he or she is aware of a known and compelling danger, a danger which is of
"such quality that the public officer's duty to act becomes `absolute,
certain and imperative.'" Id.
at 258, 533 N.W.2d at 763 (quoted sources omitted).
The
police officer must have actual knowledge of the danger for the duty to lose
its discretionary nature. Id.
at 260-61, 533 N.W.2d at 764. This is
because:
the nature of law enforcement requires
moment-to-moment decision making and
crisis management which, in turn, requires that the police department have the
latitude to decide how best to utilize law enforcement resources. Unlike those professionals who have a set
daily calendar they follow, police officers have no such luxury. For these reasons, it is clear that law
enforcement officials must retain the discretion to determine, at all time, how
best to carry out their responsibilities.
Id. at 260, 533 N.W.2d at 764. In
concluding that the city was immune, the court reasoned that the detectives
"could not look at this situation and see a homicide just waiting to
happen." Id. at 261,
533 N.W.2d at 764 (quoted source omitted).
It distinguished the facts of its case from those in Cords v.
Anderson, 80 Wis.2d 525, 531-32, 541, 259 N.W.2d 672, 675, 679-80
(1977), in which a park manager knew of a dangerous twenty-foot slide and
eighty-foot drop off within one foot of a hiking trail, but failed to erect a
warning sign. The court also
distinguished Domino v. Walworth County, 118 Wis.2d 488, 490-91,
347 N.W.2d 917, 918-19 (Ct. App. 1984), because in that case, the county had actual
knowledge of a tree lying across a road, but failed to assign someone to
provide for safe passage along the roadway.
Indeed, in C.L. v. Olson, 143 Wis.2d 701, 723, 422 N.W.2d
614, 622 (1988), the court required actual knowledge of a danger to preclude
immunity: "The plaintiff has, on
appeal, failed to demonstrate that the possibility of recidivism was any more
than just that—a possibility."
Most
of the time we will conclude that a police officer's duty is discretionary
because it is unusual that a police officer has actual knowledge of a danger
which carries with it more than a possibility of injury—the "homicide just
waiting to happen" in Barillari. This also advances the reason behind the rule of
§ 893.80(4), Stats., which
provides immunity in most circumstances, because police officers should not be
inhibited in doing the public's business for fear of lawsuits and
liability. The Barillari court
explained:
We look to our
police departments to enforce our laws and to maintain order in what is becoming
an increasingly dangerous society.
Routinely, police face critical situations, many of which have the
potential for violence. On a typical
day, any given law enforcement officer may be arresting and questioning
suspects, interviewing and counseling victims, talking to witnesses, rescuing
children, and investigating criminal activity.
In the course of their work, police must often try to console and
reassure people who are distraught and fearful. Faced with escalating violence, they must continuously use
their discretion to set priorities and decide how best to handle specific
incidents. Police officers must be free
to perform their responsibilities, using their experience, training, and good
judgment, without also fearing that they or their employer could be held liable
for damages from their allegedly negligent discretionary decisions.
Barillari, 194 Wis.2d at
261-62, 533 N.W.2d at 764-65 (emphasis added).
The
plaintiffs contend that Officer William P. Wheeler's action in permitting an
intoxicated person to drive a motor vehicle falls outside the scope of
discretionary conduct. This is another
way of asserting that Officer Wheeler had a ministerial duty to prevent an
intoxicated person from driving. The
plaintiffs also argue that the "known and compelling danger"
exception to § 893.80(4), Stats.,
applies here.
Perhaps
a police officer has such a duty, but the plaintiffs have produced no evidence
to show that Officer Wheeler knew that Craig Fuller, the person he
permitted to drive, was intoxicated or that Officer Wheeler was aware of a
known and compelling danger. Instead,
the plaintiffs have submitted evidence from persons who believed that Fuller
would have or should have exhibited signs of intoxication, and who, themselves,
believed that Fuller was intoxicated.
For
a duty to lose its discretionary nature, the public officer must know of the
danger. Barillari, 194
Wis.2d at 260-61, 533 N.W.2d at 764. Officer
Wheeler was deposed and testified that he did not know that Fuller was
intoxicated. He testified that when he
stopped the car, he could detect a little odor of intoxicants on the driver's,
William Masche's, breath but that no other factors of intoxication were
present. Officer Wheeler observed
unopened cans of beer in the back of the car and Masche, Donald Lange and
Fuller admitted that they had been drinking earlier. Officer Wheeler did not cite Masche for operating a motor vehicle
while under the influence of an intoxicant but instead cited him for failure to
stop for a flashing red light and operating after revocation.
Fuller
and Lange both volunteered to drive the car and Officer Wheeler gave them a
preliminary breath test (PBT) because he wanted to show them their results to
demonstrate to them whether or not they were able to drive. Lange took the test first and it registered
a .17. Officer Wheeler then had trouble
getting the machine back down to .00.
Fuller took the test next and it slowly registered .06, .07, .08, .09
and back to .08. Officer Wheeler was
surprised by the results because he could not detect any odor of intoxicants on
Fuller's breath and he thought the machine was acting "unusual." He noted that Fuller's eyes were clear, he
responded well to questions, his speech was not slurred, and he had good
balance. This information would not
have supported an arrest for operating a motor vehicle while intoxicated. Section 346.63(1)(a), Stats.; State v. Swanson,
164 Wis.2d 437, 453 n.6, 475 N.W.2d 148, 155 (1991). Officer Wheeler concluded that Fuller was not intoxicated and
that he could drive.
The
majority points out that Officer Wheeler testified that he only administered a
PBT when he already had probable cause to arrest someone for operating a motor
vehicle while under the influence of an intoxicant. But Officer Wheeler explained that in this case, he gave Lange
and Fuller the tests because "[t]he individuals stated that they were
interested—that they would be able to drive and to show them that they were
able or not, I was going to let them see the results on the PBT." Moreover, while the majority notes that
Officer Wheeler testified that a reading of .05 can cause impaired driving,
Officer Wheeler stated that the results of the PBT were "unusual"
because he did not think that the machine was working properly. Instead, he relied upon his observations of
Fuller. Officer Wheeler knew Wisconsin law: a PBT result of .05 or even .09 is not a
prohibited alcohol concentration under § 346.63(1)(b), Stats.
Fuller was driving legally if his alcohol concentration was actually any
of those registered on the PBT.
The
majority's assertion that I would confer immunity on Officer Wheeler because of
his status is incorrect. I would confer
immunity on Officer Wheeler because there is no evidence that he knew of
Fuller's intoxication, which would bring Officer Wheeler's actions within one
of the three exceptions to § 893.80(4), Stats. The concepts of negligence and immunity are
separate. Kimps, slip op.
at 9. Because Officer Wheeler did not
know that Fuller was driving a motor vehicle with either a prohibited alcohol
concentration or while under the influence of an intoxicant, he is immune from
liability pursuant to § 893.80(4).
Perhaps Officer Wheeler should have known that Fuller was intoxicated,
but "should have known" is a negligence concept. See Restatement
(Second) of Torts § 12 cmt. a
(1965). Negligence is presumed when
considering questions of immunity. Kimps, slip op at 9.
The majority, not I, confuses the issues of negligence and
immunity.
I
conclude that there is no evidence in the record from which we could infer that
Officer Wheeler knew of Fuller's intoxication or that Officer Wheeler faced a
known and compelling danger. Thus, the
actions are immune from liability and the trial court's grant of summary
judgment should be affirmed. I
recognize that in cases such as this, it will be difficult to show that the
police officer had actual knowledge of the facts from which an injury
develops. But the result I would reach
here is the result intended by the legislature and by Barillari—an
affirmance of the trial court's grant of summary judgment. I, therefore, respectfully dissent.
[1] Section 893.80(4), Stats., provides:
No suit may be
brought against any volunteer fire company organized under ch. 213, political
corporation, governmental subdivision or any agency thereof for the intentional
torts of its officers, officials, agents or employes nor may any suit be
brought against such corporation, subdivision or agency or volunteer fire
company or against its officers, officials, agents or employes for acts done in
the exercise of legislative, quasi-legislative, judicial or quasi-judicial
functions.
[2] The dissent makes the same mistake. My colleague asks us to usurp the
prerogative of the jury and determine as a matter of law that Officer Wheeler
properly exercised his discretion. He
would confer immunity on Wheeler simply because of his status.
[3] In a separate brief, the City and Wheeler
argue that Wheeler's negligence, if any, was not the proximate cause of
plaintiffs' injuries and death. They
argue that to hold Wheeler and the City liable while refusing to hold providers
of alcohol to adults liable in similar circumstances would deny them equal
protection under the law. This argument
is not sufficiently developed for us to make a ruling. See State v. Nicholson,
148 Wis.2d 353, 368, 435 N.W.2d 298, 305 (Ct. App. 1988). In any event, we do not equate the duty of a
police officer with the duty of a bartender or social host.
[4] In Kimps v. Hill, No. 92-2736,
slip op. at 7-8 n.6 (Wis. Apr. 10, 1996), the court noted that the general rule
of immunity for state public officers or employees stands in contrast to that
for municipalities where the rule is liability, and the exception is
immunity. The court added that the rule
of liability was abrogated in Holytz v. City of Milwaukee, 17
Wis.2d 26, 115 N.W.2d 618 (1962), except for actions which are legislative,
judicial, quasi-legislative or quasi-judicial.
Kimps, slip op. at 7-8 n.6. This rule is set out in § 893.80(4), Stats.
But the court added that "[t]he concepts and theories articulated
in Lister [v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610
(1976),] are generally applicable to both state and municipal officers and the
tests for immunity are similar." Kimps,
slip op. at 7-8 n.6 (citing Scarpaci v. Milwaukee County, 96
Wis.2d 663, 682 n.19, 683 n.20, 292 N.W.2d 816, 826 (1980)).