COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1995 |
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. 94-1382
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
MARINO CONSTRUCTION
CO., INC.,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE,
BOARD OF HARBOR
COMMISSIONERS
OF THE CITY OF
MILWAUKEE
and KENNETH J.
SZALLAI,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County: MICHAEL D. GUOLEE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Marino Construction Co., Inc., appeals from
an order dismissing, with prejudice, its amended complaint for defamation
against the City of Milwaukee and the Board of Harbor Commissioners of the City
of Milwaukee. The trial court dismissed
the amended complaint after it concluded that libel is an intentional tort and
therefore the City and the Board of Harbor Commissioners as governmental
entities were immune from liability under § 893.80(4), Stats.[1] We conclude that Marino Construction's seven
causes of action for libel as pleaded in its amended complaint are premised
upon alleged intentional conduct on the part of the City and its agents, and
accordingly the trial court properly applied the doctrine of governmental
immunity in dismissing the amended complaint against the City and the Board of
Harbor Commissioners. We affirm.
On August 2, 1991, the
City and the Board of Harbor Commissioners entered into a contract with Marino
Construction to build portions of the Port of Milwaukee Headquarters
Building. The company “constructed” the
building.
On August 5, 1992, an
article appeared in the Milwaukee Sentinel under the headline “Port
cancels pact with Builder; Contractor disputes allegation of `structural
defect' in new offices.” The relevant
part of the article reads:
The Port of Milwaukee
canceled its agreement with the major contractor on the new $1.6 million port
headquarters because of dissatisfaction with the firm's work, Port Director Kenneth J. Szallai said
Tuesday.
“There is, in our
opinion, a structural defect in our building,” he said.
The dispute with Marino
Construction Co. has halted work and delayed indefinitely the port's move to
its new offices, Szallai said.
On August 20, 1992,
Marino Construction sent the defendants a written demand for correction,
pursuant to § 895.05(2), Stats.,
on the statements made by Szallai. The
defendants never retracted or corrected the allegedly false statements.
Marino commenced a
seven-count defamation action against the City, the Board of Harbor
Commissioners, and Szallai. The
relevant portion of the amended complaint reads:
That on or about August
5, 1992, the defendant, Kenneth J. Szallai, made false oral and/or written statements
to representatives of the Milwaukee Sentinel newspaper whereby defendant stated
that the Port of Milwaukee Headquarters Building constructed by plaintiff
contains a structural defect; that said statement consisted of the following:
“There is, in our opinion, a structural defect in our building.” A true and accurate copy of the Milwaukee
Sentinel newspaper article is attached and ... incorporated herein by reference
as if fully set forth herein.
The City and the Board
of Harbor Commissioners moved the trial court for dismissal, pleading
governmental immunity from liability for the intentional tortious conduct of
its agents or employees. The trial
court agreed with the defendants, concluding that libel is an intentional
tort. Accordingly, it dismissed
Marino's amended complaint against the City and the Board of Harbor
Commissioners, with prejudice, under the aegis of § 893.80(4), Stats.
The trial court further ordered Marino Construction to designate whether
the remaining defendant, Szallai, was being sued in his official capacity as
port director, or in his individual capacity.
Marino Construction appeals from this order.
Whether the City and the
Board of Harbor Commissioners are immune from liability under § 893.80(4),
Stats., for the allegedly
defamatory statements made by their agent or employee is a question of law that
we review de novo. See Snow
v. Koeppl, 159 Wis.2d 77, 81, 464 N.W.2d 215, 216 (Ct. App. 1990)
(whether words spoken in the course of judicial proceedings pertain to the
issues and therefore qualify for judicial immunity is a legal issue).
The trial court
concluded that as a matter of law all causes of action for libel are
intentional torts, and therefore subject to the governmental immunity provided
by § 893.80(4), Stats. Marino Construction argues that all libel
claims are not necessarily intentional torts, but that they can be based upon
negligence theory as well. Accordingly,
Marino argues that the trial court erred in applying governmental immunity for
intentional torts. We need not address
this dispute over the categorical distinction of libel because we conclude that
Marino Construction's causes of action, as pleaded in its amended complaint,
are premised solely on alleged intentional conduct. Accordingly, the trial court properly applied § 893.80(4), Stats., and dismissed the complaint
against the City and the Board of Harbor Commissioners.
Because the trial court
granted the City and the Board's dismissal motion, we are called upon to
appraise the sufficiency of the amended pleading; that is, whether it is quite
clear that under no circumstances can Marino Construction recover. See Schuster v. Altenberg,
144 Wis.2d 223, 228, 424 N.W.2d 159, 161 (1988).
Perusal of the seven
causes of action makes it abundantly clear that five are specifically based
upon allegedly intentional conduct on the part of Szallai and the defendants.[2] Hence, all fall under the governmental
immunity provided by § 893.80(4).
The remaining two causes of action, thus, are the focus of our
attention. The substance of the causes
of action is quoted above in full; however, the two causes are alternatively
pleaded—one premised on an allegation that Szallai was acting within the scope
of his employment, and the other based upon conduct outside his scope of
employment.
The cause of action for
defamation (libel) in this case is premised upon a private defendant suing a
non-media defendant; accordingly, the elements are that the defendant communicated
a false statement to a third person which “tends so to harm the reputation of
another as to lower the person in the estimation of the community or deters
others from associating or dealing with the person.” Wis J I—Civil 2501. Further, the statement “must be intentionally or negligently
communicated to a person other than the person defamed.” Wis
J I—Civil 2500. Marino Construction's complaint alleges that
“Kenneth J. Szallai, made false oral and/or written statements to
representatives of the Milwaukee Sentinel.”
Even reading the complaint most favorably to Marino Construction as this
court is required to do upon a motion to dismiss, see Schuster,
144 Wis.2d at 228, 424 N.W.2d at 161, we cannot conceive how this allegation
does not allege intentional conduct on the part of Szallai. Szallai is alleged to have specifically made
the statements to representatives of the Milwaukee Sentinel. While there may be cases in which a person
negligently communicates statements to a third party, see W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 113, at 802 (5th ed. 1984) (“[T]he defendant may
not have intended to communicate the statement to anyone, or at least to anyone
other than the person disparaged, but due to some mishap, foreseeable or
otherwise, publication to others occurred.”), Marino Construction's allegation,
as pleaded in its complaint, does not raise such a contention. Accordingly, we conclude that the causes of
action are premised upon alleged intentional communication on the part of
Szallai and thus, the City and the Board of Harbor Commissioners are immune
from liability pursuant to § 893.80(4), Stats. The trial court properly dismissed the
complaint and we affirm.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Section 893.80(4) Stats.,
provides:
(4) 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.