PUBLISHED OPINION
Case No.: 95-0755
†Petition for
review filed.
Complete
Title
of
Case:N.E.M. BY HER
GUARDIAN AD LITEM,
GARY M. KRYSHAK,
Plaintiff-Appellant,
CHARLES MEYER AND
PATTI MEYER,
Plaintiffs,
v.
EUGENE STRIGEL AND JUDY STRIGEL,
Defendants-Respondents,†
SCOTT STRIGEL,
Defendant.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 14, 1995
Opinion
Filed: December
14, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Wood
(If
"Special" JUDGE: Edward
F. Zappen
so
indicate)
JUDGES: Eich, C.J., Dykman and Sundby, JJ.
Concurred: Sundby,
J.
Dissented: Eich,
C.J.
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the brief of Leon S. Schmidt, Jr. of Schmidt,
Grace & Duncan of Wisconsin Rapids.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Robert G. Craig of Marshfield.
COURT OF APPEALS DECISION DATED AND RELEASED December
14, 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. 95-0755
STATE OF WISCONSIN IN
COURT OF APPEALS
N.E.M.
BY HER GUARDIAN AD LITEM,
GARY
M. KRYSHAK,
Plaintiff-Appellant,
CHARLES
MEYER AND
PATTI
MEYER,
Plaintiffs,
v.
EUGENE
STRIGEL AND JUDY STRIGEL,
Defendants-Respondents,
SCOTT
STRIGEL,
Defendant.
APPEAL
from a judgment of the circuit court for Wood County: EDWARD F.
ZAPPEN, Judge. Reversed and cause
remanded with directions.
Before
Eich, C.J., Dykman and Sundby, JJ.
DYKMAN,
J. N.E.M., a minor, appeals from a
judgment in which the trial court concluded that Eugene and Judy Strigel's
liability for their son, Scott's, sexual assaults was limited to $2,500[1]
pursuant to § 895.035(4), Stats.[2] A jury found that Scott sexually assaulted
N.E.M. twenty times. It awarded N.E.M.
$35,000 in compensatory damages, her parents $8,589 for out-of-pocket expenses
and loss of society and companionship, and $10,000 in punitive damages. The sole issue in this case is whether
twenty acts of sexual assault are one act for the purpose of determining the
extent of the Strigels' parental liability under § 895.035(4). N.E.M. argues that the court erred in
limiting the Strigels' liability to $2,500 because Scott committed twenty acts,
not one. We agree and, therefore,
reverse.
BACKGROUND
During the summer and
fall of 1992, Scott Strigel, age fifteen, sexually assaulted N.E.M., age ten,
on numerous occasions. She and her
parents sued Scott and his parents. The
jury concluded that Scott had sexually assaulted N.E.M. twenty times and that
his conduct was wanton and willful.
N.E.M., arguing that Scott's parents were liable up to $50,000 for these
assaults under § 895.035, Stats.,
the parental liability statute, moved the trial court for judgment. The court concluded that the twenty assaults
were a single continuing act for the purposes of parental liability and limited
the Strigels' liability to $2,500.
N.E.M. appeals.
STANDARD OF REVIEW
To
determine whether the Strigels are liable up to $2,500 for each time their son
sexually assaulted N.E.M., we must construe § 895.035(4), Stats.
Statutory interpretation presents a question of law which we review de
novo. State ex rel. Frederick
v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct. App.
1992). In construing a statute, our
purpose is to discern the legislature's intent and give it effect. Id. The first step is to examine the statute's language, and, absent
ambiguity, it is our duty to give the language its ordinary meaning. Id. at 225-26, 496 N.W.2d at
179. Since § 895.035 is in derogation
of the common law, we strictly construe it.
Poston v. United States Fidelity & Guar. Co., 107
Wis.2d 215, 224, 320 N.W.2d 9, 14 (Ct. App. 1982).
PARENTAL LIABILITY
Section
895.035(2), Stats., makes parents
with custody of a minor child liable for personal injuries attributable to a
willful, malicious or wanton act of that child. Section 895.035(4) provides that "the maximum recovery
from any parent or parents may not exceed $2,500 for damages resulting from
any one act of a child in addition to taxable costs and disbursements and
reasonable attorney fees ...."
(Emphasis added.) The language
of subsection (4) is clear and unambiguous.
A parent is liable up to $2,500 for damages resulting from any one act
of a child. For the purpose of this
subsection, "any one act" refers to a single, particular and separate
act and not to several acts. In other
words, the extent of a parent's liability turns upon the number of acts which
cause damage and will not exceed $2,500 for each such act. We conclude, then, that the statute does not
permit a court to merge a series of acts which occur over a period of time into
one act but instead requires us to treat them as separate acts, each exposing a
parent to liability up to $2,500. Thus,
when the jury concluded that Scott sexually assaulted N.E.M. twenty times, for
the purpose of this statute, he committed twenty separate acts. Consequently, the Strigels are liable up to
$2,500 for each time he sexually assaulted N.E.M., or $50,000.
But
the Strigels argue that we must strictly construe § 895.035(4), Stats., because it is in derogation of
common law. They assert that the twenty
sexual assaults were, therefore, but one continuing act. We disagree. Strict construction requires limiting the language, not ignoring
the plain language of the statute. The
Strigels would have us read the phrase "any one act" as meaning
"all acts." That we cannot
do. See Thomas v. Iowa
Nat'l Mut. Ins. Co., 132 Wis.2d 18, 22, 390 N.W.2d 572, 574 (Ct. App.
1986) (when the language of a statute is clear and unambiguous, the statute
must be interpreted on the basis of the plain meaning of its terms). If "any one act" means "all
acts," Scott could have assaulted twenty girls and his parents' liability
would have been only $125 for each assault.
This is contrary to the language of the statute. Moreover, all of Scott's sexual assaults
after the first one would be noncompensable.
Such a result would hardly be a disincentive to a person committing
repetitive sexual assaults.
Consequently, we reject their contention.
The
parental liability statute represents a valid exercise of the state's police
power and gives parents a financial incentive to prevent their minor children
from inflicting personal injury. First
Bank Southeast, N.A. v. Bentkowski, 138 Wis.2d 283, 289, 405 N.W.2d
764, 766 (Ct. App. 1987). Making
parents liable up to $2,500 for each act committed by their child is consistent
with that goal. Indeed, had Scott been
criminally charged, he could have been subjected to at least twenty separate
counts. See State v.
Kruzycki, 192 Wis.2d 509, 520-24, 531 N.W.2d 429, 433-35 (Ct. App.
1995) (two acts of sexual assault sufficiently different in fact may justify
separate charges under the same statute).
Criminal statutes, like statutes in derogation of common law, are
strictly construed. State v. Timm,
163 Wis.2d 894, 899, 472 N.W.2d 593, 595 (Ct. App. 1991). Thus, we cannot conclude that Scott's twenty
sexual assaults were one act for the purpose of this civil action, but twenty
acts for the purpose of a criminal prosecution.
We
conclude that the trial court erred when it determined that Scott committed one
act thereby limiting the Strigels' liability to $2,500. Instead, the Strigels are liable up to
$2,500 for each of the twenty assaults, or $50,000. Consequently, we reverse the judgment and remand for a
recalculation of damages.
By
the Court.—Judgment reversed
and cause remanded with directions.
No. 95-0755(C)
SUNDBY,
J. (concurring). It is undisputed that
the sexual assaults which are the subject of this case occurred on twenty
separate occasions. In a criminal
prosecution, the assaulter could not successfully argue that he was subjected
to double jeopardy if the state decided to prosecute him on twenty counts. I cannot read § 895.035(4), Stats., to provide that for civil
liability purposes the twenty assaults were a single continuing act. The statute imposes a maximum recovery from
any parent or parents "for damages resulting from any one act of a child
...." The word "act" has
no special meaning; we may therefore rely on a standard dictionary
definition. See State ex
rel. Girouard v. Jackson Circuit Court, 155 Wis.2d 148, 156, 454 N.W.2d
792, 795-96 (1990). Webster's Third New International Dictionary
20 (1976), defines "act" as:
"[O]ne of the successive parts or performances each complete in
itself ...." Each of the
assaulter's acts was "complete in itself."
Had
the assaulter sexually assaulted twenty different persons, there would be no
question but that his parents could be liable for damages for each such act
under § 895.035(4), Stats. I do not see how we can interpret the
statute any differently when the twenty separate acts consist of assaults of
the same person. This may not have been
the result intended by the legislature but I cannot conclude that the language
of the statute is ambiguous. Therefore,
I concur.
No. 95-0755(D)
EICH,
C.J. (dissenting). Because
§ 895.035, Stats., is in
derogation of common law, it must be construed "narrowly and
strictly." Van v. Town of
Manitowoc Rapids, 150 Wis.2d 929, 934, 442 N.W.2d 557, 559 (Ct. App.
1989). The statute's purpose is not to
compensate victims but to "[g]iv[e] parents a financial incentive to
prevent their minor children from inflicting personal injury and property
damage." First Bank
Southeast, N.A. v. Bentkowski, 138 Wis.2d 283, 289, 405 N.W.2d 764, 766
(Ct. App. 1987).
I
agree with my colleagues that the statute's use of the seemingly singular word
"act" is problematic. But
dictionary definitions do not provide the answer to our inquiry. Webster's
Third New International Dictionary (1976), for example, defines the term
in a full foot of small-print text, and the definition recited in the
concurring opinion--"one of the successive parts or performances each
complete in itself"--does not tell the whole story, for it continues:
"making up an entertainment program (as of a variety show or
circus)." Id. at
20. The same dictionary also defines
the term as "a sequence of human behavior considered as a unit that
is directed toward a goal and is regulated by standards of conduct." Id. (emphasis added). Webster's
may thus be read either as support for the trial court's ruling or, at best, as
an inconclusive source for interpretation of the statute.
The
noncompensatory purpose of the law would be thwarted, I feel, by allowing the
plaintiff in this case to recover twenty times the stated amount--as would
allowing a plaintiff in another case to recover twenty times over for a child's
"act" of breaking twenty windows.
Such an interpretation would be an expansive, rather than a narrow,
construction of the statute and would change it from one of parental deterrence
to one providing compensation for damages suffered as a result of the child's
conduct--a remedy readily available to the injured party in a civil proceeding.
Interpreting
the statute "narrowly and strictly," as the trial court did--and as Van
and similar cases require--to limit the damages recoverable for the
child's series of assaults to $2,500 is a reasonable application of the law
consistent with its purpose and the manner in which we are directed to construe
it. I would do so in this case and
affirm the judgment.
[1] The judgment contained in the record states
that the Strigels' liability was limited to $3,500, but a copy of a judgment
contained in N.E.M.'s appendix and a transcript indicate that the Strigels'
liability was limited to $2,500, as provided by statute. Whether this was a mistake is irrelevant
because our focus is on whether Scott's twenty sexual assaults were one act
under § 895.035(4), Stats. That statute limits parental liability to
"$2,500 for damages resulting from any one act of a child."
[2] Section 895.035(4), Stats., provides in relevant part:
Except for recovery
for retail theft under s. 943.51, the maximum recovery from any parent or
parents may not exceed $2,500 for damages resulting from any one act of a child
in addition to taxable costs and disbursements and reasonable attorney fees, as
determined by the court.