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COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
NOTICE |
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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. 95-1553-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MARK WILLIAM JAGLA,
PERSONAL
REPRESENTATIVE OF THE
ESTATE OF KINSEY K.
SPILLER,
DECEASED,
Plaintiff-Appellant,
LORI SKORIE,
Plaintiff-Co-Appellant,
v.
DOUGLAS J. GUENTHNER,
GLOBE AMERICAN
CASUALTY CO.,
INTEGRITY MUTUAL
INSURANCE
CO., DEVIN K. WIRTZ,
SHIRLEY WIRTZ, REGENT
INSURANCE COMPANY and
WINNEBAGO COUNTY
DEPARTMENT
OF SOCIAL SERVICES,
Defendants-Respondents.
APPEAL from judgments of
the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Mark William Jagla, the
personal representative of the estate of Kinsey K. Spiller, and Lorie Skorie[1]
appeal summary judgments dismissing the complaint against each of three
defendants and their insurers.[2] Jagla contends that the trial court erred by
concluding that as a matter of law none of the three named defendants were
guilty of causal negligence in Kinsey's death.
Because we conclude that the trial court correctly determined that none
of the three named defendants were guilty of causal negligence, we affirm the
judgments.
Lori Skorie and her
four-year-old daughter, Kinsey Spiller, were visiting the Shirley Wirtz
residence in White Lake, Wisconsin.
Sometime after dark, Shirley Wirtz's ten-year-old son, Devin, asked for
permission from his mother to go sledding in the front yard. After Shirley gave Devin permission to go
sledding, Skorie gave Kinsey permission to go sledding with Devin.
Devin and Kinsey
occupied the same sled. As they came
down the hill in the front yard, the sled hit the icy driveway causing them to
slide across the road and onto the shoulder of the opposite side of the
road. At the end of the ride, Kinsey
got off the sled and ran into the roadway where she was struck by a vehicle
driven by Douglas Guenthner.
The roads were ice
covered and slippery at the time of the accident. In addition, there was a hill a short distance from the Wirtz
home that was large enough to obscure the vision of an approaching vehicle. As a result, Guenthner was driving his motor
vehicle at a greatly reduced speed, estimated to be between fifteen and
twenty-five miles per hour.[3] As Guenthner came over the crest of the
hill, he saw the children on the edge of the road and attempted to slow down
even more. However, he could not stop
in time to avoid the collision when Kinsey darted in front of his vehicle. Kinsey died as a result of her injuries.
Jagla, as personal
representative of Kinsey's estate, and Skorie brought suit against Guenthner,
Shirley Wirtz, Devin Wirtz and their insurers.
The trial granted the defendants' motions for summary judgment
concluding they were not causally negligent as a matter of law.
We review a grant of
summary judgment de novo, applying the same methodology as the trial
court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). That methodology has been set forth many
times and need not be repeated here. See
Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980). If based upon the facts presented, no
properly instructed reasonable jury could find a defendant guilty of negligence
the trial court may properly grant summary judgment as to that defendant. See Ceplina v. South Milwaukee
School Bd. 73 Wis.2d 338, 342, 243 N.W.2d 183, 185 (1976).
Four elements must be
present to sustain a cause of action for negligence: "(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" .... Coffey
v. Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132, 135 (1976). Causation is a question of whether the
breach of duty was a substantial factor in causing the harm. Fondell v. Lucky Stores, 85
Wis.2d 220, 227, 270 N.W.2d 205, 209 (1978).
In this case, Jagla contends
that Guenthner was negligent in operating his vehicle and his negligence caused
Kinsey's death. However, on summary
judgment Guenthner produced undisputed evidence that he drove his vehicle at a
greatly reduced speed in difficult driving conditions, that he saw the children
as he came over the hill and slowed down even more, and that he attempted to
avoid striking Kinsey when she darted out into the road, but could not do so
because of the driving conditions.
Jagla did not present any evidence in rebuttal to suggest that Guenthner
did not exercise reasonable care in his operation and control of the vehicle or
that he did not maintain a proper lookout.
Further, there is no evidence to suggest that proper operation and
control of the vehicle could have avoided the collision. We therefore conclude that the trial court
properly granted summary judgment to Guenthner.
Jagla next contends that
Shirley Wirtz was casually negligent in Kinsey's death. Jagla's theory of negligence against Wirtz
is difficult to discern. Shirley was
not the person charged with the responsibility of supervising Kinsey, did not
grant permission for Kinsey to accompany Devin sledding, and assumed no
responsibility for observing the children once they went outside. Under these circumstances we can see no
basis upon which any reasonable jury could find Shirley Wirtz guilty of causal
negligence. We therefore conclude that
the trial court properly dismissed Jagla's complaint against her and her
insurer.
Finally, Jagla contends
that ten-year-old Devin was negligent in his operation of the sled and that
negligence caused Kinsey's death. While
this is a close question, we conclude that there is no evidence indicative of
causal negligence on the part of Devin.
Devin was ten at the time of the incident and is to be judged not by a
standard of care to be used by an adult but a reduced standard of care
commensurate with his age. See Frayer
v. Lovell, 190 Wis.2d 795, 806-07, 529 N.W.2d 236, 241 (Ct App.
1995).
We conclude that no reasonable
jury could find any negligence on the part of Devin that was a substantial
factor in causing Kinsey's death. Had
Kinsey been struck by a vehicle while on the sled, Devin's conduct in allowing
the sled to go across the roadway may have constituted causal negligence. But these are not the facts in this
case. The sled with Kinsey and Devin
upon it safely traversed the roadway and reached the opposing shoulder. Before Devin could get off the sled Kinsey
had darted into the roadway. Devin
attempted to stop Kinsey by calling a warning but was unsuccessful in stopping
her.
There is no evidence
that Devin had an opportunity to restrain Kinsey or that Kinsey's decision to
suddenly run into the roadway was reasonably foreseeable by Devin at the time in
question. Based upon the totality of
the evidence and considering Devin's age and the lack of any evidence that
would indicate it was foreseeable that Kinsey would dart into the roadway in
front of an oncoming car, we conclude that the trial court did not err in
dismissing the claims of causal negligence against Devin. We therefore affirm the trial court's
judgments dismissing the complaint against all of the defendants.
By the Court.—Judgments
affirmed.
Not recommended for
publication in the official reports.