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COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
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. 95-2452
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
William F. O'Connor,
by his Guardian Ad
Litem, Michael E.
McMorrow,
Rosemary O'Connor and
CompCare,
Plaintiffs-Appellants,
v.
Thomas M. Boehlke and
Classified Insurance
Company, Inc., Edward
J. Friede, Charles
Thompson, Robert R.
Packee, Wisconsin
Department of
Transportation and State of
Wisconsin, City of
Milwaukee,
Mequon/Thiensville
School District, City of
Mequon and Wausau
Insurance Companies,
Defendants-Respondents.
APPEAL from judgments of
the circuit court for Milwaukee County:
MICHAEL D. GUOLEE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. William F. O'Connor, (by his guardian ad
litem, Michael E. McMorrow), and Rosemary O'Connor appeal from a grant of
summary judgment in favor of Thomas M. Boehlke, Classified Insurance Company,
Inc., Edward J. Friede, Charles Thompson, Robert R. Packee, the Wisconsin
Department of Transportation, the State of Wisconsin, the City of Milwaukee,
the Mequon/Thiensville School District, the City of Mequon and Wausau Insurance
Companies.
O'Connor claims that the
trial court erred in granting summary judgment because material issues of fact
exist, the release at issue expressly reserved a claim against Boehlke in his
capacity as a City of Milwaukee employee and the various parties are not
entitled to immunity. Because no
material issues of fact exist, because Boehlke was not acting within the scope
of his employment, and because the various parties are entitled to governmental
immunity, we affirm.[1]
I. BACKGROUND
On September 13, 1993,
at approximately 7:45 a.m., City of Milwaukee Police Officer Boehlke was
traveling eastbound on Highway 167 in his personal automobile. He was not on duty, but was on his way to
the Milwaukee County Courthouse to give testimony pursuant to a subpoena. He had just dropped his son off at school
and, because he was ahead of schedule, decided to take the scenic route through
Mequon to the courthouse rather than the quickest route.
As he was crossing the
intersection of Range Line Road and Highway 167 in Mequon, Boehlke struck
William O'Connor, a minor, when he was riding his bicycle to school. O'Connor was in the crosswalk at the time of
impact. O'Connor settled with Boehlke
and Boehlke's personal automobile insurance carrier for the limits of the
policy, $50,000. A release was
executed.
Subsequent to the
settlement, O'Connor commenced a lawsuit against Boehlke and his personal auto
insurance carrier (Classified), the City of Milwaukee, the City of Mequon, the
Mequon/Thiensville School District and the Department of Transportation, as
well as three of the DOT's employees (Friede, Packee and Thompson).
Each defendant filed a
motion for summary judgment. The trial
court granted summary judgment on the basis that Boehlke and Classified were
released, the City of Milwaukee could not be responsible for Boehlke's actions
because he was not acting within the scope of his employment at the time of the
accident, and the rest of the defendants were entitled to immunity for
discretionary acts pursuant to § 893.80, Stats. O'Connor now appeals.
II. DISCUSSION
When reviewing a grant
of summary judgment, we apply the standards set forth in § 802.08, Stats., just as the trial court applies
those standards. Voss v. City of
Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625, 629 (1991). The standard has been so often repeated, we
need not do so again here. See id. Our review is de novo. Id. After independently reviewing the record in this case, we
conclude that the trial court was correct to grant summary judgment to each of
the defendants.
A. City
of Milwaukee.
O'Connor claims that the
trial court erred in granting summary judgment to the City of Milwaukee because
whether Boehlke was acting within the scope of his employment is an issue of
fact. O'Connor presents two theories of
liability against the City: that
because Boehlke was acting within the scope of his employment at the time of
the accident, the City is liable (1) under the theory of respondeat superior;
and (2) under statutory indemnification pursuant to § 895.46, Stats.
The key to succeeding under either theory rests on the issue of whether
Boehlke was acting within the scope of his employment. See Shannon v. City of
Milwaukee, 94 Wis.2d 364, 370, 289 N.W.2d 564, 568 (1980), and
§ 895.46. We agree with the trial
court, as a matter of law, that he was not.
The following facts are
undisputed. The accident occurred while
Boehlke was en route to the Milwaukee County Courthouse to testify. He was driving his personal automobile and
was “off-duty.” He had just dropped his
son off at school and decided to take the scenic route through Mequon instead
of the direct route through Milwaukee to get to the courthouse. He was not paid for his travel time or
reimbursed for gas mileage. The City
was not controlling his route or means of travel. Based on these undisputed facts, we conclude that Boehlke was not
serving his employer in any fashion at the time the accident occurred. Accordingly, he was not acting within the
scope of his employment and the City cannot be held liable. See DeRuyter v. Wisconsin
Elec. Power Co., 200 Wis.2d 349, 360-61, 546 N.W.2d 534, 537 (Ct. App.
1996) (for employer to be held vicariously liable for employee's actions en
route to work, it is necessary to show that employer exhibited some control
over the employee's route or means of travel), review granted, 204
Wis.2d 317, 555 N.W.2d 123 (1996).
We also reject
O'Connor's claim for statutory indemnification. He has failed to cite any controlling case law to indicate that
municipal liability under § 895.46, Stats.,
exists for an accident involving a municipal employee while traveling to
work. Moreover, we are convinced that
at the time of the accident, Boehlke was involved in a task of a purely
personal nature. It involved taking his
son to school and driving the scenic route to the courthouse. Because of the purely personal nature of
this task, the City cannot be held accountable. See Wuorinen v. State Farm Mut. Auto. Ins. Co.,
56 Wis.2d 44, 56, 201 N.W.2d 521, 527 (1972) (employee is not acting within
scope of employment when driving involves task of purely personal nature).
B. Boehlke/Classified.
O'Connor claims that the
trial court erred in granting summary judgment to Boehlke and Classified
because the legal effect of the “settlement document” was to preserve a $50,000
claim against Boehlke by virtue of his employment with the City of Milwaukee.
We have reviewed the
“settlement document.” We conclude that
the document clearly releases Boehlke from any personal liability, but does
attempt to reserve the right to pursue vicarious liability from the City of Milwaukee
based on Boehlke's employment with the City.
We need not decide the effect of the settlement document, however,
because we have already determined that Boehlke was not acting within the scope
of his employment at the time of the accident.
Accordingly, whether the
settlement document successfully reserved a claim against the City is
irrelevant. No claim exists against the
City because Boehlke was not acting within the scope of employment at the time
of the accident. See Gross v.
Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive
issues need be addressed).
C. City
of Mequon.
O'Connor claims the
trial court erred in granting summary judgment to the City of Mequon because it
breached the ministerial duties of: (1) maintaining a flashing beacon
light at the intersection; (2) failing to place crossing guards at the
intersection; and (3) failing to enforce the speed limit. He also argues that the City is not immune
because the intersection presented a “known present danger,” which removes immunity
protection. We reject each argument.
O'Connor's first three
arguments involve purely discretionary acts.
Enforcement of the speed limit is clearly discretionary. See Barillari v. City of
Milwaukee, 194 Wis.2d 247, 260-61, 533 N.W.2d 759, 764 (1995) (police
must be given discretion regarding how best to carry out their
responsibilities). Whether or not to
place crossing guards at an intersection is also a discretionary act. See § 349.215, Stats., (a city may provide for
school crossing guards), as is placement of a traffic sign in the absence of a
statute requiring the sign. See Hjerstedt v.
Schultz, 114 Wis.2d 281, 284, 338 N.W.2d 317, 319 (Ct. App. 1983)
(placement of a traffic sign in the absence of a statute of regulation that
mandates the sign requires the exercise of judgment).
We also reject
O'Connor's contention that the known present danger exception to immunity
applies in this case. A known present
danger exists where the “nature of the danger is compelling and known to the
officer” so that “nothing remains for judgment or discretion.” C.L. v. Olson, 143 Wis.2d
701, 715, 422 N.W.2d 614, 620 (1988).
An example constituting a known present danger includes circumstances
where a tree is lying across a road. See
Domino v. Walworth County, 118 Wis.2d 488, 347 N.W.2d 917 (Ct.
App. 1984). The standard requires some
known immediate and obvious danger.
This standard is not satisfied under the facts presented in the instant
case. As stated by the trial court,
every intersection is dangerous. We see
nothing in the record to convince us that the intersection at issue here was so
dangerous that placing crossing guards, or additional signs, transformed a
discretionary function into something mandatory. There was no tree down presenting such a compelling danger that
the City was required to act. Based on
the foregoing, we conclude that the City had no prior knowledge of any
vehicular-pedestrian accidents. Hence,
this case is not one which falls under the known present danger exception.
D. Mequon/Thiensville
School District.
O'Connor next argues
that the trial court erred in granting summary judgment to the school district
because it failed to place crossing guards and because the known present danger
exception applies. We reject both arguments.
Whether to place
crossing guards involves a discretionary act, see § 120.13, Stats., and we have already concluded
that the circumstances in this case do not warrant application of the known
present danger exception. The school
district is immune and, accordingly, granting it summary judgment was proper.
E.
Department of Transportation Employees, Packee and Friede.[2]
O'Connor argues that the
trial court erred in granting summary judgment to Packee and Friede because
they violated ministerial duties including:
(1) failing to install a S3-2 school warning sign; (2) removing
a flashing light beacon at the intersection; (3) failing to recommend that
crossing guards be placed at the intersection; and (4) raising the speed
limit to 25 m.p.h. He argues that each
of these is a ministerial act because the Manual on Uniform Traffic Control
Devices mandates each. He also argues
that the intersection presented a known present danger and, therefore, immunity
is not available. Again, we reject each
of O'Connor's contentions.
Packee was not even
involved in the design or installation of the signs at the intersection. Friede was not directly involved, but did
play a supervisory role. Nevertheless,
we are not convinced that the manual creates a ministerial duty with respect to
the four instances outlined above. The
manual makes placement of crossing guards discretionary in certain
circumstances, not mandatory. See
Manual on Uniform Traffic Control Devices, § 7D-2. The manual makes placement of school warning
signs discretionary, not mandatory. See
MUTCD § 7B-12. Neither the manual
nor § 346.57(4)(b), Stats.,
prohibits raising the customary 15 m.p.h. speed limit. The manual does not make the decision to
remove a flashing light beacon a violation of a mandatory duty.
Further, we have already
concluded that the circumstances present here do not satisfy the known present
danger exception. Accordingly, because
the DOT employees either were not involved with the intersection or because any
actions the employees took were discretionary in nature, they are not liable to
O'Connor for his injuries. Therefore,
the trial court did not err in granting these defendants summary judgment.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.