COURT OF APPEALS DECISION DATED AND RELEASED September 26, 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. 95-2807
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
PAO MOUA and CHIA VANG
as Co-Personal
Representatives and
PAU MOUA and CHIA
VANG,
Individually,
Plaintiffs-Appellants,
v.
CITY OF LA CROSSE, a
Municipal Corporation,
and CITIES AND
VILLAGES MUTUAL INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for La Crosse County:
JOHN J. PERLICH, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Pao Moua and Chia Vang appeal from a summary judgment
dismissing their complaint against the City of La Crosse and its insurer. The appellants commenced this wrongful death
action after their eight-year-old daughter, Mai Kou Moua, drowned at a public
beach in La Crosse. The trial court
granted summary judgment under the recreational immunity statute,
§ 895.52, Stats. The issue is whether a trier of fact could
reasonably infer from the submissions in opposition to summary judgment that La
Crosse was liable under the malicious acts exception to recreational immunity. Because we conclude that no such inference
is available, we affirm.
Under the appellants'
version of the incident, Mai Moua Vang, then six, accompanied Mai Kou to the
beach on the day of the accident. At
some point, Mai Moua noticed that Mai Kou was having difficulty in the
water. She approached a City of La
Crosse lifeguard and asked the lifeguard to help Mai Kou. The lifeguard responded "just a
minute." Mai Kou continued to have
problems in the water and Mai Moua again went to get the lifeguard, but could
not find her. Mai Kou was later removed
from the water unconscious, and subsequently died. According to Mai Moua, the beach was open and there were other
people on the sand and in the water when Mai Kou drowned.
The City submitted
testimony and affidavits from the lifeguards on duty that day who denied all
aspects of Mai Moua's version of the accident.
According to the lifeguards, while they were present no children
approached them for help, and none were ever observed having difficulty in the
water. They testified that they had
closed the beach early that day and had gone home well before the drowning
occurred.
The complaint
undisputedly states a claim. It is also
undisputed that the City presented a prima facie case for dismissal on summary
judgment, as its witnesses deny every material allegation against them. Therefore, under summary judgment
methodology, the dispositive issue is whether the appellants' affidavits in
opposition to summary judgment contain evidence that creates a genuine issue as
to any material fact or allows reasonable conflicting inferences to be drawn
from the undisputed facts. Grams
v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 477 (1980). We determine this issue in the same manner
as the trial court and without deference to its decision. In re Cherokee Park Plat, 113
Wis.2d 112, 115-16, 334 N.W.2d 580, 582 (Ct. App. 1983).
Taking all the
appellants' facts as true, dismissal is still appropriate because the necessary
inference of malice remains unavailable.
An exception to recreational immunity applies if an injury is caused by
a malicious act. Section 895.52(4)(b), Stats.
A malicious act under that section is one that results from hatred, ill
will, a desire for revenge, or is inflicted under circumstances where insult or
injury was intended. Ervin v.
City of Kenosha, 159 Wis.2d 464, 485, 464 N.W.2d 654, 663 (1991). An act may be reckless, grossly negligent or
willful, but not malicious. Id.
at 482, 464 N.W.2d at 662. Here, the
appellants' submissions show, at best, grossly negligent behavior. There is no evidence that the City's
lifeguard brushed off Mai Moua's request out of hatred, ill will, or desire to
inflict injury or revenge. And that is not
a reasonable inference from their momentary contact.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.