D.B. ex rel. Recore v. County of Green Lake

2016 WI App 33, 879 N.W.2d 131, 368 Wis. 2d 282, 2016 Wisc. App. LEXIS 130
CourtCourt of Appeals of Wisconsin
DecidedMarch 2, 2016
DocketNo. 2015AP1301
StatusPublished
Cited by2 cases

This text of 2016 WI App 33 (D.B. ex rel. Recore v. County of Green Lake) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.B. ex rel. Recore v. County of Green Lake, 2016 WI App 33, 879 N.W.2d 131, 368 Wis. 2d 282, 2016 Wisc. App. LEXIS 130 (Wis. Ct. App. 2016).

Opinion

REILLY, RJ.

¶ 1. This case addresses governmental immunity. The County of Green Lake, the County of Green Lake Social Services, and Wisconsin County Mutual Insurance Company (collectively, the County), along with the City of Berlin and the City of Berlin Police Department (collectively, the Police Department) appeal the trial court's denial of their motions for summary judgment, which sought immunity for any negligence on their part.1 D.B., by his mother, brought suit against the County and the Police Department alleging that they were both negligent in their investigation of sexual assault allegations in 2011, which resulted in the continued sexual assault of D.B. D.B.'s mother claims that her half brother was a danger to D.B. and asserts that the County and the Police Department should have known he was a danger based on the allegations D.B. made, although D.B.'s mother admits that no one actually knew in 2011 that her half brother was a danger.

¶ 2. The trial court determined that the "known danger" exception precluded granting immunity to the County and the Police Department. We disagree for two reasons: (1) the scope and breadth of an investigation into allegations of child abuse is a discretionary [288]*288act rather than a ministerial act and (2) D.B. admits that no one actually knew D.B.'s uncle was dangerous in 2011 and therefore no "known danger" was present as an exception to immunity. We reverse and remand for a grant of judgment to the defendants on all of plaintiffs claims.

BACKGROUND

f 3. On February 24, 2011, the principal of D.B.'s elementary school in Berlin notified Police School Liaison Officer Doug Christensen that first-grader D.B. had attempted to kiss and "dry hump" one of his fellow classmates. The principal further relayed that, when asked, D.B. told him that his Uncle Rob, had "told him about humping" and had showed him pictures of naked people on his cell phone.

¶ 4. Christensen referred the allegations to the County's social services department, which "screened" the allegations per their department rules. Department standards require a screening to be completed within twenty-four hours of a report of child abuse being made. See also Wis. Stat. § 48.981(3)(c)l.a. The department screened the report the same day it was received. The screening investigation revealed that the uncle not only showed D.B. "pictures of adults humping" but also allegedly "touched [D.B.'s] privates while at Grandma or Aunt C[.]'s home." The department concluded that the uncle was not a "caregiver" as defined in § 48.981(l)(am) and referred the abuse allegations (per §§ 48.02(l)(b)-(f) and 48.981(3)(a)3.) to law enforcement for investigation. The department followed its standards by making the screening decision within twenty-four hours of receipt of the report of child abuse.

[289]*289¶ 5. Christensen thereafter interviewed D.B. who said that his Uncle Rob showed him "pictures of people having sex" on his cell phone and that on various occasions his uncle "punched" D.B.'s genitals over his clothing when he was mad. D.B. did not disclose any other inappropriate touching. Christensen then spoke to D.B.'s mother, who told Christensen that Uncle Rob, her half brother, had babysat D.B. in the past, but she was unaware that he had shown D.B. any inappropriate pictures.

¶ 6. Christensen interviewed Uncle Rob after reading him his Miranda2 rights. The uncle denied all allegations, saying that he did not own a cell phone during the time D.B. said the pictures were shown and that he never inappropriately touched D.B. The uncle also suggested that D.B. learned about humping from his parents, as the uncle had observed D.B.'s parents dry hump each other in the kitchen while D.B. was present.

¶ 7. Christensen called D.B.'s mother a second time to follow up on what the uncle had said. D.B.'s mother said she was not sure if Uncle Rob had a cell phone during the time in question and said that she never saw her half brother have any inappropriate contact with D.B. She also stated that she and her husband never displayed any sexual behavior in front of D.B. Christensen told D.B.'s mother that, based on his investigation, he would not be referring the case for criminal charges, but that he would forward the information to the district attorney. He also asked D.B.'s mother to contact him with any additional information. Christensen then submitted his findings, his [290]*290report, and a written statement from Uncle Rob to the district attorney, who decided not to issue charges against the uncle.

¶ 8. Two years later, D.B. began to exhibit additional behavioral problems and an investigation revealed that Uncle Rob had been sexually abusing D.B. for a number of years. Uncle Rob ultimately pled no contest to first-degree sexual assault of a child.

f 9. D.B., by his mother, sued the County and the Police Department, alleging that their negligent investigation in 2011 resulted in the uncle's further sexual assaults of D.B. The County and the Police Department responded with motions seeking dismissal on grounds of immunity. The trial court denied defendants' motions on the ground that the "known danger" exception to government immunity under Wis. Stat. § 893.80(4) applied. We granted leave to appeal.

DISCUSSION

¶ 10. This case requires us to decide whether the County and/or the Police Department have immunity under the facts presented by Plaintiff. "The immunity defense assumes negligence, focusing instead on whether the [government] action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies." Lodi v. Progressive N. Ins. Co., 2002 WI 71, ¶ 17, 253 Wis. 2d 323, 646 N.W.2d 314. The issue of governmental immunity involves applying legal standards to a set of facts, which is a question of law. Id. We review these issues of immunity de novo. Heuser v. Community Ins. Corp., 2009 WI App 151, ¶ 21, 321 Wis. 2d 729, 774 N.W.2d 653.

[291]*291¶ 11. We begin by focusing on the government action or inaction upon which liability is premised. D.B. argues that Uncle Rob is a "caregiver" as that term is used in Wis. Stat. § 48.981(l)(am). Since the County defined Uncle Rob as not being a "primary" caregiver, D.B. contends the County violated a ministerial duty and is not entitled to immunity. As we will explain below, the County conducted a screening based on D.B.'s allegations and concluded that it did not need to intervene in D.B.'s family structure as Uncle Rob did not live within D.B.'s home nor was he a "primary" caregiver. The County referred the matter to the police for further criminal investigation (i.e. the mirandized statement of Uncle Rob). The scope and breadth of the County's screening/investigation as well as their conclusions as to whether Uncle Rob was a "caregiver" were clearly discretionary acts entitled to immunity.

¶ 12. D.B. also claims that the "known danger" exception to immunity applies as Uncle Rob was a dangerous person and the police should have discovered that fact in 2011.

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2016 WI App 33, 879 N.W.2d 131, 368 Wis. 2d 282, 2016 Wisc. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/db-ex-rel-recore-v-county-of-green-lake-wisctapp-2016.