Jones v. Dane County

537 N.W.2d 74, 195 Wis. 2d 892, 1995 Wisc. App. LEXIS 882

• Court: Court of Appeals of Wisconsin
• Decided: July 20, 1995
• Docket: 92-0946
• Status: Published

Opinions

DYKMAN, J.¹

Barbara A. Jones and her son, Douglas Kinney, appeal from an order in which the trial court dismissed, on summary judgment motion, their action under 42 U.S.C. § 1983.² Barbara Jones's stepson, Leland Robby Jones, Jr., had been adjudged delinquent and was placed out of his home and under the supervision of Dane County for one year. During that time period, he resided in three different residential homes and a hospital. Toward the end of his supervision period, James E. Chorlton, the county social worker assigned to his case, placed Robby back in Barbara Jones's home where he later shot and severely injured her and Kinney. Barbara Jones and Kinney claim that Chorlton violated their procedural and substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution when Chorlton changed Robby's placement without first providing them with notice and an opportunity to file an objection with the court as required by § 48.357(1), STATS.³ We conclude that the trial court properly dismissed the procedural due process claim because Chorlton's actions were random and unauthorized, and adequate postdeprivation state law remedies exist to afford Jones and Kinney the process that they are due. We also conclude that the trial court properly dismissed the substantive due process claim because the state has no duty to protect persons from private violence when that person is not in custody. Accordingly, we affirm.

Jones and Kinney also appeal from a judgment in which a jury returned a verdict on a negligence claim in favor of Chorlton. They complain of numerous prejudicial errors and request a new trial in the interest of justice. We reject each of these asserted errors -and conclude that a new trial is not warranted. Accordingly, we affirm.⁴

BACKGROUND

In April 1981, Leland Robby Jones, Jr., was found to be a child in need of protection or services (CHIPS) and delinquent. The trial court ordered him placed under county supervision for one year and returned him to his mother's home. A psychological evaluation completed by Dr. Larry W. Zuberbier that same month indicated that Robby hated his stepmother, Barbara Jones, and that he could hurt her.

In October 1981, Robby was again found delinquent and placed under county supervision for a period of one year. He was initially sent to Wyeth House, a group home in Madison, Wisconsin, where he remained until December 1981. At that time, he was sent to Kettle Moraine Hospital to obtain drug dependency treatment. In February 1982, Robby was transferred to Thoreau House in Madison where he remained until July 1982 when he was sent to Bockari House, also in Madison, after repeatedly violating his conditions of probation and house rules. He also spent two weeks in Kettle Moraine Hospital in April 1982 to obtain additional drug dependency treatment.

On August 27,1982, without first providing notice pursuant to § 48.357(1), STATS., and over Jones's objections, Chorlton sent Robby to Jones's home to live. The court order requiring that Robby be placed outside of his home was still in effect. On September 7, 1982, Robby shot and seriously wounded Jones and Kinney.

Jones and Kinney commenced this action in October 1983 alleging negligence and violations of their constitutional rights under 42 U.S.C. § 1983. On January 7, 1991, the trial court dismissed the § 1983 claim on summary judgment motion. The case went to trial on the negligence claim and on October 28, 1991, the jury found that while Chorlton was negligent, his negligence was not a cause of Jones's and Kinney's injuries. Jones and Kinney appeal.

SECTION 1983

Jones and Kinney argue that the trial court erred when it dismissed their claim under 42 U.S.C. § 1983 on summary judgment motion. According to Jones and Kinney, they have raised genuine issues of material fact as to whether Chorlton violated their rights to procedural and substantive due process. They claim that Chorlton's failure to comply with § 48.357(1), STATS., which requires notice before a juvenile's placement may be changed, resulted in their being deprived of their rights to liberty and property without due process of law as guaranteed by the Fourteenth Amendment. We disagree.

A grant of summary judgment is an issue of law which we review de novo by applying the same standards as employed by the trial court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48, 49 (Ct. App. 1994). We first examine the complaint to determine whether it states a claim, and then the answer to determine whether it presents a material issue of fact. Id. If they do, we then examine the documents offered by the moving party to determine whether that party has established a prima facie case for summary judgment. Id. If it has, we then look to the opposing party's documents to determine whether any material facts are in dispute which would entitle the opposing party to a trial. Id. at 372-73, 514 N.W.2d at 49-50.

To state a § 1983 claim against Chorlton, Jones and Kinney must allege: (1) that the conduct of which they complain was committed while Chorlton was acting under color of state law; and (2) that such conduct deprived them of rights, privileges or immunities secured by federal law or the United States Constitution. Hillman v. Columbia County, 164 Wis. 2d 376, 402, 474 N.W.2d 913, 923 (Ct. App. 1991). The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall... deprive any person of life, liberty, or property, without due process of law _" The due process clause is comprised of two components: procedural and substantive due process.

Three types of § 1983 claims exist under the due process clause of the Fourteenth Amendment: (1) a claim for a violation of a specific right protected by the Bill of Rights and incorporated by the due process clause; (2) a claim under the substantive component of the due process clause which bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them; and (3) a procedural due process claim involving the deprivation of life, liberty or property without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Under the procedural component, Jones and Kinney must show that they were deprived of a constitutionally protected interest in life, liberty or property without due process of law. Irby v. Macht, 184 Wis. 2d 831, 838, 522 N.W.2d 9, 11, cert. denied, 115 S. Ct. 590 (1994). Under the substantive component, Jones and Kinney must show that the state was constitutionally obligated, yet failed, to protect their interests in life, liberty or property. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195 (1989). We address each claim in turn.

1. Procedural Due Process

Jones and Kinney argue that they have been deprived of their constitutionally protected interests in liberty and property without due process of law because Chorlton forced them to accept Robby back into their home without providing them with an opportunity for a hearing on the change in placement.⁵ Under a procedural due process analysis, the fact that Jones and Kinney may have been deprived of a protected liberty or property right does not, alone, mean that their constitutional rights have been violated. "The [procedural component of the] Due Process Clause does not prevent states from depriving persons of their life, liberty or property." Irby, 184 Wis. 2d at 842, 522 N.W.2d at 13. In procedural due process claims, what is unconstitutional is the deprivation of such a right without due process of law. Zinermon, 494 U.S. at 125. In other words, the constitutional violation is not complete when the deprivation occurs, but when the state fails to provide due process. Id. at 126. Thus, our inquiry will assume, arguendo, that Jones and Kinney were deprived of a protected right and instead, will focus on whether this deprivation occurred without due process of law.

Jones and Kinney argue that they were not provided with the process that they were due because they were not given notice of a change in placement pursuant to § 48.357(1), STATS., before Robby was placed in their home. The disposition of this issue depends upon an examination of "the procedural safeguards built into the statutory or administrative procedure . . . effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law." Zinermon, 494 U.S. at 126. Generally, the United States Constitution requires a hearing before a deprivation occurs. Irby, 184 Wis. 2d at 843, 522 N.W.2d at 13. But, when a deprivation of a right⁶ has resulted from a random and unauthorized act of a state employee, providing meaningful predeprivation process is impracticable because the state cannot predict or anticipate when such acts will occur. Id., 522 N.W.2d at 14. In such cases, due process is satisfied when the state makes available adequate postdeprivation remedies.⁷ Id. This rule applies "no matter how significant the private interest at stake and the risk of its erroneous deprivation, [because] the State cannot be required constitutionally to do the impossible by providing predeprivation process," Zinermon, 494 U.S. at 129 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

The dissent asserts that Irby is no longer prece-dential because of the United States Supreme Court's decision in Sandin v. Conner, 115 S. Ct. 2293 (1995). Sandin will probably not alter the analysis of whether a person received the process he or she is due in a procedural due process case. Sandin has modified the test for determining whether statutes or rules create constitutionally protected rights for prisoners. Id. at 2297-2300. Had Sandin existed when Irby was written, the Wisconsin Supreme Court might have concluded that Irby had no constitutionally protected right that was infringed. But logic does not dictate that because we now use a different analysis for determining whether a prisoner has a constitutionally protected right, Irby is no longer precedential. The subsequent analysis in Irby, in which the court concluded that Irby had received all of the process he was due because of the availability of adequate postdeprivation state law remedies coupled with random and unauthorized acts, has not been and need not be jettisoned. Further, Sandin speaks to the problems that have arisen in prisoner cases since Wolff v. McDonnell, 418 U.S. 539 (1974). The entire thrust of Sandin is retrenchment, not expansion. Sandin, 115 S. Ct. at 2300. That violations of most prison rules may no longer be the basis of § 1983 prisoner suits does not necessarily imply a dramatic change in nonprisoner § 1983 jurisprudence.

In the instant case, § 48.357(1), Stats., requires that when a change in placement of a child is requested by the person or agency primarily responsible for implementing the dispositional order, before that change takes place, the person or agency shall provide written notice to the child or the child's counsel or guardian ad litem, parent, foster parent, guardian and legal custodian explaining why the change is necessary. Any party receiving the notice may object and obtain a court hearing on the matter. Id. Section 48.357(1) thus limits the action of social workers regarding how a change in placement may be implemented. Chorlton's failure to abide by it was therefore unauthorized.

An act of a state employee is random only if it was impossible for the state to predict the action. Here, while the legislature enacted § 48.357(1), Stats., setting forth the procedures with which Chorlton should have complied before changing Robby's placement, it was impossible for the state to anticipate that Chorlton would nonetheless disregard them notwithstanding his practice of ignoring this statute. See Parrott v. Taylor, 451 U.S. 527, 541 (1981) (concluding that it is impossible for the state to anticipate an employee's negligent act), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Chorlton's failure to comply with § 48.357(1) is therefore a random act.

In Easter House v. Felder, 910 F.2d 1387, 1404 (7th Cir. 1990), cert. denied, 498 U.S. 1067 (1991), the court said:

Section 1983 must be preserved to remedy only those deprivations which actually occur without adequate due process of law, such as those which result from a state's conscious decision to ignore the protections guaranteed by the Constitution. It should not be employed to remedy deprivations which occur at the hands of a state employee who is acting in direct contravention of the state's established policies and procedures which have been designed to guarantee the very protections which the employee now has chosen to ignore.

Yet, in analyzing a procedural due process claim, we must also determine whether the state's postdeprivation remedies are adequate.⁸ The adequacy of postdeprivation remedies is measured by the nature of the unauthorized deprivation. Irby, 184 Wis. 2d at 848, 522 N.W.2d at 16. Postdeprivation remedies are deemed adequate "unless they can 'readily be characterized as inadequate to the point that [they are] meaningless or nonexistent . . . .'"Id. at 847, 522 N.W.2d at 15-16 (quoted sources omitted).

Jones's and Kinney's interests in not being physically injured are obviously significant. However, state tort law provides the opportunity for a person who is harmed by another to recover damages to make that person whole. The fact that Jones and Kinney's negligence claim was unsuccessful does not persuade us that the adequacy of the tort remedy is diminished in any way. Due process guarantees the right to a hearing, not to a certain result. Accordingly, we conclude that these postdeprivation state law remedies are adequate and their availability defeats the procedural due process claim.⁹

2. Substantive Due Process

Jones and Kinney also argue that they were deprived of their right to substantive due process as a result of Chorlton's failure to comply with § 48.357(1), STATS., and his forcing Robby back into their home where he posed a danger to them. Substantive due process bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Zinermon, 494 U.S. at 125. Unlike a procedural due process claim, the constitutional violation is complete when the deprivation occurs. Id. Consequently, the existence of adequate postdeprivation state law remedies is not a defense to a substantive due process claim.

The due process clause does not expressly guarantee the right to safety when a private actor commits the underlying act of which the plaintiff complains. DeShaney, 489 U.S. at 195.

[NJothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

Id.

Thus, the due process clause generally confers no affirmative right to governmental aid even where such aid may be necessary to secure life, liberty or property rights of which the government itself may not deprive the individual. Id. at 196.

If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Id. at 196-97 (footnote omitted).

However, "the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." Id. at 198. Those special relationships arise when the state takes a person into custody and holds the person against his or her will. Id. at 199-200. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200. Thus:

it is the State's affirmative act of restraining the individual's freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.

Id. (footnote omitted). In other words, for substantive due process purposes, the state only has a special relationship with persons in custody and not with persons who might benefit from the existence of a statutory scheme which, if complied with, might have averted the harm caused by a private actor.¹⁰

Jones and Kinney argue that Chorlton knew of Robby's violent behavior and knew of his hatred for Jones. From this, they contend, a special relationship arose between themselves and the state because: (1) the trial court ordered Robby to be placed under county supervision outside of his home and this order was in effect when the shooting took place; (2) Chorlton placed Robby in their home without first complying with §48.357(1), Stats., despite his violent tendencies towards Jones; and (3) they relied upon Chorlton for information about the legal process and that he abused that trust and deprived them of their only means of protecting themselves. We recognize that when Robby was returned to his home, the order entered by the trial court requiring him to be placed outside of his home and into the care and custody of the county was still in effect. However, the fact remains that Robby's freedom was no longer restrained when he was placed in Jones's home. Thus, for substantive due process purposes, no special relationship existed between Robby and the state, thereby relieving the state of any duty to protect him. Additionally, we conclude that no special relationship ever existed between the state on the one hand and Jones and Kinney on the other hand. Their freedom was never restrained, they were never held against their will and therefore no duty to protect them from Robby's violent behavior ever arose.

The Supreme Court seemed to be speaking of the instant case when it concluded DeShaney with the following:

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.

Id. at 203. Accordingly, we conclude that there was no substantive due process violation.

NEGLIGENCE CLAIM

Jones and Kinney also ask us to reverse the judgment entered by the trial court after the jury found that Chorlton was not liable for Jones's and Kinney's injuries based upon a theory of negligence. The jury found that while Chorlton was negligent, his negligence was not a cause of their injuries. Jones and Kinney argue that numerous prejudicial errors warrant a new trial. We address each claim in turn.

1. Jury Instructions

The trial court gave the standard causation and burden of proof instructions. In so doing, it rejected instructions offered by Jones and Kinney. During deliberations, the jury asked the court: (1) "Does 'a cause' refer to neglectful action being a direct contributing factor in building the situation the outcome of which was the injury?" and (2) "Or does 'a cause' refer to neglectful inaction which may have prevented the construction of any hypothetical situation in which (similar) injury may have occurred?" The court directed the jury to reread the jury instructions. Jones and Kinney argue that the questions evidence the jury's confusion as to causation and assert that the court's response to those questions "suggested to the jury that it had incorrectly read the given instruction and formulated impermissible conceptions of causation." They also note that two jurors dissented on the causation question as to Chorlton. Jones and Kinney conclude that the causation instruction was misleading and prejudicial and warrants a new trial.

We review a trial court's conclusions as to what jury instructions are appropriate for an erroneous exercise of discretion. Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10, 16 (1992). The supreme court has stated:

The trial court has broad discretion when instructing a jury. A challenge to an allegedly erroneous jury instruction warrants reversal and a new trial only if the error was prejudicial. An error is prejudicial if it probably and not merely possibly misled the juiy. If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist.

Id. at 849-50, 485 N.W.2d at 16 (citations omitted; emphasis added). The decision to accept or reject jury instructions also rests within the sound discretion of the trial court. Strait v. Crary, 173 Wis. 2d 377, 382, 496 N.W.2d 634, 636 (Ct. App. 1992).

Causation exists where a defendant's negligence is a substantial factor in producing the plaintiffs harm. Fischer, 168 Wis. 2d at 857, 485 N.W.2d at 19. "Substantial factor 'denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.'" Id. (quoting Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 617-18, 292 N.W.2d 630, 635 (1980)).

The trial court instructed the jury as to the following:

The cause questions ask whether there was a causal connection between the negligence of any person and the injuries. These questions do not ask about "the cause" but, rather, "a cause." The reason for this is that there may be more than one cause of an injury. The negligence of one person may cause an injury, or the combined negligence of two or more persons may cause it. Before you find that any person's negligence was a cause of the injury, you must find that his negligence was a substantial factor in producing the injury.

This standard causation instruction could not be a more accurate statement of the law. It permitted a finding that Chorlton caused Jones's and Kinney's injuries if the jury believed that his negligence was a substantial factor in producing the injuries. That the jury asked the trial court questions about this issue does not mean that the jury could not find causation under the instruction given in this case. The court's reply to the jury that it reread the causation instruction was also proper because the causation instruction directed the jury to focus on determining whether Chorlton's negligence was a substantial factor in producing the injuries. The instruction did not súggest to the jury that Jones and Kinney would have to establish what would have happened had Chorlton not made the change in placement. Further, the court's reply in no way commented on the correctness of the jury's interpretation of the issue and most certainly did not suggest that the jury not find causation. That two jurors dissented from the verdict is not evidence of confusion. It demonstrates only that the jury differed to some degree as to the weight and credibility of the evidence before it.

Jones and Kinney also proposed a modified burden of proof instruction as a substitute for the standard instruction which the trial court rejected. They argue that the standard instruction which requires "reasonable certainty" and uses the word "guess" confused the jury into believing that Jones and Kinney had to prove that the outcome, i.e., Robby's violence, was predictable. They also argue that the jury confused "reasonable certainty" with "beyond a reasonable doubt," the latter being a higher burden of proof. We disagree.

The trial court instructed the jury that:

The burden of proof . . . rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.

By the greater weight of the evidence is meant evidence which when weighed against evidence opposed to it has more convincing power. Credible evidence is evidence which in the light of reason and common sense is worthy of your belief.

If you have to guess what the answer should be after discussing all evidence which relates to a particular question, then the party having the burden of proof as to that question has not met the required burden.

The ordinary or lowest burden of proof requires that the jury must be satisfied of the result to a reasonable certainty by the greater weight of the credible evidence. Kruse v. Horlamus Indus., Inc., 130 Wis. 2d 357, 362-63, 387 N.W.2d 64, 66 (1986). While the plaintiff has the burden to satisfy the jury to a reasonable certainty, the plaintiff is not required to remove all uncertainty. Savina v. Wisconsin Gas Co., 36 Wis. 2d 694, 703, 154 N.W.2d 237, 241 (1967).

[C]ertitude must be reasonable, i.e., based on reasons. Defined in terms of quantity of proof, reasonable certitude or reasonable certainty in ordinary civil cases may be attained by or be based on a mere or fair preponderance of the evidence. Such certainty need not necessarily exclude the probability that the contrary conclusion may be true. . . . Such evidence . . . need not eliminate a reasonable doubt that the alternative or opposite conclusion may be true.

Kuehn v. Kuehn, 11 Wis. 2d 15, 26, 104 N.W.2d 138, 145 (1960).

The question of predictability is often an issue in an analysis of causation. That does not mean, however, that a different burden of proof instruction using some other language is more appropriate. Jones and Kinney present no evidence, save an adverse jury verdict, that the burden of proof instruction misled or confused the jury into wrongly concluding that it had to find that the outcome was predictable or that it must erase all doubt. The verdict shows only that the jury decided that it was not reasonably certain by the greater weight of the credible evidence that Chorlton's negligence was a cause of Jones's and Kinney's damages. Their argument, without more, is conjecture and does not persuade us that the jury did not understand the standard instruction.

The dissent concludes that not only was the causation instruction misleading, but that based upon the dissent's review of the evidence, we must find causation as a matter of law. The jury responded "yes" to the following question: "At or before the shooting of September 7, 1982, was defendant James Chorlton negligent in the placement or supervision of Leland [Robby] Jones, Jr.?" The dissent, ignoring the breadth of this question, finds that Chorlton's negligent acts were his "return of Robby to his home without informing [Jones and Kinney] that he was still using drugs and that his behavior was potentially violent and dangerous" and "in forcing the Joneses to accept Robby back into their home even though he knew or should have known that Robby was dangerous to society and to the members of his family, especially his stepmother." Dissent at 967-68. The dissent then concludes, as a matter of law, that Chorlton's negligence was a cause of Jones's and Kinney's injuries.

First, Jones and Kinney have only asked us to determine whether the causation instruction was misleading and prejudicial and not whether there is credible evidence to sustain it. The issue of evidence sufficiency is not before us. Jones and Kinney request a new trial only because of a misleading instruction. The supreme court has recently discouraged the practice of addressing claims not specifically raised by the parties and developing the arguments for one side of a dispute. Swatek v. County of Dane, 192 Wis. 2d 47, 52 n.1, 531 N.W.2d 45, 47 (1995).

Second, the dissent reviews the evidence de novo, forgetting the standard by which we are to review a jury verdict.

We will sustain a jury verdict if there is any credible evidence in the record to support it. If more than one reasonable inference can be drawn from the evidence, we must accept the reasonable inference the jury drew. We search the record for evidence to sustain the jury verdict, not for evidence that might sustain a verdict the jury might have but did not reach.

Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 791, 501 N.W.2d 788, 808 (1993) (citations omitted). The credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, not ours. Bennett v. Larsen Co., 118 Wis. 2d 681, 706, 348 N.W.2d 540, 554 (1984). Where more than one inference can be drawn from the evidence, we must accept the inference drawn by the jury. Id.

Our review of the trial transcript reveals that while Chorlton admitted that he did not comply with § 48.357(1), Stats., he placed Robby in Jones's home after reviewing the facts and circumstances of Robby's case as reported to him. Yet, Robby testified that he decided to shoot Jones no. more than three minutes before he did, that there was no way Chorlton could have expected that he would shoot her, that the shooting had nothing to do with Chorlton, and that he did not blame Chorlton or Jones for the shooting and instead, he mostly blamed himself because he loaded the gun and he pulled the trigger. Robby also testified that even if he had not shot Jones and Kinney on the day that he did, he might have done so on a different day. Further, several experts testified that Robby's violence could not have been predicted. There was also testimony revealing that Robby was very adept at manipulation. From this evidence, a reasonable jury could have concluded that Chorlton's negligence was not a substantial factor in causing Jones's and Kinney's injuries. It also could have concluded that had Chorlton complied with § 48.357(1), the juvenile court might still have placed Robby with his parents, with the same tragic result. The competing inferences here prohibit a finding of causation as a matter of law. The jury verdict is supported by credible evidence and therefore must be sustained.

2. Dismissal of Gerald McCartney

At the close of Jones and Kinney's case-in-chief, Gerald McCartney, director of the Department of Social Services for Dane County, moved for dismissal of the negligence action against him on the grounds of insufficient evidence. Section 805.14(3), Stats.¹¹ The trial court dismissed the case against McCartney because under a theory of respondeat superior, Dane County, not McCartney, was Chorlton's employer who would be liable for damages, and because Jones and Kinney's experts did not testify as to any applicable standard of care. The court also noted the department's bureaucracy and McCartney's position at the head of it. The court stated that it believed that expert testimony was required as to McCartney's standard of care as a supervisor which it considered to be greater than that of a social worker.

Jones and Kinney argue that dismissal of their action against McCartney was error. They contend that McCartney admitted that he was responsible for assuring that Chorlton followed statutory procedures and court orders and that the jury could decide his negligence based upon those admissions and his and Chorlton's testimony. We disagree.

Section 805.14(1), Stats., sets forth the test for determining the sufficiency of the evidence:

No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.

On review, we must examine the evidence in the light most favorable to Jones and Kinney, but we will not reverse the trial court's dismissal unless the findings upon which it is based are clearly erroneous. Section 805.17(2), Stats.

McCartney testified that in 1982, he never reviewed Chorlton's case load or knew about this case because Chorlton was one of about 300 staff members who were divided up into divisions and subdivisions or units. McCartney explained that each unit had a supervisor responsible for reviewing, assigning and evaluating the work of each staff member. The unit supervisors, in turn, reported to a program manager who was responsible for evaluating the unit supervisors. McCartney explained that his responsibilities as an administrator did not involve conducting a personnel review of Chorlton and that he would only become involved in a case when a matter was brought to his attention. Instead, it was Chorlton's immediate supervisor who monitored Chorlton's activities and made judgments about his performance.

While McCartney admitted that he was responsible for assuring that his staff complied with statutory procedures, Jones and Kinney presented no evidence that McCartney failed to discharge this duty in some fashion. That Chorlton did not comply with the statute does not mean that McCartney did not direct his staff to do so. McCartney explained his duties and that he did not become involved with individual cases unless they were called to his attention. None of Jones or Kinney's witnesses testified that he was required to do anything more. Jones and Kinney argue that McCartney's standard of care is that of an ordinary prudent person and that the jury should have been permitted to decide if his failure to ensure that Chorlton complied with the statutory procedures and his failure to know about the practice of changing placement without first giving notice pursuant to § 48.357(1), STATS., were breaches of that duty. However, no one testified that McCartney's failure to ensure social worker compliance was improper. Additionally, no one testified that his ignorance as to the social workers' practice of changing placement before giving notice was improper. Accordingly, we conclude that the dismissal of the case against McCartney was not error.

3. Restriction of Cross-Examination of Gerald McCartney

Jones and Kinney argue that the trial court erroneously exercised its discretion when it prevented them from introducing McCartney's 1988 and 1989 job performance evaluations. They also sought to introduce evidence that McCartney had become involved in another lawsuit with Dane County after September 1982. According to Jones and Kinney, this evidence relates to McCartney's credibility and his performance as a supervisor.

The decision to admit evidence rests within the sound discretion of the trial court and will not be reversed unless such discretion is erroneously exercised or is premised upon an erroneous view of the law. Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50, 55, 252 N.W.2d 81, 84 (1977). Section 904.01, STATS., defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Section 904.03, STATS. The proper standard for the test of relevancy on cross-examination is not whether the answer sought will elucidate any of the main issues in the case but whether it will be useful to the trier of fact in appraising the credibility of the witness and evaluating the probative value of the direct testimony. Rogers v. State, 93 Wis. 2d 682, 689, 287 N.W.2d 774, 777 (1980). ”[A]ny material or relevant matters may be inquired into on cross-examination and that cross-examination is not limited to the scope of direct examination." Id. The scope of cross-examination for impeachment purposes rests within the sound discretion of the trial court. Id.

The trial court refused to admit the 1988 and 1989 evaluations and proof of the other lawsuit concluding that such evidence was not relevant because it was too remote from the date of the shooting incident which occurred in September 1982. It also concluded that evidence pertaining to the lawsuit was prejudicial and would unduly confuse the jury. We agree that any bearing this evidence might have had upon McCartney's credibility or performance as a supervisor in 1982 was so remote that it was not an erroneous exercise of discretion for the trial court to exclude it. What McCartney might have done in 1988 and 1989 in no way related to the truthfulness of his testimony or his performance as a supervisor in 1982. Additionally, evidence of another lawsuit would have been highly prejudicial and also in no way impacted upon his truthfulness or his performance as a supervisor in 1982. Accordingly, the trial court did not erroneously exercise its discretion when it refused to admit this evidence.

4. Admissibility of James Chorlton's Job Performance Evaluations

Jones and Kinney argue that the trial court erroneously exercised its discretion when it admitted Chorlton's favorable job performance evaluations completed by another employee for the period between 1977 and 1982. Jones and Kinney argue that this decision is inconsistent with the trial court's decision to exclude McCartney's unfavorable job performance evaluations and is therefore prejudicial error.

Admission of evidence is not "each side gets one." It rests within the discretion of the trial court. Pophal v. Siverhus, 168 Wis. 2d 533, 546, 484 N.W.2d 555, 559 (Ct. App. 1992). If the trial court examined the relevant facts, applied a proper standard of law, and used a rational process to reach a rational result, we will affirm. Id., 484 N.W.2d at 560. Only if the court relied on an erroneous understanding of an evidentiary rule will we reverse. Id.

The reason for the seemingly inconsistent rulings is this: the trial court admitted Chorlton's job performance evaluations covering 1977 through 1982 because they were extremely relevant to the issue of whether Chorlton was negligent in 1982, while conversely, McCartney's job performance evaluations covering 1988 through 1989 were irrelevant because they did not pertain to the time period at issue, i.e., 1982. The court ruled that McCartney's evaluations were irrelevant and inadmissible because of their remoteness. Thus, the court did not erroneously exercise its discretion when it admitted Chorlton's job performance evaluations because they were not remote and relevant to the case.

5. Dr. Larry Zuberbier's Expert Testimony

Jones and Kinney argue that the trial court erred when it reversed an earlier ruling and permitted Chorlton's expert witness, Dr. Larry Zuberbier, to testify. Dr. Zuberbier was not available for deposition until just before trial. They contend that his testimony was prejudicial because they did not have adequate time to prepare for rebuttal.

The trial court had initially ordered that Dr. Zuberbier not be permitted to testify apparently because he was not named as a witness by Chorlton until almost two years after the court ordered Chorlton to provide his expert witnesses' names. In making this ruling, the court warned Jones and Kinney not to mention Dr. Zuberbier during their case-in-chief. During trial, the court reversed its ruling after Jones and Kinney made numerous references to Dr. Zuberbier and his evaluation of Robby during opening statements and during their case-in-chief. The court reasoned that Jones and Kinney had opened the door to the issue of the importance of Dr. Zuberbier's evaluation of Robby and that it would be inappropriate to preclude Chorlton from calling Dr. Zuberbier to discuss it himself.

The admission of evidence rests within the discretion of the trial court. Pophal, 168 Wis. 2d at 546, 484 N.W.2d at 559. Notwithstanding a prior trial court order prohibiting this line of questioning, a court may properly allow limited follow up questions when the other party opens the door to a particular line of inquiry. See State v. Mares, 149 Wis. 2d 519, 531, 439 N.W.2d 146, 150 (Ct. App. 1989) (prosecutor permitted to ask limited follow-up questions on issues brought out by the defense during its cross-examination of a witness).

The trial court did not erroneously exercise its discretion by permitting Dr. Zuberbier to testify once Jones and Kinney made repeated references to his evaluation. Chorlton was entitled to have Dr. Zuberbier testify regarding his evaluation and the import of the statements contained therein. Additionally, the fact that much of Dr. Zuberbier's testimony centered on a discussion of the predictability of Robby's violence which related directly to the causation issue does not make this testimony improper. Indeed, Jones and Kinney's own expert, Dr. Peter Pécora, admitted on cross-examination that problems exist with predicting violent behavior and that Chorlton could not have predicted that Robby would have shot Jones and Kinney after being placed in their home. Chorlton's other expert witness, Dr. Sue Seitz, also testified that violent behavior is not predictable. Thus, Dr. Zuberbier's testimony was cumulative and not prejudicial. Once Jones and Kinney raised the issue of Dr. Zuberbier's evaluation, Chorlton was entitled to introduce Dr. Zuberbier's testimony explaining his evaluation of Robby.

6. Learned Treatises

Jones and Kinney argue that the trial court erred when it admitted into evidence a chapter of a book entitled, The Psychologist's Legal Handbook, addressing the predictability of violent behavior. According to Jones and Kinney, Chorlton failed to establish the proper foundation for the admission of this book into evidence and failed to give adequate notice that he intended to admit it into evidence. Jones and Kinney argue that Dr. Zuberbier relied upon that chapter of the book for some of his conclusions regarding the predictability of Robby's violence and therefore, its admission into evidence unfairly prejudiced Jones and Kinney.

While § 908.03(18)(a), STATS., provides forty days' written notice before a learned treatise may be received into evidence except for impeachment on cross-examination, a trial court may, under § 908.03(18)(c), relieve a party from this requirement. We do not address whether it was error for the court to admit this portion of the book into evidence because its admission did not prejudice Jones and Kinney. The book was only partially relied upon by Dr. Zuberbier for his opinions. Additionally, while admitted into evidence, it was not given to the jury. Further, the evidence was cumulative because it pertained to a subject, i.e., the predictability of violent behavior, which witnesses for both sides testified to in detail. Accordingly, Jones and Kinney were not prejudiced by any error that might have occurred by its admission into evidence.

7. Expert Testimony on Parental Negligence

Jones and Kinney argue that the trial court erroneously exercised its discretion in permitting Chorlton's expert, Dr. Sue Seitz, to testify as to parental negligence and specifically, as to Jones's performance as a parent. They contend that § 907.02, Stats., only permits expert testimony on matters requiring special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. Kujawski v. Arbor View Health Care Ctr., 139 Wis. 2d 455, 463, 407 N.W.2d 249, 252 (1987).

The jury found that Jones was negligent but that her negligence was not a cause of her and Kinney's damages. The jury also found that Chorlton was negligent but that his negligence was not a cause of Jones's and Kinney's damages. Whether or not the trial court erred in admitting this evidence, it did not prejudice Jones and Kinney. This evidence was only relevant to the issue of Jones's duty of care and whether she breached that duty. Jones and Kinney do not argue that this evidence was related to Chorlton's liability in that it somehow diminished the likelihood of the jury finding that Chorlton caused her and Kinney's damages. Thus, that the jury might have become misled or confused as to Jones's duty of care is irrelevant when the jury did not find her negligence to be a cause of their damages. Thus, Jones and Kinney were not prejudiced by this testimony. Accordingly, we conclude that a new trial is not warranted.

8. Absent Witness Instruction

Jones and Kinney argue that the trial court erroneously exercised its discretion when it denied their request for an absent witness instruction and prevented them from commenting on Chorlton's failure to testify during his case-in-chief. According to Jones and Kinney, Chorlton played a central role in the case and they should have been permitted to comment on his failure to testify on his own behalf and the inferences that might have been drawn from that failure to testify.

The absent witness instruction provides:

If a party fails to call a material witness within its control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for not calling the witness, then you may infer that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.

Wis J I — Civil 410. The decision to give the absent witness instruction rests within the sound discretion of the trial court. Roeske v. Diefenbach, 75 Wis. 2d 253, 262, 249 N.W.2d 555, 560 (1977). In order to justify the instruction, the party requesting the instruction "must show that there is a reasonable relationship between the failure to produce the witness and the inference that the testimony of the absent witness, had it been placed before the jury, would have been unfavorable to the party who failed to produce the witness." D.L. v. Huebner, 110 Wis. 2d 581, 627, 329 N.W.2d 890, 911 1983).

Contrary to Jones and Kinney's assertions, Chorlton's testimony was not completely kept from the jury. Instead, he was called as an adverse witness by them and they extensively questioned him about his conduct and decision-making processes. The trial court properly denied the request for the absent witness instruction reasoning that the instruction was inappropriate because Chorlton had been called as an adverse witness and that Jones and Kinney had ample opportunity to examine him.

Jones and Kinney have also failed to demonstrate that a reasonable relationship exists between the failure of Chorlton to testify during his case-in-chief and the inference that had he done so, his testimony would have been unfavorable. We do not see how any further testimony by Chorlton would have shed any more light on the causation issue. The jury found that Chorlton was negligent but that his negligence was not causal. Expert testimony, not Chorlton's, decided the causation issue. The only unfavorable inference the jury could have drawn would have been that Chorlton was more negligent than it had already concluded. Thus, had the jury been permitted to infer that Chorlton's failure to testify would be unfavorable to Chorlton, the outcome would have been the same. The trial court's failure to permit an absent witness instruction or its failure to permit further argument on the issue during closing arguments¹² did not prejudice Jones and Kinney. We conclude that the court did not erroneously exercise its discretion when it declined their request for the absent witness instruction.

NEW TRIAL IN THE INTEREST OF JUSTICE

Finally, Jones and Kinney request a new trial in the interest of justice. We are given the authority to grant such a request by § 752.35, STATS. We may grant a new trial if the real controversy has not been fully tried or if we conclude that a new trial will likely produce a different result. State v. Von Loh, 157 Wis. 2d 91, 102, 458 N.W.2d 556, 560 (Ct. App. 1990). Our foregoing discussion shows that Jones and Kinney have not demonstrated that the real controversy was not tried or that a new trial would be likely to produce a different result. Consequently, we reject their request for a new trial.

By the Court. — Judgment and order affirmed; cross-appeal dismissed.

1 The case was assigned to this judge on May 24, 1995, pursuant to the court's internal operating procedures, which provide, in part: "In the event the opinion is assigned to a judge representing the minority view, the opinion will be reassigned by lot to a member of the majority." WlS. Ct. App. IOP VI(4)(i) (July 15,1991).

2 42 U.S.C. § 1983 creates a civil action for deprivation of rights and provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

3 Section 48.357(1), STATS., provides, in relevant part:

The person or agency primarily responsible for implementing the dispositional order may request a change in the placement of the child, whether or not the change requested is authorized in the dispositional order and shall cause written notice to be sent to the child or the child's counsel or guardian ad litem, parent, foster parent, guardian and legal custodian.... Any person receiving the notice under this subsection... may obtain a hearing on the matter by filing an objection with the court within 10 days of receipt of the notice. Placements shall not be changed until 10 days after such notice is sent to the court unless the parent, guardian or legal custodian and the child, if 12 or more years of age, sign written waivers of objection....

4 Dane County and James E. Chorlton filed a cross-appeal in this matter. However, because we affirm the judgment and order, the cross-appeal is dismissed.

5 We question, without answering, whether §48.357(1), STATS., creates constitutionally protected interests in liberty and property of which Jones and Kinney were deprived by Chorlton's failure to provide such notice. The Supreme Court has stated that one cannot have a property interest in mere procedures.

Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which, the individual has a legitimate claim of entitlement. . . . The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.

Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (footnote omitted). See also Sandin v. Conner, 115 S. Ct. 2293 (1995). While the legislature might have arguably created a constitutionally protected right through the use of mandatory language such as "shall" in § 48.357(1), see, e.g., Robinson v. McCaughtry, 177 Wis. 2d 293, 300, 501 N.W.2d 896, 899 (Ct. App. 1993), we doubt that Jones and Kinney are the intended beneficiaries of any alleged right and at most, Robby is the only person who may lay claim to a liberty or property right under this statute.

6 This analysis applies to deprivations of liberty and property rights. Zinermon v. Burch, 494 U.S. 113, 132 (1990).

7 However, a postdeprivation state remedy is not a defense to a procedural due process claim when the deprivation is caused by conduct performed in conformity with established state procedures rather than by a random and unauthorized action. Hudson v. Palmer, 468 U.S. 517, 532 (1984).

8 Indeed, Jones and Kinney do not argue that the state failed to provide adequate postdeprivation remedies. Instead, they argue that the existence of adequate postdeprivation remedies does not provide a defense to the procedural due process claim because meaningful predeprivation procedural protections existed. Jones and Kinney point to Vorwald v. School District, 160 Wis. 2d 536, 466 N.W.2d 683 (Ct. App. 1991), rev'd on other grounds, 167 Wis. 2d 549, 482 N.W.2d 93, cert. denied, 113 S. Ct. 378 (1992), in support of their argument. In Vorwald, we determined that the plaintiff could maintain a § 1983 procedural due process claim because the state could provide notice and a meaningful opportunity to respond prior to the alleged deprivation. Id. at 542, 466 N.W.2d at 686. However, after Vorwald, the Wisconsin Supreme Court decided Irby v. Macht, 184 Wis. 2d 831, 843-47, 522 N.W.2d 9, 13-15, cert. denied, 115 S. Ct. 590 (1994), in which it determined that notwithstanding the existence of predeprivation process, the existence of postdeprivation process defeated the constitutional claim when a state employee's actions were random and unauthorized. We are bound by the most recent pronouncements of the Wisconsin Supreme Court. State v. Olsen, 99 Wis. 2d 572, 583, 299 N.W.2d 632, 638 (Ct. App. 1980). Thus, we rely upon Irby for our analysis of this issue.

9 Additionally, because we conclude that no procedural due process violation occurred, the issue of damages, albeit nominal, is irrelevant. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (denial of procedural due process should be actionable for nominal damages without proof of actual injury).

10 Jones and Kinney urge us to adopt the results in Ross v. United States, 910 F.2d 1422 (7th Cir. 1990), Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990), and Estate of Sinthasomphone, 785 F. Supp. 1343 (E.D. Wis. 1992), in which the courts determined that the state had an affirmative duty to protect persons injured by private actors in noncustodial settings. We decline to do so. Federal decisions are not binding on state courts in Wisconsin. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 307, 340 N.W.2d 704, 712-13 (1983). We are bound only by the United States Supreme Court on questions of federal law. State v. Webster, 114 Wis. 2d 418, 426 n.4, 338 N.W.2d 474, 478 (1983). Thus, we confine our analysis to DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989).

11 Section 805.14(3), Stats., provides:

At the close of plaintiffs evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff.

12 Contrary to Jones and Kinney's assertions, they did comment during closing arguments on Chorlton's failure to testify during his case-in-chief and speculated that they did not know why he failed to do so. Upon Chorlton's objection, the trial court instructed the jury to disregard that portion of the closing argument which referred to the obligation of the defense to call Chorlton.