Linville v. City of Janesville

497 N.W.2d 465, 174 Wis. 2d 571, 1993 Wisc. App. LEXIS 201

• Court: Court of Appeals of Wisconsin
• Decided: February 25, 1993
• Docket: 91-1099
• Status: Published

Opinions

GARTZKE, P.J.

The plaintiffs appeal from summary judgment dismissing their complaints in two actions brought against the City of Janesville, city fire chief, deputy fire chief, a fire department shift commander and four city paramedics. In mid-November 1988, David Linville, Jr., then four years old, drowned in a city park open to the public. After the paramedics extricated David from the submerged van in which he was a passenger and gave him emergency medical treatment, he was taken to a hospital where he died. The plaintiffs in one action are David's estate and his father, individually and as special administrator of David's estate, and the principal plaintiff in the second action is David's mother. The two actions were consolidated. We reverse that part of the judgment dismissing the complaint against the city, its paramedics and the shift commander, and otherwise affirm.¹

The plaintiffs charge that the city and its employees negligently effected the rescue and negligently provided emergency medical services to David. David's father seeks damages for David's death. David's estate seeks specified deunages for his injuries and death. David's mother claims damages for her physical and emotional injuries, medical expenses as well as other damages connected with David's death.

The dispositive issues are (1) whether defendants are entitled to recreational land use immunity from liability to the plaintiffs under sec. 895.52, Stats., because the drowning occurred in the city park; and (2) whether defendants are entitled to immunity from suit by the plaintiffs under sec. 893.80, Stats., because the defendants exercised discretion as municipal employees.

We hold that none of the defendants is entitled to immunity under either theory. We therefore reverse the judgment dismissing the complaints against the city, its shift commander and the paramedics. Since the plaintiffs assert that the fire chief and deputy chief violated a ministerial duty which they have not been shown to possess, we affirm the judgment as to those two defendants.

1. Summary Judgment on Recreational Use Immunity from Liability

It is undisputed that Janesville owns the park in which David drowned. Section 895.52(2) (b), Stats., provides in relevant part: n[N]o owner and no officer, employe or agent of an owner is liable for any injury to, or any injury caused by, a person engaging in a recreational activity on the owner's property . . .." Section 895.52(l)(g), Stats., provides in relevant part: " 'Recreational activity' means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. 'Recreational activity' includes . . . fishing, . . . picnicking, . . . [and] sight-seeing . .

We review de novo an order entered on a motion for summary judgment. Grosskopf Oil Inc. v. Winter, 156 Wis. 2d 575, 581, 457 N.W.2d 514, 517 (Ct. App. 1990). Summary judgment cannot be granted if genuine issues of material fact exist. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980). That the complaints state claims is not disputed. The answers deny liability and plead immunity. The defendants moved for summary judgment dismissing the complaints. Since the motions for summary judgment are directed against the plaintiffs, we review the material submitted for and against the motions in the light most favorable to the plaintiffs. Id. at 338-39, 294 N.W.2d at 477.

The defendants' theory is that because David and his mother were engaged in a recreational activity at the time of their injuries in the city park, defendants are immune from liability by virtue of sec. 895.52(2)(b), Stats. Defendants rely on the mother's deposition to support their theory.

The mother deposed that on the night of November 12, 1988, a Walter Hadden drove her and David in Hadden's van to a grocery store. When she returned to the van, she found that Hadden had been to a liquor store to buy a twelve-pack of beer and had been drinking. They argued because of his drinking. She told Hadden to take them home, but he ignored her. He said he wanted to take David where Hadden had fished when he was young. Hadden drove to a pond in the park and stopped the van at the water's edge, facing the water, and shined the van's lights on the water to show a good fishing spot. Everybody stayed in the van perhaps ten minutes, during which the mother argued and said she wanted to go home. Hadden's response was to put off her request.

When Hadden started to back the van away from the water, it stuck. The mother got out, went to the front of the van, and tried to push it backwards, but it jumped forward into the water and started to sink, with David and Hadden in it. After unsuccessfully attempting to open the side door, she ran for help. Later the city fire and police officers and paramedics arrived and winched the van out of the pond. The paramedics tried to resuscitate David at the scene and then took him to the hospital where he died. Hadden also drowned.

The trial court concluded that because the parties were at the pond for recreational purposes, the city and its employees were immune from liability under sec. 895.52, Stats. The court also concluded that because the city's employees performed discretionary acts during the rescue, they were immune from suit under sec. 893.80, Stats.

The plaintiffs argue that whether David and his mother engaged in recreational activity is a disputed issue of fact. We disagree. The material facts have been established through the mother's deposition. The facts are simple. Ignoring her repeated demands to be taken home, Hadden took the mother and David to the pond in the city park to show David fishing spots. David drowned in the pond and later died from his injuries. Neither the plaintiffs nor defendants claim that the facts are otherwise.

The material facts having been established, whether the conduct of David and his mother was recreational activity for purposes of sec. 895.52, Stats., is a question of law. Kruschke v. City of New Richmond, 157 Wis. 2d 167, 169-70, 458 N.W.2d 832, 833 (Ct. App. 1990); Sauer v. Reliance Ins. Co., 152 Wis. 2d 234, 240, 448 N.W.2d 256, 259 (Ct. App. 1989). We review questions of law without deference to the opinion of the trial court. First Nat'l Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251, 253 (1977).

We apply an objective test to the undisputed facts to determine whether an injured person was engaged in a "recreational activity," as defined in sec. 895.52(1)(g), Stats. Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 544, 458 N.W.2d 379, 382 (Ct. App. 1990). The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person's subjective assessment of the activity is relevant, it is not controlling. Id. at 544, 458 N.W.2d at 382-83. Thus, whether the injured person intended to recreate is not dispositive, Moua v. Northern States Power Co., 157 Wis. 2d 177, 185 n.3, 458 N.W.2d 836, 839 n.3 (Ct. App. 1990), but why he was on the property is pertinent. Stann v. Waukesha County, 161 Wis. 2d 808, 822-23, 468 N.W.2d 775, 781-82 (Ct. App. 1991).

Hadden's activity at the pond was recreational, whether assessed objectively or on the basis of his subjective intent. He drove to and was at the pond to show David fishing spots. Fishing is a recreational activity, sec. 895.52(1)(g), Stats., and certainly so is showing a person a good fishing spot. See Sauer, 152 Wis. 2d at 240-41, 448 N.W.2d at 259 ("walking down the river to go fishing" is a recreational activity).

The mother was not engaged in a recreational activity. She had no reason whatever for being at the pond. She did not cause or will her presence at the pond. Indeed, she was there against her will, and Hadden must have known it. From the time the van left the store until it was stuck at the pond, she expressed her displeasure at not having been taken directly home. She repeatedly demanded she be taken home.

Because his mother was not engaged in a recreational activity, neither was David. In her affidavit, the mother states that she had custody and control of David on the date of the incident. David was four years old, an infant. The parent's purpose is imputed to the infant who accompanies its parent for purposes of determining whether the infant was engaged in a recreational activity. Nelson v. Schreiner, 161 Wis. 2d , 469 N.W.2d 214, 216 (Ct. App. 1991).² Thus, in Stann, we said that when a mother took her three-year-old infant to a public beach to wade and the infant drowned, it was irrelevant that the infant had no discernible recreational purpose. 161 Wis. 2d at 823, 468 N.W.2d at 781-82. We held that the infant was at the beach for the purpose of engaging in a recreational activity.

That Hadden's purpose in taking David to the pond was recreational is irrelevant to our inquiry. Hadden was not David's father. Nothing in the record suggests that Hadden claimed the right to control David. David's mother had the exclusive right to decide where David would be and why. Her purpose was David's purpose.³

We conclude that none of the defendants enjoy recreational use immunity from liability to the plaintiffs under sec. 895.52(2)(b), Stats.⁴

2. Summary Judgment on Municipal Immunity from Suit

a. The Immunity Rule

Defendants claim municipal (or governmental) immunity from the plaintiffs' suits. Section 893.80(4), Stats., provides in relevant part that

[n]o suit may be brought against any . . . political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Municipal immunity from suit under sec. 893.80(4), Stats., differs in some respects from the immunity of a state officer or employee, often referred to as a public officer or employee. The immunity of a state officer or employee is based upon the common law. C.L. v. Olson, 143 Wis. 2d 701, 708, 422 N.W.2d 614, 616 (1988). The general common law rule in Wisconsin is that, subject to exceptions, a state officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual's office. Id. at 710, 422 N.W.2d at 617.

The common law immunity of municipalities and municipal employees for torts was abrogated in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40,115 N.W.2d 618, 625 (1962), except when the municipality exercises "its legislative or judicial or quasi-legislative or quasi-judicial functions." The legislature incorporated that language into what is now sec. 893.80(4), Stats. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682, 292 N.W.2d 816, 825 (1980).⁵

After the Holytz decision, the general rule in Wisconsin "is liability — the exception is immunity" when a municipality or its officer or employee is charged with tortious conduct. Id. at 39, 115 N.W.2d at 625; Frostman v. State Farm Mut. Auto. Ins. Co., 171 Wis. 2d 138, 142, 491 N.W.2d 100, 101 (Ct. App. 1992).

Judicial decisions have established that the terms "quasi-legislative" and "quasi-judicial" in sec. 893.80(4), Stats., are synonymous with "discretionary," and that the three tests result in the same conclusions. Scarpaci, 96 Wis. 2d at 683, 292 N.W.2d at 826. In contrast to a discretionary act, a ministerial act is "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Sheridan v. City of Janesville, 164 Wis. 2d 420, 425, 474 N.W.2d 799, 801 (Ct. App. 1991). No immunity from suit attaches to the negligent performance of a ministerial duty.

The question in Scarpaci was whether a county medical examiner who negligently conducted an autopsy on the body of the plaintiffs' deceased child was immune from suit. The court held that the decision whether to proceed with an autopsy on the basis of the medical examiner's evaluation of the facts and law was quasi-judicial under what is now sec. 893.80(4), Stats. Scarpaci, 96 Wis. 2d at 684-85, 292 N.W.2d at 826. But the acts in performing the autopsy itself involved only medical discretion, id. at 686, 292 N.W.2d at 827, and municipal immunity did not protect the medical examiner from suit.

The court of appeals has held that Scarpaci has a narrow application. The court has said that only three Wisconsin decisions have recognized a "discretion but still not governmental discretion" distinction. Stann, 161 Wis. 2d at 818, 468 N.W.2d at 779 (referring to Scarpaci, 96 Wis. 2d 663, 292 N.W.2d 816, Protic v. Castle Co., 132 Wis. 2d 364, 392 N.W.2d 119 (Ct. App. 1986), and Gordon v. Milwaukee County, 125 Wis. 2d 62, 370 N.W.2d 803 (Ct. App. 1985)). The Stann court said that "each of these cases involved allegations of negligence regarding medical decisions. These cases are restricted to their facts, as no Wisconsin decision applies this exception in any other setting." Id. at 818, 468 N.W.2d at 779.

b. Fire Chief Stearns and Deputy Fire Chief Grorud

Chief Stearns and deputy chief Grorud were not at the scene of the drowning. Plaintiffs limit their contentions on appeal to a single issue regarding those defendants. Plaintiffs contend that because those defendants violated their ministerial duty to provide extrication equipment in each ambulance, they are not entitled to immunity under sec. 893.80(4), Stats., in this suit charging them with negligence. We disagree.

Plaintiffs rely upon Wis. Adm. Code sec. Trans 309.25(2) (1987). That administrative rule provides that unless an ambulance is accompanied by a rescue vehicle on every accident call, it must carry certain equipment, including a sledge hammer weighing at least four pounds, a fifty-one-inch crowbar, and two rescue pull chains not less than ten feet long with grab hooks. The first Janesville ambulance on the scene did not have at least some of the required equipment, and the rescue was first attempted without it, according to the paramedics' testimony.

Wisconsin Adm. Code sec. Trans 309.25 implements the ambulance inspection program prescribed by sec. 341.085, Stats. (1987-88). That statute requires the Department of Transportation, before issuing an original or renewal registration, to determine whether an ambulance meets the requirements specified by law or administrative rule for medical equipment. It authorizes the department to adopt rules necessary to prescribe ambulance service equipment.

There is no doubt that Wis. Adm. Code sec. Trans 309.25(2) imposed a ministerial duty on the City of Janesville as the ambulance provider to provide the equipment missing from the first ambulance on the scene, there being no evidence that that ambulance is accompanied by a rescue vehicle on every call. However, nothing in the record establishes that chief Stearns or deputy chief Grorud had the responsibility to outfit each ambulance with the equipment. The trial court properly dismissed the complaint as to those defendants.

c. Shift Commander Bollinger and Paramedics

The plaintiffs limit their argument regarding Bollinger and the paramedics to their failure to promptly extricate David from the submerged van. Plaintiffs assert that because those defendants are claimed to have negligently performed their ministerial duty of rescue, they are not entitled to municipal immunity from suit under sec. 893.80(4), Stats. We agree.

The paramedics and shift commander Bollinger arrived at the drowning before David was taken from the submerged van. All knew that a van was submerged and that it contained occupants, and all are claimed to have negligently performed David's rescue from it. The plaintiffs claim several negligent acts, the most egregious of which is that the paramedics and Bollinger did nothing to rescue David for twenty minutes after their arrival. The paramedics assert that they began rescue efforts immediately.

As stated in C.L. v. Olson, 143 Wis. 2d at 717, 422 N.W.2d at 620, an

exception to the general rule of public officer immunity exists where the public officer's or employee's duty is absolute, certain and imperative, involving merely the performance of a specific task and (1) the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment [or] discretion ... or (2) there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion.. .. (Emphasis added and citations omitted.)

We restate the C.L. "known present danger" exception in terms of municipal or governmental immunity from suit for tortious conduct, since municipal immunity is the exception rather than the rule. Holytz, 17 Wis. 2d at 39, 115 N.W.2d at 625. As applied to the facts before us, the rule is that a municipal officer or employee under a duty to reasonably attempt the rescue of a person from a life-threatening danger is not immune from a suit charging the officer or employee with having negligently performed that duty.⁶

The Janesville paramedics are under such a duty. According to a deputy fire chief, paramedics are required to perform rescue operations in emergency situations, and they receive extensive rescue training. Consequently, the paramedic present at a life-threatening danger, such as a drowning, has a ministerial duty promptly to attempt a rescue. Because the duty is ministerial, the paramedic enjoys no immunity from a suit alleging that he or she negligently performed it.

We turn to plaintiffs' second claim against the paramedics: that they negligently provided emergency medical services to David. According to the same deputy fire chief, the Janesville paramedics are also required to deliver emergency medical care in situations requiring such action, and they receive extensive training in advanced life support techniques and emergency medical care. While the paramedics exercise considerable discretion when providing that care, they are not immune from a suit claiming they negligently provided medical services. Municipal or governmental immunity under sec. 893.80(4), Stats., does not extend to the "medical decisions of medical personnel employed by a governmental body." Scarpaci, 96 Wis. 2d at 686-87, 292 N.W.2d at 827.⁷

3. Conclusion

For the reasons stated, the judgment dismissing the plaintiffs' complaints against the City of Janesville, shift commander Bollinger and the paramedics must be reversed.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

1 The father's complaint also named certain city police officers. The father contested the defendants' motion for summary judgment only with respect to the city and its fire officers and paramedics. The mother's complaint named the city and its fire officers and paramedics but not the police.

2 The dissent suggests that we have implicitly overruled Nelson because in that case the intent of the child's mother played no part in our decision. But the mother in Nelson did not accompany the child. Rather, the child was accompanied by her putative father, and his intent did play an important part in our decision. Id. at 802, 803, 469 N.W.2d at 216, 217 ("where an infant accompanies an adult engaged in activities enumerated by the statute, the parent[s] or custodian's purpose is imputed to the child"; the child's putative father's "avowed purpose" was recreation) (emphasis added). We do not overrule Nelson, implicitly or otherwise. We follow it.

3 The dissent's approach — counting the appeals in which owners prevailed — does not address the issue before us: how a four-year-old, whose mother was propelled to and kept at a park against her will, can somehow be held to have engaged in a recreational activity. Surely, persons falsely imprisoned do not recreate merely because their captor enjoys himself. No published opinion holds otherwise.

4 Contrary to the dissent's assertion, our holding is consistent with the legislature's direction that we liberally construe sec. 895.52, Stats., in favor of property owners. See sec. 1, 1983 Wis. Act 418. The reason for protecting owners from liability is to encourage them to open their lands to recreational uses. Protecting an owner and its agents from liability as to a person on the owner's land against that person's express will is beyond that purpose, except perhaps in the limited circumstance of a person whose injury is caused by a person engaged in a recreational activity. That limited circumstance is not an issue in this case. Defendants claim no immunity under sec. 895.52(2)(b), Stats., on grounds that Hadden, who had engaged in a recreational activity, caused David's death and his mother's medical problems. Moreover, in Stann, which the dissent unaccountably fails to discuss, we said:

1983 Wis. Act 418, by which the recreational immunity statute was enacted, provides, in part, at sec. 1, n[t]he legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities . . .." (Emphasis added.) Thus, it becomes necessary to inquire into the purpose of the property user (or those who supervise such a user) in order to decide whether the statute applies.

161 Wis. 2d at 823, 468 N.W.2d at 781-82 (emphasis added).

5 Section 893.80(4), Stats., was previously numbered sec. 895.43(4), Stats. Section 29, ch. 323, Laws of 1979.

6 The scope of that duty, as applied to the facts of this case, is not before us.

7 Our holding corresponds with the "Good Samaritan" law, sec. 895.48(1), Stats., which provides in relevant part:

Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care. This immunity does not extend when employes trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice.. .at the scene of any emergency or accident [or] enroute to a hospital.... (Emphasis added.)

See 67 Op. Att'y Gen. 218, 222 (1978) (paramedic is a health care professional); see also Note, Torts — Immunity—The Good Samaritan Statute, 62 Marq. L. Rev. 469, 472, 479-80 (1979) (paramedics are not immune). .

See Callaghan's Wisconsin Digest, same topic and section number.