Smith v. County of Milwaukee

470 N.W.2d 274, 162 Wis. 2d 340, 1991 Wisc. LEXIS 332

• Court: Wisconsin Supreme Court
• Decided: June 7, 1991
• Docket: No. 89-0876
• Status: Published

Opinions

CALLOW, WILLIAM G., J.

This case is before this court on certification from the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The plaintiff-appellant James B. Smith (Smith) appeals from a summary judgment of the Milwaukee county circuit court, Judge Michael P. Sullivan. In its judgment, the circuit court dismissed Smith's complaint against the county of Milwaukee (County) on the ground that the County did not owe a duty to Smith.

Smith, was seriously injured as a result of being struck by the defendant Huston's car. Huston was driving at an excessive speed and had earlier been pursued by a Milwaukee county deputy sheriff. Smith appeals on one issue: Did the County owe him a duty of due care? We do not reach this issue, as we conclude that the facts clearly show that the automobile chase had ended prior to when Smith was injured.

The relevant facts follow. At approximately 9:00 p.m. on April 2, 1985, Milwaukee county deputy sheriff Charles Franklin (Franklin), while driving southbound on Interstate Highway 43 in a Milwaukee county sheriffs squad car, saw a car driven by Emmitt B. Huston, Jr., pass him in the median distress lane and strike the median barrier several times.

Deputy Franklin attempted to stop Huston on southbound 1-43 in the vicinity of North Avenue by pulling behind Huston's vehicle and activating the squad car's warning light and siren. Huston left the expressway at Fourth Street and came to a stop at the intersection of Fourth Street and McKinley Avenue. Deputy Franklin stopped his squad car behind Huston's car, left his squad car, and approached Huston's car on foot. As he did so, Huston sped off northbound on Fourth Street.

Deputy Franklin, traveling at a high rate of speed, pursued Huston northbound on Fourth Street. Huston attempted to elude Deputy Franklin at speeds in excess of 80 miles an hour, without slowing down for traffic signals and stop signs. Huston continued northbound on Fourth Street, finally eluding Deputy Franklin in approximately the 2300 block of Fourth Street.¹

A short time later, two police officers in a city of Milwaukee police van observed Huston drive through the intersection of Fourth Street and North Avenue at an excessive speed. The city police officers activated their vehicle's red light and siren and turned northbound on Fourth Street to follow Huston. In the 2800 block of Fourth Street, Huston struck the rear of a car driven by Smith, as Smith was entering his driveway. Smith was seriously injured as a result of the accident.

Deputy Franklin first learned of the crash and its location on his police radio. He arrived at the scene shortly thereafter. Franklin issued citations to Huston for driving a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1)(a), Stats., and for fleeing from an officer, contrary to sec. 346.04(3), Stats. A blood sample taken at the hospital revealed Huston's blood alcohol content to be .243 percent.

Smith sued Milwaukee county, the city of Milwaukee and Huston for the injuries Smith suffered when Huston struck his car. The original complaints against the County and the city of Milwaukee were subsequently dismissed on Smith's motion, because the Notice of Claim filed with the City was defective. Smith refiled his complaint against the County, and alleged that Deputy Franklin, as an employee and agent of the County, "did negligently chase and pursue the defendant, Emmitt B. Huston, Jr., ... at a rate of speed that was unsafe and in reckless disregard for the safety of other citizens." The complaint also alleged that the conduct of Deputy Franklin was the direct and proximate cause of Smith's injuries.

In reviewing the grant of a summary judgment motion, we are governed by the standards articulated in sec. 802.08(2), Stats., and apply the standards set forth in the statute as the circuit court applied them. Green Springs Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If a claim for relief is stated, summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Section 802.08(2); see also Green Springs Farms, 136 Wis. 2d at 315.

We conclude that summary judgment in this case was appropriate, although we do not reach the question of whether the County owed Smith a duty of due care, as did the circuit court. Based on our examination of the pleadings, depositions, answers to interrogatories, admissions and affidavits, we determine that there are no genuine issues of material fact² to resolve at trial, because at the time of Smith's injury, Deputy Franklin's pursuit of Huston had ended. Because Franklin' was no longer pursuing Huston, the County has presented a defense which defeats Smith's claim. See Grams, 97 Wis. 2d at 338.

Based on our review of the pleadings, depositions, answers to interrogatories, admissions and affidavits, the following facts are undisputed: (1) the accident occurred after Deputy Franklin had lost view of Huston and had abandoned the pursuit of Huston; (2) before the accident occurred, police officers in a city of Milwaukee van had observed the Huston vehicle traveling at a high rate of speed, and independent of the original chase by Deputy Franklin, initiated a new pursuit; (3) the accident occurred a significant distance (up to one mile) from the location where Deputy Franklin abandoned the pursuit; and (4) Deputy Franklin did not see the accident occur, but heard about it on his radio. Based on this undisputed evidence, it is clear that Deputy Franklin was not pursuing Huston at the time of the accident.

Additionally, although Huston had a blood alcohol content of .243 percent at the time of the accident, and is therefore less credible, he stated at his deposition that he did not recall being pursued by a sheriffs vehicle or a city police vehicle. Under the circumstances described above, the chase, insofar as it involved Deputy Franklin and the county of Milwaukee, was over at the time the accident occurred. Accordingly, because the pursuit was not in progress, we have no occasion to address what duty, if any, Deputy Franklin and the county of Milwaukee might have owed James Smith, a third party who was struck by Huston, not by Deputy Franklin.

Smith argued in his brief in opposition to Milwaukee county's summary judgment motion that summary judgment was improper in this case because there were material facts in dispute: (1) whether Huston was aware that he was being pursued by Deputy Franklin; (2) whether the manner in which Deputy Franklin pursued Huston caused Huston to operate his vehicle negligently; and (3) whether Huston would have struck Smith if he had not been pursued by Franklin at a high rate of speed.

Although these facts may be disputed, we conclude that they are not material facts. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 480, 464 N.W.2d 654 (1991). The controlling legal issue is whether Deputy Franklin was pursuing Huston at the time Huston's car struck Smith, and these disputed facts are not material to that issue. See Huckstorf v. Vince L. Schneider Enterprises, 41 Wis. 2d 45, 49, 163 N.W.2d 190 (1968).

The pleadings, depositions, answers to interrogatories, admissions and affidavits reflect that Deputy Franklin was a significant distance from the scene of the accident when Huston struck Smith. He was not in visual contact with Huston, and was aware of the accident only because he had heard about it on his radio. Although Huston may have been pursued by a city of Milwaukee van at the time of the accident, the accident was unrelated to the conduct of Deputy Franklin. Accordingly, we do not have occasion to address what duty, if any, Deputy Franklin or the County had to a third party who was injured when struck by a vehicle other than a pursuing emergency vehicle. For this reason, we affirm the circuit court's grant of summary judgment in favor of the County.

By the Court. — The judgment of the circuit court for Milwaukee county is affirmed.

1 The record contains conflicting evidence about exactly where on Fourth Street Huston eluded Deputy Franklin. The dissent indicates that Huston eluded Franklin in approximately the 2600 block of Fourth Street (dissenting opinion at 350, 470 N.W.2d at 278). This is based, presumably, on Deputy Franklin's police report of the incident in which he stated that he lost sight of Huston's vehicle at "approximately the 2600 block of North 4th Street." However, other evidence in the record indicates that Franklin lost visual contact with Huston's car by the time he reached North Avenue. In his deposition he stated that he did not see Huston's car when he crossed North Avenue. One of the officers in a city of Milwaukee police van testified that the 2300 block of Fourth Street was north of North Avenue and he did not see Deputy Franklin's vehicle coming from the south at the time he chased Huston's car in the police van. This testimony leads to the inescapable conclusion that Franklin lost visual contact with Huston's vehicle at or before North Avenue, which begins the 2300 block of Fourth Street.

2 For a discussion of summary judgment motions in general and under what circumstances they should be granted, see Grams v. Boss, 97 Wis. 2d 332, 337-39, 296 Wis. 2d 473 (1980); Heck & Paetow Claims Service, Inc. v. Heck, 93 Wis. 2d 349, 355-56, 286 N.W.2d 831 (1980).