Gregory BARILLARI and Margaret Flanagan-Wilkie, Parents of Shannon Barillari, Margaret Flanagan-Wilkie, as Special Administrator of the Estate of Shannon Barillari, Erin Barillari, Sal Barillari and Dominic Barillari, Minors, by their Guardian ad Litem, Joseph J. Welcenbach, Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Defendant-Respondent-Petitioner.
No. 93-1334
Supreme Court of Wisconsin
Decided June 26, 1995
533 N.W.2d 759
Oral argument May 24, 1995.
For the plaintiffs-appellants there was a brief by Joseph J. Welcenbach, Margaret A. Watt and Welcenbach & Widmann, S.C., Milwaukee and oral argument by Joseph J. Welcenbach.
The Barillaris originally filed their complaint against the City in the Circuit Court for Milwaukee County. The action was thereafter removed to federal court where the City sought summary judgment dismissing the complaint in an action brought pursuant to
The court of appeals reversed the decision of the circuit court and held that statutory immunity did not bar the Barillaris’ claim because the detectives’ assurances of protecting Shannon by arresting Estergard transformed the discretion associated with their official position into a ministerial duty, for which there was no immunity. For the reasons set forth below, we now reverse the decision of the court of appeals and hold that the police detectives’ “promise” to apprehend and arrest Estergard for the alleged sexual assault of Shannon or otherwise notify Shannon and her mother that he had not been arrested did not transform the character of their discretionary acts during the investigation of the case into ministerial duties.
The facts before the circuit court at the summary judgment hearing were as follows. On Thursday, July 30, 1987, Shannon filed a report with the Milwaukee Police Department, stating that she had been sexually assaulted by Estergard. Shannon dated Estergard for more than two years. In July 1987, she tried to end their relationship. Estergard responded by threatening to commit suicide. When Shannon made one last attempt to end the relationship on July 29, Estergard sexually assaulted her at knife point, threatening to kill her and himself. Attempting to avoid further harm, Shannon told Estergard that she would move in with him and that he should pick her up at her mother‘s house on July 30 at 3:30 p.m. Shannon informed her mother and sister of the assault on the morning of July 30 and then went to the hospital for an examination. While at the hospital, two Milwaukee police detectives, Raymond Stanczyck (Stanczyck) and Duane Luick
The Barillaris state that after the interview was concluded, Shannon‘s mother told the police that she feared Estergard would once again harm Shannon. The Barillaris also claim that Luick promised that Estergard would not get near Shannon because the police department would (1) immediately obtain a warrant for his arrest and (2) be at Shannon‘s home at 3:30 p.m. that day to arrest Estergard.
Luick did issue an apprehension request for Estergard on July 30, giving the police department the necessary authority to arrest.1 Additionally, Luick advised Shannon to follow up on the prosecution of the matter because Estergard might try to assault her again. Finally, Luick recommended that Shannon meet with someone from the district attorney‘s office, Sensitive Crimes Unit, on Friday, July 31, to initiate the prosecution of Estergard. After this interview, Luick did not have any further contact with Shannon or her family.
During the interview at the hospital, Stanczyck also advised Shannon and her family to file a sexual assault complaint against Estergard in order to pre-
Estergard did not turn himself in to police. On Tuesday, August 4, 1987, he went to Shannon‘s home. He first killed Shannon and then himself with a gun he purchased over the weekend.
According to the complaint2 filed by Shannon‘s family following her death, the City, through its police department and officers, was negligent, inter alia,
The City filed a motion for summary judgment pursuant to
The court of appeals reversed the decision of the circuit court and held that summary judgment was not warranted in this case because the “alleged promise of protection and arrest... [established] the sufficiency of [the] complaint,” Barillari, 186 Wis. 2d at 423, and that a jury must decide whether “the police, in fact, [made] a promise; if so, what were its reasonably understood terms; and did the police fulfill their promise?” Id. at 425. According to the court of appeals, if the detectives gave assurances that they would protect Shannon, the discretion which might otherwise have been associated with their official position dwindled. Id. at 424-25. Thus, the court concluded, statutory immunity did not bar the Barillaris’ claim.
The issue before this court is whether a “promise” made by a police officer to protect a crime victim from further harm deprives the officer of immunity from liability for discretionary acts to which the officer would be otherwise entitled under
We review a court‘s decision to grant or deny summary judgment de novo. Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994); see also Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The first step in a summary judgment procedure is for the court to determine whether the complaint states a claim for which relief can be granted. Green Spring Farms, 136 Wis. 2d at 315. A complaint “should be dismissed as legally insufficient only if it is quite clear that under no circumstances can plaintiffs recover.” Id. at 317.
BECAUSE THE CITY ENJOYS IMMUNITY FROM LIABILITY PURSUANT TO § 893.80(4), STATS. , THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION, AND SUMMARY JUDGMENT IS PROPER IN THIS CASE
The City argues that summary judgment is warranted in this case because the Barillaris fail to state a claim for relief. Without conceding that any promises were made by Detectives Luick and Stanczyck, the City contends that (a) police conduct during the investigation of Shannon‘s case was discretionary and requires immunity under
“The general rule acknowledged in Wisconsin is that a public officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual‘s public office.” C.L. v. Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614 (1988) (citing Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976)).
Three exceptions exist, however, to this general rule of immunity. First, a public officer or employee does not enjoy immunity if he or she engages in conduct which is malicious, willful, and intentional. Olson, 143 Wis. 2d at 711 (citing Ibrahim v. Samore, 118 Wis. 2d 720, 728, 348 N.W.2d 554 (1984)).
Second, a public officer or employee is not immune from liability if he or she negligently performs a ministerial duty. ” ‘A public officer‘s duty is ministerial only
Third, a public officer may also face liability when he or she is aware of a danger that is of “such quality that the public officer‘s duty to act becomes ‘absolute, certain and imperative.’ ” Olson, 143 Wis. 2d at 715 (quoting Cords, 80 Wis. 2d at 541). In Cords, the court held that the immunity defense was not available to a state park manager who failed to either notify superiors of a hazardous 80-foot drop along a trail or erect signs which would warn park patrons of the trail‘s condition. In that case, “the manager knew of the danger, had the authority to act, and failed to act.” Barillari, 186 Wis. 2d at 421-22 (citing Cords, 80 Wis. 2d at 541).
In Losinski v. County of Trempealeau, 946 F.2d 544, 546 (7th Cir. 1991), a case upon which the Barillaris rely, the United States Court of Appeals for the Seventh Circuit considered the known and compelling danger exception to immunity when it examined “the alleged failure of a deputy sheriff to protect a domestic violence victim from her husband, who shot and killed
[o]nce [the deputy] assumed the duty to protect, his obligation was no longer discretionary.... Once the deputy acted [aware of the TRO and Donald‘s violent tendencies], the discretion that may otherwise attach to his position diminished. The deputy therefore was not entitled to immunity for the decisions made at the [Losinski home].
The Barillaris argue that either the ministerial duty exception described in Domino or the known and compelling danger exception identified in Cords and
[u]nlike the 80-foot drop in Cords, or the tree lying across a roadway in Domino, the police in this case could not look at this situation and see a homicide just waiting to happen. Complaints of sexual assault and threats are, unfortunately, not rare in interspousal and boyfriend-girlfriend relationships. Nevertheless, as tragic and horrifying as these crimes are, the situations do not always lead to an immediately dangerous escalation of violence to the point of homicide.
Barillari, 186 Wis. 2d at 422-23.7
We look to our police departments to enforce our laws and to maintain order in what is becoming an increasingly dangerous society. Routinely, police face critical situations, many of which have the potential for violence. On a typical day, any given law enforcement officer may be arresting and questioning suspects, interviewing and counseling victims, talking to witnesses, rescuing children, and investigating criminal activity. In the course of their work, police must often try to console and reassure people who are distraught and fearful. Faced with escalating violence, they must continuously use their discretion to set priorities and
Upon examination of the allegations in the Barillaris’ complaint against the City, we are not persuaded that the assurances offered by the detectives to be at Shannon‘s home on July 30, 1987, to arrest Estergard transformed the police department‘s discretionary actions into ministerial duties. We recognize that Shannon‘s death at the hands of Estergard was a very tragic event. However, the circuit court properly granted summary judgment in this case. The City is not liable for the discretionary acts of the police department and its officers, acts for which immunity is provided under
Finally, the Barillaris argue that they should be able to amend their complaint to state a claim for relief under
By the Court.—The decision of the court of appeals is reversed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). Wisconsin citizens, through their legislators, wisely have
The majority concludes that in this case the detectives’ promises to arrest the alleged assailant and to protect the victim do not subject the law enforcement officers to liability. I agree with this conclusion. Law enforcement officers cannot guarantee either full protection or an arrest in any given situation. This type of promise commits officers to do the best they can in such a situation, under the total circumstances of protecting the entire community. The officers and the City are not then subject to liability if the victim is harmed.
However, another promise was allegedly made in this case. According to the plaintiffs, the detectives promised that police officers would be at the victim‘s home at 3:30 p.m. on July 30 to arrest the assailant, who had agreed to be there at the time specified. As I read the majority opinion, it concludes that the detectives retained discretion over whether to implement this promise. Majority opinion at 259-262.
According to the limited information available at this stage of the proceeding, it appears that the assailant arrived at the victim‘s house sometime between 3:45 and 4:00 p.m. When a struggle ensued between the victim‘s stepfather and the assailant, the assailant fled. Apparently the police officers arrived at the house later that afternoon to investigate the struggle between the victim‘s stepfather and the assailant, but not in response to the alleged promise to be at the house to arrest the assailant. Sadly, the assailant‘s
I conclude that an officer‘s promise to appear or send other officers to appear at an agreed upon place and time to arrest an assailant whose appearance at that place and time has been prearranged is of a different nature than the more general promises to protect and arrest. In my opinion, such a specific promise is, under Lister, “absolute, certain and imperative,” a commitment to perform a “specific task” (arrest) at a “define[d]... time” (3:30 p.m., July 30, 1987) through a “prescribe[d]... mode and occasion.” Lister, 72 Wis. 2d at 301.
The plaintiffs and defendant dispute whether the detectives made the more specific promise to appear and arrest the assailant at a specified place and time. This is a dispute of material issues of fact.
I conclude that the plaintiffs are entitled to a determination of (1) whether the more specific promise was made, and if so, (2) whether the officers were negligent in their failure to fulfill this promise, and (3) whether any such negligence was a substantial factor in causing the harm. These decisions cannot be made on a motion for summary judgment.
Thus, although I agree with much of the majority opinion, I conclude the majority opinion is too broad in suggesting that an officer‘s promise to appear at an agreed upon place and time to arrest an alleged violent assailant is, in and of itself, a discretionary act and that immunity exists when failure to fulfill the promise constitutes causal negligence.
I would therefore affirm the decision of the court of appeals but on different grounds.
Notes
802.08 Summary Judgment....
(2) MOTION.... The judgment sought 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
893.80 Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits....
(4) No suit may be brought against any volunteer fire company organized under ch. 213, 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 volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.