*1 injunction denying temporary The trial order court's is affirmed.
By affirmed. the Court. —Order Appellant. others, Respondents, Cords, v. Anderson, 75-140.] No. [Case † Henry Plaintiffs-Respondents: others, Cords, Anderson, De another, Plaintiffs-Appellants, fendant-Respondent. No. 75-141.] † [Case 75—140, Argued 28, 1977. March
Nos. —1 41. 75 14, 1977. Decided November 672.) (Also reported in N. 2d 259 W. wrongfully hank, gives honors a demand it issuer who beneficiary. remedy against the rehearing pending. decided motion was not This Motion † disposition press. re- Its will he the time the volume went in a later volume. ported *4 and there a brief defendant-appellant, For defendant-appellant defend- and reply of combined brief La, Fol- by ant-respondent appeal Bronson C. on cross Priebe, attorney lette, general, Theodore L. assistant and argument Priebe. general, attorney Mr. and oral plaintiffs-respondents of There combined briefs were Consigny, An- by Wickhem, plaintiffs-appellants and argument Hemming drews, Barton, and & S. C. oral Wickhem, all John of Janesville. C. appeals
DAY, the court on J. matter is before This judgments cross-appeal entered on and from three February 25, defendant- 1975. In case #75-140, judg- Floyd Anderson, appeals two appellant, K. from against plaintiffs- him and in entered favor ments Cords, her father respondents, Erwin T. Jane Cords and Boyle Boyle, father. and Norina and John J. her and plaintiffs-respondents, case Jane Cords #75-141, Cords, judgment cross-appeal T. from the Erwin Henry favor, plaintiffs-appellants, while their Susan Henry, appeal judg- father, Roland her dismissing against de- their causes action ment Floyd fendant-respondent, K. Anderson. The cases briefing argument. purposes consolidated for questions. present These cases several manager Anderson, Floyd defendant,, K. I. Did the Department of Natural Resources state-owned Parfrey’s operated (DNR) area” known as “scientific duty” notify to either his su- Glen, a “ministrial have dangerous periors features within natural of the land path people or trial where were invited to inches walk or to erect warning signs public dan- of such twilight? gers glen, especially after within agree duty. The trial court said there was such a We hold. so applied to the ac- doctrine II. Should rescue Henry Jane to lessen their Cords Susan tions *5 duty safety when, ten due care for own within their Boyle’s to fifteen after Norina fall into the minutes together forge, way leading they attempted path- to climb down the top from the of the cliff to aid. come her apply hold that the rescue doctrine
We does and re- verse issue, the trial court on and remand for fur- proceedings. ther III. Where the evidence of Jane Cords’ future medical expense expense $3,270 her current annual established only
and the economic evidence the medical was that component care risen Consumer Price Index has through year per from 1967 1973 at a total rise 5% during years Jo; said was 37.7 did the trial court err by refusing determining consider that evidence damages? We hold that trial court did err and that the rea- probability sonable of an increase or decrease medical proper costs is a consideration for the court in the ex- assessing ercise of its discretion in future medical ex- pense and we remand for proceedings. further IV. general damages the trial Was court’s award of in the $300,000 injuries amount of by for the sustained inadequate Jane Cords and without a reasonable basis in the evidence? damage
holdWe that the trial court’s $300,- award of supported 000 was a reasonable basis the evidence.
FACTS Parfrey’s Glen, approximately an area eighty-nine acres in size owned the State of Wisconsin and located about four miles Devil’s Lake State Park county. in Sauk gorge In it a preglacial and it con- unique geological tains particular features of interest scientists and students. A small stream once utilized to operate gristmill canyon cut ranging has from a *6 deep for a distance nearly feet feet to a hundred few acquired the approximately a feet. The state of thousand by groups frequently property in and it is visited acquired by and 1953 and the state individuals. parcels and used buffer 151 acre additional plant found protect unique life zones to the and delicate of area” because in this area. It a “scientific is called plant terrain and life. its Boyle, May plaintiffs, 2, 1970, Norina
On the three Henry at the Uni- were students Jane Cords and Sue Parfrey’s versity of and each visited Wisconsin-Madison They group a of part of for Glen first time. the couples from Madison had car four who travelled hiking The purpose picnicking the Glen. the of and men, young Vicky girl, Helendar and the four fourth Tibbits, Jerry Schraufnagel, and Rousseau Dean Tom be- each to the at least once Tom had Glen Nelson been fore. highway
Parfrey’s public a on a where Glen fronts direction; sign traveling in public the each announces to Parfrey’s to Conservation “Entrance Glen—Wisconsin northerly road over Department.” The entrance leads parking quarter lot. Near a mile to a hard a of surfaced sign states, large parking far the lot is a end “Parfrey’s Area. This area has Glen State Scientific protect to the State Wisconsin been established study preserve and natural conditions for and scientific enjoy public Dis- is welcome area. research. turbing tion is unlawful. Wisconsin Conservation Commission.” living vegeta- any way or dead animals along sign
A small entrance drive announced closing p.m. the “Park” from 11:00 to 4:00 hours beverages during prohibiting of alcoholic a.m. use May period April 1st 18th. gravel parking area, pathway North of runs past picnic tables, toilet facilities and numerous barbe-
que gravel garbage pathway facilities. The forks public toilets, a short north of the trail distance one gorge leads into stream level known as the “lower along upwards trail” and the other trail travels east gorge high ground leading side the stream over “upper sign department consisting trail.” A “trail” yellow background points letters on a brown wooden join the lower trail. These two trails distance to some canyon beyond the north near the end of waterfall thereby system. a circular trail At the north create end, easterly the lower trail into turns ascends “ascending-descending bluff area known as the trail.” Logs along pegged position into the trail climb- facilitate *7 ing. top ascending camp At the the of trail a is site larger picnic adjoin logs area where an area near charred of picnics remnants fires. no. This area is used and signs prohibit picnic up- From fires there. the site the per meandering high southerly trail leads around the ground leading easterly with numerous' trail offshoots places, upper At to woods. the trail comes within inches edge high of the ground bluff or a bluff undercut. dropoffs has obvious to the west and to the northwest picnic of the area. A upper main branch of the trail running picnic parking south area toward the high lot comes within a foot of the bluff where the bluff obliquely is undercut to the southeast. The is undercut narrow, readily forty-five discernible and within picnic of feet area. This cutback or “shoot” it testimony was referred to in the at place a where one misstep southerly a of foot a direction would cause foot, uninterrupted twenty sharp down slide incline dropoff approximately direct eighty feet to the gorge. rock bottom of the point This where Boyle Norina fell. young couples
The four Parfrey’s arrived at ap- Glen at proximately May 2,1970. brought noon They on food and purchased sandwiches day earlier in the and also cases
5B3 They conversation had some of beer and a wine. bottle during April sign forbidding use beer about May to control it an effort and and concluded was Schraufnagel high-school groups prom time. Dean north and trail group on the toward led the lower present plant explained and life he some the rocks waterfall, group. At the to the in the site others ascending-descending picnic to the they up trail went they deposited took food. Tom Nelson area their where jacket put wrapped it in and part of his beer, Boyle place keep cool. Norina was separate it in a Schraufnagel they accompanied by Dean walked parts the waterfall. and north of other Glen west They re- couples on walks. all The other went similar campsite, ate food to the turned about midafternoon they brought had some the beer. drank Ranger having lunch, Schutte, they Park
While making through Parfrey’s patrol ever who was his first Glen, group. He told them came across the beer empty supply prohibited directed them to their beer got they they Mr. did. Later the beer that Nelson which jacket it their eve- wrapped in his and drank with had they ning meal. asked Mr. if the could When Schutte they stay, he them that continue lunch and told their could. subsequently report with An-
He an official Mr. filed *8 stated, Manager, “All the derson, in which he Park the neatly appearing. neat dressed individuals shaven, combed. men were clean and their hair was None group appeared of the drunk . . . their attitude to be give any talk, they static, good, did not me no back was merely dump I have them the so decided to beer.” Boyle had to four cans of Ms. testified two beer she testimony day the whole others was that she appeared at all times. testified that none of sober She upon drank had effect her. the beer she There contradicting testimony. Jane no Cords had about three day was
cans of beer the entire that testified she by testimony unaffected and that was substantiated Henry party others. Sue described of the was some “giddy” “silly.” group as her or in the Others described Henry “was The trial court that Ms. sober. found signs silly, showing a little or at intoxicated or least ingestion beverages.” of alcoholic Following couples lunch, the hiked around the area meeting picnic evening at the for their site meal. When grew they it campfire cooler built a on the location of previous ashes from fires. Norina had walked around gone upper the area but had not trail area see where she later fell. Mr. Tibbits stood fifteen about walking campfire Boyle, feet south of the when Ms. southerly, passed why him on the trail. one sure No prevents she did Her own this. traumatic her amnesia recalling thought incident. group Most going away she was campfire relieve herself from the testimony area. may There was some that she have been looking glove gloves. for a She continued on the upper disappeared trail until light she from the campfire. moments, In a few a noise was heard that falling object. like a sounded group Several called Boyle’s out Ms. response, name when there no they were alarmed. Mr. only Tibbits took the flash- light group in the ascending-descend- and went down the ing gorge trail to the Shortly up below. he that called he found her gorge, bottom of didn’t she pulse have a and that she needed mouth-to-mouth resusci- tation. Mr. gorge Rousseau went down into the flashlight. same route without He returned to the campsite bluff Henry and told Sue and Jane Cords stay by the fire and wait for awhile. He also told them Henry might help Sue able Boyle Ms. because previous nursing experience. she had *9 Boyle’s very fall be- upset Ms. after Ms. Cords was had Boyle friend. Ms. Cords cause was her best Ms. Henry trained during a day that was Ms. found out get gone for wood practical had to Ms. nurse. Cords Henry was returned, Ms. said she and when fire she give gorge Mr. Tibbits going go and into down a aide. she was nurse’s some because assistance, the trail Henry Ms. went down Ms. Cords day. three times two or Ms. had been on Cords They steps and slide to sit down took a and decided few way. As to feel their down it would safer because go Henry they going down down, she saw Sue were thought that she out for her. Cords testified reached Ms. falling “I Henry her and and reached for Ms. was falling.” She forward, I can remember tumbled over gorge. regained She at the consciousness bottom fall, get of their up couldn’t. At the time tried to ascending-descending following they path, gone on trail, Mr. had that Mr. Rousseau and Tibbits try Boyle. Henry and Ms. Cords and find Ms. Ms. sixty fell about feet. Boyle’s p.m. it
Ms. fall had occurred about 8:30 young to fifteen minutes later that the other two was ten taken had their accident. The women were later ladies hospital. gorge authorities out very injuries and will be received serious Ms. Cords Her a for the of her life. confined to wheel chair rest greater injuries are in detail infra. discussed Henry years old of ac- was nineteen at time Sue graduated University from cident. She Wisconsin August a of 1972 B.A. social work. Madison with thirty-two aide sixteen hours nurse’s She Hospitals January University week through nursing April was also a student and 1970. She nursing had of the first about eleven weeks course. She experienced in considered herself such as first matters *10 nursing majoring aid was or until one two weeks prior to the accident. received a skull fracture in She says day’s accident and ac- that as result memory very tivities, poor. her remembers no She going Parfrey’s about even discussion She Glen. drinking any remember beer and doesn’t doesn’t remem- falling. ber
Floyd Testimony K. Anderson’s Floyd manager K. Anderson was the of Devil’s Lake at, Parfrey’s State Park and also the time that Glen these accidents occurred. started out with the He de- partment carpenter August and in as was he Copper transferred to Falls Park in State Ashland Coun- ty Manager. training as Park park He had no aas manager assuming except before those duties what he training just day.” described as “informal for one He said his equip- duties there were to make sure that ment, including trucks, bridges tractors, mowers, guard gorge rails around park in that were He safe. “guard stated that he had to be sure that rails and trails were in safe condition.” He that estimated while there, guard he was a half mile rail and two and one- half to paths three miles foot were constructed under' supervision. his He duty stated that park of the manager reports to render was superiors his steps what safety were to be taken to reduce hazards improve or public conditions use. Copper While at reports Falls he made such supervisor. to his area He safety also free to precautions initiate on his own Copper at Falls. He steps closed off unsafe and closed an observation repairs tower for because of unsafe tim- platform bers of the observation tower. Mr. Anderson came to Parfrey’s Devil’s Lake and Glen in 1965 park manager. as an assistant By 1966 he knew paths that Parfrey’s at edge Glen went near the glen the trails right and that drop off into sheer any sign rail, protective or devices never had advising warning to use the people them not kind trails were that these upper Mr. Anderson knew trail. the time night, especially but from hazardous warning signs of the accident, no there were agreed hazardous hazard. He these conditions dark. after want to be on the trails and that he wouldn’t manager park 1968 Anderson became November During Parfrey’s time Lake Glen. of Devil’s *11 glen any the of the closed trails he could have consent, in- supervisor’s he even never but without his supervisor hazardous condi- the formed his public job to make recommendations tions. It was his at, super- glen. safety recommended to his He never signs warning trails be erected or visors supervisor had been his ever didn’t know if closed. He glen. at the February 25, 1975, and on
Trial before following judgments: entered the trial court against in the the defendant (1) For Erwin T. Cords $7,675.54. amount of against in the
(2) the defendant For Jane Cords $208,921.06. amount of Boyle against
(3) in the For John J. the defendant $4,772.98. amount of against Boyle
(4) Norina the defendant For $36,128.04. amount of Henry
(5) actions Roland Dismissal against, Henry the defendant. Susan Anderson, represented by Attorney Defendant judgment General, appealed from favor of the Cords, plaintiffs Irwin and Jane and John and Norina Boyle. Cords, cross-appealed Irwin and Plaintiffs Jane judgment findings the trial the same court’s damages. negligence on Plaintiffs Roland and Susan 5S8 dismissing
Henry, appealed judgment from the their against of action the defendant. causes PARK MANAGER’S DUTY. I. Anderson, question whether Mr. as man- The first ager state-owned, Department Re- of Natural Parfrey’s (DNR) operated Glen, sources a “minis- had duty” notify superiors terial to either his of hazardous signs natural inches from the trail or features to erect warning public dangers, particularly of such after dark. Attorney misinterprets ques- General first required It is
tion.1 not whether Anderson was to tell supervisors ninety dangerous his that a foot cliff was question supervisors after dark. The is whether regu- should people have been notified about trail that larly passed used and that a few inches from an under- dropping ninety gorge. cut into a foot question posed by Attorney The second General manager is, “Does a duty . . . have a ministerial sign warning erect danger obvious such as fall- ing ninety cliff, from a superiors foot where his have *12 sign authorized such and policy no the written is to ” ‘leave it policy leaving alone.’ can There be no it danger alone when such an obvious phras- exists. This ing attempt duty an is question reduce the to an absurdity help and it analyzing legal offers no in the issues involved in view of the fact situation which this presents. case 1 question He states the first to be: “Does the failure of a
manager of a notify state-owned superiors, scientific area to his already who are terrain, familiar with the area that he considers ninety dangerous a foot cliff dark, negligence after constitute managers superiors where following and are administrative rules preservation policy and scientific areas to ‘leave it alone.?'”
539
legal
analysis of the
question
The
proper
involves
negligence
can
theory
plaintiff
suit
a
in a
under which
acting
individually
his
in
public
recover from a
officer
employee of the state.
capacity
public officer and
as a
Parfrey's
area
recreational
Glen was a state-owned
by
DNR. The
supervised
operated
maintained,
and
encouraged
upon the
enter
public
and
was invited
recreational,
purposes.
other
land for
educational
decision
prior
action
court’s
This cause of
arose
886, 231
Reszczynski,
in Antoniewicz v.
N.W.
70 Wis.2d
distinction
(1975)
abolished the
2d
this court
wherein
regard to a land-
between
licensees v/ith
invitees
duty.
role
state as
is
The
owner’s
landlord
the state
immune
involved in this case because
is
Ehly,
v.
state.2 Cords
under
constitution of
suit
31,
(1974).
35, 36,
214 N.W.2d
Wis.2d
immunity
general
public
personal
There is
tort
authority
acting
scope of
official
official
within the
his
Board
In Lister v.
and in the line of
official duties.
his
provides:
IV,
27,
Constitution
Art.
see.
Wisconsin
legislature
in
manner and
“The
shall
law
what
direct
may
against
brought
court
be
suits
state.”
what
provision
developed
from this constitutional
is that
rule
Kenosha,
State,
consent.
cannot
sued without
its
state
270.58,
(1967).
322,
sec.
Wis.2d
of p. stated 800: general per- per- public “The rule that a officer not sonally injured a result of an act liable to one as his official scope authority within of formed duty. exceptions in the line of his official The various judicial balancing by of this rule are determined public perform need officers to their functions freely against redress.” right aggrieved party of an to seek public personal This court further noted that a officer’s immunity upon tort was not based the doctrine of sov- ereign immunity, upon but rather different considera- tions : sovereign immunity “The principle doctrine immunity which public extends an officers civil liability damages for separate are two and distinct con- cepts. above, sovereign immunity As noted the state procedural from suit is and arises from the nature state cers with immunity public constitution. The afforded offi- respect performance to the of their official functions, on hand, the other is a substantive limitation personal on liability damages their and is common law. It derive, language does some cases imply, would sovereign from the immunity state’s under IV, art. sec. Constitution, Wisconsin but from public policy. considerations of These considerations variously have been identified in the cases as follows: (1) danger influencing public officers in the performance of their lawsuit; functions threat (2) the deterrent effect personal which the threat might liability have on considering those who are en
tering public service; (3) the drain on valuable time actions; caused officials to ordinates; (4) such subjecting unfairness of personal liability for the acts of their sub (5) feeling the ballot and re procedures moval appropriate are more methods of dealing with Lister, supra, public misconduct in office.” 298, 299.
541 Holt, supra, 39; Bromund v. Ehly, v. See also: Cords (1964). 336, 129 149 24 Wis.2d N.W.2d general public that a exception rule There is an to the authority acting scope of official official within the his tort from the duties is immune and in line of his official expressed liability. exception That was Lister, supra, pp. 300, 301: generally recognized exception rule to the “The most damages immunity re- for that an officer is liable is sulting purely negligent a minis- performance his only duty duty. ministerial public terial A officer’s involving absolute, imperative, when it is certain and merely law performance specific when the the of a task oc- prescribes time, imposes, the mode and defines certainty that performance for with casion nothing its such judgment for or discretion.” remains 41; Chart, 101; supra, supra, Ehly, also: Cords v. See Eckstein, v. 409, 413, 201 Clausen 97 N.W.2d Wis.2d Meyer ; 331, 332, Carman, (1959) 271 Wis. (1955). N.W.2d question here is the Anderson defendant whether duty imperative absolute, to either certain,
had dangerous signs warning place public existing upper his or to advise conditions on trail adequate superiors of with a view toward the condition protection public responding to invitation of the facility. when “the buck use this There comes time glen stops.” at Anderson knew the terrain dangerous night; position particularly in a at he was something park manager it; do he failed about anything it. liable the breach of this do about He duty. supervisors
Mr. that he could Anderson’s testified warnings signs put up have manner same put signs up he other Lake. Anderson Devil’s Mr. upper could Both also have close the trails. asked to precautions required supervisor’s of these would have sought approval approval, nor but was never supervisors danger. apprised ever warning signs duty place hold that We either superiors is, here, or advise of the conditions on the facts *15 duty so clear and it so that falls within the absolute duty. definition of a ministerial plaintiff Boyle challenge The Norina not the al- does negligence location of made the trial court which negligence found causal attributable to the defend- 55% ant Anderson and to her. The state that claims 45% greater Boyle’s negligence negligence Ms. than of Mr. Anderson.
An examination of the entire record
shows
negligence
finding
allocation
causality by
of
and the
of
against
great weight
the trial court is not
and clear
preponderance of
accordingly
the evidence and
we must
finding
affirm the trial court’s
respect.
in this
The
damages
Boyle
amount of
awarded to Norina
and her
undisputed
father are
and are therefore affirmed.
II. APPLICABILITY OF RESCUE DOCTRINE.
1921,
Cardozo, Wagner
Justice
in
v. International
Ry., 232
176,
437,
N.Y.
(1921),
N.E.
set forth
principles
underlying the doctrine that absolves a
finding
negligence.
rescuer
contributory
of
“Danger
cry
invites rescue. The
of
is the
distress
ignore
summons to relief. The law does not
these re-
tracing
of
mind
actions
in
conduct
to its conse-
quences.
recognizes
It
them as normal.
places
It
their
range
effects within the
The
probable.
the natural and
wrong
imperils
wrong
life
is a
imperiled
to the
wrong
victim;
it
also to
The state that
is
his rescuer.
bridge
opening
an
in a
child that
leaves
is liable
stream,
parent
falls into the
but liable
to the
who
also
plunges
be not
begets
the
only
it
rescue,
its aid.
.
if
. . The risk
emergency
wanton,
The
is borne of
occasion.
wrongdoer may
the man.
not
foreseen
have
coming
if
he
of the deliverer. He is accountable
. .”
had.
C.J.S.,
Negligence,
In 65A
Sec.
the rule is stated:
commonly
“Under
what
referred to as
rescue
is
doctrine,
might
conduct which
otherwise be considered
contributory negligence may not
considered where
be so
person
injured
a
imminent
attempting
to save others from
danger
personal
assuming
injury
or
or
death. Persons
greater
justified
pro-
are held
risks
they
tection
human
not
under
where
would
life
other circumstances.”
guilty
contributory negligence
“One
in ex-
posing
danger
injury
himself to
in order to rescue
danger
personal
injury
another
from imminent
déath, if,
circumstances,
under the
or similar
same
ordinary prudent person might
expose himself, or, as
so
often expressed,
per-
if the act of intervention is not
*16
formed under such
would make it rash
circumstances as
judgment
ordinarily prudent per-
or
in the
reckless
though
person attempting
sons.
is true
This
even
great
the rescue
it
hazard to
knows
involves
himself
certainty
accomplishing
attempted
without
rescue
though
and
imperils
attempting
thereby
even
rescue
such
he
life.”
his own
Wagner
ap-
and the rescue doctrine were cited with
proval in
Chicago
Central Wis. Trust Co. v.
R.
& N.W.
Co.,
536, 543,
232
(1939),
Wis.
a breach of a owed to defendant rescuer, person or the defendant to the whose attempted .. rescue is Henry
Susan traumatic and suffered from amnesia following during prior to, was unable to recall or events glen. her fall into the following Cords, however,
Jane recalled the events Boyle’s Norina fall: “. Henry myself . . ... Sue and were at the fire we going keep fire, decided keep to it ... I knew she (Susan Henry) a hospital at the . . . was nurse’s aide getting I fire, came When back from some wood for the Sue, going believe, I had some and said was blankets she go give assistance, to down and Tom Tibbits some may that she pointed was aide and it have out she again, good to me and it sounded like a idea . . real . dark, little, my it Since I was so . . . reac- first oh, was, no, tion we’ll never make it. But Norina when really help help I . needed and knew . . the would blankets give all, her and if could Sue her aid at it really good. would be And Norina’s need far out- so weighed any myself hazard and and Sue we buttoned up my gloves our put going and coats I on and we were easy way to take it and, slow and . .. work our down . going . stay very . We were were down first together. close We (holding other) on to each . . . . . . went Sue (Jane holding her) Cords was behind going go ... way We down the exact we had up day. come I up there, up So had been down and that trail going times, two three so trail we were that’s got to take down. We started down we —we steps took few decided to we sit down and slide down because that would be safer kind of feel our way. get We didn’t too far I before we fell ... don’t go if know I saw Sue down and I reached out for her way
or—that’s sort I I remember. can remember seeing go I just Sue down jumped but don’t know if she on to a lower thought level. I believe that I she was falling I her, reached for and then I tumbled over I falling, forward and can remember . . .” *17 cross-examination, On regarding Jane Cords testified Henry: Sue figured way I “I but she would find her down there steady guess help I better her, would her. two heads are thinking point,
than ... At that I of Norina one was lying cerned about really ravine, just con- I down ... was . . .” Norina The trial court on record held that the “rescue forty neg- apply percent doctrine” did not and assessed ligence sixty negligence percent to Ms. to Cords Ms. Henry. giving holding for women causal- reasons both ly negligent, the trial court said: urge Henry apply “Plaintiffs Court Cords arriving causation, Rule’ in ‘Rescue and a com- argument emergency argument bination of rescue urge negligence part absence of on the two of these girls say . . . it Suffice the facts here would already not fit rule for several had reasons. Tibbits Boyle assisting her, found a she had so sense already Secondly, been rescued. some 10 to 15 minutes elapsed Boyle’s between trail fall and the start down the Henry probably Cords and so that the one was no situation longer compelled calling rescue. No their help already gone assistance and had been for . . . These urge plaintiffs compelling urgency that the of the situa- requires invoking emergency tion or the doctrine thereby excusing taking rescue precau- rule them from tionary steps might upon that otherwise be taken re- flection. emergency The rescue rule sense However, doctrine. since the Court feels that both negligent, application them any emergency no or rescue rule should be . . invoked .” hold that ruling
We the Court erred in its apply rescue did doctrine here. The court confused emergency doctrine with rule, the rescue but separate. two are The “emergency doctrine” relieves person liability for his person actions when that faced with a emergency sudden that he help didn’t create. *18 Shelby Co., Ins.
This Court in Lutz Mut. 70 Wis.2d 743, 754, (1975) held that N.W.2d there are requirements three basic which be met before the must emergency applied. party doctrine can First, be seeking emergency benefits of doctrine must be negligence free from which contributed to the creation emergency. Second, of the in the time element which required enough preclude action is must be short de intelligent Third, liberate choice action. the ele of negligence being inquired ment of into must concern management emergency and control before doctrine apply. can emergency
The commonly applied doctrine is most in auto accident ap- situations and is a different doctrine plied to a different set of than facts is rescue rule. requirement emergency in the doctrine that the time element preclude must be so short toas a deliberate or intelligent choice of action not an element in the rescue doctrine. applicable though The rescue doctrine is even doing the action of the one the rescue is deliberate and planning taken after some or consideration. may assume, though “We required we are not to de- _ cide, transaction, peril must rescue one substance sight that the of the one must have aroused impulse other; short, of the there must be continuity unbroken between the commission of wrong and the consequences. effort to avert its . . . The law not does discriminate between the rescuer oblivious peril enough and the one who counts It cost. act,
that the of the impulsive whether deliberate, child is the Wagner, occasion.” supra, at 438. though Even given special are rescuers consideration they law, under the protected not are circum- all stances. mo who, the most unselfish “A from rescuer —one impel can
tives, impulses than prompted the noblest deadly heroism, peril ought faces man to to deeds — his of condemnation from words hear the law danger, bravery, to snatch into because he rushed negli imperiled it the life gence creature fellow words listen to another; he rather but should regretfully on account approval, withheld unless *19 imprudence.” evidence of rashness unmistakable his 1070, City 45 A. Philadelphia, 195 Pa. Corbin v. 1072, 1073 (1900). Henry not be rescuers, Even will as Cords Ms. Ms. negligence if their action unreason- absolved of all was under the able circumstances. stay
The women told Mr. Tibbits two had been walking Boyle they fell knew that the fire. After Ms. might dangerous, walked trail had be but Ms. Cords day mishap the trail three that without two or times negotiated it earlier with- Mr. Rousseau minutes had training flashlight. Henry, out a Ms. who had as a might to assist nurse also told that she be able was injured required Boyle pulse and who had no who Ms. Henry artificial resuscitation. Ms. and Ms. Cords start- ed down the trail that would been with blankets have helpful Boyle if Ms. The trial court was shock.3 found that Ms. Cords not under influence of was Henry intoxicants, but that Ms. “a little intoxicated silly.” or many
The trial court took into these same factors account, apply but decided that the rescue didn’t rule negligent. Henry because Ms. Cords Ms. The analysis purpose trial court’s fails to consider the encourage rescue rule which tois rescues even where danger question is involved. The whether is social attempting interest to effect a rescue is such 3 Proper treatment shock body includes maintenance temperature. Attorney’s Textbook Medicine, Ed., 3rd Koscoe Of Gray, M.D., 1A, paragraph 10.16(3). N. vol. plaintiff attempting un-
conduct of a the rescue is reasonable under circumstances ?4 Prosser, The Law Torts, stated in L. rule is W. Edition, Publishing Co., 1971, p. 4th 451: West danger may cases, course, “In all so of these be proportion out of to the extreme be all value protected, plaintiff may and the be interest charged contributory negligence in unrea- with his own sonable conduct.” not, negligent hold that a rescuer We where the res- although cue, dangerous, unrea- unreasonable or sonably negligence comparative carried out. In a jurisdiction Wisconsin, such as if the trier of fact finds unreasonably rescue is carried unreasonable out the fact comparison finder should then make a negligence neg- between rescuer and the one whose ligence created the situation to which the rescue was response.
In the case us, of'fact, apply- before if the trier after *20 ing doctrine, the rescue found Ms. unrea- Cords acted sonably, then it would comparison make a of her negligence with Anderson’s. same would true The be Henry if unreasonably. Ms. was found to have acted negligence Her compared would then be to Anderson’s having negligence, negligent Anderson been found in finding this case by and that majority confirmed Boyle’s this court. Given Ms. condition after fall of eighty feet, or Henry’s nursing more experience, Ms. familiarity Ms. Cords the with trail and the cautious they manner in which trail, started down the the trial court must determine from the record the de- whether jurisdictions contributory where negligence the doctrine governs, the rescuer’s imprudent,” conduct must he “rash and Corbin, supra,, “wanton,” Wagner, supra,, beyond be to the protection of the rescue doctrine. rea- Boyle’s go aid was reasonable cisión to to Ms. entitled sonably women were out. Both these carried the their actions under of fact consider have the trier to rescue doctrine. dismissing judgment action of the the
We reverse the Henry case her remand father Susan the rescue rule. under the trial court for determination by Henry damages father found and her The to Susan challenged appeal5 and on trial court are the any trial award the in calculation therefore stand may make. court by
Having damages the trial determined as found rea- in and Erwin Cords case Jane expenses, except medical those sonable, as future figures calculation of award will stand may trial court make on remand.6 FUTURE MEDICAL EXPENSES. III. expert if plaintiff’s
The economic determined indefinitely into medical remained constant costs expenses would be future, medical Cords future Ms. present present But if the $45,284, value. reduced cost continues per cent rate of medical inflation five hospital expenses medical, found related The trial court Henry $2,314.15. by amount of $18.25 incurred Roland Henry. $25,000 expenses for same were found Susan was by compensate sum to found the trial court as a reasonable Susan Henry injuries. for her following: The trial court found the $2,917.77 medical, hospital expense damage and related in- figure findings. to the curred her date stipulated parties. $300,000 compensate a fair and reasonable sum to her injuries. challenge figure. The defendant does not her *21 $45,284.00 expense present for future medical reduced to value. finding challenge This is discussed defendant does not below. figure. 550 future, expenses
into the Ms. medical would Cords $104,988 present judge al- reduced value. The trial $45,284 expenses lowed Ms. Cords future medical rising and refused to make allowance for medical argues costs. Jane the trial erred in Cords refusing to consider the effect of inflation on her future expenses. agree. medical We previously This court has into ef- taken account the damage adequacy fect of inflation on the verdicts. years A verdict that “. . . would have been excessive ago might today.” adequate Crye Mueller, not even be v. 182, 191, (1958). 7 96 Wis.2d 520 have N.W.2d Juries changing been allowed to consider economic conditions injury between and the time time trial and jury approved. instructions to that effect have been 378, Bethke Duwe, v. 256 41 (1949); Wis. 277 N.W.2d Dabareiner v. Weisflog, 253 220 Wis. 33 N.W.2d (1948).
Whether future inflation should be considered in de-
termining
damages
previously
future
has not
been decid-
ed
this court. In some of the federal
appeal
courts
allow,
recent trend has
require
been to
but
awarding
fact finder to consider inflation when
future
damages. Perry
Allegheny
v.
Airlines,
Inc.,
F.2d
489
(2nd
1974);
1349
Cir.
v.
Corp.,
Willmore
Hertz
437
(6th
1971) ; McCauley
F.2d 357
States,
Cir.
v. United
(9th
1972) ;
Several state courts have also allowed fact finder determining consider damages. inflation when future
551 1974); 708, (Iowa Schnebly Baker, 726 v. 217 N.W.2d 279, 790 177 N.W.2d Schuhbauer, 287 Minn. DeWitt v. Transportation (1970); v. Plourd Southern Pacific v. 1973); Beaulieu (Ore. Corp., 1140, 513 P.2d 1967), (Alaska Pac.2d 665. Elliott, damages, the cost Schnebly, supra, one In that realized The Iowa of future medical care. considering he inflation would somewhat the effect of to do otherwise they that speculative but also realized losses. fully for their compensate victims not would Schnebly, supra, 727, at 728. damages are,
In Wisconsin damage injury suf given “. . . to make whole Benkowski, 37 injured Wis. party. White fered 290, 155 (1967). 2d N.W.2d their required plaintiffs not to ascertain “. are . . precision, rather damages but mathematical with damages at a amount.” must reasonable trier of fact set White, supra, 289. at figure, any arriving adequate compensation In an damages degree speculative. is to award for future some suffering or the Certainly pain awards for future expectancy are mortality life tables determine use requires speculative. consider inflation also Failure to expenses speculation medical will inflation of during medical continue the course of future occur highly conjectural assumption be- treatment. This parties stipulated that medical have cause costs during average year percent per risen on an of five preceding years the trial. seven pres- recovery to The trial court discounted Ms. Cords’ ent the trial the future value. In effect court estimated recovery it return from Ms. Cords’ and discounted ac- cordingly, but the trial court estimate refused to However, may effect from inflation. inflation be taken separate into account fact as a finder factor fairly compensate arrive at amount will required expenses. victim future medical stipu- trial court this case the refused to consider concerning rising *23 lated evidence medical because costs economy.” speculation of the of our “state This is precisely the situation where inflation affects costs. The refusal inflation take into account for reason remand, was an abuse of discretion. trial On court mathematically will applying limited a five percent indefinitely annual inflation into the rate future damages. to determine future But the court should con- reasonably probable sider inflation as it seems in reach- ing damage figure. a reasonable The determina- court’s tion will control absent an abuse discretion.7 ADEQUACY $300,000 IV. OF FOR JANE CORDS'
GENERAL DAMAGES. argues respondent, Cords, $300,000 The Jane is inadequate general damages. compensate her for finding jury “A trial court that a award is excessive only will be overturned for an abuse discretion. The whether, test to determine abuse is the trial court had if sitting been as the sole and had finder fact fixed plaintiffs’ damages disputed in the amount, findings. would still disturb the there a reasonable is If basis proper the trial court’s determination as to the for amount it will be Shelby sustained.’’ Lutz v. Mutual Ins. Co., 743, 759, 70 426, Wis.2d 235 (1975).8 N.W.2d 435 reviewing damage granted awards either bench jury trial this court judgment does not substitute its 7 Paper McCrossen v. Nekoosa Co., 245, Edwards 59 Wis.2d (1973). 208 148 N.W.2d 8 approach A similar American, was followed in Moritz v. Allied 13, 133 27 (1965). Wis.2d N.W.2d 235
558 finder, but rather determines wheth for that of fact Olson v. Sior within limits. er the award reasonable 274, 827, (1964). dia, 285, 833 25 180 Wis.2d N.W.2d determining rea Normally . . in whether there “. arewe the trial determination sonable for court’s basis analysis appraisal evidence aided its own 59, 50, Gilihan, 32 Gleason v. Wis.2d award.” trial court (1966). in this 90 But case 145 N.W.2d gave de no the award the memorandum reasons as a matter be reviewed cision so the entire record must Ins. Liberty Mutual Fire impression. Bach v. of first ; 83, Co., (1967) Ballard 36 152 911 N.W.2d Wis.2d 601, 607, Casualty Co., Mut. 33 v. Lumberman’s Wis.2d (1967). N.W.2d light favorable still most evidence is viewed Nelson, damage support Grassl award. (1976). 107, 114, 248 Wis.2d N.W.2d *24 May 2, athletic Universi- On 1970 Jane Cords an planned to ty Wisconsin, Madison, sophomore who major fall, physical As of her Ms. education. a result lungs rup- consciousness, were lost both her Cords right and collapsed, was fractured tured and her wrist resulting spinal injured permanent cord was her cage. feeling paraplegia the chest After and loss below leg phlebitis in her left she contracted accident began permanent of uncon- to from suffer condition occasionally cramps trolled muscle threw her out undergone major her wheelchair. of bed or off She has surgery long therapy spinal period and a to learn cope paraplegia. no with has control over bow- She her permanently is els or and is catheterized. bladder She problems exposed and skin which bladder often accompany paraplegia. expenses average probably
Her medical will between year average plus days per of fifteen $600-$700 day. hospital per at a 1972 cost of Her wheel- $175.00 554 four
chair three to will cost last from $400-$500 years. expectancy of Ms. The normal life a woman age years at trial. This Cords was 53.1 time of forty par- percent estimate is reduced from ten for aplegics.
In cit- their brief Ms. Cords’ counsel contend without ing any authority that $650,000 to over awards of damages $900,000 have been sustained for such $450,000 that an award in excess of be fair would reasonable.
Comparison imper of verdicts from other is an cases analogy only guidelines fect which best to a offers Springen Ager Plumbing Inc., v. Heating, solution. & 487, 493, 19 (1963). Wis.2d 692 Lutz N.W.2d Shelby Co., 743, 759, Mut. Ins. Wis.2d N.W.2d (1975). averaging $451,090 Awards been have injuries states, made for similar in other but that aver age quadraplegia includes cases with a more in serious jury paraplegia. Furthermore, fifty percent than paralysis spinal injuries range awards from $175,000 $555,000.9
Ms. Cords award could higher, $300,000 have been but damages injuries unreasonably for these is not low. considering remand, these matters on because the cases tried jury, court without a a new trial presentation with the of all necessary. evidence may The trial court review the record in view of this opinion findings and make such new of fact as it deems proper. may The trial court arguments hear additional argument counsel if it concludes necessary such helpful.
By the
judgment
Court. —The
Boyle
in favor of John
Boyle
and Norina
judgment
is affirmed.
dismissing
The
the
Henry
causes
action
Roland
Henry
and Sue
is
9
Injury
Personal
Handbooks,
Valuation
I,
138, Coccyx,
Vol. No.
spinal
injuries.
and
(1971).
sacrum
cord
also,
See
555 proceedings con- further for remanded reversed judgment opinion. in favor The sistent with this and remanded Cords reversed Erwin Cords and Jane is opinion. proceedings consistent with further for I (dissenting). Because HANSEN, J. T. CONNOR questions on of the four majority three errs believe presented, respectfully I dissent. DUTY
MINISTERIAL substantially majority opinion departs The understanding previous individual this court’s recognizes, liability public the court tort officers. As against rule negligence officers, the actions individual finding liability.1 immunity, exception, enlarges liable, greatly defendant Anderson neg liable exception an officer for the holds which ligent purely “ministerial” duties. performance of correctly majority rule that: states the
The only duty public ministerial when “. . . A officer’s merely involving absolute, imperative, certain it is imposes, specific the law performance the prescribes of a task when time, for mode occasion defines nothing certainty performance re- with such its mains Lister v. Board judgment or discretion.” Regents, 282, 801, (1976). 610 N.W.2d Wis.2d following majority applies The then this rule facts: glen “. at dan- . . Anderson knew the terrain was gerous particularly night; position he manager something . it;
park do about failed to do he anything about it. . opposite prevails directly against rule in actions governmental Holytz Milwaukee, unit. 115 N.W.2d 17 Wis.2d (1962).
556 majority From this somehow conclu- arrives duty. sion that I Anderson has breached ministerial reasoning. comprehend am unable to this duty A perform- “. . ministerial involves . the mere Meyer Carman, v. prescribed ance task . . . .” 271 duty 332, (1955). 514 must be Wis. N.W.2d “‘positively imposed law;’” time, manner “ performance ‘specifically conditions its must ”; designated’ duty performance and the not be must dependent upon judgment the officer’s or discretion. Meyer Carman, supra, v. duty at 332. The must not judgment “. upon involve . . the of the exercise officer’s propriety act, . . .” Stevens v. North States Motor, Inc., 345, 348, (1925). 161 Minn. N.W.
Applying exception previous case, this in a this court flatly held that competing the accommodation of inter regarding safety ests inherent in public decisions premises Meyer discretionary. Carman, supra, v. rejected this argument that a school board’s statutory obligation grounds to maintain school in a “safe” condition was ministerial. The court said: might “At appear first blush it duty keep grounds the school character, ‘safe’ is ministerial but apparent it is analysis great on closer many that a cir- may deciding cumstances need be considered in what necessary action so, to do and such decisions involve judgment exercise or discretion rather than the performance mere Meyer prescribed of a . . . task .” Carman, supra, 331, 332. The state and employees its must exercise same judgment deciding steps what shall be taken to warn protect park against dangerous visitors natural con- ditions. As heretofore conceived court, therefore, this expressed Meyer, supra, duty” the “ministerial exception alleged would not have embraced the omissions of the defendant Anderson. majority apparently fash- result, the
To has avoid duties. expanded concept of ministerial ioned a new and *27 duty reasoning a ordinari- appears to The court’s he under may ly discretionary ministerial in nature become the majority abandons thus The certain circumstances. discretionary holding and ministerial prior of cases recognizes, appar- different, entirely and are functions one Prosser, difference is ently that the essential as does 1971) (horn- degree. (4th Prosser, Torts ed. Law of of degree The difference series), 987, 132. sec. book min- distinguish discretionary duty a from required to a by the then duty to determined apparently be isterial is majority of court. perhaps more approach and a second
The new works duty arise, change. liability must to ominous For ” “ time, con- by law,’ manner and ‘imposed be “ desig- ‘specifically performance must be ditions of its ” always un- supra, Meyer, 332. This has been nated.’ mandate, specific express require derstood contract, regulation, or statute, a embodied whether superiors. employee’s anof the instructions may inferred appears it that ministerial duties Now employee’s position, of an or the inherent nature as a perhaps of the state from the common-law duties per- Adherence to and careful landowner. instructions longer enough. assigned are no formance of duties employee duties public must now discern and fulfill and, objective post, without an referent inherent in his adopted superiors con- apparently, even when his have trary policies. may when a subordinate
There well be some instances duty employee superiors has a to warn of a public his danger. could be those instances where subor- Such great public employee dinate of hazard and learns readily apparent where the hazard those who the hazard enter land where is unknown his danger superiors position and those in a to warn of against precautions and take it. Under these circum- might employee it stances, be said the an absolute has duty superiors danger. and inherent to advise his majority opinion But the not limit em- does ployee’s duty cases, certainly such this case is not one of them.
The court offers no indication that the obviousness knowledge prior higher hazard part on the employee officials will responsibility. relieve an In- nothing deed there to mark the outer bounds potential liability Nevertheless, thus unleashed. I be- lieve some such limitation is concept inherent in the duties, ministerial and that even as reformulated majority, concept application can have no to this *28 defendant. majority
I believe the scope mistakes both the of An- authority derson’s and the nature of the hazard involved. majority The holds that duty Anderson breached a “to place warning signs either superiors or advise of the They acknowledge, however, conditions.” that Anderson power warning was signs without to erect or to close superiors’ trails without approval. negli- his alleged His gence lie, therefore, must in his failure to “advise su- periors of the conditions.” majority says job was his to make “[i]t recom- public safety glen.”
mendations for at the Anderson’s testimony point on this Stanley inconsistent. Welsh, Administrator of Forestry the Division of and Recrea- tion at the time of injuries, park testified that a manager particular had no responsibility report to haz- ardous and unsafe superiors. conditions his not,
Even if had duty, Anderson such a oblige it did him superiors to remind his of conditions with which they already were familiar. Welsh was two levels above supervision Anderson in the of the Glen. Welsh had not with trail, upper he was familiar on but been Welsh, in staff Directly below terrain. Glen its Ehly, of the Bureau Director capacities, were Alta Hansen, Recreation, Assistant and Lowell Parks with familiar Director, Bureau both whom site Although particular Ehly not had been Glen. many accidents, times. had there Hansen been George in- naturalist, Knudsen, who was parks Chief topography, re- timately had familiar Glen’s with a hazard 1969, slippery ported that needles created report along his upper He trail. said sections superior and immediate to Anderson’s had been sent circumstances, would have there these Hansen. Under reminding superiors his purpose no in Anderson been dangerous away step were but trails fall. park
Moreover, patently clear to visi- the hazard was upon rattlesnakes in the tors. Anderson did come quicksand in streambed or other or underbrush lurking danger superiors knew about. which none of his danger inescap- He the manifest which encountered every ably along path, clear to hiker which was well- superiors present in its condition known to his left to maintain and calculated decision them deliberate condition. the Glen in its natural dangers duty possessor of A land no warn has perfectly can rea- are obvious to users which which sonably appreciated. expected to be understood 480, Bahr, N.W.2d *29 Scheeler Wis.2d 394, Bahr, Prosser, supra, (1969); 61. In sec. Scheeler supra, 478, quoted approval the with from the Re- j: statement, 2d, 203, 2 Torts Comment sec. “ many are as those of fire and dangers, ‘There such
water, falling ordinary height, from a which under or of fully may reasonably expected under- be to of conditions be age appreciated and child an stood ” large.’ allowed at Harper James, Torts, 1489, 1490, Law sec. 27.13, example dangers, offers an obvious which warning slopes no given, need be the “stones England paths perils top New field.” The of the cliff along the Any Glen were far the more evident. hiker upper path falling. appreciate danger would the The plaintiffs in particularly the instant case were sensible of the risk. along during
As group gorge the hiked in the trail day, Schraufnagel the Dean explained had to them the geological Later, of the characteristics sheer cliff walls. Boyle slipped partway Norina had down western the slope gorge, catching of the tree, herself on a and had experience related group. the sunset, the Before Jane Boyle Cords and Norina had looked over into the cliff gorge you the imagine Jane Cords had said “Can falling?” you up if fell from “What here?” Both girls noticed cliff, how close the trail came Boyle Norina wrong was aware that if she walked the way, likely go edge. she was over the This evidence plaintiffs only shows that had appreciate reason to danger, they but appreciate did it. opinion of the court notion, seems to harbor advanced plaintiffs, particular topo- graphical configuration point at the Boyle’s of Norina fall constituted a “hidden trail hazard” or an “ominous trap.” human point At fall, of the passes the trail along immediately what was described aas “chute” or dropping “undercut” sharply edge gorge. to the of the darkness, Boyle Norina apparently slipped or stepped trail, off the down this chute and over the By precipice. day, slope of the plainly chute is adjacent visible from path. Jerry Rousseau, a mem- ber group, describing point, said here’s “[t] along a trail the side . here . right . trail is next [T]he edge to the gorge].” [of
561 distinguishes for- other Nothing this “undercut” Parfrey’s along is a trail. clifftop Glen mations the irregular geological phenomena, unique setting of why preserved. That it is plaintiffs it. is the knew or trap-like unusually is sinister undercut not The this Further, is no indication noteworthy. there Anderson, the attention ever attracted formation had any greater than at other hazard here was or that the gorge. rim of the places path follows where type visitor Rather, precisely the of hazard it was along trail, type hazard of anticipate would fully no There is plaintiffs conscious. which the dangers. duty to warn of such judgment of the trial court on this
I would reverse issue. DOCTRINE
RESCUE percent negligent court 40 The trial found Jane Cords negligent attempting the Henry percent in 60 and Sue during they majority this fell. The which descent adaptable to rule” now would fashion a “rescue negligence comparative doctrine.2 This the Wisconsin referring by which accomplished first authorities contributory negligence These recognize doctrine. contributory guilty hold that one authorities danger negligence exposing of a rescue himself to performed under circum- intervention was unless it rash or reckless or wanton stances which would make ordinarily judgment prudent person. accomplishes simply majority transition The changing the “rash or reckless or wanton” to words 2 jurisdictions existence of the rescue doctrine in other Chicago acknowledged Central Co. v. Wis. Trust & N.W.R. Brady Chicago (1939); Co., 536, 543, 287 N.W. 232 Wis. Co., (1954), 62 N.W.2d the doc & Wis. hut N.W.R. applied been trine has never court. *31 unreasonably They
“not unreasonable or carried out.” judge applying then in conclude the trial erred not the rule, and to rescue remands as reverses and issue. integration I do not in believe the rescue rule the negligence comparative the that Wisconsin doctrine is simple applicable nor do I believe it is to the facets majority appears opinion this case. It also the the emergency that the trial court the “confused” rule with the rule. I rescue do not so read decision. Before his rule, one can be entitled to the benefits it must of either person first be determined as that the was con- fact emergency engaged with an fronted or in rescue. court, In the instant case tried to the trial the court found, fact, Henry as a that Cords and were not en- gaged they in a rescue at the time their sustained injuries, and hence not to the entitled benefits of the rule, proceeded comparative rescue to determine the negligence my parties. opinion, of the evidence the supports by judge. this factual determination the trial
Webster’s Dictionary, ed., International 2nd defines “. . delivering rescue as: . deliverance or aid in from restraint, dangerThe violence or American Her- itage Dictionary save, danger it as: “To defines as from imprisonment.” refusing trial correct apply was to the Instead, rescue doctrine. the properly trial court con- girls’ sidered the attempting actions in descent, urgency situation, of the the interval between Norina Boyle’s fall attempted and the descent, the fact that Boyle being Norina attended, warnings was and the to descend, weighed determining factors whether each parties had exercised reasonable care under prevailing all of the circumstances.
The record shows that at of the attempted time descent, Boyle Norina had been found other members party being and was attended Tom Tibbits and up Jerry back Rousseau climbed Tom Nelson. Henry campsite instructed Cords Sue Jane Although he men- help. went for remain he there while aide Henry’s experience as a nurse’s tioned Sue needed, was might help Rousseau her if make useful stay by girls the fire emphasized that should up called they if Someone called needed. would be stay by fire. Cords to warned Jane below and Henry minutes, decided After ten or fifteen Sue disregard attempt and to descent these instructions that she The trial court found darkness. beverages;” signs ingestion “showing of alcoholic *32 “pretty Jane inebriated.” Tom said she Tibbits no, never “oh we’ll Cords, initial reaction was whose they Henry. accompany it,” Before to make decided girls Shortly thereafter, gone very far, fell. had both county sheriff’s office personnel from the rescue Sauk nearby park on arrived the scene. Devil’s Lake state trial amply supports the I that this evidence believe negligence. of court’s allocation injured Tibbits, If or Rousseau had been in Nelson arrange locate, for the their to assist and initial descent Boyle, appropriate factual situation an rescue Norina might presented applica- to consider well have been of the rule. tion rescue encourage policy law to rescue should be
The appropriate applied. and in case the rule should be This is not an instance the trial court should such on this affirmed issue. INFLATION majority it The holds that reversible to fail error possible plaintiff’s to inflation consider effect on present expenses. future medical award will Whether a purchasing defray power have sufficient to future medi- changes expenses depend subsequent cal price will on structure, return, rate of the discount rate available employed, an- relation of these and the one factors making calculation, other. difficult the trial this extrapolate court declined increase medical expenses years throughout preceding in the seven trial expected Jane Cords’ lifetime.
Although, points out, as the court courts in some other jurisdictions allowed the have fact finder to assume that persist, requiring will inflation I am of no aware decision assumption. Apparently majority an such concludes that inflation has become eternal and irreversible fact of life. economic There were who this some shared great prior depression belief and the and inter- taught mittent since that have recessions time us it is necessarily so. By reversing award, majority implicitly de- public termines efforts stem the tide inflation general, particular, to control medical costs in unsuccessful, will be and also determines Jane expenses Cords’ day will not some be assumed system of national health insurance. is a This matter conjecture. future, course, always conjec- crystal tural. ball, But no has and I no see speculation sound reason to substitute the of this court for that of a holding trial court. I would affirm the *33 the trial court on this issue. suggest
In conclusion, I by the result reached majority example is a classic of the familiar maxim poor hard make disturbing cases law. Most is the expansion liability of public of officers. The court’s holding goes far making toward the state an insurer against injuries all parks, state forests, and other perceive natural I can areas. no limit to sensible majority’s reasoning that can policy be no “[t]here of leaving it alone danger when such an obvious exists.” condi- natural studded with obvious are State lands Indeed, endanger unwary. it tions which could which natural curiosities often the concentration such acquisition at- and which area for makes an desirable sign grace every warning a now tracts visitors. Must tottering rock, jagged steep slope, tree? What floods, bears, frostbite, fires, contaminated lightning, imaginable every water, ice, hazard other thin outing involved On the careless outdoorsman? paused to a case, group climb member of the one danger he have warned of tree. Should been liability injuries for fall? If the avoid state legislature might every hazard, be these and other Holytz suggestion Mil- heed the well advised immunity.”3 waukee, supra, 40, and “reinstate HANLEY Justice I am authorized to state Mr. join in this HANSEN and Mr. ROBERT W. Justice dissent. 895.45(4), Stats., although applicable not the instant See. provides 182c, 1973,
case, was enacted ch. Laws sec. as follows: claimant, Timeliness, notice and limited “895.45 definition ability. any any entity “(4) person recoverable or for amount injuries any proceeding damages, death in action or civil or civil against employe officer or this section shall state under $100,000. punitive damages re- exceed shall allowed or No coverable in such action.” Also, excluding specifically some have enacted states statutes liability injuries resulting from natural causes conditions Code, (Deering, 1973); on state Cal. Gov’t lands. sec. 831.2 Utah Annot., 63-30-10(11) (1968). Code sec.