Clarence ERVIN, Addrienne Ervin, Dewayne Wells and Maxine Wells, Plaintiffs-Appellants, v. CITY OF KENOSHA, Defendant-Respondent.
No. 89-0909
Supreme Court
Argued October 30, 1990.—Decided January 23, 1991.
464 N.W.2d 654
(On certification from the court of appeals.)
For the plaintiffs-appellants there were briefs (in the court of appeals) by Adrian P. Schoone, Mark J. Leuck and Schoone, Ware & Fortune, S.C., Racine and oral argument by Mr. Leuck.
For the defendant-respondent there was a brief (in the court of appeals) by Robert I. Dumez, and O‘Connor & Willems, S.C., Kenosha and oral argument by Mr. Dumez.
Amicus Curiae was filed by James Schneider, Madison, for the League of Wisconsin Municipalities.
Amicus Curiae was filed by Thomas Armstrong and Quarles & Brady, Milwaukee, for Cities and Villages Mutual Insurance Company and Wisconsin Parks & Recreation Association.
The relevant facts follow: Two minors, Clarence Ervin III and Brian Wells, drowned on July 8, 1987, at a beach owned and operated by the City. The youths were in chest-high water at the south end of the beach near an unmarked, steep eight-foot drop-off. The drop-off was approximately ten to fifteen feet from the shore. The youths encountered the drop-off and went underwater. Unable to swim, the youths submerged and reemerged for several minutes. Several bystanders entered the water in an attempt to rescue the youths, after they saw the youths go underwater without reemerging.
The female lifeguard saw the two youths at the drop-off, but did not warn them of the danger, and there was no City policy requiring her to do so. Sometime after the youths went underwater she blew her whistle and the head lifeguard responded, reaching the area in approximately one minute. After two more minutes, he recovered Brian Wells and initiated cardiopulmonary resuscitation (CPR). He simultaneously gave CPR instructions to the off-duty lifeguard who had recovered Clarence Ervin III. Both youths were then taken to the hospital and later pronounced dead.
Several bystanders testified at a deposition that before they finally went underwater, the two youths had struggled in the water for approximately three to five minutes. The bystanders also testified they had gone into the water to try to rescue the youths before any lifeguard entered the water. According to one of these bystanders, the youths were underwater five minutes before they were discovered. She also stated that the female lifeguard had seen the youths struggling. Another bystander testified that the female lifeguard appeared to be panicked and confused during the rescue efforts.
The parents sued the City alleging, among other things, that the City was negligent in maintaining a hazardous condition and failing to warn of this condition, and in failing to properly train and instruct its lifeguards. The parents also alleged that the lifeguards were negligent in performing their duties and that the City was vicariously liable for this negligence. The circuit court granted the City‘s motion for summary judgment on the ground that the City was immune from liability under
The case is presently before this court on certification from the court of appeals pursuant to
The parents argue that
“The construction of a statute in relation to a given set of facts is a question of law.” Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673 (1985). We decide questions of law without deference to the circuit court‘s determination. Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). The test for determining whether a statute is ambiguous is whether the statute is capable of being understood by reasonably well-informed persons in two or more different senses. Wirth v. Ehly, 93 Wis. 2d 433, 441, 287 N.W.2d 140 (1980).
We conclude that the statute is clear on its face and capable of being understood only in one way: the City is immune from liability under
In LePoidevin, we drew a distinction between “active” negligence and “condition of the premises.” LePoidevin, 111 Wis. 2d at 122. We held that the landowner in LePoidevin was not immune from liability. Id. at 132. However, LePoidevin involved a case where a landowner had invited a social guest onto his property for recreational purposes. Id. at 121. We stated,
[the defendant] has not opened his land to the “public” generally nor has he given permission to one or more members of the “public” to use the land for recreational purposes. He opened his land to a social guest who was invited onto the land. Granting the protection afforded by
sec. 29.68 to a landowner who invites a friend of the family to the summer cottage as a guest to join the family in water sports does not foster the purpose ofsec. 29.68 to encourage landowners to make land and water areas available to the public for recreational use.
Id. at 131-32. Our situation is distinct in that the youths were not “social guests,” and, as will be discussed later, the legislature intended to protect landowners such as the City from liability under
We also addressed this distinction between active and passive negligence in Wirth, 93 Wis. 2d at 446. In Wirth, we clarified that this distinction did not apply to permitted entrants on land for recreational use. We granted the landowner and its agents immunity under
[t]he statute does not contemplate that the land subject to public recreational use shall remain static. Since the purpose of the statute was to open land for recreational use, it would be inconsistent for the statute to provide protection only if the owner or occupant does not perform any potentially negligent activities on the land.
Id. Our case, like Wirth, involved permitted entrants on land for recreational activities, not invited social guests as in LePoidevin.7
We stated in LePoidevin, “where there exists a common law doctrine relevant to the issue presented by the parties and the statute would change the common law, the legislative intent to change the common law must be clearly expressed.” LePoidevin, 111 Wis. 2d at 129-30. We further stated, “[b]ecause
[t]he legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. . . . [T]his legislation should be liberally construed in favor of property owners to protect them from liability. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.
1983 Wis. Act 418, sec. 1. It is clear from this language that
The legislature clearly expressed an intent to change conflicting common law when it enacted 1983 Wis. Act 418. See LePoidevin, 111 Wis. 2d at 130 (“[T]he legislative intent to change the common law must be clearly expressed.“). The clear legislative intent was to construe
We recognize that such a holding has negative consequences for unfortunate victims in cases such as this. However, the legislature has not provided recourse for the victims’ parents under the recreational use statute.
The intent of
Summary judgment is proper when there is no genuine issue as to any material fact. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis. 2d 349, 355, 286 N.W.2d 831 (1980). Any reasonable doubt as to the existence of such an issue must be resolved against the moving party (the City). Kraemer Bros., Inc. v. United States Fire Ins. Co., 89 Wis. 2d 555, 566, 278 N.W.2d 857 (1979). We have stated, “[i]f the trial court has determined the movant has proved to the court‘s satisfaction that there is no genuine issue of material fact as a matter of law, then the trial court should enter judgment.” Heck, 93 Wis. 2d at 356 (citing Wright v. Hasley, 86 Wis. 2d 572, 578-79, 273 N.W.2d 319 (1979)). Additionally, even if there are no disputed material facts, summary judgment is not appropriate if reasonable alternative inferences may be drawn from these facts: in such a situation, a trial is proper. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980). When the court reviews a party‘s motion for summary judgment, “[i]f the material presented on the motion is subject to conflicting interpretations or reasonable people might differ as to its significance, it would be improper to grant summary judgment.” Grams, 97 Wis. 2d at 339. Since we are called upon to review an order for summary judgment, we will apply the summary judgment standards set forth in
The parents contend that summary judgment was improper in this case because genuine issues of material fact exist concerning the conduct of the City and its lifeguards. The parents first argue that the active negligence of the City and its lifeguards was outside of the statute, and so there is a triable issue for the jury. Since we hold, as a matter of law, that the City cannot be liable for active negligence under
On summary judgment, the court does not decide issues of fact, it decides whether there is a genuine (or disputed) issue of fact. See Grams, 97 Wis. 2d at 338. While there may be disputed facts in this case (e.g., whether or not the lifeguard assigned to the second station was using the bathroom when he was supposed to be at his station), there are no disputed issues of material fact. Material facts are those facts which are material to the controlling legal issue. Huckstorf v. Vince L. Schneider Enters., 41 Wis. 2d 45, 49, 163 N.W.2d 190 (1968). The controlling legal issue here is whether the City‘s conduct was malicious. The parents primarily contend that maintaining a public beach with a hazardous drop-off without any warning of it is malicious. The City does not dispute that it maintained a hazardous condition without warning. The City does not disagree with the parents’ recital of the fundamental facts in this case. It does not argue that its conduct and that of its lifeguards was not negligent. Rather, it argues that its conduct and its lifeguards’ conduct was not malicious.
Summary judgment is appropriate in this case on the issue of maliciousness because the material facts in this case are undisputed, and only one reasonable inference can be drawn from these facts. See Grams, 97 Wis. 2d at 338. The City and the parents do not dispute what the City‘s conduct was in this case, but rather what are the legal implications of that conduct. The City provided statements that neither the City nor its lifeguards had any ill-will towards the victims.10 The parents do not contest this evidence, but rather argue that the facts themselves demonstrate a malicious intent, even without the element of ill-will or hatred. The parents argue that maintaining and failing to warn of a trap (the drop-off) was malicious conduct. The disputed issue involves the definition of “malicious,” and whether or not the City‘s conduct rises to that level, based upon the facts of the case.
While we find the legislative statement of immunity for the city in
[t]his court has not required proof of an intentional desire to injure, vex or annoy, or proof of malice, in order to sustain an award of punitive damages. “[M]alice or vindictiveness are not the sine qua non of punitive damages.” Kink v. Combs, 28 Wis. 2d 65, 79, 135 N.W.2d 789 (1965). It is sufficient if the injured party shows a reckless indifference to or disregard of the rights of others on the part of the wrongdoer.
Wangen, 97 Wis. 2d at 267. When defining malice for purposes of awarding punitive damages, therefore, this court has distinguished malice from reckless indifference or disregard.
The definition of “malicious,” as used in awarding punitive damages is an appropriate definition to use in defining “malicious” as it is used in
This definition is consistent with the dictionary definition of “malicious.” It is a well-recognized rule of statutory construction that nontechnical words and phrases are to be construed according to their common and ordinary usage. State ex rel. B‘nai B‘rith Found. v. Walworth County, 59 Wis. 2d 296, 307, 208 N.W.2d 113 (1973); see also Moua v. Northern States Power Co., 157 Wis. 2d 177, 189, 458 N.W.2d 836 (Ct. App. 1990). The ordinary and common meaning of a word may be established by definition of a recognized dictionary. Edelman v. State, 62 Wis. 2d 613, 620, 215 N.W.2d 386 (1974). The definition of “malicious” in Wis. JI—Civil 1707 (1990) is consistent with the dictionary definition of “malicious.” Black‘s Law Dictionary defines “malicious” as “[c]haracterized by, or involving, malice; having or done with, wicked, evil or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse or as a result of ill will.” Black‘s Law Dictionary 958 (6th ed. 1990).
We conclude that the conduct of the City in negligently hiring and failing to train the lifeguards, the conduct of the lifeguards in negligently giving rescue attempts, and the conduct of both the City and the lifeguards in maintaining and failing to warn of the unsafe drop-off did not rise to the level of “malicious” in this case. Although this conduct may have been negligent or in reckless disregard of the youths’ safety, there is no evidence that the deaths were the result of hatred, ill-will, a desire for revenge or inflicted under circumstances where insult or injury was intended. Under the facts presented in this case, the City must prevail as a matter of law on the issue of maliciousness because no reasonable view of the undisputed facts will support a finding of malicious conduct. We agree with the Moua court‘s statement that “[i]f an exception to immunity is desirable under circumstances where less than intent to injure is sufficient, it is up to the legislature and not this court to make this change.” Moua, 157 Wis. 2d at 190. The City is not liable to the parents under the malicious conduct exception of
By the Court.—The judgment and order of the circuit court of Kenosha county are affirmed.
The City placed a lifeguard on a public beach who had no training or experience. She had no training in first aid, CPR, or life-saving. She had not even been tested for her ability to swim. The majority concludes that as a matter of law the City‘s conduct was exempt from liability. The majority errs.
The facts in this case deserve further discussion. The deposition of the female lifeguard, who was nearest to the boys and observed them fall off the dropoff, demonstrates how poorly equipped she was to deal with this emergency. She had never worked at a pool or beach in any capacity before being hired by the City. She was hired after responding to a newspaper ad and was never tested for her ability to swim or save lives. She had never been trained in CPR. Her only relevant experience was a three credit swim class at the University of Wisconsin. The City of Kenosha provided her with a sheet that indicated the rules of the beach, but gave her no oral or written instructions as to how to protect the lives of swimmers in an emergency.
In addition, the affidavit of the plaintiff‘s investigator, Thomas Weiss, states that he had heard the head lifeguard explain that the female lifeguard had a phobia that fish or other living organisms would be following her in the water and that she did not like to be in any kind of water where she could not see where she was going or see the bottom of the water.
The City hired the female lifeguard without any basis for believing that she was qualified as a lifeguard. She was not qualified. When Clarence Ervin and Brian Wells waded towards the dropoff, she acted as an unqualified lifeguard would—by doing nothing. She saw the boys go under the water and still did not act immediately. The deposition of a witness, Mirtha Dulzaides, states that this lifeguard watched the boys going up and down in the water for a period of time before Dulzaides and two other bystanders finally went into the water to attempt to save the boys. Dulzaides estimated that the female lifeguard did not enter the water until the boys had been under water for two minutes.
By placing unqualified lifeguards on a public beach, the city created a trap for the unwary. The presence of the lifeguards created the perception of a safe condition that was not justified. In addition, the lifeguards’ presence may well have inhibited other swimmers from immediately responding to the emergency because they too expected the lifeguards to have been trained and knowledgeable in lifesaving procedure. In essence, the lifeguards were decoys that lured unwary swimmers and their parents into a false sense of security. Providing an unqualified lifeguard was as dangerous as providing boaters with a life jacket that does not float or installing smoke alarms that do not work.
The majority correctly notes that in punitive damages actions “malicious” conduct is often characterized by hatred, ill will, a desire for revenge, or an intentional infliction of insult or injury. See Wis. JI—Civil 1707 (1990). In other contexts, however, “malice” has been defined more broadly and the term may include actions made with “reckless disregard” for the rights of others. In Manz v. Klippel, 158 Wis. 557, 562 (1914), this court stated that malice in malicious prosecution cases could be established by “showing that the wrongful act complained of was done wantonly or recklessly. . . .” In Meyer v. Ewald, 66 Wis. 2d 168, 175, 224 N.W.2d 419 (1974), we stated that for plaintiffs to prove “malice” as that term is applied in malicious prosecution cases, it must be shown that:
‘the defendants acted with a wanton or willful disregard for the facts or law in any manner whatsoever that would evince any ill will or vindictiveness toward the plaintiff or in any manner from which ill will or vindictiveness could be inferred.’
(quoting Yolk v. Seefeldt, 35 Wis. 2d 271, 276, 151 N.W.2d 4 (1967)).
Black‘s Law Dictionary 956 (6th ed. 1990) provides many definitions of “malice,” including that it is “[a] condition of the mind showing a heart regardless of social duty and fatally bent on mischief.” Black‘s also states that “[m]alice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.” Id. at 956-57. “Maliciously” is defined as “[i]mports a wish to vex, annoy, or injure another, or an intent to do a wrongful act, and may consist in direct intention to injure, or in reckless disregard of another‘s rights.” Id. at 958. One of the stated definitions of “malicious” is “wrongful and done intentionally without just cause or excuse or as a result of ill will.” Id. at 958. See also Tinker v. Colwell, 193 U.S. 473, 485-86 (1904) (quoting Bromage v. Prosser, 4 Barn. & Cres. 247) (” ‘Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse . . . It equally works an injury, whether . . . meant to produce an injury or not.’ “)
Many other courts have also defined malice, etc. in ways that would raise a jury question in this case. ” ‘Malicious’ means in conscious disregard of one‘s duties or without just cause or excuse; it does not require ill-will or specific intent to do harm.” Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986). “[T]rial court‘s finding of ‘reckless, willful and wanton conduct’ was a finding of ‘willful and malicious’ conduct on the part of the defendant.” Breeds v. McKinney, 171 Ohio St. 336, 170 N.E.2d 850, 853 (1960). “Malice, however, may consist of a state of mind determined to perform an act with reckless or wanton disregard of or indifference to the rights of others.” United States v. Vollweiler, 229 F. Supp. 558, 561 (N.D. Cal. 1964). “[M]alicious connotes something more than mere negligence. It has been variously defined as: the intentional commission of a tortious act; the willful and reckless disregard of another‘s rights; and the wanton and deliberate commission of a wrongful act.” Tcherepnin v. Franz, 393 F. Supp. 1197, 1208-09 (N.D. Ill. 1975).
The above discussion clearly illustrates the ambiguities of the term “malicious.” If the language of a statute is ambiguous, we examine the scope, history, context, subject matter, and object of the statute to discern legislative intent. State v. Pham, 137 Wis. 2d 31, 34, 403 N.W.2d 35 (1987). Furthermore, we must interpret a statute in such a way as to avoid an absurd or unreasonable result. Id.
The language of the recreational use statute‘s predecessor statute,
Defining “malicious” to include acts done with reckless disregard for the safety of others would do no harm to the purpose of the recreational use statute. As the majority emphasizes, the legislature‘s purpose in creating the recreational use statute was “to limit the liability of property owners toward others who use their property for recreational activities . .” 1983 Wis. Act 418, sec. 1. Under any definition of malicious the statute provides extraordinary protection to the owners of recreational property. In exchange for the recreational use of their property, the legislature has granted owners immunity from liability for even serious acts of negligence. The City has virtually no obligation under the statute to ensure the public‘s safety. No public policy, however, supports allowing owners to actively deceive the public. It is unreasonable to believe the legislature intended to grant owners a license to misrepresent the safety of their property or facilities to the public by engaging in conduct that is the equivalent of setting a trap.
The term “malicious,” as used in the recreational use statute, should be defined by this court to include conduct done in reckless disregard of the public‘s safety. It should also encompass conduct which suggests ill-will or from which ill-will could be inferred, without regard to the defendant‘s actual state of mind. Both of these definitions of “malicious” are consistent with the purpose of the statute. By giving the term “malicious” this broader definition we would also protect the public‘s safety from unjustifiable activity of recreational property owners and their employees.
The City of Kenosha and the amicus curiae supporting the City‘s position argue that to allow the potential for liability when lifeguards are gratuitously provided as a “safety measure” would deter owners from providing safety measures or additional facilities for recreational property users. “Safety measures,” such as the lifeguards provided at Pennoyer Beach, which so egregiously betray the expectations of the public, are about as welcome as a Trojan horse. Thanks, but no thanks. If an owner of recreational property cannot provide lifeguards that are trained in lifesaving, then such “safety measure” should not be provided at all. To lull parents into believing that their children are protected by trained lifeguards is worse than not providing lifeguards at all. If there were no lifeguards present, then people using the beach, including parents who allow their children to use the beach, would at least be alert to the actual condition of the beach: it was a beach without lifeguards.
I conclude that the actions of the City of Kenosha could well be “malicious” and present a question that should be decided by the jury. I dissent.
Notes
NO DUTY; IMMUNITY FROM LIABILITY. (a) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner owes to any person who enters the owner‘s property to engage in a recreational activity:
- A duty to keep the property safe for recreational activities.
- A duty to inspect the property, except as provided under
s. 23.115(2) .- A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no 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 or for any injury resulting from an attack by a wild animal.
LIABILITY; PROPERTY OF GOVERNMENTAL BODIES OTHER THAN THIS STATE. Subsection (2) does not limit the liability of a governmental body other than this state or any of its agencies or of an officer, employe or agent of such a governmental body for either of the following:
(a) An injury that occurs on property of which a governmental body is the owner at any event for which the owner charges an admission fee for spectators.
(b) Any injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employe or agent of a governmental body knew, which occurs on property designated by the governmental body for recreational activities.
(d) “Owner” means either of the following: 1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.
“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, but is not limited to, . . . water sports . . . .
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.