Estate of Drab v. Anderson, 422 N.W.2d 144

Estate of Drab v. Anderson

422 N.W.2d 144

Wis. Ct. App.

1988

Check Treatment

MYSE, J.

Thе estate of Charles P. Drab appeals a civil judgment finding that Edward Drab, as personal representative of the estate, intentionally harassed Mildred Anderson, sec. 947.013, Stats. The dispositive issue on appeal is whether the violation of seс. 947.013, the harassment statute, creates a civil cause of action. Because we conclude that sec. 947.013 is not a safety statute and does not grant a private right of action for its violation, we reverse the judgment and remand with directiоns to dismiss.

This case arose out of a probate proceeding. Throughout the five-year probate, there had bеen a dispute between Edward Drab and Mildred Anderson concerning whether certain assets in Anderson’s pos *570 session properly belonged to the estate. A jury trial resulted from Anderson’s counterclaim alleging that Edward Drab had intentionally harassed her causing severe emotionál distress. The trial court found the evidence was insufficient to submit the claimed intentional infliction оf emotional distress instruction to the jury. However, the court determined that there was a cause of action for harassment pursuant to sec. 947.013. 1 The jury found that Edward Drab had intentionally harassed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Anderson and awarded her compensatory damages.

On appeal, the estate argues that sec. 947.013 is not a safety statute, and therefore a violation of this statutе does not create a civil cause of action. The interpretation of a statute presents a question оf law that we decide without deference to the trials court’s conclusion. Bonn v. Haubrich, 123 Wis. 2d 168, 171-72, 366 N.W.2d 503, 505 (Ct. App. 1985).

A safety statute is a legislative enactmеnt intended to protect a class of persons from a particular harm. Walker v. Bignell, 100 Wis. 2d 256, 268, 301 N.W.2d 447, 454 (1981); Restatement (Second) of Torts, secs. 286 and 288 (1965). If a statute is a safety statute, a civil cause of action is created and a violation of that *571 statute is negligence per se. Walker, 100 Wis. 2d at 268, 301 N.W.2d at 454. However, not every criminal statute is a safety statute. See Olson v. Ratzel, 89 Wis. 2d 227, 232-45, 278 N.W.2d 238, 242-45 (Ct. App. 1979). In Olson, we stated:

The Restatemеnt principles restrict the applicability of criminal standards of conduct to civil liability to the particular interest оf the protected class as against a particular hazard and kind of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍harm. Where a statute’s purpose is to secure a right to individuals only as members of the public, the Restatement principles do not require adoption of the statutory duty in negligence actions.

Id. at 242, 278 N.W.2d at 245.

We conclude that the legislature did not intend to protect a specific class of persons from harassment. Neither the statute’s history nor its language expresses an intention to protect a particulаr class of people. The statute’s inherent purpose "was to extend to the individual the protections long afforded to the general public under disorderly conduct or breach of peace statutes.” 2 Bachowski, 139 Wis. 2d at 408-09, 407 N.W.2d at 538. While the purpose is to protect members of the general public, the statute fails to *572 identify any "class” for whom the legislature intended to protect from harassment.

Furthermore, sec. 947.013 does not articulate an intention to change the common law by creаting civil ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍liability. The common-law tort for intentional infliction of emotional distress is well established. Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963). To recover damages, thе plaintiff must establish that the purpose of the conduct was to cause emotional distress, that the conduct was extrеme and outrageous, that it was the cause in fact of the plaintiffs injury, and that the plaintiff suffered an extreme disabling emotional response. Id. at 359-61, 124 N.W.2d at 318. Under sec. 947.013, if used as the basis for a civil claim, the plaintiff need only establish that the defendant intended to harass or intimidate and that the defendant engaged in a course of conduct or repeatedly committed aсts that were harassing or intimidating, and that served no legitimate purpose. The plaintiff need not establish that the conduct was extreme and outrageous, that it was the cause in fact of the plaintiffs injury, and that the plaintiff suffered from an extreme disаbling emotional response.

Therefore, by recognizing sec. 947.013 as creating a civil cause of action, we would mоdify the common-law tort for intentional infliction of emotional distress. We will not construe a statute as changing the commоn law unless the statute "clearly and beyond any reasonable doubt expresses such a purpose by language that is clear, unambiguous and peremptory.” Olson, 89 Wis. 2d at 239-40, 278 N.W.2d at 244 (quoting Grube v. Moths, 56 Wis. 2d 424, 437, 202 N.W.2d 261, 268 (1972)).

*573 Section 947.013 does not clearly express such a purpose. The statute’s language is devoid of any indication that a violation of this statute creates a civil cause of action. In addition, the lеgislature has created sec. 813.125, Stats., which sets ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍forth procedures for obtaining civil injunctive relief to avoid the type оf behavior made unlawful by sec. 947.013. If the legislature had intended to create civil liability under sec. 947.013, it could have done so undеr either of these statutes.

Accordingly, we conclude that sec. 947.013 is not a safety statute and does not grant a privatе right of action for its violation. We reverse the judgment and remand with directions to dismiss.

By the Court — Judgment reversed and cause remanded with directions.

Notes

Section 947.013 provides:

Harassment. (1) Whoever, with intent to harass or intimidаte another person, does any of the following is subject to a Class B forfeiture:

(a) Strikes, shoves, kicks or otherwise subjeсts the person to physical contact or attempts or threatens to do the same.

(b) Engages in a course of conduct or repeatedly commits acts which harass ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or intimidate the person and which serve no legitimate purpоse.

(2) This section does not prohibit any person from participating in lawful conduct in labor disputes under s. 103.53.

Although, this purpose was not expressly articulated by the Wisconsin drafters, an examination of the history of sec. 947.013 indicates that sec. 947.013 was based substantially on a New York statute, which in turn was based on sec. 250.4 of the American Law Institute’s Model Penal Code. Bachowski v. Salamone, 139 Wis. 2d 397, 408-09, 407 N.W.2d 533, 538 (1987). The commеntary accompanying the New York statute and the model penal code both articulated that the legislature’s рurpose "was to extend to the individual the protections long afforded to the general public under disorderly conduct or breach of peace statutes.” Id.