*1 Roylan Estate of Hoskins, Vivian Robert Hoskins, Scoptur, J. as Guard Sims, Paul D. Marsha Sims, Roylan II and Marshall Sims, ian ad Litem Hooper and Delores of James Sims, Estate † Plaintiffs-Appellants, Hooper, v. Municipal In Mutual County, Wisconsin
Dodge Company, Dam and Co of Beaver surance Company, Casualty FDB Selec Insurance lumbia Company Carolina, of South Insurance tive Defendants-Respondents. Appeals
Court 12, 2001. Decided September 01-0834. Submitted No. briefs January App 2002 WI 213.) (Also in 642 N.W.2d reported † to review filed. Petition *7 plaintiffs-appellants, the cause was
On behalf of the Gagliardi, B. of Paul Theodore submitted on briefs Gagliardi, Joseph Cardamone, Kmiec, III of III and M. O'Brien, & Salem. Nelson defendants-respondents, the cause
On behalf of the of the briefs of Robert E. Storck was submitted on Storck, Madden, Madison and Bruce A. Schnabl & Whipple Coyne, Schultz, Niess, N. Schultz and Laura Bauer, S.C., Madison. Becker & Vergeront, Deininger PJ., Lundsten, JJ. Before DEININGER, J. Robert Hoskins and sev- judgment appeal dismissing their action eral others1 against Dodge County City Dam.
and the Beaver concluding Hoskins claims the trial court erred for the were immune from suit accordingly, granting complained de- of, actions summary judgment. on fense motions for We conclude de novo review that defendants are entitled to summary judgment. Accordingly, we affirm.
BACKGROUND appeal, among other 2. Hoskins claims *8 things, genuine there are of material fact issues wife, Vivian,
1 In addition to Hoskins his estates Roylan Hooper plaintiffs- and next of kin of Sims and James are occupants The three men were of the boat appellants. whose litigation. this refer to all misfortune underlies We will collectively, as plaintiffs-appellants, Hoskins. preclude summary judgment. note, however, We argued
that he in the trial court that he should be summary judgment awarded on the issue of causal negligence, thereby implying no material facts were in dispute. following background The facts are taken from parties' summary judgment. submissions on In the analysis follows, which we will discuss in more detail appellate Hoskins's claim that a material factual dis- pute precludes summary judgment City in favor of the County. and the evening May
¶ rainy, windy 3. The 4,1999, was stormy Shortly in the Beaver Dam area. before midnight, Krueger stepped Debra and Michael out of adjacent their home Dam Beaver Lake to check the they they weather. so, When did observed a boat con- taining people, apparently having three some motor vicinity neighbor's pier. difficulties of a The Kruegers "guys,"'asking they called out to the if needed any help. Kruegers The also turned on their waterfront lights ultimately telephoned neighbor, their Vernon Block, to tell them what had seen. Krueger occupants 4. Debra saw one of the though they 'okay.'"
the boat wave "as The occu- pants according of the boat had started their motor, but Kruegers, running poorly." to the "it seemed to be apparently stopped motor once and then restarted. In relaying Kruegers Block, information to indi- departed cated that had seen the now boat collide pier. with Block's n inspect pier, 5. Block arose and went to his observing damage, presum- that it had incurred some ably aas result of the collision with the boat that his neighbors reported had observed. Block called 911 and Depart- the incident to the of Beaver Dam Police dispatcher. transcript ment The 911 call indicates that *9 just midnight dispatcher past "some- at Block told the my pier." my body pier Block also and smashed ran into they "they lake, looked must be out on stated that having people [is], if there . .. and trouble like the they got they're gonna it, make not a hole their boat you know." dispatcher Dam verified The of Beaver city incident outside of the the address of the was
that accordingly, passed information to the limits, and Department. Dodge The information Sheriffs subject relayed in and said a that "a male called was pier if off, and took unknown ran into his boat damage." anybody's if the has The hurt, unknown boat Department dispatched Deputy Dodge County Sheriffs investigate past at half twelve. Moul to about Steven Block, scene and interviewed Moul traveled Krueger, Krueger. During deposi- and Michael Debra Krueger told him the Moul testified that Mrs. tion, following: they that started the boat started
She stated heard. She asked stopped leave. The motor then she police and she then again if wanted to call again persons and one of the up heard the boat start everything okay and left and the boat waved as if sight. of her out Krueger did not seem
Moul further testified Mrs. overly safety occupants, of the boat concerned about departed. had after waved dispute occupant no that an of the 7. There is Krueger, but did in fact wave to Debra Hoskins boat reply Deputy Moul did not learn in his brief that asserts surviving occu- that fact until sometime later. pant sole depo- Hoskins, in his boat, Robert testified experienced difficulties, that it the boat sition pier, "[t]he lady collided with the Block and that come lights working out and cut her on and we were still *10 trying get the motor started." Hoskins stated that after the motor had started, been "I was the one that thought waved at them to let them know that we we it," could make and that the an wave was indication that occupants right the boat and would "be all now." Kruegers explicitly ¶ 8. The mentioned the "wave though they as were 'OK'" in their statement to a (DNR) Department investigator. of Natural Resources Later Dodge the same statement, indicated that "the Dept.... responded Co. Sheriffs' about hour relayed seeing later; we what we recalled and he took a report." police report Officer Moul did not record in his Krueger that Debra had informed him about a boat occupant waving portion "OK" to her. The relevant report Moul's reads as follows: They subject then a male yelling heard for help numer- ous times. Debra states she them asked if she should call point subject 911. At this a started the boat up and went towards the north from their residence. The boat a went short distance then stopped. Again the motor yelling subjects she was at the in the boat if should police. They call the again then started the up boat headed, again, it says towards the north. Debra that the motor it running right. sounded like was not lights The were not on moving. the boat when the boat was Debra says that she watched the boat until it out of was her sight in the dark. Debra believed that the boat struck Vernon pier, neighbor, Block's which is her but then she said she wasn't sure because she did not hear anything of that sort. It should be windy during noted that it was this time. investigating deputy
¶ 9. The observed some damage pier, by up checking to the and followed boat landings driving any around the area to see if boats deputy up investi- pulled on shore. While
had County dispatch Dodge contacted a gating scene, at the dispatcher told the warden warden. DNR going "kept piers, the boat and that struck two boat had They piers pretty off. much tore are the end but heavily. damaged pretty gotta And be said the boat's thing sinking just we[']re or some- worried about "[s]o inquired dispatcher thing happening do to it." The you out there Dam rescue boat to send Beaver want us responded, "I the warden or?" To which to look department it to treat He further advised wouldn't." suggested "regular that the run," and he hit and like landings in the area. check the boat officer should following after- At three o'clock about floating in Hoskins Robert noon, a boater discovered *11 colliding point after with Lake. At some Beaver Dam heavy swamped pier, had in the Block's boat Vernon occupants three lake, on the and the and waves wind clung swamped twelve hours. vessel for about to the ultimately Hoskins sur- drowned, and of them Two vived.
¶ and the estates survivors 11. Hoskins occupants action commenced this of the boat other two Dodge against Dam, of Beaver negligent alleging re- with the defendants "were respect spect their rescue," and "with to a search plaintiffs duty investigate upon notice that the summary judg- danger." moved for in Both defendants immunity asserting Wis. under ment, their (1999-2000).2 893.80(4) granted § The court Stat. 2 are to the All references to the Wisconsin Statutes otherwise noted. 1999-2000 version unless subsequently judgment defense motions and entered dismissing against favor of both defendants, all claims appeals. them. Hoskins
ANALYSIS summary judgment 12. We review an order for owing de novo, no deference to the trial court. Waters v. United Co., States Fid. & Guar. 275, Wis. 2d 278, (Ct. 1985). App. reviewing 369 N.W2d 755 In a motion summary judgment, for arewe to use the same meth odology "summary judgment as the trial court, and is appropriate genuine when there is no issue of material moving party judgment fact and the is entitled to as a Episcopal matter of law." M&I First Nat'l Bank v. Mgmt., Inc., Homes 195 Wis. 2d 496-97, 536 (Ct. 802.08(2). 1995); App. § N.W.2d 175 Wis. Stat. We granting summary judgment will reverse decision if incorrectly legal the trial court decided issues or if dispute. Coopman material facts are in v. State Farm Fire & Co., Cas. 548, 555, Wis. 2d 508 N.W.2d610 (Ct. 1993). App. arguments challenge first two Hoskins's legal regarding municipal trial court's conclusions entity's immunity liability from for the acts of its employees agents. immunity question or "municipal" "governmental" sometimes referred to as or immunity, "public immunity, officer" or even "discretion- *12 ary immunity, act" and it has been codified as follows:3
3 State employees officers and enjoy immunity also from liability for acts performed within the scope of their office or employment. Janesville, Linville City 571, 583, v. 174 Wis. 2d of (Ct. 1993), 497 N.W.2d App. 705, 465 affirmed, 184 Wis. 2d 516 (1994). scope N.W.2d 427 The of immunity state officer "differs
289 any fire brought against volunteer may be No suit 213, political corporation, organized under ch. company any agency thereof for the or subdivision governmental officers, officials, agents or its intentional torts of brought against such any be may nor suit employees fire agency or volunteer or corporation, subdivision officers, officials, agents or against company or its legislative, the exercise of for acts done in employees functions. judicial quasi-judicial or quasi-legislative, 893.80(4). § Stat. Wis. phrase, of in the exercise The "acts done judicial quasi-judicial
legislative, quasi-legislative,
or
encompass
relatively
might appear
functions,"
decision-making.
range
official actions
narrow
of
being
phrase
defined the
as
law, however, has
Case
synonymous
"discretionary"
acts. Linville v.
with
(Ct.
584,
465
571,
2d
497 N.W.2d
Janesville, 174 Wis.
of
1993),
App.
705,
2d
516
427
184 Wis.
N.W.2d
affirmed,
(1994).
fairly
supreme
held that a
broad
court has
by municipal employees,
range of acts and decisions
involving
especially
enforcement, are im
those
law
Cavanaugh Andrade,
v.
mune from suit. See Estate (1996) (a police
290, 315,
2d
[T]he court of appeals .. .
analysis
described the .
..
of
danger"
"known
circumstances as a test
to be
applied
liability
to find
even
an
where
act is the result
public
of a
discretion, [however,]
officer's
an interpre-
tation . . . more consistent with the doctrine of immu-
nity is that a public
duty
officer's
is ministerial where a
danger is known and of such quality that
public
"
duty
officer's
'absolute,
to act becomes
certain and
imperative ....'"
otherwise,
... Stated
where public
duty
officer's
is not generally prescribed
by
and defined
time, mode,
law in
occasion,
such
"nothing
judgment
remains
discretion,"
for
or
circumstances
may give rise to such a
duty
certain
where..
. the
4Although
supreme
court in Barillari discussed "excep
general
tions ...
to this
rule of immunity," Barillari
City
v.
of
Milwaukee,
247, 257,
194 Wis. 2d
(1995),
nature
public
officer has no
officer and is
such force
*14
not
to act.
discretion
701,
Olson,
715,
2d
C.L. v. 143 Wis. (citations omitted). (1988) and footnote duty allegedly points ¶ to 16. Hoskins no by Dodge County employees either or the of breached night May City 4-5, 1999, of that of Beaver Dam on the impera- "absolute, characterized certain and could be as involving merely performance specific tive, the of a task imposes, prescribes time, the the law and defines when performance such cer- mode and occasion for its with judgment tainty nothing remains for or discre- that points is, to Id. at 711-12. That Hoskins no tion." precise or other that dictates the actions statute law by dispatchers personnel law be taken or enforcement provided by when receive information such as that May Kruegers just midnight 5, and the after Block Thus, does not assert the existence of a Hoskins duty supreme ministerial the like the one court ac- knowledged Andrade, where the court determined City duty "has a that the Milwaukee ministerial policy high-speed for which have written chases severity offense," includes consideration of the required as 346.03(6). § Andrade, under Wis. Stat. 2d at Wis. 300-01. argument given that, 17. Rather, Hoskins's is reported City's dispatcher, Block
what to the what Deputy Kruegers Moul, and the Block told both present of a and the became aware "known danger time, of such force that the mode and occasion performance certainty for nothing evident with such that judgment
remains for the exercise of disagree. 2d at Olson, discretion." 143 Wis. 717. We 18. As far the City as and County dispatchers concerned, were conclude we first that Block's 911 call did not communicate of a presence "known, present danger." Block's to the report City dispatcher was con- they looked like ditional be ("they lake, must out on the people were trouble having ¿/there is, . . . and a hole in their got they're boat not make gonna it, you added)). did not know" Block (emphasis report boat was or that its were sinking occupants incapaci- or best, tated overboard. At the information reported considered dispatch, light most favorable to Hosk- ins, was such as to raise the that a possibility boat on might Beaver Dam Lake be in some type danger. Thus, dispatchers not confronted with a danger that "known and of such *15 quality the to public 'absolute, officer's act duty becomes certain and imperative,'" danger a that "compelling to the known officer is of such that the force public (citations officer has no discretion not to act." Id. at 715 omitted). and footnote 19. Even if we were to that what
¶ conclude Block known, communicated via his 911 call a constituted danger, we would not hold present necessarily that the had forfeited claim to dispatchers any for immunity in their actions dispatcher Neither failed to response. See Lodl v. on the act information provided. Progressive Ins. Northern Co., 3, 17, 2001 WI 240 App granted, review 2d 652, 601, Wis. 625 N.W.2d 2001 WI 2001) (No. 88, 246 8, Wis. 2d 165, (May N.W.2d 219 00-0221) when a "known (noting immunity on present danger" alleged may turn whether law enforcement "actually exercise discretion" or personnel The "simply City's dispatcher [do] nothing"). promptly relayed report County Block's 911 to the Sheriffs Dodge County promptly
Department,
dis-
and the
in turn
investigate. Additionally,
patched
deputy
the
a
to
County
personnel
for advice whether
contacted DNR
request
search.
to
a waterborne
dispatchers
in
case
this
actions
sharp
of
in
with those
the dis-
thus stand
contrast
County,
patcher
2dWis.
in Domino v. Walworth
(Ct.
1984),
App.
where
con-
we
¶ a also reversed 21. We granted concluding municipality Lodi, in favor of in a
6 (1977), Anderson, 2d N.W.2d Cords v. 80 Wis. 259 672 in regarding present is the case "known and seminal Wisconsin There, danger." park manager existing dangerous a knew anof anything Id. at condition and "failed to do about it." 541.
294 police dispatched a that officer to direct traffic at an fight inoperative during intersection whose traffic a may storm, have act Lodi, "failedto at the intersection." App summary judgment ¶ WI at 2001 3 1. The record on contradictory regarding contained accounts whether the actively attempted officer to direct traffic at the intersec- simply by or tion, stood and watched. Id. at 15-17. dispute regarding Here, there is no what County dispatchers response call; did in to Block's 911 dispute over more, is what in view, Hoskins's proposi- should have done. does Lodi not stand for the municipal immunity tion that unavailable whenever alleges inadequate response by emergency an claim personnel dangerous holding to a situation. Rather, our summary judgment in Lodi was that if the record support possible finding emergency indicates for a that personnel nothing," summary judgment may "did not be granted municipal immunity in favor actors on an 893.80(4). § claim under Wxs. Stat. Id. at ¶ 22. nextWe consider whether the information by Deputy investigate obtained when went Moul he possibly equivocal report being elevated the of a boat in stormy danger lake, distress to a that was "com- pelling [was] known the officer and of such force that" Moul had "no Olson, discretion not act." 143 (citations omitted). 2d at Wis. and footnote given facts Linville bear resemblance, some municipal emergency personnel dispatched also were persons ultimately case two drowned. We emergency responders concluded in Linville that immunity not entitled to when failed to act promptly commencing rescue efforts on behalf two persons trapped submerged Linville, inside a vehicle. 2d at A shift Wis. 587-88. commander and several paramedics scene, had arrived at the that a learned van *17 submerged pond two of a with its
had occupants into the waters nothing they
trapped to inside, "did but twenty occupant] [an after minutes their for rescue paramedic concluded that "the Id. at 586. We arrival." life-threatening danger, present a such as drown- at a duty attempt ing, promptly to a ministerial has summary judgment in the rescue," and we reversed paramedics' Id. at 587-88. favor. tragic Although in outcome Linville
¶ 23. underlying regrettably present case, the similar to the readily distinguishable from those now before are facts persons question in us. no Linville that There was peril, to and that immediate action then and there imperative. Here, the information effect a rescue was investigating deputy at the scene communicated to the ambiguous report at as the initial 911 of the call, least as anything, perhaps if than it was less ominous Kruegers report. learned from the Block's initial Moul experienced had motor troubles and that the boat some departed pier, it then on collided with Block's but that occupants power had its own after one boat's they Krueger to to indicate were "O.K."7 waved Debra squarely ¶ 24. come Linville hold- To within our ing, Deputy Moul the witnesses would have had tell gone person that a had overboard and was then needing water, there be rescued. informa- conveyed many steps tion removed from to Moul was genuine is a We consider below Hoskins's claim there dispute summary judgment in the record as to whether Deputy an Kruegers occupant informed Moul that waved "O.K." or, maintains, night incident, on the as the dissent say Kruegers whether differences between what the told as he claims told him deputy opposed preclude what judgment County. for the summary dire circumstance. The mere fact that the boat occupants, restarting motor, after their had chosen to *18 landing motor off across the lake of it instead at the Krueger piers, immediately Block or hand, which at notwithstanding Kruegers' indicates that Block's or the occupants perceive fears, the boat did not themselves to danger. provided inbe conclude We that information Deputy present compelling to did not a Moul known and danger, duty personnel of force such that to his summon equipment and for an immediate waterborne rescue was imperative. absolute, and certain The circumstances deputy were such that the was entitled to exercise his forego discretion to immediate search and efforts, rescue up by checking to and follow instead the shoreline and landings any signs boat in the area for of the boat in question. Olson, See 2d at Wis. 715.
¶ 25. We next consider of Hoskins's claim a mate dispute preclude summary rial factual which would judgment County City. for the and the like the We, trial prohibited deciding court, are from of issues fact and only Coop must decide whether a factual issue exists. man, 2d at 555. Wis. Although pages
¶ 26. devotes Hoskins several of opening heading his to a summary entitled, brief "The trial court granting judgment genuine in erred as a issue points existed," material Instead, of fact he to none. he argues really any in this section "there cannot be question presented that the situation that itself was a compelling danger," disputed a and known which is legal disputed not a contends, conclusion fact. He also nothing "Deputy alternative," "in the Moul did regard danger," to known but that also not a is dispute of but a In fact characterization of the facts. nothing opening points in his brief
short, Hoskins rely. dispute places in the facts on which we which asserting dispute heading under the Also he submitted fact, material Hoskins cites two affidavits summary judg- opposition for motions defense or defendants failed to rebut ment, he claims the which is from a "law enforcement refute. first affidavit expert," opined: who May 4 & that existed on
[T]he facts circumstances thought required 1999 at Beaver Dam Lake... no regard emergency procedure process with handling by Dodge enforcement officers for law duty Beaver This does not and the Dam. require the exercise of discretion in effect simply procedures act to standard ministerial follow deputy of a sheriff like or similar circum- expected under *19 stances. opined expert the also that and officers negligent handling in their situation. Simi-
larly, "police opined, expert" a in science communications very language, response similar that a certain re- quired thought" by City or "without hesitation County dispatchers; duty require their "does the that not of in is a to exercise discretion and effect ministerial act expected simply procedures of a follow standard 911 dispatcher"; dispatchers, had too, and that the been negligent. expert opinions, however, do cre- These not summary judgment dispute precludes
ate a factual that 893.80(4). § immunity on the issue of under Wis. Stat. opinions experts the First, extent that the rendered performed municipal had that the various requisite actors below care, of standards those "facts"are not material municipal of a whether the defendants determination
298 supreme axe nonetheless immune suit. from As the explained: court has jury
Just
a
can
that
because
find
certain conduct was
negligent
not transform that
does
conduct into breach
duty
Indeed,
of a
begin
ministerial
....
we
our review
of this case
the assumption
negligence
on
exists
here;
otherwise,
if it were
[the defendants] would not
protection
need to seek
immunity.
the
of
Kimps Hill,
1,
v.
200
11-12,
Wis. 2d
299 Kruegers Deputy of the "O.K. wave" informed Moul responding to the after he interviewed them when scene. by agree the that account 30. We with Hoskins significant regarding Kruegers the "O.K. wave"
the during only Deputy of it his if informed Moul investigation, given he that he testified that initial judgment forming no that relied on account in his that life-threatening emergency ac- then existed. alsoWe knowledge in Moul's the account is not contained that dispatchers report, further, of the that one written deposition may that have learned at a she testified Moul, time. how- "O.K. wave" at some later about the deposition his ever, in both an and at stated affidavit night. Krueger reported him fact to that that Debra the affidavit, in Debra's Moul's account is not contradicted Kruegers gave the to the DNR nor investigator.9 the statement Deputy testimony Thus, he Moul's that by Kruegers when of the "O.K.wave" was informed in the first stands unrefuted he interviewed them record. identify any disputed material
concluding that Hoskins failed to "general for opening brief. One of the reasons our facts his addressing arguments in a brief is reply rule" of not first raised make deprives respondent opportunity it countering arguments, as the briefs in this case demonstrate. n.1, State, 199 544 Nat'l Bank v. Wis. 2d See Baraboo (Ct. 1996). App. N.W.2d 909 affidavit, In Debra that she communicated indicates safety occupants Deputy of the her concerns about the boat Moul, him that one men deny telling but does not also she In their departed pier before the boat area. waved "O.K." Kruegers warden, the affirm that Debra "saw statement to the thought 'OK' and were people one of the wave as taking off," they "relayed seeing what we recalled deputy] report." took a [the *21 pointed
¶ 31. We
that
conclude
Hoskins has
to no
disputes
summary
material
fact that would render
judgment
inappropriate on the
issue whether the
and
are immune from suit for the actions
employees
night
question.
of them
on the
The dis-
correctly
may indepen-
sent, however,
notes that we
dently conclude from our de novo review of the sum-
mary judgment
record that
are
material
facts
dispute,
parties
even if the
have not identified the
disputed
Family
facts. See
v.
Grotelueschen American
(1992)
Co.,
437, 462,
Ins.
Wis. 2d
n Krueger's by In affidavit, Debra submitted seeing Hoskins, Debra states that before the boat she caps observed that there were "white on the lake with waves," three to four foot and that the waves "were crashing by wall over sea five six feet onto the grass, very part, which was unusual." For his Moul acknowledged "windy raining that on it was and scene, off' when he at arrived that there were strong storms, "somewhat" winds that lake "rough" night. He also testified that the waves "pretty high" "crashing against were and that dispute the seawall." We conclude that there is no if a adverse, and that the lake were conditions on badly damaged lake, its boat were or disabled occupants *22 arguably endangered. be would Krueger goes in her to on affidavit 33. Debra calling help, that a voice for saw relate that she heard pier damaged, in a and that three men were Block's was Krueger pier. drifting fur- She states toward the boat lights the her turned on dock ther that after husband procured spotlight, men one of the in the boat and didn't motor start "but it and she heard the waved right." avers: She then sound extremely safety of men I was concerned for the these they stopped in The motor as we knew were trouble. any lights again. and We couldn't see started running, the motor was it never boat. Even when right. sounded deputy of her conversation with the
Debra's account response he to Block's 911 call is as after arrived follows: hit Mr. deputy pier
I told the that the boat had Block's help yelling and the men had been for from the that I deputy thought I the boat was boat. told I having right. motor trouble because it didn't sound stressing deputy to that the men the boat kept I make in trouble and that didn't think would were I emphasizing Mike and They kept it. weren't OK. safety men in Wewere concerned for the of the the boat. deputy four The repeated We this three to times. went pier then down the lake to look at the we went garage he into where took statements from us. [Block]'s got squad He back into his car and left. then Kruegers' war- 34. The statement DNR regarding what had is similar. den observed following: includes the handwritten statement up my A.M. I spotlight, my 12:05 set wife then wave people though they saw one as "OK" taking They and were off. had gotten their motor started, running hut it seemed to be poorly. At this time their safety. we were worried about My wife then ran to the house called a DNR number, after no answer she came back to the boat- I trying house as was to tell I the boat driver to wait. trying light to put again. on the boat At no time any running did I boat lights see at all. drifting
The boat was down the lake to the north. My my then ran neighbor's wife over ... pier. She shouted, you "Do want me to call 911?" afterward,
Shortly my wife their heard motor start *23 again and the slowly boat headed out on the shore side of pile. a small rock She that recalled the motor running sounded like it not was well. We did not have any my contact with the boat after I lost them in spotlight. my neighbor
Deb called ... at and about 12:15 A.M. pier informed him that his had been hit. Vern called the Dodge County Department Sheriffs and re- sponded relayed about one hour later. We what we seeing recalled took report. and he a Deputy report ¶ 35. inter- Moul's written of his Kruegers Kruegers' view with the with the consistent reported of accounts what observed and him. to (See above.) report quotation Specifically, ¶in from 8 deputy yell help the noted initial the for from the boat occupants, stopping restarting, the motor the proceeding boat then north on lake motor the with its sounding running right." only not "like it was The significant discrepancy Kruegers' between Moul's versions of their conversation stems cer- from
303
deposition.
gave during
responses
The
Moul
his
tain
thought every-
deputy
that Debra said "she
testified
thing
occupant
her,
had
fine" after a
waved
boat
worried about the
and
safety
he did not believe Debra was
three men after that.
dissent, we conclude that to the
Unlike the
36.
dispute
Moul and the
is a
between what
extent there
May
Kruegers
regarding
5,
relate
their conversation of
genuine
fact
1999,
a
issue of material
it does not create
County's
summary
preclude
judgment in the
as to
so
298,
DNR,
2d
477
favor. See Baxter v.
Wis.
1991)
(Ct.
(noting
App.
the "mere
N.W.2d 648
alleged
dispute
of some
factual
between the
existence
properly supported
parties
not
an otherwise
will
defeat
summary judgment;
requirement
is that
motion for
(citation
genuine
fact"
there
no
issue material
be
omitted)).
are
are
conse-
Material facts
those that
litigation.
quence
Michael R.B. v.
to the merits of
(1993).
State,
713, 724,
2d
175 Wis.
N.W.2d
summary judgment
The
dis-
submissions
actually
Kruegers
dispute regarding what the
close no
reported
events,
how-
saw and
to Moul.
observed
equivocal.
ever,
discussed, On the one
as we have
stormy night,
rough,
hand,
and a
it was
lake was
problems
experienced
and collided with
boat had
motor
pier.
motor had re-
hand,
On the other
boat's
occupant
"O.K." Debra
started, an
had waved an
Krueger,
occupants
off
and the
had elected motor
*24
landing
disembarking.
instead of
The
in the
accounts of the
variance
two
impressions or
involves the
conclusions
conversation
they
Kruegers
ob-
the
formed from the events
had
degree
they
the
to which
communicated
served, and
they
Kruegers
opinions
their
assert that
Moul.
very
safety
occupants
the
of the boat
were
concerned for
they
they
based on what
had observed, and that
em-
phatically communicated that concern to Moul. Moul,
perceive
Kruegers
being overly
however, did not
the
as
Krueger
alarmed and claimed that Debra
said "she
thought [the
occupants]
okay."
boat
any
dispute regarding
39. We conclude that
strongly
Kruegers
whether or how
communicated
safety
occupants
their concerns for the
of the boat
is not
material to a determination of whether, on the facts
present
known to the officer, there
"known,
existed a
danger."
way,
Stated another
we conclude that
present danger"
"known,
existence of a
should not turn
subjective impressions
on the
of a citizen-witness. As
explained,
"public
duty
we have
officer's
to act be-
imperative,'.
[when]
'absolute,
comes
certain and
. .
danger
compelling
nature of the
and known to the
public
and is of such force that the
officer has no
officer
(em-
discretion not to
Olson,
act."
but "joint County duty a had a to enter into ministerial 146.70(9), § agreement" powers under Wis. Stat. their failure do so somehow renders his claims disagree. municipal against the entities actionable. We agencies requires public cited statute emergency dispatch a who establish combined system agreements "if which, to enter into under an emergency dispatched response services vehicle through system request sophisticated or a the basic section, such shall established under this vehicle render regard- needing persons to the services its services operating of whether the vehicle is outside the less jurisdictional normal boundaries." Section vehicle's 146.70(9)(a). Agencies required copy file a are also may urgency her with occurred have colored recollection of the Moul, the Deputy she communicated her concerns to fact which being failing sued for to act on the Kruegers' provided strong Moul to report incentive for under- Kruegers' the degree state the concerns and to which that a communicated them. We conclude court stands firmer "known, ground if it a determination of whether confines danger" the factual of the officer present existed to observations and witnesses. joint powers agreement Department with the judicial
Justice, which *26 authorized is to "commence proceedings compliance" to enforce with the statute's 146.70(9)(c). requirements. Section Hoskins asserts "[w]hile only speculation, that, it is it seems reasonable agreement to think that if an had been filed, the Department of Justice would have been able to advise municipalities the how best to deal with situations like this one." agree City's
¶ 43. We with the observations that "summary judgment upon is decided the in facts the speculation," record and not and that "the existence or agreement [under nonexistence of a written Wis. 146.70(9)] § present has no effect on the case." Stat. jurisdictional dispute The record discloses no between City County regarding entity the which was re- sponsible initially responding for to Block's 911 call. emergency Neither was there "an services vehicle . . . dispatched response [911] request" in to a that subse- quently persons refused to "render its services to the needing "operating services" because the vehicle was jurisdictional outside the vehicle's normal boundaries." 146.70(9)(a). simply Section The cited statute has no bearing May legal on the 4-5, events of 1999, or on the consequences which flow from them. Next, 44. Hoskins asserts that the trial court by addressing
erred "not the of issue whether the negligently Department defendants relied on the of perform Natural Resources to a rescue." He claims that department duty because the "had no whatsoever to County's assist or to rescue," the call to the DNR seeking warden his advice "constituted one more ex- ample negligence permeated handling the of argument, an earlier Hoskins situation." As with
this negligence immunity. again confuses issues County Kimps, at 11-12. if the 2d Even See Wis. relying negligent advice in on the DNR warden's was incident, run" matter a "hit and exist- treat the as negligence irrelevant the issue whether ence of for are immune from suit personnel night question. their on the Id. actions of Finally, claims the trial court erred Hoskins regards addressing spoliation to the in "not issue portion missing portions tape." Apparently, a of the 911 City dispatcher initial call to the of Block's response missing transcript produced in from the *27 discovery he is "not demands. Hoskins concedes that at contending there has an intentional this time been City's destroy part evidence, act" on the to withhold or "speculation he claims there is cause for as to what but might missing portion. have been on" the Hoskins's given matter, ends that no concession the sanctions may be unless is clear and even considered there deliberately convincing proof that evidence was de stroyed Neuman, or withheld. Estate Neuman v. of App ¶ 61, 80-83, 2d 626 N.W.2d821. WI Wis. City provided Moreover, notes, as the Block himself an account statement Hoskins which included City dispatcher during he told the his 911 call. what transcript The fact that 911 call the Block's consequence incomplete is of little to the issues in thus appeal. this
CONCLUSION above, 46. For the reasons discussed we affirm appealed judgment. the
By Judgment affirmed. Court.— (dissenting). agree VERGERONT, EJ. I with majority's analysis on conclusion of Beaver immunity separately I Dam's from suit. write I because agree analysis Dodge do not with its and conclusion on County's immunity. my In there view conflict Deputy deposition testimony, between Steven Moul's on Krueger's hand, the one and Debra affidavit and the Kruegers' DNR, statement to the other, and the genuine conflict is a issue of material fact. As the majority acknowledges, dispute no there is rough. conditions on the lake were Given those condi- tions, I conclude that if a fact finder believes that Debra Krueger neighbor's told Moul that the had hit the boat pier, stopped again the motor and started but did not right, thought sound and she the boat inwas trouble might it, not make Moul was confronted with a present danger known of such force that he had no people discretion not if to act to determine in the disputed boat needed to be rescued. It is not that Moul Looking took no such action. on the shoreline for the approximately boat one hour after the boat left the checking landings shore and other boat for the boat were not acts Moul undertook to determine if the people danger; according in the boat on the lake were in property Moul, he treated the incident as hit-and-run damage, investigating and that is what he was when he *28 took those actions. agree majority 48. I
¶ do not with the that if a fact Krueger, finder believes Debra Moul was faced with an ambiguous situation and therefore had the discretion to any investigation, decide, without further the people danger. agree in the boat were not Nor do I solely relayed that, because the information was to him
309 disregard by it had the discretion witness, a Moul investigation. a This is not case where without further had reason doubt officer testified that he where, for some other nor a case account of witness on the not to act based the officer decided reason, Krueger Debra Rather, Moul denies witness's account. says gave that she of her observations him the account she did.1 testimony hand wave 49. I do not view the dispute removing over a factual
from the boat as present a known was confronted with whether Moul Drawing danger. in Hoskins's all reasonable inferences Krueger occurred before Debra favor, the hand wave sounding stop again, not and start heard the motor right. According affidavit, her she did not tell Moul okay thought everything the boat when that she just opposite. left, but majority's agree implicit I do not with "squarely
premise
facts in this case must come
that the
Janesville,
571,
174
2d
v.
Wis.
within" Linville
(Ct.
1993),
App.
aff'd,
465
184 Wis.
586-88, 497 N.W.2d
(1994), in order for a
705, 721,
2d
WI granted, 88, review 165, WI 246 Wis. 2d 2001) (No. (May 00-0221), N.W.2d 219 an intersec- inoperative lights tion with traffic in a storm was a present danger requiring dispatched known the officer actively attempt to direct traffic to to do that rather by. Krueger's than If stand Debra account of what she accepted by told Moul is a fact I finder, do not believe danger that Moul was confronted with a that was less compelling present or known—than those —less Cords Lodi. genuine
¶ 51. Because I conclude there is issue respect County's immunity of material fact with to the suit, from I conclude the was not entitled to summary judgment ground. in its favor on this There- respectfully fore, I dissent.