Jones v. Dane County

Plaintiffs- Kinney, Douglas A. Barbara Jones, Respondents, † Appellants-Cross County Chorlton, Defendants- and James E. Dane Appellants.

Respondents-Cross Appeals Court 9, 1993. July July on Submitted No. 92-0946. Decided briefs 20, 1995. 74.) (Also reported in N.W.2d denied. to review †Petition the respondents For the plaintiffs-appellants-cross Reuter on the briefs of Allen D. submitted cause was Reuter, & S.C. of Madison. Scarr of Amy F. and Clifford defendants-respondents-cross appellants For the of Carroll Metz- the submitted on briefs the cause was Bell, ner, and David J. Pliner of Robert J. Kasieta Metzner, Moore, & Gierhart S.C. of Madison. Eich, C.J., Sundby, JJ. Dykman

Before DYKMAN, son, J.1 Jones and her Barbara A. from order in the an which Douglas Kinney, appeal dismissed, judgment motion, on summary trial court 42 U.S.C. 1983.2 Barbara Jones's § their action under 1 May 24, 1995, on assigned judge to this case operating procedures, internal which pursuant to the court's opinion assigned judge "In provide, part: the event the view, minority reassigned will representing opinion be App. VI(4)(i) majority." lot to a of Ct. IOP by member WlS. 15,1991). (July 2 deprivation a civil for of U.S.C. creates action § rights part: provides, relevant who, statute, ordinance, any regu- Every person under color

lation, custom, usage, Territory any or or State or the District Columbia, subjects, subjected, any to be of the causes citizen person jurisdiction United or other within the thereof to the States rights, deprivation any privileges, or immunities secured Jones, Jr., Leland had been stepson, Robby adjudged and was out of his home and under delinquent placed County of Dane one supervision year. During he resided in three period, time different residen- tial homes and a Toward the of his hospital. end E. supervision period, Chorlton, James county case, social worker to his assigned placed Robby back in Barbara Jones's home he later shot where her and severely injured Barbara Jones and Kinney. claim that Chorlton violated their Kinney procedural and substantive due process rights guaranteed by Fourteenth Amendment to the United States Constitu- tion when Chorlton changed Robby's placement without first them with notice and an providing oppor- to file an with the court tunity objection by as required 48.357(1), STATS.3 We conclude that the trial court § dismissed the due claim properly procedural process Chorlton's because actions were random and unautho- rized, and state law adequate postdeprivation remedies exist to afford Jones and Kinney process that they are due. We also conclude that the trial court properly dismissed substantive due claim process laws, party injured Constitution and shall be liable to the in an law, equity, proceeding proper action at in suit or other for redress. 48.357(1), STATS., provides, part: Section in relevant person agency primarily responsible implementing or for dispositional may request change placement order a in the of child, change requested whether or not the is authorized in the dispositional order and shall cause written notice to be sent to the litem, guardian parent, child or the child's counsel or ad foster parent, guardian legal Any person receiving custodian.... may hearing notice under this subsection... obtain a on the matter by filing objection days receipt an with the court within 10 of the changed days notice. Placements shall not be until 10 after such parent, guardian legal notice is to the sent court unless the child, years age, sign custodian and the if 12 or more written objection.... waivers of from persons duty protect no state has because the custody. is person when violence private affirm. we Accordingly, a from appeal judgment also Kinney

Jones claim in negligence on a a returned a verdict which jury prejudi- of numerous complain They favor Chorlton. new in the interest trial errors and request cial errors -and of these asserted each reject We justice. Accord- trial not warranted. new conclude we affirm.4 ingly,

BACKGROUND Jones, found Jr., was Robby In Leland April (CHIPS) or services in need of protection to be a child placed court ordered him The trial delinquent. and returned supervision year one county under A evaluation him to mother's home. psychological his month Dr. W. Zuberbier same Larry completed Barbara stepmother, hated his Robby indicated that Jones, he hurt her. and that could delin- found 1981, Robby again

In October for a county supervision period under and quent placed House, to a initially Wyeth He sent year. of one was Wisconsin, where he remained Madison, home in group Ket- time, At that he was sent to until December 1981. drug to Hospital dependency tle Moraine obtain 1982, to In was transferred February Robby treatment. he until House in Madison where remained Thoreau House, also in he sent to Bockari July 1982 when was his conditions of violating after Madison, repeatedly He in house rules. two weeks spent and also probation 4 County cross-appeal E. filed Dane and James Chorlton However, judgment in this because we affirm matter. order, cross-appeal is dismissed.

Kettle Moraine in Hospital April 1982 to obtain addi- tional drug dependency treatment. 27,1982,

On August without first providing notice to pursuant 48.357(1), STATS., and over Jones's objec- § tions, Chorlton sent to Robby Jones's home to live. The court order be requiring Robby outside of placed his home was still On 7, effect. September Robby shot and seriously wounded Jones and Kinney.

Jones and commenced this action in Kinney Octo- ber 1983 alleging negligence and violations of their constitutional under 42 rights U.S.C. 1983. On Janu- § 7, 1991, the trial ary court dismissed the 1983 claim § on motion. The summary judgment case went to trial on the claim negligence 28, 1991, and on October jury found that while Chorlton negligent, his negli- gence was not a cause of Jones's and Kinney's injuries. Jones and Kinney appeal.

SECTION Jones and Kinney argue that the trial court erred when it dismissed their claim under 42 U.S.C. § on motion. to summary judgment According Jones and have raised issues of material Kinney, they genuine fact as to whether Chorlton violated their rights procedural substantive due claim process. They 48.357(1), Chorlton's failure with comply § STATS., which notice before requires juvenile's place- ment may changed, be resulted their being deprived of their due rights liberty pro- without property cess of law as the Fourteenth guaranteed Amendment. disagree. We

A grant summary is an issue law judgment which we review de novo the same stan- by applying dards as the trial court. Brownelli v. employed by

911 49 McCaughtry, 372, 48, 367, 2d 514 N.W.2d 182 Wis. 1994). (Ct. complaint App. first examine the We then the claim, a and it states whether determine presents it a material whether to determine answer they the docu- do, If we then examine issue of fact. Id. moving party by to determine ments offered prima party a case has established whether facie judgment. summary has, If then look to the Id. it we any party's opposing determine whether documents to dispute which would entitle facts are material opposing party 372-73, Id. 514 N.W.2d at to a trial. at 49-50. against § Chorlton, claim Jones

To a 1983 state (1) Kinney allege: that the conduct of which must and they complain while Chorlton was act- was committed (2) ing law; that such conduct under color state privileges deprived rights, or immunities them of by Constitu- or the United States secured federal law County, 376, 2d v. Columbia Wis. tion. Hillman (Ct. 1991). App. The Four- 913, 474 N.W.2d Amendment to the United States Constitution teenth deprive any person "[n]o provides shall... State process liberty, property, of law life, without due _" comprised process compo- The due clause is two procedural process. nents: and substantive due types § the due Three of 1983 claims exist under (1) process Amendment: clause of Fourteenth right specific protected claim for a violation of a Rights incorporated by process Bill of the due (2) component clause; a claim under the substantive arbitrary, process due which clause bars certain wrongful government regardless actions of the fairness (3) procedures implement them; of the used to procedural process involving due claim deprivation or life, of without liberty property process due of law. Burch, (1990). Zinermon v. 494 U.S. 125 113, Under the procedural component, Jones and Kinney must show that were they of deprived constitutionally pro life, tected in liberty interest or property without due Macht, v. of Irby law. process 831, 838, 522 184 Wis. 2d 11, cert. denied, (1994). N.W.2d 115 S. Ct. 590 Under component, the substantive Jones and must Kinney show that the state was constitutionally obligated, yet failed, life, to their in protect interests or liberty prop DeShaney Winnebago Social erty. County Dep't of (1989). Servs., 189, 195 U.S. We address each claim in turn.

1. Procedural Due Process Kinney argue

Jones and have been they deprived constitutionally their in protected interests liberty and without due property process of law because Chorlton forced them to back accept Robby into their home without them with an providing oppor- for a on the in tunity hearing change placement.5 question, answering, §48.357(1), We without whether constitutionally in protected liberty creates interests STATS., property Kinney deprived by of which were Jones provide Supreme Chorlton's failure to such notice. Court property has stated one have cannot interest in mere procedures. purpose is an

Process end itself. Its constitutional which, protect legiti- a substantive interest the individual has a may require claim . mate of entitlement. . . The State choose procedures protection against deprivation other for reasons than course, rights, making substantive but that choice the State independent right. does not an create substantive the fact that process analysis, due Under a procedural of a deprived pro- have been Kinney may Jones not, alone, mean does liberty property right tected violated. have been constitutional rights their the] Due Process Clause [procedural "The component of their persons states from depriving not prevent does 842, 522 Irby, 184 Wis. 2d at life, or liberty property." claims, what process 13. due procedural at In N.W.2d right of such a with- deprivation is the unconstitutional Zinermon, 494 U.S. at 125. In due of law. out process not com- violation is words, other the constitutional occurs, when the state the but plete deprivation when Id. Thus, our due at 126. process. fails provide Kinney and arguendo, assume, that Jones will inquiry will instead, a and protected right deprived were due this occurred without deprivation on whether focus law. process not argue they pro- were Kinney

Jones they were due because they vided with process a change placement pursu- notice of given were 48.357(1), STATS., Robby placed before ant § this disposition depends upon their home. The issue of "the built procedural safeguards an examination . . or . statutory procedure into the administrative for errone- any remedies effecting deprivation, (1983) (footnote Wakinekona, 238, 250-51 461 omit v. U.S. Olim (1995). ted). Conner, See Sandin v. 115 S. Ct. 2293 While also constitutionally arguably a legislature might have created protected through mandatory language as right use of such see, 48.357(1), e.g., McCaughtry, 177 "shall" in Robinson § (Ct. 1993), 293, 300, 501 896, 899 App. 2d we doubt Wis. N.W.2d any Kinney the intended beneficiaries of that Jones and are lay most, Robby only person may alleged right and at is the who liberty right property statute. claim to a or under this

914 deprivations provided ous statute or tort law." Zinermon, 494 U.S. at 126. the United Generally, requires States Constitution hearing depri- before Irby, 843, vation occurs. 184 Wis. 2d at N.W.2d at But, 13. when a of a has resulted deprivation right6 from a random unauthorized act of a state providing employee, meaningful predeprivation pro- cess is impracticable because the state cannot predict Id., when such acts will occur. 522 N.W.2d anticipate cases, at 14. In such due is satisfied process when state makes available reme- adequate postdeprivation dies.7 Id. This rule "no matter how applies significant interest at stake and the risk of errone- private its ous the State cannot be deprivation, required [because] to do the constitutionally impossible by providing Zinermon, 494 U.S. at 129 predeprivation process," (1976)). Mathews v. Eldridge, U.S. (citing Irby The dissent asserts is no longer prece- dential because of the United States Court's Supreme (1995). Conner, Sandin v. in decision 115 S. Ct. 2293 Sandin will not alter the of whether probably analysis a received the in person he or she is due a process case. Sandin due modified the procedural process has test for whether statutes or create determining rules Id. at constitutionally protected rights for prisoners. 2297-2300. Had Sandin existed when Irby written, was the Wisconsin Court have Supreme might concluded Irby had no that constitutionally protected right 6 analysis applies deprivations liberty prop This Burch, Zinermon v. (1990). erty rights. 113, 132 494 U.S. 7However, postdeprivation remedy a state is not a defense procedural process deprivation to a due claim when the is by performed conformity caused conduct in with established procedures by rather than a state random and unauthorized Palmer, action. Hudson v. (1984). 468 U.S. 532 logic infringed. because not dictate that But does

was determining analysis different for now use a we constitutionally protected prisoner has a a whether subsequent Irby longer precedential. right, The no Irby Irby, analysis in in the court concluded which process he due because all of the had received adequate postdeprivation availability law state coupled acts, and unauthorized with random remedies jettisoned. Further, not be been and need has not problems speaks in have arisen to the Sandin prisoner McDonnell, 418 U.S. 539 cases since Wolff (1974). retrenchment, thrust of Sandin is entire expansion. at viola- Sandin, 115 S. Ct. 2300. That not may longer prison be rules no the basis tions of most necessarily imply prisoner a § dra- suits does jurisprudence. change nonprisoner § in matic 48.357(1), requires § case, In the instant Stats., change placement requested of a child is that when by responsible agency primarily person or dispositional implementing order, before that change person agency provide place, the or shall takes or to the child the child's counsel written notice parent, guardian guardian parent, litem, ad foster change legal explaining why is neces- custodian may object sary. Any party receiving the notice hearing a court on the matter. Id. Section obtain 48.357(1) thus limits the action of social workers change placement may regarding imple- be how failure to abide it was therefore mented. Chorlton's unauthorized. employee only

An if it act a state is random was impossible predict Here, for the state to the action. 48.357(1), legislature § while the enacted set- Stats., 916 forth the with which ting procedures Chorlton should have before complied changing Robby's placement, it for the impossible anticipate state to that Chorlton would nonetheless them disregard notwithstanding his See Parrott v. Taylor, this statute. practice ignoring (1981) 527, (concluding 451 U.S. 541 it is impossi- an ble the state to anticipate employee's negligent Williams, overruled on other Daniels v. act), grounds (1986). 474 U.S. 330-31 Chorlton's to com- failure 48.357(1) with is therefore a act. ply random § (7th Felder, Easter House 1387, 1404 In 910 F.2d denied, cert. 1990), (1991), Cir. the 498 U.S. 1067 court said: remedy 1983 preserved only

Section must be to deprivations actually those which occur without law, adequate process due such as those which ignore result from state's decision to a conscious protections guaranteed by the It Constitution. employed remedy should deprivations not be to which at the a state who is employee occur hands of acting direct contravention of the state's estab- policies procedures lished which have been designed guarantee very protections which ignore. now has employee chosen Yet, claim, due analyzing procedural process must we also determine whether state's adequate.8 remedies are postdeprivation adequacy 8Indeed, Kinney argue do not Jones state provide adequate postdeprivation Instead, failed remedies. they argue adequate postdeprivation that the existence of reme provide procedural process dies does not due defense to meaningful predeprivation procedural protec claim because Kinney point tions existed. Jones to Vorwald v. School (Ct. District, 536, 466 1991), App. 2d rev'd Wis. N.W.2d by postdeprivation nature remedies measured Irby, deprivation. 184 2d at Wis. of the unauthorized Postdeprivation are remedies at 16. 848, 522 N.W.2d they 'readily adequate be charac- "unless can deemed [they are] inadequate point to the terized as meaningless 847, 522 . . . .'"Id. at or nonexistent omitted). (quoted 15-16 sources N.W.2d at being physi- Kinney's in not interests

Jones's obviously significant. injured cally However, state are person opportunity provides for a who is tort law damages by to make that another to recover harmed negli- Kinney's person Jones and fact that whole. persuade gence does not us claim was unsuccessful remedy adequacy tort is diminished in of the right way. guarantees any process to a hear- Due Accordingly, ing, not certain result. we conclude to a postdeprivation are ade- state law remedies that these denied, grounds, 93, cert. 549, 482 on other 167 2d N.W.2d Wis. Vorwald, (1992), argument. In support Ct. of their 113 S. 378 proce maintain 1983 plaintiff determined that could a § we could process provide due claim because the state notice dural opportunity alleged meaningful respond prior to the However, Id. 542, at 466 at 686. after deprivation. N.W.2d Vorwald, Macht, Irby v. Supreme the Wisconsin Court decided 13-15, cert. denied, 9, 831, 843-47, 115 184 Wis. 2d 522 N.W.2d (1994), notwithstanding 590 it determined that S. Ct. which predeprivation process, the existence the existence postdeprivation process defeated the constitutional claim when were random and unauthorized. We employee's state actions pronouncements most of the Wisconsin are bound recent Olsen, State 572, 583, Supreme 2d 299 N.W.2d Court. Wis. 1980). (Ct. upon Irby Thus, analy App. rely we for our sis of this issue.

quate availability procedural and their defeats the due process claim.9

2. Substantive Due Process Kinney argue they

Jones and also were deprived right process of their to substantive due as a comply 48.357(1), § result of Chorlton's failure to with forcing Robby STATS., and his back into their home posed danger where he to them. Substantive due process arbitrary, wrongful government bars certain regardless procedures actions of the fairness of the implement used to Zinermon, them. 494 U.S. at 125. procedural process Unlike a due claim, the constitu- complete deprivation tional violation is when the Consequently, adequate occurs. Id. the existence of postdeprivation state law remedies is not a defense to a process substantive due claim. process expressly guaran-

The due clause does not right safety private tee the underlying to when a actor commits the plaintiff complains.

act of which the DeShaney, 489 U.S. at 195.

[NJothing language of the Due Process Clause requires itself protect life, liberty, the State to and property against of its by pri- citizens invasion vate actors. The phrased Clause is as a limitation on power act, the State's guarantee to not as a of cer- tain safety minimal levels of and security. It forbids 9Additionally, because we procedural conclude that no due process occurred, damages, nominal, violation the issue of albeit (1978) Carey Piphus, irrelevant. See 435 U.S. (denial procedural process due should be actionable for nomi damages proof nal without injury). of actual life, liberty, to individuals deprive itself

the State process law," but its "due property or without to an fairly impose be extended language cannot obligation on the ensure State affirmative through other not come to harm do those interests means.

Id. confers no generally due clause

Thus, process aid even where such right governmental affirmative life, liberty property to secure may aid be necessary may deprive not itself government of which rights Id. at 196. the individual. require the State

If the Due Process Clause does particular protective ser- provide its citizens with be liable vices, follows that the State cannot held it injuries that could have been under the Clause for general it them. As provide had chosen to a averted to then, we that a State's failure matter, conclude sim- against private an individual violence protect Due a of the ply does constitute violation Clause. Process (footnote omitted).

Id. at 196-97 However, imposes upon "the Constitution with affirmative of care and protection State duties Id. 198. Those to individuals." at respect particular a per- arise when the state takes relationships special his or her against into and holds the custody person son Id. 199-200. "The affirmative to duty protect will. at of the individ- knowledge arises not from State's from its of intent predicament ual's expressions from it has him, imposed but the limitation which help

920 on his freedom to act on his own behalf." Id. at 200. Thus: restraining

it is the State's affirmative act of freedom to act on his own individual's incarceration, through institutionaliza- behalf — tion, personal or other similar restraint liberty" liberty "deprivation trig- is the —which Clause, of the Due gering protections Process protect liberty not its failure to act to his interests against harms inflicted other means. omitted). (footnote words, In other

Id. substantive purposes, only special process due the state has a rela- persons custody persons tionship with and not with might statutory who benefit from the existence of a complied might with, if have averted which, scheme by private the harm caused actor.10 Kinney argue Jones and that Chorlton knew of Robby's behavior and knew of his hatred for violent they special relationship this, contend, Jones. From 10 Kinney urge adopt in Ross v. Jones and us the results (7th States, 1990), Fergu F.2d 1422 Freeman v. United Cir. (8th son, 1990), Ostrander, 911 F.2d 52 Cir. Wood v. 879 F.2d (9th (1990), 1989), denied, Cir. cert. 498 U.S. 938 and Estate (E.D. 1992), Sinthasomphone, Supp. 785 F. Wis. of which the courts determined that the state had an affirmative duty injured by private protect persons actors in noncustodial settings. binding to do Federal are not We decline so. decisions Thompson Village on courts in Hales Cor state Wisconsin. (1983). ners, 289, 307, 704, 115 Wis. 2d 340 N.W.2d 712-13 We only Supreme ques on are bound the United States Court n.4, Webster, 418, 426 tions of federal law. State v. 114 Wis. 2d (1983). Thus, analysis to 338 478 we confine our N.W.2d Servs., DeShaney Winnebago County Dep't 489 U.S. Social of (1989). (1) and the state because: themselves arose between county under Robby be placed court ordered trial in this order was his home and outside of supervision (2) Chorlton place; placed took shooting effect when the with first complying in their home without Robby his violent tendencies §48.357(1), despite Stats., (3) relied Chorlton Jones; they upon towards he abused legal process information about the of only them their means deprived trust Robby We that when recognize themselves. protecting the trial home, to his the order entered by was returned his home him to be outside of placed court requiring in still custody county care and was and into the freedom However, Robby's remains that effect. fact in Jones's placed was no restrained when he was longer no Thus, for due process purposes, home. substantive and the existed between special relationship Robby state, any duty protect state of thereby relieving no relation- Additionally, special him. conclude that we on hand the state the one ship ever existed between hand. Their free- on the other Kinney and Jones and restrained, were never held dom never they them duty protect therefore no against their will and from ever arose. Robby's violent behavior to be of the speaking

The Court seemed Supreme DeShaney fol- it concluded with the instant case when lowing: prefer sys- people may well Wisconsin liability place upon

tem of would the State which responsibility for failure to act and its officials the present They may as the one. situations such system, they already, it such a if do not have create by changing tort law the State accordance regular lawmaking they with the But process. upon by this not have it thrust them Court's should Clause of the Four- the Due Process expansion Amendment. teenth

Id. at 203. that there was no we conclude Accordingly, violation. due process substantive CLAIM NEGLIGENCE judg- to reverse the also ask us Kinney and Jones found that after the jury the trial court by entered ment Kinney's inju- Jones's and not liable for was Chorlton found jury theory negligence. upon ries based was negligence his negligent, Chorlton was that while Kinney argue Jones and of their injuries. not a cause a new trial. errors warrant prejudicial that numerous claim in turn. each We address Jury

1. Instructions standard causation gave

The trial court it doing, rejected In so instructions. of proof burden Kinney. During Jones and offered instructions (1) 'a court: "Does asked the deliberations, the jury contrib- a direct being action refer to neglectful cause' outcome situation the building factor uting (2) refer 'a cause' "Or does injury?" was the which have may prevented which inaction neglectful in which situation of any hypothetical construction (similar) The court directed occurred?" have injury may and Kin- Jones instructions. jury to reread the the jury the jury's evidence the questions that argue ney the court's and assert as to causation confusion jury "suggested to those questions response and formu- instruction read the given incorrectly it had They of causation." conceptions impermissible lated on the causation dissented two jurors note that also conclude Kinney Jones and to Chorlton. as question misleading instruction the causation prejudicial new and warrants a trial. as to trial court's conclusions what

We review a appropriate jury an erroneous are for instructions Ganju, v. 168 Fischer Wis. 2d of discretion. exercise (1992). supreme 10, 16 The court 834, 849, 485 N.W.2d has stated: when

The trial court has broad discretion challenge allegedly erro- instructing jury. a A to an and a jury neous instruction warrants reversal new An error only prejudicial. if is trial the error probably merely possibly if prejudicial it meaning communi- juiy. misled the If the overall cated the instructions was correct statement of law, grounds no for reversal exist. (citations 849-50, omitted; at Id. at 485 N.W.2d 16 added). reject accept jury emphasis The decision or also discretion of instructions rests within the sound Crary, 377, 2d 382, the trial court. Strait v. 173 Wis. (Ct. 1992). App. 634, 496 N.W.2d 636 negligence Causation where a defendant's exists producing plaintiffs harm. a substantial factor Fischer, 857, 168 2d at 485 at 19. Wis. N.W.2d "Sub- stantial factor 'denotes that defendant's conduct producing as to has such an effect the harm lead the person, regard fact, as a it trier of reasonable as a using popular in the cause, that word sense.'" Id. (quoting Vehicles, 2d Inc., 607, Clark Leisure 96 Wis. (1980)). 617-18, N.W.2d jury The trial instructed the as to the court follow- ing: questions

The ask whether there was a cause negligence any of connection between the causal ask injuries. questions and the These do not person but, rather, "the "a cause." The reason about cause" than one may this is that there be more cause may injury. negligence person one cause an or more injury, negligence an the combined two may you any per- cause it. Before find persons injury, you negligence was a cause of the must son's his factor in negligence find that was a substantial injury. producing not be a

This causation instruction could standard permitted law. It more accurate statement Kinney's finding that Chorlton caused Jones's and negligence injuries jury was a if the believed that his injuries. producing That the factor in the substantial questions jury about this issue the trial court asked jury mean the could not find causation does not that given court's in this case. The under the instruction reply jury it the causation instruc- to the that reread proper also because the causation instruction tion was determining jury the to focus on whether directed pro- negligence in was a factor Chorlton's substantial injuries. súggest ducing to did not the The instruction Kinney jury have establish that Jones and would to the happened the had Chorlton not made what would have placement. reply change in no court's Further, the jury's way inter- on the correctness of the commented certainly pretation not and did of the issue most jury suggest That two that the not find causation. jurors of is not evidence dissented from the verdict only jury It that the differed confusion. demonstrates degree credibility weight the the of to some as to and evidence before it. a modified burden also Kinney proposed

Jones for the a substitute standard instruction as proof argue rejected. They court instruction which the trial "reason- requires instruction which that the standard the confused "guess" the word certainty" able uses Kinney prove had to believing that Jones and into jury i.e., Robby's violence, was outcome, predict- that the confused jury also the argue able. They a with reasonable "beyond certainty" "reasonable We doubt," higher proof. latter burden being the disagree. the that: jury

The trial court instructed . proof upon party . . rests the The burden of to be contending question answer should satisfy "yes." you to a reasonable This burden is weight evi- certainty by greater of the credible "yes" dence that should be answer.

By greater weight of the evidence is meant weighed against which when evidence evidence opposed convincing power. to it has more Credible light of evidence is evidence which reason worthy your sense is common belief.

If have what the answer should be you guess discussing relates par- after all evidence which to a question, party having ticular then the burden proof has met the question required as burden. of ordinary proof requires

The or lowest burden that must of result the be satisfied the to a reason jury of by able the the credible certainty greater weight Indus., Inc., evidence. Kruse Horlamus 2d 130 Wis. (1986). 357, 362-63, 64, 66 387 plain N.W.2d While the has to a satisfy jury tiff the burden to the reasonable not all the is remove certainty, plaintiff required 926 Co., v. Wisconsin Gas 2d uncertainty. Savina 36 Wis. (1967). 237, 703, 154 241 694, N.W.2d i.e., reasonable, rea- must be based on [C]ertitude quantity proof, in terms of sons. Defined certainty or in ordi- reasonable certitude reasonable by or be on a nary may civil cases be attained based Such mere or fair of the evidence. preponderance necessarily the certainty need not exclude may contrary that the conclusion be probability . . . need not eliminate a true. . . Such evidence . the or opposite

reasonable that alternative doubt may conclusion be true. 138, Kuehn,

Kuehn v. 26, 2d 104 N.W.2d Wis. (1960). often The is an issue question predictability however, not mean, an of causation. That does analysis instruction some proof using that a different burden Kinney Jones and other is more language appropriate. verdict, that evidence, jury no save an adverse present misled or confused the burden instruction proof the it had to find that concluding into that jury wrongly all it erase was must predictable outcome The shows decided only jury doubt. verdict reasonably greater it certain was not negli- that Chorlton's of the credible evidence weight Kinney's damages. was a of Jones's and gence cause and does more, conjecture Their without argument, did not understand not us that persuade jury standard instruction. the causa- only

The dissent concludes that that based misleading, upon tion instruction but evidence, must causa- of the we find dissent's review to the responded "yes" as a matter of law. jury tion before of shooting Sep- "At or question: following Chorlton defendant James 7, 1982, tember of in the Leland supervision placement negligent dissent, the breadth Jones, Jr.?" The [Robby] ignoring acts negligent finds that Chorlton's of this question, to his inform- Robby "return of home without were his he using drugs and was still Kinney] ing [Jones violent and dan- potentially and that his behavior was "in accept Robby and the Joneses gerous" forcing or should though into their home even he knew back and Robby society known that was dangerous have his family, step- to the members of his especially dissent then Dissent at 967-68. The mother." law, a Chorlton's concludes, negli- as matter Kinney's injuries. a cause of Jones's and gence was First, Jones asked us to Kinney only and have whether the causation instruction was mis determine and there is not whether leading prejudicial evidence to sustain it. The issue evidence credible Jones Kinney request is before us. sufficiency of a only misleading new trial because instruction. recently discouraged practice court has supreme by parties claims not raised addressing specifically for one side of a developing arguments dispute. 47, 52 County Dane, n.1, Swatek v. 192 Wis. 2d (1995). 45, 47 N.W.2d Second, the de novo, dissent reviews the evidence which are to forgetting standard we review verdict. jury jury any

We will sustain a verdict if there in the record it. If more support credible evidence than one inference be drawn from reasonable can evidence, accept must infer- we the reasonable jury record ence the drew. We search the verdict, jury the not for evidence evidence to sustain jury might have but might that sustain a verdict the did not reach. Bowl, Co., Inc. Elec. Power 176 v. Wisconsin

Beacon (citations (1993) 788, 808 740, 791, 501 2d N.W.2d Wis. omitted). of the weight The witnesses and credibility are to the testimony jury's to their matters left given Co., Larsen 118 Wis. 2d not ours. Bennett v. judgment, (1984). more Where 681, 706, N.W.2d evidence, from we than one inference can be drawn the Id. the inference drawn the by jury. must accept reveals that transcript Our review of the trial comply he did not with while Chorlton admitted that he in Jones's home Robby placed 48.357(1), Stats., § Robby's circumstances of reviewing after the facts and he as him. testified that Yet, Robby case reported than three minutes decided to shoot Jones more no. could did, way that there was no Chorlton before he her, he that shoot- have would shoot expected Chorlton, did had to do with and he nothing ing for and shooting blame Chorlton or Jones he himself because loaded instead, mostly he blamed he also testified pulled Robby gun trigger. on the Kinney that even if he had not shot Jones and done a different did, that he he have so on day might vio- Further, Robby's several testified that day. experts There was also lence could not have been predicted. was at Robby very adept testimony revealing a evidence, jury this reasonable manipulation. From negligence could have concluded that Chorlton's Kinney's causing not a factor in Jones's substantial that had Chorlton It also could have concluded injuries. might still court complied juvenile with § 48.357(1), with his with same placed Robby parents, have inferences here The competing prohibit result. tragic matter of The verdict jury law. of causation as finding therefore must evidence and credible supported be sustained. McCartney Gerald

2. Dismissal of case-in-chief, Kinney's At the close Jones McCartney, Department director of the Gerald for County, moved dismissal Social Services Dane on the grounds action him against the negligence 805.14(3), insufficient evidence. Section Stats.11 McCartney the case against trial court dismissed Dane of respondeat superior, a because under theory who was Chorlton's County, McCartney, employer and for and because Jones damages, would be liable to testify any did not as Kinney's experts applicable department's court also noted the standard of care. The at the of it. McCartney's position and head bureaucracy testimony it believed that expert The court stated that of a to standard care as McCartney's was as required that it to than greater which considered be supervisor of a social worker. of their argue

Jones and that dismissal Kinney They action was error. contend against McCartney he assur- McCartney responsible admitted that for and Chorlton followed ing statutory procedures court and that the could decide his jury negli- orders 805.14(3), Stats., provides: Section any plaintiffs jury, to the At the close evidence trials may ground insufficiency move on

defendant for dismissal court is evidence. If the determines the defendant entitled dismissal, particularity the court state with on the record or shall grounds upon in its which the dismissal was order dismissal the granted judgment against plaintiff. and shall render upon gence his those admissions based testimony. disagree. We Chorlton's 805.14(1), sets forth test for Stats., Section sufficiency determining the of the evidence: sufficiency of challenging motion No verdict, law support as a matter of a or evidence verdict, granted in a be unless the an answer shall that, considering all evi- court is satisfied credible in the dence and reasonable inferences therefrom light against to the whom the party most favorable made, there is no credible evidence to motion party. in favor of such finding sustain light in the On we must examine the evidence review, Kinney, we will not most Jones and but favorable findings the trial court's dismissal unless reverse clearly upon Section which it is based are erroneous. 805.17(2), Stats.

McCartney he never testified that knew this case Chorlton's case load or about reviewed one of members because Chorlton was about staff up into and subdivisions who were divided divisions McCartney explained that each unit had units. reviewing, responsible assigning supervisor evaluating The unit the work of each staff member. manager reported program supervisors, turn, to supervi- evaluating responsible for the unit who was McCartney explained responsibilities as that his sors. conducting person- an administrator did not involve only that he would become nel review of Chorlton and brought to his in a a matter was involved case when super- immediate Instead, attention. it was Chorlton's activities and made visor who monitored Chorlton's judgments performance. about his he responsi- admitted that was McCartney

While with statutory that his staff assuring complied ble no evidence Kinney presented Jones and procedures, in some discharge duty failed to this McCartney that did not with the statute comply fashion. That Chorlton staff that did not direct his McCartney does not mean his and that he to do so. duties McCartney explained involved with individual cases unless did become to his attention. None of Jones or they were called he to do witnesses testified that Kinney's required Jones and that McCart- Kinney argue more. anything of care is that of an ordinary prudent standard ney's been jury permitted and that the should have person if that Chorlton complied decide his failure ensure failure to know statutory with the and his procedures about the of without first practice changing placement 48.357(1), STATS., notice were giving pursuant § However, no one testified that duty. breaches of failure to ensure social worker McCartney's compli- no ance was one testified improper. Additionally, practice his as to the social workers' ignorance notice was giving improper. before changing placement we conclude that the dismissal the case Accordingly, McCartney was not error. against Gerald 3. Restriction Cross-Examination McCartney erro- Jones and the trial court Kinney argue its when it neously prevented exercised discretion job them from 1988 and 1989 introducing McCartney's evaluations. also to intro- performance They sought involved in McCartney duce evidence that had become September another lawsuit with Dane after County 1982. to Jones and this evidence According Kinney, credibility and his McCartney's performance relates to as a supervisor.

The decision to admit evidence rests within the of the court and not be sound discretion trial will such discretion is exer erroneously reversed unless or an erroneous view of the law. upon cised is premised Casualty Co., v. Fire & 77 Wis. Economy Christensen (1977). 50, 55, 904.01, 252 N.W.2d Section 2d having defines relevant evidence as "evidence STATS., make the existence of fact that is of any any tendency action more to the determination of the consequence than it would be without the probable or less probable However, relevant evidence be may evidence." if its value is out probative substantially excluded the of unfair confusion weighed by danger prejudice, 904.03, issues, Section misleading jury. on relevancy STATS. standard for the test proper is not sought cross-examination whether answer of the main issues in the case but any will elucidate it be useful to the trier of fact in apprais whether will of the witness and ing credibility evaluating State, value of the direct probative testimony. Rogers (1980). 682, 689, 287 774, 777 ”[A]ny 93 Wis. 2d N.W.2d into on may inquired material or relevant matters be and that is not cross-examination cross-examination Id. The scope limited to the of direct examination." for impeachment purposes of cross-examination scope Id. rests within the sound discretion of the trial court. The trial to admit the 1988 and 1989 court refused evaluations of the other lawsuit proof concluding it was too that such evidence was not relevant because from the incident which shooting remote date evi- occurred 1982. It also concluded that September was prejudicial the lawsuit to dence pertaining bear- agree any We jury. confuse the unduly would McCartney's upon have had might this evidence ing in 1982 was a supervisor as credibility performance of dis- exercise not an erroneous it was so remote that What exclude it. court trial cretion in no and 1989 done 1988 have might McCartney or his testimony of his truthfulness related to the way evi- Additionally, in 1982. a supervisor as performance highly have been lawsuit would of another dence his truth- upon no way impacted and also in prejudicial in 1982. as a supervisor his performance fulness or erroneously exer- court did not the trial Accordingly, this refused to admit when it its discretion cise evidence. Job James Chorlton's

4. Admissibility Performance Evaluations erro- the trial court Kinney argue

Jones and it admitted its discretion when exercised neously com- evaluations job favorable performance Chorlton's for the between period another employee pleted by this deci- Kinney argue Jones and 1977 and 1982. trial court's decision with the is inconsistent sion performance unfavorable job McCartney's exclude error. and is therefore prejudicial evaluations one." It gets not "each side Admission of evidence is Pophal trial court. the discretion of the rests within 555, 559 Siverhus, 168 Wis. 533, 546, 2d 484 N.W.2d 1992). (Ct. relevant examined the If the trial court App. law, used a standard facts, applied proper result, we will to reach a rational rational process if the court relied Id., Only at 560. affirm. 484 N.W.2d 934 of an rule understanding evidentiary on an erroneous Id. will we reverse. for the seemingly rulings

The reason inconsistent job this: the trial court admitted Chorlton's perform- 1982 because covering through ance evaluations extremely relevant the issue whether they were while negligent conversely, Chorlton was covering evaluations McCartney's job performance irrelevant because did through they were i.e., issue, time at The not to the 1982. pertain period were irrele- McCartney's court ruled that evaluations of their remoteness. vant and inadmissible because erroneously did not exercise its discre- Thus, the court Chorlton's job performance tion when it admitted and were remote relevant they evaluations because case. to the Testimony Dr. Zuberbier's Expert

5. Larry erred Kinney the trial court argue Jones and and permitted it an earlier ruling when reversed tes- Zuberbier, Dr. to witness, Chorlton's expert Larry for Dr. was not available deposition Zuberbier tify. his testimony trial. contend that They until before just did not have they adequate because prejudicial was time to rebuttal. prepare Dr. initially

The court ordered that trial had to permitted testify apparently not be Zuberbier by he not named as a witness Chorlton because the court ordered Chorlton years almost two after until this making names. In expert his witnesses' provide to not to men- Kinney the court warned Jones and ruling, During Dr. Zuberbier their case-in-chief. during tion Jones Kin- trial, ruling its after and the court reversed and to Dr. Zuberbier made numerous references ney during opening Robby statements his evaluation during reasoned The court their case-in-chief. Kinney opened door to the issue had Jones Robby importance evaluation of Zuberbier's of Dr. preclude inappropriate would be it calling it discuss Zuberbier Dr. from Chorlton himself. the discre rests within of evidence admission Pophal, 546, 484 2d at 168 Wis. trial court.

tion of the prior Notwithstanding trial court at 559. N.W.2d may questioning, a court prohibiting this line order up questions when the properly limited follow allow particular party opens line of to a the door other 531, 439 inquiry. 2d Mares, 149 Wis. State v. See 1989) (Ct. permitted App. (prosecutor 146, 150 N.W.2d brought follow-up questions on issues to ask limited during of a cross-examination its the defense out witness). erroneously its dis- exercise did not

The trial court testify by permitting once Dr. Zuberbier cretion repeated Kinney to his references made Jones and to have Dr. was entitled Chorlton evaluation. testify regarding evaluation and his Zuberbier Addition- import contained therein. statements of the testimony ally, of Dr. Zuberbier's that much the fact Robby's predictability of on discussion of centered a directly issue to the causation related violence which testimony improper. Indeed, Jones not make this does Kinney's expert, Pécora, admitted Dr. Peter own and predict- problems with exist on cross-examination ing not have Chorlton could and that violent behavior Robby and Kin- predicted shot Jones would have being placed ney other in their home. Chorlton's after expert also testified that violent Seitz, Dr. Sue witness, predictable. Thus, Dr. Zuberbier's testi- not behavior prejudicial. mony Once Jones and was cumulative Kinney evalua- issue of Dr. Zuberbier's raised the and Dr. Zuberbier's entitled to introduce Chorlton was tion, testimony explaining Robby. his evaluation Learned Treatises 6. Kinney argue court erred that the trial

Jones and chapter of a book a admitted into evidence when it Legal Psychologist's Handbook, address- entitled, According to ing predictability of violent behavior. Kinney, failed to establish Chorlton Jones and into proper of this book for the admission foundation give adequate he notice that and failed evidence Kinney Jones it into evidence. intended to admit chapter upon argue relied Zuberbier that Dr. pre- regarding the of his conclusions for some book dictability Robby's therefore, its violence unfairly prejudiced Jones and into evidence admission Kinney. days' 908.03(18)(a), forty provides § While STATS., may be received learned treatise notice before a

written except impeachment cross-exami- on into evidence 908.03(18)(c), may, § relieve under nation, a trial court requirement. party not address We do from this portion this to admit error for the court it was whether did not its admission because the book into evidence only par- Kinney. prejudice The book was Jones opinions. upon by tially for his Dr. Zuberbier relied Additionally, evidence, it was not into admitted while jury. given cumulative the evidence was Further, to the predictability subject, pertained i.e., the it because sides tes- for both behavior, which witnesses of violent were Kinney and Jones Accordingly, to in tified detail. occurred have might error that by prejudiced any not evidence. its admission into Negligence on Parental Expert Testimony 7. erro- the trial court argue that Kinney Jones and in discretion permitting exercised its neously testify as to Seitz, paren- Sue expert, Chorlton's Dr. as to Jones's specifically, tal and negligence 907.02, that They contend parent. § as performance on matters testimony only permits expert Stats., on sub- experience skill or knowledge, requiring special not the realm of the ordinary which are within jects Arbor Health Kujawski View mankind. experience 249, 252 Ctr., Care 455, 463, Wis. 2d 407 N.W.2d (1987). that negligent

The found that Jones was but jury Kinney's was a cause of her and her negligence negli- found Chorlton damages. jury also that was not a of Jones's but that his cause gent negligence or not the trial court Whether Kinney's damages. it did admitting evidence, erred this not prejudice relevant Kinney. only Jones and This evidence was of care and she duty the issue of Jones's whether duty. argue that Jones and do not Kinney breached this was related to Chorlton's liability evidence it somehow diminished the likelihood of the jury dam- finding Kinney's that Chorlton caused her Thus, might have become misled ages. jury duty confused as to Jones's care is irrelevant when did not find her be a cause of jury negligence Jones Thus, their were not damages. Kinney testimony. Accordingly, this we conclude prejudiced by that a new trial is not warranted. Instruction Absent Witness

8. Kinney argue court erro- that the trial and Jones neously it denied their discretion when exercised its pre- request instruction for an absent witness commenting to on Chorlton's failure According from vented them testify during to Jones and his case-in-chief. Kinney, played role in the case and a central Chorlton permitted they to comment on his been should have testify and the inferences on his own behalf failure to might that failure to been drawn from have that testify. provides: instruction The absent witness within to call a material witness party If a fails more natural control, or it would be its whom the party, and opposing to call than the party not satisfactory explanation for give to party fails the witness, you may infer that the then calling give would be the witness would evidence which to call who failed party unfavorable to the witness. give the absent to 410. The decision

Wis J I—Civil discretion of the sound rests within witness instruction 2d 75 Wis. Diefenbach, (1977). Roeske v. the trial court. justify In order 555, 560 262, 249 N.W.2d party requesting "must the instruction instruction, the relationship between there is a reasonable show that produce inference and the the witness failure to testimony witness, had it been of the absent jury, placed unfavorable would have been before the produce party D.L. v. the witness." who failed 890, 911 329 N.W.2d 581, 627, Wis. 2d Huebner, 110 1983). assertions, Kinney's to Jones

Contrary from the kept testimony completely Chorlton's as an adverse witness Instead, he was called jury. about his him extensively questioned they them and The trial court decision-making processes. conduct for the absent witness request denied properly the instruction was inappro- reasoning instruction called as an adverse had been because Chorlton priate had Kinney ample opportu- that Jones and witness and nity him. examine to failed demonstrate have also to Kinney

Jones and between the fail- relationship exists that a reasonable to his case-in-chief testify during of Chorlton ure his so, testimony he done would the inference that had further any We do not see how have been unfavorable. shed more any light Chorlton would have testimony by that Chorlton issue. The found jury on the causation not that his was causal. negligent negligence was but the causa- Chorlton's, decided testimony, Expert inference the only jury issue. The unfavorable tion have been that Chorlton was could have drawn would Thus, concluded. already than it had negligent more infer Chorlton's been to that permitted had the jury Chorlton, to failure to would be unfavorable testify have the same. The trial court's outcome would been an witness instruction or its permit failure to absent on the issue permit argument during failure to further arguments12 did not Jones and Kin- closing prejudice erroneously We conclude that the court did not ney. 12 assertions, they Contrary Kinney's to did com Jones and testify during closing arguments to on Chorlton's failure ment speculated they during his case-in-chief and did not know objection, why Upon he so. court failed to do Chorlton's trial disregard argu- jury portion closing of the instructed

940 exercise its discretion when it declined their request the absent witness instruction. TRIAL IN THE INTEREST OF JUSTICE

NEW new Kinney request Jones trial Finally, interest of We are justice. given authority 752.35, such a STATS. We grant request by may grant § a new trial if the real has not been controversy fully tried or if we conclude that a new trial will likely pro- Loh, result. State v. Von duce a different Wis. 2d (Ct. 1990). 102, 556, Our N.W.2d App. discussion shows that Jones and foregoing Kinney controversy have not demonstrated the real not tried or that a new trial would be likely produce their Consequently, reject request different result. we for a new trial. affirmed; and order

By Judgment Court. — dismissed. cross-appeal (and

EICH, C.J. I write (concurring). separately not to forth or The dissent- set briefly) argue position. his of this advocating view ing judge's lengthy opinion with case, disagreement and to an his equal degree the United both the and the relevance of reasoning v. Win- DeShaney in States Court's decision Supreme Servs., Social County Dep't 489 U.S. 189 nebago (1989), is for one argument enough day. Supreme in this case and the majority opinion

The DeShaney adequately explain in opinion Court's in each the decisions reached underlying reasons (or re- instance. Those reasons need not be restated obligation to call to the of the defense ment which referred Chorlton.

evaluated) DeShaney is the opin I only here. note on court an highest nation's of the majority ion as that, an intermediate this case and issue crucial of the court, we bound decisions are state appellate of federal questions Court on Supreme States United (and we several law- though law —even constitutional Mechtel, writers) See State v. may disagree. review (1993); State v. 94-95, 662, 666 87, 2d 499 N.W.2d Wis. 474, 478 Webster, Wis. 426 n.4, 338 2d N.W.2d (1983). reasoning, and dissent criticizes the majority’s DeShaney and other cases, as "falla-

its analysis do while I that, at 961.1 note only cious." Dissent I do not arguments, dissenting judge's with the agree They are exten- arguments those "fallacious." consider stated; they but are sively researched and eloquently ones which rea- also, legal positions, are most with as as disagree. Indeed, persons may sonable the law- both he and dissenting judge acknowledges, . . . "struggled their us positions who yers argued in the case. Dis- issues" legal procedural [and] with 953 n.7. sent at all did. Resolution of and consti- complex legal

We It is not a task tutional issues often a "struggle." in certainties but one of black-and-white admitting positions and often differing competing legal which considered, be evaluated analyses interpreted, must and, harmony harmonized. And where possible, where (witness it often in such eludes us —as does cases case, DeShaney in this in most of the dissents is rare today's opinions) other cases discussed —it that one side will have a on either truth or monopoly or, still, on both. rarer justice, I I join majority in this case because opinion am of the persuaded by its interpretation applicable

942 law and the manner in which it addresses the argu- ments advanced by parties. That is not to say that reasonable people including other judges — —will But I doubt disagree. us, of any whether in the majority or the has minority, the unquestionably "right" answer to the complex and often unsettling questions raised on this appeal.

SUNDBY, J. 0dissenting). Joshua DeShaney was two just weeks short of his fourth birthday when his father beat him so that he fell into severely a life- DeShaney Winnebago County coma. threatening (1989). Dep't Servs., Social 489 U.S. 193 doctors who performed brain emergency surgery on Joshua founds pools rotted blood in his brain result from ing his father's repeated beatings.1 (hereafter "Joshua")

Joshua and his mother began an action under 42 U.S.C. 19832 against the Winne- § bago County Department of Social Services, several caseworkers and other officials for them of depriving their interest liberty their personal safety under the due clause of process the Fourteenth Amendment the United States Constitution. The due clause process provides "No State . . part: . shall . . . deprive any Minow, Martha Words and the Door to the Land of Law, Change: Language, Violence, Family 43 VAND.L. Rev. (1990). 1665, 1666 Joshua patient survived but is now a in an profoundly institution for persons. retarded Id. provides Title 42 in part: U.S.C. 1983 § Every person who, any statute, ordinance, regu- under color of lation, custom, usage, any Territory State or or the District of Columbia, subjects, subjected, any or causes to be citizen of the person jurisdiction United States or other within the thereof to the deprivation any rights, privileges, or immunities secured laws, party injured Constitution and shall be liable to the in an law, equity, proper proceeding action at suit in or other for redress. process property, liberty, person without due life, of §XIV, Seventh amend. 1. The Const, U.S. of law ...." Appeals district affirmed the federal Circuit Court DeShaney dismissing Joshua's action. court's decision Dep't Winnebago County Servs., 812 F.2d 298 v. of Soc. (1989). (7th 1987), U.S. 189 court aff'd, Cir. require process the due clause did concluded beatings protect inflicted to Joshua from the state private certiorari, On a actor —his father. on him Supreme courts. Court affirmed the lower DeShaney court herein concluded

The trial grant respondents' required for sum- it motion mary judgment dismissing appellants' § I 1983 action. disagree. appellants claims under I conclude that state components procedural of the due and substantive the process distinguishable from clause. This case family DeShaney his child and involved because the subject juvenile dispositional ato court's herein were from his removed the child home order which placed Depart- custody County Dane him in the year. DeShaney ment of Social Services one Joshua subject dispositional order and remained was not a in his home. components: pro process has two

The due clause component. component cedural substantive (1990). DeShaney Burch, 113, 125 494 U.S. Zinermon component. only the The case involved substantive both. I conclude that because the before us involves duty Robby to care for and his fam state assumed recklessly ily, agents its were indifferent to that liberty duty, deprived appellants it of their interest personal safety component their under the substantive process I of the due clause. further conclude that respondents step Robby's forced father and because Robby accept their home without mother to back into opportunity object required by notice and an as they deprived procedural them of 48.357(1), Stats., § process.3 respondents' deprivation due In case, this appellants' right procedural process due contributed overlapped deprivation appellants' right to and their process. to substantive due

SUBSTANTIVE DUE PROCESS Rehnquist, major- Chief Justice who authored the ity opinion DeShaney, in stated that the most that Winnebago County could be said as to the caseworkers they by nothing was that stood and did while Joshua's point permanent insensibility. father beat to him the of physical custody 489 U.S. at 203. Joshua was not in of subject department's the supervision. nor state was he to the formal majority agreed The of the Court that the obligation process had state no under the due clause protect though violence, Joshua from his father's even agents regu- the state's knew that father was Joshua's larly battering periodically The him. social worker who expressed visited Joshua's home her belief that "the phone ring day would some and Joshua would be dead." (Brennan, dissenting). J., case, Id. at 209 In the instant majority liberty appellants' the concludes that interest personal safety protected by in their was the due process Robby family clause because neither nor his physical custody Robby was in state;4 the nor was 3 alleged by disputed respondents, This "fact" is are other as appellants allege. stage facts At the motion-to-dismiss of sum mary judgment, accept allegations we must these as true. Further, respondents argue: accepting appel "Even all allegations true, lants factual no as Sec. 1983 claim would exist DeShaney." under 4 However, respondents Robby in concede that "some custody" of sort of the state.

945 seriously wounded he shot and actor when state appellants. custody requirement physical has the While bright-line support advantage rules, it has no of all subsequent prior DeShaney or decisions overwhelming majority DeShaney. the courts The pro- duty to state assumes a have held when physical custody person who is not tect a process requires the state not clause state, the due duty. recklessly indifferent be (1973), Wade, 410 modi- Roe v. U.S. Not since Casey, S. Ct. Planned Parenthood fied (1992), Supreme evoked of the Court has decision commentary interpretive com- critical from such munity DeShaney.5 Aviam Soifer calls as has Professor Bandes, Critique, A Negative Constitution:

5 SeeSusan Beermann, M. Jack Administra 88 MlCH. L. (1990); Rev. 2271 DeShaney, Democracy: tive and Local The Politics Failure of Blum, Monnel, DeShaney, M. and DUKE L.J. Karen 1078; 1990 Duty, Policy, Established State Zinermon: Affirmative Official 1983, Liability Government Under Section Procedure and Local Battered Borgmann, L. Caitlin E. (1990); 1 24 CREIGHTON Rev. Protec Due Process Claims: Can Orders Women's Substantive of DeShaney, Michael D. 65 N.Y.U.L.REV. tion Deflect (1990); 1280 Daneker, Quest Reasoning Legitimacy, and Moral 43 AM. Fried, Avenues U. Rev. Arlene E. The Foster Child's L. (1993); 49 Unanswered, Questions J.L. & SOC. Redress: 26 COLUM. Left Minow, the Door to the Martha Words and (1993); 465 PROBS. Law, Family Violence, Change: Language, and Land of 43 VAND. Rutherford, Myth Due L. Rev. Jane (1990); 1665,1666-78 Sinden, Process, 1,60-62 (1992); Amy In Search 72 B.U. L. Rev. Post-DeShaney under a Duties Toward Children of Affirmative Soifer, Constitution, 139 PA. L. Rev. 227 Aviam Moral U. (1990); Ambition, Formalism, DeShaney, the "Free World" of 57 Process, Straus, A. Due GEO. WASH. L. Rev. 1513 David (1989); Sup. Inaction, Wrongs, and Private Government Ct. Rev. Chief Justice Rehnquist's an opinion "abomination." Ambition, Formalism, Moral Soifer, and the "Free World” DeShaney, Geo. WASH. L. 1513,1514 Rev. (1989). Professor Jack M. Beermann describes Rehn- quist's "free society" distinction as "bizarre." Beermann, Administrative Failure and Local Democ- racy: The Politics DeShaney, 1990 Duke L.J.

1087.

Professor Soifer's allusion to the "free world" of Joshua DeShaney refers to Chief Justice Rehnquist's assertion that "[w]hile the State may have been aware of the world, it dangers Joshua faced in the free no played in their part creation, nor did it do anything to render him any more vulnerable to them." added). DeShaney, 489 U.S. at 201 In (emphasis this case, respondents recklessly required father Robby's to reassume their stepmother to care for duty Robby, without them informing that Robby continued to use drugs was potentially violent. The caseworker's "reckless indifference" lies principally dixit decision to his ipse father and compel Robby's stepmother to accept Robby back into their home with- out informing himself and appellants as to whether Robby to return home. ready The worker's decision was not based on his assessment that Robby was ready for the "free world" but had no department placement available to treat I Robby's needs. conclude lack of available does not placement excuse the 53; Developments Legal in the Responses Law: to Domestic Vio- (1993). lence, 106 HARV.L. Rev. 1498 summary For a of the history protection of child Century, since the Seventeenth see Oren, Laura The State's Failure to Protect Children and Sub- Context, stantive Due DeShaney Process: in 68 N.C. L. Rev. (1990). 665-69 to his Robby according failure care department's needs. diminished Rehnquist severely

Soifer claims Winnebago County the the involvement of extent of the in and its workers Services of Social Department 1518. L. Rev. at 57 Geo. WASH. situation. Joshua's did not approach involvement Regardless, Dane County Depart- of the involvement almost total life. It is the extent in Robby's of Social Services ment case present which distinguishes involvement from DeShaney. Posner the constitu- DeShaney, Judge

In framed Court as to the presented Supreme tional question Wisconsin welfare by "a reckless failure whether under the state's supervi- child protect authorities" DeShaney, clause. process violate the due sion might it easy Soifer out how points at 299. Professor F.2d DeShaney majority to reach been for the would have result, on grounds, and to do so narrow the opposite constitutional Judge description Posner's view L. 1516 n.14. Professor Rev. at issue. 57 Geo. Wash. that: argues Soifer very easy to decide this case

[I]t... would have been facts, of its because appalling on the narrow basis inaction, despite governmental particular officials, surely state rises repeated contact indifference," "reckless- the level of "deliberate made actionable even ness," "gross" negligence recent, stingy precedents. under this Court's Id. at 1527. In the case before it us, governmental levels; is the affirmative which rises to such it inaction Joneses to coercing agents action of state's home, into their when the state's Robby back accept he continued knew or should have known that agents danger- potentially illegal drugs remained to use stepmother especially most of at whom ous, to his Robby's hatred was directed.6 " people upon' Rehnquist of refused to 'thrust unworthy expansion of the Due Process an Wisconsin (quoting at 1529 57 Geo. WASH.L. Rev. Clause." 203). DeShaney, at I do not believe that 489 U.S. unworthy people it an of Wisconsin would consider process require expansion clause to their of the due pro- departments juvenile service courts and social they have families over whom tect children and supervision. assumed Judge Rehnquist adopts Posner's

Chief Justice negative liber charter of of the constitution as a view DeVito, 686 F.2d U.S. at 195. In Bowers v. ties. See 489 (7th 1982), Judge "The wrote: Cir. Posner 616, 618 negative liberties; it tells is a charter Constitution require people it does not alone; to let the state provide government services, state to or the federal maintaining elementary law and a service as even so City 715 F.2d Joliet, See also Jackson order." (7th 1983) (Judge "the Posner stated that Cir. posi negative than rather is a charter Constitution Rights Bill liberties. The men who wrote tive might government do too little concerned that were not might people too much to them." but that it do for the (1984). (citations omitted)), 465 U.S. 1049 denied, cert. process component of the due Thus, substantive arbitrary capri protects individual from clause agents by but does not the state and its cious action private protect violence. The constitution them from order, Larry evaluated to court Dr. Zuberbier Pursuant evaluation, reported Robby's hatred of his Robby. In he his he how that he shook when described stepmother was so intense report. of this The caseworker was aware he could hurt her. depart- to maintain police the state require does not the people's made a decision ments; representatives. clause would due process hints that

Rehnquist had worsened if the state Joshua have protected case, this at 201. In See 489 U.S. situation. Joshua's coercing situation family's Robby's worsened state he was into their home before him back to accept them and his father world," assuring the "free ready progress had made such Robby that stepmother his home. It is returned to their to be ready he was that the caseworker that when however, undisputed, discharge after his to his home Robby to return sought House, stepmother his father Thoreau from at Bockari Robby placed and the caseworker objected are juveniles to which facility House, temporary The stepmother are awaiting disposition. who assigned Robby her that assured that the caseworker deposed allege House. The appellants at Bockari help get would not Bockari House was knew that the caseworker facility. a treatment based his that the caseworker undisputed

It is also to his home on his belief Robby return decision to [1982], highest maintained Robby "[d]uring August behavior, completed and he to good at Bockari due level visited AA school, meetings and attended summer later admitted The caseworker his parents." with however, true. In his brief reply were not these facts he knows on facts which rely continues the worker at level of behavior high was at a "Robby are not true: in both improved consistently House and had Bockari his throughout stay therapy and family individual year." the previous over placements of the various all where in the record do not cite anywhere Respondents fact, In is chronicled. level of behavior" "high this discharged Robby improved; from he was had not violating Wyeth House for home House and Thoreau drugs illegal he was to use while rules. He continued engaged placed He in such homes and thereafter. directed at himself and others. abusive behavior determining merely negligent in caseworker was Robby's recklessly situation; indifferent true he was Robby's condition. question he did not

The caseworker admitted that Robby's progress. Had the staff as to Bockari House progress notes he would reviewed staff caseworker Robby's "progress" at Bockari House have found that group homes. his conduct at other was consistent with Wyeth Family in her at House stated The Discharge Counselor Summary: sessions, family Rob group,

In individual highly intelligent, pleasant, himself as presented ability con. He has the and a first-rate defensive counseling situation be it individ- quickly up size ual, family, appropriate and feed back group or anger, suppressed feelings of responses. verbal His At these did sometimes surface. hurt and shame and self-abusive. Old times, Rob became violent hurts, conflict centering on the divorce family major were areas parents, between his natural for Rob. confusion, rage frustration and game his con part, played For the most Rob always responses. He was almost group mouthing family sessions.... dishonest covering Robby's stay at Bockari The staff notes "honeymoon" period then disillu- House reveal Robby placed August 1982, staff at 3, On was sion. highest Bockari level attainable at five, level reported daily log, on In the staff worker House. her perfect day August usual, "As Rob had a 1982: became the staff workers great." Gradually, he's doing them. On conning of how was at Robby aware adept him at level two. He 20,1982, staff back placed August bowling at a fight into a with another resident got he'd him "one more fist and be The worker told alley. "He looked at me called me a [and] detention." going to ready 'f— and made a fist." worker bitch' but him the benefit Robby's gave placement terminate of the doubt. days two before his scheduled August 25,1982,

On home, at and 8:30 p.m. return some time between 7:00 took off. The Robby broke out the screen door and p.m., far, the out. The worker was bottom did fall The prescient; whether able to deal questioned Robby worker was an She his open setting. suggested possibly with behavior related his deteriorating attitude and were at home. commented: pending placement worker nearly "It's obvious that Rob is not as mature or stable initially as he us as impressed being." confer with did not caseworker family's The Jones ready Robby whether staff to determine Bockari that he deposed The caseworker home. be returned him inform whether staff would that Bockari expected returned not be Robby should why were reasons there home. support which to reed upon

DeShaney is a weak as to the facts in this case because summary judgment and seriously disputed are care of Robby respondents' missing. of duty DeShaney's predicate —is —lack to the responsibil- as authority There is a wealth under state their liability ities of social workers in Child Liability See law and 1983.7 § Welfare Strategies, ABA Management Risk Protection Work: (1991). Our research and the Law On Children Center has been 1995, DeShaney since January reveals that and authorities These cases decisions. fifty-five cited relationships noncustodial establish firmly due the may trigger the claimant the state and between relationship there is a "special" clause when process state or when the and the claimant the state between authority the of that Unfortunately, our research Also, my delayed our decision. of this case posture unusual accept majority's view I could not me that research satisfied protect require the state to does not process due clause that the I custody state. physical of the in the who are not individuals jury's verdict significance of struggled with the for sometime respondents' grant of the trial court's claim on in the state-law civil dismissing appellants' summary judgment motion for parties to brief required the I would have rights action. only struggled not with Plainly, parties have also question. case did not procedural This issues. legal issues but the Undoubtedly, shooting. years eight after to trial until come delay. to the injuries contributed appellants' severe danger might places person in in which not be faced world." the "free appalling cases,

In of these the facts are so several majority's they graphically illustrate that bright-line "custody" superficial be seri- rule is too ously One of these cases is considered as standard. Sinthasomphone City case, the Dahmer Estate of (E.D. 1992). Supp. 1343 Wis. The Milwaukee, 785 F. stage, it concluded that at the motion-to-dismiss court say special relationship no existed could police. court, victim and the between Dahmer's respondents' therefore, denied motion to dismiss based DeShaney DeShaney. on The court concluded that "the surface; is not without some small cracks its doctrine perhaps, 785 F. hairline, but cracks nonetheless." Supp. at 1348. by Ross v. United

One of these cracks was caused (7th 1990). twelve-year-old Cir. A States, 910 F.2d Michigan. boy Lake Within min- fell from a dock into lifeguards, fighters, police utes, two fire one officer two diving equipment civilians with scuba and two any responded pleas However, before assistance. begin, County deputy attempt a Lake rescue could patrol sheriff arrived a marine boat. He insisted that only county, Waukegan, which had a contract with provide Michigan. rescue on Lake When could services attempt the civilian scuba-divers offered to to rescue boy deputy promised risk, at their own sheriff they Twenty if min- to arrest them entered the water. pulled boy later, utes authorized divers arrived and course, from the water. Of he died as a result of the complaint The court stated a incident. found that against County § claim under both Lake and the deputy. deputy individual While the sheriffs had not boy custody, taken the into he had taken control of the unconstitutionally his had situation and directives by danger. to a boy special the subjected reveal almost The decisions we have researched an DeShaney the show to where facts hostility unanimous to or allowed be invol- placed persons the state has special danger. in situations of untarily placed on The Bar Association Center Children American DeShaney that, the Law has served "[w]hile and states protective the of child liability caseworkers, to limit child welfare and of service agencies, private prov- the in some it does not affect most of respects, iders in Child Liability filed in this context." cases Welfare The the and Protection Work at 18. Center assesses to ade- liability level of risk of where the state fails from harm in foster care as a child quately protect Id. at 27. It rates failure to warn child's the "high." Id. as "moderate-high." dangerousness on local 48, STATS., imposes I conclude that ch. caseworkers an of social services and departments or her to the child his affirmative obligation protect the the when court child and family juvenile places the and the depart- under the court's protection family by order entered supervision. dispositional ment's Dane this case required court juvenile Services supervise Social County Department in a designated and to maintain his Robby placement when That order was still effect facility. out-of-home home his Robby to his over the caseworker returned objections, and without stepmother's and his father's knew, court juvenile As far as approval. court Bockari House. was still at Robby placed the disposi- with failed Respondents comply and statutes. order rules applicable tional 58.03(12) defines supervi- Code HSS § Wisconsin Adm. as: sion youth pro- which a disposition under

[A] court by department, services community vided adult under agency lead or a suitable another the court and which are prescribed by conditions mental and moral well- designed physical, for the and include reason- youth of the being and behavior youth's conduct and the requirements able parents, guardian legal conduct his or her custodian. added.) (Emphasis Stats., 48.01(2), provides:

Section chapter liberally This shall be construed in this section. The objectives effect the contained para- be of always of the child shall best interests but the court shall also consideration, mount parents guardian the interest the or consider of of child, the person persons the interest of the or with placed adoption the child has been for whom public. the interests of the added.) (Emphasis child stat- protection

I conclude that Wisconsin's the and its do more than require agents utes state stand when children and their families are merely by of case, duty Robby's at-risk.8 In this the common-law 8 DeShaney open deciding Court left this avenue 2, precise question. In the footnote the Court stated: argue protection Petitioners also that the Wisconsin child stat- gave protective in utes Joshua an "entitlement" to receive services statute, of which accordance with the terms the an entitlement enjoy process protection against deprivation would due state under Roth, Regents College U.S. our decision Board State v. 408 of (1972). argument petition- 564 But this is made for the first time in pleaded complaint, argued ers' brief to this Court: it was not the ground reversing Court, Appeals to the Court of as a for the District petition or raised in for therefore decline to the certiorari. We consider it here.

956 Robby parents broke down. The state to care early parens patriae. stepped "From times in our in as sovereign parens law, been considered to be the has children_" patriae Bartels of destitute abandoned (N. County 908 Westchester, 906, v. N.Y.S.2d Y. 1980). placed Sup. case, In instant the state Ct. the family juve- protection Robby his under the of the supervision department. nile court and the agents indiffer- However, the state's showed reckless Robby family. physical safety ence and his to the process due indifference sanctionable under the That through § I 1983. do not believe that clause U.S.C. protective relinquish can its role when it state

falters. any Rehnquist concluded that

Chief Justice duty to under an individual state has affirmative entirely process "from must derive due clause imposed freedom on his own limitation... on his to act DeShaney, at 200. the state behalf." 489 U.S. When placed judged Robby delinquent and him outside his pre-emp- it treatment, home for care and asserted its points parens patriae tive Professor Soifer role. protective "pre-emptive quality of the state's initial at In earlier 57 Geo. L. Rev. 1518. an decision." Wash. (1984), opinion, Martin, 467 U.S. Schall Rehnquist by defini- "Children, stated: Chief Justice capacity the to take not assumed to have care tion, are They subject to to of themselves. are assumed be parents, parental if falters, control of their control parens patriae." (Empha- play part the State must its as added.) sis parental only case, this not did the Joneses'

In parens patriae falter, role control State its as omitted). (citations n.2 U.S. at 195 Robby's step- However, father faltered. likewise protect from to themselves free mother were seeking only danger Robby by potential presented they protection § 48.13(4), Stats., had. Under realistic (CHIPS), Protection or In Need of Services Children department parent may petition the of social services parents parental child's when the role of a to assume option not available to falters. That was control Robby's juvenile stepmother because the father and Robby delinquent and not a determined that court dispositional protection or services. The child in need juvenile October court had entered order which 19, Robby's step- father and remained in effect. they no told the caseworker that had mother were Robby They accept their home. but to back into choice they requiring longer option, believed, had the so no Robby department provide treatment for outside to home. I conclude that reasons, of their For these liberty deprived appellants respondents of their inter- process personal safety in their under the due est cause.

PROCEDURAL DUE PROCESS Respondents argue that we should not consider procedural process appellants' due claim because that was not in the trial court. I conclude other- claim raised Appellants allege basis wise. procedural facts which form the for a process

due claim. Appellants argue respondents deprived them procedural process they give due when failed Robby, stepmother his father and his notice and an Robby's change placement, opportunity object required by majority § 48.357(1), as STATS.9 con- 48.357(1), Stats., provides:

9 nection the statute to purpose give persons cedes that the of is in of a child an change opportu- affected a by placement However, contend that because the nity object. they to 48.357(1) failure with was a comply caseworker's to § act," have no "random and unauthorized appellants cause of action under 42 U.S.C. 1983 for deprivation § of to unless can show right adequate process they their that adequate do have an they post-deprivation under state It is critical to remember remedy law. the and act" applies "random unauthorized doctrine In this case, appellants' due only procedural process. overlap. due procedural process rights substantive Robby's step- failure to father and give Respondents' person agency primarily responsible implementing or for change dispositional may request placement of order a in the the child, change requested or in the whether not the is authorized the dispositional order and shall cause written notice to be sent to guardian litem, parent, ad foster child or the child's counsel or parent, guardian legal custodian. The shall contain the notice change placement, of the for the name and address new reasons describing why placement, placement is a the new statement preferable present placement and a of how the statement objectives plan placement satisfies ofthe treatment ordered new Any person receiving or the notice under this subsection the court. specific placement foster under s. of the foster or treatment notice (2) (b) may hearing by filing on the an 2. obtain a matter 48.355 days receipt objection of the notice. with the court within days changed notice is shall not be until 10 after such Placements parent, guardian legal unless custodian sent to the court objec- child, years sign age, if 12 or more written waivers tion, except placement changes in the which were authorized immediately given may as dispositional order made if notice is be addition, required hearing required a is not in this subsection. In dispositional except changes placement in the order authorized alleges objection by person an a who received notice where filed advisability is new information which affects the available hearing dispositional If this sub- the court's order. held under change placement child from a and the would remove a section home, may parent the foster submit written statement foster prior hearing. dangerous to object placing to opportunity mother an as arbitrary capricious home was as in their person itself. placement the does not create a property due clause process

The Amend Fourteenth interest; nor does the or liberty such adversely affecting the state from ment prevent "No State clause process provides: interest. The due an life, of or liberty, . deprive any person . . . shall . . law" (Emphasis due process without property, of added.) notice and a reasonable requires Due process See Cleveland Bd. to be heard. fair opportunity of Educ. (1985). Loudermill, 532, 470 U.S. 541 v. in part: Title 42 U.S.C. 1983 provides § Every person who, subjects, . [law] under color of . . to the subjected person [a] to be ... ... or causes or immunities any rights, privileges, deprivation laws, shall be liable by the Constitution secured law, in action at suit party injured to the an proceeding for redress. equity, proper or other added.) (Emphasis 1983 not confer constitutional any

Section does is right it the constitutional is how right upon anyone; of a statute denomi- enforced. Section 1983 is part Fourteenth Amendment." nated "An Act to enforce the 167,171 (1961), 365 U.S. overruled Pape, See Monroe 436 Servs., Monell v. Social by Department in part (1978) it (overruling "Monroe insofar as U.S. are not who governments 'persons' may holds that local suits."). be defendants § I usurp power Bear with me a moment while Could the 48.357(1), legislature repeal § Stats. remove a child or the caseworker then department his or her home without notice and an opportunity from it. not; the constitution forbids Obviously to be heard? a child place or caseworker department Could the change placement outside his or her home and or child, his or her parents, notice without litem, opportunity and without an child's ad guardian willing is to concede that majority to be heard? right its could do so. The agents neither the state nor heard not conferred an be opportunity notice and 48.357(1) but the constitution. by § STATS., consider §48.357(1), legal Without parents child or his her depriving effect of on of right any notice the to be heard dislocation State" "[n]o The due clause family. process says of law." But process do a "without due thing, shall such of a enacted, a con- deprived before 1983 was person § or its way no to the state right punish stitutional had him or of a her constitutional depriving officers for enacted, however, person a After 1983 was right. § for a right process, of constitutional deprived —due who a to penalize "[e]very person" example right —has so as long him or her of a constitutional right, deprives of color law. After my repeal is under of deprivation his still 48.357(1), stepmother his father and Robby, § against respondents under 1983 § had a cause action without due them of a interest depriving liberty for a law. Can that anyone seriously argue per- process of her of his or constitutional protection son has less due local enact governments pro- if states and rights That, however, rights? to those procedures protect cess fallacious of the Their majority's argument. effect to understand Par- their stems from failure argument by v. overruled Daniels rott (1981), 451 527 Taylor, U.S. Palmer, v. Williams, Hudson

v. (1986); 474 327 U.S. Burch, v. and Zinermon 494 U.S. (1984); 468 517 U.S. (1990). that strongly I too emphasize cannot the procedu- and unauthorized" to exception "random does not apply ral of the due clause component process opportunity the state has notice and an provided when life, it person liberty to be heard before deprives it the state could have Nor does when property. apply but failed sufficient constitutionally process provided made this clear to do so. The Court had Supreme Zinermon. Zinermon makes clear "when

Certainly, constitutionally required officials fail to provide [state] safeguards they deprive to a whom procedural person escape liability the state officials cannot then liberty, Hudson." 494 U.S. at 135. The by invoking Parratt I, Court found it as do "to allow state officials strange, fol- [or escape liability failing provide § constitutionally procedural protections low] required those would be futile by assuming procedures the same officials would find a way because state them." Id. at I find it even stranger subvert 137-38. state secure from 1983 may immunity official § due to follow liability by refusing process procedures mandated legislature. Macht, Irby

I 184 Wis. recognize precedent denied, cert. 9, 2d 522 N.W.2d 115 S. Ct. 590 (1994). a the Irby was who claimed prisoner prison committee violated his disciplinary right procedural due when it failed to follow Wis. Adm. Code Ch. process Irby DOC 303. is no because the longer precedential Helms, the court — Hewitt v. case by relied on 459 U.S. (1983) 460 the been abandoned United States by —has Court as the test to determine whether an Supreme liberty inmate has a interest the due protected by pro (1995). Conner, cess clause. Sandin v. 115 2293 S. Ct. Henceforth, an inmate's to constitutional right protec tion will on depend whether the restriction "imposes atypical significant [an] and on the inmate in hardship

962 ordinary prison incidents life." Id. at the of relation to 2300. philosophy impossible of to know whether

It is liberty and will extend determinations Sandin prison property in areas other than disci- interests procedural pline. If the returns to fundamental Court process jurisprudence, Sandin, in as it did due exception will be and unauthorized act" "random thing past. largely The "The time of the Court said: a process principles that to return to those due has come correctly applied established were Wolff (1974) Fano, Meachum v. McDonnell, 418 U.S. 539 (1976)]." Liberty property 427 215 Id. at 2295. U.S. longer depend on a mechanistic will no interests upon formula but substance. private has in a interest an individual

The which always liberty property interest does not mandate or opportunity pre-deprivation to be heard. notice and may outweigh private government's interest deprivation of the or the risk of an erroneous interest, may procedures private be increased interest safeguards procedural or additional substitute used Eldridge, may Mathews v. more than their value. cost (1976), quoted Zinermon, 494 U.S. 319, 335 U.S. at 127. Supreme applied Court has

When the "usually Eldridge it has held that the test, Mathews v. hearing requires kind of Constitution some before person liberty property." deprives State (citing Loudermill, at 470 U.S. Zinermon, 494 U.S. (" '[T]he requirement' the Due Process root at given opportunity be an Clause" is" 'that an individual significant hearing deprived any he before interest.'") added)). (emphasis protected 963 'some kind of minimum, due process requires "[A]t Id. some kind of 127 hearing.'" (quot- notice at and ... (1975) Goss 565, 419 579 Lopez, v. (emphasis U.S. ing added)). the by of action However," necessity quick 'the providing any predepriva- State or the impracticality remedy tion mean that a process' may postdeprivation Logan Id. at adequate." (quoting constitutionally is (1982) Co., Brush v. Zimmerman 455 U.S. 539)). Parratt, 451 U.S. at (quoting v. Mathews to the Parratt is not an exception Zinermon, 494 U.S. at 129. It is Eldridge analysis. to the case "rather an test unusual application Mathews in the equa- of the variables which one safeguards tion —the value of pre-deprivation —is at kind of deprivation the negligible preventing Id. issue."

The Mathews test what determine requires in a requires the constitution procedural protections case, the court must several factors: weigh particular First, that will be private the interest affected action; of an second, the official the risk erroneous procedures deprivation through of such interest used, probable value, any, if or and the additional finally, procedural safeguards; substitute interest, including Government's the function fiscal involved and the and administrative burdens procedural substitute additional requirement would entail.

Zinermon, Mathews, at 127 424 U.S. 494 U.S. (quoting 335). at

In case, this interest affected is enor- private it mous; involves the which integrity family, See Santosky clearly protected by constitution. (1982). Kramer, 48.357(1), STATS., 455 U.S. 745 Section admirably depri- erroneous constructed to correct an is required notice of an interest. The vation such child's counsel must inform the child or the thereunder guardian legal parent, guardian or custo- litem, ad change placement, in of the reasons for the dian describing why place- including the new a statement preferable present placement a to ment the objec- placement the satisfies of how new statement plan by Thus, court. of the ordered the tives treatment change justify agency the of the must the caseworker or representatives placement, or her child, and the his opportunity object family to to the must an have change placement. the in outweigh government's may pri- the

The interest emergency an if conditions necessitate vate interest change placed placement of the child immediate the 48.357(2), Respondents § the home. See outside Stats. Robby's change placement due not claim that of do emergency to conditions. Eldridge balancing test, the

Under Mathews v. the substantially Robby family private of and his interests outweigh government's Thus, consti- interest. required hearing some kind of a state tution before Appellants' rights pro- changed Robby's placement. to Robby's process because due were violated cedural Robby change placement notice was made without opportunity object. family his and without an STATE-LAW TORT ACTION negligent jury The the caseworker was found that negligence appellants' a was not cause but his finding injuries. erroneous as This as to cause is changed have and the trial court should matter law question. jury's answer this has been well as to "cause" test Wisconsin Supreme of the Wisconsin decisions articulated early traced Campbell Professor Richard V. Court. Developments in Recent of the law development 6. He Wisconsin, 1955 WlS. L. Rev. Negligence Law of Theater, Gateway v. Standard concluded Pfeifer (1952), established 55 N.W.2d Inc., Wis. law. 1955 WlS. L. substantive in tune with procedure on an instruction at 37. That court prescribed REV. of the the use rejected cause which legal proximate in of factor." cause" favor "substantial term "proximate Campbell 55 at 33. Professor 237, 262 Wis. at N.W.2d in the law brings that, "[t]his [instruction] concluded L. Rev. 1955 WlS. together." action and the law words at 37. of noted that Circuit Court Appeals

The Seventh ver- jury Court has overturned Supreme the Wisconsin the the found that jury dicts in several cases where Ford of was not causal. Fietzer v. party negligence (7th 1978). In 215, Samp- 218 Cir. Co., Motor 590 F.2d (1975), 318, 66 2d 224 N.W.2d 594 Laskin, son v. Wis. but negligent found that the were plaintiffs the jury the not the cause of death negligence their was finding The court concluded that that involved. injuries 224 at 599.1 need 328, could not stand. Id. at N.W.2d note the relied on the court except not detail facts concluded, The court undisputed. that the facts were of however, guilty contributory that were plaintiffs and remanded the case The court reversed negligence. on the issue of comparative negligence. for a new trial In the in which the court has set supreme cases cause, the real issue was aside a of lack of jury finding the issue in this case. That is contributory negligence. the defendant is When the determines that jury it resolves the issues fact as negligent, disputed 966 cases, court has supreme issue. In previous and determined as a matter of law reviewed facts of plaintiffs inju that a a cause party's negligence Movers, Inc., ries. See Miles v. Ace Van Lines & 72 Wis. Mustas v. Inland Con 538, (1976); 186 2d N.W.2d str., Inc., (1963); Wittig 194, 120 2d N.W.2d 95 Wis. (1957). Kepler, 82 N.W.2d 341 Wis.

In this acts case, jury respondents' found that acts have negligent. only were Those can included return to his home without respondents' Robby he using was still informing drugs appellants potentially his behavior was violent dangerous.

It is not to state that whether a party's accurate is a question was the cause an negligence injury but "in jury any fact. decide may question only on the issue." case which it differ may reasonably 434(2) (1965). "It § (second) of Torts Restatement .. . the function of the court determine whether upon as to the facts makes an issue which evidence as the of may differ to whether conduct jury reasonably causing been a factor in the defendant has substantial 434(l)(a). Id. to the harm the at plaintiff." § The has not Supreme Wisconsin Court accorded of the of lack causation traditional jury's finding an court to the of a gives findings respect appellate made a de novo fact, In court has frequently the jury. of jury finding of the and set aside a review evidence to the evi- contrary lack of cause where the "is finding Wittig, is on 275 Wis. dence and based only conjecture." Smail, see Hatch v. also 344; 82 249 419, at N.W.2d at (1946). 460, 23 463 In the 189-90, Wis. N.W.2d case, the of question latter the trial court submitted the defendant's negli- cause to which found that jury causing was a substantial factor in plaintiffs gence "It well be under said, may court however: injury. The deter- might that the court have the of this case facts Id. of as a matter law." mined causation jury must that the reviewing court assume The fact in of has issues of favor disputed resolved may, There negligent. if it finds defendant plaintiff is however, negligence be cases in which defendant's to the concretely more or and is not tied less abstract court case, cause. In that the reviewing question That change jury's finding. should be loathe in lies negligence here. The caseworker's case back into their accept Robby the Joneses forcing that knew or should have known though home even he to the members Robby dangerous society The stepmother. his situation family, especially his and his well family which the caseworker placed Robby Judge snake alluded to pit fits metaphorical Bowers v. at "If the DeVito, Posner 686 F.2d 618: man in a from puts position danger private state him, it not be protect and then fails to will persons as heard to its role was it is say merely passive; if him into a much an tortfeasor as it had thrown active pit." snake conference,

In plain- the instructions and verdict J tiffs instruction —Wis argued pattern (Cause)10 The jury. I —CIVIL confuse the —would (Cause) reads: Wisconsin JI— Civil 1500 questions The cause ask whether there was a causal connec- (accident) any negligence person tion and the between (injury). questions ask cause" "a These do not about "the but rather may cause." reason be one The for this is there more than may (accident)(injury). negligence person cause of an of one (accidentXinjury), negligence cause or the of two or an combined may persons you (any)(a) person's more it. Before cause find (accident) negligence you (injury), was a of the find that cause must amended an request rejected appellants' trial court instruction. jury discretion when court has broad

The trial Ganju, Fischer v. 168 Wis. 2d instructing jury. (1992). meaning If the overall 10, 16 849, 485 N.W.2d state is a correct the instructions communicated exist. Id. at for reversal law, grounds no ment of the submit the instruction Plainly, at 16. 850, 485 N.W.2d asked for additional jury the The jury. ted confused court on two questions: from the instructions neglectful action "a cause" refer 1. Does building factor in contributing being a direct injury? was the situation, the outcome of which inaction, neglectful "a cause" refer 2. Does any the construction may prevented have which (similar) injury may situation which hypothetical occurred? have to re- the jury instructed court simply

The trial Two jurors had given. the court the instruction read I cannot conclude questions. the cause dissented on discretion its erroneously exercised the trial court which the instruction on it declined elaborate when is understand- first jury’s question gave. the court There was incomprehensible. but the second able these ques- to answer danger attempting greater instruction. to re-read jury directing tions than erro- instruction the pattern I not believe that While do law, I believe as to the the jury informed neously For example, complete. be more could instruction The most factor." define "substantial could instruction more the acts of is that "causation" confusing aspect (accident) producing the factor in negligence a substantial (injury). a defi- I suggest an injury. cause may one person than follows: factor" as nition of "substantial means that defendant's factor" "Substantial way significant to in a contributed conduct conduct Defendant's plaintiff. injury suffered if the conduct factor" even may "substantial be a plain- also contributed person persons another injuries. tiffs instruc the pattern objecting that by

I believe instruction, amended an tion and requesting their claim review for appellate preserved plaintiffs factor a substantial acts constituted that respondents' Fischer, See Wis. 2d injuries. in causing appellants' C.E.W., In re (citing 15-16 849, 485 N.W.2d at at also 47, (1985)); see 54, 368 N.W.2d 47, Wis. 2d N.W.2d 451, 463-68, 453 2d Dewey, 154 Wis. Douglas 1990). (Ct. 505-07 App. necessary. trial We that a new I do not believe negli- respondents' a matter of law that can conclude as I would injuries. a cause of appellants' gence this cause to and remand reverse the judgment jury's change with instructions trial court to the cause questions. answer as I respect- forth in this opinion, For the reasons set dissent. fully notes "So Rob's following: worker's show the last weeks show a disturbance great actions few [and] him. All of the sudden mood vio- changes within home, he's ready may [and] lence show not yet go added.) counseling." need further (Emphasis possibly Another worker had Robby signed reported his but did not do so. The worker girlfriend out to visit commented: honesty credibility, [and] much for which leads So questions. being to several If Rob is deceitful other time, long going use on? about his how has it been things he being And is also deceitful about other taking things [and] like his use from chemical I'm others? afraid the bottom to fall out. about

Case Details

Case Name: Jones v. Dane County

Court Name: Court of Appeals of Wisconsin

Date Published: Jul 20, 1995

Citation: 537 N.W.2d 74

Docket Number: 92-0946

Court Abbreviation: Wis. Ct. App.