David William LINVILLE, Sr., and Estate of David Linville, Jr., Plaintiffs-Appellants, v. CITY OF JANESVILLE, David Moore, Gary Myers, Paul Bloom, Stephen Dorsey, Wes Meacham, Dennis Witek, Kenneth Bollinger, Arthur Stearns, Larry Grorud, The City‘s & Village‘s Mutual Insurance Company, ABC Fireman DEF Policemen, GHI Paramedics, XYZ Insurance Company, and QQQ Insurance Company, Defendants-Respondents. Kelly C. LINVILLE, and CPC Greenbrier Hospital, Plaintiffs-Appellants, v. CITY OF JANESVILLE, Paul Bloom, Dennis Witek, Kenneth Bollinger, Larry Grorud, Stephen Dorsey, Wes Meacham, Arthur Stearns, The City‘s & Village‘s Mutual Insurance Company, XYZ Insurance Company, and QQQ Insurance Company, Defendants-Respondents.
No. 91-1099
Court of Appeals of Wisconsin
Submitted on briefs January 8, 1992.—Decided February 25, 1993.
174 Wis. 2d 571
†Petition to review granted. *See Callaghan‘s Wiscоnsin Digest, same topic and section number.
For the defendants-respondents the cause was submitted on the brief of Thomas J. Basting, Sr. and Margery M. Tibbetts of Brennan, Steil, Basting & MacDougall, S.C. of Janesville.
Before Gartzke, P.J., Dykman and Sundby, JJ.
The plaintiffs charge that the city and its employees negligently effected the rescue and negligently provided emergency medical services to David. David‘s father seeks damages for David‘s death. David‘s estate seeks specified damages for his injuries and death. David‘s mother claims damages for her physical and emotional injuries, medical expenses as well as other damages connected with David‘s death.
The dispositive issues are (1) whether defendants are entitled to recreational land use immunity from liability to the plaintiffs under
We hold that none of the defendants is entitled to immunity under either theory. We therefore reverse the judgment dismissing the complaints against the city, its shift commandеr and the paramedics. Since the plaintiffs assert that the fire chief and deputy chief violated a ministerial duty which they have not been shown to possess, we affirm the judgment as to those two defendants.
1. Summary Judgment on Recreational Use Immunity from Liability
It is undisputed that Janesville owns the park in which David drowned.
We review de novo an order entered on a motion for summary judgment. Grosskopf Oil Inc. v. Winter, 156 Wis. 2d 575, 581, 457 N.W.2d 514, 517 (Ct. App. 1990). Summary judgment cannot be granted if genuine issues of material fact exist. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980). That the complaints state claims is not disputed. The answers deny liability and plead immunity. The defendants moved for summary judgment dismissing the
The defendants’ theory is that because David and his mother were engaged in a recreational activity at the time of their injuries in the city park, defendants are immune from liability by virtue of
The mother deposed that on the night of November 12, 1988, a Walter Hadden drove her and David in Hadden‘s van to a grocery store. When she returned to the van, she found that Hadden had been to a liquor store to buy a twelve-pack of beer and had been drinking. They argued because of his drinking. She told Hadden to take them home, but he ignored her. He said he wanted to take David where Hadden had fished when he was young. Hadden drove to a pond in the park and stopped the van at the water‘s edge, facing the water, and shined the van‘s lights on the water to show a good fishing spot. Everybody stayed in the van perhaps ten minutes, during which the mother argued and said she wanted to go home. Hadden‘s response was to put off her request.
When Hadden started to back the van away from the water, it stuck. The mother got out, went to the front of the van, and tried to push it backwards, but it jumped forward into the water and started to sink, with David and Hadden in it. After unsuccessfully attempting to open the side door, she ran for help. Later the city fire and police officers and paramedics arrived and winched the van out of the pond. The paramedics triеd to resuscitate David at the scene and then took him to the hospital where he died. Hadden also drowned.
The plaintiffs argue that whether David and his mother engaged in recreational activity is a disputed issue of fact. We disagree. The material facts have been established through the mother‘s dеposition. The facts are simple. Ignoring her repeated demands to be taken home, Hadden took the mother and David to the pond in the city park to show David fishing spots. David drowned in the pond and later died from his injuries. Neither the plaintiffs nor defendants claim that the facts are otherwise.
The material facts having been established, whether the conduct of David and his mother was recreational activity for purposes of
We apply an objective test to the undisputed facts to determine whether an injured person was engaged in a “recreational activity,” as defined in
Hadden‘s activity at the pond was recreational, whether assessed objectively or on the basis of his subjective intent. He drove to and was at the pond to show David fishing spots. Fishing is a recreational activity,
The mother was not engaged in a recreational activity. She had no reason whatever for being at the pond. She did not cause or will her presence at the pond. Indeed, she was there against her will, and Hadden must have known it. From the time the van left the store until it was stuck at the pond, she expressed her displeasure at not having been taken directly home. She repeatedly demanded she be taken home.
Because his mother was not engaged in a recreational activity, neither was David. In her affidavit, the mother states that she had custody and control of David on the date of the incident. David was four years old, an infant. The parent‘s purpose is imputed to the infant who accompanies its parent for purposes of determining whether the infant was engaged in a recreational activity. Nelson v. Schreiner, 161 Wis. 2d 798, 802, 469 N.W.2d 214, 216 (Ct. App. 1991).2 Thus, in Stann, we said that when a mother took her three-year-old infant to a public beach to wade and the infant drowned, it was irrelevant that the infant had no discernible recreational purpose. 161 Wis. 2d at 823, 468 N.W.2d at 781-82. We held that the infant was at the beach for the purpose of engaging in a recreational activity.
That Hadden‘s purpose in taking David to the pond was recreational is irrelevant to our inquiry. Hadden was not David‘s father. Nothing in the record suggests that Hadden claimed the right to control David. David‘s mother had the exclusive right to decide where David would be and why. Her purpose was David‘s purpose.3
2. Summary Judgment on Municipal Immunity from Suit
a. The Immunity Rule
Defendants claim municipal (or governmental) immunity from the plaintiffs’ suits.
Municipal immunity from suit under
The сommon law immunity of municipalities and municipal employees for torts was abrogated in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618, 625 (1962), except when the municipality exercises “its legislative or judicial or quasi-legislative or quasi-judicial functions.” The legislature incorporated that language into what is now
After the Holytz decision, the general rule in Wisconsin “is liability—the exception is immunity” when a municipality or its officer or employee is charged
Judicial decisions have established that the terms “quasi-legislative” and “quasi-judicial” in
The question in Scarpaci was whether a county medical examiner who negligently conducted an autopsy on the body of the plaintiffs’ deceased child was immune from suit. The court held that the decision whether to proceed with an autopsy on the basis of the medical examiner‘s evaluation of the facts and law was quasi-judiciаl under what is now
The court of appeals has held that Scarpaci has a narrow application. The court has said that only three Wisconsin decisions have recognized a “discretion but still not governmental discretion” distinction. Stann, 161 Wis. 2d at 818, 468 N.W.2d at 779 (referring to Scarpaci, 96 Wis. 2d 663, 292 N.W.2d 816, Protic v.
b. Fire Chief Stearns and Deputy Fire Chief Grorud
Chief Stearns and deputy chief Grorud were not at the scene of the drowning. Plаintiffs limit their contentions on appeal to a single issue regarding those defendants. Plaintiffs contend that because those defendants violated their ministerial duty to provide extrication equipment in each ambulance, they are not entitled to immunity under
Plaintiffs rely upon
There is no doubt that
c. Shift Commander Bollinger and Paramedics
The plaintiffs limit their argument regarding Bollinger and the paramedics to their failure to promptly extricate David from the submerged van. Plaintiffs assert that because those defendants are claimed to have negligently performed their ministerial duty of rescue, they are not entitled to municipal immunity from suit under
The paramedics and shift commander Bollinger arrived at the drowning before David was taken from the submerged van. All knew that a van was submerged and that it contained occupants, and all are claimed to have negligently performed David‘s rescue from it. The plaintiffs claim several negligent acts, the most egregious of which is that the paramedics and Bollinger did nothing to rescue David for twenty minutes after their arrival. The paramedics assert that they began rescue efforts immediately.
exception to the general rule of public officer immunity exists where the public officer‘s or employee‘s duty is absolute, certаin and imperative, involving merely the performance of a specific task and (1) the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment [or] discretion ... or (2) there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion .... (Emphasis added and citations omitted.)
We restate the C.L. “known present danger” exception in terms of municipal or governmental immunity from suit for tortious conduct, since municipаl immunity is the exception rather than the rule. Holytz, 17 Wis. 2d at 39, 115 N.W.2d at 625. As applied to the facts before us, the rule is that a municipal officer or employee under a duty to reasonably attempt the rescue of a person from a life-threatening danger is not immune from a suit charging the officer or employee with having negligently performed that duty.6
The Janesville paramedics are under such a duty. According to a deputy fire chief, paramedics are required to perform rescue operations in emergency situations, and they receive extensive rescue training. Consequently, the paramedic present at a life-
We turn to plaintiffs’ second claim against the paramedics: that they negligently provided emergency medical services to David. According to the same deputy fire chief, the Janesville paramedics are also required to deliver emergency medical care in situations requiring such action, and they receive extensive training in advanced life support techniques and emergency medical care. While the parаmedics exercise considerable discretion when providing that care, they are not immune from a suit claiming they negligently provided medical services. Municipal or governmental immunity under
3. Conclusion
By the Court.—Judgment affirmed in part; reversed in part and cause remanded.
DYKMAN, J. (dissenting). There are two related problems with this case. The first has to do with an evolving consensus among court of appeals publication committee members that the court of appeals is powerless to overrule its erroneous decisions. The second problem is the effect that this consensus has on appellate decisionmaking. This case is an example of that effect.
Until recently, when the court of appeals concluded that a prior case had been wrongly decided, the incorrect portion of the opinion in that case was overruled or withdrawn. See Kimpton v. School Dist. of New Lisbon, 138 Wis. 2d 226, 234 n.4, 405 N.W.2d 740, 744 n.4 (Ct. App. 1987); State v. Dunn, 117 Wis. 2d 487, 492, 345 N.W.2d 69, 71 (Ct. App. 1984), aff‘d, 121 Wis. 2d 389, 359 N.W.2d 151 (1984). Of course, we have always used the doctrine of stare decisis to explain our decisions. We have recognized that
Two reasons for our conclusion existed. First, the language of In re Court of Appeals, 82 Wis. 2d at 371, 263 N.W.2d at 149-50, and secоndly, a concern that the power to overrule would be abused, leading to a situation where the precedential effect of an opinion would last only until the issue arose before another panel.
I do not believe that either reason necessarily leads to our conclusion. In re Court of Appeals was written at a time when the nature of the yet-to-be court was undecided. Whether the four districts would follow the federal system, with the supreme court settling conflicts among the districts, was a matter then being discussed among the bar, and in the ongoing campaigns to elect the first court of appeals judges. The answer to this question would implement the statewide development of
Nor do I think that overruling erroneous past precedent would become evеryday fare for the court of appeals. During the time that the court considered that it could correct its own errors, it did so, but on a very limited basis. See State v. Marty, 137 Wis. 2d 352, 362-63 n.1, 404 N.W.2d 120, 124-25 n.1 (Ct. App. 1987) (previous court of appeals opinion overruled due to conflict with later United States Supreme Court opinion). In Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 431-32, 147 N.W.2d 633, 645 (1967), the court explained the reluctance with which courts depart from the rule of stare decisis. Prah v. Maretti, 108 Wis. 2d 223, 238 n.12, 321 N.W.2d 182, 190 n.12 (1982), compiled several cases which noted that change was possible within that rule. More recently, the Supreme Court has discussed the nature of the doctrine of stare decisis. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 699-709 (1992), a plurality of the Court extensively examined the doctrine and concluded that a prior сase would not be overruled. Though Casey‘s adherence to precedent was the result of factors not present in court of appeals cases, the
The responses of panels to a perceived inability to overrule erroneous past precedent have been varied. In Ranft, 163 Wis. 2d at 299-300 n.7, 471 N.W.2d at 260-61 n.7, we concluded that we must perpetuate past errors. Another response has been to artificially limit the erroneous holding. “This rule holds only of redheaded Walpoles in pale magenta Buick cars.” K. LLEWELLYN, THE BRAMBLE BUSH 66-69 (1960), reprinted in R. ALDISERT, THE JUDICIAL PROCESS 820 (1976). An example of this response is In re L.S.G., 170 Wis. 2d 231, 237-38, 487 N.W.2d 644, 646 (Ct. Aрp. 1992). In L.S.G., we distinguished the holding in a prior case because the issue of paternity was raised in a divorce case rather than a paternity case. Another response is to acknowledge the existence of prior cases, but not follow their holdings. This case is an example of that response. I am not comfortable with any of these responses.
Using this case as an example, it is first necessary to determine why the majority concluded that
But in Nelson v. Schreiner, 161 Wis. 2d 798, 802, 469 N.W.2d 214, 216-17 (Ct. App. 1991), we also faced the problem of a very young child injured while accompanying another. In Nelson, Jowe Nelson, twenty-one months old, accompanied Jan Schreiner to a campground, where Jowe was burned in a campfire.
Nelson was not the first case to consider the appropriate test to determine whether an injured person was engaged in a recreational activity. In Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 544, 458 N.W.2d 379, 382 (Ct. App. 1990), we concluded that the goal of
Instead, we adopt an objective test which requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the рublic, and the activity‘s purpose and consequence. While this approach does not preclude consideration of the user‘s subjective assessment of the activity, such assessment is not controlling.
Id. at 544, 458 N.W.2d at 382-83 (emphasis in original).
Thus in Nelson, we followed Silingo, noting: “Actions whose intrinsic nature are recreational and are conducted at a public facility or service dedicated to exercise, relaxation or pleasure may be recreational activities without further proof of the actor‘s mental purpose.” 161 Wis. 2d at 802, 469 N.W.2d at 216-17. We concluded: “[Jowe] accompanied her putative father, whose avowed purpose was camping and other
The issue is not, as the majority asserts, whether a person was carried to a recreational activity against his or her express will. In Nelson, we observed: “If young children are excluded from the limit of owners’ liability because they cannot form the mental intent to engage in recreation, the statute is rendered largely ineffective.” Id. at 802, 469 N.W.2d at 216. The majority, by focusing on the subjective intent of a parent, has avoided the real issue—whether
What the majority fails to acknowledge is that the child‘s relationship to the adult accompanying the child is not significant. In Nelson, the adult had no relationship to the child. The activity (camping) was the controlling factor. Here, the activity, observing a fishing hole, is recreational. That factor is what the legislature focused on when it stated its intent: “[T]he legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability.”
Because the majority does not overtly overrule or withdraw the language from Nelson and Silingo, the conclusion reached by thе publication committee, exemplified in Ranft, 163 Wis. 2d at 299-300 n.7, 471 N.W.2d at 260-61 n.7, is not violated. But the holdings of Nelson and Silingo are effectively overruled because the only relevant fact now is the subjective intent of the
When we distinguish cases based upon irrelevant factors, or ignore indistinguishable precedent, we foster uncertainty in the law and make it difficult for attorneys to give definitive advice to their clients. This encourages litigation, which may result in more opinions which further unsettle the law. If clarifying the law is progress, we may be heading backwards. I conclude that our recent perceived inability to correct erroneous past precedent is ill-advised.
There is another reason I dissent. The cases discussing
The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity
which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.
The majority has ignored the legislature‘s message and the decisions of this court which interpret
The trial court in this case construed
Notes
161 Wis. 2d at 823, 468 N.W.2d at 781-82 (emphasis added).1983 Wis. Act 418, by which the recreational immunity statute was enacted, provides, in part, at sec. 1, “[t]he legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities ....” (Emphasis added.) Thus, it becomes necessary to inquire into the purpose of the property user (or those who supervise such a user) in order to decide whether the statute applies.
See 67 Op. Att‘y Gen. 218, 222 (1978) (paramedic is a health care professional); see also Note, Torts—Immunity—The Good Samaritan Statute, 62 MARQ. L. REV. 469, 472, 479-80 (1979) (paramedics are not immune).Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care. This immunity does not extend when employes trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice ... at the scene of any emergency or accident [or] enroute to a hospital .... (Emphasis added.)