Brunette v. Employers Mut. Liability Ins. Co. of Wisconsin

• Citation: 320 N.W.2d 43,107 Wis.2d 361
• Decision Date: 27 April 1982
• Docket Number: No. 81-688,81-688
• Parties: David P. BRUNETTE, Plaintiff-Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, The City of Algoma, and Robert A. Gardner, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

Page 43

320 N.W.2d 43

107 Wis.2d 361

David P. BRUNETTE, Plaintiff-Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN The City of Algoma, and Robert A. Gardner Defendants-Respondents.

No. 81-688.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 14, 1981.

Opinion Released April 27, 1982.

Opinion Filed April 27, 1982.

Avram D. Berk and Berk, Berk & Hoida, S. C., Green Bay, for plaintiff-appellant.

Rod A. Charnholm, Bruce B. Deadman and Everson, Whitney, Everson, Brehm & Pfankuch, S. C., Green Bay, for defendants-respondents.

Before FOLEY, P. J., and DEAN and CANE, JJ.

FOLEY, Presiding Judge.

David Brunette appeals a judgment dismissing his complaint against the City of Algoma and Robert Gardner, a city police officer, for injuries he received when Gardner's squad car struck his motorcycle during a high-speed chase. The jury found that Gardner did not intentionally strike Brunette's motorcycle. Because this finding is supported by credible evidence and is not the result of trial court error, and because we conclude that Brunette's negligence exceeds any negligence on the part of Gardner as a matter of law, we affirm.

While on duty in the City of Algoma, Gardner observed Brunette run a stop sign. Gardner turned on the flashing red lights on his unmarked squad car and proceeded after Brunette. When Brunette did not stop, Gardner turned on his siren and continued to chase Brunette through the City of Algoma. During the chase, Brunette ran numerous stop signs and reached speeds of up to seventy miles per hour. Upon learning that Gardner was in pursuit of Brunette, another Algoma police officer, William Larson, set up a roadblock with his squad car. Brunette avoided Larson's roadblock and left the city limits at a high rate of speed. Both Gardner and Larson pursued Brunette at speeds in excess of 100 miles per hour. The chase ended in southern Door County when Brunette lost control of his motorcycle as Gardner attempted to pass him. As a result of the accident, Brunette sustained a broken leg and his motorcycle was damaged.

Brunette's complaint claimed alternatively that Gardner either negligently or intentionally struck him. The jury found that Gardner did not intentionally strike Brunette and that Gardner was not negligent in the operation of his squad car. The trial court directed a verdict on the question of Brunette's negligence, and the jury found that Brunette's negligence was the cause of his injuries.

The jury finding that Gardner did not intentionally strike Brunette's motorcycle with his squad car is supported by credible evidence and must therefore be accepted on appeal. Leckwee v. Gibson, 90 Wis.2d 275, 284, 280 N.W.2d 186, 189-90 (1979). This court will look for evidence to sustain the jury finding, Coryell v. Conn, 88 Wis.2d 310, 317-18, 276 N.W.2d 723, 726 (1979), and will consider all evidence in the light most favorable to the verdict. Toulon v. Nagle, 67 Wis.2d 233, 242, 226 N.W.2d 480, 486 (1975). The jurors were presented with opposing versions of the accident. It was their responsibility to judge the credibility of the witnesses and to choose the version they wished to believe.

The proffered demonstrable evidence concerning the nature of the contact between Gardner's squad car and Brunette was cumulative and would not have aided the jury in determining the issue of intentional striking. It neither proves nor disproves the basic fact of who struck whom. This is the fact upon which the presumption of intent must be based. Brunette's claim of error for the court's failure to instruct on battery and excessive force presumes an intentional striking. The jury's finding that there was no intentional striking makes our review of this claimed error unnecessary.

We also do not review the remaining claimed errors relating to Gardner's negligence because we conclude that Brunette cannot recover for Gardner's negligence as a matter of law. It is the duty of the court to deny recovery when it concludes, as a matter of law, that the plaintiff's negligence is greater than that of the defendant. Skybrock v. Concrete Construction Co., 42 Wis.2d 480, 490, 167 N.W.2d 209, 214 (1969). Brunette's negligence is greater than Gardner's negligence because Brunette intentionally and without cause placed himself in a position of known danger. The fact that there was substantial risk inherent in Brunette's conduct would be apparent to any ordinarily prudent person.

Brunette does not dispute that he intentionally fled from Gardner and Larson. By his own admission, he could have stopped at any time after he was aware that Gardner wanted him to stop. He nevertheless continued to flee, at grossly excessive and unsafe speeds. He knew, or should have known, that his actions involved a substantial risk of injury, not only to innocent members of the public, but also to himself and to the pursuing police officers. We see no difference between Brunette's conduct and the conduct of other individuals to whom the court has denied recovery for intentional and unjustified exposure to a known risk. See Schuh v. Fox River Tractor Co., 63 Wis.2d 728, 744, 218 N.W.2d 279, 287 (1974) (farmer worked on farm machinery with power takeoff engaged); Gross v. Denow, 61 Wis.2d 40, 50, 212 N.W.2d 2, 8 (1973) (pedestrian chose route used by vehicles instead of routes used only by pedestrians and failed to keep a proper lookout); Skybrock, 42 Wis.2d at 490, 167 N.W.2d at 214 (pedestrian walked through barricaded construction site); Rewolinski v. Harley -Davidson Motor Co., 32 Wis.2d 680, 684-85, 146 N.W.2d 485, 487 (1966) (watchman elected to crawl through window to enter room instead of waiting for key); Kornetzke v. Calumet County, 8 Wis.2d 363, 368-69, 99 N.W.2d 125, 128 (1959) (driver failed to reduce speed while driving through dense fog); McNally v. Goodenough, 5 Wis.2d 293, 304, 92 N.W.2d 890, 897 (1958) (workman walked through dark hallway); Klein v. Montgomery Ward & Co., 263 Wis. 317, 321, 57 N.W.2d 188, 190 (1953) (patron walked over wire in store aisle when other clear passageways were available); Lepak v. Farmers Mutual Automobile Insurance Co., 262 Wis. 1, 4-5, 53 N.W.2d 710, 712 (1952) (passenger left safe position in truck knowing it would lurch forward).

By denying recovery to Brunette, the court furthers a necessary state policy of encouraging traffic violators to submit to lawful arrests. While we recognize that high-speed chases raise other public policy concerns such as injury to the public, this case does not involve...