Bell v. Milwaukee County

• Decision Date: 25 November 1986
• Docket Number: No. 84-2171,84-2171
• Citation: 396 N.W.2d 328,134 Wis.2d 25
• Parties: Bernard W. BELL and Sandra Bell, Plaintiffs, Kenneth J. Dunlap, Guardian ad Litem for Minor Children, Stacey Lea Bell, Kimberly Ann Bell and Barbara Lynn Bell, Plaintiffs-Appellants-Petitioners, v. COUNTY OF MILWAUKEE, a municipal corporation, Impleaded Plaintiff-Respondent, County of Fond du Lac, a municipal corporation, Mollie E. Lookatch, Personal Representative of the Estate of Bernard R. Lookatch, P.E., Deceased, District Chief Maintenance Engineer, Transportation District # 2 of the State of Wisconsin, Wisconsin Power and Light Company, Adela Benson, Douglas S. Young and Florence Taylor Young, Defendants-Respondents, Wisconsin Power and Light Company, a domestic corporation, Third-Party Plaintiff-Respondent, Ronald E. Holup, Third-Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 328

396 N.W.2d 328

134 Wis.2d 25

Bernard W. BELL and Sandra Bell, Plaintiffs,

Kenneth J. Dunlap, Guardian ad Litem for Minor Children,

Stacey Lea Bell, Kimberly Ann Bell and Barbara

Lynn Bell, Plaintiffs-Appellants-Petitioners, v. COUNTY OF MILWAUKEE, a municipal corporation, Impleaded

Plaintiff-Respondent,

County of Fond du Lac, a municipal corporation, Mollie E.

Lookatch, Personal Representative of the Estate of Bernard

R. Lookatch, P.E., Deceased, District Chief Maintenance

Engineer, Transportation District # 2 of the State of

Wisconsin, Wisconsin Power and Light Company, Adela Benson,

Douglas S. Young and Florence Taylor Young, Defendants-Respondents,

Wisconsin Power and Light Company, a domestic corporation,

Third-Party Plaintiff-Respondent,

Ronald E. Holup, Third-Party Defendant-Respondent.

No. 84-2171.

Supreme Court of Wisconsin.

Argued Sept. 30, 1986.

Decided Nov. 25, 1986.

Ann L. Muchin, Milwaukee (argued), for plaintiffs-appellants-petitioners; George P. Kersten, Kenneth J. Dunlap, and Dunlap & Cybulski, Kersten & McKinnon, Milwaukee, of counsel and on brief.

Nancy J. Meissner, Milwaukee, and Paul W. Schwarzenbart, Madison (argued), for defendants-respondents, Fond du Lac County and Wisconsin Power and Light Co.; Daniel R. Riordan, and Riordan, Crivello, Carlson, Mentkowski & Henderson, Milwaukee, and James C. Herrick, Bruce A. Schultz, and Brynelson, Herrick, Bucaida, Dorschel & Armstrong, Madison, on brief.

DAY, Justice.

This is a review of an order of the court of appeals, summarily affirming an order of the circuit court for Milwaukee County, Honorable Elliot N. Walstead, Circuit Judge, granting defendants' motions for summary judgment on Stacey Lea, Kimberly Ann and Barbara Lynn Bell's claim for loss of society and companionship arising from negligent injury to their father, Bernard W. Bell. The issue on review is whether this Court's decision in Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984), recognizing causes of action by minor children for loss of society and companionship due to negligent injury of a parent, but announcing that the holding would apply to the Theama case and otherwise apply prospectively, bars the cause of action in this case.

We conclude that the claim of the minor Bell daughters is not barred by the Theama prospectivity language. This case merits a special exception to Theama, based on the fact that the plaintiffs here are "similarly situated" to the Theama plaintiffs and equitable considerations warrant similar treatment. Accordingly, we reverse the court of appeals and remand the case to the circuit court for further proceedings.

The material facts are as follows. On October 31, 1981, Bernard W. Bell sustained permanent injuries in a motor vehicle accident. As a result of the accident, he is a quadriplegic and breathes only with the aid of a mechanical device. Bernard Bell and his wife Sandra brought suit, filing a complaint on April 27, 1982. Bernard sought damages for his injuries, and Sandra sought damages for loss of society and companionship, loss of financial and familial support, mental anguish, and compensation for the time and effort expected to be spent in the future in caring for Bernard. Bernard and Sandra Bell entered into a Pierringer ¹ agreement with Ronald Holup, the driver of the van in which Bernard was injured, and his insurer.

Bernard Bell's three minor daughters, Stacey Lea, Kimberly Ann, and Barbara Lynn, by their guardian ad litem, Kenneth J. Dunlap, brought a claim for loss of their father's society and companionship. The Bell daughters were not part of the Pierringer release.

Defendants joined in a motion to dismiss the action of the Bell children, arguing that minor children have no cause of action against a tortfeasor for damages suffered by them in connection with an injury to a parent. Judge Walstead, in a memorandum decision dated February 16, 1983, denied the motion. Noting that the question presented was one of first impression in Wisconsin, Judge Walstead, citing analagous Wisconsin cases, cases from other jurisdictions, and various legal authorities, reasoned that allowing a minor child's cause of action for loss of society and companionship due to negligent injury of a parent was consistent with principles of Wisconsin common law.

On March 8, 1984, this court expressly recognized that minor children have a cause of action for the loss of their parent's society and companionship caused by negligent injury to the parent. Theama, 117 Wis.2d at 509, 344 N.W.2d 513. The newly created cause of action was given prospective effect, although the Theama children were given the benefit of the new law: "The change in the rule announced in this opinion is to be limited to causes of action arising on or after March 8, 1984, the date of the filing of this opinion, except that it is to be applicable to the instant case." Theama, 117 Wis.2d at 528, 344 N.W.2d 513.

Following Theama, the defendants in the instant case joined in a motion for summary judgment to dismiss the Bell daughters' claim on the ground that the prospectivity rule set forth in Theama barred the Bell daughters' claim since it arose prior to March 8, 1984. ²

Judge Walstead vacated his earlier decision upholding the cause of action and, relying exclusively on Theama, granted summary judgment for the defendants. In a decision dated October 17, 1984, Judge Walstead noted that the Theama holding applies to "causes of action arising on or after March 8, 1984," and that the Bell action was "commenced prior to March 8, 1984."

The court of appeals, also relying on the Theama rule, summarily affirmed the trial court. This court granted the Bell daughters' petition for review on January 14, 1986.

Upon review of a summary judgment decision, this court must apply the standards set forth in 802.08(2), Stats. (1983-1984) ³ in the same manner as the trial court. Kremers-Urban Co. v. American Employers Ins., 119 Wis.2d 722, 733, 351 N.W.2d 156 (1984). Since there is no disagreement as to issues of fact, this court must determine whether the defendant moving parties were entitled to judgment as a matter of law. Section 802.08(2), Stats. This court decides questions of law independently, without deference to the decision of the trial court and the court of appeals. Ball v. District No. 4 Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

Literal application of the Theama prospectivity rule would bar the Bell daughters' claim. Recognition of their claim could thus only come about if this court decides to create an exception to the Theama rule or if the Theama rule of prospective application is overturned. Plaintiffs argue that the special circumstances of this case warrant that an exception be made to the Theama prospectivity rule.

The general rule adhered to by this court is the "Blackstonian Doctrine." "This doctrine provides that a decision which overrules or repudiates an earlier decision is retrospective in operation." Fitzgerald v. Meissner & Hicks, Inc., 38 Wis.2d 571, 575, 157 N.W.2d 595 (1968). This court can limit the retrospective operation of a decision and make it exclusively prospective or applicable to the case and condition its prospective operation. Olson v. Augsberger, 18 Wis.2d 197, 200, 118 N.W.2d 194 (1962). The decision to apply a judicial holding prospectively is a question of policy and involves balancing the equities peculiar to a given rule or case. Harmann v. Hadley, 128 Wis.2d 371, 377-79, 382 N.W.2d 673 (1986). A decision is given prospective effect only when there are compelling judicial reasons for doing so. Fitzgerald, 38 Wis.2d at 576, citing Dupuis v. General Casualty Co., 36 Wis.2d 42, 45, 152 N.W.2d 884 (1967).

In Theama, this court did not articulate the basis for its decision to apply the holding prospectively. We take this opportunity to clarify the reasons for the prospectivity rule. ⁴ In Kurtz v. City of Waukesha, 91 Wis.2d 103, 109, 280 N.W.2d 757 (1979), this court approved the three factors announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for determining whether a holding should be applied retrospectively:

"In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, it has been stressed that 'we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation....' Finally, we have weighed the inequity imposed by retroactive application, for '[w]here a decision of this court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity.' " Chevron, 404 U.S. at 106-107 . (Citations omitted.)

This court has noted two exceptions to the Blackstonian doctrine of retroactive operation; these have been labeled the "reliance" exception and the "administration of justice" exception. Fitzgerald, 38 Wis.2d at 576, 157 N.W.2d 595. Prospective operation will sometimes be chosen when there has been great reliance on an overruled decision by a substantial number of persons and they would suffer considerable harm or detriment if the decision was retroactively applied to them. Id. at 576, 157 N.W.2d 595. It may also be chosen where retroactivity would tend to thrust an excessive burden on the administration of justice. Id.

One commentator has stated that the question of reliance "must be appraised in every case involving a prospective overruling." Schaefer, The Control of "Sunbursts": Techniques of...