Burch v. American Family Mut. Ins. Co.

Decision Date06 October 1992
Docket NumberNo. 92-0342,92-0342
Citation171 Wis.2d 607,492 N.W.2d 338
PartiesPaul C. BURCH and Connie E. Burch, Plaintiffs-Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE CO., Defendant-Respondent. d
CourtWisconsin Court of Appeals

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Ardell W. Skow of Doar, Drill & Skow, S.C. of Baldwin.

On behalf of the defendant-respondent, the cause was submitted on the briefs of Nancy J. Sixel and Sverre O. Tinglum of Tinglum, Thorie & Sixel of River Falls.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Paul and Connie Burch appeal a summary judgment dismissing their complaint against American Family Mutual Insurance Company. Paul and Connie contend that the trial court erred by finding, as a matter of law, that their fifteen-year-old daughter, Amy Burch, was incapable of negligence and that Paul was more negligent than Amy. They argue that the court applied the wrong legal standard to the questions concerning Amy's capacity for negligence and the comparison of negligence between Paul and Amy, and that disputed issues of material fact preclude summary judgment.

Because we conclude that the trial court applied an erroneous legal standard when it determined that, as a matter of law, Amy was incapable of negligence and Paul's negligence exceeded Amy's and disputed issues of material fact preclude summary judgment, we reverse and remand for trial.

In 1987, Paul drove his pickup truck to David Niederer's home to borrow a rototiller. Amy, who was fifteen at the time, rode in the passenger seat. Paul backed the truck into Niederer's driveway until it was three to four feet in front of Niederer's garage. Paul turned the truck off and got out, leaving the key in the ignition and the truck in reverse. Amy remained inside the truck with her seat belt on. While Paul was behind the truck talking to Niederer's wife and son, Amy turned on the ignition, propelling the truck backwards and pinning Paul's right leg between the truck and the center post of the garage. The truck continued to bang against Paul's leg until Niederer reached inside the truck and turned the ignition off.

Amy was born with cerebral palsy and mental retardation. As a result, she functions at an intellectual and physical level lower than that of an average person her age. According to Amy's treating physician, Dr. Gary Williams, and Dr. Paul Caillier, an independent psychologist consulted during the pendency of this case, Amy functions at the intellectual and physical level of an average preschooler aged three to six years old. She is unable to read, write or perform household chores without supervision, but is capable of understanding simple directives. Amy also has autistic tendencies. Her intellectual and physical capacities have not changed significantly since 1987.

At deposition, Paul, Connie and Dr. Williams, however, testified that Amy knows, understands and conforms to the limits placed on her behavior. Paul and Connie further testified that: Amy can distinguish between her property and others' property; she is usually able to follow a daily routine without reminder; she is able to operate various household appliances such as a toaster, television, VCR, record player and tape player; she has memorized the content of certain books; she has given each of her stuffed animals a specific name; and she consistently obeyed instructions not to touch a motor vehicle's controls prior to the accident. Connie believes that Amy's internal thought processes operate at a higher level than her communication skills indicate, and that Amy functions at a higher level among family members and people she is familiar with.

Paul testified that he has specifically instructed Amy never to touch the keys in the truck and that he has never allowed her to sit behind the steering wheel or touch other controls in the truck. Paul further testified that Amy had always obeyed this instruction and had never touched a motor vehicle's controls prior to the accident.

Paul suffered painful injuries to his right leg, ankle and foot as a result of the accident. He continues to experience pain, his physical activities are restricted and he expects to experience pain and incur medical expenses in the future.

American Family insured Amy for damages caused by her negligent acts under a policy that was in effect when the accident occurred. Paul filed a summons and complaint seeking an unspecified amount of damages. American Family moved for summary judgment, arguing, among other things, that Amy's mental deficiency rendered her incapable of negligence and that Paul was more negligent than Amy as a matter of law.

The trial court, relying on Breunig v. American Family Ins. Co., 45 Wis.2d 536, 173 N.W.2d 619 (1970), determined that Amy was incapable of negligence as a matter of law because her mental deficiency affected her ability to understand and appreciate her duty of care, and she had no forewarning of her incapacity, which existed since her birth. Citing Ceplina v. South Milwaukee School Bd., 73 Wis.2d 338, 243 N.W.2d 183 (1976), the court ruled that Paul's negligence exceeded Amy's as a matter of law, based on Paul's prior knowledge of Amy's condition and failure to remove the key from the ignition. The trial court therefore granted American Family summary judgment.

When reviewing a grant of summary judgment, we apply the same methodology as the trial court. Schultz v. Industrial Coils, Inc., 125 Wis.2d 520, 521, 373 N.W.2d 74, 74 (Ct.App.1985). Paul and Connie assert that the trial court erred by concluding, as a matter of law, that Amy's mental deficiency rendered her incapable of negligence and that Paul's negligence exceeded Amy's. We are not bound by the trial court's conclusions of law and review the matter without deference to the trial court. Anderson v. Milwaukee Ins., 161 Wis.2d 766, 769, 468 N.W.2d 766, 768 (Ct.App.1991).

AMY'S INCAPABILITY OF NEGLIGENCE AS A MATTER OF LAW

While children under the age of seven are incapable of negligent conduct in Wisconsin, sec. 891.44, Stats., Amy is fifteen years old, well beyond the age where negligence may not be attributed to her. "It is undisputed that a minor seven years old or older is capable of being negligent." Willenbring v. Borkenhagen, 29 Wis.2d 464, 467, 139 N.W.2d 53, 55 (1966). The statute and Wisconsin case law speak in terms of a child's chronological age in years, not a child's functional age in terms of intellectual and physical ability. We conclude that based upon Amy's chronological age, she is capable of negligence unless, under the particular facts of the case, she was so functionally incapacitated that she was incapable of negligence as a matter of law. Our inquiry, therefore, is whether...

To continue reading

Request your trial
5 cases
  • Gould v. American Family Mut. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 30 Enero 1996
    ...536, 173 N.W.2d 619 (1970), to suggest that a mental disability could be a defense to negligence. See Burch v. American Family Mut. Ins. Co., 171 Wis.2d 607, 492 N.W.2d 338 (Ct.App.1992). We reserve further discussion of the facts and circumstances of Burch for that opinion. See Burch v. Am......
  • Burch v. American Family Mut. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 30 Enero 1996
    ...find Amy more negligent than her father. The court of appeals reversed and remanded. Burch v. American Family Mutual Insurance Co., 171 Wis.2d 607, 492 N.W.2d 338 (Ct.App.1992) (hereinafter Burch I). It concluded that in some instances a person may be so "functionally incapacitated" that li......
  • Gould v. American Family Mut. Ins. Co.
    • United States
    • Wisconsin Court of Appeals
    • 27 Septiembre 1994
    ...Gould. See Breunig v. American Family Ins. Co., 45 Wis.2d 536, 541, 173 N.W.2d 619, 623 (1970); Burch v. American Family Mut. Ins. Co., 171 Wis.2d 607, 613, 492 N.W.2d 338, 341 (Ct.App.1992). Whether a legal duty exists and the scope of that duty are questions of law that we review without ......
  • Deborah S.S. v. Yogesh N.G.
    • United States
    • Wisconsin Court of Appeals
    • 24 Marzo 1993
    ...under the same methodology as the trial court, and we are not bound by the trial court's ruling. Burch v. American Family Mut. Ins. Co., 171 Wis.2d 607, 612, 492 N.W.2d 338, 340 (Ct.App.1992). We make an important preliminary observation. The patient agrees that the physician's actions were......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT