C.L. v. Olson

Citation143 Wis.2d 701,422 N.W.2d 614
Decision Date27 April 1988
Docket NumberNo. 85-1807,85-1807
PartiesC.L., Plaintiff-Appellant-Petitioner, v. Donald L. OLSON, Defendant, Donald Hohlstein, Defendant-Respondent.
CourtUnited States State Supreme Court of Wisconsin

Robert Anker Christensen (argued), and Christensen & Kenney, on brief, Madison, for plaintiff-appellant-petitioner.

Daniel S. Farwell, Asst. Atty. Gen. (argued), with whom on the brief was Donald J. Hanaway, Atty. Gen., for defendant-respondent.

CECI, Justice.

This case is before the court on review of a published decision of the court of appeals 1 affirming a decision of the circuit court for Dane county, Angela B. Bartell, circuit judge, ordering summary judgment in favor of the defendant, Donald Hohlstein (Hohlstein). The issue presented for review is whether the court of appeals correctly determined that parole agent Hohlstein is immune from liability as a public officer for allegedly negligent conduct in allowing the parolee, Donald L. Olson (Olson) to operate a motor vehicle or in failing to impose restrictions upon Olson's operation of the vehicle. We affirm the decision of the court of appeals.

The essential facts of this case are undisputed. In 1979, Olson was convicted in the Columbia county circuit court under section 940.225(2)(e), Stats. (1979-80), 2 of having had sexual contact and sexual intercourse with two individuals between the ages of 12 and 18, for which he was sentenced to two terms of four years, to be served concurrently. In both incidents, a vehicle had been involved in the abduction of the victims. Olson was released on parole on April 23, 1982, and placed under Hohlstein's supervision. In accordance with his responsibilities under Wis.Admin.Code section HSS 328.04(2)(d), Hohlstein established and provided to Olson a copy of the rules of supervision. Hohlstein granted Olson permission to operate vehicles. The only restriction placed upon Olson's operation of vehicles was set forth in his parole rules and required that any vehicle he was operating not be equipped with a device capable of monitoring police, fire or emergency communications.

On October 16, 1982, Olson had traveled from his home in the city of Columbus to the city of Madison, where he offered a ride to the plaintiff, C.L., who had missed a bus. Olson had stated that he would drive plaintiff to the Capitol square to connect with another bus. Instead, Olson transported plaintiff toward Columbus and sexually assaulted her. Olson was convicted of two felony counts in connection with his assault of the plaintiff.

The plaintiff filed a complaint, alleging that parole agent Hohlstein negligently permitted Olson to operate motor vehicles or negligently failed to impose restrictions upon his operation of vehicles. Defendant Hohlstein moved for summary judgment on the ground that he was immune from liability for his conduct as a public officer because his action involved the exercise of discretion. The trial court granted the motion. The court of appeals affirmed the order of the trial court. We agree with the conclusion of the court of appeals that Hohlstein is immune from liability but, to the extent that our analysis differs, we do not completely embrace the rationale applied by the court of appeals in arriving at this result.

In reviewing an order granting summary judgment, we apply the same standards set forth under section 802.08(2), Stats., as do trial courts. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). First, the court examines the complaint to determine whether a claim for relief has been stated. Id. Only if a claim has been stated does the court then proceed to determine whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate a genuine issue as to any material fact. Id. This court has previously stated that, "The objection of an officer's civil immunity, affecting as it does his substantive liability for damages, is properly presented by a demurrer on the ground that the complaint fails to state a cause of action." Lister v. Board of Regents, 72 Wis.2d 282, 299, 240 N.W.2d 610 (1976). Consequently, because we determine, for the reasons set forth below, that Hohlstein was immune from liability for the activity alleged in the complaint, we find that the complaint fails to state a claim upon which relief may be granted and proceed no further. 3

Upon release by parole, a paroled individual remains in the legal custody of the department of health and social services and is subject to conditions and rules of parole. Section 57.06(3), Stats. The Wisconsin Administrative Code sets forth with greater particularity the nature of the supervision of the parolee which must be maintained:

"HSS 328.04 Field supervision. (1) Parole and probation supervision is a mechanism of control and an attempt to guide offenders into socially appropriate ways of living. Field staff are to provide individualized supervision of clients in a manner consistent with the goals and objectives of this chapter. Specifically, field staff are to attempt to help the client be successfully reassimilated into the community, help the client adjust to and cope with community living, reduce crime, and protect the public.

"(2) An agent shall abide by the department's administrative rules. An agent's responsibilities upon receiving a client for control and supervision shall include:

* * *

* * *

"(d) Establishing written rules of supervision that are supplemental to existing court-imposed or parole board conditions, and providing the client with a copy of them;

"(e) Informing the client of the possible consequences of not abiding by the rules and conditions of supervision;

"(f) Explaining the conditions and rules of supervision and the reporting requirements immediately upon reception to field supervision in a manner the client can understand;

* * *

* * *

"(3) When probation or parole begins, an agent shall meet with a client to review or develop written rules and specific conditions of the client's supervision, or both."

Among the parole rules which are particularized under the administrative code is the following, which requires that the parolee "[o]btain advance permission from an agent to purchase, trade, sell, or operate a motor vehicle." Section HSS 328.04(3)(h). It is parole agent Hohlstein's allegedly negligent decision to grant permission to Olson to operate the motor vehicle for which the plaintiff seeks to hold Hohlstein responsible for damages. Whether Hohlstein would be immune from liability if such negligence were established in granting permission to operate the motor vehicle requires a review and the application of principles of the immunity of public officers and employees.

The immunity of public officers for certain acts undertaken in their official capacities derives from common law. Lister, 72 Wis.2d at 299, 240 N.W.2d 610. The public policy considerations which support the grant of immunity include:

"(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office." Id.

Recently, the purpose and scope of the doctrine of federal official immunity under state tort law was described by the United States Supreme Court as follows:

"The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective Government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits. See Barr v. Matteo, supra, 360 U.S. at 571, 79 S.Ct. [1335] at 1339 [1959]; Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973). This Court always has recognized, however, that official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official." Westfall v. Erwin, --- U.S. ----, 108 S.Ct. 580, 583, 98 L.Ed.2d 619 (1988). 4

The general rule acknowledged in Wisconsin is that a public officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual's public office. Lister, 72 Wis.2d at 300, 240 N.W.2d 610. However, this general rule of immunity is subject to exceptions, representing a judicial balance struck between "the need of public officers to perform their functions freely against the right of an aggrieved party to seek redress." Id. Specifically, the doctrine of immunity affords no protection to a public officer or employee for (1) the negligent performance of a ministerial duty 5 or (2) conduct that is malicious, willful and intentional. See Ibrahim v. Samore, 118 Wis.2d 720, 728, 348 N.W.2d 554 (1984) (citing Lister, 72 Wis.2d at 300-02, 240 N.W.2d 610). The ultimate question presented in this case is whether the decision to permit Olson to operate a vehicle was of a ministerial or a discretionary nature.

The test which has evolved for the determination of whether a duty is discretionary or ministerial is based upon that articulated in Eugene McQuillin's treatise on municipal corporations. See Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting 18 E. McQuillin, Municipal Corporations, section 53.33 at 225 (3d ed.)). The test has remained substantially the same and was described in Lister as follows: "A public officer's duty is ministerial only when it is absolute, certain and imperative, involving merely the...

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