Cirillo v. City of Milwaukee

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtWILKIE
Citation34 Wis.2d 705,150 N.W.2d 460
Decision Date09 May 1967
PartiesDonald E. CIRILLO, a minor, by David W. Lers, his gdn. ad litem et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation et al., Respondents.

Page 460

150 N.W.2d 460
34 Wis.2d 705
Donald E. CIRILLO, a minor, by David W. Lers, his gdn. ad
litem et al., Appellants,
v.
CITY OF MILWAUKEE, a municipal corporation et al., Respondents.
Supreme Court of Wisconsin.
May 9, 1967.

Atinsky, Kahn & Sicula, Milwaukee for appellants.

Grootemaat, Cook & Franke, Milwaukee for respondents.

[34 Wis.2d 710] WILKIE, Justice.

Three issues are raised on this appeal:

(1) Was the trial court correct in finding as a matter or law that defendant Paul Sherry breached no duty to Donald Cirillo?

(2) Was the trial court correct in holding, even if there was a jury question of Paul Sherry's negligence, the negligence of Donald Cirillo was, as a matter of law, at least 50 percent of the total negligence?

(3) Was the trial court correct in concluding that as a matter of law liability should not be imposed upon the defendants under these circumstances because such liability would impose an undue burden on the operation of the school system and taxpayers by making them the absolute insurers of students' safety?

This court's rules for the application of summary judgment are explained in McWhorter v. Employers Mut. Casualty Co. 1 and quoted with approval in Leszczynski v. Surges 2 and Skyline Construction, Inc. v. Sentry Realty, Inc. 3 Under this court's procedure for reviewing a decision granting summary judgment we first (examine the moving party's (a defendant) affidavit to determine whether it establishes, prima facie, a defense. In the summary judgment statute, sec. 270.635(2), it is said the affidavit, if made on behalf of the defense, must state evidentiary facts '* * * as shall show that his denials or

Page 463

defenses are sufficient to defeat the plaintiff * * *.' If such a defense is established, the affidavit of the plaintiff is examined to determine whether issues of fact are shown '* * * which the court shall deem sufficient to entitle him to a trial.' 4 Summary judgment is a drastic remedy and should be used only when there is no substantial[34 Wis.2d 711] issue of fact, or inferences to be drawn from the facts. 5

Applying these rules to the facts of the instant case, it is first necessary to examine the affidavit filed in support of the defendants' motion for summary judgment. This affidavit made by the attorney for defendants, merely quoted those portions of the complaint and of adverse examinations of Donald Cirillo and Roger Kenny relating to Cirillo's conduct leading up to the accident, and Attorney Hase's statement that he believed the plaintiffs' action to be without merit.

In Grosso v. Wittemann 6 this court recognized that '* * * (a) teacher in the public schools is liable for injury to the pupils in his charge caused by his negligence or failure to use reasonable care.' The question presented on this appeal is whether Paul Sherry's conduct on January 20, 1965, as a matter of law, was reasonable. The trial court came to this conclusion based upon its determination that Sherry '* * * could not have foreseen any risk or harm to plaintiff Donald Cirillo, or any other student in his class, as a probable consequence of his conduct.'

This court has often stated that 'harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence.' 7 There is no necessity, however, that the actual harm that resulted from the conduct be foreseen. In Schilling v. Stockel 8 this court, quoting with approval from Christianson v. Chicago, St. P., M. & O.R. Co., 9 said:

[34 Wis.2d 712] '* * * the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.'

The controlling factor to the trial court

'* * * had the plaintiff minor been sitting at a table or desk in the classroom and had been minding his own business and thereafter sustained an injury as a result of a commotion instituted by other classmates during the period when the teacher had left the room. This, I am of the opinion, would then have created a substantial issue of fact for the Court or jury to determine, whether or not the teacher under these circumstances should have assumed or presumed that some injury

Page 464

might occur to one of the students in the unsupervised classroom.'

From this language one may conclude that if, rather than Cirillo, the plaintiff in the instant case had been an innocent bystander who was minding his own business when Cirillo or one of the other participants in the keep-away game crashed into him, then the trial court would have permitted the question of Sherry's negligence to go to the jury. Under the theory of the Schilling Case, however, if Sherry could foresee harm to some students in the class arising from rowdyism as a result of his absence, it is immaterial that the harm actually resulting was not that foreseen by Sherry.

[34 Wis.2d 713] The principal difficulty in this case is, therefore, the nature of the activity in which Donald Cirillo and his friends engaged after Sherry left the room. Defendants cite Ohman v. Board of Education of City of N.Y. 10 and Guyten v. Rhodes 11 for the proposition that even if the absence of a teacher from the classroom is negligence, he should be relieved of liability if the cause of the injury is the intervening conduct of another student. In Ohman the plaintiff student was struck in the eye by a pencil thrown by a fellow student while the teacher was absent from the room putting supplies away in a closet down the hall. The New York court held this was an unforeseen act of a third party which could as well have happened if the teacher had been present. In Guyten the plaintiff was in a class for defectives and incorrigibles and was struck in the eye by a milk bottle thrown by another student while the teacher was gossiping in another room. The Ohio court held the proximate cause of the injury was the sudden and unwarranted assault, and there was nothing to...

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52 practice notes
  • Hofflander v. St. Catherine's Hospital, Inc., Sentry Insurance, 2003 WI 77 (Wis. 7/1/2003), No. 00-2467.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 1, 2003
    ...suited for a fact finder. See Kull v. Sears, Roebuck & Co., 49 Wis. 2d 1, 11, 181 N.W.2d 393 (1970); Cirillo v. City of Milwaukee, 34 Wis. 2d 705, 716, 150 N.W.2d 460 (1967). Since there is expert testimony in the record stating that Hofflander was not competent enough to appreciate the......
  • Federal Deposit Ins. Corp. v. First Mortg. Investors, No. 75--131
    • United States
    • United States State Supreme Court of Wisconsin
    • April 25, 1977
    ...(defendant's) affidavits and other proof to determine whether a prima facie defense has been established. Cirillo v. Milwaukee (1967), 34 Wis.2d 705, 150 N.W.2d 460. If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (pl......
  • Schinner v. Gundrum, No. 2011AP564.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2013
    ...storm water, was an accident.” Id., ¶¶ 60–61. Thus, the flooding event was an “occurrence.” Id., ¶ 62. 8.Cirillo v. City of Milwaukee, 34 Wis.2d 705, 711, 150 N.W.2d 460 (1967) (there is no necessity in establishing negligence that the actual harm was foreseen); see also Behrendt v. Gulf Un......
  • Rupp v. Bryant, No. 60826
    • United States
    • United States State Supreme Court of Florida
    • July 15, 1982
    ...Catholic School, 291 Minn. 1, 188 N.W.2d 868 (1971); Titus v. Lindberg, 49 N.J. 66, 228 A.2d 65 (1967); Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967); We perceive that the Dailey standard more nearly comports with Florida negligence law which recognizes that the interve......
  • Request a trial to view additional results
52 cases
  • Hofflander v. St. Catherine's Hospital, Inc., Sentry Insurance, 2003 WI 77 (Wis. 7/1/2003), No. 00-2467.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 1, 2003
    ...suited for a fact finder. See Kull v. Sears, Roebuck & Co., 49 Wis. 2d 1, 11, 181 N.W.2d 393 (1970); Cirillo v. City of Milwaukee, 34 Wis. 2d 705, 716, 150 N.W.2d 460 (1967). Since there is expert testimony in the record stating that Hofflander was not competent enough to appreciate the......
  • Federal Deposit Ins. Corp. v. First Mortg. Investors, No. 75--131
    • United States
    • United States State Supreme Court of Wisconsin
    • April 25, 1977
    ...(defendant's) affidavits and other proof to determine whether a prima facie defense has been established. Cirillo v. Milwaukee (1967), 34 Wis.2d 705, 150 N.W.2d 460. If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (pl......
  • Schinner v. Gundrum, No. 2011AP564.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2013
    ...storm water, was an accident.” Id., ¶¶ 60–61. Thus, the flooding event was an “occurrence.” Id., ¶ 62. 8.Cirillo v. City of Milwaukee, 34 Wis.2d 705, 711, 150 N.W.2d 460 (1967) (there is no necessity in establishing negligence that the actual harm was foreseen); see also Behrendt v. Gulf Un......
  • Rupp v. Bryant, No. 60826
    • United States
    • United States State Supreme Court of Florida
    • July 15, 1982
    ...Catholic School, 291 Minn. 1, 188 N.W.2d 868 (1971); Titus v. Lindberg, 49 N.J. 66, 228 A.2d 65 (1967); Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967); We perceive that the Dailey standard more nearly comports with Florida negligence law which recognizes that the interve......
  • Request a trial to view additional results

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