Cole v. Hubanks, 02-1416.

• Decision Date: 11 June 2004
• Docket Number: No. 02-1416.,02-1416.
• Citation: 272 Wis.2d 539,681 N.W.2d 147,2004 WI 74
• Parties: Julia Cole, Plaintiff-Appellant, City of Milwaukee, Involuntary-Plaintiff, v. Yvonne L. Hubanks, Aubrey Hubanks, and American Family Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

272 Wis.2d 539

2004 WI 74

681 N.W.2d 147

Julia Cole, Plaintiff-Appellant, City of Milwaukee, Involuntary-Plaintiff, v. Yvonne L. Hubanks, Aubrey Hubanks, and American Family Mutual Insurance Company, Defendants-Respondents.

No. 02-1416.

Supreme Court of Wisconsin.

Oral argument October 7, 2003.

Decided June 11, 2004.

For the plaintiff-appellant there were briefs by Jonathan Cermele, Laurie Eggert, Rachel L. Schneider and Eggert & Cermele, S.C., Milwaukee, and oral argument by Jonathan Cermele.

For the defendants-respondents there was a brief by Janet E. Cain and Peterson, Johnson & Murray, S.C., Milwaukee, and oral argument by Janet E. Cain.

An amicus curiae brief was filed by John F. Fuchs, Catherine A. Goodman and Fuchs DeStefanis Boyle, S.C., Milwaukee, on behalf of The Milwaukee Police Association and Police Officers Defense Fund, and there was oral argument by John F. Fuchs.

An amicus curiae brief was filed by Michael T. Leibig, and Zwerdling, Paul, Leibig, Kahn & Wolly, P.C., Alexandria, VA, and Richard A. Frederick, Milwaukee, on behalf of International Union of Police Associations, AFL-CIO, and National Association of Police Organizations.

¶ 1. PATIENCE D. ROGGENSACK, J.

Police Officer Julia Cole appeals a Milwaukee County Circuit Court judgment that granted Aubrey and Yvonne Hubanks and their insurer, American Family Mutual Insurance Company, summary judgment, dismissing her personal injury claims against the Hubanks. This case is before us on certification of the following question:

Whether Wisconsin's "firefighters rule,"¹ that is based on public policy limitations on liability, should be extended to police officers to bar an officer from suing dog owners for injuries the officer received while capturing the dog.

[1]

¶ 2. We conclude that public policy reasons do not support extending the firefighters rule to police officers. Therefore, Cole may sue for injuries she received allegedly because of the Hubanks' dog's attack that occurred during the course of Cole's duties as a police officer. Accordingly, we reverse the judgment and remand for further proceedings.

I. BACKGROUND

¶ 3. Police Officer Julia Cole was on patrol in the City of Milwaukee when she came upon a large dog wandering in the street. The dog still had a chain attached to its collar. Cole grasped the loose end of the chain and began calling the dog toward her. She knelt down as the dog, an Akita estimated to weigh between 85 and 90 pounds, approached her. Without any prior indication of viciousness, the dog lunged at her, knocked her over and bit her on the face and neck. She was able to wrest the dog off of her, but 30 stitches were required to close her wounds.

¶ 4. Cole brought suit against Aubrey and Yvonne Hubanks, the owners of the dog, and their insurance company, American Family, alleging that the Hubanks: (1) negligently cared for and restrained the dog; (2) harbored a dangerous animal; (3) failed to warn the public of the dangerous nature of the dog; and (4) violated Wis. Stat. § 174.02 (2001-02),² all causing her injury. The Hubanks moved for summary judgment, contending that the firefighters rule precluded liability. The circuit court agreed and dismissed Cole's claims. Cole appealed, and we accepted certification.

II. DISCUSSION

A. Standard of Review

[2-4]

¶ 5. The circuit court granted summary judgment to the Hubanks because it concluded they could not be liable to Cole, as a matter of law. We review summary judgments de novo, using the same method as the circuit court. Sawyer v. Midelfort, 227 Wis. 2d 124, 135, 595 N.W.2d 423 (1999). In dismissing Cole's claims, the circuit court relied on Hass v. Chicago & North Western Railway Company, 48 Wis. 2d 321, 179 N.W.2d 885 (1970), that held that public policy factors preclude liability to a firefighter in limited circumstances. Whether public policy factors are a limitation on liability is a question of law, on which we owe no deference to the circuit court. Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 761, 501 N.W.2d 788 (1993). And finally, whether a statute that provides for strict liability is also subject to public policy factors is a question of law we decide de novo. See State v. Stoehr, 134 Wis. 2d 66, 76, 396 N.W.2d 177 (1986).

B. Firefighters Rule

¶ 6. The firefighters rule developed in Illinois more than 100 years ago, in the landmark case of Gibson v. Leonard, 32 N.E. 182 (Ill. 1892). Gibson was based on premises liability, wherein a firefighter was classified as a licensee to whom the property owner owed no duty other than to "refrain from willful or affirmative acts which are injurious." Id. at 183. Many other jurisdictions have adopted the firefighters rule, some based on assumption of risk³ or public policy concerns,⁴ as well as on premises liability.⁵ [5]

¶ 7. We first adopted the firefighters rule in 1970 in Hass. Our rule was based solely on public policy grounds and was very narrowly drawn. Hass, 48 Wis. 2d at 326-27. When we employ public policy factors to preclude a claim for relief, we assume there is negligence and that the negligence was a cause of the injury, but for reasons of public policy, we prevent the claim from proceeding. See Gould v. American Family Mut. Ins. Co., 198 Wis. 2d 450, 460, 543 N.W.2d 282 (1996).

[6, 7]

¶ 8. We have identified six public policy considerations that the courts of Wisconsin use to limit liability:

(1) the injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance for recovery would enter a field that has no sensible or just stopping point.

Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 817-18, 416 N.W.2d 906 (Ct. App. 1987) (citing Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660 (1979)). A determination that any one of the factors applies to the case at hand is sufficient to preclude liability. Flint v. O'Connell, 2002 WI App 112, ¶ 12, 254 Wis. 2d 772, 648 N.W.2d 7. Generally, the application of public policy factors proceeds on a case-by-case basis because claim-specific facts are often relevant to the analysis. Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 660, 517 N.W.2d 432 (1994).

¶ 9. In Hass, where we precluded a firefighter's claims against a person who negligently started a fire for injuries Hass sustained in fighting the fire, we employed the fourth⁶ and sixth⁷ public policy factors. Hass, 48 Wis. 2d at 327. We explained that nearly all fires are started by negligence. However, to subject a landowner or occupier to liability for such negligence would "place too great a burden" on landowners and occupiers, who should summon the help necessary to extinguish the blaze and prevent its spread to neighboring buildings and property. Id. Our concern focused on a greater good to be protected: promoting conduct that would lead to extinguishing a fire before it could spread. However, our relief from liability was very narrowly drawn. We explained that while we were precluding liability for one who negligently starts a fire and the fire causes injury to a firefighter from fighting the fire, we were not "hold[ing] a landowner under no circumstances must respond in damages for his negligence which caused injury to a firefighter upon the premises." Id. We cautioned that, "We do not by this decision venture into other areas of negligence where liability is based upon something more than the negligent starting of a fire." Id. Liability based upon "something more" became the issue in the next firefighter's case. ¶ 10. In Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567 (1977), Clark, a fireman, was injured fighting a fire when he became trapped in Corby's basement bedroom, built contrary to building code. Id. at 299. He sued, alleging negligence in starting the fire, negligence in failing to warn of hidden hazards and negligence in building a basement bedroom that did not conform to the building code. Id. at 293-94. We concluded that Hass controlled on Clark's claim of negligence in starting the fire; however, we also concluded that the landowner had a duty to warn firefighters when: (1) there is a hidden hazard (that we defined as "a concealed danger that foreseeably created an unreasonable risk to others"); (2) the hidden hazard or danger is known to the landowner, but (3) is not known to or observable by the firefighter; and (4) there is a "clear opportunity" for the landowner to provide a warning. Id. at 298. We noted that public policy concerns did not preclude liability for the failure to warn of hidden hazards because a warning would prevent exposure of firefighters to unnecessary risks. Id. We also explained that Corby's violation of the building code may subject him to liability if Clark can show at trial that firefighters are within the class of persons the ordinance was created to protect. Id. at 300.

¶ 11. The next firefighter's case distinguished Clark and limited it to its facts by explaining that the duty of a landowner is not solely to warn of hidden hazards, but also to warn of any hazard of which the landowner is aware. Wright v. Coleman, 148 Wis. 2d 897, 909, 436 N.W.2d 864 (1989). In Wright, the firefighter was injured on a patch of ice on the homeowner's driveway caused by the homeowner's son washing a car. Id. at 900. We concluded that Coleman had a duty of ordinary care "under the circumstances" and that duty included warning of the ice on the driveway. Id. at 898. And, although we noted that at times public policy factors preclude liability, we concluded, without discussion, that none were relevant...