Dodge v. Stine

• Decision Date: 31 July 1984
• Docket Number: Nos. 83-1958,83-2345,s. 83-1958
• Citation: 739 F.2d 1279
• Parties: Dale Allan DODGE and Diane Dodge, Plaintiffs-Appellants, v. Ronald STINE, et al., Defendants-Appellees. FIREMANS FUND INSURANCE COMPANY and Landy Packing Company, Plaintiffs-Appellants, v. JEFFERSON COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1279

739 F.2d 1279

Dale Allan DODGE and Diane Dodge, Plaintiffs-Appellants, v. Ronald STINE, et al., Defendants-Appellees.

FIREMANS FUND INSURANCE COMPANY and Landy Packing Company, Plaintiffs-Appellants, v. JEFFERSON COUNTY, et al., Defendants-Appellees.

Nos. 83-1958, 83-2345.

United States Court of Appeals, Seventh Circuit.

July 31, 1984.

Peter V. Taylor, Doar, Drill & Skow, New Richmond, Wis., for plaintiffs-appellants.

Dennis E. Robertson, McCusker & Robertson, Madison, Wis., James D. Wickhem, Wickhem, Buell, Meier, Wickhem & Southworth, Jamesville, Wis., for defendants-appellees.

Before PELL and COFFEY, Circuit Judges, and NICHOLS, Senior Circuit Judge. ^*

PELL, Circuit Judge.

This appeal stems from a seemingly innocuous encounter between two police officers and a juvenile that produced a high speed chase involving 20 squad cars culminating in a collision between plaintiffs' vehicle and the vehicle driven by the juvenile. Plaintiffs brought this diversity suit against the juvenile, Ronald Stine, the officers involved in the chase, and the counties that employed the officers. A jury found Stine negligent, but exonerated the officers and their respective counties. Plaintiffs appeal the verdict and challenge the district court's decision to exclude two of plaintiffs' theories of liability.

I Facts

At approximately 10:30 p.m., August 22, 1978 Officers Younk and Vincent of the village of North Prairie, Wisconsin, Police Department were going off duty. Officer Vincent left the squad car to get his personal vehicle, while Officer Younk drove the squad car to the garage of the police station. As Younk filled the squad car with gas he noticed Stine walking by the police station. Younk thought that Stine might be violating the local 10:00 p.m. curfew, which applied to anyone under 18 years, and began to question him. Stine identified himself and produced his wallet and driver's license. Stine told Younk his address, which also appeared on his license, and disclosed his father's name.

During Younk's questioning of Stine, Vincent pulled his personal car into the parking lot of the police station. At Younk's motion Vincent left his car and joined Younk. Vincent did not remove the keys from his car's ignition, nor did he lock his car. At some point during the questioning Younk frisked Stine and found that he had no weapons. Stine, who appeared to be under the influence of drugs, became belligerent and refused to reveal his mother's name. Younk and Vincent threatened to arrest Stine for the curfew violation and disorderly conduct.

Stine suddenly ran away from the officers and headed for some box cars near the station. Vincent chased Stine on foot, while Younk drove the squad car toward the area where he thought Stine might be. Stine doubled back to the station and stole Vincent's car. Younk and Vincent saw Stine driving away at a high speed and pursued him in the squad car. Stine was driving at speeds in excess of 95 m.p.h. and ran four stop signs. Stine periodically turned off his lights and weaved from lane to lane on the two lane road. At some point during the chase Younk and Vincent received information confirming that Stine had a valid driver's license and was not subject to any outstanding warrants. The officers told the dispatcher at the Waukesha County Sheriff's Department that they were pursuing Stine and related that Stine's bizarre behavior had been sparked by the threat of a disorderly conduct charge. The officer in charge of communications with the various squad cars later involved in the chase, however, did not know that Stine was a juvenile whose address was known or the origins of the chase. He did know that Stine was driving in a dangerous and irrational manner.

Younk and Vincent gave up the chase after ten miles when their squad car broke down. By the time Younk and Vincent were forced to abandon the chase, squad cars from Waukesha County were following Stine. Stine entered an interstate highway by using the exit ramp as an entrance ramp. He drove west in the eastbound lanes of the highway, followed by Waukesha County squad cars and squad cars from neighboring towns. Ultimately 18 or 20 squad cars joined in the pursuit of Stine. Stine shifted into the proper lane and continued driving at speeds between 100 and 110 m.p.h. Stine evaded at least one road block by driving on the shoulder of the road.

After several attempts, officers in one of the squad cars shot and exploded one of Stine's tires. Stine continued to drive, swerved across the median, and collided with Dale Dodge's semi-truck. The collision injured Dodge and damaged the truck. Plaintiffs filed this diversity suit, alleging negligence on the part of Stine and all of the law enforcement officers involved in the chase. Plaintiffs argued that the police should have abandoned the chase in favor of apprehending Stine at a later time, and the chase caused Stine to drive recklessly and collide with Dodge. The jury found Stine solely responsible for the accident. On appeal, plaintiffs complain that the court erred in preventing them from arguing that Vincent was negligent in leaving his keys in his unlocked car when he chased Stine, and that the various police departments were negligent in not formulating written guidelines governing high speed chases and the use of firearms. Plaintiffs also complain that the jury's verdict is against the weight of the evidence.

II Liability for Negligent Placement of Car Keys

One of plaintiffs' theories was that Officer Vincent, by leaving the keys in his unlocked car, negligently allowed Stine to steal the car, which foreseeably led to the accident. In a pre-trial ruling the district court held that Wisconsin law, which governs this action, does not permit the imposition of liability upon a car owner who negligently allows is car to be stolen by a thief who later causes an accident. Plaintiffs urge us to follow decisions from states other than Wisconsin and impose liability. A review of Wisconsin case law will demonstrate the fallacy in plaintiffs' argument.

In Meihost v. Meihost, 29 Wis.2d 537, 139 N.W.2d 116 (1966), the Wisconsin Supreme Court considered a case in which the owner of a car left a set of keys in the glove compartment of his unlocked car. Someone stole the car and later caused an accident. The court initially found that the car owner had not been negligent in leaving the keys in the glove compartment, but went on to state:

Assuming that the key had been left in the ignition it may be that such conduct would be negligence on the part of the owner but, even so, public policy considerations direct that, under most circumstances, the owner not be held liable for such harm as would result by reason of the injury of persons in a collision caused by the negligent driving of the thief of the car. Under most circumstances, allowance of recovery would place too unreasonable a burden upon the owners (or others having legal custody) of motor vehicles. In this respect, we agree with the conclusion reached by the supreme court of California in Richards v. Stanley, (43 Cal.2d 60, 271 P.2d 23 (1954)) in which it held, under facts similar to those here assumed, that it would be incongruous to hold the car owner responsible for the negligence of the driver where the car was taken without permission while ordinarily exonerating him for similar acts where he actually loaned his vehicle to the one driving.

Id. at 546-47, 139 N.W.2d at 121. Despite the citation to Richards, it is clear that the Wisconsin Supreme Court did not intend to adopt the California approach. In Richards the court held that absent notice that the car will be stolen by one incompetent to drive it, the owner of a car is not negligent in facilitating a theft by leaving the keys in the car. The court did note that facilitating a theft by an intoxicated driver might lead to liability. 271 P.2d at 23.

The situation involving theft by a drunk driver envisioned in Richards was presented in Duarte v. City of San Jose, 100 Cal.App.3d 648, 161 Cal.Rptr. 140 (Cal.Ct.App.1980). In Duarte police officers arrested a drunk driver and left him unattended in a squad car with the key in the ignition. The drunk stole the car and subsequently injured plaintiff in an accident. The court found that "[t]he reasonable likelihood that an arrested drunk might, in his inebriated state of mind, try to flee is precisely the hazard that makes giving him easy access to a vehicle negligent." Id. at 659, 161 Cal.Rptr. at 145-48.

Duarte makes clear that the concern in California is with basing a finding of negligence on the mere failure to remove keys from a car's ignition. When the likelihood of theft by one incompetent to drive is high, the courts will not hesitate to find negligence. Richards and Duarte, in this respect, are radically different from Meihost, in which the court was willing to assume negligence, but nevertheless unwilling to impose liability for reasons of public policy. The courts in Wisconsin recognize that, in a limited number of cases, liability should not be imposed for harm caused by a negligent defendant. This public policy exception is applied: "In cases so extreme that it would shock the conscience of society to impose liability." Colla v. Mandella, 1 Wis.2d 594, 598, 85 N.W.2d 345, 348 (1957); see also Schilling v. Stockel, 26 Wis.2d 525, 133 N.W.2d 335 (1965). Through this public policy exception the courts protect defendants from liability out of proportion to their negligence. ¹

A recent case from the Wisconsin Supreme Court confirms the difference between the approach taken by Wisconsin and that taken by California. In Lichter v. Fritsch, 77 Wis.2d 178, 252 N.W.2d 360 (1977), defendant left the keys in his unlocked car after parking on the grounds of a veteran's hospital for the treatment of the mentally ill. One of the patients stole the car and caused an accident. The court rejected the argument that the case could be...