Enright v. Board of School Directors of City of Milwaukee

• Decision Date: 24 April 1984
• Docket Number: No. 82-2158,82-2158
• Citation: Enright v. Board of School Directors of City of Milwaukee, 346 N.W.2d 771, 118 Wis.2d 236 (Wis. 1984)
• Parties: , 16 Ed. Law Rep. 1381 Dorothy ENRIGHT, as Special Administrator of the Estate of Heath Enright, Heath Enright, Renee Enright, Joseph Enright and Joseph Enright, Jr., Plaintiffs-Appellants-Petitioners, v. BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE; Diane Clark and Wausau Insurance Companies, Defendants-Respondents, Peggy Kenner, President; Dr. Lee F. McMurrin, Superintendent; and Mr. John J. Peterburs, Secretary Business Manager, Defendants.
• Court: Wisconsin Supreme Court

Page 771

346 N.W.2d 771

118 Wis.2d 236, 16 Ed. Law Rep. 1381

Dorothy ENRIGHT, as Special Administrator of the Estate of Heath Enright, Heath Enright, Renee Enright Joseph Enright and Joseph Enright, Jr. Plaintiffs-Appellants-Petitioners, v. BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE; Diane Clark and Wausau Insurance Companies, Defendants-Respondents Peggy Kenner, President; Dr. Lee F. McMurrin Superintendent; and Mr. John J. Peterburs, Secretary Business Manager, Defendants.

No. 82-2158.

Supreme Court of Wisconsin.

Argued March 28, 1984.

Decided April 24, 1984.

Robert C. Angermeier, Milwaukee (argued), for plaintiffs-appellants-petitioners; Angermeier & Rogers, Milwaukee, on brief.

C. Donald Straub, Milwaukee, for defendants-respondents.

William H. Lynch, Milwaukee, filed brief amicus curiae, for Wis. Civ. Liberties Union Foundation, Inc. STEINMETZ, Justice.

The issue in this case is whether negligence on the part of an employee of the Board of School Directors of the City of Milwaukee gives rise to a 42 U.S.C. sec. 1983 action for the death of a child attending a Milwaukee public school. There are other issues related to the negligence issue and they will be discussed in the opinion.

This case involves a civil action which alleges common law negligence and deprivation of civil rights. In response to the third amended complaint, the defendants filed a motion to dismiss both the state negligence action and the federal civil rights action. The trial court, the Milwaukee county circuit court, Honorable Laurence C. Gram, Jr., issued an oral decision on August 30, 1982, dismissing the common law negligence action on public policy grounds. On October 22, 1982, the trial court issued a memorandum decision dismissing the federal civil rights claim. The plaintiffs appealed both decisions.

The court of appeals, in a published decision, reinstated the common law negligence action, but upheld the dismissal of the civil rights action. Enright v. Milwaukee Sch. Directors Bd., 114 Wis.2d 124, 338 N.W.2d 114 (Ct.App.1983). The defendants have not cross-petitioned for review of the reinstatement of the common law negligence action.

The facts describe a tragic death of a seven year old boy. Virginia Burgardt lives across the street from the Hampton Elementary School in the city of Milwaukee. On September 14, 1979, at approximately 10:00 a.m., she observed a white male in his early twenties, later identified as Thomas White, standing near the playground at the Hampton School watching children who were playing during recess. The white male continued to watch the children at recess and repeatedly looked around, apparently to determine if anyone was watching him.

At approximately 11:00 a.m. the same day, Cynthia Winquist was at the Hampton Elementary School "tot-lot" with her two year old son. She observed the adult white male watching the other children who were at recess on the playground at the time. Cynthia Winquist became suspicious of the man and later told the police that at the time the man was observing the children on the playground he appeared to be "snickering" to himself. After the children returned to the school, leaving Cynthia Winquist and her young child alone, she became increasingly concerned about her own safety as the yet unidentified white male began staring at her and continued to "snicker." Cynthia Winquist observed an electrical cord hanging out of the adult white male's trouser pocket. Upon seeing this she grabbed her child and left the tot-lot.

Virginia Burgardt observed the episode between Cynthia Winquist, her child, and the unidentified adult white male. She then telephoned the principal's office at the Hampton Elementary School. The telephone was answered by the secretary on duty, Diane Clark. Virginia Burgardt advised the secretary of the man outside the school near the playground acting in a suspicious and unusual manner. Diane Clark told Virginia Burgardt that she would inform the principal, Mr. Dakich. Mrs. Burgardt returned to her front porch, watching the individual. The man stayed around the school area for a period of time.

Another neighbor, Nathlyn Voegtline, also observed the unidentified adult white male leaning on the playground fence gazing into the playground area at a time when there were no children on the playground. This was approximately 11:30 a.m. Both Mrs. Burgardt and Mrs. Voegtline commented to one another about the man's presence after Mrs. Burgardt had telephoned the principal's office.

Diane Clark, the school secretary, acknowledged receiving the phone call from Mrs. Burgardt. She later told her supervisor that she had taken the message but "set it aside" and it "completely slipped her mind." Just after lunch, Diane Clark learned that a student had been killed or injured near the school. On receiving this information she tied the earlier phone call from the neighbor to the death or injury. It was at this time that she brought the phone call to the principal's attention.

On September 14, 1979, Heath Enright was a second grader at the Hampton Elementary School. He left the school at 12:00 p.m. that day to go home for lunch. At approximately 1:00, Robert Miller and his wife were driving west on Fairmont Avenue approximately one block from the Hampton Elementary School. They observed a young child lying on the grass between the sidewalk and the curb. Mr. Miller went to assist and found the lifeless body of Heath Enright. Robert Miller confronted an adult white male standing nearby in connection with the discovery of Heath Enright's body. The adult white male, later identified as Thomas White, admitted to the Millers that he had strangled Heath Enright with a piece of wire and that he had taken the wire back to his home and returned to the scene. After the police arrived, White took police officers to the basement of his house and identified a black electrical wire on the floor as the one used to strangle Heath Enright.

At the time of Heath Enright's death, Captain Robert Proulx was the captain of the fourth district of the Milwaukee Police Department, the district in which the Hampton Elementary School is located. In the record there is an affidavit of Attorney Robert Angermeier, the plaintiffs' attorney, which sets forth what Captain Proulx allegedly would have stated at trial. Captain Proulx allegedly would have testified that complaints regarding strangers on or near the schoolgrounds in his district are always received with high priority. Captain Proulx would have further testified that had the fourth district received the complaint regarding this suspicious person on or near the Hampton School grounds, officers would have responded and questioned the person in order to determine whether he had any legitimate business at or near the school. The officers normally would have checked at the school throughout the day in order to determine whether the suspicious person had returned to the area surrounding the school. Further, he would have testified that the responding officers would have had the option to arrest White for the violation of a city of Milwaukee loitering ordinance which specifically prohibits loitering near or on school grounds, Ordinance 106-31(d) which forbids the following conduct:

"Loiterers in or about any school or public place at or near which children or students attend or normally congregate. As used in this subsection 'loiter' means to delay, to linger, or to idle in or about any said school or public place without a lawful purpose for being present."

Additionally, Captain Proulx would have testified that had circumstances warranted, the investigating officers would have been authorized to take White into custody for psychiatric evaluation. See sec. 51.15(1), Stats. ¹ Heath Enright was survived by his twin sister, Renee Enright, his brother, Joseph Enright, and his parents, Joseph Enright and Dorothy Enright. An action was commenced on behalf of the estate and the surviving family. Count I of the complaint alleges a wrongful death action under state law, sec. 895.04, Stats. ² Count II alleges a civil rights violation wherein Renee Enright, Joseph Enright, and Heath's parents allege that they were deprived of the love and companionship of their brother and child due to the unjustified and arbitrary conduct of a government agency.

The court of appeals concluded that because Wisconsin's tort remedy provided a "satisfactory means of redress," the Enrights did not suffer a deprivation without due process in connection with the death of Heath Enright. The court of appeals relied on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in rejecting the Enrights' sec. 1983 claim. The Parratt case dealt with procedural due process and not substantive due process; however, the majority did not make the distinction in its holding.

Plaintiffs rely on 42 U.S.C. sec. 1983 which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

As we held in Terry v. Kolski, 78 Wis.2d 475, 486, 254 N.W.2d 704 (1977):

"We are satisfied that the provision of the federal law now appearing in the United States Code as 42 U.S.C. sec. 1983 is Revised Statute sec. 1979, affirmatively enacted by the codification of 1874. The statute now codified as 42 U.S.C. sec. 1983 indeed had its origin in the laws of the United States as a portion of the Civil Rights Act passed on April 9, 1866, as 14 Stats. 27."

Current consideration of sec. 1983 has its genesis in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5...