Ervin v. City of Kenosha, 89-0909

• Citation: 159 Wis.2d 464,464 N.W.2d 654
• Decision Date: 23 January 1991
• Docket Number: No. 89-0909,89-0909
• Parties: Clarence ERVIN, Addrienne Ervin, Dewayne Wells, and Maxine Wells, Plaintiffs-Appellants, v. CITY OF KENOSHA, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 654

464 N.W.2d 654

159 Wis.2d 464

Clarence ERVIN, Addrienne Ervin, Dewayne Wells, and Maxine Wells, Plaintiffs-Appellants, v. CITY OF KENOSHA, Defendant-Respondent.

No. 89-0909.

Supreme Court of Wisconsin.

Argued Oct. 30, 1990.

Decided Jan. 23, 1991.

Adrian P. Schoone, Mark J. Leuck, argued, Schoone, Ware & Fortune, S.C., on briefs, Racine, for plaintiffs-appellants.

Robert I. Dumez, argued, O'Connor & Willems, S.C., on briefs, Kenosha, for defendant-respondent.

James Schneider, Madison, for amicus curiae League of Wisconsin Municipalities.

Thomas Armstrong and Quarles & Brady, Milwaukee, for amici curiae Cities and Villages Mut. Ins. Co. and Wisconsin Parks & Recreation Ass'n.

CALLOW, Justice.

This case is before this court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. The parents ¹ appeal from a summary judgment (dismissing their complaint) of the circuit court for Kenosha county, Judge David M. Bastian. The parents raise three issues on appeal. First, they contend that sec. 895.52(2), Stats. ² (Wisconsin's recreational use statute), does not immunize the city of Kenosha (City) from liability for negligently hiring and failing to properly train and instruct lifeguards for its public beach, nor is the City immune from liability for the negligent performance of these lifeguards. Second, the parents contend that summary judgment was inappropriate in this case because genuine issues of material fact existed which should have been tried to a jury. Third, the parents argue that, even if the City's conduct would otherwise be immunized by sec. 895.52(2), the City is liable under sec. 895.52(4) ³ because its conduct was malicious.

We first conclude that the City is immune from liability under sec. 895.52(2), Stats. It is not liable for its negligence in hiring or failing to properly train the lifeguards, or for the lifeguards' negligent performance. We next conclude that no genuine issues of material fact exist and summary judgment was proper as a matter of law. Finally, we conclude that the City's conduct was not malicious and therefore the City is not liable under sec. 895.52(4)(b).

The relevant facts follow: Two minors, Clarence Ervin III and Brian Wells, drowned on July 8, 1987, at a beach owned and operated by the City. The youths were in chest-high water at the south end of the beach near an unmarked, steep eight-foot drop-off. The drop-off was approximately ten to fifteen feet from the shore. The youths encountered the drop-off and went underwater. Unable to swim, the youths submerged and reemerged for several minutes. Several bystanders entered the water in an attempt to rescue the youths, after they saw the youths go underwater without reemerging.

At the time of this incident, the beach was staffed by four lifeguards employed and trained by the City. A female lifeguard was at the lifeguard station nearest the area of the drownings. Two hundred yards north of her station was a second lifeguard station that may have been unattended because the lifeguard assigned to that station was allegedly away from his station. The head lifeguard was at a third station on the north end of the beach, one hundred yards north of the allegedly unattended station. An off-duty lifeguard was on an authorized thirty-minute break.

The female lifeguard saw the two youths at the drop-off, but did not warn them of the danger, and there was no City policy requiring her to do so. Sometime after the youths went underwater she blew her whistle and the head lifeguard responded, reaching the area in approximately one minute. After two more minutes, he recovered Brian Wells and initiated cardiopulmonary resuscitation (CPR). He simultaneously gave CPR instructions to the off-duty lifeguard who had recovered Clarence Ervin III. Both youths were then taken to the hospital and later pronounced dead.

Several bystanders testified at a deposition that before they finally went underwater, the two youths had struggled in the water for approximately three to five minutes. The bystanders also testified they had gone into the water to try to rescue the youths before any lifeguard entered the water. According to one of these bystanders, the youths were underwater five minutes before they were discovered. She also stated that the female lifeguard had seen the youths struggling. Another bystander testified that the female lifeguard appeared to be panicked and confused during the rescue efforts.

The City hired the lifeguards without formal interviews or skills testing. Moreover, the City had not provided them any lifeguard, first-aid or rescue training prior to this incident. With the exception of the head lifeguard, none of the lifeguards had been previously involved in rescue or first-aid efforts. After the drownings, the City posted a warning sign at the drop-off, equipped the lifeguards with radios, and ordered CPR training for the lifeguards.

The parents sued the City alleging, among other things, that the City was negligent in maintaining a hazardous condition and failing to warn of this condition, and in failing to properly train and instruct its lifeguards. The parents also alleged that the lifeguards were negligent in performing their duties and that the City was vicariously liable for this negligence. The circuit court granted the City's motion for summary judgment on the ground that the City was immune from liability under sec. 895.52, Stats., as a matter of law.

The case is presently before this court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats., 454 N.W.2d 807, and this court will consider all three issues raised on appeal. ⁴

I.

The parents argue that sec. 895.52(2), Stats., does not immunize the City from liability for the lifeguards' negligence or for its own negligent hiring and failure to train them. The parents contend that the City's conduct represented "active" negligence, and that the statute was intended to immunize only "passive" or "condition of the premises" negligence. We disagree because: (a) the plain language of the statute does not support this contention, (b) Wisconsin case law permits immunity under the recreational use statute for both active and passive negligence, and (c) legislative intent clearly supports granting immunity for both active and passive negligence.

"The construction of a statute in relation to a given set of facts is a question of law." Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673 (1985). We decide questions of law without deference to the circuit court's determination. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984). The test for determining whether a statute is ambiguous is whether the statute is capable of being understood by reasonably well-informed persons in two or more different senses. Wirth v. Ehly, 93 Wis.2d 433, 441, 287 N.W.2d 140 (1980).

We conclude that the statute is clear on its face and capable of being understood only in one way: the City is immune from liability under sec. 895.52(2), Stats., unless one of the exceptions in secs. 895.52(3)-(6) apply. Subsection (2)(a) clearly indicates that neither the City nor the lifeguards had a duty to keep the beach safe for recreational activities, or to warn of any unsafe condition. The City is an "owner" as defined in sec. 895.52(1)(d), ⁵ and the lifeguards were employees of the City. Additionally, under subsection (2)(b), neither the City nor its lifeguards were liable for any injury to a person engaging in a recreational activity on the City's property. The youths were engaged in a recreational activity ⁶ at the time of the accident. Applying the language of the statute, the City is immune from liability.

"If the meaning of the statute is clear and unambiguous on its face, then resort to extrinsic aids for the purpose of statutory construction is improper." State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12 (1981). Notwithstanding the clear language of the statute, the parents argue that the City is nonetheless liable because sec. 895.52, Stats., only immunizes "passive" (condition of the land) negligence, not "active" negligence. The parents contend that the statute should be narrowly construed to apply only to passive negligence because the statute is in derogation of common law. See LePoidevin v. Wilson, 111 Wis.2d 116, 129, 330 N.W.2d 555 (1983) ("[S]tatutes in derogation of the common law must be strictly construed."). The parents also contend that the City was actively negligent because: (a) it improperly hired, trained and instructed the lifeguards, and (b) the lifeguards performed negligently during the drownings. The parents rely primarily on LePoidevin. LePoidevin involved sec. 29.68, Stats. 1975, the predecessor statute to sec. 895.52.

In LePoidevin, we drew a distinction between "active" negligence and "condition of the premises." LePoidevin, 111 Wis.2d at 122, 330 N.W.2d 555. We held that the landowner in LePoidevin was not immune from liability. Id. at 132, 330 N.W.2d 555. However, LePoidevin involved a case where a landowner had invited a social guest onto his property for recreational purposes. Id. at 121, 330 N.W.2d 555. We stated,

[the defendant] has not opened his land to the "public" generally nor has he given permission to one or more members of the "public" to use the land for recreational purposes. He opened his land to a social guest who was invited onto the land. Granting the protection afforded by sec. 29.68 to a landowner who invites a friend of the family to the summer cottage as a guest to join the family in water sports does not foster the purpose of sec. 29.68 to encourage landowners to make land and water areas available to the public for recreational use.

Id. at 131-32, 330 N.W.2d 555. Our situation is distinct in that the youths were not "social guests," and, as will be discussed later, the legislature intended to protect landowners such as the City from...