Estate of Cavanaugh by Cavanaugh v. Andrade

• Decision Date: 27 June 1996
• Docket Number: No. 94-0192,94-0192
• Citation: 550 N.W.2d 103,202 Wis.2d 290
• Parties: ESTATE OF Donald E. CAVANAUGH, by James H. CAVANAUGH, Special Administrator and James H. Cavanaugh, Plaintiffs-Respondents-Petitioners, v. Robert ANDRADE and City of Milwaukee, Defendants-Appellants-Cross Petitioners, d Gary Allen Zergoski, Defendant.
• Court: Wisconsin Supreme Court

Page 103

550 N.W.2d 103

202 Wis.2d 290

ESTATE OF Donald E. CAVANAUGH, by James H. CAVANAUGH Special Administrator and James H. Cavanaugh Plaintiffs-Respondents-Petitioners, v. Robert ANDRADE and City of Milwaukee Defendants-Appellants-Cross Petitioners,^d Gary Allen Zergoski, Defendant.

No. 94-0192.

Supreme Court of Wisconsin.

Argued Jan. 30, 1996.

Decided June 27, 1996.

For the plaintiffs-respondents-petitioners there were briefs by Christopher J. Stawski and McGranaghan & Stawski, Ltd., Milwaukee and oral argument by Christopher J. Stawski.

For the defendants-appellants-cross petitioners there were briefs by Jan A. Smokowicz, Assistant City Attorney and Grant F. Langley, City Attorney, Milwaukee and oral argument by Jan A. Smokowicz.

ANN WALSH BRADLEY, Justice.

The plaintiffs, Estate of Donald Cavanaugh and James Cavanaugh, seek review, and the defendants, City of Milwaukee and police officer Robert Andrade, seek cross-review of a decision of the court of appeals that reversed a judgment against the City and affirmed a judgment against Andrade, which was entered by the Circuit Court for Milwaukee County, Laurence C. Gram, Jr., Judge. ¹ The City and Andrade assert immunity from liability for the injuries and death of Donald Cavanaugh which resulted from a collision with a vehicle being pursued by Andrade during a high-speed chase. Because the City has a ministerial duty to have a written policy for high-speed chases which includes consideration of the severity of the offense, we conclude that the City is not immune from liability. We also conclude that there is credible evidence to support the jury's verdict finding that the City breached its duty. Further, because Andrade's decisions to initiate and continue the chase were discretionary, we conclude that he is immune from liability. Accordingly, we reverse the decision of the court of appeals.

I. FACTS

The issues in this case arise out of a high-speed pursuit involving Andrade and a vehicle driven by Gary Zergoski. Late in the evening on January 13, 1989, Andrade was approaching the intersection of South 35th Street and West Forest Home Avenue when he observed Zergoski pass several stopped vehicles and speed through a solid red traffic signal controlling the intersection. Andrade turned at the intersection and increased his speed to follow Zergoski.

Andrade activated his emergency lights and siren approximately two blocks later, which caused Zergoski to begin to pull over. However, Zergoski again fled at a high rate of speed and turned onto 39th Street. Approximately six to seven blocks later, Andrade observed Zergoski's vehicle stalled in an intersection. Andrade was able to approach close enough to observe Zergoski's license plate number, which he relayed to the dispatcher. Zergoski restarted his vehicle and again fled at a high rate of speed along West Morgan Avenue, which is a main arterial street within a primarily residential neighborhood.

At the intersection of 60th Street and Morgan, Zergoski went through another red light and collided with a vehicle driven by Donald Cavanaugh. According to witnesses, Zergoski was travelling between 60 and 80 miles per hour approximately two blocks prior to this intersection. Andrade estimated that he was approximately one block away from this collision when it occurred. A witness testified that Andrade was within approximately one-half block of Zergoski's vehicle when it entered the intersection. In all, the pursuit spanned approximately 17 blocks. As a result of the collision, Cavanaugh died after spending five months in a coma.

James Cavanaugh, Donald's father, sued the City, Andrade, and Zergoski, individually and as administrator of Donald's estate. The case was ultimately tried to a jury, which found the City 23% negligent with respect to implementation of its high-speed pursuit policy, Andrade 2% negligent with respect to the operation of his vehicle, and Zergoski 75% negligent.

During the trial, Cavanaugh and the City stipulated orally on the record that the damages consisted of $50,000 for James' loss of society and companionship claim and $50,000 for damages for Donald's pain and suffering, apparently under the belief that the maximum allowable recovery on each claim was $50,000. See Wis.Stat. § 893.80(3) (1993-94). ² In motions after verdict, however, Cavanaugh moved for judgment against the City and Andrade in the amount of $250,000, which is the maximum recovery allowed for damages resulting from the negligent operation of a motor vehicle owned and operated by a municipality. See Wis.Stat. § 345.05(3).

The City and Andrade moved for judgment notwithstanding the verdict on the grounds that they were immune from liability. The City also contested Cavanaugh's post-verdict claim for damages in the amount of $250,000, arguing that the oral stipulation entered into at trial was binding.

The circuit court denied the City's and Andrade's motion as to immunity. The court also determined that the oral stipulation of damages was not binding because there had been no meeting of the minds. The parties subsequently agreed to a second stipulation, and judgment was entered in the amount of $250,000, plus costs. Pursuant to the second stipulation, the City and Andrade reserved for purposes of appeal the legal issue of whether the initial stipulation of damages was binding.

A majority of the court of appeals reversed the judgment against the City, holding that the City was immune from liability. Estate of Cavanaugh v. Andrade, 191 Wis.2d 244, 257, 528 N.W.2d 492 (Ct.App.1995). However, the court affirmed the judgment of liability with respect to Andrade, holding that an officer is not afforded immunity where he or she is negligent in the operation of a motor vehicle. Id. at 261, 528 N.W.2d 492. It also concluded that the initial oral stipulation limiting damages to $100,000 was binding on the parties. Id. at 262, 528 N.W.2d 492.

Cavanaugh seeks review of the court of appeals' holding that the City is immune from liability. He also contends that the court erred in holding that the oral stipulation of damages is binding on the parties. The City and Andrade seek cross-review of that portion of the decision of the court of appeals affirming the judgment against Andrade.

II. IMMUNITY GENERALLY

The central question presented by this case is whether a municipality and its police officers may be liable for injuries arising out of a high-speed pursuit, where the pursued vehicle collides with a third person. The City and Andrade maintain that the general municipal tort immunity set forth in Wis.Stat. § 893.80(4) ³ relieves them from liability for any damages resulting from the collision between Zergoski and Cavanaugh. This court most recently summarized the doctrine of governmental immunity in Kimps v. Hill, 200 Wis.2d 1, 546 N.W.2d 151 (1996). As we stated in that case, "[t]he test for determining whether a duty is discretionary (and therefore within the scope of immunity) or ministerial (and not so protected) is that the latter is found only when [the duty] is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Id. at 10-11, 546 N.W.2d 151. (citations omitted).

Despite the immunity for discretionary acts of municipalities and its employees set forth in § 893.80(4), Cavanaugh argues that neither the City nor Andrade are immune from liability arising out of a high-speed pursuit based on Wis.Stat. § 346.03. Section 346.03 specifically governs the privileges and duties of drivers of emergency vehicles, Wis.Stat. § 346.03(1)-(5). ⁴

This court has not yet had occasion to consider the applicability of the defense of immunity in the context of a high-speed pursuit. We consider this question as applied to the City and Andrade separately under the facts and circumstances of this case.

III. CITY OF MILWAUKEE

A. Immunity

Cavanaugh alleged that the City was negligent because it implemented a high-speed pursuit policy that did not comply with Wis.Stat. § 346.03(6). However, if the duty imposed by § 346.03(6) is discretionary, as opposed to ministerial, the City is afforded immunity for its actions pursuant to § 893.80(4). Whether § 346.03(6) creates a discretionary or ministerial duty is a question of law that this court reviews de novo. See Kimps, 200 Wis.2d at 11-15, 546 N.W.2d 151. See also Larsen v. Wisconsin Power & Light Co., 120 Wis.2d 508, 516, 355 N.W.2d 557 (Ct.App.1984).

Section 346.03(6) imposes a duty on law enforcement agencies that use emergency vehicles to establish written guidelines for high-speed pursuits:

Every law enforcement agency which uses authorized emergency vehicles shall provide written guidelines for its officers and employees regarding exceeding speed limits ... and when otherwise in pursuit of actual or suspected violators. The guidelines shall consider, among other factors, road conditions, density of population, severity of crime and necessity of pursuit by vehicle.

The court of appeals concluded that this statute creates a ministerial duty because law enforcement agencies are required to provide written guidelines which must consider certain factors. Cavanaugh, 191 Wis.2d at 253-54, 528 N.W.2d 492.

We agree with the court of appeals that while the promulgation of guidelines in general involves a great amount of governmental discretion, § 346.03(6) makes the inclusion of certain parts of the policy promulgation ministerial. Cavanaugh, 191 Wis.2d at 254, 528 N.W.2d 492. The statute mandates that law enforcement agencies "shall provide written guidelines for its officers" which "shall consider" specific factors. These actions are "absolute, certain and imperative, involving merely the performance of a specific task." Kimps, 200 Wis.2d at 10, 546 N.W.2d 151. Accordingly, the City...