Gritzner v. Michael R.

• Decision Date: 23 June 2000
• Docket Number: No. 98-0325.,98-0325.
• Citation: 611 N.W.2d 906,235 Wis.2d 781,2000 WI 68
• Parties: Thomas GRITZNER and Sandra Gritzner, parents and guardians of Tara G., a minor, Plaintiffs-Appellants-Petitioners, v. MICHAEL R., a minor, and Karen Rosetti, as parent of Michael R., Defendants, Roger BUBNER, as custodian of Michael R., and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

235 Wis.2d 781

2000 WI 68

611 N.W.2d 906

Thomas GRITZNER and Sandra Gritzner, parents and guardians of Tara G., a minor, Plaintiffs-Appellants-Petitioners, v. MICHAEL R., a minor, and Karen Rosetti, as parent of Michael R., Defendants, Roger BUBNER, as custodian of Michael R., and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners.

No. 98-0325.

Supreme Court of Wisconsin.

Oral argument February 9, 2000.

Decided June 23, 2000.

For the plaintiffs-appellants-petitioners there were briefs by Steven J. Watson and Steven J. Watson Law Office, Elkhorn, and oral argument by Steven J. Watson.

For the defendants-respondents-petitioners there were briefs by Thomas M. Devine, JoAnne M. Breese-Jaeck, and Hostak, Henzl & Bichler, S.C., Racine, and Phillip C. Theesfeld and Baxter, O'Meara & Samuelson, Milwaukee, and oral argument by Thomas M. Devine.

¶ 1. JON P. WILCOX, J.

The plaintiffs in this case are the parents of a four-year-old girl, Tara, who was sexually abused by her ten-year-old neighbor, Michael. The abuse allegedly took place while Tara was visiting Michael's home, where Michael lived with his mother and his mother's boyfriend Roger Bubner. After learning about this incident, Tara's parents filed civil suits against various parties, including Bubner.

¶ 2. The case at hand involves the plaintiffs' suit against Roger Bubner. The plaintiffs allege that Bubner was entrusted with the care of Tara while she was in his home, that Bubner had custody and control of Michael, and that Bubner knew or should have known that Michael might engage in inappropriate sexual acts if left alone with Tara. On the basis of these allegations, the plaintiffs brought claims against Bubner for (1) negligent failure to warn them of Michael's propensity to engage in inappropriate sexual acts, and (2) negligent failure to control Michael's conduct.

¶ 3. The circuit court granted Bubner's motion to dismiss these claims. In reaching its decision, the circuit court relied on Kelli T-G. v. Charland, 198 Wis. 2d 123, 542 N.W.2d 175 (Ct. App. 1995), which held that public policy considerations barred a claim for negligent failure to warn in a case involving an ex-wife who did not warn another child's mother about her ex-husband's pedophilic propensities.

¶ 4. The plaintiffs appealed. In a published opinion, the court of appeals affirmed in part and reversed in part. Gritzner v. Michael R., 228 Wis. 2d 541, 598 N.W.2d 282 (Ct. App. 1999). With some reluctance, the court of appeals affirmed the circuit court's decision that the claim for negligent failure to warn was barred by the reasoning of Kelli T-G.. Id. at 549-551. However, the court of appeals reinstated the claim for negligent failure to control. Id. at 555-57. Both parties petitioned this court for review.

¶ 5. Upon review, all members of the court agree that the case should be remanded to the circuit court. Those justices who join the lead opinion would affirm the court of appeals on both counts. We would hold that public policy considerations preclude the plaintiffs' claim for negligent failure to warn. We would recognize the Gritzners' claim for negligent failure to control only because liability for failure to control can be imposed on distinct, narrow grounds that do not raise the same public policy considerations that preclude liability for failure to warn.

I. FACTS

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¶ 6. Because this case arises on a motion to dismiss for failure to state a claim, we must accept as true all facts alleged in the complaint and all reasonable inferences from those facts. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 320, 565 N.W.2d 94 (1997). The material facts alleged are as follows.

¶ 7. In 1996 the defendant Roger Bubner was living in Lake Geneva with his girlfriend Karen R. and her ten-year-old son Michael. Some time before May 1, 1996, Michael engaged in inappropriate sexual acts with another child or children, including his half-sister. Bubner knew that this had occurred.

¶ 8. Thomas and Sandra Gritzner and their four-year-old daughter Tara lived on the same street as Bubner. Bubner knew that Thomas, Sandra, and Tara were his neighbors and that Thomas and Sandra were Tara's parents.

¶ 9. At relevant times between approximately May 1, 1996 and July 7, 1996, Tara visited Bubner's home to play with Michael and other children. Bubner consented to Tara's presence in his home, and the Gritzners entrusted Tara to Bubner's care during these visits. Bubner also assumed custody and control over Michael at these times. Bubner knew or should have known that there was a danger Michael would engage in inappropriate sexual acts if left unsupervised with Tara. ¶ 10. On July 7, 1996, Bubner and Karen R. informed Thomas and Sandra Gritzner that Michael had sexually abused Tara while the children were unsupervised at Bubner's home. On August 21, 1996, a child abuse investigator from the local Department of Human Services confirmed Michael's alleged sexual abuse of Tara.

II. PROCEDURAL HISTORY

¶ 11. In June 1997 the Gritzners filed a complaint against Bubner¹ claiming (1) negligent failure to warn them of Michael's propensity to sexually abuse Tara, and (2) negligent failure to control Michael.² In his answer to the complaint, Bubner denied the allegations and argued that in any case the complaint failed to state a claim for which relief could be granted.

¶ 12. Bubner subsequently filed a motion to dismiss the Gritzners' claims, arguing that (1) Kelli T-G. barred the failure to warn claim, and (2) the romantic relationship between Bubner and Karen R. did not impose on Bubner a duty to supervise or control Michael's conduct. In response, the Gritzners argued that for purposes of the motion to dismiss, it must be assumed that Bubner had custody and control over Michael as alleged in the complaint. The Gritzners further argued that under Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989), their claims were viable based on Bubner's duty to exercise ordinary care toward all persons who came upon his property with consent. Finally, the Gritzners argued that Kelli T-G. was not dispositive because it was factually distinguishable.

¶ 13. The Circuit Court for Walworth County, James L. Carlson, Judge, granted Bubner's motion to dismiss. Judge Carlson determined that Bubner had no legal duty to warn the Gritzners about Michael's alleged propensities or to control Michael's conduct. The judge further concluded that Shannon did not apply and that Kelli T-G. was dispositive.

¶ 14. The Gritzners appealed. The court of appeals first noted that under Shannon an occupier of premises generally owes a duty of ordinary care towards all persons who come onto the premises with consent. Gritzner, 228 Wis. 2d at 548 (quoting Shannon, 150 Wis. 2d at 443-44). With regard to the claim for negligent failure to warn, the court indicated that although it was "not enthusiastic about the holding in Kelli T-G.," it was nonetheless bound to follow existing precedent, and affirmed the circuit court's decision to dismiss the claim. Gritzner, 228 Wis. 2d at 551.

¶ 15. Turning to the claim for negligent failure to control, the court concluded that Kelli T-G. was distinguishable. The court determined that under the Restatement (Second) of Torts and Wisconsin law, Bubner had a special relationship with both Michael and Tara and that because of these special relationships Bubner had a duty to control Michael's conduct for the purpose of protecting Tara. Id. at 554-56. The court further noted that the duty imposed under a failure to warn claim is "manifestly different" from the duty imposed under a failure to control claim. Id. at 558. Because no public policy considerations precluded liability, the court reversed the circuit court's decision to dismiss the claim for negligent failure to control. Id. at 559-60.

¶ 16. Both parties petitioned this court for review.

III. STANDARD OF REVIEW

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¶ 17. A motion to dismiss for failure to state a claim tests whether the complaint is legally sufficient to state a cause of action for which relief may be granted. Doe, 211 Wis. 2d at 331. The legal sufficiency of the complaint is a question of law that this court reviews de novo. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999). In examining the legal sufficiency of the complaint, the court assumes that the facts alleged in the complaint are true. Id.; Doe, 211 Wis. 2d at 331. However, the court does not assume that the legal conclusions pleaded in the complaint are true. Doe, 211 Wis. 2d at 331.

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¶ 18. A court may not grant a motion to dismiss for failure to state a claim unless there are no conditions under which relief could be granted. Id.; Wausau Tile, 226 Wis. 2d at 245.

IV. GENERAL PRINCIPLES OF NEGLIGENCE LAW IN WISCONSIN

¶ 19. The Gritzners' claims invoke principles of common law negligence. To establish a negligence claim, a plaintiff must prove: (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the injury. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 260, 580 N.W.2d 233 (1998) (quoting Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995)).

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¶ 20. The first element, a duty of care, is established under Wisconsin law whenever it was foreseeable to the defendant that his or her act or omission to act might cause harm to some other person. Rockweit, 197 Wis. 2d at 420 (quoting Rolph v. EBI Cos., 159 Wis. 2d 518, 532, 464 N.W.2d 667 (1991)).³ At the very least, every person is subject to a duty to exercise ordinary care in all of his or her activities. Rockweit, 197 Wis. 2d at 419.

¶ 21. The Gritzners' claims against Bubner are based on Bubner's duty to take certain affirmative actions—to warn Tara's parents about Michael...