Gritzner v. Michael R.

• Decision Date: 09 June 1999
• Docket Number: No. 98-0325.,98-0325.
• Citation: 228 Wis.2d 541,598 N.W.2d 282
• Parties: Thomas GRITZNER and Sandra Gritzner, parents and guardians of Tara G., a minor, Plaintiffs-Appellants, 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.
• Court: Wisconsin Court of Appeals

228 Wis.2d 541

598 N.W.2d 282

Thomas GRITZNER and Sandra Gritzner, parents and guardians of Tara G., a minor, Plaintiffs-Appellants,¹ 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.¹

No. 98-0325.

Court of Appeals of Wisconsin.

Oral argument April 13, 1999.

Decided June 9, 1999.

On behalf of the plaintiffs-appellants, the cause was submitted on the brief and oral argument of Steven J. Watson of Steven J. Watson Law Office of Elkhorn.

On behalf of the defendant-respondent, Roger Bubner, the cause was submitted on the brief and oral argument of Phillip C. Theesfeld of Baxter & O'Meara of Milwaukee. On behalf of the defendant-respondent, American Family Mutual Insurance Company, there was oral argument by Thomas M. Devine of Hostak, Henzl & Bichler, S.C. of Racine.

Before Snyder, P.J., Brown and Nettesheim, JJ.

NETTESHEIM, J.

Thomas G. and Sandra G., parents of Tara G., appeal from a circuit court order dismissing their claims against Roger Bubner. Tara was four years old when she was sexually molested by Michael R., the ten-year-old son of Bubner's girlfriend, while playing at Bubner's home. The parents' complaint alleged that Bubner negligently failed to warn them of Michael's propensity for inappropriate sexual behavior based on his past similar conduct. The complaint also alleged that Bubner negligently failed to supervise Michael and Tara during the alleged episode of sexual molestation.

The circuit court granted Bubner's motion to dismiss the parents' complaint. We conclude that the court properly dismissed the failure to warn claim on public policy grounds pursuant to Kelli T-G. v. Charland, 198 Wis. 2d 123, 542 N.W.2d 175 (Ct. App. 1995). However, we further conclude that the complaint states a valid claim against Bubner for failure to supervise. We reverse this portion of the dismissal order and remand for further proceedings on this claim.

BACKGROUND

When reviewing a circuit court's decision on a motion to dismiss, we accept as true all the facts pleaded. See L.L.N. v. Clauder, 209 Wis. 2d 674, 683, 563 N.W.2d 434, 438-39 (1997)

. The parents' complaint sets out ninety-four allegations which, as material to the issues on this appeal, state the following.

Bubner is the boyfriend of Karen R. Michael is Karen's ten-year-old son. Karen and Michael lived with Bubner in a home owned by Bubner's mother. Prior to May 1, 1996, Michael had engaged in inappropriate sexual acts with other children, including his half-sister. Bubner was aware of these contacts. He was also aware that Tara lived next door and he knew her parents.

Between May 1, 1996, and July 7, 1996, Bubner allowed Tara to come to his home to play with Michael. Bubner had custody and control over Michael during these times and he knew that Tara was in Michael's unsupervised presence. He also knew there was a risk that Tara would be a victim of Michael's inappropriate sexual acts if left unsupervised with Michael.

On July 7, 1996, Karen and Bubner informed Tara's parents that Michael had sexually abused Tara while the two children were unsupervised at Bubner's home. On August 21, 1996, the Protective Services Investigator of the Child Abuse and Neglect Unit of the Walworth County Department of Human Services substantiated that Tara had been a victim of sexual abuse by Michael.

The parents filed a complaint against Bubner on July 17, 1997, alleging that Bubner was negligent for failing to supervise Michael and Tara during Tara's visits, failing to control Michael during Tara's visits and failing to warn them of Michael's prior sexual conduct.² Bubner responded with a motion to dismiss arguing that he did not have a duty to supervise or control either child and that he had no duty to warn Tara's parents of Michael's propensity for inappropriate sexual behavior. He additionally argued that Kelli T-G. precluded Tara's parents' claims as a matter of public policy.

The trial court held a hearing on Bubner's motion to dismiss on December 5, 1997. Following the hearing, the court entered an order granting the motion to dismiss. The court stated, in relevant part, that "a live-in boyfriend does not have a duty to supervise or control his live-in girlfriend's minor children" and that the parents had "failed to establish any legal duty on the part of one person to warn about another person's alleged propensities." In granting Bubner's request, the court additionally relied on the rationale and public policy considerations discussed by this court in Kelli T-G. The parents appeal.

DISCUSSION

Test for Sufficiency of Complaint and the Standard of Review

[1, 2]

When examining the sufficiency of a complaint, we accept as true all facts pleaded by the plaintiff. See L.L.N., 209 Wis. 2d at 683,

563 N.W.2d at 438-39. In addition, we accept all inferences that can reasonably be derived from those facts. See id. A motion to dismiss tests whether the complaint is legally sufficient to state a claim upon which relief may be granted. See Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25, 28 (1985). This inquiry presents a question of law which we review without deference to the trial court's decision. See Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163, 165 (Ct. App. 1993). Nonetheless, we value a trial court's decision on a question of law. See id.

Bubner's Duty Generally

[3]

Generally, an occupier of a premises owes a duty to exercise ordinary care towards those who come upon the property. In Shannon v. Shannon, 150 Wis. 2d 434, 443-44, 442 N.W.2d 25, 30 (1989), our supreme court stated:

The duty toward all persons who come upon property with the consent of the occupier will be that of ordinary care. By such standard of ordinary care, we mean the standard that is used in other negligence cases in Wisconsin.... Under that test, as we have repeatedly stated, negligence is to be determined by ascertaining whether the defendant's exercise of care foreseeably created an unreasonable risk to others. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another, to an unreasonable risk of injury or damage. [Quoted source omitted.]

The parties do not dispute this principle of negligence law. Under this law, the parents contend that Bubner, as the occupier of the premises, should have reasonably foreseen that Michael might harm Tara. In light of that knowledge, the parents argue that Bubner had a duty to warn them of the risk which Michael posed or, failing that, a duty to supervise the children during Tara's visits. Bubner contends that he had no duty under either claim for the public policy reasons expressed under Kelli T-G. He further contends that he had no such duty because he did not have a special relationship with any of the persons involved in this case.

Failure to Warn

We conclude that Kelli T-G. requires that we affirm the trial court's dismissal of the parents' claim that Bubner owed them a duty to warn of Michael's propensity for inappropriate sexual behavior towards other children.

In Kelli T-G., the complaint alleged that Gerald Charland had sexually abused Kelli. The complaint named Patricia Neubauer, Charland's former wife, as the defendant. After Neubauer and Charland had separated, but before the alleged assault against Kelli, Neubauer learned of Charland's pedophilia. Neubauer did not reside with Charland at the time of the alleged assault against Kelli, and she was not on the premises when the abuse occurred. The complaint alleged that Neubauer knew that Kelli sometimes played with her daughter at Charland's home and that Neubauer had failed to warn Kelli's mother that Charland was a pedophile who posed a danger to Kelli. See Kelli T-G., 198 Wis. 2d at 125-26, 542 N.W.2d at 176.

In Kelli T-G., the parties debated whether Neubauer had a special relationship with Kelli and her mother such that Neubauer had a duty to warn. However, the court of appeals did not find it necessary to address that issue because the court determined that recovery based on a failure to warn was barred as a matter of public policy. See id. at 129-30, 542 N.W.2d at 177 (Recovery may be rejected on public policy grounds even where the chain of causation is complete and direct.). The Kelli T-G. court concluded that to allow recovery based on failure to warn would be to "enter a field that has no sensible or just stopping point." Id. at 130, 542 N.W.2d at 178 (quoted source omitted). We set out the court's concerns in the accompanying footnote.³

[4]

We are not enthusiastic about the holding in Kelli T-G., and we believe that the holding in that case could have been confined to its facts thereby avoiding the public policy concerns. In fact, we will apply such an approach later in this opinion when we address Bubner's public policy challenge to the parents' failure to supervise claim. Nevertheless we are obligated to follow existing precedent of this court. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246, 256 (1997)

. We affirm that portion of the order dismissing the parents' failure to warn claim.

Failure to Supervise

The parents next contend that their complaint states a claim for relief based upon Bubner's negligent failure to supervise Michael and Tara. They argue that Bubner assumed a duty to supervise both children and to control Michael.

1. RESTATEMENT (SECOND) OF TORTS and Related Wisconsin Law

The parents rely, in part, on certain provisions of ch. 12, Topic 7 of the RESTATEMENT (SECOND) OF TORTS (1965) (hereinafter RESTATEMENT), titled "DUTIES OF AFFIRMATIVE ACTION."

A. Sections 314A and 315(a) & (b) of the...