Hamed v. Milwaukee County

Decision Date02 July 1982
Docket NumberNo. 81-683,81-683
Citation321 N.W.2d 199,108 Wis.2d 257
PartiesJoudeh HAMED, Plaintiff-Respondent and Cross-Appellant, v. COUNTY OF MILWAUKEE, Defendant-Appellant and Cross-Respondent.
CourtWisconsin Supreme Court

Terrance E. Davczyk, Michael A. Mesirow (argued) and Kasdorf, Dall, Lewis & Swietlik, S. C., Milwaukee, on brief, for defendant-appellant and cross-respondent.

Michael I. Tarnoff (argued) and Warshafsky, Rotter, Tarnoff, Gesler & Reinhardt, S. C., Milwaukee, on brief, for plaintiff-respondent and cross-appellant.


This is an appeal and a cross-appeal from a judgment of the circuit court for Milwaukee County, Frederick P. Kessler, Circuit Judge, on certification of the court of appeals. Sec. (Rule) 809.61, Stats. 1979-80. 1

Joudeh Hamed, the plaintiff, brought this personal injury action against Milwaukee County for injuries sustained as the result of being hit by a jelly bean fired by a thirteen-year-old passenger riding on one of county's buses. Trial was had to a jury which found the county negligent in the supervision and control of the passengers of its bus and awarded plaintiff damages of $36,570.98. The circuit court denied all of defendant's motions after verdict except that the circuit court reduced the award to $25,000 plus costs pursuant to sec. 895.43(3), Stats.1977, which limits tort recovery against a municipality to $25,000. Prior to trial the plaintiff had received $10,000 from the Department of Industry, Labor and Human Relations (DILHR) pursuant to the provisions of chapter 949 of the Wisconsin Statutes (1977).

The county raises three issues in its appeal. First, the county asserts that the plaintiff's action must be dismissed because the plaintiff failed to join the DILHR as a party, or that the plaintiff's award must be reduced by the sum of $10,000 which the plaintiff received from DILHR. Second, the county asserts that the circuit court did not properly instruct the jury as to the defendant's duty to the plaintiff. Third, the county contends that the evidence is insufficient to support the jury's affirmative answer to special verdict question number one asking whether the county was negligent in the supervision of the passengers.

In its cross-appeal the plaintiff contends that the circuit court erred when it reduced the jury award to $25,000 pursuant to sec. 895.43(3), Stats.1977.

The court of appeals certified both the appeal and the cross-appeal to this court. We affirm the judgment of the circuit court.


The controversy hinges on the following facts. In the early afternoon of March 23, 1979, the plaintiff was standing at the southeast corner of North 27th Street and State Street in the county of Milwaukee speaking to his wife when he was struck in the right eye by an object later identified as a jelly bean, fired from a slingshot by Michael Lucas, a thirteen-year-old passenger riding on a bus operated by the Milwaukee County Transit System. As a result of being struck by the jelly bean the plaintiff suffered severe and permanent injury to his right eye. Initially, the plaintiff suffered loss of vision in his right eye and subsequently the eye was removed and replaced by an artificial eye.

Michael Lucas, a junior high school student, had boarded the bus, commonly referred to as the Walker Flyer, at Walker Junior High School in Milwaukee. He sat near the window, two or three rows behind the driver. Lucas opened his window immediately after he sat down. At that time, the outdoor temperature was somewhere in the fifties, and it is unclear how many other bus windows were open. When Lucas boarded the bus his slingshot was in a brown paper bag. As the bus crossed the 27th Street viaduct, Lucas fired objects from his slingshot at signs along the viaduct. Lucas testified that about a block after the viaduct the driver told him to put the slingshot away. Lucas either put away the slingshot or pretended to do so.

After the bus driver told Lucas to put away the slingshot, Lucas took the slingshot out again and looked for something on the floor to use as ammunition. He found some candy and fired a jelly bean from the slingshot through the open window of the bus. The jelly bean hit the plaintiff and caused the injuries previously described. Lucas testified that as he fired the slingshot at the plaintiff, his friend sitting next to him told him that the driver was looking.

The bus driver testified that he saw Lucas' slingshot through his rearview mirror, and that he instructed the boy to put the slingshot away because he thought the slingshot would be used against passengers on the bus. While the driver testified that he saw the slingshot, he also testified that he did not see the slingshot being used. He said that he did not see Lucas fire it out the window either at signs along the viaduct or at pedestrians. The driver's pre-trial and trial statements as to the time when he saw the slingshot are inconsistent, and the driver's pre-trial statements as to when he saw the slingshot and when he warned Lucas to put it away are not consistent with the testimony of other witnesses to the events.

At trial there was testimony by Max Lukas (no relation to Michael Lucas) who, as superintendent for transportation for the Milwaukee County Transit System, is concerned with safety standards for the Transit System. Lukas testified that in his job he was concerned for the safety of pedestrians who might be affected by conduct of the people on the bus. Lukas testified that drivers are instructed to take two basic steps if they are concerned with a disturbance on a bus: First, the driver can turn on the vehicle's flashers, which are a signal to police that the driver wants assistance. Second, the driver can notify the dispatcher of the disturbance. Neither step was taken in this case. Lukas testified that drivers are instructed that they are ordinarily not to intervene physically in a disturbance and that they are ordinarily not to take personal property away from passengers. Lukas testified that if a bus driver observed a passenger with a slingshot, one possible way of handling the situation would be for the bus driver to close the window next to the passenger. The bus driver in the instant case did not close the window next to Lucas or request that it be closed. No Transit System regulation suggests that the driver close a bus window, but no Transit System regulation prohibits the driver from doing so.

Mary Nettles, a student who had ridden the Walker Flyer bus during the school year in which this incident occurred, testified that she observed bus drivers on the Walker Flyer (although not necessarily the driver in question) take personal property (including drumsticks and basketballs) away from passengers on at least four or five occasions and return the property to them when they exited the bus.


The plaintiff received $10,000 from the state under the Crime Victims Compensation Program administered by the Crime Victims Compensation Board of DILHR. Sec. 949.15, Stats.1977, states that when an award has been made, DILHR shall be subrogated to the cause of action of the claimant against "the person responsible for such injury" and shall be entitled to bring an action against such person. Sec. 949.15, Stats.1977, provides as follows:

"Sec. 949.15 Recovery from offender. Whenever an order for the payment of an award for personal injury or death is or has been made under this chapter, the department shall be subrogated to the cause of action of the applicant against the person responsible for such injury or death and shall be entitled to bring an action against such person for the amount of the damages sustained by the applicant. If an amount greater than that paid pursuant to the award order is recovered and collected in any such action, the department shall pay the balance to the applicant."

Sec. 949.15(2), enacted by ch. 189, Laws of 1979, having an effective date after the commencement of the action, further provides that if the claimant brings an action to recover damages in which the department (which was defined in 1979 to mean the Department of Justice, not DILHR) has subrogation rights the claimant shall join the department as a party. Sec. 949.15(2), Stats.1979-80, reads as follows:

"If a claimant brings an action to recover damages in which the department has subrogation rights under sub. (1), the claimant shall join the department as a party under s. 803.03(2)(a). After joinder, the department has the options specified in s. 803.03(2)(b)."

The county asserts that the plaintiff's failure to join DILHR pursuant to sec. 949.15(2), Stats.1979-80, requires dismissal of the action. The circuit court ruled that the county's motion to dismiss was not timely filed. We need not reach the questions of whether the county interposed its objection in a timely fashion or whether 949.15(2) does not apply because its stated effective date is subsequent to the commencement of this action. We conclude that sec. 949.15(2), Stats.1979-80, is not applicable to the instant case, because the county is not the person responsible for the injury under sec. 949.15.

Under sec. 949.15(1) the department is subrogated to the claimant's action against the "person responsible for such injury or death." Sec. 949.15(2) appears to require joinder only if the claimant brings an action in which the department has subrogation rights under sec. 949.15(1). Thus sec. 949.15(2) applies only where the claimant brings an action against the "person responsible for such injury or death." The phrase "person responsible for such injury or death" is not defined in chapter 949, and there is no legislative history to aid in interpreting this phrase. Chapter 949 uses several phrases, e.g., "offender", recovery "from or on behalf of the person who committed the crime", as well as "person responsible for such injury or death", none of which is defined.

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