Hardy v. Hoefferle, 2006AP2861.

Citation743 N.W.2d 843,2007 WI App 264
Decision Date06 November 2007
Docket NumberNo. 2006AP2861.,2006AP2861.
CourtCourt of Appeals of Wisconsin
PartiesAaron R. HARDY, Plaintiff, Donald Hardy and Tonna Hardy, Plaintiffs-Respondents, Taylor County, Weather Shield Health Plan and Delta Dental of Wisconsin, Inc., Involuntary-Plaintiffs, v. Gary L. HOEFFERLE and Acuity, a Mutual Insurance Company, Defendants-Appellants.<SMALL><SUP>&#x2020;</SUP></SMALL>

On behalf of the defendants-appellants, Acuity, and Gary L. Hoefferle, the cause was submitted on the briefs of Terrance E. Davczyk and Gottlieb J. Marmet of Davezyk & Varline, LLC of Wausau.

On behalf of the plaintiffs-respondents, Aaron Hardy, Donald Hardy and Tonna Hardy, the cause was submitted on the brief of Dixon R. Gahnz of Pitman, Kyle & Sicula, S.C. of Watertown.

Before HOOVER, P.J., PETERSON and BRUNNER, JJ.

¶ 1 BRUNNER, J

Gary Hoefferle appeals a summary judgment dismissing his counterclaim for contribution against Donald and Tonna Hardy in a personal injury case. Hoefferle contends the circuit court erred when concluding that his claims for Donald and Tonna's alleged negligence were statutorily precluded. He also contends the court erred by concluding his counterclaim was barred by a Loy release1 and covenant not to sue. We affirm the summary judgment.

BACKGROUND

¶ 2 On August 22, 2004, Donald and Tonna's son, Aaron, and Hoefferle were each operating an all-terrain vehicle (ATV) when they collided, both sustaining injuries. Aaron, who was a minor at the time, was not wearing a helmet and suffered significant head injuries. The accident occurred on land owned by Tonna and, in December 2004, an insurance company paid Hoefferle $50,000 for his injuries in exchange for Hoefferle signing a document entitled, "Loy Release/Covenant Not to Sue."

¶ 3 In December 2005, Donald, Tonna, and Aaron commenced this action against Hoefferle, alleging negligence and seeking damages for Aaron's personal injuries. Donald and Tonna also sought damages for their loss of Aaron's "aid, association and companionship."

¶ 4 Hoefferle counterclaimed, alleging that Donald and Tonna negligently supervised Aaron. By stipulation of the parties, Donald and Tonna's claims were dismissed, after which they were bound to the case only by Hoefferle's counterclaim.

¶ 5 Donald and Tonna moved for summary judgment, challenging the merits of the counterclaim and asserting it was precluded by the release Hoefferle signed. The circuit court agreed with Donald and Tonna on both grounds and dismissed the counterclaim. Hoefferle appeals.

DISCUSSION

¶ 6 Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08.2 We review summary judgments de novo, applying the same methodology as the circuit court. Park Bancorporation, Inc. v. Sletteland, 182 Wis.2d 131, 140, 513 N.W.2d 609 (Ct.App.1994).

¶ 7 We conclude that, based on the record, summary judgment was appropriate on the merits of Hoefferle's counterclaim. Because Hoefferle's counterclaim fails on the merits, we do not address whether it is also barred by the release.

¶ 8 The basis for Hoefferle's counterclaim is Donald and Tonna's alleged negligent supervision of Aaron and his ATV use. Hoefferle contends that Donald and Tonna were negligent because Aaron was not wearing a helmet at the time of the accident and because they did not require Aaron to obtain an ATV safety certificate by taking a safety course.

¶ 9 Donald and Tonna argue that the legislature has precluded Aaron's failure to wear a helmet from being a basis for negligence. They rely upon WIS. STAT. § 895.049, which states, in relevant part:

Notwithstanding s. 895.045, failure by a person who operates an all-terrain vehicle ... to use protective headgear shall not reduce recovery for injuries or damages by the person or the person's legal representative in any civil action. This, section does not apply to any person required to wear protective head-gear under s. 23.33(3g) or 347.485(1). Hoefferle responds that this statute only applies to damages, not negligence, and that the statute is inapplicable because Aaron was required to wear a helmet under WIS. STAT. § 23.33(3g).

¶10 We first address whether Aaron was statutorily required to wear a helmet. Pursuant to Wis. STAT. § 23.33(3g), unless an exception applies, persons under the age of eighteen must wear protective headgear when operating, or a passenger on, an ATV. The exception at issue here is when the ATV "is being operated by a person on land under the management and control of the person's immediate family." Wis. STAT. § 23.33(3g)(d). Land under the management and control of the person's immediate family means "land owned or leased by the person or a member of the person's immediate family over which the owner or lessee has management and control...." WIS. STAT. § 23.33(1)(if). Here, Tonna owned and resided on the land where the accident occurred.

¶ 11 Hoefferle contends that Tonna must present evidence that she was actively managing and controlling the ATV operators at the time of the accident. This assertion finds no support in the language of WIS. STAT. § 23.33(1)(if). There is no evidence suggesting that anyone other than Tonna had management and control of her property. Because Aaron was operating an ATV on property under the management and control of Tonna, he was exempt from having to wear a helmet pursuant to WIS. STAT. § 23.33(3g)(d). Therefore; WIS. STAT. § 895.049 prohibited Aaron's failure to wear a helmet from reducing his damages.

¶ 12 We next address. Hoefferle's contention that WIS. STAT. § 895.049 applies only to damages, not negligence. We conclude that where § 895.049 applies to prohibit a reduction of damages, it necessarily also precludes a person's failure to wear a helmet from being considered a form of negligence. To illustrate why, we refer to the methodology by which damages are reduced when § 895.049 is inapplicable— that is, when a person is statutorily required to wear protective headgear. See WIS. STAT. § 895.049.

¶ 13 In Stehlik v. Rhoads, 2002 WI 73, 253 Wis.2d 477, 645 N.W.2d 889, our supreme court explained what it described as the "helmet defense." Id., ¶ 8. Where the "helmet defense" is raised, a jury must make two negligence determinations. Id., ¶ 46. The jury must first determine and allocate "accident negligence," which refers to who caused the accident itself. Id. The contributory negligence statute, WIS. STAT. § 895.045, applies to the jury's allocation of "accident negligence" and may reduce or bar the plaintiff's recovery. Id.

¶ 14 The amount that remains recoverable after applying the contributory negligence statute is then subject to a second negligence allocation, which our supreme court referred to as "helmet negligence." Id. Before engaging in the "helmet negligence" inquiry, a jury must first decide whether the plaintiffs failure to wear a helmet was a causal, factor in the plaintiffs injuries. Id. If so, the jury must allocate "helmet negligence" between the plaintiff and the defendant.3 Id. The percentage of "helmet negligence" allocated to the plaintiff further reduces the amount otherwise recoverable under the "accident negligence" inquiry. Id. However, Wis. STAT. § 895.045's provision barring recovery where a plaintiffs negligence exceeds a defendant's negligence does not apply to a jury's allocation of "helmet negligence." Id.

¶ 15 The effect of WIS. STAT. § 895.049 is to exempt certain plaintiffs from the Stehlik "helmet negligence" inquiry. This is how § 895.049 prohibits any reduction in damages associated with a person's failure to wear a helmet. By viewing § 895.049 in the context of Stehlik, it becomes apparent that § 895.049 necessarily applies not only to the amount of recoverable damages, but also to the allocation of negligence.

¶ 16 This view is reinforced by WIS. STAT. § 901.053, an evidence statute. Where a person is not statutorily required to wear a helmet, §...

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