Hoskins v. Dodge County
| Decision Date | 31 January 2002 |
| Docket Number | No. 01-0834.,01-0834. |
| Citation | 2002 WI App 40,251 Wis.2d 276,642 N.W.2d 213 |
| Parties | Robert HOSKINS, Vivian Hoskins, Estate of Roylan D. Sims, Marsha Sims, Paul J. Scoptur, as Guardian ad Litem of Roylan Sims, II and Marshall Sims, Estate of James Hooper and Delores Hooper, Plaintiffs-Appellants, v. DODGE COUNTY, Wisconsin Municipal Mutual Insurance Company, City of Beaver Dam and Columbia Casualty Insurance Company, FDB Selective Insurance Company of South Carolina, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Paul Gagliardi, Theodore B. Kmiec, III and Joseph M. Cardamone, III of Gagliardi, Nelson & O'Brien, Salem.
On behalf of the defendants-respondents, the cause was submitted on the briefs of Robert E. Storck of Storck, Schnabl & Madden, Madison and Bruce A. Schultz and Laura N. Whipple of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
Before Vergeront, P.J., Deininger and Lundsten, JJ.
¶ 1.
Robert Hoskins and several others2 appeal a judgment dismissing their action against Dodge County and the City of Beaver Dam. Hoskins claims the trial court erred in concluding that the County and City were immune from suit for the actions complained of, and accordingly, granting defense motions for summary judgment. We conclude on de novo review that the defendants are entitled to summary judgment. Accordingly, we affirm.
¶ 2. Hoskins claims on appeal, among other things, that there are genuine issues of material fact that preclude summary judgment. We note, however, that he argued in the trial court that he should be awarded summary judgment on the issue of causal negligence, thereby implying no material facts were in dispute. The following background facts are taken from the parties' submissions on summary judgment. In the analysis which follows, we will discuss in more detail Hoskins's appellate claim that a material factual dispute precludes summary judgment in favor of the City and the County.
¶ 3. The evening of May 4, 1999, was rainy, windy and stormy in the Beaver Dam area. Shortly before midnight, Debra and Michael Krueger stepped out of their home adjacent to Beaver Dam Lake to check the weather. When they did so, they observed a boat containing three people, apparently having some motor difficulties in the vicinity of a neighbor's pier. The Kruegers called out to the "guys," asking if they needed any help. The Kruegers also turned on their waterfront lights and ultimately telephoned their neighbor, Vernon Block, to tell them what they had seen.
¶ 4. Debra Krueger saw one of the occupants of the boat wave "as though they were `okay.'" The occupants of the boat had started their motor, but according to the Kruegers, "it seemed to be running poorly." The motor apparently stopped once and then restarted. In relaying the information to Block, the Kruegers indicated that they had seen the now departed boat collide with Block's pier.
¶ 5. Block arose and went to inspect his pier, observing that it had incurred some damage, presumably as a result of the collision with the boat that his neighbors had observed. Block called 911 and reported the incident to the City of Beaver Dam Police Department dispatcher. The 911 call transcript indicates that Block told the dispatcher at just past midnight "somebody ran into my pier and smashed my pier." Block also stated that "they must be out on the lake, they looked like the people were having trouble ... and if there [is], they got a hole in their boat they're not gonna make it, you know."
¶ 6. The City of Beaver Dam dispatcher verified that the address of the incident was outside of the city limits, and accordingly, passed the information to the Dodge County Sheriff's Department. The information relayed was that "a male subject called in and said a boat ran into his pier and took off, unknown if anybody's hurt, unknown if the boat has damage." The Dodge County Sheriff's Department dispatched Deputy Steven Moul to investigate at about half past twelve. Moul traveled to the scene and interviewed Block, Debra Krueger, and Michael Krueger. During a deposition, Moul testified that Mrs. Krueger told him the following:
She stated that they started the boat and started to leave. The motor then stopped she heard. She asked again if they wanted to call the police and she then heard the boat start up again and one of the persons on the boat waved as if everything was okay and left and out of her sight.
Moul further testified that Mrs. Krueger did not seem overly concerned about the safety of the boat occupants, after they had waved and departed.
¶ 7. There is no dispute that an occupant of the boat did in fact wave to Debra Krueger, but Hoskins asserts in his reply brief that Deputy Moul did not learn that fact until sometime later. The sole surviving occupant of the boat, Robert Hoskins, testified in his deposition that the boat experienced difficulties, that it collided with the Block pier, and that "[t]he lady come out and cut her lights on and we were still working trying to get the motor started." Hoskins stated that after the motor had been started, "I was the one that waved at them to let them know that we thought we could make it," and that the wave was an indication that the boat and occupants would "be all right now."
¶ 8. The Kruegers explicitly mentioned the "wave as though they were `OK'" in their statement to a Department of Natural Resources (DNR) investigator. Later in the same statement, they indicated that "the Dodge Co. Sheriffs' Dept.... responded about 1 hour later; we relayed what we recalled seeing and he took a report." Officer Moul did not record in his police report that Debra Krueger had informed him about a boat occupant waving "OK" to her. The relevant portion of Moul's report reads as follows:
They then heard a male subject yelling for help numerous times. Debra states she asked them if she should call 911. At this point a subject started the boat up and went towards the north from their residence. The boat went a short distance then the motor stopped. Again she was yelling at the subjects in the boat if they should call the police. They then started the boat up again and it headed, again, towards the north. Debra says that the motor sounded like it was not running right. The lights were not on the boat when the boat was moving. Debra says that she watched the boat until it was out of her sight in the dark. Debra believed that the boat struck Vernon Block's pier, which is her neighbor, but then she said she wasn't sure because she did not hear anything of that sort. It should be noted that it was windy during this time.
¶ 9. The investigating deputy observed some damage to the pier, and followed up by checking boat landings and driving around the area to see if any boats had pulled up on shore. While the deputy was investigating at the scene, Dodge County dispatch contacted a DNR warden. The dispatcher told the warden that a boat had struck two piers, and that the boat The dispatcher inquired "[s]o do you want us to send Beaver Dam rescue boat out there to look or?" To which the warden responded, "I wouldn't." He further advised the department to treat it like a "regular hit and run," and he suggested that the officer should check the boat landings in the area.
¶ 10. At about three o'clock the following afternoon, a boater discovered Robert Hoskins floating in Beaver Dam Lake. At some point after colliding with Vernon Block's pier, the boat had swamped in the heavy wind and waves on the lake, and the three occupants clung to the swamped vessel for about twelve hours. Two of them ultimately drowned, and Hoskins survived.
¶ 11. Hoskins and the estates and survivors of the other two occupants of the boat commenced this action against Dodge County and the City of Beaver Dam, alleging that the defendants "were negligent with respect to a search and rescue," and "with respect to their duty to investigate upon notice that the plaintiffs were in danger." Both defendants moved for summary judgment, asserting their immunity under WIS. STAT. § 893.80(4) (1999-2000).3 The court granted the defense motions and subsequently entered judgment in favor of both defendants, dismissing all claims against them. Hoskins appeals.
[1-4]
¶ 12. We review an order for summary judgment de novo, owing no deference to the trial court. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). In reviewing a motion for summary judgment, we are to use the same methodology as the trial court, and "summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995); WIS. STAT. § 802.08(2). We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993).
¶ 13. Hoskins's first two arguments challenge the trial court's legal conclusions regarding a municipal entity's immunity from liability for the acts of its employees or agents. The immunity in question is sometimes referred to as "municipal" or "governmental" immunity, "public officer" immunity, or even "discretionary act" immunity, and it has been codified as follows:4
No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its...
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