Ingersol v. State Dep't of Corr.

• Citation: 330 Wis.2d 792,2010 WI App 176,794 N.W.2d 505
• Decision Date: 24 November 2010
• Docket Number: No. 2010AP577.,2010AP577.
• Parties: Connie A. BROOME p/k/a Connie A. Ingersol, Plaintiff–Appellant, †v.STATE of Wisconsin DEPARTMENT OF CORRECTIONS and Lee Thao, Defendants–Respondents.
• Court: Court of Appeals of Wisconsin

330 Wis.2d 792

794 N.W.2d 505

2010 WI App 176

Connie A. BROOME p/k/a Connie A. Ingersol, Plaintiff–Appellant, †

v.STATE of Wisconsin DEPARTMENT OF CORRECTIONS and Lee Thao, Defendants–Respondents.

No. 2010AP577.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 6, 2010.Opinion Filed Nov. 24, 2010.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James Kurth of James Kurth, S.C., Wausau.On behalf of the defendants-respondents, the cause was submitted on the brief of John J. Glinski, assistant attorney general, and J.B. Van Hollen, attorney general.Before VERGERONT, P.J., LUNDSTEN and BLANCHARD, JJ.VERGERONT, P.J.

[330 Wis.2d 795] ¶ 1 Gary Weisenberger shot and seriously injured Connie Broome while he was out of jail on work release. The circuit court dismissed her negligence action against Leo Thao, a probation and parole agent employed by the Department of Corrections (DOC). The circuit court concluded that the complaint did not adequately allege a violation of a ministerial duty, which is an exception to the common law doctrine of immunity for state employees. For the reasons we explain below, we affirm the circuit court's order dismissing the complaint against Thao.¹

BACKGROUND

¶ 2 Broome's complaint against Thao alleged that he was a probation and parole officer employed by DOC and that he had been supervising Weisenberger prior to and at the time he shot Broome on June 16, 2008. The complaint alleged that Thao “failed to adequately and properly supervise Gary L. Weisenberger in a number of ways, including, but not limited to, the following”:

Lee Thao allowed Gary L. Weisenberger to have contact with and frequent the residence of his sister and brother-in-law, even after being advised that there were multiple firearms present in said household. The firearm used to shoot [Broome] ... came from said household.

[Broome] had previously advised Lee Thao of threats of retaliation which she had received from Gary L. Weisenberger. [Broome] had been a victim of crimes committed by Gary L. Weisenberger in the past.

Lee Thao ignored warnings and pleas from [Broome] expressing her fear of Gary L. Weisenberger.

Thao's failure to adequately supervise Weisenberger, the complaint alleged, was a substantial proximate cause of Broome's injuries. Broome requested damages for emotional distress, medical expenses, pain, suffering, and permanent disability.

¶ 3 Thao moved to dismiss on grounds of failure to state a claim for relief and the ground of state employee immunity. He argued that, as a state employee, he had immunity, and because the complaint did not plead an exception to this rule, it did not state a claim for relief.

¶ 4 Broome opposed the motion, arguing that the ministerial duty exception to the immunity rule applied. Along with her brief, she filed her counsel's affidavit with attachments, which included copies of portions of a DOC manual and Thao's responses to discovery requests. Broome asked the court to consider these submissions in ruling on the defendant's motion and to treat the motion as one for summary judgment. Thao did not file an affidavit or other factual submission in reply, continuing to rely on his view that the complaint did not state a claim for relief because it did not allege facts which, if true, showed a violation of a ministerial duty.

¶ 5 The circuit court granted Thao's motion and dismissed the complaint. In its ruling, the court stated that it was considering Broome's counsel's affidavit and attachments as “effectively supplementing” the allegations of the complaint. The court concluded there was no ministerial duty imposed on Thao to not permit Weisenberger to have contact with or frequent the residence of his sister and brother-in-law. It also concluded that any ministerial duties raised by the affidavit and attachments were not ones that were relevant to the alleged negligent supervision.

DISCUSSION

¶ 6 On appeal Broome contends the circuit court erred in dismissing her complaint against Thao because the attachments to her counsel's affidavit show that Thao violated a number of ministerial duties imposed by the DOC manual. She characterizes the circuit court's decision as based on a lack of causation, which, she contends, is error because the issue of causation is a question of fact for the jury. Thao responds that the complaint does not state a claim for relief, either with or without consideration of the affidavit and attachments.

¶ 7 Both parties agree that we should review the court's order as one for summary judgment. However, they apparently disagree on the methodology the court should have employed here and on the methodology it did employ. In the following paragraphs we discuss summary judgment methodology and clarify the proper procedure when, as here, a plaintiff wishes to submit factual materials going beyond the allegations of the complaint in response to a motion to dismiss for failure to state a claim. Ultimately we agree with Thao that the complaint here does not state a claim for relief because its allegations, liberally construed, cannot be reasonably read to allege the ministerial duty exception to the general rule of immunity for state employees, the only exception claimed by Broome.

¶ 8 A party is entitled to summary judgment if there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2007–08).² In reviewing a grant or denial of summary judgment we employ the same methodology as the circuit court, and our review is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314–16, 401 N.W.2d 816 (1987).

¶ 9 Under summary judgment methodology, the first step is to determine if the complaint states a claim for relief. Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 16, 291 Wis.2d 283, 717 N.W.2d 17. If the complaint does state a claim for relief and the answer joins issue, then the court considers the affidavits of the moving party to determine if they make a prima facie case for that party. Id. If they do, the court examines the affidavits of the opposing party to determine if there are genuine issues of material fact requiring a trial. Id.

[330 Wis.2d 799] ¶ 10 In this case Thao did not move for summary judgment but moved for dismissal of the complaint based on the failure to state a claim for relief. Thao asserted that the complaint did not plead an exception to the common law doctrine of immunity for state employees. The general rule at common law is that state employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Umansky v. ABC Ins. Co., 2009 WI 82, ¶ 10, 319 Wis.2d 622, 769 N.W.2d 1. While immunity is the rule, it is subject to exceptions. Id. In order to state a claim for relief based on the negligent conduct of a state employee, the activity alleged in the complaint must come within one of the exceptions to immunity. See C.L. v. Olson, 143 Wis.2d 701, 725, 422 N.W.2d 614 (1988). The exception potentially applicable in this case is for a ministerial duty. The ministerial duty exception applies when a duty is “absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.” Umansky, 319 Wis.2d 622, ¶ 11, 769 N.W.2d 1 (citation omitted).

¶ 11 Thao's motion to dismiss argued that the complaint did not allege that Thao's negligent conduct of failing to adequately supervise Weisenberger violated a duty that meets the criteria for a ministerial duty. In response to this motion, Broome did not argue that the allegations in the complaint did allege a ministerial duty. Rather, she filed counsel's affidavit and attachments and contended that they showed Thao had violated DOC manual provisions by not having the requisite number of contacts and home visits with Weisenberger, not interviewing Broome upon learning that Weisenberger had taken some of her social security money and had made threats of retaliation if she reported this, and not having the requisite contact with Weisenberger's employer, his sister.³

¶ 12 It is true that, pursuant to Wis. Stat. § 802.06(2)(b), on a motion to dismiss for failure to state a claim for relief, if matters outside the pleadings are presented and are considered by the court, the court is to treat the motion as one for summary judgment. Apparently Broome viewed this statute as a means of correcting a failure of a complaint to state a claim for relief. However, as we have already stated, the first step in summary judgment methodology is to determine if the complaint states a claim for relief. Hoida, 291 Wis.2d 283, ¶ 16, 717 N.W.2d 17. This is the same analysis as that employed on a motion to dismiss for failure to state a claim. Prah v. Maretti, 108 Wis.2d 223, 228, 321 N.W.2d 182 (1982). Whether the motion is initially one for dismissal under Wis. Stat. § 802.06(2) and is then converted to one for summary judgment under § 802.06(2)(b), or whether it is filed in the first instance as a motion for summary judgment under § 802.08, the court does not consider matters outside the pleading until it has determined that the complaint states a claim for relief. See C.L., 143 Wis.2d at 706, 422 N.W.2d 614 (“ Only if a claim for relief has been stated does the court then proceed to determine whether the [affidavits and other submissions] demonstrate a genuine issue as to any material fact.”) (Emphasis added.). In other words, the submissions by a plaintiff showing facts not alleged in...