Kara B. by Albert v. Dane County
| Decision Date | 02 November 1995 |
| Docket Number | 94-2908,Nos. 94-1081,s. 94-1081 |
| Citation | 198 Wis.2d 24,542 N.W.2d 777 |
| Parties | KARA B., by Guardian Ad Litem, John C. Albert, Steven B., and Jennifer B., Parents of Kara B., Plaintiffs-Appellants, v. DANE COUNTY, Dane County Department of Human Services, its Agents and Assigns, Shirley Aasen, Ed Page, Jr., Margaret/Marjorie Johnson, Estate of Margaret E. Eby, Terri Collins, Virginia Hanson, Wisconsin Municipal Mutual Insurance Company, Defendants-Respondents, d Sue Marshall, Roxanne Smit, Defendants. MIKAELA R., a Minor, by Guardian Ad Litem John C. ALBERT and Joette R., Parent of Mikaela R., Plaintiffs-Respondents, v. DANE COUNTY, Dane County Department of Human Services, its Agents and Assigns, Shirley Aasen, Ed Page Jr., Margaret/Marjorie Johnson, Estate of Margaret E. Eby, Sue Marshall, Terri Collins, Virginia Hanson, Robert Syring and Wisconsin Municipal Mutual Insurance Company, Defendants-Appellants,d Roxanne Smit, Defendant, Sentry Insurance Company, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
For the plaintiffs-appellants the cause was submitted on the briefs of John C. Albert and Debra A. Petkovsek of Eustice, Albert, Laffey & Fumelle, S.C., of Sun Prairie.
For the defendants-appellants the cause was submitted on the briefs of John M. Moore and David J. Pliner of Bell, Metzner, Gierhart & Moore, S.C., of Madison.
For the defendants-respondents the cause was submitted on the briefs of John M. Moore and David J. Pliner of Bell, Metzner, Gierhart & Moore, S.C., of Madison.
For the plaintiffs-respondents, the cause was submitted on the briefs of John C. Albert and Debra A. Petkovsek of Eustice, Albert, Laffey & Fumelle, S.C., of Sun Prairie.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
We consolidated these two cases on appeal. They are actions, brought under 42 U.S.C. § 1983 and state-law negligence and professional malpractice theories, seeking damages for physical and sexual abuse suffered by two young children while living in a foster home.
Kara B. and Mikaela R. were adjudged to be children in need of protection or services in separate juvenile court proceedings in 1989 and 1990, and were placed in the temporary custody of the Dane County Department of Social Services for foster-home placement. Kara B. was placed in a licensed foster home operated by Roxanne Smit on March 28, 1989, and remained there until July 14, 1990. Mikaela R. was placed in the Smit home in June 1990 and remained until December 18, 1990, when she was sexually assaulted at knifepoint by two men in the basement of the home. In the course of investigating the assault, police contacted Kara B., who told them that she too had been sexually abused by Smit and by a man who had lived in Smit's house during the course of her placement there.
In separate actions, the children sued the department and several of its professional employees who had been involved in either their initial placement or in relicensing and monitoring the home while they were in residence. Smit also was named as a defendant in both actions.
In Kara B.'s case, the trial court granted summary judgment dismissing the § 1983 claims on grounds that the county defendants were entitled to qualified immunity from suit because it had not been shown that they had violated any "clearly established" constitutional right of Kara B. Although unnecessary to resolution of the case because of that ruling, the court went on to decide that the proofs submitted in connection with the summary judgment motions failed to establish a violation of Kara B.'s constitutional rights. The court went on to dismiss Kara B.'s state-law tort claims on grounds that the defendants were entitled to immunity under § 893.80, STATS., for their "discretionary" governmental acts, and also under § 895.485, STATS., which specifically immunizes agencies from civil liability for acts or omissions, undertaken in good faith, in connection with placing a child in a foster home.
Mikaela R.'s action alleged similar claims under § 1983 against the same defendants and, as in Kara B., the defendants moved for
summary judgment. The trial court denied the motion, concluding that (1) the county defendants were not entitled to qualified immunity from Mikaela R.'s § 1983 claims because they had a known constitutional duty to protect her while she was in the Smit home; and (2) a reasonable jury could find, on the evidence presented, that the defendants had violated that duty. 1 Two additional issues were [198 Wis.2d 32] raised in Mikaela R.'s case: (1) whether Smit could be considered a "state actor," thus subjecting her to liability under § 1983 in the same manner as the "governmental" defendants; and (2) whether she was an agent or a servant of the department so as to render the county vicariously liable for her negligence toward the children. The trial court ruled that she was both a state actor and an agent of the county. Finally, the court held that the county defendants were not immune from suit under § 893.80, STATS.
The parties' briefs raise the following issues with respect to the § 1983 claims: (1) whether the county defendants are entitled to summary judgment dismissing the claims because (a) they are entitled to qualified immunity or, alternatively, (b) there is no evidence that they in fact violated the children's constitutional rights; and (2) whether Smit was a state actor subject to the § 1983 claims in the same manner as the county defendants. The state-law issues are: (1) whether the county defendants are entitled to governmental immunity under § 893.80, STATS., because their actions with respect to the children and the foster home were "discretionary," as that term is defined and interpreted in the law; and (2) whether Smit was an agent of the department. 2
We conclude that the county defendants are not entitled to qualified immunity from the § 1983 claims and that whether, under applicable legal standards, they violated the children's rights is an issue so closely intertwined with the defendants' intent and motive and other factual issues as to be inappropriate for resolution on summary judgment. We also conclude Smit is not a state actor so as to subject her to liability under § 1983. As to the state-law claims, we hold that the county defendants are entitled to discretionary-act immunity under § 893.80, STATS., and that Smit was not an agent of the county as a matter of law.
We therefore reverse the order in Kara B. insofar as it granted the defendants' motion for summary judgment dismissing the § 1983 claims and affirm it insofar as it granted judgment dismissing the state-law claims. In Mikaela R., we affirm the order insofar as it denied the defendants' motion for summary judgment on the § 1983 claims and reverse insofar as it denied the motion on the state-law claims. We also reverse the Mikaela R. court's ruling that Smit was both a state actor and a county agent, and we remand both cases to the trial courts for further proceedings consistent with this opinion.
The parties do not dispute that, in reviewing a grant or denial of summary judgment, we employ the same analysis as the trial court and that our review is de novo. Ollhoff v. Peck, 177 Wis.2d 719, 722, 503 N.W.2d 323, 324 (Ct.App.1993); Milwaukee Partners v. Collins Engineers, Inc., 169 Wis.2d 355, 361, 485 N.W.2d 274, 276 (Ct.App.1992). Summary judgment is appropriate
in cases where there is no genuine issue of material fact and the moving party has established his or her entitlement to judgment as a matter of law. [198 Wis.2d 34] Germanotta v. National Indem. Co., 119 Wis.2d 293, 296, 349 N.W.2d 733, 735 (Ct.App.1984). We do not decide issues of fact in a summary judgment proceeding, nor is the process a " 'short cut to avoid a trial.' " State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 511, 383 N.W.2d 916, 917-18 (Ct.App.1986) (quoted source omitted). Indeed, the summary judgment methodology was developed to prevent trial by affidavit or deposition. Id. It is equally well recognized that "[t]he remedy of summary judgment does not lend itself to many types of cases, especially those which are basically factual and depend to a large extent upon oral testimony." Schandelmeier v. Brown, 37 Wis.2d 656, 658, 155 N.W.2d 659, 660 (1968). Accordingly, when there is evidence which, under any reasonable view, " 'will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail.' " Foryan v. Firemen's Fund Ins. Co., 27 Wis.2d 133, 138, 133 N.W.2d 724, 727 (1965) (quoted source omitted).
The doctrine of qualified immunity protects public officials and employees from "harassing litigation" by rendering them immune from suit in the performance of their discretionary functions insofar as their conduct does not violate the " 'clearly established' " statutory or constitutional rights of another person. Barnhill v. Board of Regents, 166 Wis.2d 395, 406, 479 N.W.2d 917, 921 (1992) (quoted source omitted).
Whether a public official may be protected by qualified immunity turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken. If the law was not clearly established on the subject of the action when it occurred, then the public official cannot be held to know or anticipate that the conduct was unlawful. On the other hand, if the law was clearly established, then the immunity defense should fail because a reasonably competent public official should have known that the conduct was or was not lawful.
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