Kelli T-G. v. Charland
| Decision Date | 14 November 1995 |
| Docket Number | No. 95-0468,T-G,95-0468 |
| Citation | 198 Wis.2d 123,542 N.W.2d 175 |
| Parties | KELLI, a minor, by her Guardian Ad Litem, Paul J. Scoptur, and Carolyn T., Plaintiffs-Appellants, v. Gerald A. CHARLAND, Defendant, Patricia K. Neubauer, f/k/a Patricia K. Charland and American Family Mutual Insurance Company, Defendants-Respondents. d |
| Court | Wisconsin Court of Appeals |
For the plaintiffs-appellants the cause was submitted on the briefs of Aiken & Scoptur, S.C., with Timothy J. Aiken, and Kelly L. Centofanti, of Milwaukee.
For the defendants-respondents the cause was submitted on the briefs of Peterson, Johnson & Murray, S.C., with James T. Murray, Jr., and Dan J. Gendreau, of Milwaukee.
Before SULLIVAN, FINE and SCHUDSON, JJ.
Kelli T., by her guardian ad litem, and her mother Carolyn T., appeal from the trial court judgment granting summary judgment to Patricia K. Neubauer and American Family Mutual Insurance Company, her homeowner's insurer (collectively, "Neubauer"). They argue that the trial court incorrectly concluded that Neubauer had no duty to warn Carolyn T. that Neubauer's ex-husband, Gerald A. Charland, was a pedophile who posed a danger to Kelli. Although our analysis differs from that of the trial court, we also conclude that Neubauer had no legal duty to warn Carolyn T. and, therefore, we affirm.
The facts essential to resolution of this appeal are undisputed. On July 15, 1991, Charland sexually abused Kelli T., who was six years old. Kelli and her mother filed an action against Charland and Neubauer, Charland's ex-wife, for damages resulting from the abuse. They alleged that Neubauer knew that Charland was a pedophile with a history of sexually assaulting children, knew or should have known that Charland was likely to continue such abuse, and placed Kelli at risk by failing to warn Kelli's mother.
Neubauer and Charland married in March 1985. They separated approximately eight months later and, a few months after that, Neubauer filed for divorce. Their divorce became final in May 1989. When they married, Neubauer did not know that Charland had been convicted of three counts of fourth-degree sexual assault of children in 1984. Although Neubauer learned in July 1985 that Charland was on probation, she did not know why. It was not until his November 1985 arrest for mailing child pornography that Neubauer learned that his prior convictions were for child sexual assaults. Although no charges resulted from the child pornography arrest, Charland's probation was extended for two years with the addition of six months incarceration on work-release. Prior to the sexual assault of Kelli, Neubauer also became aware that Charland had molested two of his nieces and one of his co-worker's daughters prior to 1984.
Neubauer and Charland had a daughter, Geri, who also was six years old at the time of the assault on Kelli. Although Charland had not been allowed unsupervised visitation with Geri at the time of the divorce, by approximately January of 1991, he was allowed unsupervised visitation with her. After Charland met Kelli's mother in 1991, Geri and Kelli began to play together, sometimes at Charland's house. By that time, Charland had completed his counseling with a psychologist and had completed probation.
In approximately April or May 1991, Neubauer met Carolyn T. and became aware that Geri sometimes played with Kelli in Charland's home. Although there is some factual dispute as to Carolyn T.'s relationship with Neubauer, it is undisputed that Neubauer had occasional contact with Carolyn T., for the most part limited to brief encounters and conversations when she dropped off or picked up Geri for visits with Charland.
In response to deposition questions from Attorney Paul J. Scoptur, Kelli's guardian ad litem, Neubauer expressed her concern about Charland's potential danger:
Neubauer also told of her intention to tell Carolyn T. of Charland's history:
....
....
Neubauer moved for summary judgment contending that Wisconsin law imposes no duty to warn of a person's potential dangerousness absent a special relationship between either that person and the potential victim, or that person and the one who had the claimed duty to warn. Granting summary judgment, the trial court agreed, concluding that Neubauer did not have a special relationship with Carolyn T., and thus had no legal duty to warn her of Charland's potential danger.
Our review of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment must be entered if the evidentiary submissions establish "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." RULE 802.08(2), STATS. Further, as the supreme court explained:
[T]he existence of a duty and the scope of that duty are questions of law for the court to decide. Where the facts which are alleged to give rise to a duty on the part of a defendant are agreed upon, the question of whether any duty existed is one of law which the court may decide on a motion for summary judgment.
Ceplina v. South Milwaukee Sch. Bd., 73 Wis.2d 338, 341-342, 243 N.W.2d 183, 185 (1976).
The parties offer excellent arguments over whether Wisconsin law imposes...
To continue reading
Request your trial
-
Hornback v. Archdiocese of Milwaukee
...the case for further fact-finding with a decision in another case to deny liability on public policy grounds, Kelli T-G v. Charland, 198 Wis.2d 123, 542 N.W.2d 175 (Ct.App. 1995).9 The difference, a majority of this court explained in Gritzner, is that in Kelli T-G, there was not the same k......
-
Gritzner v. Michael R.
...court granted Bubner's motion to dismiss these claims. In reaching its decision, the circuit court relied on Kelli T-G. v. Charland, 198 Wis. 2d 123, 542 N.W.2d 175 (Ct. App. 1995), which held that public policy considerations barred a claim for negligent failure to warn in a case involving......
-
Mackenzie v. Miller Brewing Co.
...employees forever guessing at the limits of their responsibility and potential liability. See generally Kelli T-G. v. Charland, 198 Wis. 2d 123, 130, 542 N.W.2d 175 (Ct. App. 1995) ("virtual impossibility of defining a sensible starting or stopping point" precludes tort cause of action on p......
-
Jessica M.F. v. Liberty Mut. Fire Ins. Co.
...802.08(2), STATS. 8 Whether to grant summary judgment presents a question of law we review de novo. Kelli T-G. v. Charland, 198 Wis.2d 123, 128, 542 N.W.2d 175, 177 (Ct.App.1995). The interpretation of an insurance policy also presents a question of law we review independently of the trial ......