Kempf v. Boehrig, 79-925
| Decision Date | 26 February 1980 |
| Docket Number | No. 79-925,79-925 |
| Parties | Linda KEMPF, Plaintiff-Respondent, v. Dennis K. BOEHRIG, Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
Alan D. Eisenberg and Thomas D. Kuehl, Milwaukee, submitted brief for defendant-appellant.
Neil Hobbs of Edgarton & Hobbs, Fond du Lac, submitted brief for plaintiff-respondent.
Before VOSS, P. J., and BROWN and BODE, JJ.
This negligence action arises out of a July 18, 1975 motorcycle-pedestrian accident involving defendant Dennis Boehrig's minor son Jeffrey and the plaintiff Linda Kempf. The plaintiff thereafter commenced this action for personal injuries alleging that Jeffrey Boehrig was negligent in the operation of his motorcycle and that Dennis Boehrig was negligent in the control and supervision of his son. Jeffrey died of cancer prior to trial, so the matter was tried with Dennis Boehrig as the sole defendant.
In response to the special verdict questions, the jury found Jeffrey and Dennis Boehrig and the plaintiff all causally negligent of the accident and assigned the following percentages to each of them:
Jeffrey Boehrig 35% Dennis Boehrig 60% Linda Kempf 5%
The jury assessed the plaintiff's damages at $15,131.75. After the verdict, the defendant moved for judgment notwithstanding the verdict on grounds that the was not negligent as a matter of law and for a reduction in damages on grounds that the amount awarded by the jury was excessive. The trial court denied these motions whereupon the defendant brought this appeal.
The accident occurred on Linden Beach Road in Taycheedah, Wisconsin sometime between 9:00 and 9:30 p. m. Linden Beach Road runs east from Lake Winnebago to Highway 151. It is a county blacktop road, twenty feet in width with no center line or shoulder. Although it is a county owned road, there was at the time of the accident a "private" sign located at the point where it joins Highway 151.
Earlier in the day, the defendant had purchased the motorcycle involved in the accident for his son. He bought the motorcycle so Jeffrey could drive to and from his job at the Town and Country Club. Shortly after 9:00 p. m., Jeffrey left the Boehrig cottage and drove his motorcycle south on Lake Road. Lake Road is a private gravel road that runs north and south and joins Linden Beach Road at its west end. Jeffrey turned his motorcycle left onto Linden Beach Road and proceeded east. Approximately 540 feet east of the intersection of Lake Road and Linden Beach Road, the plaintiff and a female friend were conversing with two boys on motorcycles who had parked them either just off the road or in the eastbound lane of traffic. As Jeffrey approached the group, the plaintiff saw a motorcycle coming towards them with the headlight "bobbing around." The plaintiff attempted to run to the north side of the road to avoid the oncoming motorcycle. Jeffrey swerved his motorcycle to avoid hitting one of the motorcycles parked on or near the road and struck the plaintiff, breaking two bones in her ankle.
The plaintiff testified it was dusk at the time of the accident. In a deposition taken before his death, Jeffrey testified it was completely dark. After the accident, Jeffrey told the investigating police officer that he was adjusting the headlight on the motorcycle while he drove east on Linden Beach Road just prior to the accident. In his deposition, Jeffrey admitted adjusting the headlight but claimed he completed the adjustment before turning onto the paved road. Jeffrey further stated that his parents never told him that he could not drive the motorcycle after dark.
The defendant admitted he had not specifically forbidden Jeffrey to operate the motorcycle after dark. He also testified he allowed Jeffrey to ride on Linden Beach Road but that he believed it was a private road. Jeffrey was under sixteen years of age on the date of the accident. He did not have a driver's license or learner's permit authorizing him to operate a motorcycle on public roads.
Section 343.45, Stats., provides in part:
343.45 Permitting unauthorized person to drive. (1) No person shall cause or knowingly permit his child or ward under 18 years of age to operate a motor vehicle upon any highway in violation of this chapter or when such minor is not authorized under this chapter to operate a motor vehicle.
(2) No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be operated upon any highway in violation of this chapter or by a person who is not authorized under this chapter to operate a motor vehicle. . . .
An obvious purpose of the above statute is to protect other users of highways from the dangers inherent in the operation of a motor vehicle by one too inexperienced or incompetent to do so safely. The prohibition against minors under the age of sixteen constitutes a legislative determination that such minors are incompetent.
When the purpose of a statute is to protect a certain class of persons from a particular type of harm, a violation of the statutory prohibition which results in the foreseen harm to a member of the protected class constitutes negligence per se. Weiss v. Holman, 58 Wis.2d 608, 616-17, 207 N.W.2d 660, 664 (1973); Meihost v. Meihost, 29 Wis.2d 537, 540, 139 N.W.2d 116, 118 (1966). Thus, if the defendant knowingly permitted Jeffrey to operate his motorcycle in violation of Chapter 343, Stats., and that permission resulted in the injuries complained of here, the finding of negligence against him must be affirmed.
The defendant, however, contends that he cannot be found negligent absent evidence that the child was disobedient or that he knew of the child's negligent activity and failed to stop it.
The standard of care imposed upon a parent in this situation and the evidence necessary to establish a violation of that standard were set forth in the supreme court's two opinions in Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738 (1924), and Hopkins v. Droppers, 191 Wis. 334, 210 N.W. 684 (1926).
The first Hopkins opinion involved review of the trial court's order overruling the defendant's demurrer. The case arose out of an accident in which the minor plaintiff was injured after falling off a motorcycle negligently operated by the defendant's minor son. The complaint alleged that the defendant placed the motorcycle in complete control of his son, who he knew or should have known was an inexperienced driver, and in so doing, he knowingly encouraged his son to violate a state statute, which violation resulted in the injuries complained of.
In affirming the trial court's ruling that the complaint stated a cause of action against the father, the court stated:
The general object of that statute has been already stated. The statute amounts to a legislative declaration that a minor under 16 years is unfit to drive motor machines on the public streets unless accompanied by an adult, and a violation of the statute is negligence.
When the father authorized this violation of law, he failed in that duty which every good citizen owes to the public. He failed to observe for the safety of other persons that degree of care which the circumstances justly demanded. Although the motorcycle was not in itself a dangerous instrumentality, it was a machine of such a nature that when negligently driven it might menace the safety of other persons. This is a well-known fact and one which in the exercise of ordinary care the father could...
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