N.E.M. by Kryshak v. Strigel

• Court: Wisconsin Supreme Court
• Writing for the Court: JON P. WILCOX; ANN WALSH BRADLEY
• Citation: N.E.M. by Kryshak v. Strigel, 559 N.W.2d 256, 208 Wis.2d 1 (Wis. 1997)
• Decision Date: 21 February 1997
• Docket Number: No. 95-0755,95-0755
• Parties: N.E.M. by her Guardian ad Litem, Gary M. KRYSHAK, Plaintiff-Appellant, Charles Meyer, and Patti Meyer, Plaintiffs, v. Eugene STRIGEL, and Judy Strigel, Defendants-Respondents-Petitioners, Scott Strigel, Defendant.

Page 256

559 N.W.2d 256

208 Wis.2d 1

N.E.M. by her Guardian ad Litem, Gary M. KRYSHAK, Plaintiff-Appellant Charles Meyer, and Patti Meyer, Plaintiffs, v. Eugene STRIGEL, and Judy Strigel, Defendants-Respondents-Petitioners Scott Strigel, Defendant.

No. 95-0755.

Supreme Court of Wisconsin.

Argued Oct. 17, 1996.

Decided Feb. 21, 1997.

For the defendants-respondents-petitioners there were briefs by Steven M. Anderson and Ruder, Ware & Michler, S.C., Wausau and Robert G. Craig, Marshfield and oral argument by Steven M. Anderson.

For the plaintiff-appellant there was a brief by Leon S. Schmidt, Jr., and Schmidt, Grace & Duncan, Wisconsin Rapids and oral argument by Leon S. Schmidt.

JON P. WILCOX, Justice.

¶1 This case is before the court on a petition for review filed by Eugene and Judy Strigel. The petitioners seek review of a published court of appeals decision, N.E.M. v. Strigel, 198 Wis.2d 719, 543 N.W.2d 821 (Ct.App.1995), that reversed a circuit court judgment. Wood County circuit court Judge Edward F. Zappen held that the Strigels' parental liability under Wis. Stat. § 895.035(4) (1993-94) ¹ was limited to $2,500 for the 20 sexual contacts between their son, Scott, and N.E.M. The court of appeals held that pursuant to § 895.035(4), the Strigels were liable up to $2,500 for each of the 20 instances of sexual contact, or a $50,000 limit on total liability.

¶2 On review, we consider two issues: (1) whether Wis. Stat. § 895.035(4) limits the Strigels' liability to $2,500 for each of the 20 sexual contacts or to $2,500 for all 20 of the sexual contacts between Scott and N.E.M.; and (2) if the Strigels' liability is limited to $2,500 for each of the 20 instances of sexual contact, whether the jury must determine individual damages for each sexual contact. We hold that the Strigels' liability under § 895.035(4) is limited to $2,500 for each of the 20 instances of sexual contact and that in this case it was not necessary for the jury to make individual damage determinations for each assault.

¶3 The relevant facts are not in dispute. N.E.M., a 10 year old, and her parents brought suit against Scott Strigel, a 15 year old, and his parents, Eugene and Judy Strigel. In the action, N.E.M. alleged that she had sexual contact with both Eugene and Scott Strigel. On April 29, 1994, the jury found that Eugene Strigel had not had sexual contact with N.E.M., but that Scott Strigel had. In a special verdict, the jury concluded that Scott had sexual contact with N.E.M. "20 times" and that his conduct was wanton and willful. The jury awarded N.E.M. $35,000 for past and future pain and suffering. ² In addition, the jury awarded $10,000 in punitive damages and $8,589 for N.E.M.'s parent's out-of-pocket expenses. ³

I.

¶4 The first issue that we address is whether Wis. Stat. § 895.035(4) limits the Strigels' liability to $2,500 for each of the 20 sexual contacts between Scott and N.E.M. or to $2,500 for all of the sexual contacts. Resolution of this issue requires us to determine the meaning of "act" as used in § 895.035(4). Statutory interpretation and the application of a statute are questions of law that this court reviews de novo. Wagner Mobil, Inc. v. City of Madison, 190 Wis.2d 585, 527 N.W.2d 301 (1995); Braatz v. LIRC, 174 Wis.2d 286, 293, 496 N.W.2d 597 (1993). Accordingly, we owe no deference to the decisions of the circuit court and court of appeals. Colby v. Columbia County, 202 Wis.2d 342, 349, 550 N.W.2d 124 (1996). However, we must strictly construe § 895.035(4) because it is in derogation of the common law. State ex rel. Chain O'Lakes Protective Ass'n v. Moses, 53 Wis.2d 579, 583, 193 N.W.2d 708 (1972); Poston v. United States Fidelity & Guar. Co., 107 Wis.2d 215, 224, 320 N.W.2d 9 (Ct.App.1982).

¶5 The purpose of statutory interpretation is to discern the intent of the legislature. Doe v. American Nat. Red Cross, 176 Wis.2d 610, 616, 500 N.W.2d 264 (1993). In determining this intent, the court must first look at the language of the statute. Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 247, 493 N.W.2d 68 (1992). If the language of the statute clearly and unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning. Id.

¶6 Accordingly, we first examine the language of Wis. Stat. § 895.035(4). Section 895.035(4) states in relevant part:

Except for recovery for retail theft under s. 943.51, the maximum recovery from any parent or parents may not exceed $2,500 for damages resulting from any one act of a child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court.

(emphasis added). Use of the word "one" before the word "act" suggests that the legislature contemplated a situation in which parents would be liable for each of a series of acts. However, without a more precise definition of act, we are unable to determine what distinguishes a series of acts from a single act.

¶7 In the absence of a statutory definition, the words of a statute are construed according to their common and approved usage. Swatek v. County of Dane, 192 Wis.2d 47, 61, 531 N.W.2d 45 (1995), quoting State v. Gilbert, 115 Wis.2d 371, 377-78, 340 N.W.2d 511, 514 (1983). The court may use a dictionary to determine the common and approved usage of words in a statute. Swatek, 192 Wis.2d at 61, 531 N.W.2d 45; State v. Oak Creek, 139 Wis.2d 788, 795, 407 N.W.2d 901 (1987). As used in Wis. Stat. § 895.035(4), the most appropriate definition is "something done or performed." THE AMERICAN HERITAGE DICTIONARY 17 (3d ed.1992). This definition suggests that an act is a complete course of conduct. Accordingly, from the language of the statute alone, we can presume that the legislature intended parents to be liable for each of a series of complete courses of conduct. Despite this definition the meaning of Wis. Stat. § 895.035(4) may be ambiguous.

¶8 A statute is ambiguous if it is capable of being understood by a reasonably well-informed person in either of two senses. Robinson v. Kunach, 76 Wis.2d 436, 444, 251 N.W.2d 449 (1977). In resolving whether § 895.035(4) is ambiguous, we consider a hypothetical situation in which a child uses two stones to consecutively break two windows. One reasonable interpretation is that the child completed one course of conduct (or committed one act) and the parents should be liable up to $2,500 for the broken windows. Another reasonable interpretation is that each time the child threw a stone and broke a window, he completed a course of conduct (or committed a separate act), thus subjecting the parents to liability up to $5,000. The language of the statute alone does not indicate which interpretation the legislature intended; thus, the statute is ambiguous.

¶9 When the statutory language is found to be ambiguous this court examines the scope, history, context, subject matter, and object of the statute to discern the intent of the legislature. Swatek, 192 Wis.2d at 58, 531 N.W.2d 45. The parental liability statute ⁴ was enacted in response to growing concern over juvenile vandalism and the perception that juvenile vandalism was the result of negligent supervision by parents. ⁵ The goal of the parental liability law was to impose a certain degree of financial responsibility on parents for the acts of their children. See First Bank Southeast, N.A. v. Bentkowski, 138 Wis.2d 283, 289, 405 N.W.2d 764 (Ct.App.1987). Accordingly, we must define act consistent with this statutory purpose.

¶10 We must also define the word act in such a way as to avoid absurd or unreasonable results. Swatek, 192 Wis.2d at 58, 531 N.W.2d 45. We believe that it is not possible to set forth an exact definition that would render a result both consistent with the statute's purpose and reasonable in all cases. This can only be achieved by considering the surrounding circumstances of each case. In determining what constitutes a complete course of conduct, and, thus, what distinguishes one act from multiple acts we find three factors of particular importance: (1) whether a sufficient period of time separates the conduct, (2) whether the conduct occurred at different locations, and (3) whether there is a distinct difference in the nature of the conduct. ⁶

¶11 In this case, we find that 20 acts occurred because the instances of sexual contact between Scott and N.E.M. were separated by a sufficient period of time. If, however, the 20 sexual contacts had occurred within an hour we might have a situation in which the contacts could be characterized as one act. This would depend on surrounding circumstances such as the locations where the conduct occurred. Additionally, if there was a distinct difference in the nature of the acts they could not be characterized as one act. In this case, where the conduct in question consisted exclusively of sexual contact, there can be no distinct difference. However, if Scott had both sexually assaulted N.E.M. and vandalized her parents property, the distinct difference in the nature of these two actions would warrant finding that there were two acts and subjecting Scott's parents to liability up to $2,500 for the sexual assault and $2,500 for the vandalism. ⁷

¶12 Accordingly, we conclude that it is consistent with the legislature's intent to hold the Strigels liable up to $2,500 for each of the 20 sexual contacts between Scott and N.E.M.

II.

¶13 The second issue that we address is whether it was necessary for the jury to make individual damage determinations for each sexual contact. This is also a question of statutory interpretation that this court reviews de novo. Wagner Mobil, 190 Wis.2d 585, 527 N.W.2d 301; Braatz, 174 Wis.2d at 293, 496 N.W.2d 597.

¶14 The Strigels argue that a new trial is necessary so that damages can be determined for each of the sexual contacts. N.E.M. contends that a new trial is not necessary because...