Noffke ex rel. Swenson v. Bakke

• Decision Date: 27 January 2009
• Docket Number: No. 2006AP1886.,2006AP1886.
• Citation: 760 N.W.2d 156,2009 WI 10
• Parties: Brittany L. NOFFKE, by her guardian ad litem, Mart W. SWENSON, Thad Noffke and Tina Kropelin, Plaintiffs-Appellants-Petitioners, v. Kevin BAKKE and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners, Holmen High School, Holmen Area School District and Wausau Underwriters Insurance Company, Defendants-Respondents, Gundersen Lutheran Health Plan, Inc., and Atrium Health Plan, Inc., Defendants.
• Court: Wisconsin Supreme Court

760 N.W.2d 156

2009 WI 10

Brittany L. NOFFKE, by her guardian ad litem, Mart W. SWENSON, Thad Noffke and Tina Kropelin, Plaintiffs-Appellants-Petitioners, v. Kevin BAKKE and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners Holmen High School, Holmen Area School District and Wausau Underwriters Insurance Company, Defendants-Respondents Gundersen Lutheran Health Plan, Inc., and Atrium Health Plan, Inc., Defendants.

No. 2006AP1886.

Supreme Court of Wisconsin.

Argued October 8, 2008.

Decided January 27, 2009.

For the plaintiffs-appellants-petitioners there were briefs filed by Tracy N. Tool and Bye, Goff, Rohde & Skow, Ltd., River Falls, and Mart W. Swenson and Laman & Swenson Law Office, Eau Claire, and oral argument by Tracy N. Tool.

For the defendants-respondents-petitioners there were briefs by Kara M. Burgos, James S. Naugler, and Moen Sheehan Meyer, Ltd., La Crosse, and oral argument by James S. Naugler.

For the defendants-respondents there was a brief by Peggy E. Van Horn and the Law Offices of Thomas P. Stilp, Brookfield, and oral argument by Peggy E. Van Horn.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This is a review of a published court of appeals' decision¹ that affirmed in part and reversed in part the decision of the La Crosse County Circuit Court, Dale T. Pasell, Judge. The circuit court granted summary judgment in favor of the defendants and thus granted immunity to both Kevin Bakke (hereinafter "Bakke") and the "school district," which includes Holmen High School, the Holmen Area School District, and Wausau Underwriters Insurance Company. When Brittany Noffke (hereinafter "Noffke") appealed, the court of appeals affirmed in part and reversed in part the circuit court's decision to grant summary judgment. The court of appeals concluded that while the school district was immune from liability, Bakke was not entitled to such immunity. Both Bakke and Noffke petitioned this court for review, which we granted. We agree with the circuit court's decision and therefore affirm in part and reverse in part the court of appeals' decision.

¶ 2 This case presents the following three issues: First, is Bakke immune from a negligence suit arising out of an incident that occurred while he was participating as a cheerleader at Holmen High School? We conclude that, pursuant to Wis. Stat. § 895.525(4m)(a) (2005-06),² Bakke is immune from liability because he was participating in a recreational activity that includes physical contact between persons in a sport involving amateur teams. Second, did the circuit court err when it concluded as a matter of law that Bakke was not reckless? We conclude that the circuit court did not err when it concluded as a matter of law that Bakke was not reckless. Third, we must determine whether Wis. Stat. § 893.80(4) provides the school district with immunity for the alleged negligent acts of the cheerleading coach. We conclude that the school district is immune because no ministerial duty was violated by the cheerleading coach and there was no known and compelling danger that gave rise to a ministerial duty.

I. FACTS

¶ 3 The facts are not disputed by either party. Noffke was a varsity basketball cheerleader. On December 17, 2004, in the "Commons" of Holmen High School, Noffke fell while practicing a cheerleading stunt before a basketball game. The stunt was performed without any mats. Tragically, Noffke fell backward, her head struck the tile floor, and she was injured.

¶ 4 Three cheerleaders were involved in this "post-to-hands" stunt. These participants had not previously performed this stunt together. Noffke was the "flyer," i.e., the person who stands on the shoulders of the "base." The base is not involved in this litigation. Bakke was the "post."

¶ 5 By way of background, the post helps the flyer get into position on the base and initially supports most of the flyer's weight until her feet are secured on the base's shoulders. The post may also serve as the spotter after the flyer is on the base. Once Noffke was on the base and Bakke let go of her, Bakke was to go behind the base, but in this case, Bakke moved to the front. As a result, when Noffke fell backward, no one was there to prevent her injury. In addition, her cheerleading coach, a Holmen Middle School teacher, was approximately ten feet away supervising another group of cheerleaders and thus was unable to prevent Noffke's fall.

II. PROCEDURAL HISTORY

¶ 6 Noffke brought suit against Bakke for negligently failing to properly spot Noffke, and she also sued the school district alleging that the school's cheerleading coach was negligent by failing to provide a second spotter and failing to require the use of mats.

¶ 7 Bakke moved for summary judgment asserting that he was immune from liability by virtue of Wis. Stat. § 895.525(4m)(a). The school district moved for summary judgment asserting that it was immune from liability by virtue of Wis. Stat. § 893.80(4). The circuit court granted summary judgment in favor of Bakke and the school district, and thus, both were provided immunity.

¶ 8 The court of appeals affirmed in part and reversed in part the circuit court's decision. It concluded that Bakke was not entitled to immunity because cheerleading does not involve the type of physical contact that the legislature sought to immunize from negligence lawsuits. The court of appeals, however, affirmed the circuit court's decision to grant the school district immunity.

III. STANDARD OF REVIEW

¶ 9 Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). This court applies the same standards as the circuit court. Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 630, 547 N.W.2d 602 (1996). Statutory interpretation is a question of law that this court reviews de novo while benefiting from the lower courts' analyses. Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶ 8, 286 Wis.2d 105, 705 N.W.2d 645.

IV. ANALYSIS

¶ 10 This case requires us to interpret Wis. Stat. §§ 895.525(4m)(a) and 893.80(4). "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. This court begins statutory interpretation with the language of a statute. Id., ¶ 45. If the meaning of the statute is plain, we ordinarily stop the inquiry and give the language its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. A dictionary may be utilized to guide the common, ordinary meaning of words. Id., ¶ 53; State v. Sample, 215 Wis.2d 487, 499-500, 573 N.W.2d 187 (1998).

¶ 11 The context and structure of a statute are also important to the meaning of a statute. Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110. "Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. The "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id. "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes—that is, from its context or the structure of the statute as a coherent whole." Id., ¶ 49.

¶ 12 "`If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Id., ¶ 46 (citation omitted). If statutory language is unambiguous, we do not need to consult extrinsic sources of interpretation. Id. "`Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity.'" Id., ¶ 47 (citation omitted). "[A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." Id. The test for ambiguity keeps the focus on the text of the statute, and as a result, a disagreement about the statutory meaning is not enough to render a statute ambiguous. Id. The test inquires whether "`well-informed persons should have become confused,'" i.e., does the language reasonably give rise to different meanings. Id. (citation omitted).

A. Bakke's immunity from negligence

¶ 13 Whether Bakke is immune from liability in the case at hand involves the interpretation of Wis. Stat. § 895.525(4m)(a) as that statute relates to the allegations of Bakke's negligence. We first address the language of the statute in order to determine if Bakke is qualified to receive immunity from a negligence suit arising out of an incident that occurred while he was participating as a cheerleader at Holmen High School. Noffke argues that Wis. Stat. § 895.525(4m)(a) provides immunity only to those persons who are competing in a contact sport. As a result, she asserts that cheerleading is neither competitive nor a contact sport, and thus, Noffke argues that Bakke is not entitled to immunity. Bakke argues that the plain language of the statute renders him immune from negligence because cheerleading involves physical contact between persons. We agree with Bakke and conclude that pursuant to Wis. Stat. § 895.525(4m)(a), Bakke is immune from liability because of the statute's plain language. Bakke was participating in a "recreational activity" that includes "physical contact between persons in a sport involving amateur teams[.]"

¶ 14 Wisconsin Stat. § 895.525(4m)(a) provides immunity from negligence actions for participants in a recreational activity that involves physical contact between persons in a sport involving amateur teams. Subsection (4m)(a), Liability of...