Oney v. Schrauth, 94-3298
Decision Date | 26 October 1995 |
Docket Number | No. 94-3298,94-3298 |
Citation | 541 N.W.2d 229,197 Wis.2d 891 |
Parties | Orville ONEY, Plaintiff-Appellant, v. Wolfgang SCHRAUTH, Defendant-Respondent. d |
Court | Wisconsin Court of Appeals |
For the defendant-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Michael J. Losse, Assistant Attorney General.
Before EICH, C.J., and DYKMAN and VERGERONT, JJ.
Orville Oney appeals from an order dismissing his tort action against Wolfgang Schrauth. The trial court granted Schrauth's summary judgment motion, concluding that Oney's failure to serve upon the attorney general a timely written notice of a claim pursuant to § 893.82(3), STATS., 1 was fatal to his action. Oney also appeals from an order denying his motion for relief from the first order. Oney contends that his failure to serve a timely notice is not fatal to his action because: (1) Schrauth's alleged torts did not grow out of nor were they committed in the course of the discharge of his duties as a state employee; (2) the discovery rule tolls the time period in which a notice must be served under § 893.82(3); and (3) Schrauth is estopped from asserting a defense pursuant to § 893.82(3). We reject his claims and, therefore, affirm.
On July 23, 1991, Wolfgang Schrauth, a state probation and parole officer, conducted a search of Arnold Ramaker's home with members of the Sheboygan County Sheriff's Department. Orville Oney, Ramaker's friend, was present during the search. Schrauth found a list of computer software which Oney stated belonged to him. At Schrauth's request, Oney retrieved the software and brought it to Ramaker's home. The sheriff's department took the software, and later, Detective Leroy Nennig, Jr., obtained a search warrant for Oney's home based, in part, upon information provided to him by Schrauth that Oney had property "consistent with pornographic material." The police searched Oney's home and confiscated numerous items but did not file any criminal charges against Oney.
According to Oney, on November 15, 1991, he discovered that Detective Nennig relied upon Schrauth's allegedly misleading and erroneous statements and illegally seized evidence to obtain the search warrant. On December 30, Oney served notice upon the attorney general, and in July 1993 he commenced this tort action.
Schrauth moved for summary judgment, arguing that Oney failed to serve a notice upon the attorney general within 120 days from the date of the search as required by § 893.82(3), STATS. Schrauth contended that while the search occurred on July 23, 1991, Oney did not serve the notice until December 30, 1991, after the 120-day period had expired. The trial court granted Schrauth's motion, concluding that the notice had not been timely served as a matter of law. The court also dismissed Oney's motion for relief from that order. Oney appeals.
An appeal from a grant of summary judgment raises an issue of law which we review de novo, by applying the same standards employed by the trial court. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct.App.1994). We initially examine the complaint and answer to determine whether a claim has been stated and whether material issues of fact have been raised. Id. We then consider whether the documents offered by the moving party establish a prima facie case for summary judgment. Id. If so, we then look to the documents offered by the party opposing the motion to determine if any material facts remain in dispute that would entitle the opposing party to a trial. Id. at 372-73, 514 N.W.2d at 49-50.
Oney argues that he need not serve a notice upon the attorney general pursuant to § 893.82(3), STATS., because Schrauth was acting outside of the scope of his employment. Oney contends that under § 893.82(3), the acts complained of must have been committed in the course of or have grown out of a state employee's duties. Because Oney is neither a parolee nor a probationer, he contends that Schrauth acted outside of the scope of his employment.
In Elm Park Iowa, Inc. v. Denniston, 92 Wis.2d 723, 286 N.W.2d 5, (Ct.App.1979), we rejected a similar argument. We said:
A careful reading of the complaint necessitates the conclusion that all these acts of continuing conspiracy alleged were accomplished while D.R. & S. were working on an annual inspection of Elm Row in 1974. There are no other factual allegations in the complaint dealing with the acts of D.R. & S. other than the conclusion that the conspiracy continues from 1974 to date. Just because a complaint states that these does not take a case beyond the notice of claim requirements....
Id. at 732, 286 N.W.2d at 9-10 (emphasis added). When we review an assertion that an act is outside an employee's duties, we examine the complaint to determine whether the alleged acts grew out of an employee's duties or were committed in the course of those duties. Id. Section 893.82(3), STATS., is broad enough to include any act of an employee that arises from intentional tortious conduct. Id. at 734, 286 N.W.2d at 10.
Oney's complaint asserts that Schrauth is a state employee. The relevant portions of the complaint allege that Schrauth was conducting a search of Ramaker's home when he found a list of computer programs that he thought might be pornographic. Oney admits that he owned the programs and retrieved them for Schrauth. Oney asserts that Schrauth, then, conspired with Detective Nennig so that Detective Nennig could obtain a warrant to search Oney's home.
We conclude that the acts of which Oney complains were acts growing out of Schrauth's duties as a probation and parole officer. The nature of his work involves monitoring a probationer's or parolee's behavior, including conducting searches of the probationer's or parolee's home to ensure that offenses are not being committed. Oney asserts that Schrauth had no jurisdiction to be involved in a search of his home because he is not a probationer or a parolee. But Schrauth did not search Oney's home; he was searching Ramaker's home when he found the suspicious evidence. Oney delivered the software to Ramaker's home at Schrauth's request. He could have refused to do so. And, it was the sheriff's department, not Schrauth, who took the evidence from Ramaker's home. Schrauth's behavior grew out of his duties as Ramaker's probation officer and therefore § 893.82(3), STATS., applies.
Having concluded that § 893.82(3), STATS., is applicable to Oney's action against Schrauth, we must next determine whether Oney timely served the notice. Under § 893.82(3), no civil action may be brought against a state employee unless the claimant serves a written notice upon the attorney general within 120 days of the event causing the injury or damage that gave rise to the civil action. It is undisputed that Oney failed to serve the notice 120 days after the violation occurred. Oney, nevertheless, argues that we should apply the discovery rule adopted in Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578, 583 (1983), where the supreme court determined that a tort claim does not accrue until a plaintiff discovers, or through the exercise of reasonable due diligence should have discovered, his or her claim.
But in Renner v. Madison Gen. Hosp., 151 Wis.2d 885, 447 N.W.2d 97 (Ct.App.1989), we rejected that very same argument. The plaintiffs in Renner failed to discover that the defendant was a state employee until after the 120-day time limit in § 893.82(3), STATS., had expired. Id. at 887, 447 N.W.2d at 98. The plaintiffs argued for the application of the discovery rule so that their action did not accrue until they made this discovery. Id. at 889-90, 447 N.W.2d at 99. But we declined to apply it, reasoning that all of the elements of an enforceable claim were present, including knowledge of the defendant's identity, when the plaintiffs were injured. Id. at 891, 447 N.W.2d at 99. We also determined that the public policy reason justifying the adoption of the discovery rule in Hansen--that the injustice of barring meritorious claims before the claimant knew of the injury outweighed the threat of stale or fraudulent actions--was not present in this case. Id. at 890, 447 N.W.2d at 99. We stated:
When all of the elements of an enforceable claim are known to the claimant, including the identity of the defendant, it is fair to require that the claimant make a reasonably diligent inquiry to determine whether the status of the defendant imposes special duties upon the claimant, such as giving notice of the injury and the claim to the appropriate agency.
Id. at 891, 447 N.W.2d at 99. 2
Moreover, the plain language of § 893.82, STATS., supports a conclusion that the legislature did not intend that the discovery rule apply to toll the time in which a notice had to be served upon the attorney general under § 893.82(3). Section 893.82(3) reads that no civil action may be brought against a state employee "unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding," the claimant serves notice upon the attorney general. (Emphasis added.) But § 893.82(5m), which specifically pertains to medical malpractice claims against state employees, reads, "With regard to a claim to recover damages for medical malpractice, the time periods under subs. (3) and (4) shall be 180 days after discovery of the injury or the date on which, in the exercise of reasonable diligence, the injury should have been discovered, rather than 120 days after the event causing the injury." (Emphasis added.) Further, under § 893.82(4)(b),...
To continue reading
Request your trial-
Gillen v. City of Neenah
...of claim statute as a defense).17 See, e.g., Ibrahim v. Samore, 118 Wis.2d 720, 726, 348 N.W.2d 554 (1984); Oney v. Schrauth, 197 Wis.2d 891, 904, 541 N.W.2d 229 (Ct.App.1995); J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis.2d 69, 83, 336 N.W.2d 679 (Ct.App.1983).Although Wis. Stat......
-
Roman Catholic Found. v. Regents of Univ. Of Wis.
...compliance); Newkirk v. Wis. Dep't of Transp., 228 Wis.2d 830, 833, 598 N.W.2d 610 (Ct.App.1999) (same); Oney v. Schrauth, 197 Wis.2d 891, 904, 541 N.W.2d 229 (Ct.App.1995) (same). Therefore, it is irrelevant that plaintiffs may have fulfilled the policy purposes of the statute or that they......
-
Village of Trempealeau v. Mikrut
...is generated in this area by the conclusory use of the terminology of waiver to resolve estoppel claims. See Oney v. Schrauth, 197 Wis. 2d 891, 904, 541 N.W.2d 229 (Ct. App. 1995) (statutory notice of claim "requirements cannot be waived and no basis exists for the equitable doctrine of est......
-
Weis v. Bd. of Regents of the Univ. of Wis. Sys.
...of claim runs from the date of the injury, not the date on which the claimant discovers the injury. Oney v. Schrauth, 197 Wis.2d 891, 899–900, 541 N.W.2d 229, 231–32 (Ct.App.1995). In light of the allegations in the complaint, I am not persuaded that Perry's hinting at a change in asset con......