Sambs v. City of Brookfield

• Decision Date: 11 September 1979
• Docket Number: No. 78-599,78-599
• Citation: 289 N.W.2d 308,95 Wis.2d 1
• Parties: Raymond J. SAMBS, Plaintiff-Respondent, v. CITY OF BROOKFIELD, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 308

289 N.W.2d 308

95 Wis.2d 1

Raymond J. SAMBS, Plaintiff-Respondent, v. CITY OF BROOKFIELD, Defendant-Appellant. ^*

No. 78-599.

Court of Appeals of Wisconsin.

Argued July 26, 1979.

Opinion Released Sept. 11, 1979.

Opinion Filed Sept. 11, 1979.

Richard S. Hippenmeyer, Waukesha, argued for defendant-appellant; Hippenmeyer, Reilly, Arenz & Molter, Waukesha, on the brief, and George Schmus, West Allis, of counsel.

V. John Burggraf, Wauwatosa, argued for plaintiff-respondent; Wickert & Fuhrman and Aaron Belongia, Milwaukee, on the brief.

Before VOSS, P. J., and BROWN and BODE, JJ.

VOSS, Presiding Judge.

This is an appeal from the trial court decision rendered on May 9, 1978 in which the trial court held, among other things, that secs. 81.15 and 895.43(2), Stats., were unconstitutional. ¹

On February 21, 1965, the plaintiff was injured in an automobile accident occurring in the City of Brookfield (City). As a result of the accident, the plaintiff suffered paralysis from his midchest, extending over the lower half of his body. According to the complaint, the acts and omissions on the part of the City in the maintenance and repair of the highway were a proximate cause of the accident and resulting injuries.

The case reached the Wisconsin Supreme Court in 1970 and raised the question of whether the City of Brookfield had waived the $25,000 statutory limit contained in secs. 81.15 and 895.43(2), Stats., by acquiring an accident liability policy with a $500,000 limit. ² The court held that the City did not elect to waive the statutory limits of $25,000 and that the benefits of that statute enure to the insurer, thus distinguishing the case from Marshall v. City of Green Bay, 18 Wis.2d 496, 118 N.W.2d 715 (1963).

In 1975, the case was again before the Wisconsin Supreme Court. ³ The jury's verdict had found the driver, Nowak, 70% Causally negligent and the City 30% Causally negligent. The trial court approved the verdict and found that the defendant City had waived statutory limitations by acquiring the liability accident policy. The Wisconsin Supreme Court found this to be error and reversed the decision.

In the 1975 case, plaintiff raised constitutional questions for the first time at the supreme court level. The court stated since damages had not yet been determined, there was no compelling reason for the court to reach this issue. Thus, the case was returned to the trial court on the issue of damages. ⁴

After a trial on the issue of damages, the jury returned its verdict on March 31, 1978 in which it awarded a total of $949,645.66 in damages. ⁵ In its decision on motions after verdict, the trial court denied each of defendant's motions.

As one of the motions after verdict, the City of Brookfield asked the trial court to limit any judgment to $25,000, as provided by secs. 81.15 and 895.43(2), Stats. ⁶ Plaintiff contended that both statutes violate the equal protection and due process clause of the fourteenth amendment. After finding the plaintiff had standing to challenge the constitutionality of the statutes and after reviewing the basic constitutional principles which govern the court's examination of the statutes, the trial court reached several conclusions. The trial court found there are no substantial distinctions which differentiate the victims of public tortfeasors from those affected in the private sector. According to the trial court, the injuries are no less severe, and a classification may not be based on the identity of the tortfeasor. Furthermore, the statute does not even apply equally to each public tort victim. It ignores the degree of injury to the victim and the amount of damages awarded. In the trial court's opinion, the statute discriminates between members of the same class when it allows a victim suffering damages below the maximum to be fully compensated but allows a victim who sustains damages to a sum beyond that limitation to only recover the allotted maximum. The court continued to find the statutes unreasonable, arbitrary and failing in the rule of equality. Therefore, the statutes violate the constitutional guarantee of equal protection. Additionally, the trial court stated that the statutes deprive a victim of governmental negligence of a trial by jury.

On appeal, the following issues are presented: (1) whether the judgment against the City of Brookfield should be limited to $25,000, pursuant to secs. 81.15 and 895.43(2), Stats., (2) whether plaintiff is entitled to recover the hospital and medical expenses awarded by the jury in the seventh verdict answer, and (3) whether plaintiff's claim against the City entitles him to recover damages for wage loss, past and future medical expenses, and housekeeping expenses or whether plaintiff is restricted to damages for personal injuries.

CONSTITUTIONALITY OF SECS. 81.15

AND 895.43(2), STATS.

In order to properly examine the constitutionality of these statutes, it is necessary to briefly review the constitutional principles which guide this court's examination. The Wisconsin Supreme Court listed the standards for determining the reasonableness of a statute's classification in Harris v. Kelley, 70 Wis.2d 242, 252, 234 N.W.2d 628, 632 (1975).

(1) All classifications must be based upon substantial distinctions which made one class really different from another.

(2) The classification adopted must be germane to the purpose of the law.

(3) The classification must not be based upon existing circumstances only and must not be so constituted as to preclude addition to the numbers included within a class.

(4) To whatever class a law may apply, it must apply equally to each member thereof.

(5) The characteristics of each class could be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. (Citations omitted.)

The standard of "equal protection" review requires only that there be a rational basis for separate classification of parties injured by public tortfeasors. Binder v. City of Madison, 72 Wis.2d 613, 622, 241 N.W.2d 613, 618 (1976). A legislative classification is presumed to be valid, and the burden of proof is upon the challenging party to establish the invalidity of a statutory classification. Omernick v. State, 64 Wis.2d 6, 18, 218 N.W.2d 734, 741-42 (1974). The challenger asserting that a statutory classification is violative of the equal protection clause must prove abuse of legislative discretion beyond a reasonable doubt. State v. Hart, 89 Wis.2d 58, 64, 277 N.W.2d 843, 846 (1979). Additionally, "a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

In reference to legislative classifications, the following statement is made in 16 Am.Jur.2d Constitutional Law, § 500 (1964):

While the legislature has the power to enact laws which, by reason of peculiar circumstances, may affect some persons or classes of persons only, in such instances the class of persons on whom the law is to operate must possess some common disability, attribute or qualification, or must satisfy some condition marking them as proper objects for the operation of special or class legislation. (Footnote omitted.)

The State must proceed upon a rational basis; the burden of proof is on the challenger.

Considering these basic constitutional principles and guidelines, this court now addresses the constitutionality of secs. 81.15 and 895.43(2), Stats., and their relation to the doctrine of sovereign immunity. In Holytz v. City of Milwaukee, 17 Wis.2d 26, 37, 115 N.W.2d 618, 623 (1962), the Wisconsin court stated that the governmental immunity doctrine has judicial origins and that after careful consideration, the court felt it was appropriate to abolish this immunity, notwithstanding the legislature's failure to adopt corrective enactments. Furthermore, the court commented that "(i)f the legislature deems it better public policy, it is, of course, free to reinstate immunity. The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort." Holytz v. City of Milwaukee, supra, at 40, 115 N.W.2d at 625.

The legislature has reinstated immunity to varying degrees. ⁷ In the Wisconsin statutes applicable to the present action, there are, among others, the following degrees of immunity: (1) victims of street defects liability limited to $25,000 by sec. 81.15, Stats., (2) victims of motor vehicle accidents unlimited liability by sec. 345.05, Stats., (3) victims of torts by political corporations, governmental agencies or subdivisions and officers, agents or employees liability limited to $25,000 by sec. 895.43(2), Stats., and (4) victims of actions committed by a state officer in the course of his duties limited liability of $100,000 by sec. 895.45, Stats. Defendant claims that all statutes dealing with immunity are within the legislature's prerogative in view of the court's decision in Holytz v. City of Milwaukee. ⁸ In relation to this argument, the Wisconsin Supreme Court has examined similar issues in Stanhope v. Brown County, 90 Wis.2d 823, 280 N.W.2d 711 (1979).

Stanhope appealed from the portion of a judgment which limited the damages she could recover from Brown County and Continental Casualty Insurance Company to $25,000. As in the present case, Brown County and Continental raised the defense, under secs. 81.15 and 895.43, Stats. (1971), that Stanhope could not recover more than $25,000 from Brown County. Stanhope argued that the Wisconsin legislature has established two classes of plaintiffs (victims of governmental negligence and victims of nongovernmental negligence) and two classes of defendants (governmental tortfeasors and nongovernmental tortfeasors)....