Stann v. Waukesha County

• Decision Date: 27 March 1991
• Docket Number: No. 89-2296,89-2296
• Citation: 161 Wis.2d 808,468 N.W.2d 775
• Parties: Michael S. STANN, individually and as personal representative of the Estate of Jennifer L. Stann, and Claire D. Stann, Plaintiffs-Appellants, v. WAUKESHA COUNTY, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 775

468 N.W.2d 775

161 Wis.2d 808

Michael S. STANN, individually and as personal representative of the Estate of Jennifer L. Stann, and Claire D. Stann, Plaintiffs-Appellants, v. WAUKESHA COUNTY, Defendant-Respondent.

No. 89-2296.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 31, 1991.

Opinion Released March 27, 1991.

Opinion Filed March 27, 1991.

[161 Wis.2d 811] Howard B. Schoenfeld, and Jeffrey M. Leggett of Fiorenza & Hayes, S.C., Milwaukee, for plaintiffs-appellants.

Steve Schmitz, Asst. Corp. Counsel, Waukesha, for defendant-respondent.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Judge.

Michael and Claire Stann (the Stanns) appeal from a summary judgment dismissing their action against Waukesha county for the alleged wrongful drowning death of their young daughter, Jennifer. The trial court concluded that the Stanns' action was barred by principles of recreational immunity pursuant to sec. 895.52, Stats., and governmental immunity pursuant to sec. 893.80, Stats. The Stanns challenge both of these conclusions in this appeal. We affirm the trial court's judgment in all respects.

[161 Wis.2d 812] The essential and undisputed facts are as follows. On July 10, 1987, Claire Stann (Claire) took the couple's three-year-old daughter Jennifer to Menomonee Park beach. Menomonee Park is owned and operated by Waukesha county. Early that afternoon, Claire and Jennifer waded together in the area of the beach which is reserved for children. At one point, Claire left the water momentarily, only to notice that Jennifer was no longer with her. Claire looked around and, failing to see Jennifer, approached the lifeguard assigned to the children's area. Claire described Jennifer to the lifeguard and said that she was missing. The lifeguard told Claire to look both on the beach and in the beach house. Claire did as the lifeguard suggested, enlisting other parents at the beach to help.

After this initial search for Jennifer proved fruitless, Claire again approached the lifeguard station. She found a different lifeguard on duty. Claire explained the situation to the new lifeguard, adding that she and others had searched everywhere the first lifeguard had suggested to no avail. Claire then asked the second lifeguard to call bathers out of the water and to search the water for Jennifer. The lifeguard told Claire to search the beach and beach house again. Again, Claire searched and failed to find Jennifer.

Claire returned to the lifeguard station a third time. This time, Claire persuaded the lifeguard to call a search for Jennifer. Claire searched in the water for a while, until the lifeguard told her to check the parking lot. The water was cleared; volunteers formed a "human chain" and walked through the swimming area in an effort to locate anything below the surface. The volunteers found Jennifer submerged in the children's area of the beach. Jennifer was taken to a hospital where she died the following day. In her affidavit, Claire estimated that [161 Wis.2d 813] twenty to twenty-five minutes had elapsed from the time she first reported Jennifer missing until Jennifer was found.

The Stanns brought this action for wrongful death against Waukesha county. In their complaint, the Stanns alleged the county had been negligent in three respects: (1) the county had failed to establish and implement appropriate policies for locating missing children in the swimming area; (2) the county's lifeguards failed to take appropriate action upon hearing that Jennifer was missing; and (3) the county had improperly barred the use of life jackets in the children's swimming area of the beach.

The county moved to dismiss the Stanns' claims on the grounds that they were barred by principles of immunity. More particularly, the county contended that the first and third of the Stanns' theories of liability--the missing person policy and life jacket policy--were barred by sec. 893.80(4), Stats., which grants immunity from tort liability to governmental bodies for the "discretionary" acts of their employees, officers and agents. See sec. 893.80(4) and Pavlik v. Kinsey, 81 Wis.2d 42, 49-50, 259 N.W.2d 709, 711-12 (1977). The county further maintained that all three of the Stanns' theories of liability--including the second claim based upon the actions of the lifeguards on the day of the tragedy--were barred by sec. 895.52, Stats., which immunizes

landowners from liability arising from injuries sustained by recreational users of their land

Because the parties submitted matters outside the pleadings, the trial court treated the county's motion to dismiss as a motion for summary judgment. See sec. 802.06(2), Stats. The trial court ruled that governmental immunity barred the Stanns' first and third theories and that recreational use immunity barred the Stanns' [161 Wis.2d 814] "entire complaint." The Stanns appeal, offering numerous arguments why governmental and recreational use immunity should not apply to their claims.

Here, on appeal, the Stanns confine their challenge to the applicability of recreational use immunity to their second theory--that the lifeguards did not respond appropriately to Claire's report that Jennifer was missing. As to their first and third claims, the Stanns argue that the trial court improperly applied governmental immunity law.

The county responds in kind to the Stanns' arguments. Thus, the parties structure this appeal as one involving principles of governmental immunity as to the Stanns' first and third claims and one involving recreational immunity as to the Stanns' second claim. ¹

When called upon to review a trial court's grant of a motion for summary judgment, we follow the same methodology as the trial court. U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis.2d 80, 86, 440 N.W.2d 825, 827 (Ct.App.1989). Summary judgment methodology is set forth in sec. 802.08(2), Stats. We review a summary judgment determination de novo, independent of the trial court's decision. Wilson v. Waukesha County, 157 Wis.2d 790, 794, 460 N.W.2d 830, 832 (Ct.App.1990)[161 Wis.2d 815] . We examine the record to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Keefer v. State Farm Fire & Casualty Co., 127 Wis.2d 41, 44, 377 N.W.2d 632, 633 (Ct.App.1985). We owe no deference to the trial court's resolution of issues of law. Id.

This case also presents questions of law on another basis. The Stanns' arguments travel to the trial court's application of the immunity statutes to the facts of this case. Such an exercise also presents a question of law. Id.

We address each immunity theory in turn. ²

[161 Wis.2d 816] GOVERNMENTAL IMMUNITY

The trial court ruled that the Stanns' first and third claims--the missing person policy and the life jacket policy, respectively--were barred by the governmental immunity

provided pursuant to sec. 893.80(4), Stats. The Stanns argue that the trial court did not apply the correct standard when it determined that the actions of park officials concerning the design and implementation of missing person procedures and life jacket policy were immunized under the statute. We disagree

Section 893.80(4), Stats., provides in relevant part that:

No suit may be brought against any ... political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

The most generally recognized exception to this rule is that officials are liable for damages flowing from the negligent performance of a purely ministerial duty. Lister v. Board of Regents, 72 Wis.2d 282, 300-01, 240 N.W.2d 610, 621-22 (1976). A ministerial duty is one which is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion. Domino v. Walworth [161 Wis.2d 817] County, 118 Wis.2d 488, 490, 347 N.W.2d 917, 919 (Ct.App.1984), quoting Lister, 72 Wis.2d at 301, 240 N.W.2d at 622. From this, it follows that acts which involve the exercise of judgment or discretion rather than the mere performance of a prescribed task do not come within the exception to the rule. Lifer v. Raymond, 80 Wis.2d 503, 509, 259 N.W.2d 537, 540 (1977). The terms "quasi-legislative" and "quasi-judicial" are synonymous with "discretionary." Kimpton v. School Dist. of New Lisbon, 138 Wis.2d 226, 235, 405 N.W.2d 740, 744 (Ct.App.1987).

The Stanns' argument focuses on the actions of a single Waukesha county employee: the park planning specialist. The Waukesha County Park Commission sets policy goals for the county's park system; the park planning specialist crafts the "specifics" which implement the commission's goals. The missing person procedures and the life jacket policy at Menomonee Park beach are examples of goals implemented by the park planning specialist. The Stanns do not contend that the park planning specialist's actions were not discretionary. Rather, the Stanns argue that the trial court "erroneously equated the term 'discretionary' with the terms 'quasi-legislative' and 'quasi-judicial.' " More particularly, the Stanns allege that courts have carved out an "exception to the exception," wherein certain acts may be deemed discretionary, but still not quasi-legislative or quasi-judicial, and therefore not subject to immunity.

Specifically, the Stanns argue that, for example, the implementation of the "lost child flow chart" by the park planning specialist cannot be considered quasi-legislative or quasi-judicial because while involving discretion, it...