Tobias v. County of Racine

• Decision Date: 11 August 1993
• Docket Number: No. 92-1284,92-1284
• Citation: 507 N.W.2d 340,179 Wis.2d 155
• Parties: Sheree TOBIAS, Plaintiff-Respondent, d v. COUNTY OF RACINE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 340

507 N.W.2d 340

179 Wis.2d 155

Sheree TOBIAS, Plaintiff-Respondent, ^d v. COUNTY OF RACINE, Defendant-Appellant.

No. 92-1284.

Court of Appeals of Wisconsin.

Submitted on Briefs June 4, 1993.

Opinion Released Aug. 11, 1993.

Opinion Filed Aug. 11, 1993.

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

BROWN, Judge.

The county of Racine appeals from a judgment awarding money damages to Sheree Tobias for the wrongful death of her daughter, Diana Jo White. We must decide whether a governmental entity may be held liable when its human services department fails to prevent the drive-by shooting death of a runaway child. We hold that, in this case, the county is not liable for its alleged negligence because any negligence was not causal. We therefore reverse the circuit court's judgment.

Diana Jo had a six-year history of contacts with the Racine County Human Services Department. A significant number of those contacts involved runaway complaints, which were also referred to the police. In 1988, Diana Jo became the subject of a child in need of protection and services (CHIPS) proceeding and was placed in a foster home. She began to run away from the foster home almost immediately, and after being detained pending her court appearance, she was placed in a different home. She ran away from that home several times during her thirteen-month placement. Each time she ran, the juvenile court issued capias orders to enforce the foster care placements.

Diana Jo was returned to her family's care in December 1989. Juvenile court jurisdiction ended on January 21, 1990. In anticipation of that date, a social worker from the department met with Diana Jo and Sheree and offered to continue voluntary services. Sheree signed a social services agreement in which she agreed to continue with counseling. The family met with a counselor several times between January and the time of Diana Jo's death.

In late April, Sheree called the police and reported Diana Jo as a runaway. On May 10, Diana Jo again ran away from home. Sheree or her husband contacted the counseling agency on May 10 or 11 and expressed concern about Diana Jo's whereabouts. The counselor contacted the department on the same day, and a social worker began to search for Diana Jo. Sheree also contacted family members and friends and asked them to help her in the search.

On May 17, Sheree contacted the department and asked that a capias be issued. An employee of the department told Sheree that a capias would be put out. On May 25, a caseworker learned that Diana Jo was in an apartment in a known dangerous section of Racine. The caseworker went to the apartment and "observed [Diana Jo's] condition to be safe." She attempted to convince Diana Jo to return home, but Diana Jo refused and threatened to jump out of the car. The caseworker then returned Diana Jo to the apartment after obtaining a promise that the child would attend a counseling session the following week.

After leaving Diana Jo, the caseworker approached a police officer near the apartment and explained the situation, asking him to help. The officer responded that he could not arrest Diana Jo because no capias order was in effect. He told the caseworker that Sheree could accompany the police to the apartment and take Diana Jo home. Sheree chose not to go to the apartment. On May 26, Diana Jo called the caseworker and told her that she had left the apartment. On May 27, shortly before midnight, Diana Jo was shot and killed by an unknown assailant near the apartment in which she had stayed.

Sheree brought a wrongful death action against Racine county, alleging that the department was negligent when it failed to issue a capias order for Diana Jo's arrest. The complaint alleged that the department's failure to protect Diana Jo from the drive-by shooting caused her death. The county's motions for summary judgment and dismissal were denied. The jury returned a verdict against the county, and the circuit court denied the county's postverdict motions. The county appeals from the judgment.

The county argues, in part, that it should not be liable because of the doctrine of superseding cause. "[S]uperseding cause is a means of relieving the first actor from liability where it would be wholly unreasonable for policy reasons to make the defendant answer in damages for his negligence, even though that negligence was considered a substantial factor by the jury." Stewart v. Wulf, 85 Wis.2d 461, 476, 271 N.W.2d 79, 86 (1978). Whether public policy precludes liability is a question of law that is decided after the jury finds causal negligence. See Merlino v. Mutual Serv. Casualty Ins., 23 Wis.2d 571, 580, 127 N.W.2d 741, 746 (1964).

In this case, the jury's special verdict found the county causally negligent in Diana Jo's death. We assume without deciding that the jury's verdict is supported by credible evidence. See In re A.E., 163 Wis.2d 270, 273, 471 N.W.2d 519, 520 (Ct.App.1991). We therefore assume, without deciding, that the county was negligent and that it breached its duty of care. ¹ The remaining issue is whether Diana Jo's act of running away and her assailant's act of shooting her constitute superseding causes which preclude liability. We now proceed to the policy analysis.

Our supreme court has set out several public policy factors to be considered when determining whether liability for negligence should be imposed. See Coffey v. City of Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132, 140 (1976). ² The doctrine of superseding cause is another way of saying that the injury is too remote from the negligence to impose liability, which is one of the factors set out in Coffey. See Morgan v. Pennsylvania Gen. Ins., 87 Wis.2d 723, 737-38, 275 N.W.2d 660, 667 (1979). Because the Coffey policy considerations are listed disjunctively, we need only find that one factor is satisfied in order to relieve the county of liability in this case. The only factor we need discuss is whether the "injury is too remote from the negligence." We decide that the answer is "yes" in this case based upon our conclusion that there was a superseding cause which rendered the injury too remote.

The RESTATEMENT (SECOND) OF TORTS § 447 (1964) provides the framework for determining whether an intervening negligent act is a superseding cause. See Merlino, 23 Wis.2d at 580, 127 N.W.2d at 746. ³ This RESTATEMENT section is not directly applicable in our case because the intervening acts of running away and shooting are intentional rather than negligent acts. However, we find another section of the RESTATEMENT instructive. The RESTATEMENT (SECOND) OF TORTS § 448 (1964) states:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized...