Weiss v. City of Milwaukee

• Decision Date: 04 March 1997
• Docket Number: No. 94-0171,94-0171
• Citation: 559 N.W.2d 588,208 Wis.2d 95
• Court: Wisconsin Supreme Court
• Parties: , 65 USLW 2630, 12 IER Cases 1080 Holly Lynn WEISS, Plaintiff-Appellant-Petitioner, v. CITY OF MILWAUKEE and Yvette Marchan, Defendants-Respondents.

Page 588

559 N.W.2d 588

208 Wis.2d 95, 65 USLW 2630, 12 IER

Cases 1080

Holly Lynn WEISS, Plaintiff-Appellant-Petitioner, v. CITY OF MILWAUKEE and Yvette Marchan, Defendants-Respondents.

No. 94-0171.

Supreme Court of Wisconsin.

Argued Jan. 8, 1997.

Decided March 4, 1997.

For the Plaintiff-Appellant-Petitioner there was a brief by Robert J. Baratki and Law Offices of Robert J. Baratki, Racine and oral argument by Robert J. Baratki.

For the Defendants-Respondents the cause was argued by Susan E. Lappen, Assistant City Attorney, with whom on the brief was Grant F. Langley, City Attorney.

ANN WALSH BRADLEY, Justice.

[p 1] Holly Lynn Weiss seeks review of an unpublished court of appeals decision which affirmed a summary judgment dismissal of her complaint against the defendants, the City of Milwaukee and its employee, Yvette Marchan (together, "the City"). ¹ Weiss argues that the court of appeals erred in determining that the Worker's Compensation Act (WCA) provides the exclusive remedy for her claim of emotional distress resulting from the City's disclosure of her home address and telephone number to her abusive former spouse. Because we conclude that Weiss has alleged injuries covered by the Worker's Compensation Act, and that the exclusive remedy provision of the WCA precludes her common law action against the defendants for negligent infliction of emotional distress, we affirm the decision of the court of appeals.

[p 2] The relevant facts are not in dispute. On July 31, 1990, Weiss obtained a temporary restraining order against her abusive husband, Osama Abughanim. Shortly thereafter, she commenced a divorce action. Abughanim, forced to vacate the marital residence, began a campaign of harassing telephone calls and personal visits during which he would threaten the lives of Weiss and their two children. In October 1990, Weiss vacated the residence and moved in with her parents in order to escape her husband's harassment. Abughanim persisted in making threatening telephone calls, both to Weiss's parents' residence and to her place of employment. The calls to Weiss's employer were of such frequency that they resulted in her termination in December 1990.

[p 3] In February 1991, Weiss obtained employment with the City of Milwaukee as an engineering technician. As an employee, she was required to establish residence in Milwaukee within one month of hiring. She therefore moved from her parents' residence in Waukesha County to an apartment located in Milwaukee. At that time, Abughanim did not know Weiss's Milwaukee address or telephone number.

[p 4] Weiss was instructed by her supervisor to provide her address and telephone number to the City's payroll department. She contacted the payroll department, explained that she had an abusive former husband, and expressed her desire that her residential information remain confidential. A City payroll clerk assured Weiss that the City had a policy prohibiting the disclosure of such employee information to private individuals. Relying on the clerk's assurance, Weiss provided her address and telephone number to the payroll department.

[p 5] On July 10, 1991, Abughanim contacted the City's Department of Employee Relations and spoke with Sheila Bowle, an employee of the department. Abughanim falsely represented to Bowle that he was calling on behalf of a bank and needed to confirm Weiss's address and telephone number for credit purposes. Bowle relayed the bogus inquiry to her supervisor, Yvette Marchan, who, without attempting to verify Abughanim's claimed credentials, authorized Bowle to disclose Weiss's residential information.

[p 6] By this ruse, Abughanim obtained Weiss's home address and telephone number. Thereafter, Abughanim regularly telephoned Weiss at work to inform her that he now knew her home address and telephone number, and that he would kill her and their two children. Her awareness that Abughanim knew her address, and her then existing financial inability to change her residence, caused Weiss severe emotional distress arising from fear for her safety and that of their two children.

[p 7] Weiss commenced a common law action in the circuit court against the City to recover damages for negligent infliction of emotional distress arising from the City's unwitting disclosure to Abughanim. The City filed a motion for summary judgment, asserting that the WCA ² covered Weiss's injuries, and the statute's exclusive remedy provision therefore barred Weiss's suit. The City also maintained that it had no duty to keep confidential Weiss's home address and telephone number, because such information was available to the public pursuant to Wisconsin's open records law. ³

[p 8] The circuit court granted the City's motion for summary judgment, dismissing Weiss's complaint. The court reasoned that the City had no duty to maintain the confidentiality of Weiss's home address and telephone number, since the open records law would have required disclosure had Abughanim filed a request for the information. In addition, the court determined that the damages sought by Weiss were so difficult to ascertain that they were precluded on public policy grounds. The circuit court expressly declined to base its order on provisions of the WCA. Weiss appealed.

[p 9] The court of appeals affirmed, on different grounds, the circuit court's grant of summary judgment. Concluding that Weiss stated a claim under the WCA, the court of appeals determined that her common law negligence action against the City was barred by the statute's exclusive remedy provision, Wis.Stat. § 102.03(2). The court did not squarely address the open records law issue, but did "detect grave faults in the trial court's application" of the statute. Weiss v. City of Milwaukee, No. 94-0171, unpublished slip op. at 9, 1995 WL 619222 (Wis.Ct.App. Oct. 24, 1995). Weiss petitioned this court for review.

[p 10] This court reviews a grant of summary judgment using the same methodology as the circuit court. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 591-92, 547 N.W.2d 587 (1996). If there are no material facts in dispute, as here, we must determine whether the movant is entitled to judgment as a matter of law. Id. The question in this case is whether Weiss's common law negligence claim must be dismissed, as a matter of law, because it is precluded by the exclusive remedy provision of the WCA. Our task is to interpret the provisions of Chapter 102 of the Wisconsin Statutes. ⁴ A question of law is therefore presented, which we review de novo, without deference to the decisions of the circuit court and court of appeals. Jenson v. Employers Mut. Cas. Co., 161 Wis.2d 253, 262, 468 N.W.2d 1 (1991).

[p 11] We have repeatedly stated that the provisions of Chapter 102 must be liberally construed to effectuate the WCA's goal of compensating injured workers. UFE Inc. v. LIRC, 201 Wis.2d 274, 288, 548 N.W.2d 57 (1996); Nigbor v. DILHR, 120 Wis.2d 375, 382, 355 N.W.2d 532 (1984); Cruz v. DILHR, 81 Wis.2d 442, 450, 260 N.W.2d 692 (1978). However, courts must also exercise care to avoid upsetting the balance of interests achieved by the WCA. County of La Crosse v. WERC, 182 Wis.2d 15, 30, 513 N.W.2d 579 (1994).

[p 12] Generally, an employer's obligation to pay worker's compensation accrues under Chapter 102 when all of the following conditions are present: 1) the employee sustains an injury; 2) at the time of the injury, both the employer and the employee are subject to the provisions of the WCA; 3) at the time of the injury, the employee is performing service growing out of and incidental to his or her employment; 4) the injury is not intentionally self-inflicted; and 5) the accident or disease causing injury arises out of the employment. Wis.Stat. §§ 102.03(1)(a)-(e). For purposes of our review of summary judgment in this case, our inquiry is limited to determining whether, at the time of her injury, Weiss was performing service growing out of and incidental to her employment, and whether the accident causing injury arose out of her employment. ⁵

[p 13] It is well settled that when the § 102.03(1) conditions of liability for worker's compensation are satisfied, the exclusive remedy provision, § 102.03(2), ⁶ precludes an injured employee from maintaining a negligence action against his or her employer and fellow employees. See, e.g., County of La Crosse, 182 Wis.2d at 32, 513 N.W.2d 579 (exclusive remedy provision "was designed to supplant actions in tort by injured employees against their employers"); Jenson, 161 Wis.2d at 263, 468 N.W.2d 1 (plaintiff's "common law action is barred by the exclusivity provisions if she in all other respects is entitled to recovery under the Act"). ⁷ Thus, Weiss's common law action against the City is barred if her alleged injuries are covered by Chapter 102.

[p 14] The City asserts that Weiss meets each of the five criteria set out in §§ 102.03(1)(a)-(e), and that the remedy for her injuries is therefore solely that which is provided under the WCA. ⁸ In attempting to establish that her injury is not covered by Chapter 102, Weiss contends that at the time she was injured, she was not performing service growing out of and incidental to her employment. She also argues that the court of appeals erred when it determined that "the incident causing the injury arose out of Weiss's employment." Weiss, slip op. at 6-7.

[p 15] We deal first with Weiss's claim that her injury is not encompassed within the WCA because at the time of the injury, she was not "performing service growing out of and incidental to ... her employment," as required by § 102.03(1)(c). In essence, Weiss's argument is that an employee cannot satisfy § 102.03(1)(c) when receiving a personal telephone call at work. We disagree.

[p 16] The statutory clause "performing service growing out of and incidental to his or her employment" is used interchangeably with the phrase "course of employment." John D. Neal and...