Wilson v. Waukesha County

• Decision Date: 29 August 1990
• Docket Number: No. 90-0361,90-0361
• Citation: 460 N.W.2d 830,157 Wis.2d 790
• Parties: Isabelle A. WILSON, Plaintiff-Appellant, d v. WAUKESHA COUNTY, Defendant-Respondent, Family Health Plan, Defendant.
• Court: Wisconsin Court of Appeals

Page 830

460 N.W.2d 830

157 Wis.2d 790

Isabelle A. WILSON, Plaintiff-Appellant, ^d v. WAUKESHA COUNTY, Defendant-Respondent Family Health Plan, Defendant.

No. 90-0361.

Court of Appeals of Wisconsin.

Submitted on Briefs July 25, 1990.

Opinion Released Aug. 29, 1990.

Opinion Filed Aug. 29, 1990.

Christopher Lowe of Lowe Law Offices, Milwaukee, for plaintiff-appellant.

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

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

NETTESHEIM, Presiding Judge.

Isabelle A. Wilson appeals from a circuit court summary judgment dismissing her personal injury claim against Waukesha county. Wilson raises two issues on appeal: (1) whether Waukesha county "maliciously" failed to warn her of an unsafe condition on county land and therefore cannot claim immunity from liability under Wisconsin's recreational use immunity statute, sec. 895.52, Stats.; and (2) whether Waukesha county deprived her of constitutional rights in violation of 42 U.S.C. sec. 1983. Based on the summary judgment record in this case, we conclude that Waukesha county did not act maliciously, as we define that term in sec. 895.52(4)(b). We also conclude that Wilson's section 1983 claim does not flow from a governmental policy or custom--an essential allegation to a viable section 1983 action. Accordingly, we affirm the judgment of the trial court.

The essential facts are not in dispute. Waukesha county owns and operates Menomonee Park. Wilson was injured in Menomonee Park on March 8, 1987, when she tripped over a metal cable used to cordon off a hiking trail which is closed to the public during winter months. Park personnel had been using the cable--which was strung approximately nine inches above the ground between two posts positioned on either side of the entrance to the trail--since 1978. Over the years, park personnel used simple devices to alert park patrons to the presence of the low-slung cable. Workers tied rags to the cable to serve as warning "flags." Similarly, workers attached a small metal sign to the cable. The rags and the metal sign were far from permanent fixtures: vandals frequently removed the signs, and weather destroyed the rags. Park workers inspected and replaced these warning devices only sporadically during the winter months. No such warning devices were tied to the cable at the time of Wilson's accident.

Section 895.52, Stats., immunizes landowners from liability arising from injuries sustained by recreational users of their land. There are exceptions, however, to the statute's broad immunity for landowners who "maliciously" fail to warn recreational users of unsafe conditions on the premises. See generally sec. 895.52(3) through (6). Wilson claims that actions of Waukesha county park personnel in connection with the metal cable in Menomonee Park come within such an exception.

Section 895.52(4)(b), Stats., negates immunity for governmental bodies other than the state of Wisconsin from liability for:

injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employe or agent of a governmental body knew, which occurs on property designated by the governmental body for recreational activities.

Id. Wilson argues that county park employees acted maliciously within the meaning of this statute and thus the immunity exception should apply. She argues two reasons in support: (1) by installing the metal cable and affixing the cautionary rags and sign to it, the county knew a dangerous condition existed in the park; and (2) in failing to establish frequent and regular replacement procedures for the warning devices during the winter months, the county displayed blameworthy indifference to a hazard it knew existed.

We review summary judgment determinations de novo, independent of the trial court's decision. Acharya v. Carroll, 152 Wis.2d 330, 338, 448 N.W.2d 275, 279 (Ct.App.1989). Furthermore, construction of a statute and its application to a set of facts present a question of law--matters also reviewed by us without deference to the trial court's decision. L & W Constr. Co., Inc. v. Wisconsin DOR, 149 Wis.2d 684, 688-89, 439 N.W.2d 619, 620 (Ct.App.1989).

Wilson's argument presents a question of statutory construction. The primary source of statutory construction is the statute itself. White v. General Casualty Co., 118 Wis.2d 433, 437, 348 N.W.2d 614, 617 (Ct.App.1984). Neither the statute nor attendant case law, however, defines "malicious" within the meaning of sec. 895.52, Stats. Ordinarily, in the absence of statutory definition, the court can establish the meaning of a term by reference to its common usage as reported in a recognized dictionary. Village of Menomonee Falls v. Falls Rental World, 135 Wis.2d 393, 397, 400 N.W.2d 478, 480 (Ct.App.1986). But where the term is ambiguous, the court will refer to the scope, history, context, subject matter and object of the statute to discern legislative intent. Schinner v. Schinner, 143 Wis.2d 81, 89, 420 N.W.2d 381, 384 (Ct.App.1988). A statutory phrase or word is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses. Wisconsin Bankers Ass'n (Inc.) v. Mutual Sav. & Loan Ass'n, 96 Wis.2d 438, 450, 291 N.W.2d 869, 875 (1980).

We need look no further than Wilson's and Waukesha county's competing interpretations of the word "malicious" to find the two "senses" necessary for a word to meet the test for ambiguity. Wilson argues that "malicious" should be defined expansively to include not only the more egregious concept of ill will, but willful, wanton, and reckless disregard as well. Waukesha county maintains that malice in this context means only ill will and cites to portions of both Black's Law Dictionary and Wis J I--Civil 1707 in support. However, both of the county's sources also contain additional language that support Wilson's position.

Neither party, however, looks to the source with the most precedential muscle. The legislative drafting file for sec. 895.52, Stats., makes clear that in this context, "malicious" does not include mere willful behavior. "Wilful," observed one reviewer of a preliminary draft of sec. 895.52(6), "is not the test. Malicious is. Wilful is an almost meaningless term that means not much more than negligent." Legislative Reference Bureau Drafting File for 1983 S.B. 586, letter from Attorney John R. Zillmer to Sen. David Helbach (October 11, 1983) (concerning draft of bill in progress). Another reviewer observed of the same subsection that the statute should specifically exclude all reference to willfulness because " 'wilful' ... in effect guts the entire statute." Legislative Reference Bureau Drafting File for 1983 S.B. 586, letter from Theodore L. Priebe, A.A.G. to Jim Christianson, D.N.R. Bureau of Legal Services (October 17, 1983) (concerning draft of bill in progress).

While these observations were not primarily directed specifically at the subsection at issue in this case, the difference among subs. (3) through (6) is the type of landowner involved, not the standard by which exception from immunity is made. We will reject an interpretation which ascribes different meanings to the same word as it variously appears in a statute unless the context clearly requires such an approach. General Castings Corp. v. Winstead, 156 Wis.2d 752, 759-60, 457 N.W.2d 557, 561 (Ct.App.1990).

Here we find ample support in both the structure of sec. 895.52, Stats., and the legislative history of the statute that the legislature intended the word "malicious" to have uniform meaning throughout the statute, and that that meaning should not include conduct that is merely willful. The legislature intended that sec. 895.52 be liberally construed in favor of property owners to protect them from liability. Sec. 1, 1983 Wis.Act 418. Because an expansive definition of "malicious" would effectively undercut the broad immunity obviously intended by the legislature, we adopt as the definition of "malicious" in sec. 895.52 that portion of Wis J I--Civil 1707, Punitive Damages: Nonproducts Liability, which defines malicious acts as those that "are the result of hatred, ill will, a desire for revenge, or inflicted under circumstances where insult of injury is intended." We do not adopt that portion of the instruction which pertains to acts which are wanton, willful, and in reckless disregard of a claimant's rights.

Wilson argues that dicta in Wirth v. Ehly, 93 Wis.2d 433, 287 N.W.2d 140 (1980), suggests the standard ought to be willful or malicious. Id. at 446-47, 287 N.W.2d at 147. This argument too must fail not only in light of the reasons previously stated, but also because Wirth was decided under the predecessor to the current recreational use immunity statute. Section 895.52, Stats., is "intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 [the predecessor statute] ... if the decision is ... inconsistent with the provisions of this act." Sec. 1, 1983 Wis.Act 418. Because the provisions of the current recreational use immunity statute are inconsistent with an expansive reading...