Winslow v. Brown

• Decision Date: 25 June 1985
• Docket Number: No. 84-209,84-209
• Citation: 371 N.W.2d 417,125 Wis.2d 327
• Parties: David L. WINSLOW and Wisconsin Physicians Service, Plaintiffs-Appellants, v. Brian A. BROWN, Dennis D. Coldren, Michael G. Lee, and Home Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 417

371 N.W.2d 417

125 Wis.2d 327

David L. WINSLOW and Wisconsin Physicians Service Plaintiffs-Appellants, v. Brian A. BROWN, Dennis D. Coldren, Michael G. Lee, and Home Mutual Insurance Company, Defendants-Respondents.

No. 84-209.

Court of Appeals of Wisconsin.

Submitted on briefs May 20, 1985.

Opinion Released June 25, 1985.

Opinion Filed June 25, 1985.

Review Denied.

Arthur, Miller, Grapsas, Crowe and Erlandson, and Gary A. Miller, Madison, for plaintiffs-appellants.

Curran, Curran & Hollenbeck, S.C., William T. Curran and John R. Orton, Mauston, for defendant-respondent Brian A. Brown.

Joanis, Davis, Ablan & Joanis and Marvin H. Davis, La Crosse, for defendant-respondent Dennis D. Coldren.

Johns, Flaherty & Gillette, S.C., and Brent P. Smith, La Crosse, for defendants-respondents Michael G. Lee and Home Mutual Ins. Co.

Before CANE, P.J., and DEAN and LaROCQUE, JJ.

CANE, Presiding Judge.

David L. Winslow and Wisconsin Physicians Service (plaintiffs) appeal a summary judgment dismissing their personal injury claims against Brian A. Brown, Dennis D. Coldren, Michael G. Lee, and Home Mutual Insurance Company (defendants). The plaintiffs seek damages for injuries caused when the automobile in which the defendants were passengers struck Winslow. Winslow was riding a bicycle on a trail exclusively reserved for bicycle use. The plaintiffs allege that the defendants: (1) conspired with the driver of the automobile to operate on the bicycle trail; (2) aided and abetted the driver's tortious conduct; and (3) negligently failed to maintain a lookout for bicyclists. Because the parties' affidavits ¹ do not allege or reasonably infer that the defendants encouraged, advised or assisted the driver of the automobile to operate on the bicycle trail, summary judgment on the conspiracy and aiding and abetting claims was appropriate. Because the affidavits do not allege or reasonably infer that the defendants were actively negligent, summary judgment on the negligence claim also was appropriate. We therefore affirm the judgment.

CIVIL CONSPIRACY

A civil conspiracy is the combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish by unlawful means a purpose not in itself unlawful. Onderdonk v. Lamb, 79 Wis.2d 241, 246, 255 N.W.2d 507, 509 (1977). The parties agree that operating an automobile on a bicycle trail constitutes an unlawful purpose. The defendants, however, contend that they did not encourage, advise or assist the driver of the automobile to operate on the bicycle trail and, therefore, they did not act in concert with the driver. The plaintiffs argue that the defendants acquiesced, submitted or tacitly assented to the illegal plan by knowingly riding in the automobile on the bicycle trail. The plaintiffs also argue that the defendants encouraged the illegal plan by agreeing to be passengers during the illegal trip.

We must determine the nature of participation in an illegal plan required to impose joint liability for acts done in furtherance of the plan. The parties' affidavits raise only an inference that the defendants knowingly agreed to be passengers in the automobile while operated on the bicycle trail. The affidavits do not allege or reasonably infer that the defendants advised or assisted the driver, or that they expressly encouraged him. Although their passenger status did not directly further the act of driving on the bicycle trail, we must determine whether their alleged willing accompaniment on the trip constituted concerted activity. We also must determine whether their willing accompaniment constituted actionable encouragement of the plan.

The mere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate, is not enough to make a person a party to a conspiracy. American Security Benevolent Association, Inc. v. District Court, 259 Iowa 983, 147 N.W.2d 55, 63 (1966). There must be intentional participation in the transaction with a view to the furtherance of the common design. Id; see also 15A C.J.S. Conspiracy § 2 at 602-03 (1967). Cooperation toward attainment of the illegal objective is necessary. Augustine v. Anti-defamation League of B'nai B'rith, 75 Wis.2d 207, 216, 249 N.W.2d 547, 552 (1977). Here, the alleged willingness of the defendants to accompany the driver of the automobile on the illegal trip placed them at the scene of the accident, but it did not assist the execution of the plan. Their acquiescence by itself is insufficient to make them members of a conspiracy.

Our conclusion is supported by the rule that generally no duty exists to protect others from hazardous situations. DeBauche v. Knott, 69 Wis.2d 119, 122-23, 230 N.W.2d 158, 160-61 (1975). Only when a special relationship exists between the parties does a duty to protect arise. Lloyd v. S.S. Kresge Co., 85 Wis.2d 296, 303, 270 N.W.2d 423, 426 (Ct.App.1978). Because there is no general duty to intervene, mere presence at the commission of a tort, or the failure to object, is insufficient to constitute concerted action. See W. Prosser, Handbook of the Law of Torts § 46 at 292 (West 1971). No special relationship exists between these parties and, therefore, liability cannot be predicated on the alleged failure to interfere with the illegal plan.

No facts support the plaintiffs' allegation that the defendants intentionally encouraged operation of the automobile on the bicycle path. Encouragement or incitement constitute acts furthering an illegal plan. Hilmes v. Stroebel, 59 Wis. 74, 76, 17 N.W. 539, 539-40 (1883). The plaintiffs state in their affidavit only that the defendants knew about the illegal plan before they became passengers in the automobile. This allegation does not raise a reasonable inference that the defendants intentionally encouraged the illegal activity.

We acknowledge that a defendant's presence at the scene of a crime may support an inference of involvement in a conspiracy. See State v. Charbarneau, 82 Wis.2d 644, 656, 264 N.W.2d 227, 233 (1978). In Charbarneau, however, the evidence indicated more than mere presence. It indicated interested cooperation, stimulation, and instigation. Id. Here, the plaintiffs base their claim of encouragement only on the willingness of the defendants to accompany the driver on the illegal trip. Mere presence and ambivalent conduct at the scene of the illegal conduct is insufficient to support liability. See id.

Finally, even if accompanying a driver on an illegal trip constitutes encouragement, liability should not be imposed as a matter of law solely on that basis. Whether liability should be imposed in a given situation is a question of law. See Walker v. Bignell, 100 Wis.2d 256, 265, 301 N.W.2d 447, 453 (1981). One ground for denying recovery is that permitting recovery would enter a field that has no sensible or just stopping point. Id. Holding a passenger liable for the illegal acts of the driver merely because the passenger willingly accompanied the driver creates a basis of liability that knows no sensible stopping point.

Our conclusion is supported by the distinction consistently recognized by our supreme court between active and passive negligence in automobile accidents. Only active negligence constitutes a cause of an accident for which liability may be imposed on a passenger. Delmore v. American Family Mutual Insurance Co., 118 Wis.2d 510, 518, 348 N.W.2d 151, 155 (1984). This limitation is based on the fact that a passenger is not held to the same degree of care with respect to lookout as a driver. Id. at 519-20, 348 N.W.2d at 156. The same principle applies to cases where a passenger is accused of failing to discourage a trip that allegedly creates a foreseeable risk of harm. ² Liability is limited to active negligence, such as negligent entrustment. See Bankert v. Threshermen's Mutual Insurance Co., 110 Wis.2d 469, 476, 329 N.W.2d 150, 153 (1983). Negligent entrustment requires that the defendant have the right to control an automobile and that he then negligently permits another to control it. Id. at 477-78, 329 N.W.2d at 153-54. The plaintiffs do not allege that these defendants had the right to control the automobile involved in this case.

We conclude that the circuit court properly granted summary judgment dismissing the conspiracy claim. Summary judgment is appropriate when there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats. Because the parties' affidavits do not allege or reasonably infer that the defendants actively encouraged, advised, or assisted the illegal plan to drive an automobile on a bicycle trail, the defendants were entitled to judgment as a matter of law.

AIDING AND ABETTING

The parties dispute whether Wisconsin recognizes liability for aiding and abetting a negligent act. The plaintiffs contend that Fredrickson v. Kabat, 266 Wis. 442, 446-47, 63 N.W.2d 756, 758-59 (1954), expressly recognizes the concept of aiding and abetting a tort. The defendants contend that Fredrickson is limited to cases involving intentional torts. Although we conclude that a person may aid and abet a negligent tort, the elements of such liability need to be clarified before we can apply them to this case.

In Fredrickson, our supreme court stated that a bystander at the commission of an assault and battery was not a participant merely because he did not interfere. Id. at 446, 63 N.W.2d at 759. The court further stated, however, that presence at the commission of an assault and battery, without disapproving or opposing it, is evidence from which a jury may infer that a person assented or lent his countenance and approval to the assault and thereby aided and abetted it. Id. Although Fredrickson involved an intentional tort, the scope of the aiding and abetting theory is not limited to such torts. Aiding and abetting has been applied in criminal cases involving negligent conduct....