Wirth v. Ehly, 77-470

• Decision Date: 15 January 1980
• Docket Number: No. 77-470,77-470
• Citation: 287 N.W.2d 140,93 Wis.2d 433
• Parties: Donald WIRTH, by his guardian ad litem, Peter Weisenberger, Gordon Wirth and Susan Wirth, Appellants, v. Alta E. EHLY, Clifford Brynildson, Harry Stroebe, Jr., Gordon Priegel, Herbert Wilson, Jr., and Edward Hillebrand, Respondents.
• Court: Wisconsin Supreme Court

Page 140

287 N.W.2d 140

93 Wis.2d 433

Donald WIRTH, by his guardian ad litem, Peter Weisenberger, Gordon Wirth and Susan Wirth, Appellants, v. Alta E. EHLY, Clifford Brynildson, Harry Stroebe, Jr., Gordon Priegel, Herbert Wilson, Jr., and Edward

Hillebrand, Respondents.

No. 77-470.

Supreme Court of Wisconsin.

Argued Dec. 4, 1979.

Decided Jan. 15, 1980.

Bradley D. Armstrong and Axley, Brynelson, Herrick & Gehl, Madison, on brief, and Peter G. Weisenberger, argued, Madison, for appellants.

Charles R. Larsen (argued), Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondents.

DAY, Justice.

The judgment dismissed with prejudice, for failure to state a claim, the complaint of the minor plaintiff and his parents alleging negligence causing personal injuries when the "trail bike" on which he was riding struck a cable stretched across a roadway used by the public on recreational land owned by the state and operated by the Department of Natural Resources (DNR). The defendants, employees of DNR, moved to dismiss on the ground that the complaint as framed failed to state a cause of action, citing the provisions of sec. 29.68, Stats. (1975). ¹ The trial court granted the motion. We agree and affirm.

The principal question on this appeal is: Are the employee defendants named herein "owners" as that term is used in sec. 29.68(5), Stats. (1975)?

Other questions raised by the parties will be discussed in the balance of this opinion.

On December 14, 1976, the plaintiffs, Donald Wirth, a minor, by his guardian ad litem, and his parents, Gordon and Susan Wirth, commenced this action against the defendants, employees of the DNR, for personal injuries sustained by Donald Wirth.

The complaint alleges that on April 29, 1976, Donald Wirth was riding his "trail bike" on a service road which encircles Salmo Pond, an area of land and water, owned by the State of Wisconsin and administered by DNR. The pond is a part of an area known as the Black Earth Creek Fishery Area in Dane County. It is open to the public for fishing and recreational purposes.

He struck a metal cable which had been extended across the road. The road encircling Salmo Pond was used prior to the accident by employees of DNR and the public for various purposes including the operation of automobiles, trucks, and recreational vehicles.

The cable had been placed across the road a short time prior to the accident and was not present on prior occasions when Donald Wirth had ridden his trail bike on the road.

The cable was not marked or barricaded. As a result of the accident, Donald Wirth suffered serious head and facial injuries.

The defendants were all employees or agents of DNR at the time of the accident. Neither the State nor DNR was joined as a defendant. The defendants were sued in their individual capacities. The complaint alleged that the defendants negligently installed a hazardous, non-natural obstruction across the service road without installing or maintaining warning signs, and that this condition constituted a "trap."

The defendants, before answer, moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The motion was granted and the complaint was dismissed with prejudice.

Section 29.68, Stats., (1975) provides a special limitation on the duty of care owed by owners, lessees and occupants of land which is opened for the recreational use of others. The word "owner" is given a special meaning. The plaintiffs argue that the state employees do not come within the statutory definition of owner in sec. 29.68, Stats., when sued in their individual capacities. They argue that these employees therefore would be liable for the negligent performance of a purely ministerial duty. Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977).

The plaintiffs contend that the language in sec. 29.68(5)(b), ² Stats., including within the statutory definition of owner state employees ". . . for purposes of liability under s. 270.58 . . . ." refers only to "the non-substantive issue of liability of the State for satisfying judgments against state employees." Under this view, the reference to sec. 270.58, Stats., (now 895.46) ³ in sec. 29.68, Stats., merely eliminates the requirement that the State of Wisconsin satisfy any judgment obtained against state employees for injuries occurring on state owned land.

Sec. 270.58, Stats. provided that when a public officer or employee was sued in his official capacity for acts occurring within the scope of his employment, any judgment for damages and costs was to be paid by the State or political subdivision of which the defendant was an officer or employee.

In Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974), it was held that sec. 270.58, Stats. was not a substantive statute creating a cause of action against employees for any act or failure to act within the scope of their employment.

"Any liability of state employees is governed by the common law as adopted in this state by the supreme court. If the defendants are liable under the applicable doctrines, then sec. 270.58 provides that the state will pay the judgment if the action or inaction giving rise to the liability was done in good faith within the scope of state employment. Sec. 270.58 does not become applicable until after a judgment of liability is entered." Id. at 38, 214 N.W.2d at 435; Accord, Chart v. Dvorak, 57 Wis.2d 92, 203 N.W.2d 673 (1973).

The plaintiffs admit that if the interpretation of these two statutory provisions which they propose is adopted, the state employees will lose all benefit of the protection from monetary loss which sec. 270.58, Stats. seeks to provide. The Attorney General argues on behalf of the defendants that it would be absurd to adopt the plaintiffs' proposed construction of the statute because the legislature could not have intended to remove the protection of sec. 270.58, Stats. by amending sec. 29.68, Stats. This is especially so, it is argued, because the amendment to sec. 29.68, Stats. was designed to extend protection rather than withdraw it.

Ambiguity in a statute exists when ". . . a statute is capable of being understood by reasonably well-informed persons in two or more different senses." Northern States P. Co. v. Hunter Bd. of Supv., 57 Wis.2d 118, 125, 203 N.W.2d 878, 881 (1973) Quoting from Kindy v. Hayes, 44 Wis.2d 301, 308, 171 N.W.2d 324 (1969); See, also, Comment, Statutory Construction-Legislative Intent-Use of Extrinsic Aids In Wisconsin. 1964 Wis.L.Rev., 660. Since the reference to sec. 270.58, Stats. in sec. 29.68, Stats. is capable of more than one reasonable construction, this Court may resort to extrinsic aids in determining legislative intent.

Sec. 29.68 was originally adopted in 1963 (Ch. 89, Laws of 1963). It specifically limited the liability of private landowners who opened their lands to the public. In Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16 (1973), it was held that the statute as it then existed did not include public owners of land. "The statute must be strictly construed so as to limit its effect to private landowners." Id. at 559, 213 N.W.2d at 19. Accord, Cords v. Ehly, 62 Wis.2d at 35, 214 N.W.2d 432.

In 1975 the legislature changed sec. 29.68, Stats. Assembly Bill 125 was introduced on January 21, 1975 and as originally drafted the bill contained no reference to state employees. "Owner" was defined as "any private citizen, a municipality under sec. 144.01(12), the State or the United States Government." The bill was later amended to include under the definition of owner the language "and for the purposes of liability under sec. 270.58 any employee or agent of the foregoing . . ." Legislative Reference Bureau File on Assembly Bill 125 (1975).

The Fiscal Note accompanying this Bill stated that the amendment proposed to apply the protection afforded by the provisions of sec. 29.68, Stats. to recreational lands owned by the State and local governments. The anticipated effect would be to reduce the potential liability of these governmental units caused by employee negligence.

It seems clear that the legislature did not intend to effect any change in the protective provisions of sec. 270.58, Stats. The intent of the amendment to sec. 29.68, Stats. was to provide that in situations where previously a public officer or employee would be held liable for acts occurring within the scope of his employment on public land and for which the State would have been liable for payment under sec. 270.58, Stats., the employee now will be deemed an "owner" for the purpose of sec. 29.68, Stats.

To hold otherwise would operate to withdraw the protection of sec. 270.58, Stats. from public employees precisely in the same circumstances that the legislature has created special protection for landowners both public and private. The protection of the public employee, as well as the state itself, is further supported as being consistent with general tort principles. Restatement (Second) of Torts, sec. 384 (1965) provides:

"s 384. Liability Of Persons Creating Artificial Conditions On Land On Behalf Of Possessor For Physical Harm Caused While Work Remains In Their Charge. One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge."

We conclude the employees named as defendants are "owners" as that term is defined in the statute.

The plaintiffs raise other issues which were not submitted to the trial court. It is the often repeated rule in this State that issues not raised or considered in the trial court will not be considered for the first time on appeal. Binder v. Madison, 72 Wis.2d 613, 241...