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06/13/83 DOROTHY ENRIGHT v. BOARD SCHOOL DIRECTORS

June 13, 1983

DOROTHY ENRIGHT, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF HEATH ENRIGHT, HEATH ENRIGHT, RENEE ENRIGHT, JOSEPH ENRIGHT, AND JOSEPH ENRIGHT, JR., PLAINTIFFS-APPELLANTS,
v.
BOARD OF SCHOOL DIRECTORS OF THE CITY OF MILWAUKEE; DIANE CLARK, AND WAUSAU INSURANCE COMPANIES, DEFENDANTS-RESPONDENTS, PEGGY KENNER, PRESIDENT; DR. LEE F. MCCURRIN, SUPERINTENDENT, AND MR. JOHN J. PETERBURS, SECRETARY BUSINESS MANAGER, DEFENDANTS



Appeal from an order of the Circuit Court for Milwaukee County: Laurence C. Gram, Jr., Judge.

Petition to Review Granted.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Decker

Joseph and Dorothy Enright and their children (Enrights) appeal from an order dismissing their complaint against the Board of School Directors of the City of Milwaukee (board), Diane Clark (Clark), and the Wausau Insurance Companies (Wausau). The complaint alleged a claim in negligence as well as a civil rights denial of due process claim under 42 USC § 1983 for the death of the Enrights' son, Heath. We disagree with the trial court's determination that public policy considerations here should be applied before trial to preclude the claim in negligence, and we reverse and remand with directions to the trial court to reinstate that claim. We agree, however, with the trial court that due process was not violated within the meaning of 42 USC § 1983 and affirm the dismissal of that count.

On September 14, 1979, Virginia Burkhardt, who lives across the street from the Hampton Elementary School, noticed a man watching children play at recess. She phoned the principal's office and told Diane Clark, the secretary on duty, about the man. Clark said that she would inform the principal. Clark set the message aside and apparently forgot to tell the principal.

Heath Enright, a second-grader at the school, was strangled during the lunch hour by Thomas White, who apparently was the man observed seen lurking near the school. The Enrights brought a wrongful death action under state law and also claimed a civil rights violation under 42 USC § 1983. The trial court granted the defendants' motions to dismiss.

Regarding the common law negligence claim, the trial court considered whether to apply public policy considerations to liability in connection with the motion to dismiss or at the end of trial and decided to apply them at the earlier stage. We believe that the trial court should have adopted the preferred procedure of deference to post trial application and accordingly we reverse on this issue.

Coffey v. City of Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132, 140 (1976), relied upon by the trial court, sets forth six reasons why recovery may be denied in a negligence claim on public policy grounds even where the chain of causation is direct and complete:

(1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden on the negligent tort-feasor; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point. [Citations omitted.]

While it is true that the supreme court has decided on demurrer that public policy precludes liability, Morgan v. Pennsylvania General Insurance Co., 87 Wis. 2d 723, 737-38, 275 N.W.2d 660, 667 (1979), nonetheless, Morgan concludes that it is generally better procedure to submit the negligence and cause-in-fact issues to the jury before addressing the public policy issue. Id. at 738, 275 N.W.2d at 667. This is especially true where the factual connections are particularly attenuated. Id. *fn1 Such is the case here.

While it is alleged that Clark failed to notify the principal of the message received, the circumstances surrounding the alleged failure are by no means clear from the record before the trial court or this court. We are convinced that a full disclosure of the facts would facilitate the application of the six public policy considerations.

Because the public policy question is one of law, Morgan, supra at 737, 275 N.W.2d at 667, we need not accord deference to the trial court's determination of the question. Accordingly, we reverse and remand on this issue.

The trial court also dismissed the Enrights' claim under 42 USC § 1983 on the grounds that "the actions of Diane Clark do not constitute a violation of due process and further that the actions of Diane Clark were not done under color of state law." The trial court founded its position upon Bonner v. Coughlin, 545 F.2d 565, 567 (7th Cir 1976), cert. denied, 435 U.S. 932 (1978), where it was stated that "f Section 1983 is to be extended to cover claims based on mere negligence, the Supreme Court should lead the way." We believe that, while the loss suffered by the Enrights was grievous and tragic, the existence of a state means of redress and the absence of a due process violation in the failure to act by Diane Clark eliminate a § 1983 claim.

The first inquiry in any ยง 1983 suit is whether the plaintiff has been deprived of a right secured by the Constitution and laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979). As the Enrights point out in their brief, the due process clause of the fourteenth amendment delineates three specific guarantees: life, liberty and property. However, the fourteenth amendment protects one "only from deprivation by the 'State . . . of life . . . without due process of law.'" [Emphasis omitted.] Martinez v. California, 444 U.S. 277, 284, reh. ...


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