D.B., A MINOR BY HIS GUARDIAN, TRISTA LEE RECORE, PLAINTIFF-RESPONDENT,
COUNTY OF GREEN LAKE, COUNTY OF GREEN LAKE SOCIAL SERVICES AND WISCONSIN COUNTY MUTUAL INSURANCE COMPANY, DEFENDANTS-CO-APPELLANTS, CITY OF BERLIN AND CITY OF BERLIN POLICE DEPARTMENT, DEFENDANTS-APPELLANTS
on Briefs January 21, 2016
from an order of the circuit court for Green Lake County:
BERNARD BEN BULT, Judge. Cir. Ct. No. 2014CV65.
behalf of the defendants-appellants, the cause was submitted
on the briefs of Michael J. Cieslewicz and Casey M. Kaiser of
Kasdorf, Lewis & Swietlik, S.C., Milwaukee.
behalf of the defendants-co-appellants, the cause was
submitted on the briefs of Martin J. De Vries of Sager &
Colwin Law Offices, S.C., Fond du Lac.
behalf of the plaintiff-respondent, the cause was submitted
on the brief of Michael Lim and Emily Z. Dunham of Reff,
Baivier, Bermingham & Lim, S.C., Oshkosh.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Wis.2d 287] [¶1] This case addresses
governmental immunity. The County of Green Lake, the County
of Green Lake Social Services, and Wisconsin County Mutual
Insurance Company (collectively, the County), along with the
City of Berlin and the City of Berlin Police Department
(collectively, the Police Department) appeal the trial
court's denial of their motions for summary judgment,
which sought immunity for any negligence on their
part. D.B., by his mother, brought suit
against the County and the Police Department alleging that
they were both negligent in their investigation of sexual
assault allegations in 2011, which resulted in the continued
sexual assault of D.B. D.B.'s mother claims that her half
brother was a danger to D.B. and asserts that the County and
the Police Department should have known he was a danger based
on the allegations D.B. made, although D.B.'s mother
admits that no one
actually knew in 2011 that her half brother was a danger.
[¶2] The trial court determined that the
" known danger" exception precluded granting
immunity to the County and the Police Department. We disagree
for two reasons: (1) the scope and breadth of an
investigation into allegations of child abuse is a
discretionary [368 Wis.2d 288] act rather than a ministerial
act and (2) D.B. admits that no one actually knew D.B.'s
uncle was dangerous in 2011 and therefore no " known
danger" was present as an exception to immunity. We
reverse and remand for a grant of judgment to the defendants
on all of plaintiff's claims.
[¶3] On February 24, 2011, the principal of
D.B.'s elementary school in Berlin notified Police School
Liaison Officer Doug Christensen that first-grader D.B. had
attempted to kiss and " dry hump" one of his fellow
classmates. The principal further relayed that, when asked,
D.B. told him that his Uncle Rob, had " told him about
humping" and had showed him pictures of naked people on
his cell phone.
[¶4] Christensen referred the allegations to
the County's social services department, which "
screened" the allegations per their department rules.
Department standards require a screening to be completed
within twenty-four hours of a report of child abuse being
made. See also Wis. Stat. § 48.981(3)(c)(1)(a).
The department screened the report the same day it was
received. The screening investigation revealed that the uncle
not only showed D.B. " pictures of adults humping"
but also allegedly " touched [D.B.'s] privates while
at Grandma or Aunt C[.]'s home." The department
concluded that the uncle was not a " caregiver" as
defined in § 48.981(1)(am) and referred the abuse
allegations (per § § 48.02(1)(b)-(f) and
48.981(3)(a)(3) to law enforcement for investigation. The
department followed its standards by making the screening
decision within twenty-four hours of receipt of the report of
Wis.2d 289] [¶5] Christensen thereafter
interviewed D.B. who said that his Uncle Rob showed him
" pictures of people having sex" on his cell phone
and that on various occasions his uncle " punched"
D.B.'s genitals over his clothing when he was mad. D.B.
did not disclose any other inappropriate touching.
Christensen then spoke to D.B.'s mother, who told
Christensen that Uncle Rob, her half brother, had babysat
D.B. in the past, but she was unaware that he had shown D.B.
any inappropriate pictures.
[¶6] Christensen interviewed Uncle Rob after
reading him his Miranda rights. The uncle denied
all allegations, saying that he did not own a cell phone
during the time D.B. said the pictures were shown and that he
never inappropriately touched D.B. The uncle also suggested
that D.B. learned about humping from his parents, as the
uncle had observed D.B.'s parents dry hump each other in
the kitchen while D.B. was present.
[¶7] Christensen called D.B.'s mother a
second time to follow up on what the uncle had said.
D.B.'s mother said she was not sure if Uncle Rob had a
cell phone during the time in question and said that she
never saw her half brother have any inappropriate contact
with D.B. She also stated that she and her husband never
displayed any sexual behavior in front of D.B. Christensen
told D.B.'s mother that, based on his investigation, he
would not be referring ...