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D.B. v. County of Green Lake

Court of Appeals of Wisconsin

March 2, 2016

D.B., A MINOR BY HIS GUARDIAN, TRISTA LEE RECORE, PLAINTIFF-RESPONDENT,
v.
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

         Submitted on Briefs January 21, 2016 

Page 132

         APPEAL from an order of the circuit court for Green Lake County: BERNARD BEN BULT, Judge. Cir. Ct. No. 2014CV65.

         On 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.

         On 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.

         On 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.

         Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          OPINION

Page 133

          REILLY, P.J.

          [368 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.[1] 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

Page 134

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.

         BACKGROUND

          [¶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 child abuse.

          [368 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[2] 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 ...


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