Kell v. Raemisch

SUNDBY, J.

Ellen Kell appeals from a summary judgment dismissing her negligence action against the Dane County Mental Health Center (Center), the Center's insurer, St. Paul Fire and Marine Insurance Company, and Prudencio Oyarbide, a clinical specialist at the Center. She seeks compensation for personal injuries she suffered when her boyfriend, Vincent Mott, shot and stabbed her. Mott had been recently released from the Center on Oyarbide's recommendation. Kell claims that Oyarbide and the Center negligently released Mott. The issue is whether Oyarbide is *756immune from liability under § 51.15(11), Stats.1 If he is not, the Center could be liable for the damages resulting from Oyarbide's negligence. See Arsand v. City of Franklin, 83 Wis. 2d 40, 45-50, 264 N.W.2d 579, 582-84 (1978) (master can be held liable for physical harm caused by servant).

Section 51.15(l)(a), STATS.,2 empowers a law enforcement officer or other person authorized to take a child into custody under ch. 48, STATS., to take an individual into custody if he or she believes that the individual is mentally ill, drug dependent or developmentally disabled and evidences dangerousness and mental illness. Section 51.15(11) provides immunity to any individual "acting in accordance with this section" in good faith. We conclude that Oyarbide was not an individual "acting" in accordance with this section.

On April 4, 1989, Kell's boyfriend, Vincent Mott, was arrested for assaulting Kell and the couple's two-month-old child. He was released on bond, conditioned that he not have violent contact with Kell. On May 3, 1989, Mott was again arrested for committing more violent acts against Kell. Once again, Mott was released on bond and ordered to have no contact with Kell; however this time, the court commissioner also *757ordered that Mott be held in jail to allow the Center to interview him. The commissioner ordered:

I'm going to restrict Mr. Mott's travel at least until 5:00 today, that he be held in the jail until that time or until interviewed by somebody from Dane County Mental Health [Center] to determine whether or not they can offer him some services that might assist him in keeping track of his court dates and also assistance in making sure he can follow the conditions of his bail and to see if a Chapter 51 proceeding might be in order.

(Emphasis added.)

Oyarbide concluded that although Mott was suffering from an "acute reaction to stress," he was not suffering from a "mental illness" as defined in §51.15(1), Stats. Moreover, Mott was mentally prepared to end his relationship with Kell. According to Oyarbide, Mott acknowledged that "it would be in everyone's best interest for him to leave... Kell[ ] alone -"Asa result, Mott was released. Approximately one month later, Mott assaulted and battered Kell, shooting and repeatedly stabbing her.

Kell alleges that Oyarbide was negligent in his evaluation, diagnosis, and release of Mott. The defendants moved for summary judgment, arguing that Oyarbide conducted an assessment of Mott pursuant to the "emergency detention" provisions of ch. 51, Stats., and therefore, is entitled to the "good faith" presumption of §51.15(11), Stats. The trial court granted defendants' motion. It concluded that Oyarbide "is an 'individual'... entitled to the 'good faith' presumption afforded in sec. 51.15(11), Stats., and that he acted in accordance with sec. 51.15, Stats." We disagree.

*758Whether Oyarbide was an "individual" entitled to the protections of § 51.15(11), Stats., is a question of law which we review de novo. See Board of Regents v. Wisconsin Personnel Comm'n, 103 Wis. 2d 545, 551, 309 N.W.2d 366, 369 (Ct. App. 1981) (questions of law, including the interpretation and application of a statute, are reviewable by this court de novo).

We conclude that § 51.15, Stats., does not apply to this case. Section 51.15 is titled "Emergency detention." Although the title of a statute is not part of the law, it may help in resolving statutory ambiguities. Pulsfus Poultry Farms, Inc. v. Town of Leeds, 149 Wis. 2d 797, 805-06, 440 N.W.2d 329, 333 (1989). All of the procedures under the statute are geared to the emergency detention of a person. Here, Mott was already in custody when he was interviewed by Oyarbide. According to § 51.15(2), after the law enforcement officer or other authorized person finds cause to believe that the individual he or she has taken into custody is mentally ill, drug dependent or developmentally disabled, and evidences dangerousness, "[t]he law enforcement officer shall transport the individual, or cause him or her to be transported for detention and for treatment if permitted under sub. (8) to any of the following facilities ...." (Emphasis added.)

Section 51.15(8), Stats., provides in part: "When an individual is detained under this section, the director and staff of the treatment facility may treat the individual during detention, if the individual consents." Thus, the treatment facility may treat the detained individual only during detention. The procedure to be followed after emergency detention is detailed in subsec. (5). The officer who has taken an individual into custody signs a statement of emergency *759detention which details why he or she believes that the conditions for emergency detention are satisfied.3 That statement must be filed with the court immediately after the individual is taken into custody. The filing of this statement has the same effect as the petition for commitment under § 51.20, Stats. Unless a hearing is held under §§ 51.20(7) or 55.06(ll)(b), STATS., the individual may not be detained for more than seventy-two hours, exclusive of Saturdays, Sundays, and holidays. Section 51.15(5).

In this case, Mott was not taken into custody; he was already in custody. If the Center concluded that Mott needed treatment, it would have filed a petition under § 51.20, STATS. That statute provides for a written petition to the court for examination alleging that the individual to be examined exhibits the same characteristics as a person subject to emergency detention under § 51.15, Stats. The court may detain the individual under subsec. (2) until a hearing is held to determine whether the person should be involuntarily committed for treatment.

We conclude that this case does not involve an emergency detention under § 51.15, STATS., and thus, the immunity granted by subsec. (11) does not apply to Oyarbide. We express no opinion whether Oyarbide *760may be immune from liability under another statute or under common-law decisions.

By the Court. — Judgment reversed and cause remanded.

Section 51.15(11), Stats., provides:

Any individual acting in accordance with this section is not liable for any actions taken in good faith. The good faith of the individual shall be presumed in any civil action. Any person who asserts that the individual acting in accordance with this section has not acted in good faith has the burden of proving that assertion by evidence that is clear, satisfactory and convincing.

Section 51.15(l)(a), STATS., provides in part:

A law enforcement officer or other person authorized to take a child into custody under ch. 48 may take an individual into custody if the officer or person has cause to believe that such individual is mentally ill, drug dependent or developmentally disabled_

Section 51.15(llm), Stats., provides:

Law enforcement agencies shall designate at least one officer authorized to take an individual into custody under this section who shall attend the in-service training on emergency detention and emergency protective placement procedures offered by a county department of community programs under s. 51.42 (3) (ar) 4. d., if the county department of community programs serving the law enforcement agency's jurisdiction offers an in-service training program.