Cords v. Anderson

CONNOR T. HANSEN, J.

(dissenting). Because I believe the majority errs on three of the four questions presented, I respectfully dissent.

MINISTERIAL DUTY

The opinion of the majority departs substantially from this court’s previous understanding of the individual tort liability of public officers. As the court recognizes, in negligence actions against individual officers, the rule is immunity, the exception, liability.1 In finding the defendant Anderson liable, the court greatly enlarges the exception which holds an officer liable for the negligent performance of purely “ministerial” duties.

The majority correctly states the rule that:

“. . . A public officer’s duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.” Lister v. Board of Regents, 72 Wis.2d 282, 801, 240 N.W.2d 610 (1976).

The majority then applies this rule to the following facts:

“. . . Anderson knew the terrain at the glen was dangerous particularly at night; he was in a position as park manager to do something about it; he failed to do anything about it. . .

*556From this the majority somehow arrives at the conclusion that Anderson has breached a ministerial duty. I am unable to comprehend this reasoning.

A ministerial duty involves “. . . the mere performance of a prescribed task . . . .” Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). The duty must be “‘positively imposed by law;’” the time, manner and conditions of its performance must be “ ‘specifically designated’ ”; and the duty of performance must not be dependent upon the officer’s judgment or discretion. Meyer v. Carman, supra, at 332. The duty must not involve “. . . the exercise of the officer’s judgment upon the propriety of the act, . . .” Stevens v. North States Motor, Inc., 161 Minn. 345, 348, 201 N.W. 435 (1925).

Applying this exception in a previous case, this court flatly held that the accommodation of competing interests inherent in decisions regarding the safety of public premises is discretionary. In Meyer v. Carman, supra, this court rejected the argument that a school board’s statutory obligation to maintain school grounds in a “safe” condition was ministerial. The court said:

“At first blush it might appear that the duty to keep the school grounds ‘safe’ is ministerial in character, but it is apparent on closer analysis that a great many circumstances may need to be considered in deciding what action is necessary to do so, and such decisions involve the exercise of judgment or discretion rather than the mere performance of a prescribed task . . . .” Meyer v. Carman, supra, 331, 332.

The state and its employees must exercise the same judgment in deciding what steps shall be taken to warn or protect park visitors against dangerous natural conditions. As heretofore conceived by this court, therefore, and as expressed in Meyer, supra, the “ministerial duty” exception would not have embraced the alleged omissions of the defendant Anderson.

*557To avoid this result, the majority has apparently fashioned a new and expanded concept of ministerial duties. The court’s reasoning appears to he that a duty ordinarily discretionary in nature may become ministerial under certain circumstances. The majority thus abandons the holding of prior cases that discretionary and ministerial functions are entirely different, and recognizes, apparently as does Prosser, that the difference is essential one of degree. Prosser, Law of Torts (4th ed. 1971) (horn-book series), 987, 990, sec. 132. The difference in degree required to distinguish a discretionary duty from a ministerial duty is apparently to be determined by the then majority of this court.

The new approach works a second and perhaps more ominous change. For liability to arise, the duty must be “ ‘imposed by law,’ ” and the time, manner and conditions of its performance must be “ ‘specifically designated.’ ” Meyer, supra, 332. This has always been understood to require an express and specific mandate, whether embodied in statute, regulation, a contract, or the instructions of an employee’s superiors.

Now it appears that ministerial duties may be inferred from the inherent nature of an employee’s position, or perhaps from the common-law duties of the state as a landowner. Adherence to instructions and careful performance of assigned duties are no longer enough. The public employee must now discern and fulfill duties inherent in his post, without an objective referent and, apparently, even when his superiors have adopted contrary policies.

There may well be some instances when a subordinate public employee has a duty to warn his superiors of a danger. Such instances could be those where a subordinate public employee learns of a great hazard and where the hazard is not readily apparent to those who enter the land and where the hazard is unknown to his *558superiors and those in a position to warn of the danger and take precautions against it. Under these circumstances, it might be said the employee has an absolute and inherent duty to advise his superiors of the danger. But the opinion of the majority does not limit the employee’s duty to such cases, and this case is certainly not one of them.

The court offers no indication that the obviousness of the hazard or prior knowledge on the part of higher officials will relieve an employee of responsibility. Indeed there is nothing to mark the outer bounds of the potential liability thus unleashed. Nevertheless, I believe some such limitation is inherent in the concept of ministerial duties, and that even as reformulated by the majority, the concept can have no application to this defendant.

I believe the majority mistakes both the scope of Anderson’s authority and the nature of the hazard involved. The majority holds that Anderson breached a duty “to either place warning signs or advise superiors of the conditions.” They acknowledge, however, that Anderson was without power to erect warning signs or to close trails without his superiors’ approval. His alleged negligence must lie, therefore, in his failure to “advise superiors of the conditions.”

The majority says “[i]t was his job to make recommendations for public safety at the glen.” Anderson’s testimony on this point was inconsistent. Stanley Welsh, Administrator of the Division of Forestry and Recreation at the time of the injuries, testified that a park manager had no particular responsibility to report hazardous and unsafe conditions to his superiors.

Even if Anderson had such a duty, it did not, oblige him to remind his superiors of conditions with which they were already familiar. Welsh was two levels above Anderson in the supervision of the Glen. Welsh had not *559been on the upper trail, but he was familiar with the Glen and its terrain. Directly below Welsh, in staff capacities, were Alta Ehly, Director of the Bureau of Parks and Recreation, and Lowell Hansen, Assistant Bureau Director, both of whom were familiar with the Glen. Although Ehly had not been to the particular site of the accidents, Hansen had been there many times.

Chief parks naturalist, George Knudsen, who was intimately familiar with the Glen’s topography, had reported in 1969, that slippery needles created a hazard along sections of the upper trail. He said that his report had been sent to Anderson’s immediate superior and to Hansen. Under these circumstances, there would have been no purpose in Anderson reminding his superiors that the trails were but a step away from a dangerous fall.

Moreover, the hazard was patently clear to park visitors. Anderson did not come upon rattlesnakes in the underbrush or quicksand in the streambed or any other lurking danger which none of his superiors knew about. He encountered the manifest danger which is inescapably clear to every hiker along the path, which was well-known to his superiors and left in its present condition by deliberate and calculated decision of them to maintain the Glen in its natural condition.

A possessor of land has no duty to warn of dangers which are perfectly obvious to users or which can reasonably be expected to be understood and appreciated. Scheeler v. Bahr, 41 Wis.2d 473, 480, 164 N.W.2d 310 (1969); Prosser, supra, 394, sec. 61. In Scheeler v. Bahr, supra, 478, the court quoted with approval from the Restatement, 2 Torts 2d, 203, sec. 339, Comment j:

“ ‘There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.’ ”

*5602 Harper and James, Law of Torts, 1489, 1490, sec. 27.13, offers as an example of obvious dangers, for which no warning need be given, the “stones and slopes in a New England field.” The perils of the cliff top paths in the Glen were far more evident. Any hiker along the upper path would appreciate the danger of falling. The plaintiffs in the instant case were particularly sensible of the risk.

As the group hiked in along the gorge trail during the day, Dean Schraufnagel had explained to them the geological characteristics of the sheer cliff walls. Later, Norina Boyle had slipped partway down the western slope of the gorge, catching herself on a tree, and had related the experience to the group. Before sunset, Jane Cords and Norina Boyle had looked over the cliff into the gorge and Jane Cords had said “Can you imagine falling?” or “What if you fell from up here?” Both girls noticed how close the trail came to the cliff, and Norina Boyle was aware that if she walked the wrong way, she was likely to go over the edge. This evidence shows that plaintiffs not only had reason to appreciate the danger, but that they did appreciate it.

The opinion of the court seems to harbor the notion, advanced by the plaintiffs, that the particular topographical configuration at the point of Norina Boyle’s fall constituted a “hidden trail hazard” or an “ominous human trap.” At the point of the fall, the trail passes immediately along what was described as a “chute” or an “undercut” dropping sharply to the edge of the gorge. In the darkness, Norina Boyle apparently slipped or stepped off the trail, down this chute and over the precipice. By day, the slope of the chute is plainly visible from the adjacent path. Jerry Rousseau, a member of the group, in describing this point, said “[t] here’s a trail along the side here . . . [T]he trail is right next to the edge [of the gorge].”

*561Nothing distinguishes this “undercut” from other formations along the clifftop trail. Parfrey’s Glen is a setting of unique and irregular geological phenomena, and the plaintiffs knew it. That is why it is preserved. The undercut is not unusually sinister or trap-like or noteworthy. Further, there is no indication that this formation had ever attracted the attention of Anderson, or that the hazard here was any greater than at other places where the path follows the rim of the gorge.

Rather, it was precisely the type of hazard any visitor would anticipate along the trail, the type of hazard of which the plaintiffs were fully conscious. There is no duty to warn of such dangers.

I would reverse the judgment of the trial court on this issue.

RESCUE DOCTRINE

The trial court found Jane Cords 40 percent negligent and Sue Henry 60 percent negligent in attempting the descent during which they fell. The majority of this court now would fashion a “rescue rule” adaptable to the Wisconsin comparative negligence doctrine.2 This is accomplished by first referring to authorities which recognize the contributory negligence doctrine. These authorities hold that one is not guilty of contributory negligence in exposing himself to danger of a rescue unless the intervention was performed under circumstances which would make it rash or reckless or wanton in the judgment of the ordinarily prudent person.

The majority accomplishes the transition by simply changing the words “rash or reckless or wanton” to *562“not unreasonable or unreasonably carried out.” They then conclude the trial judge erred in not applying the rescue rule, and reverses and remands as to this issue.

I do not believe the integration of the rescue rule in the Wisconsin comparative negligence doctrine is that simple nor do I believe it is applicable to the facets of this case. It also appears the majority is of the opinion that the trial court “confused” the emergency rule with the rescue rule. I do not so read his decision. Before one can be entitled to the benefits of either rule, it must first be determined as a fact that the person was confronted with an emergency or engaged in rescue.

In the instant case tried to the court, the trial court found, as a fact, that Cords and Henry were not engaged in a rescue at the time they sustained their injuries, and hence not entitled to the benefits of the rescue rule, and proceeded to determine the comparative negligence of the parties. In my opinion, the evidence supports this factual determination by the trial judge.

Webster’s International Dictionary, 2nd ed., defines rescue as: “. . . deliverance or aid in delivering from restraint, violence or dangerThe American Heritage Dictionary defines it as: “To save, as from danger or imprisonment.”

The trial court was correct in refusing to apply the rescue doctrine. Instead, the trial court properly considered the girls’ actions in attempting the descent, the urgency of the situation, the interval between Norina Boyle’s fall and the attempted descent, the fact that Norina Boyle was being attended, and the warnings not to descend, as factors to be weighed in determining whether each of the parties had exercised reasonable care under all of the prevailing circumstances.

The record shows that at the time of the attempted descent, Norina Boyle had been found by other members of the party and was being attended by Tom Tibbits and

*563Tom Nelson. Jerry Rousseau climbed back up to the campsite and instructed Jane Cords and Sue Henry to remain there while he went for help. Although he mentioned that Sue Henry’s experience as a nurse’s aide might make her useful if help was needed, Rousseau emphasized that the girls should stay by the fire and that they would be called if needed. Someone called up from below and warned Jane Cords to stay by the fire.

After ten or fifteen minutes, Sue Henry decided to disregard these instructions and to attempt the descent in the darkness. The trial court found that she was “showing the signs of ingestion of alcoholic beverages;” Tom Tibbits said she was “pretty inebriated.” Jane Cords, whose initial reaction was “oh no, we’ll never make it,” decided to accompany Henry. Before they had gone very far, both girls fell. Shortly thereafter, rescue personnel from the Sauk county sheriff’s office and nearby Devil’s Lake state park arrived on the scene. I believe that this evidence amply supports the trial court’s allocation of negligence.

If Tibbits, Nelson or Rousseau had been injured in their initial descent to locate, assist and arrange for the rescue of Norina Boyle, an appropriate factual situation might well have been presented to consider the application of the rescue rule.

The policy of the law should be to encourage rescue and in the appropriate case the rule should be applied. This is not such an instance and the trial court should be affirmed on this issue.

INFLATION

The majority holds that it is reversible error to fail to consider the possible effect of inflation on a plaintiff’s future medical expenses. Whether a present award will have sufficient purchasing power to defray future medi*564cal expenses will depend on subsequent changes in price structure, the available rate of return, the discount rate employed, and the relation of these factors to one another. In making this difficult calculation, the trial court declined to extrapolate the increase in medical expenses in the seven years preceding trial throughout Jane Cords’ expected lifetime.

Although, as the court points out, courts in some other jurisdictions have allowed the fact finder to assume that inflation will persist, I am aware of no decision requiring such an assumption. Apparently the majority concludes that inflation has become an eternal and irreversible fact of economic life. There were some who shared this belief prior to 1929, and the great depression and intermittent recessions since that time have taught us it is not necessarily so.

By reversing the award, the majority implicitly determines that public efforts to stem the tide of inflation in general, and to control medical costs in particular, will be unsuccessful, and also determines that Jane Cords’ expenses will not some day be assumed by a system of national health insurance. This is a matter of conjecture. The future, of course, is always conjectural. But this court has no crystal ball, and I see no sound reason to substitute the speculation of this court for that of a trial court. I would affirm the holding of the trial court on this issue.

In conclusion, I suggest the result reached by the majority is a classic example of the familiar maxim that hard cases make poor law. Most disturbing is the expansion of the liability of public officers. The court’s holding goes far toward making the state an insurer against all injuries in state parks, forests, and other natural areas. I can perceive no sensible limit to the majority’s reasoning that “[t]here can be no policy of leaving it alone when such an obvious danger exists.”

*565State lands are studded with obvious natural conditions which could endanger the unwary. Indeed, it is often the concentration of such natural curiosities which makes an area desirable for acquisition and which attracts visitors. Must a warning sign now grace every steep slope, jagged rock, and tottering tree? What of lightning, frostbite, fires, floods, bears, contaminated water, thin ice, and every other imaginable hazard to the careless outdoorsman? On the outing involved in this case, one member of the group paused to climb a tree. Should he have been warned of the danger of a fall? If the state is to avoid liability for injuries from these and every other hazard, the legislature might be well advised to heed the suggestion of Holytz v. Milwaukee, supra, 40, and “reinstate immunity.”3

I am authorized to state that Mr. Justice HANLEY and Mr. Justice ROBERT W. HANSEN join in this dissent.

The opposite rule prevails in actions directly against the governmental unit. Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962).

The existence of the rescue doctrine in other jurisdictions was acknowledged in Central Wis. Trust Co. v. Chicago & N.W.R. Co., 232 Wis. 536, 543, 287 N.W. 699 (1939); and Brady v. Chicago & N.W.R. Co., 265 Wis. 618, 62 N.W.2d 415 (1954), hut the doctrine has never been applied by this court.

See. 895.45(4), Stats., although not applicable to the instant case, was enacted by ch. 333, sec. 182c, Laws of 1973, and provides as follows:

“895.45 Timeliness, definition of claimant, notice and limited ability.
“(4) The amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer or employe under this section shall not exceed $100,000. No punitive damages shall be allowed or recoverable in any such action.”

Also, some states have enacted statutes specifically excluding liability for injuries resulting from natural causes or conditions on state lands. Cal. Gov’t Code, sec. 831.2 (Deering, 1973); Utah Code Annot., sec. 63-30-10(11) (1968).