Hoskins v. Dodge County

VERGERONT, EJ.

¶ 47. (dissenting). I agree with the majority's analysis and conclusion on City of Beaver Dam's immunity from suit. I write separately because I do not agree with its analysis and conclusion on Dodge County's immunity. In my view there is a conflict between Deputy Steven Moul's deposition testimony, on the one hand, and Debra Krueger's affidavit and the Kruegers' statement to the DNR, on the other, and the conflict is a genuine issue of material fact. As the majority acknowledges, there is no dispute that the conditions on the lake were rough. Given those conditions, I conclude that if a fact finder believes that Debra Krueger told Moul that the boat had hit the neighbor's pier, the motor stopped and started again but did not sound right, and she thought the boat was in trouble and might not make it, Moul was confronted with a known present danger of such force that he had no discretion not to act to determine if the people in the boat needed to be rescued. It is not disputed that Moul took no such action. Looking on the shoreline for the boat approximately one hour after the boat left the shore and checking other boat landings for the boat were not acts Moul undertook to determine if the people in the boat on the lake were in danger; according to Moul, he treated the incident as hit-and-run property damage, and that is what he was investigating when he took those actions.

¶ 48. I do not agree with the majority that if a fact finder believes Debra Krueger, Moul was faced with an ambiguous situation and therefore had the discretion to decide, without any further investigation, that the people in the boat were not in danger. Nor do I agree that, solely because the information was relayed to him *310by a witness, Moul had the discretion to disregard it without further investigation. This is not a case where the officer testified that he had reason to doubt the account of a witness nor a case where, for some other reason, the officer decided not to act based on the witness's account. Rather, Moul denies Debra Krueger gave him the account of her observations that she says she did.1

¶ 49. I do not view the testimony of the hand wave from the boat as removing a factual dispute over whether Moul was confronted with a known present danger. Drawing all reasonable inferences in Hoskins's favor, the hand wave occurred before Debra Krueger heard the motor stop and start again, not sounding right. According to her affidavit, she did not tell Moul that she thought everything was okay when the boat left, but just the opposite.

¶ 50. I do not agree with the majority's implicit premise that the facts in this case must come "squarely within" Linville v. City of Janesville, 174 Wis. 2d 571, 586-88, 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705, 721, 516 N.W.2d 427 (1994), in order for a known present danger to exist here. I do not agree that a known present danger did not exist here simply because Moul was not told that "a person had gone overboard and was then and there in the water, needing to be rescued." In Cords v. Anderson, 80 Wis. 2d 525, 541-42, 259 N.W.2d 672 (1977), a park trail within inches of a bluff edge, which a park manager knew of but did nothing to warn others of, was a known present danger. In Lodi v. Progressive Northern Ins. Co., 2001 *311WI App 3, ¶ 17, 240 Wis. 2d 652, 625 N.W.2d 601, review granted, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (May 8, 2001) (No. 00-0221), an intersection with inoperative traffic lights in a storm was a known present danger requiring the officer dispatched to direct traffic to actively attempt to do that rather than stand by. If Debra Krueger's account of what she told Moul is accepted by a fact finder, I do not believe that Moul was confronted with a danger that was less compelling — less present or known — than those in Cords and Lodi.

¶ 51. Because I conclude there is a genuine issue of material fact with respect to the County's immunity from suit, I conclude the County was not entitled to summary judgment in its favor on this ground. Therefore, I respectfully dissent.

At his deposition, Moul testified that he did not borrow a boat to look for the men on the lake because Debra Krueger said she thought they were okay.