N.E.M. v. Strigel

DYKMAN, J.

N.E.M., a minor, appeals from a judgment in which the trial court concluded that Eugene and Judy Strigel's liability for their son, Scott's, sexual assaults was limited to $2,5001 pursuant to § 895.035(4), STATS.2 A jury found that Scott sexually assaulted N.E.M. twenty times. It awarded N.E.M. $35,000 in compensatory damages, her parents $8,589 for out-of-pocket expenses and loss of society *723and companionship, and $10,000 in punitive damages. The sole issue in this case is whether twenty acts of sexual assault are one act for the purpose of determining the extent of the Strigels' parental liability under § 895.035(4). N.E.M. argues that the court erred in limiting the Strigels' liability to $2,500 because Scott committed twenty acts, not one. We agree and, therefore, reverse.

BACKGROUND

During the summer and fall of 1992, Scott Strigel, age fifteen, sexually assaulted N.E.M., age ten, on numerous occasions. She and her parents sued Scott and his parents. The jury concluded that Scott had sexually assaulted N.E.M. twenty times and that his conduct was wanton and willful. N.E.M., arguing that Scott's parents were liable up to $50,000 for these assaults under § 895.035, Stats., the parental liability statute, moved the trial court for judgment. The court concluded that the twenty assaults were a single continuing act for the purposes of parental liability and limited the Strigels' liability to $2,500. N.E.M. appeals.

STANDARD OF REVIEW

To determine whether the Strigels are liable up to $2,500 for each time their son sexually assaulted N.E.M., we must construe § 895.035(4), Stats. Statutory interpretation presents a question of law which we review de novo. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992). In construing a statute, our purpose is to discern the legislature's intent and give it effect. Id. The first step is to examine the statute's language, and, absent ambiguity, it is our duty to give the language its ordi*724nary meaning. Id. at 225-26, 496 N.W.2d at 179. Since § 895.035 is in derogation of the common law, we strictly construe it. Poston v. United States Fidelity & Guar. Co., 107 Wis. 2d 215, 224, 320 N.W.2d 9, 14 (Ct. App. 1982).

PARENTAL LIABILITY

Section 895.035(2), Stats., makes parents with custody of a minor child liable for personal injuries attributable to a willful, malicious or wanton act of that child. Section 895.035(4) provides that "the maximum recovery from any parent or parents may not exceed $2,500 for damages resulting from any one act of a child in addition to taxable costs and disbursements and reasonable attorney fees . . . ." (Emphasis added.) The language of subsection (4) is clear and unambiguous. A parent is liable up to $2,500 for damages resulting from any one act of a child. For the purpose of this subsection, "any one act" refers to a single, particular and separate act and not to several acts. In other words, the extent of a parent's liability turns upon the number of acts which cause damage and will not exceed $2,500 for each such act. We conclude, then, that the statute does not permit a court to merge a series of acts which occur over a period of time into one act but instead requires us to treat them as separate acts, each exposing a parent to liability up to $2,500. Thus, when the jury concluded that Scott sexually assaulted N.E.M. twenty times, for the purpose of this statute, he committed twenty separate acts. Consequently, the Strigels are liable up to $2,500 for each time he sexually assaulted N.E.M., or $50,000.

*725But the Strigels argue that we must strictly construe § 895.035(4), Stats., because it is in derogation of common law. They assert that the twenty sexual assaults were, therefore, but one continuing act. We disagree. Strict construction requires limiting the language, not ignoring the plain language of the statute. The Strigels would have us read the phrase "any one act" as meaning "all acts." That we cannot do. See Thomas v. Iowa Nat'l Mut. Ins. Co., 132 Wis. 2d 18, 22, 390 N.W.2d 572, 574 (Ct. App. 1986) (when the language of a statute is clear and unambiguous, the statute must be interpreted on the basis of the plain meaning of its terms). If "any one act" means "all acts," Scott could have assaulted twenty girls and his parents' liability would have been only $125 for each assault. This is contrary to the language of the statute. Moreover, all of Scott's sexual assaults after the first one would be noncompensable. Such a result would hardly be a disincentive to a person committing repetitive sexual assaults. Consequently, we reject their contention.

The parental liability statute represents a valid exercise of the state's police power and gives parents a financial incentive to prevent their minor children from inflicting personal injury. First Bank Southeast, N.A. v. Bentkowski, 138 Wis. 2d 283, 289, 405 N.W.2d 764, 766 (Ct. App. 1987). Making parents liable up to $2,500 for each act committed by their child is consistent with that goal. Indeed, had Scott been criminally charged, he could have been subjected to at least twenty separate counts. See State v. Kruzycki, 192 Wis. 2d 509, 520-24, 531 N.W.2d 429, 433-35 (Ct. App. 1995) (two acts of sexual assault sufficiently different in fact *726may justify separate charges under the same statute). Criminal statutes, like statutes in derogation of common law, are strictly construed. State v. Timm, 163 Wis. 2d 894, 899, 472 N.W.2d 593, 595 (Ct. App. 1991). Thus, we cannot conclude that Scott's twenty sexual assaults were one act for the purpose of this civil action, but twenty acts for the purpose of a criminal prosecution.

We conclude that the trial court erred when it determined that Scott committed one act thereby limiting the Strigels' liability to $2,500. Instead, the Strigels are liable up to $2,500 for each of the twenty assaults, or $50,000. Consequently, we reverse the judgment and remand for a recalculation of damages.

By the Court. — Judgment reversed and cause remanded with directions.

The judgment contained in the record states that the Strigels' liability was limited to $3,500, but a copy of a judgment contained in N.E.M.'s appendix and a transcript indicate that the Strigels' liability was limited to $2,500, as provided by statute. Whether this was a mistake is irrelevant because our focus is on whether Scott's twenty sexual assaults were one act under § 895.035(4), Stats. That statute limits parental liability to "$2,500 for damages resulting from any one act of a child."

Section 895.035(4), Stats., provides in relevant part:

Except for recovery for retail theft under s. 943.51, the maximum recovery from any parent or parents may not exceed $2,500 for damages resulting from any one act of a child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court.