Estate of Swannie Her v. City of West Bend

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 29, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP839 Cir. Ct. No. 2019CV626

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ESTATE OF SWANNIE HER, BY NATHANIEL CADE, JR., SPECIAL
ADMINISTRATOR, CHONG HER, EKIN HER, JASMINE HER, ALEXANDER
HERNANDEZ, EVANGELIN HER, CHUEXNG HER, THVON HER, JOVANYEL
RAMIREZ-CHANG, JHOVANNY RAMIREZ-CHANG, CHUEVE HER AND
CONNIE HER,

PLAINTIFFS-APPELLANTS,

V.

CITY OF WEST BEND, KRAIG SADOWNIKOW, CRAIG HOEPPNER, RYAN
ZAMROW, BROGAN ZOCHERT, MICHAELA MILLARD, CASSIDY
HOLBROOK, NOAH WILKENS, MADELINE KAPHINGST AND ABIGAIL
EHMKE,

DEFENDANTS-RESPONDENTS,

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE
COMPANY,

DEFENDANT.
No. 2021AP839

APPEAL from a judgment of the circuit court for Washington
County: SANDRA JO GIERNOTH, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Kornblum, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The Estate of Swannie Her appeals a summary
judgment dismissing its negligence and wrongful death claims against the City of
West Bend for the drowning death of Swannie.1 The Estate argues that the circuit
court erred when it stayed discovery pending summary judgment and that genuine
issues of material fact preclude summary judgment on the issue of whether the
City is entitled to recreational immunity.2 We affirm.

BACKGROUND

1
The plaintiffs-appellants are Swannie Her’s Estate, Swannie’s parents, and Swannie’s
surviving siblings. We will refer to them collectively as “the Estate.” The defendants-
respondents are the City of West Bend; the City’s mayor, park director, and insurance company;
and the seven lifeguards who were on duty the day Swannie drowned. We will refer to them
collectively as “the City.”
2
The parties raise additional issues on appeal. The Estate claims that genuine issues of
material fact preclude summary judgment on the issue of whether the City is protected from
liability under the doctrine of governmental immunity. See WIS. STAT. § 893.80(4). The City
asserts that the case should be dismissed because the Estate did not comply with the notice
requirements in WIS. STAT. § 893.80(1d) (2019-20). We need not address these issues, however,
because our decision that the City is entitled to recreational immunity renders these claims moot.
See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be
addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases
should be decided on the “narrowest possible ground”).

The statutes material to this case have not been amended since 2016. Accordingly, all
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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¶2 On June 11, 2016, six-year-old Swannie drowned in a pond at
Regner Park. It is undisputed that Regner Park is owned and operated by the City
of West Bend. According to deposition testimony, the pond is man made with a
mucky bottom. Visibility beneath the surface is less than six inches. The pond is
divided into three zones. Zone one, the general swimming area, ranges in depth
up to five feet. Zone two, which features a diving raft, is in the center of the pond
and reaches a depth of fifteen feet. Zone three, the children’s play area, is no more
than three feet deep. There is a general slope in the pond to the deep water, with a
rope and buoys where the water gets deeper.

¶3 At the time of Swannie’s drowning, seven lifeguards were on duty.
The lifeguards were certified by the Red Cross or YMCA, completed initial
lifeguard training, and received additional weekly training. The lifeguards also
received the West Bend Aquatic Manual & Emergency Response Plan. The staff
rules and procedures required the lifeguards to visually scan their entire zone
within seconds, ensure all swimmers wore wrist bands, swim test any patron who
wished to go in the water over their armpits, and make sure children five years or
younger were within arm’s reach of a parent.

¶4 On June 11, 2016, Swannie was at the park with her mother and
siblings to celebrate a relative’s birthday. The party took place at a picnic area
near the pond. Swannie arrived sometime after 5:00 p.m., put her swimming suit
on, and obtained her mother’s permission to go in the pond with her siblings.
Swannie’s mother did not accompany Swannie. Instead, Swannie’s mother asked
two of her older children to keep an eye on Swannie. Swannie received a general
admission wristband, but did not take the swim test required to swim in water
above her armpits.

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¶5 Swannie and her siblings began swimming in the shallow area of the
pond. At some point, Swannie told her siblings she wanted to swim with another
sibling, who was in a deeper area of the pond. No one in Swannie’s family or any
of the seven lifeguards on duty saw Swannie go under. Sometime after 5:50 p.m.,
a man found Swannie unresponsive at the bottom of the pond. He carried her out
of the water and called for help. The lifeguards immediately called 911 and began
resuscitation efforts. Emergency medical responders took Swannie to a nearby
hospital. She never regained consciousness and died several days later.

¶6 The West Bend Police Department conducted a criminal
investigation into Swannie’s death. The park director also met with the lifeguards
shortly after Swannie drowned to discuss what happened and review the
emergency response plan. The police chief offered to help the park director
conduct an internal investigation, but the park director determined that one was
not necessary.

¶7 The Estate initially filed suit in federal court. It alleged that the City
deprived Swannie of her right to life without due process in violation of the
Fourteenth Amendment. The Estate also raised state law claims for negligence,
wrongful death, and a violation of Wisconsin’s Safe Place Statute, WIS. STAT.
§ 101.11.

¶8 The City moved for summary judgment in federal court. In addition
to arguing for dismissal of the federal claim, the City argued that the state law
claims were barred by recreational immunity. As material, the Estate responded
that the malicious-act exception precluded recreational immunity. The federal
district court dismissed the federal claim and relinquished jurisdiction over the
state law claims. See Estate of Her v. Sadownikow, No. 17-CV-1015, 2018 WL

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No. 2021AP839

5622655 (E.D. Wis. Oct. 30, 2018). The Seventh Circuit Court of appeals
affirmed. See Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019), cert.
denied, 140 S. Ct. 1121 (2020).

¶9 The Estate then filed suit in state court, reiterating its claims of
negligence, wrongful death, and a violation of Wisconsin’s Safe Place Statute.
The City moved to stay all pretrial discovery pending the resolution of its
forthcoming motion for summary judgment. It argued that a stay was warranted
because, in the federal case, the parties fully briefed the state law claims, deposed
all material witnesses, served multiple rounds of written discovery, and produced
all relevant documents. The Estate responded that the state law claims were
distinct from the federal claim, requiring “discovery unique to the state law claims
to be conducted.” It further suggested that, if the discovery items were
duplicative, the City could seek protective orders on an item-by-item basis. See
WIS. STAT. §§ 804.01(2)(am), 804.01(3). The circuit court granted the motion to
stay in a written order, concluding that the Estate did not identify any new
discovery necessary to the case.

¶10 At a scheduling hearing, the Estate made an oral motion “to revisit
the denial of any discovery in this matter.” The Estate told the court that it needed
to depose “five or six” additional witnesses, including the park director, on the
issue of recreational immunity because the issue of malicious intent was not fully
litigated in the federal lawsuit. After noting that “oral arguments were neither
permitted nor invited,” the circuit court stated that it would nevertheless consider
the motion. The court then orally denied the Estate’s motion because it presented
the same “generalized argument” the Estate made in its motion opposing the stay
of discovery pending the summary judgment motion.

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No. 2021AP839

¶11 In its motion for summary judgment, the City argued that
recreational immunity and governmental immunity barred the Estate’s claims.
The City also argued the case should be dismissed because the Estate did not
comply with the notice requirements of WIS. STAT. § 893.80(1d). The Estate
responded that genuine issues of material fact precluded summary judgment. The
circuit court granted the City’s motion, concluding that, under the facts of the case
taken in the light most favorable to the Estate, both forms of immunity precluded
liability. The court also determined that the Estate “substantially complied” with
the notice requirements of § 893.80(1d).

DISCUSSION

I. Discovery

¶12 The Estate claims that the circuit court erroneously stayed discovery
pending the City’s motion for summary judgment. Circuit courts have broad
discretion in determining whether to limit discovery through a protective order.
Paige K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 232, 594 N.W.2d
370 (1999); see also Kinnick v. Schierl, Inc., 197 Wis. 2d 855, 865, 541 N.W.2d
803 (Ct. App. 1995) (circuit courts have broad discretion to determine if sufficient
discovery has occurred before ruling on a motion for summary judgment). Where
a movant shows good cause, WIS. STAT. § 804.01(3) permits the circuit court to
make any order “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” See Paige K.B., 226 Wis. 2d at 232.
We review the circuit court’s decision for an erroneous exercise of discretion and
will affirm as long as the circuit court examined the relevant facts, applied the
proper legal standard, and reached a reasonable conclusion. Id. at 232-33.

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No. 2021AP839

¶13 In this case, the circuit court issued a written order explaining that it
granted the City’s motion to stay discovery for three main reasons. First, the
circuit court found that the state law claims in this case were the same as the state
law claims in the federal case. It determined there was no evidence the Estate
changed its legal theory and thus “the extensive discovery that occurred in the
federal case was premised on the same legal theories in this case.”

¶14 Second, the circuit court found that the subject matter in the federal
and state cases was “identical.” It determined that, given the case’s litigation
history, it was reasonable to expect the Estate to “state specifically what discovery
is necessary.” It determined that the Estate failed to do so, making only a “general
reference to unique discovery.” The court noted that the Estate “has not identified
one new witness to depose, one document needed to be produced, or one
interrogatory that needs to be answered, over and above what has already occurred
as a result of the federal litigation.”

¶15 Finally, the circuit court determined that the Estate’s suggestion that
the City could seek protective orders on an item-by-item basis “would be time
consuming for both the Court and the litigants, and a waste of judicial resources.”
The circuit court thus concluded that the City’s motion was based on good cause
under WIS. STAT. § 804.01(3) because “it avoids undue burden and expense to
both the parties and the Court.”

¶16 The Estate argues that the circuit court erroneously exercised its
discretion because “very little if any discovery” was completed on the issue of
recreational immunity and “other state claim specific defenses.” The Estate argues
that it provided the circuit court with information sufficient to warrant additional

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No. 2021AP839

discovery, pointing to its assertion at the scheduling conference that it needed to
depose witnesses on the issue of recreational immunity. We are not persuaded.

¶17 The circuit court properly applied the law to the facts of this case in
granting the City’s motion to stay discovery. The Estate had every opportunity
both in its briefs before the circuit court and in its oral motion to reconsider to
explain what additional discovery was required. As the circuit court noted in its
written order, aside from a general reference to “unique discovery,” the Estate did
not do so. The Estate’s belated reference to recreational immunity at the
scheduling hearing is not sufficient to cure this defect. As the circuit court
concluded, the Estate did not present any new information at the scheduling
hearing. Aside from the park director, the Estate did not tell the court which
witnesses it sought to depose or provide the court with the specific information it
sought. See Kinnick, 197 Wis. 2d at 864-65 (party claiming additional discovery
is necessary to produce evidence to rebut a motion for summary judgment has
burden to show by more than mere speculation that the discovery is relevant to a
genuine issue of material fact).

¶18 The Estate also claims that the circuit court erred because it failed to
weigh the value of any discovery against the burden on the parties, particularly in
light of the purported discovery’s relevance to summary judgment. Again, we
disagree. As we have seen, in its written order, the court explicitly concluded that
it had good cause to stay discovery because it “avoids undue burden and expense
to both the parties and the Court.” The circuit court explained it had “an interest
in conserving judicial resources” and considered the impact a stay would have on
the pending summary judgment motion. It concluded that, absent the Estate
specifically identifying the necessary discovery, the Estate “was not prejudiced by
staying discovery pending the City’s motion for Summary Judgment.”

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No. 2021AP839

Accordingly, the circuit court properly exercised its discretion when it granted the
City’s motion to stay discovery.

II. Summary Judgment – Recreational Immunity

¶19 We review a grant of summary judgment de novo, using the same
methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6, 306
Wis. 2d 513, 743 N.W.2d 843. The moving party is entitled to judgment as a
matter of law “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact.” WIS. STAT. § 802.08(2). In evaluating
summary judgment materials, we view the evidence, and reasonable inferences
from that evidence, in the light most favorable to the party opposing summary
judgment. CED Props., LLC v. City of Oshkosh, 2018 WI 24, ¶19, 380 Wis. 2d
399, 909 N.W.2d 136.

¶20 “Recreational immunity under WIS. STAT. § 895.52 is a defense that
may entitle the moving party to summary judgment” as a matter of law. Milton v.
Washburn County, 2011 WI App 48, ¶7, 332 Wis. 2d 319, 797 N.W.2d 924; see
also Stann v. Waukesha County, 161 Wis. 2d 808, 815, 468 N.W.2d 775 (Ct.
App. 1991) (application of recreational immunity statute presents question of law).
WISCONSIN STAT. § 895.52(4) provides that municipalities, among other
governmental units, are not liable for injuries to those who enter their property to
engage in recreational activities. See Nelson v. Schreiner, 161 Wis. 2d 798, 802,
469 N.W.2d 214 (Ct. App. 1991). There are two exceptions to recreational
immunity. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 479-80, 464 N.W.2d
654 (1991). In this case, the only exception at issue is for a death or injury caused
by “a malicious act or by a malicious failure to warn against an unsafe condition

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of which an officer, employee or agent of a governmental body knew.” WIS.
STAT. § 895.52(4)(b).3 An act or failure to warn is malicious if it results from
hatred, ill will, or a desire for revenge or is inflicted under circumstances where
insult or injury is intended. Ervin, 159 Wis. 2d at 483.

¶21 The Estate does not argue that the City acted with hatred, ill will, or
a desire for revenge. Rather, it focuses on intent, arguing that an actor intends to

3
WISCONSIN STAT. § 895.52 provides, as material:

(2) NO DUTY; IMMUNITY FROM LIABILITY.

(a) Except as provided in subs. (3) to (6), no owner and
no officer, employee or agent of an owner owes to any person
who enters the owner’s property to engage in a recreational
activity:

1. A duty to keep the property safe for recreational
activities.

2. A duty to inspect the property, except as provided
under s. 23.115 (2).

3. A duty to give warning of an unsafe condition, use or
activity on the property.

….

(4) LIABILITY; PROPERTY OF GOVERNMENTAL BODIES
OTHER THAN THIS STATE. Subsection (2) does not limit the
liability of a governmental body other than this state or any of its
agencies or of an officer, employee or agent of such a
governmental body for either of the following:

….

(b) A death or injury caused by a malicious act or by a
malicious failure to warn against an unsafe condition of which an
officer, employee or agent of a governmental body knew, which
occurs on property designated by the governmental body for
recreational activities.

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No. 2021AP839

injure if it is aware that its conduct is substantially certain to cause injury, even if
it does not desire that result. See Milton, 332 Wis. 2d 319, ¶11. Under this
standard, the Estate claims that the City acted maliciously when it failed to inform
Swannie or her mother of the safety rules or warn them of allegedly dangerous
features in the Regner Park pond, including a hidden drop-off and poor water
visibility. The Estate also claims that the City did not properly hire or train its
lifeguards and that the lifeguards did not follow safety procedures, such as swim
testing Swannie or properly scanning their zones for any sign of trouble. Viewing
these allegations in a light most favorable to the Estate, we conclude that the
evidence is insufficient for a jury to conclude that the City or its lifeguards acted
with malice.

¶22 In reaching this conclusion, we find Ervin and Milton instructive.
The facts in Ervin are similar to the facts in this case. In Ervin, two young boys
drowned at a public beach owned and operated by the City of Kenosha. Ervin,
159 Wis. 2d at 469. The boys were playing in chest-high water when they
encountered a steep eight-foot drop-off approximately ten to fifteen feet from the
shore. Id. at 469-70. The boys could not swim and struggled to say afloat for
several minutes. Id. at 470. Several bystanders went into the water to rescue the
boys after they saw the boys go underwater. Id.

¶23 At the time of the drowning, the beach was staffed by four lifeguards
employed by the City of Kenosha. Id. The City hired the lifeguards without
conducting formal interviews or skills testing and did not provide the lifeguards
with lifeguarding, first-aid, or rescue training. Id. at 471. Despite observing the
boys in distress, the lifeguards did nothing for several minutes, going into the
water to help the boys only after the bystanders attempted to rescue the boys. Id.
at 470-71.

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¶24 The boys’ parents sued the City of Kenosha. Id. at 471. On
summary judgment, they argued, as material, that there was a genuine issue of
material fact as to whether the City’s conduct was malicious. Id. at 479. Ervin
rejected this argument and upheld summary judgment in favor of the City,
concluding that no reasonable view of the undisputed facts would support a
finding of maliciousness:

We conclude that the conduct of the City in
negligently hiring and failing to train the lifeguards, the
conduct of the lifeguards in negligently giving rescue
attempts, and the conduct of both the City and the
lifeguards in maintaining and failing to warn of the unsafe
drop-off did not rise to the level of “malicious” in this case.
Although this conduct may have been negligent or in
reckless disregard of the youths’ safety, there is no
evidence that the deaths were the result of hatred, ill-will, a
desire for revenge or inflicted under circumstances where
insult or injury was intended.

Id. at 484-85; see also Stann, 161 Wis. 2d at 824-27 (recreational immunity
precluded liability for drowning death at county-modified beach where lifeguards
failed to act upon learning three-year-old child was missing).

¶25 Milton is instructive because it utilized the legal standard in this
case—whether conduct is substantially certain to cause injury under the
malicious-acts exception to recreational immunity. Milton, 332 Wis. 2d 319,
¶¶11-18. In Milton, snowmobilers were injured when they collided with a closed
gate on a county access trail. Id., ¶6. The snowmobilers sued the county, alleging
it was negligent for closing the gate. Id. On appeal, the snowmobilers argued the
circuit court’s grant of summary judgment was improper because the malicious-act
exception to recreational immunity applied. Id., ¶16.

¶26 Milton used the example of a man firing a bullet into a dense crowd
to illustrate an instance where a jury could infer an actor’s conduct is substantially

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certain to cause harm. Id., ¶12. It explained “[t]he man who fires a bullet into a
dense crowd may fervently pray that he will hit no one, but since he must believe
and know that he cannot avoid doing so, he intends it.” Id. (citation omitted).
Milton concluded that the county’s conduct was not malicious because, unlike
firing a bullet into a dense crowd, the county’s actions were not certain to cause
injury. Id., ¶8.

¶27 Like Milton, the City’s alleged negligence in lifeguarding and
creating and maintaining dangerous features was not certain to cause injury in the
same way that firing a bullet into a dense crowd is certain to cause injury. Rather,
as in Ervin, even if the City’s conduct was negligent or in reckless disregard of
Swannie’s safety, there is no evidence her drowning occurred under circumstances
where insult or injury was intended. Ultimately, the Estate’s argument boils down
to the assertion that the City could have had more features in place to make the
Regner Park pond safer. This is insufficient to show that the City or its lifeguards
were aware that their conduct was substantially certain to cause Swannie to drown.

¶28 The Estate also contends that the park director’s alleged failure to
investigate Swannie’s drowning is evidence of malice. The Estate alleges the park
director’s conduct shows the park director’s “indifference to [Swannie’s] death
and evinced intent to sweep aside the circumstances surrounding the events
leading to [Swannie’s] demise.” To support this argument, the Estate points to
Upthegrove Hardware, Inc. v. Pennsylvania Lumbermans Mutual Insurance
Co., 146 Wis. 2d 470, 431 N.W.2d 689 (Ct. App. 1988). The Estate’s claim fails
for two reasons.

¶29 First, Upthegrove does not apply to this case. The issue in
Upthegrove was whether punitive damages were warranted for malicious conduct

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in a bad faith insurance claim. Upthegrove, 146 Wis. 2d at 480-84. Upthegrove
concluded that there was substantial evidence to support the jury’s finding that an
insurance company acted with malice or ill will when its investigators lied about
what they found in their investigation and destroyed crucial pieces of evidence.
Id. at 483-84. The Estate does not provide any authority providing that the
standard for punitive damages in bad faith insurance claims applies to recreational
immunity. Moreover, it does not point to any evidence that the park director lied
or destroyed evidence.

¶30 Second, viewing the facts in the light most favorable to the Estate,
we do not see how the park director’s alleged failure to investigate Swannie’s
drowning after the fact is evidence that the park director’s conduct was
substantially certain to cause Swannie’s drowning. See Milton, 332 Wis. 2d 319,
¶18 (closed gate not substantially certain to cause accident). The Estate does not
provide any evidence the park director was at the Regner Park pond the day
Swannie drowned or had any involvement in the drowning itself. Accordingly, the
park director’s alleged failure to investigate the circumstances surrounding
Swannie’s drowning is not relevant to our assessment of whether the City or its
lifeguards acted with malice.

¶31 For all of these reasons, the facts viewed in a light most favorable to
the Estate, do not establish that the City or its lifeguards acted with malice.
Accordingly, the City is immune from liability under WIS. STAT. § 895.52 as a
matter of law and we affirm the circuit court’s grant of summary judgment.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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