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01-0834 Hoskins et al. v. Dodge County et al. (56542)

By: dmc-admin//February 4, 2002//

01-0834 Hoskins et al. v. Dodge County et al. (56542)

By: dmc-admin//February 4, 2002//

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“Even if we were to conclude that what Block communicated via his 911 call constituted a known, present danger, we would not necessarily hold that the dispatchers had forfeited any claim to immunity for their actions in response. Neither dispatcher failed to act on the information they were provided. …The City’s dispatcher promptly relayed Block’s 911 report to the Dodge County Sheriff’s Department, and the County in turn promptly dispatched a deputy to investigate. Additionally, the County contacted DNR personnel for advice on whether to request a waterborne search.”

Further, “the information communicated to the investigating deputy at the scene of the report was at least as ambiguous as the initial 911 call, and if anything, it was perhaps less ominous than [a witness’s] initial report. [The deputy] learned from [other witnesses] that the boat had experienced some motor troubles and collided with Block’s pier, but that it then departed on its own power after one of the boat’s occupants had waved to Debra Krueger to indicate they were ‘O.K.’…We conclude that the information provided to Deputy Moul did not present a known and compelling danger, of such force that his duty to summon personnel and equipment for an immediate waterborne rescue was absolute, certain and imperative. The circumstances were such that the deputy was entitled to exercise his discretion to forego immediate search and rescue efforts, and to follow up instead by checking the shoreline and boat landings in the area for any signs of the boat in question.

Finally, “[w]e conclude that any dispute regarding whether or how strongly the [witnesses] communicated their concerns for the safety of the boat occupants is not material to a determination of whether, on the facts known to the officer, there existed a ‘known, present danger.’ Stated another way, we conclude that the existence of a ‘known, present danger’ should not turn on the subjective impressions of a citizen-witness. …A ministerial duty should arise only when a court can confidently say that, based on the objective facts observed by or reliably communicated to the officer, only one course of action was open to him or her. To conclude otherwise would be to require public officers to act on the subjective impressions of witnesses instead of on the facts they have gathered.”

Judgment for defendants is affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Vergeront, J. “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.”

Dist IV, Dodge County, Murach, J., Deininger, J.

Attorneys:

For Appellant: Paul V. Gagliardi, Salem; Theodore B. Kmiec III, Salem; Joseph M. Cardamone III, Salem

For Respondent: Bruce A. Schultz, Madison; Laura N. Whipple, Madison

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