Brittany L. Noffke v. Kevin Bakke
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2009 WI 10 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP1886 Brittany L. Noffke, by her guardian ad litem, Mart W. Swenson, Thad Noffke and Tina Kropelin, Plaintiffs-Appellants-Petitioners, v. Kevin Bakke and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners, Holmen High School, Holmen Area School District and Wausau Underwriters Insurance Company, Defendants-Respondents, Gundersen Lutheran Health Plan, Inc., and Atrium Health Plan, Inc., Defendants. REVIEW OF A COURT OF APPEALS DECISION 2008 WI App 38 Reported at: 308 Wis. 2d 410, 748 N.W.2d 195 (Ct. App. 2008-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: January 27, 2009 October 8, 2008 Circuit La Crosse Dale Pasell ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs filed by Tracy N. Tool and Bye, Goff, Rohde & Skow, Ltd., River Falls, and Mart W. Swenson and Laman & Swenson Law Office, Eau Claire, and oral argument by Tracy N. Tool. For the defendants-respondents-petitioners there were briefs by Kara M. Burgos, James S. Naugler, and Moen Sheehan Meyer, Ltd., La Crosse, and oral argument by James S. Naugler. For the defendants-respondents there was a brief by Peggy E. Van Horn and the Law Offices of Thomas P. Stilp, Brookfield, and oral argument by Peggy E. Van Horn. 2009 WI 10 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP1886 (L.C. No. 2005CV760) STATE OF WISCONSIN : IN SUPREME COURT Brittany L. Noffke, by her guardian ad litem, Mart W. Swenson, Thad Noffke and Tina Kropelin, Plaintiffs-Appellants-Petitioners, v. Kevin Bakke and American Family Mutual Insurance Company, Defendants-Respondents-Petitioners, Holmen High School, Holmen Area School District and Wausau Underwriters Insurance Company, FILED JAN 27, 2009 David R. Schanker Clerk of Supreme Court Defendants-Respondents, Gundersen Lutheran Health Plan, Inc., and Atrium Health Plan, Inc., Defendants. REVIEW of a decision of the Court of Appeals. part and reversed in part. Affirmed in No. ¶1 ANNETTE KINGSLAND ZIEGLER, J. 2006AP1886 This is a review of a published court of appeals' decision1 that affirmed in part and reversed in part the decision of the La Crosse County Circuit Court, Dale T. Pasell, Judge. The circuit court granted summary judgment in favor of the defendants and thus granted immunity to both Kevin Bakke (hereinafter "Bakke") and the "school district," which includes Holmen High School, the Holmen Area School District, and Wausau Underwriters Insurance Company. When Brittany Noffke (hereinafter "Noffke") appealed, the court of appeals affirmed in part and reversed in part the circuit court's decision to grant summary judgment. The court of appeals concluded that while the school district was immune from liability, Bakke was not entitled to such immunity. Both Bakke and Noffke petitioned this court for review, which we granted. We agree with the circuit court's decision and therefore affirm in part and reverse in part the court of appeals' decision. ¶2 is Bakke incident This case presents the following three issues: immune that from a occurred negligence suit while was he cheerleader at Holmen High School? 1 arising First, out of an participating as a We conclude that, pursuant Noffke v. Bakke, 2008 WI App 38, 308 Wis. 2d 410, 748 N.W.2d 195. 2 No. 2006AP1886 to Wis. Stat. § 895.525(4m)(a) (2005-06),2 Bakke is immune from liability because he was participating in a recreational activity that includes physical contact between persons in a sport involving amateur teams. Second, did the circuit court err when it concluded as a matter of law that Bakke was not reckless? We conclude that the circuit court did not err when it concluded as a matter of law that Bakke was not reckless. Third, we must determine whether Wis. Stat. § 893.80(4) provides the school district with immunity for the alleged negligent acts of the cheerleading coach. is immune because no We conclude that the school district ministerial duty was violated by the cheerleading coach and there was no known and compelling danger that gave rise to a ministerial duty. I. FACTS ¶3 The facts are not disputed by either party. was a varsity basketball cheerleader. the "Commons" of Holmen High Noffke On December 17, 2004, in School, Noffke fell while practicing a cheerleading stunt before a basketball game. stunt was performed without any mats. The Tragically, Noffke fell backward, her head struck the tile floor, and she was injured. 2 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. The text of both Wis. Stat. §§ 895.525(4m)(a) and 893.80(4) can be found in ¶¶14 and 40, respectively. 3 No. ¶4 Three cheerleaders hands" stunt. were involved in this "post-to- These participants had not previously performed this stunt together. Noffke was the "flyer," i.e., the person who stands on the shoulders of the "base." involved in this litigation. ¶5 2006AP1886 The base is not Bakke was the "post." By way of background, the post helps the flyer get into position on the base and initially supports most of the flyer's weight shoulders. until her feet are secured on the base's The post may also serve as the spotter after the flyer is on the base. Once Noffke was on the base and Bakke let go of her, Bakke was to go behind the base, but in this case, Bakke moved to the front. As a result, when backward, no one was there to prevent her injury. her cheerleading approximately coach, ten feet a Holmen away Middle supervising School Noffke fell In addition, teacher, another group was of cheerleaders and thus was unable to prevent Noffke's fall. II. PROCEDURAL HISTORY ¶6 Noffke brought suit against Bakke for negligently failing to properly spot Noffke, and she also sued the school district alleging that the school's cheerleading coach was negligent by failing to provide a second spotter and failing to require the use of mats. ¶7 Bakke moved for summary judgment asserting that he was immune from liability by virtue of Wis. Stat. § 895.525(4m)(a). 4 No. 2006AP1886 The school district moved for summary judgment asserting that it was immune from liability by virtue of Wis. Stat. § 893.80(4). The circuit court granted summary judgment in favor of Bakke and the school district, and thus, both were provided immunity. ¶8 The court of appeals affirmed in part and reversed in part the circuit court's decision. It concluded that Bakke was not entitled to immunity because cheerleading does not involve the type of physical immunize from however, affirmed contact negligence the that the lawsuits. circuit legislature The court's court decision sought of to to appeals, grant the school district immunity. III. STANDARD OF REVIEW ¶9 Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). circuit This court. Wis. 2d 624, court applies Verdoljak v. 630, interpretation is a 547 N.W.2d question of the same Mosinee 602 law standards Paper (1996). that this as Corp., the 200 Statutory court de novo while benefiting from the lower courts' analyses. reviews Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶8, 286 Wis. 2d 105, 705 N.W.2d 645. 5 No. 2006AP1886 IV. ANALYSIS ¶10 This case requires us §§ 895.525(4m)(a) and 893.80(4). to interpret Wis. Stat. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This court begins interpretation with the language of a statute. statutory Id., ¶45. If the meaning of the statute is plain, we ordinarily stop the inquiry and accepted words or give meaning, phrases the language except that are given definitional meaning." Id. its "common, technical their or ordinary, and specially-defined technical or special A dictionary may be utilized to guide the common, ordinary meaning of words. Id., ¶53; State v. Sample, 215 Wis. 2d 487, 499-500, 573 N.W.2d 187 (1998). ¶11 The context and structure of a statute are also important to the meaning of a statute. Kalal, 271 Wis. 2d 633, ¶46. is "Therefore, statutory language interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closelyrelated statutes; and unreasonable results." reasonably, Id. to avoid absurd or The "[s]tatutory language is read where possible to give reasonable effect to every word, in order 6 No. to avoid surplusage." Id. 2006AP1886 "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes that is, from its context or the structure of the statute as a coherent whole." Id., ¶49. ¶12 "'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Id., ¶46 (citation unambiguous, we interpretation. do omitted). not Id. need to If statutory language consult extrinsic is sources of "'Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity.'" ¶47 (citation omitted). Id., "[A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." Id. The test for ambiguity keeps the focus the statute, on the text of and as a result, a disagreement about the statutory meaning is not enough to render a statute ambiguous. Id. The test inquires whether "'well- informed persons should have become confused,'" i.e., does the language reasonably give rise to different meanings. Id. (citation omitted). A. Bakke's immunity from negligence ¶13 Whether Bakke is immune from liability in the case at hand involves the interpretation of Wis. Stat. § 895.525(4m)(a) 7 No. as that statute negligence. relates to the allegations 2006AP1886 of Bakke's We first address the language of the statute in order to determine if Bakke is qualified to receive immunity from a negligence suit arising out of an incident that occurred while he was School. participating as a cheerleader at Holmen High Noffke argues that Wis. Stat. § 895.525(4m)(a) provides immunity only to those persons who are competing in a contact sport. As a result, she asserts that cheerleading is neither competitive nor a contact sport, and thus, Noffke argues that Bakke is not entitled to immunity. language of the statute renders Bakke argues that the plain him immune from negligence because cheerleading involves physical contact between persons. We agree with Bakke and conclude that pursuant to Wis. Stat. § 895.525(4m)(a), Bakke is immune from liability because of the statute's plain language. Bakke was participating in a "recreational activity" that includes "physical contact between persons in a sport involving amateur teams[.]" ¶14 Wisconsin Stat. § 895.525(4m)(a) provides immunity from negligence actions for participants in a recreational activity that involves physical contact between persons in a sport involving amateur teams. Subsection (4m)(a), Liability of Contact Sports Participants, provides: A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused 8 No. 2006AP1886 the injury acted recklessly or with intent to cause injury. ¶15 For those recreational activities that do not involve physical contact, no under the statute. immunity from negligence actions See Wis. Stat. § 895.525(4). exists A recreational activity is defined as: In this section, "recreational activity" means any activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes hunting, fishing, trapping, camping, bowling, billiards, picnicking, exploring caves, nature study, dancing, bicycling, horseback riding, horseshoe-pitching, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, curling, throwing darts, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, participation in water sports, weight and fitness training, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other sport, game or educational activity. Wis. Stat. § 895.525(2). ¶16 Therefore, to obtain the benefit of immunity, a defendant must be (1) participating in a recreational activity; (2) that between recreational persons; (3) activity the must persons include must be physical contact participating in a sport; and (4) the sport must involve amateur teams. In this case, there is no dispute that cheerleading is a recreational activity. Noffke asserts that "Bakke's reliance on this statute is misplaced because he and Noffke were not engaged in a contact sport involving competitive teams." 9 (Emphasis added.) We No. address Noffke's two arguments regarding contact 2006AP1886 sports and competition in ¶¶24-34. ¶17 However, we note here that cheerleading, as discussed in ¶32, is a sport because a sport is "[a]n activity involving physical exertion and skill that is governed by a set of rules or customs;"3 and cheerleaders are on amateur teams because a team is "[a] group organized to work together"4 and cheerleaders, as provided in the spirit rules, are a group dedicated to leading fan participation and taking part in competitions. ¶18 this Accordingly, the central question to be answered in case between is whether persons." cheerleading While it is involves undeniable "physical that contact cheerleaders touch one another, i.e., they have physical contact with one another during the course of their activity, we utilize a dictionary to guide our interpretation and ensure that we have accurately defined the common, ordinary phrase at issue: "physical contact." See Swatek v. County of Dane, 192 Wis. 2d 47, 45 61, consult 531 a N.W.2d dictionary (1995) for the (stating common that this meaning of court a may word). Reliance on a dictionary, however, does not render a word or phrase ambiguous. Sample, 215 Wis. 2d at 499-500. 3 The American Heritage Dictionary of the English Language 1742 (3d ed. 1992). While this definition states that a sport is "often undertaken competitively," the definition does not require competition. 4 The American Heritage Dictionary of the English Language 1842 (3d ed. 1992). 10 No. ¶19 2006AP1886 The American Heritage Dictionary is frequently relied upon by courts. Id. at 500. It defines "contact" as follows: "1.a. A coming together or touching, as of objects or surfaces. b. The state proximity[.]" Language 406 "physical" as or condition of touching or of immediate The American Heritage Dictionary of the English (3d ed. follows: "1.a. The or dictionary defines relating to the body as or spirit . . . b. Involving or bodily activity: mind Of same distinguished from characterized by performance." Id. at 1366 (italics omitted). ¶20 the 1992). vigorous a physical dance As evident from the record, cheerleading involves a significant amount of physical contact between the cheerleaders that at times results in participants. the National a forceful interaction between the The record contains the 2004-05 spirit rules of Federation of State High School Associations. Pages 37 through 62 contain pictures illustrating the spirit rules that govern the various stunts. Every picture but one shows at least two cheerleaders in contact with one another. ¶21 The text of the spirit rules also supports the determination that cheerleading involves a significant amount of contact between cheerleaders. seven of the definition For example, rule one, section section describes a "pendulum." A pendulum is "[a] stunt in which the top person in a straight body position falls forward and/or backward away from the base(s) to a horizontal position to catchers while maintaining 11 No. 2006AP1886 constant hands-to-feet/legs contact with the base(s)."5 In the "General Risk Management" section of the spirit rules, rule two, section six, article seven provides that "[d]ismounts from multi-base stunts to a cradle must be cradled by at least two catchers and an additional head and shoulders catcher/spotter."6 ¶22 some of In addition to the physical contact discussed above, the forceful rule stunts interaction two, section performed between 2.12.3, by the the cheerleaders participants. "Tosses," provides produce For four a example, situations where one cheerleader is tossed up into the air and then caught by those same cheerleader. cheerleaders who originally tossed An illustration of another toss, the "Basket Toss to Original Bases With Spotter" is provided on page 57. illustration the reveals that multiple cheerleaders toss This another cheerleader high up into the air at least a full body length above the catchers' heads and then catch the cheerleader on the way down. ¶23 amount of Accordingly, contact cheerleading among the involves participants that a significant at times can 5 Physical contact between cheerleaders is also evident from other parts of the definition section: section three entitled "Dismounts," section five entitled "Extended Stunts," section nine entitled "Pyramid (Mount)," section eleven entitled "Suspended Stunts," and section twelve entitled "Pop-SweepToss." 6 Physical contact between cheerleaders is also evident from other parts of the "General Risk Management" section: section eight entitled "Pendulums/Flatbacks," section nine entitled "Pyramids/Mounts," section eleven entitled "Suspended Splits," and section twelve entitled "Tosses." 12 No. 2006AP1886 produce a forceful interaction between the cheerleaders when one person is tossed high into the air and then caught by those same tossers. from As a result, we conclude that cheerleaders are immune negligence recreational actions activity because that they participate includes physical contact in a between persons in a sport involving amateur teams. 1. Noffke's argument regarding physical contact ¶24 Noffke argues that cheerleading does not give rise to the type of physical contact contemplated by the legislature. Specifically, Noffke asserts that the type of physical contact contemplated by the legislature must be more than the incidental contact that takes place in cheerleading. title of subsection "Liability of (4m) contact for sports her Noffke relies on the argument, which participants." The provides: court of appeals accepted Noffke's argument and further relied on the dictionary definition of "contact sport." It determined that "'contact sport' is normally used to describe sports in which opposing players make aggressive and sometimes injury causing contact, such as football and hockey." Noffke v. Bakke, 2008 WI App N.W.2d 195 38, ¶16, 308 Wis. 2d 410, 748 (relying on Webster's New College Dictionary for a definition of "contact sport"). However, interpreting the statute in this manner is not persuasive for three reasons. ¶25 is First, reliance on the title for this interpretation problematic. subsections, history The paragraphs notes are not "titles and part to subchapters, subdivisions of 13 the of the statutes." sections, statutes Wis. and Stat. No. § 990.001(6). 2006AP1886 In addition, a title may not be used to alter the meaning of a statute or create an ambiguity where no ambiguity existed. Estate of Reichenberger v. Binder, 272 Wis. 176, 179, 74 N.W.2d 740 (1956). Therefore, reliance on the title is not persuasive. ¶26 not Furthermore, even if we looked to the title, it does provide hockey, clear boxing and guidance. as The examples dictionary of contact uses football, sports. See The American Heritage Dictionary of the English Language 406 (3d ed. 1992). However, subsection (4m) as both parties and the court of appeals have asserted was passed in response to Lestina v. West Bend Mutual Insurance Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993). In Lestina, this court concluded that negligence was the appropriate standard of care to govern the conduct of soccer match participants. Id. at 903. We doubt the legislature passed a statute in the wake of Lestina and then only protected aggressive contact sports such as football, hockey, or boxing. Relying on the title in this case requires this court to make a policy decision legislature. that is more appropriately by the Instead, we conclude that the plain language of the statute provides the answer. legislature's participate performed decision in to recreational We give due respect to the provide immunity activities that to persons include who physical contact between persons in a sport involving amateur teams. ¶27 Second, the language of the statute does not restrict its application to only "aggressive" sports such as football hockey, or boxing. Rather, 14 the statute encompasses any No. recreational activity that includes physical persons in a sport involving amateur teams. contact 2006AP1886 between If the legislature intended such a narrow construction, the legislature could have clearly placed such a restriction in the text of the statute.7 ¶28 not Third, Noffke's interpretation that the statute does apply competitive uncertainty. to "incidental" contact would How much contact be but difficult aggressive only to to apply competitive aggressive, and creates contact required for a sport to fall within that interpretation? is The purpose behind Wis. Stat. § 895.525, is to decrease uncertainty. (1) Legislative purpose. The legislature intends by this section to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public. Wis. Stat. § 895.525(1). 7 See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction (7th ed. 2007) (§ 46:3, "'Expressed' intent," stating "[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will"; § 46:6, "Each word given effect," stating "it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose"; § 47:23, "Expressio unius est exclusio alterius," stating "where a form of conduct, . . . there is an inference that all omissions should be understood as exclusions"; § 47:38, "Insertion of words," stating "[i]n construing a statute, it is always safer not to add to or subtract from the language of a statute unless imperatively required to make it a rational statute"). 15 No. ¶29 2006AP1886 Unlike Noffke's requirement that a sport must involve a requisite amount of aggressiveness in order to qualify for immunity, the plain meaning of the words chosen by the legislature lends certainty regarding the legal responsibilities and liabilities of those who participate in recreational activities. 2. Noffke's argument that competition is required ¶30 Noffke argues that subsection (4m)(a) applies only to competitive team sports. relies on the "recreational persons in portion activity a sport In support of this argument, Noffke of that subsection includes involving Noffke argues, would render physical amateur § 895.525(4m)(a) (emphasis added). (4m)(a) that states, contact between teams." Wis. Stat. To not require competition, this portion of the statute superfluous. ¶31 reasons. statute. We disagree First, no with Noffke's competition assertions requirement for exists three in the If the legislature sought to require competition, it could have used the word "competition." To assert that such a requirement exists because the word "teams" is plural, elevates one letter in the statute to an absurd importance that would change the entire scope and application of the statute, which seems unlikely because the legislature could have easily used the word "competition" to clearly articulate such a requirement.8 8 In any event, cheerleaders often engage in competition with the opponent's cheerleaders not only during a game but also during organized competitions. 16 No. While the legislature's use of a plural form 2006AP1886 is generally significant, in this case we decline to conclude that the use of the plural form dictates that the statute requires competition between two teams. ¶32 Second, no surplusage exists because the words of the statute are not ignored by our interpretation. between persons takes place in cheerleading. sport because exertion customs,"9 and a sport skill and that is is construing "[a]n the Cheerleading is a activity governed by word Physical contact involving a set "sport" of to physical rules or exclude cheerleading in this case is inconsistent with the purpose of the statute, which is discussed in ¶28.10 Cheerleaders are on amateur teams because a team is "[a] group organized to work together"11 and cheerleaders, as provided in the spirit rules, are a group dedicated to leading fan participation and taking part in competitions. 9 The American Heritage Dictionary of the English Language 1742 (3d ed. 1992). 10 While the question of whether cheerleading is a sport has apparently "been a matter of public debate," the parties in this case focus their arguments on whether cheerleading entails the type of physical contact contemplated by the statute and whether the statute requires competition. If the central issue was that cheerleading is not a sport, there would be no need to devote so much time to "contact." Because of the parties' focus and because construing sport to exclude cheerleading would defeat the purpose of the statute, as shown by its plain language, we conclude that cheerleading is a sport under Wis. Stat. § 895.525(4m)(a). 11 The American Heritage Dictionary of the English Language 1842 (3d ed. 1992). 17 No. ¶33 Third, produce inserting inconsistent a competition results. For 2006AP1886 requirement example, would assuming that immunity is not afforded because cheerleaders do not compete when cheering at a immunity, perhaps basketball the very game, next would day, when they then receive competing against other teams at a cheerleading competition? Similarly, under Noffke's analysis, when a hockey or football team practices but is not in competition with another team there is no immunity, but when that team plays a game the players receive immunity. Perhaps such legislature inconsistent specifically applications chose not to could insert be a why the competition requirement into this statute. ¶34 from Accordingly, we conclude that cheerleaders are immune negligence recreational persons in actions activity a sport that because they includes physical involving amateur participate contact teams. in a between However, we encourage the legislature to once again review this important statute and consider our interpretation and application to the facts of this case and how the statute may apply to such school team sports as golf, swimming, or tennis. B. Recklessness ¶35 The second issue we must address regarding Bakke's liability is whether the circuit court erred when it concluded as a matter of law that Bakke was not reckless. If he was reckless, Bakke is not entitled to immunity under the terms of the statute. Noffke argues that recklessness is a question of fact the jury must resolve, and she argues that in this case 18 No. 2006AP1886 Bakke knew he was a spotter responsible for Noffke's safety, Bakke heard others yelling at him to get behind Noffke, and he failed to take the appropriate position. Bakke, on the other hand, consisted of "mere failure to take argues that his conduct, which inadvertence, lack of skillfulness precautions," does not rise recklessness. We agree with the circuit court and conclude that to or the increased level of the record does not support a claim that Bakke was reckless. ¶36 "Recklessness 'contemplates a conscious disregard of an unreasonable and substantial risk of serious bodily harm to another.'" Werdehoff v. Gen. Star Indem. Co., 229 Wis. 2d 489, 507, 600 N.W.2d 214 (Ct. App. 1999) (citing Kellar v. Lloyd, 180 Wis. 2d 162, 184, 509 N.W.2d 87 (Ct. App. 1993)). The jury instruction committee provides: A participant acts recklessly if (his) (her) conduct is in reckless disregard of the safety of another. It occurs where a participant engages in conduct under circumstances in which (he) (she) knows or a reasonable person under the same circumstances would know that the conduct creates a high risk of physical harm to another and (he) (she) proceeds in conscious disregard of or indifference to that risk. Conduct which creates a high risk of physical harm to another is substantially greater than negligent conduct. Mere inadvertence or lack of skill is not reckless conduct. Wis JI Civil 2020. ¶37 The circuit court concluded that a finder of fact could not find any evidentiary support "that reflected anything beyond a lack of skill, inadvertence or simple negligence, that this was not a conscious disregard 19 for the safety of the No. plaintiff." We agree with the circuit court's 2006AP1886 conclusion. Bakke went in front of the base instead of to the back, and when people yelled at him to get to the back he froze and did not move fast enough. The record is simply devoid of anything that would indicate that Bakke consciously disregarded the risk of serious bodily harm to Noffke. Therefore, we conclude that the circuit court did not err when it concluded as a matter of law that Bakke was not reckless. C. Immunity of the school district ¶38 provides Next, we must determine whether Wis. Stat. § 893.80(4) the school district with immunity negligent acts of the cheerleading coach. for the alleged Noffke asserts that the cheerleading coach's cloak of immunity is removed by either of the following exceptions: (1) she violated a ministerial duty imposed by law; and (2) cheerleading involves a known and compelling danger that gives rise to a ministerial duty. ¶39 Noffke argues that the cheerleading coach violated a ministerial duty because the coach, as Noffke asserts, did not provide a spotter and mats as required by the spirit rules. In addition, Noffke argues that even if the coach did not violate a ministerial duty imposed by the spirit rules, the coach violated a ministerial duty that arose out of the known and compelling danger of allowing cheerleaders to perform a stunt for the first time without safety precautions. The school district, on the other hand, argues that no ministerial duty was violated because the school board did not officially adopt the spirit rules, the spirit rules were not violated, 20 and no known and compelling No. danger existed. 2006AP1886 We conclude that the school district is immune because no ministerial duty imposed by law was violated and there was no known and compelling danger that gave rise to a ministerial duty. ¶40 Wisconsin Stat. § 893.80(4) provides: No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. ¶41 This municipalities statute and provides their broad officers and immunity from employees. suit to Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶20, 253 Wis. 2d 323, 646 N.W.2d 314. It immunizes against liability for "legislative, quasi-legislative, judicial, and quasi-judicial acts, which have been collectively interpreted to include any act that involves the exercise of discretion and judgment." ¶42 However, no immunity against Id., ¶21. liability exists for those acts associated with: (1) the performance of ministerial duties imposed by law; (2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; (3) acts involving medical discretion; and (4) acts that are malicious, willful, and intentional. Id., ¶24. Noffke argues that the first two exceptions apply to the case at hand. 21 No. 2006AP1886 1. Ministerial duty imposed by law ¶43 The first exception arises out of a recognition that discretionary acts are immune whereas ministerial acts are not protected by immunity. Id., ¶25. "A ministerial duty is one that '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 discretion.'" that nothing remains for judgment or Id., ¶25 (citing Lister v. Bd. of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976)). ¶44 police For example, in Lodl, the plaintiff asserted that the officer had a ministerial duty to manually control traffic at an intersection where traffic lights were no longer working. Lodl, concluded that 253 the Wis. 2d 323, ¶¶6-8, applicable 27. statute This and the court police department's policy did not confer a ministerial duty on the police officer to manually direct traffic. Id., ¶¶27-28. The statute at issue did not direct the officer to perform manual traffic control in any specific situation, and the policy only described manual traffic control procedures decided to manually control traffic. Id. if the officer Neither the statute nor the policy eliminated the officer's discretion as to when or where to undertake manual traffic control. ¶45 the In the case at hand, the spirit rules do not eliminate cheerleading district Id., ¶¶28-31. did coach's not discretion. officially 22 adopt Moreover, the the spirit school rules. No. 2006AP1886 Nonetheless, Noffke asserts that the spirit rules required the cheerleading coach in this case to provide a spotter and mats. We disagree with Noffke's interpretation. The spirit rules leave a coach's discretion intact; they do not impose the type of ministerial duty that Noffke asserts because the spirit rules lack the absolute, prescribes and certain, defines the and time, imperative mode, and direction occasion that for the action's performance with such certainty that nothing remains for judgment or discretion. ¶46 First, the portion of the spirit rules that governs "Coaches' Responsibilities" specifically states: "The following guidelines have been developed and reviewed to serve as a useful reminder of basic (Emphasis added.) "Coaches' upon procedures coach. discretion. For coaching spirit squads." In addition, the relevant portions of the Responsibilities" the for Each do not confer relevant example, the a portion ministerial gives "Coaches' the duty coach Responsibilities" provides, "[a]ll spirit activities should be held in a location suitable for spirit activities with the use of mats, free of obstructions, and away from excessive noise or distractions." In addition, the "Coaches' Responsibilities" also provides that "[p]roper progression, spotting techniques and matting should be used until stunts are mastered." an "absolute, certain and Neither of these rules confers imperative" duty upon the coach. Rather, the tone is suggestive, which is evident from the use of language such as "should be" rather 23 than the mandatory word No. "shall." 2006AP1886 Moreover, each rule gives the coach discretion as to when and where spotting or matting would be appropriate. ¶47 fails Second, to Section confer four, the an "General Risk "absolute, article one of Management" certain the and spirit section imperative" rules states also duty. that "[s]potters are required until a stunt (mount, pyramid, toss, tumbling skill) is mastered," but article six states that "[a] spotter is required for stunts in which the supporting arm(s) of the base(s) is fully extended above the head . . . ." In this case, the post-to-hands stunt does not even require a spotter because the base's hands are not fully extended above the head. In addition, while the cheerleaders in this case had not performed this stunt together, the record reflects that they had performed more difficult stunts, Noffke thought it was a "medium easy" stunt, both Noffke and Bakke thought they could do the stunt, Bakke was a trained spotter, and the coach knew that "the level of difficulty they were used to was much higher." Therefore, the rules do not clearly mandate that a spotter was necessary, and thus, no ministerial duty imposed by law exists. ¶48 However, even if the spirit rules were interpreted as mandating a spotter in this case, the cheerleading coach did provide a spotter Bakke. The spirit rules define a spotter as "a person who is in direct contact with the performing surface and may help control the building of, or dismounting from, a stunt. This person(s) shall not provide the primary support, meaning the stunt or pyramid would remain stable without the spotter(s)." In this case, Bakke was on the ground, he assisted 24 No. 2006AP1886 in the building of the post-to-hands, and the stunt could remain stable without Bakke. Bakke was not the base, but rather, he served as the spotter to the stunt even though that stunt did not require a spotter. ¶49 Noffke argues that the rules impose a ministerial duty upon the coach to make sure the spotter is in the right position in order to be considered a spotter. However, we do not interpret this provision as conferring an "absolute, certain and imperative" duty on the coach. While it is true that Bakke should have been standing in the back instead of the front, he was there as a spotter. Only two persons are required for this stunt, but the coach, as a safety precaution, required an extra person to be present and serve as an extra spotter. ¶50 Noffke also argues that the cheerleading coach violated a ministerial duty by failing to provide matting as required matting by the rules. provision in We, the however, rule gives disagree the because cheerleading coach discretion and thus does not confer a ministerial duty. comment to provides rule that two, situation "[s]tunting appropriate surfaces lighting." As stated where above, ruling should there the be is 2.1.4, situation performed adequate "Coaches' only space any The B, on and Responsibilities" provides, "[a]ll spirit activities should be held in a location suitable for spirit activities with the use of mats, free of obstructions, and away from excessive noise or distractions." We do not interpret these provisions to prescribe and define the time, mode, and occasion for matting with such certainty that 25 No. nothing remains stunts would for judgment ultimately be or discretion. performed without In 2006AP1886 fact, these mats during a basketball game. ¶51 Accordingly, we conclude that the spirit rules provide the cheerleading coach with a significant amount of discretion. The spirit rules provide discretion rather than conferring any absolute, certain, imperative, and therefore ministerial duty. 2. Ministerial duty arising out of a known and compelling danger ¶52 Noffke also argues that cheerleading, under the facts of this case, is a known and compelling danger that gives rise to a ministerial duty. the theory that a This exception to immunity arises out of known and compelling danger may dangerous that a public officer has a duty to act. be so Lodl, 253 Wis. 2d 323, ¶¶33-34; Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 95-96, 596 N.W.2d 417 (1999). [A] public officer's duty is ministerial where a danger is known and of such quality that the public officer's duty to act becomes absolute, certain and imperative . . . . Stated otherwise, where a public officer's duty is not generally prescribed and defined by law in time, mode, and occasion, such that nothing remains for judgment or discretion, circumstances may give rise to such a certain duty where . . . the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act. . . . Lodl, 253 Wis. 2d 323, ¶34 (quotations and citations omitted). ¶53 This exception arose out Wis. 2d 525, 259 N.W.2d 672 (1977). of Cords v. Anderson, 80 In Cords, the plaintiffs fell into a steep, 90 feet-deep gorge while walking on a state 26 No. park trail, which did not have any warning signs. 35, 541-42. 2006AP1886 Id. at 534- The plaintiffs sued the park manager for failing to post warning signs even though he knew of the hazard. This court concluded that the known and compelling danger gave rise to a ministerial duty requiring the manager to post warning signs or advise his superiors of the hazardous condition. at 541-42. A ministerial duty arose because the danger was so clear and so absolute. ¶54 Id. Id. at 542. The court of appeals most recently applied the known and compelling danger exception in Voss v. Elkhorn Area School District, 2006 WI App 234, 297 Wis. 2d 389, 724 N.W.2d 420. In Voss, students were learning about the effects of alcohol by wearing "fatal vision goggles." Id., ¶2. When the goggles are worn, the situation is meant to replicate a .10 blood alcohol concentration. Id. While wearing the goggles, the teacher had students perform exercises such as walking in a straight line, shooting a ball at a garbage can, and standing on one leg. ¶3. Id., While participating in these exercises some of the students lost their balance, slipped or stumbled. Id. In addition to the above exercises, the teacher also arranged the classroom desks into three rows and instructed students to walk in between the rows and recover a tennis ball thrown by the teacher. ¶4. During this particular exercise, collided and slid on the floor. some Id., ¶6. of the Id., students Even after these initial problems, the exercise continued and one of the students tripped and hit her mouth on a desktop. injuries, the student lost one 27 tooth, Id. As a result of her fractured others, and No. 2006AP1886 ultimately had to have multiple root canals and crown work done on her teeth. ¶55 Id., ¶¶7-9. The court of appeals concluded that the known and compelling danger exception applied and thus precluded immunity. Id., ¶20. The court of appeals reasoned that despite the obvious hazards and knowledge of previous students falling, the teacher continued the exercise minimize or prevent injury. of appeals reasoned that and took Id., ¶19. in Voss, no precautions to Additionally, the court the teacher had only one reasonable choice to prevent or minimize danger, which was to stop the activity. Id., ¶20. The court of appeals contrasted the teacher's choice with the scenario that the police officer faced in Lodl. called out longer working. concluded to Recall that in Lodl, the police officer was that uncontrolled the an intersection Lodl, 253 where Wis. 2d 323, "[w]hile the intersection were situation nonetheless traffic lights ¶¶6-8. circumstances allowed for the This posed certainly known were no court by the and dangerous, exercise officer's discretion as to the mode of response." of Id., ¶46. the As a result, the police officer did not have a ministerial duty to perform manual traffic control. Id. chosen portable to control traffic flashing squad lights. ¶56 of signs, flares, or Id., ¶47. In the case at hand, the danger does not give rise to a ministerial duty danger with Rather, he could have such because force that there the is time, no known mode, and compelling and occasion for performance is evident with such certainty that nothing remains 28 No. for the exercise of discretion. Noffke and 2006AP1886 Bakke were performing a stunt that was less difficult than what they had performed in the past. Bakke was a trained spotter. Noffke and Bakke thought they could safely perform the stunt. Unlike in Cords where the situation was so compellingly dangerous and known that the park manager had no choice but to put up a sign or warn his superiors, the danger in the case at hand was not so compellingly dangerous as to remove all discretion. Moreover, unlike in Voss where only one action could have been taken, the cheerleading coach in this case had a wide range of acts that could have been used to prevent injury. In fact, the coach did exercise her discretion and provided a spotter in order to help prevent injury. ¶57 Again, Noffke argues that the coach did not act appropriately because she did not provide mats even though Bakke and Noffke had never before performed the stunt together. This assertion, however, sets forth a negligence argument rather than an argument that the danger gave rise to a ministerial duty. The immunity defense assumes negligence. ¶17. are Lodl, 253 Wis. 2d 323, While arguably mats should be provided when cheerleaders attempting relevant to our any stunt known and for the first compelling time, danger discussed before, mats were not a requirement. this is analysis. not As Here, the danger was not so known and compelling that the coach had no choice and no discretion but to provide mats for the cheerleaders. 29 No. 2006AP1886 V. CONCLUSION ¶58 Accordingly, we conclude that (1) pursuant to Wis. Stat. § 895.525(4m)(a), Bakke is immune from liability because he was participating in a recreational activity that includes physical contact between persons in a sport involving amateur teams; (2) the circuit court did not err when it concluded as a matter of law that Bakke was not reckless; and (3) the school district is immune because no ministerial duty was violated by the cheerleading coach and there was no known and compelling danger that gave rise to a ministerial duty. By the Court. The decision of affirmed in part and reversed in part. 30 the court of appeals is No. ¶59 in the SHIRLEY S. ABRAHAMSON, C.J. court's mandate but write 2006AP1886.ssa (concurring). separately to I concur set forth a different analysis of the question whether cheerleading is a "sport involving amateur teams" for purposes resolves this of Wis. Stat. § 895.525(4m)(a). ¶60 statutory The majority opinion interpretation in one short vexing of relying paragraph, issue on dictionary definitions of the key statutory words "sport" and "teams."1 Dictionaries may aid the court in determining the meaning of statutory words. case. But they do not in the present Dictionaries usually furnish more than one meaning to a word, and a court has to be careful not to select a friendly definition it likes from the many offered without explaining its choice. Thus resort to a dictionary can be, as Justice Scalia has written of the use of legislative history, "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."2 ¶61 not The dictionary definitions of "sport" and "teams" do demonstrate whether cheerleading is "a sport involving amateur teams" for purposes of Wis. Stat. § 895.525(4m). dictionaries suggest that the words "sport" and "team" The each connote an element of competition that may or may not be present in cheerleading. "Sport" is defined as "[a]n activity involving physical exertion and skill that is governed by a set of rules 1 See majority op., ¶17. 2 Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring). 1 No. 2006AP1886.ssa or customs and often undertaken competitively"3 or as "a game or contest esp. when involving individual skill or physical prowess on which money is staked."4 the same side, as in a "Team" is defined as "[a] group on game,"5 or as "a number of persons selected to contend on one side in a match (as in cricket, football, rowing, or a debate)."6 These definitions plainly suggest that team sports involve competition. ¶62 Connoting competition, the definitions of "sport" and "team" yield equivocal results when applied to an activity such as cheerleading. Although organized cheerleading competitions do exist,7 cheerleaders traditionally have not participated in organized competition and now do so only sometimes. Indeed, the 3 American Heritage Dictionary of the English Language 1742 (3d ed. 1992) [hereinafter American Heritage]. 4 Webster's Third New International Dictionary 2206 (1961) [hereinafter Webster's]. 5 American Heritage, supra note 3, at 1842. American Heritage denotes this particular definition of "team" as This applicable in the context of "Sports & Games." Id. sports-specific definition of "team" is the most relevant definition for purposes of Wis. Stat. § 895.525(4m), which refers specifically to sports teams and not to teams generally. Inexplicably, the majority opinion skips over American Heritage's sports-specific definition of "team" in favor of an alternative definition that obviously is meant to apply in broader contexts: "a group organized to work together: a team of engineers." Id. (italics in original). See also majority op., ¶17 (quoting this definition in part). 6 Webster's, supra note 4, at 2346. 7 See World Cheerleading Association, 2007-2008 WCA National Champions, at http://www.cheerwca.com/2007-champions-results.htm (last visited Jan. 20, 2009). 2 No. 2006AP1886.ssa cheerleading squad at issue in the present case apparently did not participate Consequently, in it any is organized unclear competitions.8 cheerleading whether cheerleading is "often undertaken competitively"9 or constitutes "a game or contest."10 Nor is it clear whether a cheerleading squad may be considered "[a] group on the same side, as in a game,"11 or "a number of persons selected to contend on one side in a match."12 ¶63 'common, This court ordinarily ordinary, and gives accepted statutory meaning.'"13 language The "its dictionary definitions of "sport" and "team" do not demonstrate whether it is the common, ordinary, and accepted practice cheerleading as a "sport involving amateur teams." to regard At best, the dictionaries demonstrate only that the statutory words "sport" and "team" can be used in reference to cheerleading and 8 See majority op., ¶3 (stating only that Noffke was a varsity basketball cheerleader; not mentioning any sort of organized cheerleading competitions). 9 American Heritage, supra note 3, at 1742. 10 Webster's, supra note 4, at 2206. 11 American Heritage, supra note 3, at 1842. Although a cheerleading squad obviously represents "a group on the same side," it is uncertain whether a cheerleading squad is "in a game" any more than the fans are. The squad in the present case cheers at high school basketball games. It could reasonably be stated that these basketball games involve only two teams (the ones that play basketball), not four teams as the defendants might appear to argue. 12 Webster's, supra note 4, at 2346. 13 Majority op., ¶10 (quoting State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. 3 No. 2006AP1886.ssa cheerleading squads, not that it is the common, ordinary, and accepted practice to use these words in such a manner. Justice Scalia has written, a court must not overlook As "the distinction between how a word can be used and how it ordinarily is used" when interpreting statutory text.14 ¶64 It is hardly surprising that the dictionaries do not definitively determine whether cheerleading constitutes a "sport involving amateur teams." Whether cheerleading should be considered a team sport has been a matter of public debate. Just this last September, a Washington Post article stated that "cheerleading is not officially considered a sport at most high schools and universities" and that "cheerleading in most states is not considered a sport; it's an 'activity' such as chess club and debating."15 It would be very odd if the high schools, universities, and states that do not consider cheerleading a sport could discover the error of their ways simply by consulting a dictionary. ¶65 As I see this case, the statute's phrase "a sport involving amateur teams" must be interpreted in light of the legislature's express purpose of "decreas[ing] uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby 14 Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (emphasis in original). 15 Rooting for Safety, Washington Post, Sept. 9, 2008, at HE01. 4 No. to help assure the continued availability in 2006AP1886.ssa this state of enterprises that offer recreational activities to the public."16 ¶66 The application of Wis. Stat. § 895.525(4m) would be fraught with uncertainty if competition were taken to be the essence of a "sport involving amateur teams" under the statute. As the majority opinion points out,17 a cheerleading squad may cheer at a basketball game one day but organized cheerleading contest the next. of decreasing statutory uncertainty phrase "sport would involving not then compete in an The statute's purpose be amateur furthered teams" if imposed the a requirement of competition on cheerleading limiting the scope of Wis. Stat. § 895.525(4m). 16 Wis. Stat. § 895.525(1). See also Racine Harley-Davidson, Inc. v. State Div. of Hearings & Appeals, 2006 WI 86, ¶92, 292 Wis. 2d 549, 717 N.W.2d 184 (2006) (construing the statute's terms to be consistent with its express purpose); State v. Hayes, 2004 WI 80, ¶39, 273 Wis. 2d 1, 681 N.W.2d 203 (2004) ("We therefore turn to an analysis of the purpose[] . . . of the statute to determine the interpretation that gives the statute its intended effect."). 17 Majority op., ¶33. 5 No. ¶67 2006AP1886.ssa Accordingly, because cheerleading can be construed as "a sport involving amateur teams" and such construction furthers the purpose of Wis. Stat. § 895.525, I conclude that Wis. Stat. § 895.525(4m)(a) covers high school cheerleaders. For the reasons set forth, I write separately. ¶68 I am authorized to state BRADLEY joins this opinion. 6 that Justice ANN WALSH No. 1 2006AP1886.ssa
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