This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1995-96).
¶ 2. In its certification to this court, the court of appeals framed the issue as whether a merchant or its agents are immune from liability under Wis. Stat. § 943.50(3) for actions taken while attempting to detain a suspected shoplifter by pursuing him or her off of the merchant's premises.
¶ 3. We do not decide whether the three "reasonableness" requirements were met in this case because we uphold the circuit court's grant of summary judgment on a different ground. Namely, we hold that summary judgment was warranted because Peters' negligence exceeded any possible negligence of the defendants as a matter of law. Therefore, we affirm the circuit court's entry of summary judgment in favor of Menard and API.
¶ 4. On May 5, 1994, Chad Wright, an employee of API, was working as a plain clothes security guard at Menard's La Crosse, Wisconsin, store. He observed a person he later identified as Brian Peters take a box containing a drill off of a shelf. Wright saw Peters place the box into his shopping cart and push the cart through an exist door located in the carpet department. The door led to Menard's lumber yard, where Wright continued to watch Peters. Peters pushed the cart to a parked truck and placed the drill box into the back seat of the truck's extended cab. He then returned the cart to the store, walked back to the truck, and sat down in the back seat.
¶ 5. Wright flagged down one of Menard's lumber yard employees and asked him to watch Peters. Wright went into a back office of the store and reported his observations to Dean King, the store manager. King
¶ 6. When he returned to the lumber yard, Wright saw two other people get into the truck. The truck proceeded to another area of the yard to pick up materials and then drove toward the guard shack to exit the yard. Dan Kind, another API employee, was stationed at the guard shack. Wright asked Kind to perform his normal check-out duties while Wright approached the truck.
¶ 7. Wright walked to the truck and asked to speak with the rear seat passenger, Brian Peters. When Peters got out of the truck, Wright identified himself and asked about the drill. Wright could see the drill box, which appeared to be open, in the truck's back seat.
¶ 8. Peters denied any knowledge of a stolen drill. According to Wright, Peters kept "dodging the issue." Wright Dep. at 38-39. Wright eventually requested that Peters take the box and accompany him
¶ 9. Wright shouted at Peters to "stop," but Peters continued running. Peters sprinted across Menard's premises to Monitor Street, traveled west on Monitor, and ran up onto an embankment. Wright ran after Peters, closing within ten feet of Peters at times. When Wright reached the top of the embankment, he dove at Peters, but missed him. According to Wright, his intent in diving at Peters was to stop him.
¶ 10. After the dive, Wright fell down. When he got up again, Peters was almost to the point at which the bike path intersects the embankment. Wright began running again, but at a much slower pace. According to Wright, he was tired and was simply trying to see where Peters was going. At that moment, Wright noticed for the first time that Dan Kind was coming across Monitor Street. Wright slowed to a walk to wait for Kind.
¶ 11. According to Wright, Kind took over the pursuit at that point, and Wright lagged behind. Kind followed Peters onto the bike path, where he chased Peters for about 100 yards. Throughout the chase, both guards shouted "stop" repeatedly at Peters, to no avail. Kind followed as Peters exited the path and ran down an embankment and into the woods. About fifteen to twenty yards into the woods, Kind dove or fell toward Peters but never made contact with him.
¶ 13. According to Wright, both guards were "stunned" that Peters would jump into the river. Wright Dep. at 49. When Peters attempted to swim across the river, however, the guards yelled words of encouragement to Peters and attempted to get him to grab onto a fallen tree. Peters did try to grab a downed tree near the other side of the flooded river. Unfortunately, the fast-moving current swept Peters back to the river's middle, where he went underwater.
¶ 15. Peters' estate, widow, and children brought a wrongful death suit against Menard, API, and their insurers, alleging that the negligent conduct of the Menard and API employees caused Peters' death.
¶ 16. The circuit court specified two grounds for its grant of summary judgment to defendants Menard and API. First, the circuit court ruled that defendants were immune from liability pursuant to Wis. Stat. § 943.50(3). The court found that the Menard and API employees had reasonable cause to believe that Peters shoplifted the drill. The court also found that the security guards' actions were reasonable under the circumstances of the case and that there was "no dispute as to any material fact regarding that [issue]." Motion Hearing Tr., Mar. 13, 1997 at 16.
¶ 17. Second, the circuit court determined that Peters' negligence was equal to or greater than any
Motion Hearing Tr., Mar. 13, 1997 at 17. Accordingly, in a written order filed April 16, 1997, the circuit court dismissed the complaint.
¶ 18. The court of appeals certified the plaintiffs' appeal to this court, pursuant to Wis. Stat. (Rule) § 809.61. In its certification, the court of appeals stated, "the question we certify is whether a merchant or the merchant's employees and agents may be immune from civil or criminal liability under § 943.50(3), Stats., when their attempt to `detain' a person suspected of retail theft includes pursuit of that person to a place other than the merchant's establishment." Certification at 3. In granting the certification, this court accepted review of all issues raised before the court of appeals.
¶ 19. We begin by addressing the certified question: whether a merchant or its agents are immune from liability under Wis. Stat. § 943.50(3) (reprinted
¶ 20. The primary goal of statutory interpretation is to determine the legislature's intent. Miller, 219 Wis. 2d at 271; Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 632, 547 N.W.2d 602 (1996). First, we examine the plain language of the statute. Miller, 219 Wis. 2d at 271. When reasonable minds could attribute more than one meaning to a word or phrase in the statute, the word or phrase is ambiguous. State v.
¶ 21. The plain language of Wis. Stat. § 943.50(3) allows "[a] merchant, a merchant's adult employe or a merchant's security agent who has reasonable cause for believing that a person has violated this section in his or her presence" to "detain the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer. . . ." § 943.50(3). Section 943.50(3) provides immunity from civil or criminal liability to "[a]ny merchant, merchant's adult employe or merchant's security agent who acts in good faith in any act authorized under this section." § 943.50(3). It is clear from this language that immunity from liability for detaining a person exists only when three "reasonableness" requirements are met. See Miller, 219 Wis. 2d at 271-73; Hainz v. Shopko Stores, Inc., 121 Wis.2d 168, 173, 359 N.W.2d 397 (Ct. App. 1984). These requirements are: (1) there must be reasonable cause to believe that the person violated § 943.50; (2) the manner of the detention and the actions taken in an attempt to detain must be reasonable; and (3) the length of time of the detention and the actions taken in an attempt to detain must be reasonable. See § 943.50(3). See also Miller, 219 Wis. 2d at 271-73; Hainz, 121 Wis. 2d at 173.
¶ 22. The language of the statute does not clarify, however, the particular steps which may be taken by a
¶ 23. This court must presume that the legislature intends for a statute to be construed in a manner that furthers the statute's underlying purpose. Verdoljak, 200 Wis. 2d at 635. The purpose of Wis. Stat. § 943.50(3) is to provide merchants with a mechanism for protecting themselves against shoplifters while safeguarding customers' liberty interests. See Johnson v. K-Mart Enters., Inc., 98 Wis.2d 533, 541, 297 N.W.2d 74 (Ct. App. 1980). It surely must have occurred to the legislature that for a variety of reasons, including guilt and fear of public humiliation, many suspected shoplifters would be unwilling to stop and submit to detention upon a merchant's verbal requests. In such situations, the legislature must have envisioned that merchants would take steps, including pursuing a suspect, in order to achieve a detention. A reasonably conducted pursuit would not violate customers' rights in any way. Without the ability to pursue, however, merchants would have no meaningful way to protect themselves from any suspected shoplifters who chose to simply ignore the merchant and walk away. The purpose of the statute would be defeated.
Restatement (Second) of Torts § 120A (1964). There is a caveat to § 120A, which reads, "The Institute expresses no opinion as to whether there may be circumstances under which this privilege may extend to the detention of one who has left the premises but is in their immediate vicinity." Restatement (Second) of Torts § 120A caveat (1964). There is also a comment on the caveat, part of which states, "[T]he Caveat is intended to leave open the question whether the privilege extends to the detention of one who has left the premises but is still in their immediate vicinity, as, for example, where the person suspected has gone out of the door of a shop, and is half-way across the sidewalk on the way to his [or her] car." Restatement (Second) of Torts § 120A caveat, cmt. i (1964).
¶ 25. Although § 120A of the Restatement contains language expressly restricting merchants to detentions "on the premises," Wis. Stat. § 943.50(3) contains no such phrase. Both the caveat and the specific
¶ 26. The context of Wis. Stat. § 943.50(3) also suggests that the legislature intended for "detain" to include pursuit. An examination of other subsections of § 943.50 reveals that evidence of "intent to deprive the merchant permanently of possession, or the full purchase price, of the merchandise" is a necessary element of retail theft. § 943.50(1m). Under subsection (2) of § 943.50, "[t]he intentional concealment of unpurchased merchandise which continues. . .beyond the last station for receiving payments in a merchant's store" constitutes evidence of this "intent to deprive." § 943.50(2). It is common knowledge that the checkout stations in many stores are located at or near the stores' outside doors or boundaries. In such situations, reasonable cause for believing that a person violated § 943.50(1m) would not arise until the person left the store premises. If the legislature did not intend to allow merchants to follow or pursue suspects off of store premises in order to detain them, merchants in stores with such checkout station locations may have a hard time developing this reasonable cause and thereby obtaining the right to detain persons suspected of retail theft under § 943.50(1m). It is unlikely that the legislature intended for § 943.50(3) to provide merchants with so little protection in such a common scenario.
¶ 28. Finally, public policy supports a construction of "detain" which would include pursuit. This court will not adopt statutory constructions which lead to absurd or unreasonable results. Verdoljak, 200 Wis. 2d at 636. A decision by this court denying immunity under Wis. Stat. § 943.50(3) to merchants or their agents who pursue suspected shoplifters while attempting to detain them would have at least two adverse effects on society. First, it would strip merchants of much of their ability to recover shoplifted merchandise and apprehend shoplifters. Shoplifting is a widespread societal problem. A failure to catch shoplifters
¶ 29. Plaintiffs contend that even if Wis. Stat. § 943.50(3) sanctions pursuit of suspects on the merchant's premises, it does not in any circumstances allow pursuit of suspects off of the store's premises. Neither the statute nor case law provides a basis for a rule which per se prohibits pursuit off of a merchant's premises, and we decline to impose one. As we have already pointed out, both the context of the statute and section 120A of the Restatement (Second) of Torts suggest that the legislature intended to permit pursuit off of the premises. Wisconsin Stat. § 943.50(3) limits the amount of pursuit via its three "reasonableness" requirements. We find these "reasonableness" requirements
¶ 30. We hold that Wis. Stat. § 943.50(3) provides immunity to a merchant or its agents for actions taken while attempting to detain a person, including pursuit, as long as the statute's three "reasonableness" requirements are met. The "reasonableness" requirements are: (1) there must be reasonable cause to believe that the person violated § 943.50; (2) the manner of the detention and the actions taken in an attempt to detain must be reasonable; and (3) the detention and the actions taken in an attempt to detain must continue for only a reasonable length of time. See § 943.50(3). In light of our decision that the circuit court's grant of summary judgment may be upheld on the ground that Peters' negligence, as a matter of law, exceeded any negligence which could be placed upon the defendants, we decline to decide whether the circuit court was correct in holding that the three "reasonableness" requirements were met in this case.
¶ 32. Four elements must exist for a plaintiff to maintain a cause of action for negligence: "(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995) (citations omitted). In Wisconsin, every person owes a duty of care to the entire world to refrain from conduct which foreseeably could cause harm to others. Miller, 219 Wis. 2d at 260. In addition, "[e]very person in all situations has a duty to exercise ordinary care for his or her own safety." Wis JI—Civil 1007. See also Murawski v. Brown, 51 Wis.2d 306, 314, 187 N.W.2d 194 (1971); Frederick v. Hotel Invs., Inc., 48 Wis.2d 429, 435, 180 N.W.2d 562 (1970); Johnson v. Grzadzielewski, 159 Wis.2d 601, 608, 465 N.W.2d 503 (Ct. App. 1990). As this court stated in Miller:
Miller, 219 Wis. 2d at 261 (quoting Wis JI—Civil 1005).
¶ 34. Public policy considerations can also preclude the imposition of liability on a defendant, even where it has been proven that negligence was a causein-fact of the injury. Miller, 219 Wis. 2d at 264. This court has identified six public policy reasons for denying recovery:
Id. at 265 (quoting Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 737, 275 N.W.2d 660 (1979)); see also Coffey v. Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132 (1976). Whether public policy considerations will result in nonliability is a question of law for the court to decide. Rockweit, 197 Wis. 2d at 425.
¶ 35. The court of appeals has applied these principles in two cases similar to the instant case. In Johnson v. Grzadzielewski, the court of appeals upheld the circuit court's grant of summary judgment to the defendants, who included the manufacturer and the installer/maintainer of an elevator. Johnson, 159 Wis. 2d at 605-07. The plaintiff in Johnson was injured after he tampered with the elevator in order to increase its speed and then tried to crawl out the top hatch of the elevator when it stopped. Id. The court of appeals held that the plaintiff was barred from recovery under Wis. Stat. § 895.045 because his contributory negligence was greater than that of any defendant. Id. at 605, 609. The court reasoned that the plaintiff breached his duty of ordinary care for his own safety by taking the actions which caused his injuries. Id. at 608-09.
¶ 36. The court in Johnson also based its decision on the public policy grounds that plaintiffs injury was
¶ 37. In an earlier case, the court of appeals dealt with a factual scenario even more like the one in the present case. See Brunette v. Employers Mutual Liability Insurance Company, 107 Wis.2d 361, 320 N.W.2d 43 (Ct. App. 1982). The plaintiff in Brunette sued a city and one of its police officers for injuries he received when the police officer struck the plaintiff's motorcycle following a high-speed chase. Brunette, 107 Wis. 2d at 362-63. The chase ensued after the plaintiff ran a stop sign and refused to pull over when the police officer attempted to stop him. Id. The court of appeals affirmed the circuit court's dismissal of the plaintiff's complaint, holding that the plaintiffs negligence exceeded the police officer's negligence as a matter of law. Id. at 362, 364. The court of appeals reasoned that the plaintiff "intentionally and without cause placed himself in a position of known danger. The fact that there was substantial risk inherent in [the plaintiffs] conduct would be apparent to any ordinarily prudent person." Id. at 364. The court stated:
Id. at 364 (citing numerous cases in which the court denied recovery to a plaintiff whose own negligent conduct precluded recovery).
¶ 38. The court of appeals also cited public policy reasons for its decision in Brunette. See id. at 365. The court stated, "By denying recovery to [the plaintiff], the court furthers a necessary state policy of encouraging traffic violators to submit to lawful arrests. . . .[The plaintiff] should be penalized, not rewarded, for his lawless conduct, which created a situation of imminent danger of serious bodily harm to himself and to others." Id.
¶ 39. In the present case, the circuit court found that Peters' negligence exceeded any negligence which could be placed on Menard and API as a matter of law. We agree. In intentionally and voluntarily entering the La Crosse River, Peters failed to exercise ordinary care for his own safety. The substantial risk inherent in jumping into a plainly flooded river with fast-moving current would be apparent to an ordinarily prudent person. Any such person would recognize that the river was of unknown depth due to the flooding and had a swift current. It is well known that entering rushing waters can result in serious injuries or drowning. Likewise, Peters knew, or should have known, that his decision to get into the river to evade the security guards involved a substantial risk that he would be seriously injured or would drown. Like the plaintiff in
¶ 40. The conduct of the security guards was far less culpable by comparison, if it was culpable at all. The guards, like everyone, had a duty to refrain from acts or omissions which foreseeably could cause harm to others. See Miller, 219 Wis. 2d at 260. The guards' actions, however, were taken entirely in response to Peters' own conduct. There is no evidence that the guards threatened Peters with harm or used any type of force. It is undisputed that the guards never touched Peters and that they abandoned their pursuit before they reached the flooded river. The guards could not have foreseen that Peters would go to such dangerous lengths to escape from them, especially after they quit pursuing him. Moreover, the guards both subjected themselves to substantial risk of harm by entering the river themselves in an attempt to rescue Peters from the peril he created.
¶ 42. Moreover, allowing recovery in this case would enter a field with no sensible stopping point. Suspected shoplifters who fled could recover from merchants and security companies for any injuries suffered while being pursued by security guards. This court does not wish to reward fleeing suspects who unreasonably place themselves in danger while attempting to get away from merchants and their security agents by allowing them to recover from the merchant and security company afterward. The preferable policy is to encourage suspected shoplifters to submit to lawful detentions by merchants and their agents.
¶ 43. Therefore, we hold that plaintiffs are barred from recovery pursuant to Wis. Stat. § 895.045(1) because Peters' negligence exceeded any negligence which could be placed upon defendants, as a matter of law. In addition, we conclude that plaintiffs are barred from recovery as a matter of law on public policy grounds.
¶ 44. Our holding that defendants are entitled to judgment as a matter of law, however, is not sufficient by itself to uphold the circuit court's grant of summary judgment in defendants' favor. In order for summary
¶ 45. We hold, therefore, that the plaintiffs are barred from recovery as a matter of law pursuant to Wis. Stat. § 895.045 because, as a matter of law, Peters' negligence exceeded any possible negligence on defendants' parts. Plaintiffs are also barred from recovery on public policy grounds. Because we also hold that there are also no genuine issues as to any material facts, we affirm the circuit court's grant of summary judgment in favor of Menard and API.
¶ 46. In sum, we conclude that § 943.50(3) immunizes a merchant or its agents from civil or criminal liability for actions taken while attempting to detain a person, including pursuit, as long as the statute's three "reasonableness" requirements are met. These three requirements are: (1) there must be reasonable cause
¶ 47. We do not decide whether the three "reasonableness" requirements were met in this case because we uphold the summary judgment for a different reason. We conclude that as a matter of law, Peters' negligence exceeded any negligence which could be attributed to defendants. We also hold that public policy considerations prevent plaintiffs from recovering. Therefore, we affirm the circuit court's grant of summary judgment in favor of Menard and API.
By the Court.—The judgment of the circuit court is affirmed.
We also note that the parties dispute whether the claims of Peters' children are valid since Peters' spouse survived him. See Hanson v. Valdivia, 51 Wis.2d 466, 475, 187 N.W.2d 151 (1971) (stating that surviving children cannot bring an action for wrongful death of one of their parents when the other parent survives). As we uphold the summary judgment against the plaintiffs on negligence grounds, we do not address this argument.