# Thompson v. Village of Hales Corners

> Wisconsin Supreme Court · November 30, 1983 · 115 Wis. 2d 289

URL: https://www.frixlaw.com/law-library/cases/9670540

## Case

- **Full name:** Jeff Thompson, Plaintiff-Respondent and Cross-Appellant, v. Village of Hales Corners, a Municipal Corporation, Defendant-Appellant and Cross-Respondent, Walter Nowicki, Inc., a Wisconsin Corporation, Defendant and Cross-Respondent
- **Court:** Wisconsin Supreme Court
- **Decided:** November 30, 1983
- **Citations:** 115 Wis. 2d 289; 340 N.W.2d 704; 840 N.W.2d 704; 1983 Wisc. LEXIS 3208
- **Precedential status:** Published
- **Opinion:** Dissent by Steinmetz
- **Judges:** Day, Steinmetz
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670540

## How later opinions describe it (automated extraction)

- holding that municipal liability limitation "has no application to a damage award under 42 U.S.C. [§] 1983 "

## Opinion text

STEINMETZ, J.
(dissenting). On the issue of a municipality’s limited liability for actions of its employees and officers, I disagree with the majority.
*320 The majority holds: “We conclude that the purpose behind sec. 1983 would be similarly defeated if deprivation of constitutional rights was not fully compensated because of a state statutory recovery ceiling.” (Swpra at 298.) I disagree with this rule and the reasoning of the majority in arriving at it.
Sec. 1983 was a post-Civil War act to assure all citizens of the United States their federal constitutional rights. The case law regarding the act has been spotty at best until the modern civil rights era. As close to present time as 1961, the United States Supreme Court held in Monroe v. Pape, 365 U.S. 167 (1961), that: “ ‘Congress did not undertake to bring municipal corporations within the ambit of [sec. 1983].’ ” This quote and meaning of Monroe is from Monell v. New York City Dept. of Social Services, 436 U.S. 658, 664 (1978). In the Monell case, the Court reversed Monroe v. Pape with stare decisis having a life therefore of 17 years in this area of law.
The holding in Monell at 694 , was:
“We conclude, therefore, that a local government may not be sued under sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under sec. 1983.”
However, Monell left open the limits of local governmental liability. It said at 695:
“[W]e have no occasion to address, and do not address, what the full contours of municipal liability under sec. 1983 may be. We have attempted only to sketch so much of the sec. 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.”
*321 In Monell , the Court at 701 significantly held:
“ [W] e express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under sec. 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under sec. 1983 ‘be drained of meaning,’ Scheuer v. Rhodes, 416 U.S. 232, 248 (1974). Cf. Bivens v. Six Unknown. Fed. Narcotics Agents, 403 U.S. 388, 397-398 (1971).”
In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court recognized that rights, constitutional and otherwise, do not exist in a vacuum.
In Carey at 258 , the Court spoke of the difficulty of adopting the common law of compensation for deprivation of constitutional rights but that the task would have to be undertaken.
Robertson v. Wegmann, 436 U.S. 584, 590 (1978), held:
“In resolving questions of inconsistency between state and federal law raised under sec. 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at ‘the policies expressed in [them].’ Sullivan v. Little Hunting Park, Inc., supra, at 240; see Moor v. County of Alameda, supra at 703. Of particular importance is whether application of state law ‘would be inconsistent with the federal policy underlying the cause of action under consideration.’ ”
In Robertson , at 593, the Court stated: “But sec. 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.”
In Robertson , the dissent criticized the majority opinion for first looking to the state law and its effect on the sec. 1983 action and looking next at “federal common law.” But even the dissent recognized the need to “resort to the state statute only if the federal laws ‘are not *322 adapted to the object’ of ‘protection of all persons in the United States in their civil rights, ... or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law.’ ” Id. at 595 .
Owen v. City of Independence, 445 U.S. 622, 640 (1980), held that local governments are subject to liability for acts of individuals when the act done is by express authority of the municipal corporation, where they [the individuals] are empowered to act for the government “ ‘upon the subject to which the particular act relates; and for any act which, after it has been done, has been lawfully ratified by the corporation,’ ” citing Shearman, T. and Redfield, A., A Treatise on the Law of Negligence, sec. 120 at 139 (1869).
In Owen , at 655, the Court stated:
“Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated.”
The foregoing is a statement of a benevolent, deep pocket philosophy; however, its true meaning will be known when the court is presented, as here, with a governmental unit of taxpayers the size of South Milwaukee and not a state governmental unit or a municipality the size of Independence, Washington, D.C. or larger. It is incomprehensible that there would be insurance coverage to protect municipal governments for policies or acts of its employees where liability may be established in “newly recognized” violation of previously unknown rights. No insurance company could issue such policy since the premium would not have any certainty nor be based on any predictable experience. If issued, the premiums would by necessity be prohibitive.
*323 In Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the Supreme Court denied punitive damages against a municipal corporation in a sec. 1983 action and it spoke of Owen considering equitable distribution of losses from official misconduct and that punitive damages would unfairly punish for the deeds of “persons over whom they had neither knowledge nor control.” Id. at 266-67. The significant language used was: “We see no reason to believe that Congress’ opposition to punishing innocent taxpayers and bankrupting local governments would have been less applicable with regard to the novel specter of punitive damages against municipalities.” Id. at 266.
It is incongruous and incomprehensible that the Supreme Court would hold that taxpayers are not subject through their local governmental units for punitive damages for official and intentional policies of their local governments and yet be held to unlimited compensatory damages. Certainly, when the Supreme Court considers the issue of local governments, through state laws limiting their liability, it will display awareness of local governments by nature varying in size and numbers of taxpayers and recognizing the need for limiting liability at a reasonable level.
Under the decision of the majority, a victim of a sec. 1983 violation could, if a jury grants it, recover unlimited dollar amounts and yet, this same Supreme Court of Wisconsin has upheld the permissibility of local units of government to be limited in exposure for serious and crippling physical injuries caused by its officers’ and employees’ negligence under sec. 895.43, Stats. Sambs v. City of Brookfield, 97 Wis. 2d 356 , 293 N.W.2d 504 (1980), upheld the then $25,000 limit of liability for torts (other than sec. 345.05, for motor vehicle accidents) as not violating the equal protection clause of the Fourteenth Amendment nor the Wisconsin Constitution Art. I, sec. 1.
*324 Either the Sambs case result should be reexamined since insurance protection is available to local governmental units for such predictable torts and resulting injuries, or the majority in the instant case has created an unacceptable dichotomy.
If the government acts with evil intent in its policy, punitive damages are not recoverable. If government has a policy but it is otherwise innocent except for its application, then damages are wide open and unlimited. If the government causes severe injury through the negligence of its officers or employees, its liability is limited to $25,000 (now $50,000) even though it is protected by a greater limit in an insurance policy. This is an area of inconsistencies partly created by the majority’s decision in the instant case.
The majority does not state directly who is to receive the attorney fees granted; however, by citing 42 U.S.C. sec. 1988 to the effect that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs,” it implies that the plaintiff, Jeff Thompson, is allowed the fees. The court’s ruling on the attorney fees means the attorney is still only entitled to the percentage he contracted with his client to accept.
As the majority holds, the attorney will only receive his contingent fee. The greater amount over that recoverable under the majority ruling will go to the plaintiff in addition to his recoverable damages of $88,000. I cannot see how that will encourage attorneys in the future to accept cases in the untrammeled sec. 1983 actions, nor does it meet any logic to allow the plaintiff to recover more than the jury found to be his loss. The intention in allowing a plaintiff to collect attorney fees is to encourage attorneys to accept sec. 1983 causes and to *325 relieve plaintiffs with legitimate claims of the burden of legal costs. This policy was not intended as a reward for successful claimants nor as a penalty against the government.
In the instant case, I disagree with the rationale of the majority only, not the result as to the attorney fees. The majority’s ruling as to unlimited liability exposure for the municipality results in upholding the $88,000 damage award. One-third of $88,000 is $29,333, one-fourth of $88,000 is $22,000, one-half of $88,000 is $44,-000, so whatever the contingent fee arrangement is, the majority’s award of $23,180 to the plaintiff for attorney fees does not unjustly enrich the plaintiff. However, the reasoning of the majority in adopting the rule as to attorney fees can lead to punishment of defendants for defending rather than reimbursing plaintiffs for initiating the action.
I would reverse the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670540. Public record. Not legal advice.