> For the complete documentation index, see [llms.txt](https://studies-de-jure.gitbook.io/learn/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://studies-de-jure.gitbook.io/learn/primers/reading-briefing/brief-the-case-exercise/model-brief-for-brief-the-case-exercise.md).
# Model Brief for "Brief the Case" Exercise
## *Estate of Cavanaugh v. Andrade*, 202 Wis.2d 290, 550 N.W\.2d 103 (1996)
## **Facts**
* Andrade was approaching an intersection when he observed Zergoski pass several stopped vehicles and speed through a solid red traffic signal controlling the intersection. Andrade turned at the intersection and increased his speed to follow Zergoski.
* Andrade activated his emergency lights and siren approximately two blocks later, which caused Zergoski to begin to pull over; Zergoski again fled at a high rate of speed and turned onto 39th Street. Approximately six to seven blocks later, Andrade observed Zergoski's vehicle stalled in an intersection. Andrade was able to approach close enough to observe Zergoski's license plate number, which he relayed to the dispatcher. Zergoski restarted his vehicle and again fled at a high rate of speed along West Morgan Avenue, which is a main arterial street within a primarily residential neighborhood.
* At the intersection of 60th Street and Morgan, Zergoski went through another red light and collided with a vehicle driven by Donald Cavanaugh. According to witnesses, Zergoski was \[traveling] between 60 and 80 miles per hour approximately two blocks prior to this intersection. Andrade estimated that he was approximately one block away from this collision when it occurred. A witness testified that Andrade was within approximately one-half block of Zergoski's vehicle when it entered the intersection. In all, the pursuit spanned approximately 17 blocks.
* As a result of the collision, Cavanaugh died after spending five months in a coma.
* James Cavanaugh, Donald's father, sued the city, Andrade, and Zergoski, individually and as administrator of Donald's estate. Cavanaugh’s estate claimed Andrade should be liable due to Andrade’s negligent failure to terminate the pursuit and the operation of his vehicle.
* The estate also claimed that the city should be liable because its pursuit policy failed to advise its officers to consider the severity of the crime when deciding to initiate or continue a chase as mandated by Wis. Stat § 346.03(6):
> Every law enforcement agency that uses authorized emergency vehicles shall provide written guidelines for its officers and employees regarding exceeding speed limits under the circumstances specified in sub. (4) and when otherwise in pursuit of actual or suspected violators. The guidelines shall consider, among other factors, road conditions, density of population, severity of crime and necessity of pursuit by vehicle. The guidelines are not subject to requirements for rules under ch. 227. Each law enforcement agency shall review its written guidelines by June 30 of each even-numbered year and, if considered appropriate by the law enforcement agency, shall revise those guidelines.
* Cavanaugh claimed City was negligent because its high-speed pursuit policy didn’t comply with Wis. Stat. § 346.03 (Applicability of rules of the road to authorized emergency vehicles):
> **(1)** The operator of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law ... may exercise the privileges set forth in this section, but subject to the conditions stated in subs. (2) to (5).
>
> **(2)** The operator of an authorized emergency vehicle may:
>
> (a) Stop, stand or park, irrespective of the provisions of this chapter;
>
> (b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
>
> (c) Exceed the speed limit;
>
> (d) Disregard regulations regarding direction of movement or turning in specified directions.
>
> \[…]
>
> **(5)** The exemptions granted the operator of an authorized emergency vehicle by this section do not relieve such operator from the duty to drive with due regard under the circumstances for the safety of all persons nor do they protect such operator from the consequences of his or her reckless disregard for the safety of others.
* At trial, a jury found the City 23% negligent with respect to implementation of its high-speed pursuit policy, Andrade 2% negligent with respect to the operation of his vehicle, and Zergoski 75% negligent.
## **Issue(s)**
1. Does the immunity defense apply in the context of injuries arising out of a high-speed pursuit in which pursued vehicle collides with a third person under the circumstances of this case?
2. If the immunity defense does not apply, did the City and/or Andrade negligently cause Cavanaugh's harm?
## **Holding**
1. Under the circumstances of this case:
1. The immunity defense does not apply to the City, and
2. The immunity defense applies to a pursuing officer's discretionary acts but not any ministerial acts that apply to the pursuit.
2. If the immunity defense did not apply:
1. There was credible evidence to support the verdict that (1) the City was negligent and (2) the negligence was causal.
2.
3. Andrade is not immune with respect to the safety of his driving; Wis. Stat. § 346.03(5) creates a ministerial duty to operate the vehicle with “due regard for the safety of others.”
* Neither the city nor Andrade caused the harm.
## **Rule(s)**
* Andrade was approaching an intersection when he observed Zergoski pass several stopped vehicles and speed through a solid red traffic signal controlling the intersection. Andrade turned at the intersection and increased his speed to follow Zergoski.
* Andrade activated his emergency lights and siren approximately two blocks later, which caused Zergoski to begin to pull over; Zergoski again fled at a high rate of speed and turned onto 39th Street. Approximately six to seven blocks later, Andrade observed Zergoski's vehicle stalled in an intersection. Andrade was able to approach close enough to observe Zergoski's license plate number, which he relayed to the dispatcher. Zergoski restarted his vehicle and again fled at a high rate of speed along West Morgan Avenue, which is a main arterial street within a primarily residential neighborhood.
* At the intersection of 60th Street and Morgan, Zergoski went through another red light and collided with a vehicle driven by Donald Cavanaugh. According to witnesses, Zergoski was \[traveling] between 60 and 80 miles per hour approximately two blocks prior to this intersection. Andrade estimated that he was approximately one block away from this collision when it occurred. A witness testified that Andrade was within approximately one-half block of Zergoski's vehicle when it entered the intersection. In all, the pursuit spanned approximately 17 blocks.
* As a result of the collision, Cavanaugh died after spending five months in a coma.
* James Cavanaugh, Donald's father, sued the city, Andrade, and Zergoski, individually and as administrator of Donald's estate. Cavanaugh’s estate claimed Andrade should be liable due to Andrade’s negligent failure to terminate the pursuit and the operation of his vehicle.
* The estate also claimed that the city should be liable because its pursuit policy failed to advise its officers to consider the severity of the crime when deciding to initiate or continue a chase as mandated by Wis. Stat § 346.03(6):
> Every law enforcement agency that uses authorized emergency vehicles shall provide written guidelines for its officers and employees regarding exceeding speed limits under the circumstances specified in sub. (4) and when otherwise in pursuit of actual or suspected violators. The guidelines shall consider, among other factors, road conditions, density of population, severity of crime and necessity of pursuit by vehicle. The guidelines are not subject to requirements for rules under ch. 227. Each law enforcement agency shall review its written guidelines by June 30 of each even-numbered year and, if considered appropriate by the law enforcement agency, shall revise those guidelines.
* Cavanaugh claimed City was negligent because its high-speed pursuit policy didn’t comply with Wis. Stat. § 346.03 (Applicability of rules of the road to authorized emergency vehicles):
> **(1)** The operator of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law ... may exercise the privileges set forth in this section, but subject to the conditions stated in subs. (2) to (5).
>
> **(2)** The operator of an authorized emergency vehicle may:
>
> (a) Stop, stand or park, irrespective of the provisions of this chapter;
>
> (b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
>
> (c) Exceed the speed limit;
>
> (d) Disregard regulations regarding direction of movement or turning in specified directions.
>
> \[…]
>
> **(5)** The exemptions granted the operator of an authorized emergency vehicle by this section do not relieve such operator from the duty to drive with due regard under the circumstances for the safety of all persons nor do they protect such operator from the consequences of his or her reckless disregard for the safety of others.
* At trial, a jury found the City 23% negligent with respect to implementation of its high-speed pursuit policy, Andrade 2% negligent with respect to the operation of his vehicle, and Zergoski 75% negligent.
## **Issue(s)**
1. Does the immunity defense apply in the context of injuries arising out of a high-speed pursuit in which pursued vehicle collides with a third person under the circumstances of this case?
2. If the immunity defense does not apply, did the City and/or Andrade negligently cause Cavanaugh's harm?
## **Holding**
1. Under the circumstances of this case:
1. The immunity defense does not apply to the City, and
2. The immunity defense applies to a pursuing officer's discretionary acts but not any ministerial acts that apply to the pursuit.
2. If the immunity defense did not apply:
1. There was credible evidence to support the verdict that (1) the City was negligent and (2) the negligence was causal.
2.
3. Andrade is not immune with respect to the safety of his driving; Wis. Stat. § 346.03(5) creates a ministerial duty to operate the vehicle with “due regard for the safety of others.”
* Neither the city nor Andrade caused the harm.
## **Rule(s)**
### 1. Immunity, Generally
* Discretionary duties are within the scope of immunity; ministerial duties are not protected by immunity.
* Ministerial duties exist when the duty 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 that nothing remains for judgment or discretion."
* Wis. Stat. § 893.80(4) provides immunity for discretionary acts.
### 2. Claim Against the City: Liability for Damages
* The plaintiff must show (1) that the City breached its ministerial duty and (2) a causal connection between the City’s breach and the harm.
* The test for determining causation is whether the conduct was a substantial factor in producing the injury.
### 3. Claim Against Andrade
* For Andrade to be liable, there must be evidence that his actions caused the harm
## **Analysis**
### Claim Against the City
* **Immunity & Breach of Duty.** The City cannot be immune from the fact that its pursuit policy failed to consider severity of the crime as a factor regarding speed limits and pursuits. Wis. Stat. § 346.03(6)’s use of "shall" means that the duty to provide written guidelines that consider the severity of the crime is “absolute, certain and imperative, involving merely the performance of a specific task" (e.g., "shall provide written guidelines" and "guidelines shall consider ... severity of crime and necessity of pursuit"). Because of (a) immunity does not apply when there is a failure to comply with a ministerial duty and (b) the City breached a ministerial duty, the City cannot be immune.
* **Negligence: Causation.** Because neither the officer nor the supervisor considered the severity of the crime in the decision to pursue, there was enough evidence for the jury to conclude that the City’s policy (which breached its ministerial duty) was a substantial factor in causing the harm.
### Claim Against Andrade
* **Immunity.** Andrade can be immune from decisions to initiate or continue a high-speed pursuit because the relevant language—"may"—is permissive and thus discretionary, and Wis. Stat. § 893.80(4) provides immunity from discretionary decisions.
* **Negligence & Causation.** Although initiating or continuing the pursuit was discretionary, there was a ministerial duty under Wis. Stat. § 346.03(5) to drive with due regard under the circumstances for the safety of all persons. Yet there was no evidence that Andrade’s operation of the vehicle (e.g., management and control, following too closely, failure to maintain proper lookout) to establish that he breached this ministerial duty. Further if it could be established that he breached a ministerial duty, there is no evidence that this conduct played a causal role in Cavanaugh's death due to the facts that (a) Andrade was one-and-a-half blocks away from the accident and (b) never made physical contact with anything.
{% hint style="info" %}
**Note to Students:** You probably observed that the rationale regarding the city, the court included reasoning about whether the city breached a duty, but that did not occur here regarding Andrade. The court chose to focus the negligence analysis on whether there was evidence that Andrade’s operation of the vehicle (negligent or otherwise) played a causal role (i.e., a substantial factor) in the harm.
This would be the court's "easy way out" of the analysis. You see, if the court determined—which it did—that Andrade's pursuit did not cause the harm, then it would not have to analyze whether Andrade's driving breached his duty to operate the vehicle with due regard for the safety of others.) In other words, if Andrade's conduct did not cause the harm, then he cannot be liable for negligence, even if he breached his duty.
***Usually***, however, courts analyze whether a defendant breached a duty before discussing whether a breach caused the harm.
{% endhint %}
***
License
[Model Brief for Brief the Case Exercise](/learn/primers/reading-briefing/brief-the-case-exercise/model-brief-for-brief-the-case-exercise.md) © 2024 by Matthew L. Mac Kelly is licensed under [CC BY-NC-SA 4.0](https://creativecommons.org/licenses/by-nc-sa/4.0/?ref=chooser-v1), except where otherwise noted.
This page is licensed under [CC BY-NC-SA 4.0](https://creativecommons.org/licenses/by-nc-sa/4.0/)
---
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