> 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/sourcebooks/cj-liability/unit-4-defenses-to-civil-litigation-and-risk-management/immunity-absolute-and-qualified/estate-of-cavanaugh-v.-andrade.md).

# Estate of Cavanaugh v. Andrade

[202 Wis.2d 290](https://scholar.google.com/scholar_case?case=959381001430553656\&q=202+wis.2d+290\&hl=en\&as_sdt=4,50) (1996)

Supreme Court of Wisconsin

**ESTATE OF Donald E. CAVANAUGH et al.**\
**v.**\
**Robert ANDRADE and City of Milwaukee; Gary Allen ZERGOSKI.**

## Opinion

ANN WALSH BRADLEY, J.

The plaintiffs, Estate of Donald Cavanaugh and James Cavanaugh, seek review, and the defendants, City of Milwaukee and police officer Robert Andrade, seek cross-review of a decision of the court of appeals that reversed a judgment against the City and affirmed a judgment against Andrade, which was entered by the Circuit Court for Milwaukee County \[...]. The City and Andrade assert immunity from liability for the injuries and death of Donald Cavanaugh which resulted from a collision with a vehicle being pursued by Andrade during a high-speed chase. Because the City has a ministerial duty to have a written policy for high-speed chases which includes consideration of the severity of the offense, we conclude that the City is not immune from liability. We also conclude that there is credible evidence to support the jury's verdict finding that the City breached its duty. Further, because Andrade's decisions to initiate and continue the chase were discretionary, we conclude that he is immune from liability. Accordingly, we reverse the decision of the court of appeals.

### I. FACTS

The issues in this case arise out of a high-speed pursuit involving Andrade and a vehicle driven by Gary Zergoski. Late in the evening on January 13, 1989, Andrade was approaching the intersection of South 35th Street and West Forest Home Avenue 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. However, 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. The case was ultimately tried to a jury, which 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.

\[...]

### II. IMMUNITY GENERALLY

The central question presented by this case is whether a municipality and its police officers may be liable for injuries arising out of a high-speed pursuit, where the pursued vehicle collides with a third person. The City and Andrade maintain that the general municipal tort immunity set forth in [Wis. Stat. § 893.80(4)](https://docs.legis.wisconsin.gov/statutes/statutes/893/viii/80/4) \[...] relieves them from liability for any damages resulting from the collision between Zergoski and Cavanaugh. This court most recently summarized the doctrine of governmental immunity in *Kimps v. Hill,* [200 Wis. 2d 1](https://scholar.google.com/scholar_case?case=18444670177783127674\&q=200+wis.+2d+1\&hl=en\&as_sdt=6,50) (1996). As we stated in that case, "\[t]he test for determining whether a duty is discretionary (and therefore within the scope of immunity) or ministerial (and not so protected) is that the latter is found only 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." [*Id.* at 10-11](https://scholar.google.com/scholar_case?case=18444670177783127674\&q=200+wis.+2d+1\&hl=en\&as_sdt=6,50#p10) \[...] .

Despite the immunity for discretionary acts of municipalities and its employees set forth in § 893.80(4), Cavanaugh argues that neither the City nor Andrade are immune from liability arising out of a high-speed pursuit based on [Wis. Stat. § 346.03](https://docs.legis.wisconsin.gov/statutes/statutes/346/i/03). Section 346.03 specifically governs the privileges and duties of drivers of emergency vehicles, Wis. Stat. § 346.03[(1)](https://docs.legis.wisconsin.gov/document/statutes/346.03\(1\)),[(5)](https://docs.legis.wisconsin.gov/document/statutes/346.03\(5\)).

This court has not yet had occasion to consider the applicability of the defense of immunity in the context of a high-speed pursuit. We consider this question as applied to the City and Andrade separately under the facts and circumstances of this case.

### III. CITY OF MILWAUKEE

#### A. Immunity

Cavanaugh alleged that the City was negligent because it implemented a high-speed pursuit policy that did not comply with Wis. Stat. § [346.03(6)](https://docs.legis.wisconsin.gov/document/statutes/346.03\(6\)). However, if the duty imposed by § 346.03(6) is discretionary, as opposed to ministerial, the City is afforded immunity for its actions pursuant to § 893.80(4). Whether § 346.03(6) creates a discretionary or ministerial duty is a question of law that this court reviews de novo. \[...]

Section 346.03(6) imposes a duty on law enforcement agencies that use emergency vehicles to establish written guidelines for high-speed pursuits:

> Every law enforcement agency which uses authorized emergency vehicles shall provide written guidelines for its officers and employees regarding exceeding speed limits . . . 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 court of appeals concluded that this statute creates a ministerial duty because law enforcement agencies are required to provide written guidelines which must consider certain factors. *...*

We agree with the court of appeals that while the promulgation of guidelines in general involves a great amount of governmental discretion, § 346.03(6) makes the inclusion of certain parts of the policy promulgation ministerial. *..*. The statute mandates that law enforcement agencies "shall provide written guidelines for its officers" which "shall consider" specific factors. These actions are "absolute, certain and imperative, involving merely the performance of a specific task." *Kimps,* [200 Wis. 2d at 10](https://scholar.google.com/scholar_case?case=18444670177783127674\&q=200+wis.+2d+1\&hl=en\&as_sdt=6,50#p10). Accordingly, the City is not immune from liability for damages caused by a breach of the ministerial duty set forth in § 346.03(6).

#### B. Negligence

Having concluded that § 346.03(6) imposes a ministerial duty on the City, we next consider whether the City was negligent in carrying out its duty. Cavanaugh alleged that the City was negligent 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 § 346.03(6). The jury found that the City was 23% causally negligent with respect to the implementation of its high-speed pursuit policy. The City argued in its motion for [judgment notwithstanding the verdict](https://www.law.cornell.edu/wex/judgment_notwithstanding_the_verdict) that it was immune from liability. The circuit court denied the motion, concluding that the application of governmental immunity for negligence in high-speed pursuits required public policy considerations more properly made by an appellate court.

When the circuit court does not make an analysis of the evidence sustaining the verdict, as here, an appellate court must review the record as a matter of first impression to see if there is any credible evidence to support the verdict. \[...] In order to establish the City's liability for damages, Cavanaugh must show: (1) that the City breached its ministerial duty; and (2) a causal connection between the City's conduct and his son's injury and subsequent death. \[...]

The evidence shows that the City's policy states in relevant part:

> 2\. Department Vehicle Operators\
> **a)** A Department vehicle operator shall only engage in a motor vehicle pursuit when:\
> \
> (1) He/she has activated the emergency roof lights and siren if in a marked vehicle or has activated the emergency light and siren ... .\
> \
> 2\) He notifies the Communications Division dispatcher of the pertinent facts concerning the pursuit and requests assistance.\
> \
> (3) The speeds involved and/or the maneuvering practices engaged in permit the Department vehicle operator complete control of his vehicle and do not create unwarranted danger to the public or Department members.\
> \
> (4) The volume of pedestrian and/or vehicular traffic permits continuing the pursuit.\
> \
> (5) Weather and road conditions are not such that the pursuit becomes inordinately hazardous.\
> \
> **b)** Police officers engaged in the motor vehicle pursuit of a driver who is an IMMEDIATE threat to the safety of the public may take reasonable and prudent measures to apprehend the driver without endangering the welfare of others. However, the deliberate striking of a pursued vehicle or the use of a Department or other vehicle(s) as a stationary barricade is only permitted to be used as a last resort when:\
> \
> (1) The occupant(s) of the vehicle being pursued is wanted for a serious felony, or
>
> \
> (2) The manner in which the pursued vehicle is being operated creates a substantial risk of serious injury or death.\
> \
> **c)** The Department vehicle operator or supervisor shall terminate a motor vehicle pursuit when in his/her judgment further pursuit is not warranted. Some examples of items to be considered are the volume of pedestrian and/or vehicular traffic, road and weather hazards or the distance between vehicles indicates that further pursuit will create more danger to the public and/or Department members than does the conduct of the pursued driver.

\[City of Milwaukee, Order # 9491, January 30, 1987]

The City asserts that it did not breach its ministerial duty because its policy complies with § 346.03(6). According to the City, the statute gives it discretion to decide which part of its guidelines include consideration of the severity of the crime. The City argues that it properly exercised that discretion by concluding that the severity of the crime factor should only be considered in determining whether to strike a fleeing vehicle or set up a roadblock.

\[...]

\[T]he evidence shows that the City's policy fails to consider the severity of the crime with respect to pursuing at excessive speeds as required under § 346.03(6). The City's policy states that a department vehicle operator *shall only engage in a motor vehicle pursuit when:* (1) the officer has activated the vehicle's emergency lights, (2) the officer notifies the dispatcher of the pertinent facts and requests assistance, (3) the speeds do not create an unwarranted danger to the public or department members, (4) the volume of pedestrian or vehicular traffic permits continuing the pursuit, and (5) weather and road conditions do not make the pursuit inordinately hazardous. None of the factors include any reference to the severity of crime.

Therefore, we disagree with the City \[...] that the reference to the severity of crime elsewhere in the City's policy is adequate to comply with the mandate of § 346.03(6). The evidence shows that the City's policy considers the severity of the crime only in roadblocks and in striking a fleeing vehicle, when a serious felony is involved. However, there is no consideration of the severity of the crime when a person is being pursued for a misdemeanor or a traffic offense, as here.

\[S]triking and barricading occur in only a limited number of police pursuits. \[...]The City's policy of considering the severity of the crime only with respect to these limited aspects of police pursuits directly contravenes the language of § 346.03(6). Therefore, we conclude that there is credible evidence to support the jury's verdict that the City was negligent with respect to the implementation of its pursuit policy.

#### C. Causation

Although we conclude that the record is sufficient to sustain the jury's finding of negligence, our review does not end there. The court of appeals erroneously concluded that if the City breached its ministerial duty by failing to comply with § 346.03(6), then liability attaches. \[...] As noted above, Cavanaugh must also prove causation between the City's defective pursuit policy and his damages. \[...]

The test for determining causation is whether the conduct at issue was a substantial factor in producing the injury. \[...] This question is generally one of fact for the jury, and we must sustain the jury's finding "if there is any credible evidence under any reasonable view or any reasonable inferences derived therefrom that support \[it]." \[...]

Cavanaugh's theory regarding causation was that had the City's policy properly stated that the severity of the crime should be considered in determining whether to initiate and continue a pursuit, the pursuit here would have been terminated prior to the accident because the chase arose out of minor traffic violations. However, the fact that the City's policy was defective cannot be considered causal if either Andrade or his supervising officer, who was monitoring the chase, considered the severity of the crime despite the defective policy. Therefore, in order to determine whether the City's defective policy was a substantial factor in producing the injury, we first review the record to determine whether either Andrade or his supervisor considered the severity of the crime.

On adverse examination, Andrade testified that upon initiating the pursuit, the only known crimes that Zergoski had committed were speeding and going through a red light. He also stated that based on these initial traffic violations he suspected that Zergoski was intoxicated. However, other than additional speeding and going through more traffic signals, he did not note any subsequent conduct to substantiate his belief that Zergoski was intoxicated. Andrade further testified that he never considered terminating the pursuit during the entire period because he did not believe, based on the lack of traffic, that Zergoski's actions were endangering others on the road.

Andrade's testimony on direct examination in the City's case differed somewhat. He testified that the main reason that he continued the pursuit was his suspicion that Zergoski was intoxicated and that his reckless driving posed a threat to the public. He further stated that he was convinced that Zergoski was not going to stop, and that he wanted to be close enough so that other drivers at intersections would be warned by his siren and flashing lights.

Andrade's supervising officer, Buechner, was specifically asked which factors he considered in terms of his decision to allow the chase to continue. He testified that he considered pedestrian and vehicle traffic, the residential neighborhood, the road conditions, and the fact Andrade was an experienced officer. When counsel pointed out to Buechner on cross-examination that he did not state that he considered the severity of the crime, he stated that it "slipped my mind when I answered the question."

In assessing the jury's finding of causation, we consider the evidence in the light most favorable to the verdict. \[...] Further, the credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment. \[...]

Viewing the evidence in a light most favorable to the verdict, we conclude that a reasonable view of the evidence is that neither Andrade nor Buechner considered the severity of the crime—minor traffic violations—in determining to continue the pursuit. The record indicates that Andrade never explicitly stated that he considered the severity of the crime in deciding to initiate or continue the pursuit. It is true that he testified that his decision to continue the pursuit was based on a suspicion that Zergoski was intoxicated and a threat to the public. However, he also testified that the only crimes he knew for a fact that Zergoski had committed were the initial traffic violations, and that he never considered terminating the pursuit because Zergoski's actions were not endangering others on the road.

Buechner also never explicitly stated that he considered the severity of the offense in this case. On cross-examination he implied that he did in fact consider the severity of the crime by stating that he simply forgot to mention it. However, the jury in its credibility determination could have relied on his initial answer in which he did not state that he considered the severity of the crime.

Having concluded that there is credible evidence in the record for the jury to conclude that neither Andrade nor his supervisor considered the severity of the crime, we next turn to the essential question of whether there is credible evidence to support the jury's finding that the City's defective policy was a substantial factor in the accident. First, Zergoski testified at trial that he intended to flee and disobey traffic signals as long as Andrade continued to chase him. However, he also testified that he only wanted to get away from Andrade so that he could get out of the car and escape on foot. Zergoski testified that if Andrade had stopped chasing him, he would have no longer been speeding or running red lights.

In addition to the testimony of Andrade, Buechner, and Zergoski, Cavanaugh's expert witness, Leonard Territo, explicitly testified as to causation. Territo characterized Andrade's failure to consider whether to terminate the pursuit after he realized that Zergoski was not going to stop as "astounding" in light of the dangerousness of the pursuit. He also testified that he believed that Andrade's failure to terminate the pursuit was a substantial factor in causing the accident based on the following rationale:

> As long as the police officer continues pursuing, the violator will continue to flee from the officer. The theory of course is this, the whole reason for termination is that when you terminate a pursuit, eventually and invariably the individual will slow the speed down. The sooner you do it, the sooner you remove the impetus for the individual to continue to flee; and that's the whole basis for terminating pursuit, to remove the incentive for the violator to continue going through stop signs, red lights, and driving almost three times over the speed limit.

When asked to consider the significance of Zergoski's testimony that he intended to leave the car upon eluding Andrade, Territo explained that:

> \[I]f in fact the violator intends to terminate, to bail out of the car three blocks away, what it means is that if the pursuit is terminated where I say, that the vehicle never reaches the point where the accident occurred. He abandons his car, gets out and runs and the accident doesn't occur.

Territo also testified as to the role of the supervising officer. According to Territo, a policy instructing a supervising officer to consider the severity of the offense would have resulted in the chase being stopped in this case. Territo explained the role of the supervising officer in a chase as follows:

> \[0]nce the supervisor knows what the violation is, the supervisor can assess how much latitude the patrol officer should be given. What happens, the patrol officer gets caught in the pursuit .... The sergeant who is not involved hopefully is dispassionate at that point and perhaps is in a better position to make a decision .... It's the hopes that cooler heads will prevail and neutralize the natural inclination of the officer to continue because the person is running from him.

The [dissent ](https://www.law.cornell.edu/wex/dissent)to this section discounts Territo's testimony because "\[a]n expert's opinion that some hypothetical officer would have chosen not to continue the chase, and therefore the accident would never have happened, does not provide the necessary link between the City's failure to perform its ministerial duty and the damages in this case." Justice Geske's [dissent at 337](https://scholar.google.com/scholar_case?case=959381001430553656\&q=202+wis.2d+290\&hl=en\&as_sdt=4,50#p337). However, Territo's testimony was not limited to a "hypothetical officer." Rather, he testified that under this specific fact situation, the City's defective policy was a substantial factor in causing Cavanaugh's injuries. Where more than one inference can be drawn from the evidence, this court must accept the inference drawn by the jury. \[...]

The dissent also criticizes Territo's testimony on the ground that it is mere speculation to conclude that the chase would have stopped prior to the accident had Andrade and his supervisor been properly informed by the City's policy. Since we have initially determined that the City is not immune from liability, we conclude that issues of causal negligence are properly for the jury's consideration. The United States Supreme Court in *Canton v. Harris,* [489 U.S. 378, 391](https://scholar.google.com/scholar_case?case=1913790172308662115\&q=489+us+378\&hl=en\&as_sdt=3,50#p391) (1989), reached a similar conclusion when discussing the necessary showing of causation for a [42 U.S.C. § 1983](https://uscode.house.gov/view.xhtml?req=\(title:42%20section:1983%20edition:prelim\)) liability claim based on inadequacy of police training:

> Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and might perhaps react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.

The dissent addresses what it determines to be disturbing public policy implications of this opinion. The dissent states that a non-defective policy "would encompass a presumption that continuation of pursuit is justified only for major offenses and those involving other violations should be terminated." [Justice Geske's dissent at 338](https://scholar.google.com/scholar_case?case=959381001430553656\&q=estate+of+cavanaugh+v+andrade\&hl=en\&as_sdt=4,50#p338). Nothing in this opinion or in § 346.03(6) creates such a presumption. Section 346.03(6) only requires that law enforcement agencies have a pursuit policy that mandates that officers consider the severity of the crime when exceeding speed limits in pursuit of actual or suspected violators, not that the severity of the crime is dispositive in an officer's decision.

Further, this case is not about the propriety of high-speed chases and officers being stripped of their discretion. The court should neither advance perceived public policy considerations nor decide the case based on these perceived considerations. The legislature has spoken by setting out the public policy considerations in § 346.03(6), which balance the need to apprehend suspects with the dangers inherent in high-speed chases. The legislature has determined that it is good public policy to require an officer engaging in a high-speed chase to consider the severity of the offense in relation to the danger posed by the chase. We agree with the dissent to this section that imposing such a balancing test may be difficult in the "compact and intense framework of a high-speed pursuit." Justice Geske's dissent ... . Nevertheless, this is the determination mandated by the legislature, not this court.

Based on the above, we conclude that there is credible evidence to support the jury's verdict that the City was 23% causally negligent with respect to its defective pursuit policy. Therefore, we reverse the court of appeals' decision as to the City.

### IV. ANDRADE

#### A. Immunity

We next consider the application of the defense of immunity to Andrade's alleged negligence. Cavanaugh argued at trial that Andrade was negligent in failing to terminate the pursuit and negligent with respect to the operation of his vehicle. Andrade asserts that the decisions to initiate and continue a high-speed pursuit are discretionary in nature and therefore entitled to immunity under § 893.80(4). Cavanaugh argues that even if the decisions to initiate and continue the pursuit are discretionary, and as such, normally entitled to immunity, the defense of immunity is not available when an officer negligently operates his or her vehicle contrary to [Wis. Stat. § 346.03](https://static.case.law/citations/?q=Wis.%20Stat.%20%C2%A7%20346.03)(5).

As we noted at the outset, a municipal officer is immune under § 893.80(4) for the performance of discretionary acts. *..*. \[A]n officer's decision to initiate or continue a high-speed chase is a discretionary act entitled to immunity. *...* Several jurisdictions have recently recognized that an officer's decision to initiate and continue a high-speed chase is discretionary.

Cavanaugh asserts that under § 346.03(5), discretionary act immunity is; inapplicable if the officer fails to operate his or her vehicle "with due regard under the circumstances for the safety of all persons." We agree with Cavanaugh ... that the failure to meet this standard constitutes negligence. ... However, even assuming Andrade was negligent with respect to the initiation or continuation of the chase, he is immune under § 893.80(4). Inherent in the decision to pursue is the decision to speed. *...*

However, nothing in § 346.03 provides that immunity afforded to the discretionary decision to initiate or continue a pursuit is subsumed by § 346.03(5). Although most states have adopted emergency-vehicle-operations statutes that are substantially similar to § 346.03, it does not follow that the state's immunity provisions are rendered inapplicable. We note that some jurisdictions have specifically applied provisions of immunity statutes while also recognizing the existence of the statutory equivalent to § 346.03(5). In the absence of an expression of clear legislative intent to abolish discretionary act immunity in the context of § 346.03, we conclude that § 346.03(5) does not preclude the defense of immunity for the discretionary acts of initiating or continuing a high-speed pursuit. *..*.

Our holding that § 893.80(4) provides immunity for an officer's decision to initiate or continue a pursuit does not mean, as suggested by the dissent to this section, that officers are afforded blanket immunity from all liability by virtue of their involvement in a pursuit. We agree with the court of appeals that an officer may be negligent pursuant to § 346.03(5) for failing to physically operate his or her vehicle with due regard for the safety of others.

This distinction between an officer's discretionary decision to initiate and continue a pursuit and the physical operation of the vehicle has been recognized by other jurisdictions interpreting language similar to § 346.03(5). In [*Kelly v. City of Tulsa*](#user-content-fn-1)[^1], a son sued the city and police officer for wrongful death of his mother who was killed in a collision with , a vehicle being chased by police. The court in analyzing the duty of due care under the equivalent of § 346.03(5) stated:

> \[W]e find that the duty of due care created by the emergency vehicle statutes applies only to the operation of the emergency vehicle itself. The statutes exempt emergency drivers from certain operational "rules of the road," such as obedience to speed limits, parking restrictions and stop signals. The statutes recognize the public necessity for a fire, ambulance or police vehicle in an emergency situation to be *driven* unhindered by the traffic rules governing ordinary vehicles. . . . Plaintiffs real objection is to \[the officer's] decision to initiate and continue police pursuit. This is not the consideration addressed by \[the emergency vehicle statutes].

[*Kelly*](#user-content-fn-2)[^2].

In \[[*Thornton v. Shore*\]](#user-content-fn-3)[^3], similar to this case, a police officer pursued a speeding vehicle which ran stop signs and was driven recklessly until it collided with a third party. The Kansas Supreme Court, interpreting the same language contained in § 346.03(5), explained:

> To extend the "due care" requirement to the *decision* to chase or to continue the chase and hence make the officer the insurer of the law violator would emasculate the privileges and immunities afforded by \[§ 346.03] and thwart the public policy purpose of the statute. . . . We conclude the "due care" requirement of \[§ 346.03(5)] applies only to the police officer's physical operation of his own vehicle and not to the *decision* to chase or *continue to chase* a law violator.

[*Thornton*](#user-content-fn-4)[^4].

In sum, despite the general discretionary act immunity set forth in § 893.80(4), a negligence action may be sustained against an officer involved in a high-speed pursuit on the grounds that he or she breached the duty to operate the vehicle with "due regard under the circumstances" under § 346.03(5). However, the negligent operation under § 346.03(5) does not include the discretionary decisions to initiate or continue a pursuit; such discretionary decisions continue to be afforded immunity under § 893.80(4). With these general principles in mind, we turn to Andrade's alleged negligence.

#### B. Causal Negligence

Although Cavanaugh proceeded on the theories that Andrade was negligent for continuing the chase and negligent in the operation of the vehicle, the case was properly submitted to the jury solely on the question of negligent operation. The jury answered "yes" to the following special verdict question: "At and immediately prior to the accident of January 13, 1989, was the defendant, Robert Andrade, negligent with respect to the operation of the motor vehicle." The jury also found that such negligence was a cause of the accident.

Cavanaugh argues that the jury could have properly found Andrade negligent because: (1) Andrade was driving too fast for conditions; (2) Andrade's speed may have caused Zergoski to drive faster; and (3) Andrade was following too closely. Additionally, Cavanaugh's complaint alleged that Andrade was negligent with respect to "lookout" and "management and control" of his vehicle. The court of appeals noted that there was testimony in the record that Andrade's speed may have been too fast for conditions and that the roads were slippery with patches of ice. It concluded that this provided sufficient evidence to support the jury's finding of negligence. *..*.

Although it is necessary to discuss Andrade's alleged negligence in the operation of his vehicle in order to set the framework for determining whether such negligence was causal, we need not decide the issue of negligence based on the facts of this case. Because we conclude that the issue of causation is dispositive, we decline to further consider whether the evidence supports the jury's finding of negligence. *..*.

Turning to the question of causation, we first address the evidence of negligence identified by both the court of appeals and Cavanaugh that Andrade engaged in excessive speeds or speeds too fast for conditions. As discussed above, reliance on this evidence is misplaced because it relates directly to Andrade's discretionary decision to continue the high-speed pursuit.

We next look to Cavanaugh's remaining arguments in support of the jury's verdict which properly relate to Andrade's alleged negligence in the physical operation of his vehicle. He asserts that Andrade failed to maintain management and control, was following too closely, and failed to maintain proper lookout. However, the fact that Andrade's vehicle was between one-half and one block behind Zergoski at the time of the accident and did not make any physical contact with either vehicle undercuts those arguments because they lack the causal connection necessary between the alleged negligence and Cavanaugh's injuries.

For example, Cavanaugh argues that the jury could have determined that Andrade was negligent in the operation of his vehicle with respect to management and control. The duty of management and control requires a driver to keep his or her vehicle under control so that when danger appears, the driver may stop, reduce speeds, change course, or take other proper means to avoid injury or damage. Wis \[Jury Instruction] — Civil 1105. Here, Andrade did not collide with either vehicle.

Cavanaugh also alleged that Andrade was following too closely. However, the nearest that any witness placed Andrade's vehicle behind Zergoski's vehicle at the time of the collision was one-half block. Operators of vehicles should space themselves at a distance that will ensure proper braking and reaction time in the event that the preceding vehicle slows or stops. *See* Wis \[Jury Instruction] — Civil 1112 "Operation of Automobile Following Another." This court has previously recognized that "the purpose of holding a trailing driver to a proper distance is to keep him in position to stop or so control his car as to prevent him from doing injury because of the action of the car ahead, whatever be the cause of that action ...." *Northland Ins. Co. v. Avis Rent-A-Car,* [62 Wis. 2d 643, 648 ](https://scholar.google.com/scholar_case?case=5651574830319246954\&q=+62+Wis.+2d+643\&hl=en\&as_sdt=4,50#p648)(1974) ... . Since Andrade did not collide with the preceding vehicles, any evidence regarding proper distances for braking or reaction time to prevent injury is irrelevant to the question of causation.

Cavanaugh's claim that the jury could have determined that Andrade was negligent as to lookout is also unpersuasive. A driver has the duty to exercise ordinary care to keep a careful lookout ahead and about him or her for other vehicles that may be within or approaching the driver's course of travel. Wis \[Jury Instruction] — Civil 1055. Again, even assuming [*arguendo* ](https://www.law.cornell.edu/wex/arguendo)that Andrade was negligent in this respect, such negligence was not causal because Andrade did not collide with either vehicle. Andrade's failure to maintain proper lookout could not be a substantial factor in the accident because it would have occurred regardless of Andrade's negligent lookout.

Based on the above, we conclude that there is no credible evidence in the record for a reasonable jury to find that any alleged negligence of Andrade with respect to the physical operation of his motor vehicle was a substantial factor in causing the accident. Accordingly, we reverse the court of appeals' decision affirming the jury's verdict finding Andrade 2% causally negligent and direct the circuit court to grant Andrade's motion for judgment notwithstanding the jury's verdict.

\[...]

***By the Court.*** — The decision of the court of appeals is reversed and the cause is remanded with directions to the circuit court to enter judgment consistent with this opinion.

\[[Justice Abrahamson's](https://scholar.google.com/scholar_case?case=959381001430553656\&q=estate+of+cavanaugh+v+andrade\&hl=en\&as_sdt=4,50#p323) and [Justice Geske's](https://scholar.google.com/scholar_case?case=959381001430553656\&q=estate+of+cavanaugh+v+andrade\&hl=en\&as_sdt=4,50#p331) opinions in which they separately concur in part and dissent in part have been omitted.]

***

<details>

<summary>Editorial Notes and Licensing</summary>

Editing to the original by Matthew L. Mac Kelly. Many of the court's original citations to authorities and other content may have been omitted for length and readability purposes. Many elisions of text are not identified, particularly string citations and original footnotes when not materially necessary to the purpose of this portion of the sourcebook. However, some elisions are identified by bracketed ellipses (e.g., \[...]).

Judicial decisions and annotations thereto by third parties are not subject to copyright protection and are in the public domain. *See, e.g., Georgia v. Public.Resource.Org, Inc*., [140 S. Ct. 1498](https://scholar.google.com/scholar_case?case=8288711378870515248\&q=Georgia+et+al.+v.+Public.Resource.Org,+Inc.\&hl=en\&as_sdt=6,50) (2020).

Note: Hyperlinks within this case are not original. Some of these hyperlinks (such as cases and footnotes) may direct you to an external publicly accessible display of the case. This is helpful for reference purposes, and no copyright is claimed here over a third party's hyperlinking choices and methodologies, if applicable.

Subject to limitations above, if any, this page is in the public domain.  [CC0 1.0](https://creativecommons.org/publicdomain/zero/1.0/) <img src="/spaces/gb3latek59GhBxzDZlwy/files/QmHRafhs91JkSMDBSHez" alt="" data-size="line">

</details>

[^1]: [791 P.2d 826](https://scholar.google.com/scholar_case?case=7657951493219750069\&q=791+p2d+826\&hl=en\&as_sdt=6,50) (Okla. App. 1990)

[^2]: [791 P.2d at 828](https://scholar.google.com/scholar_case?case=7657951493219750069\&q=791+p2d+826\&hl=en\&as_sdt=6,50#p828)

[^3]: [666 P.2d 655 (1983)](https://scholar.google.com/scholar_case?case=4014491698289302863\&q=666+P.2d+655\&hl=en\&as_sdt=6,50)

[^4]: [666 P.2d 655, 667-668](https://scholar.google.com/scholar_case?case=4014491698289302863\&q=666+P.2d+655\&hl=en\&as_sdt=6,50#p753) (1983)


---

# Agent Instructions
This documentation is published with GitBook. GitBook is the documentation platform designed so that both humans and AI agents can read, navigate, and reason over technical content effectively. Learn more at gitbook.com.

## Querying This Documentation
If you need additional information that is not directly available in this page, you can query the documentation dynamically by asking a question.

Perform an HTTP GET request on the current page URL with the `ask` query parameter:

```
GET https://studies-de-jure.gitbook.io/learn/sourcebooks/cj-liability/unit-4-defenses-to-civil-litigation-and-risk-management/immunity-absolute-and-qualified/estate-of-cavanaugh-v.-andrade.md?ask=<question>
```

The question should be specific, self-contained, and written in natural language.
The response will contain a direct answer to the question and relevant excerpts and sources from the documentation.

Use this mechanism when the answer is not explicitly present in the current page, you need clarification or additional context, or you want to retrieve related documentation sections.