author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David J. Roberson, Defendant-Appellant.

    Court of Appeals

      No. 2003AP2802-CR.

      Submitted on briefs June 4, 2004.

      Decided August 25, 2005.

    2005 WI App 195
    (Also reported in 704 N.W.2d 302.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

      Before Dykman, Vergeront and Deininger, JJ.

       Petition to review granted 11-11-05.

   DYKMAN, J.

¶ 1. David J. Roberson appeals from a judgment of conviction on one count of delivery of cocaine, and from an order denying a postconviction motion for relief. Roberson contends his trial counsel's failure to file a motion to suppress his identification by two officers denied him the effective assistance of counsel. He asserts that the identification was the fruit of an illegal arrest. Further, Roberson argues that the trial court erred when it failed to conduct a Machner hearing before deciding the postconviction motion. Granting the illegality of the arrest for the purposes of our analysis, we conclude the officers' identifications of Roberson were admissible. We therefore determine that the record conclusively demonstrates that Roberson is not entitled to relief. Accordingly, we affirm both the order denying the motion for an evidentiary hearing and the judgment of conviction.

BACKGROUND

¶ 2. Trial testimony established the following facts. Shortly after noon on December 1, 2002, a drug enforcement unit of the Milwaukee Police Department conducted surveillance near the corner of 19th and State Streets in the City of Milwaukee. Detective Mark Wagner observed two men for about twenty minutes whom he suspected of selling narcotics. He then directed Officer Michael Terrell to attempt to buy drugs from the men.

¶ 3. Officer Terrell approached one of the men, later identified as Lindsey Edwards, and told him that he (Terrell) was looking for some "work," meaning cocaine. Edwards led Officer Terrell across the street to a grey car. Seated in the front passenger's side of the car was a man, later identified as David Roberson. Edwards told Roberson: "My guy want three," meaning three cuts of cocaine. Officer Terrell testified he was within three or four feet of Roberson and got a good look at him. Officer Terrell gave Roberson $25 for three cuts and left the area. Officer Terrell then radioed Detective Wagner about the buy and gave him a description of the grey car.

¶ 4. Detective Wagner notified other officers that Officer Terrell had made a buy and relayed the description of the car. He then spotted the car and noticed it make a number of "weird turns" off streets and alleyways between 20th and 21st Streets. Detective Wagner testified he saw the car stop in front of a residence at 1011 North 21st Street. He testified he observed David Roberson and the driver of the vehicle, later identified as Kirdell Wright, run up the porch, look around, and run into the house. Detective Wagner directed other officers to converge upon the house. Detective Wagner watched the front of the building, while Officer Terrell took up surveillance at the back and Officer Manuel Martinez observed the north side of the house. Officers Mitchell Ward and Bodo Gajevic arrived at the scene approximately two minutes later.

¶ 5. Shortly thereafter, Officers Ward and Gajevic approached the front door and knocked. Officer Martinez joined them on the front porch. The defendant's mother, Cecilia Roberson, answered the door.

¶ 6. Officer Ward testified that Ms. Roberson allowed him and Officers Martinez and Gajevic into the house. The officers brought five young men out onto the porch to be viewed by Detective Wagner and Officer Terrell. When none of the five men were identified as David Roberson, Officer Ward testified that Ms. Roberson consented to a search of the house for more subjects. Officer Ward then found David Roberson in an upstairs bedroom and led him outside, where he was positively identified by Detective Wagner and Officer Terrell.

¶ 7. At trial, Ms. Roberson disputed Officer Ward's version of events:

Q: Do you remember at that point the police officer saying to you, Is there anyone else in the house?
A: No, it didn't go like that.
Q: And you replying, No?
A: No.
Q: And then they were given permission to go in, and they find David upstairs; that's not how it happened?
A: No, no.

Ms. Roberson testified that the officers entered shortly after she turned back into the house.

A: I walked into the house and knocked on my sister's bedroom door to ask her to open the door to come out of her room. Just as she opened her door, the police came in and was asking for everybody in the house to come outside.
Q: They came into the home?
A: Yes.

Further, Detective Timothy Graham's interview report with Ms. Roberson avers that "as [Ms. Roberson] was getting everyone out of the house, she yelled upstairs for Monique and them. Ms. Roberson stated she started upstairs to get Monique and the officers pushed past her."

¶ 8. The State filed a criminal complaint charging David Roberson and Lindsey Edwards with delivery of a controlled substance (cocaine) as parties to a crime. A jury found Roberson guilty but could not reach a verdict as to Edwards. The trial court sentenced Roberson to sixty months' imprisonment.

¶ 9. On September 11, 2003, Roberson filed a postconviction motion asserting that defense counsel was ineffective for failing to file a pre-trial motion to suppress the officers' identification of him outside the house. The identification, Roberson asserted, was the fruit of an illegal warrantless entry of the home. The trial court denied the motion without an evidentiary hearing, determining that Ms. Roberson and Officer Ward provided "essentially the same testimony the court would have heard had a motion to suppress been filed by trial counsel prior to trial." On the trial record, the court concluded that there was "not a reasonable probability that counsel's failure to file a suppression motion would have altered the result of the proceedings."

¶ 10. The trial court also questioned whether Ms. Roberson denied that she had consented to the search of her home, and concluded that even if she had, "the court would have found her less credible given the evident partiality towards her son." The court then detailed inconsistencies between the testimony of Officer Ward and Ms. Roberson, determining that all "would have been resolved in favor of the State in this case." Roberson appeals.

STANDARD OF REVIEW

¶ 11. A circuit court acts within its discretion in denying without a Machner hearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). "If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

DISCUSSION

¶ 12. Applying the first two prongs of the Nelson test to this case, we conclude that Roberson's motion was both factually sufficient and not dependent upon conclusory allegations. The motion asserted that the entry was made without a warrant. The motion also referred to Ms. Roberson's trial testimony and asserted that she denied the officers permission to enter her home.

¶ 13. The trial court based its denial of the motion on trial testimony and the court's own observation of witnesses. We disagree that trial testimony provided "essentially the same testimony the court would have heard" in a hearing on a motion to suppress. Ms. Roberson and Officer Ward were not questioned thoroughly at trial about whether Ms. Roberson consented to the entry. And other officers who witnessed the entry did not testify. We do not know if their testimony would have supported Officer Ward's or Ms. Roberson's version of events.

¶ 14. Though we reject the trial court's rationale for denying the hearing, we may affirm the court's order if the record conclusively demonstrates that Roberson is not entitled to relief. See Nelson, 54 Wis. 2d at 497-98. This question requires us to consider the merits of Roberson's two interdependent claims, that the identification was the fruit of an illegal entry and should therefore have been suppressed and that the failure of his counsel to object to the admission of the identification at trial denied him the effective assistance of counsel.

¶ 15. The Fourth Amendment to the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution establishes the right of citizens to be free from unreasonable searches and seizures. In Payton v. New York, 445 U.S. 573, 588-89 (1980), the Supreme Court established that a warrantless arrest following a nonconsensual entry of the home is illegal unless probable cause and exigent circumstances are present. It is undisputed that the entry here was without a warrant.

¶ 16. Under New York v. Harris, 495 U.S. 14, 19 (1990), the remedy for a warrantless arrest in violation of Payton is suppression of any evidence that "bear[s] a sufficiently close relationship to the underlying illegality." Id. There, police arrested Harris following a war-rantless, nonconsensual entry into the home. Id. at 15-16. The court concluded that, although the arrest violated Payton, a confession Harris made while in police custody one hour later was not an inadmissible fruit of the arrest. Id. at 20. In Harris, officers had probable cause to arrest the defendant. Id. at 17. The Harris court distinguished other cases in which a confession was made when officers lacked probable cause to arrest. Id. at 18-19. The court explained that in such cases, evidence acquired from the defendant should be suppressed

since the "illegality" [of the arrest] is the absence of probable cause and the wrong consists of the police's having control of the defendant's person at the time he made the challenged statement. In these cases, the "challenged evidence" — i.e., the post arrest confession — is unquestionably "the product of [the] illegal governmental activity" — i.e., the wrongful detention.

Id. at 19 (citations omitted; second alteration in original). However, the Harris court distinguished Payton as protecting the home itself, not the defendant's person, and, as a result, Harris' confession made outside of the home was admissible. "[T]he rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id. at 17 (citations omitted).

¶ 17. Thus, Harris established the following per se rule: "[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Harris, 495 U.S. at 21. 6 Wayne R. LaFave, Search and Seizure, § 11.4(b) n.210 (4th ed. 2004) citing Bryant v. United States, 599 A.2d 1107 (D.C. 1991), adds the following common-sense clarification: "Actually, this [rule] should be read as meaning probable cause developed apart from the illegal entry." (Emphasis added.)

¶ 18. In Bryant, an undercover officer purchased cocaine from Bryant, then provided to other officers a physical description of Bryant and the address of the house where he made the buy. Id. at 1108. The arresting officers detained Bryant and brought him onto the street, where the undercover officer drove by and identified him. Id. The Bryant court held inadmissible the undercover officer's drive-by identification, distinguishing Harris:

We conclude that Harris differs from this case in a critical respect. The difference is that in Harris the discovery of the defendant inside his home contributed nothing to the evidentiary basis for detaining him. Harris, in essence, is a case in which the forbidden entry and search were legally irrelevant to the admissibility of the later-acquired evidence — the defendant's station house confession — because nothing flowed from the illegality. The police had probable cause to arrest Harris regardless of where they found him, and thus the legal basis for seizing him was independent of the fact he was arrested in the home rather than somewhere else....
Unlike the situation in Harris, it is not true here that the police acquired nothing from the unlawful entry legally relevant to their ability to detain appellant for a showup identification. On the contrary, it is apparent that the police acquired the evidentiary basis for detaining him only by discovering him in the house as a result of the illegal search. Unlike in Harris, it is decisive in this case that the police seized appellant "in the house rather than someplace else," because until they found him there they lacked even the "minimal level of objective justification," necessary to support a detention....

Bryant, 599 A.2d at 1111-12 (citations and footnotes omitted).

¶ 19. We agree that when, as in Bryant, the defendant's location in the home at the time of the illegal arrest provides the legal basis for an arrest, officers must develop an evidentiary basis to arrest apart from the illegal entry for evidence acquired outside of the home to he admissible. To determine whether officers had probable cause to arrest the suspect, the evidentiary significance of the suspect's presence in the home must be subtracted from the accumulated evidence supporting an arrest. The question then is whether the remaining evidence, developed apart from and untainted by the illegal entry, adds up to probable cause.

¶ 20. We agree with Roberson that here, unlike in Harris and other cases cited by the State, see United States v. Villa-Velazquez, 282 F.3d 553 (8th Cir. 2002), United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004), and Martin v. Mitchell, 280 F.3d 594 (6th Cir. 2002), the defendant's presence inside the home had some evidentiary significance at the time of the arrest. Officers followed Roberson from the crime scene to the home. They observed Roberson exit the car and enter the home. When he entered the home, Roberson was known to police as a suspect of a certain description believed to be located in a certain home. Thus, Roberson's presence in the home provided some additional evidentiary support for an arrest. Other individuals with physical characteristics resembling Roberson were likely present in Milwaukee on that day. But it is likely that the only individual resembling Roberson at that home on that day was Roberson.

¶ 21. However, we disagree with Roberson's assertion that without the evidentiary significance of his presence at the home, officers would have lacked probable cause to arrest him. Unlike in Bryant, the undisputed facts here show that officers had a sufficient evidentiary basis to arrest Roberson developed apart from the evidence of his location in the home. Detective Wagner observed Roberson engaging in drug activity for approximately twenty-five minutes. Officer Terrell purchased drugs from Roberson. Moreover, they observed him as he left the street corner and observed the vehicle from which he left as a passenger. Detective Wagner's extended observation of Roberson and Terrell's up-close contact with him during the drug buy were enough to develop probable cause necessary for an arrest apart from Roberson's location in the home.

¶ 22. Roberson contends that the particular officers who arrested him inside of the house lacked probable cause because they, unlike Wagner and Terrell, did not observe him personally, and made the arrest only on Wagner's and Terrell's incomplete descriptions of him. This argument is based on a mistaken view of the law. Where officers are working in concert as they were here, the arresting officers need not have personal knowledge sufficient to establish probable cause for the arrest and may rely on the collective information of the police department when making an arrest. State v. Mabra, 61 Wis. 2d 613, 625, 213 N.W.2d 545 (1974). "The police force is considered as a unit and where there is police-channel communication to the arresting officer and he acts in good faith thereon, the arrest is based on probable cause when such facts exist within the police department." Id. at 625-26. Here, the arresting officers were in close communication with Detective Wagner and Officer Terrell. The facts known to Detective Wagner and Officer Terrell provided the arresting officers with probable cause to arrest Roberson.

¶ 23. Roberson cites People v. Gethers, 654 N.E.2d 102 (N.Y. 1995), a case in which the New York Court of Appeals excluded an undercover officer's showup identification following an arrest. Gethers is inapposite, however, because the court applied the exclusionary rule after concluding that the arresting officer lacked probable cause to arrest. Id. at 161-62. Gethers' result is unsurprising because "the 'challenged evidence'... [was] unquestionably 'the product of [the] illegal governmental activity' — i.e., the wrongful detention." Harris, 495 U.S. at 19. In contrast, evidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry.

¶ 24. Because we conclude the officers' identifications of Roberson were admissible, Roberson cannot demonstrate that alleged ineffectiveness of counsel prejudiced the outcome of his case. We therefore determine that the record conclusively demonstrates that he is not entitled to relief and affirm the trial court's denial of his motion for an evidentiary hearing. See Nelson, 54 Wis. 2d at 497-98.

By the Court. — Judgment and order affirmed.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       The trial court explained:
      The specific question asked Ms. Roberson was: Q: "And then they were given permission to go in, and they find David upstairs; that's not how it happened?" A: "No, no." Ms. Roberson could merely have been objecting to the order in which the events occurred, rather than denying that she gave the officers permission.

       Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, see State v. Knapp, 2005 WI 127, ¶¶ 1-2, 285 Wis. 2d 86, 700 N.W.2d 899, and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶ 39-41, 285 Wis. 2d 143, 699 N.W.2d 582. However, to date, it has generally construed the search and seizure protections of art. I, sec. 11 of the Wisconsin Constitution to be coextensive with those of the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See, e.g., State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986) ("[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution."). (Citation omitted.)

       Because we conclude that, even granting the illegality of the arrest for the purposes of this analysis, the identification of Roberson by Wagner and Terrell was admissible, and, consequently, that the record conclusively demonstrates that Roberson is not entitled to relief, we need not address the State's contention that the arrest was justified by exigent circumstances. Neither do we address the State's contention that the identification was admissible under the inevitable discovery exception.


source: Caselaw Access Project

author: DYEMAN, J.

license: Public Domain

text:
    Employers Mutual Casualty Company, Plaintiff-Appellant, v. Horace Mann Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 2004AP1899.

      Submitted on briefs December 16, 2004.

      Decided August 25, 2005.

    2005 WI App 237
    (Also reported in 707 N.W.2d 280.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey A. Schmeckpeper and Patti J. Kurth of Kasdorf, Lewis & Swietlik, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jay R. Starred and Molly Zillig of Whyte Hirschboeck Dudek, S.C., Milwaukee.
    Before Dykman, Deininger and Higginbotham, JJ.
   DYEMAN, J.

¶ 1. Employers Mutual Casualty Company (Employers) appeals from a declaratory judgment in favor of Horace Mann Insurance Company (Horace Mann). Employers had asked the trial court to declare that Horace Mann breached its duty to defend two separate Columbia County civil lawsuits in which Michael Bailey, a teacher, was a named defendant. The trial court declined to do so. Because we determine that Bailey's conduct did not fall within Horace Mann's policy coverage, we conclude that Horace Mann did not have a duty to defend or indemnify Bailey in the. lawsuits. We therefore affirm.

Background

¶ 2. Employers issued an insurance policy to Bailey, part of which provided coverage for "[e]mployees of [the Portage County School District] while acting within their scope of duties while conducting the business of the [school district]." Horace Mann issued an insurance policy to the Wisconsin Education Association Council, of which Bailey was a member. Part of Horace Mann's policy provided coverage for "loss. . . sustained by the Insured by reason of liability imposed by law for damage caused by an occurrence in the course of the Insured's educational employment activities."

¶ 3. Bailey was named as a defendant in two civil suits filed in Portage County Circuit Court, Shaben, et al. v. Bailey, et al. (Case No. 2000CV275), and Hughan, et al. v. Bailey, et al. (Case No. 2000CV276). Shaben involved allegations by minor plaintiffs that Bailey committed sexual battery and offensive bodily conduct. Bailey was accused of inappropriately touching, squeezing, and pinching the buttocks, breasts, and hips of minor plaintiffs. In Hughan, Bailey was accused of forcibly grabbing, squeezing, shaking, and punching minor plaintiffs, leading to bruising. In both lawsuits, Employers defended Bailey. Employers settled the claims against Bailey for $300,000.

¶ 4. Although Horace Mann was notified of the lawsuits involving Bailey, it did not provide a defense for any of the claims made against him. After Employers settled the lawsuits against Bailey, it brought a motion for declaratory relief seeking judgment against Horace Mann for failing to pay for defense and settlement costs. The trial court held that although Horace Mann had a duty to defend Bailey, it did not breach that duty because the "Other Insurance" clause in Horace Mann's policy of insurance with Michael Bailey made the policy excess to Employer's policy. Therefore, Horace Mann had no obligation to defend or indemnify Bailey for the claims made against him. Employers appeals.

Standard of Review

¶ 5. Because this case requires us to interpret the terms of an insurance policy, our review is de novo. Greene v. Gen. Cas. Co., 216 Wis. 2d 152, 157, 576 N.W. 2d 56 (Ct. App. 1997). Additionally, this case requires us to determine whether an insurance company has a duty to defend an insured, which is also subject to de novo review. Grube v. Daun, 173 Wis. 2d 30, 72, 496 N.W. 2d 106 (Ct. App. 1992).

Analysis

¶ 6. We must decide whether Horace Mann had a duty to defend Bailey. Employers argues that Horace Mann breached its duty to defend. We disagree. To determine whether there was a duty to defend, we compare the allegations in the complaint to the relevant portions of the insurance policy. State Farm Fire & Cas. Co. v. Acuity, 2005 WI App 77, ¶ 7, 286 Wis. 2d 624, 695 N.W.2d 883. The insurer has a duty to defend whenever the allegations in the complaint, if proven, create a possibility of recovery that falls under the terms and conditions of the insurance policy. Id. We conclude that this requirement was not met here.

¶ 7. Employers argues that Bailey's conduct fell within the terms of Horace Mann's policy under the "Coverage A — Educators Liability" provision of the policy. Employers asserts that because Bailey's alleged conduct stemmed from his interactions with students, the conduct occurred in the course of his "educational employment activities." If Bailey's conduct can accurately be described as "educational employment activities," then Horace Mann would have a duty to defend Bailey.

¶ 8. When an insurer breaches a duty to defend the insured, the insurer is responsible for all defense costs. Loosmore v. Parent, 2000 WI App 117, ¶ 21, 237 Wis. 2d 679, 613 N.W.2d 923. To determine whether the allegations against Bailey are properly within the terms of Horace Mann's policy requires us to interpret the "Coverage A — Educators Liability" provision of the policy. We construe insurance policies to give effect to the intent of the parties. State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶ 15, 275 Wis. 2d 35, 683 N.W.2d 75. To do so, we give the words in the insurance policy the meaning a reasonable person in the position of the insured would have understood the words to mean. Id. If a policy is ambiguous as to coverage, it will be construed in favor of the insured. Id. An insurance policy is ambiguous if its language is susceptible to more than one reasonable interpretation. Id. We will interpret the words of an insurance contract against the insured when the insurer's interpretation conforms to what a reasonable person in the position of the insured would have understood the words to mean. Id.

¶ 9. Here, the provision is not ambiguous because "educational employment activities" is defined within the policy and the definition excludes the alleged misconduct for which Bailey was sued. Where an ambiguity does not exist, we apply the policy to the situation and do not engage in construction. Quevillon v. State Farm Fire & Cas. Co., 177 Wis. 2d 160, 164, 501 N.W.2d 855 (Ct. App. 1993). In applying the policy to Bailey's alleged conduct, we conclude that Bailey's alleged conduct did not constitute "activities .. . performed pursuant to the express or implied terms of his . . . employment," the contract's definition of "educational employment activities."

¶ 10. The trial court noted that student interactions were within the implied terms of Bailey's employment. However, the narrower question is whether the specific interactions with students alleged in the two civil lawsuits against Bailey were within the terms of Bailey's employment. Groping and bruising cannot be said to be within the terms of Bailey's employment, even though the conduct may involve student interaction. This conclusion is consistent with Desotelle v. Continental Casualty Co., 136 Wis. 2d 13, 400 N.W. 2d 524 (Ct. App. 1986), overruled in part on other grounds, Kruckenberg v. Harvey, 2005 WI 43, 279 Wis. 2d 520, 694 N.W. 2d 879. There, we held that a police officer's conduct in falsely imprisoning and sexually assaulting a woman while on duty was outside the scope of his employment because the conduct was so extraordinary and too disconnected from the type of services ordinarily contemplated. Id. at 17. The officer discovered the woman and her boyfriend in a parked car, allegedly suspected underage drinking, and removed the woman to his squad car for questioning. Id. at 18. While in the squad car, he sexually assaulted her. Id. Thus, although the officer was acting in an official capacity, his conduct and behavior was beyond the terms of his employment. Similarly, in the present case, Bailey was acting beyond the implied or explicit terms of his employment.

¶ 11. The trial court determined that Horace Mann had a duty to defend because it felt that "[o]nly upon complete determination of the issues in the form of trial would the court be able to determine whether the acts complained of truly fell outside of [Bailey's] 'educational employment activities,' were intentional in nature, or were just careless and rude conduct." Although this is true, it is not the appropriate analysis for determining whether an insurer has a duty to defend the insured for alleged behavior.

¶ 12. To determine whether an insurer has a duty to assume the defense of a third-party suit, we must decide whether the complaint alleges facts, which if proven, would give rise to liability covered under the terms and conditions of the policy. Sola Basic Industries, Inc. v. U S. Fidelity & Guaranty Co., 90 Wis. 2d 641, 646, 280 N.W.2d 211 (1979). The complaints in both Shaken and Hughan allege intentional, offensive, and willful conduct. We must take these allegations in the complaints to be true, and then decide whether the conduct fell within the terms of Horace Mann's policy. The allegations in the complaints that Bailey committed intentional sexual battery, civil battery, and bodily harm do not fall within the policies' coverage for "educational employment activities." Thus, we conclude Horace Mann did not have a duty to defend Bailey.

¶ 13. Similarly, Horace Mann did not have a duty to indemnify Bailey, or to pay the settlement costs in the two lawsuits. Although the duty to defend and the duty to indemnify are distinct, coverage is the necessary precondition for both. See Smith v. Katz, 226 Wis. 2d 798, 806-07, 595 N.W.2d 345 (1999). The duty to indemnify ultimately requires a finding of actual coverage, and that point is not reached unless we at least find arguable coverage. Id. Because we conclude that Bailey's activities were not arguably covered by Horace Mann's policy, Horace Mann did not have a duty to indemnify.

¶ 14. Because we decide that Horace Mann did not have a duty to defend Bailey, we are not required to resolve which of the two policies is primary and which is excess. Additionally, because both Employers' and Horace Mann's policies can be given effect, the policies are not repugnant to each other and prorating of losses is not required as Employers suggests. Finally, because we do not reach the issue of which policy is primary and which is excess, we likewise do not reach Employers' argument that Horace Mann's "Other Insurance" clause violates Wisconsin law.

By the Court. — Judgment affirmed.

       The "Other Insurance" provision of Horace Mann's policy states:
      This is a manuscript contract and is personal to the individual Insured named herein. It was written and priced to reflect the intent of all parties that this policy is in excess of any and all other insurance policies, insurance programs, self-insurance programs, and defense and indemnification arrangements whether primary, excess, umbrella or contingent and whether collectible or not, to which the Insured is entitled or should have been entitled, by contract or operation of law, to coverage or to payment including, but not limited to, payment of defense and/or indemnification. Further, it is the intent of the parties that the coverage afforded in this policy does not apply if the Insured has other valid and collectible insurance of any kind whatsoever whether primary or excess, or if the Insured is entitled to defense or indemnification from any other source whatsoever, including by way of example only, such sources as state statutory entitlements or provisions, except any excess beyond the amount which would have been payable under such other policy or policies or insurance program or defense or indemnification arrangement had this policy not been in effect. Other valid and collectible insurance includes, but is not limited to, policies or insurance programs of self-insurance purchased or established by or on behalf of an educational unit to insure against liability arising from activities of the educational unit or its employees, regardless of whether or not the policy or program provides primary, excess, umbrella, or contingent coverage. The Insured shall cooperate with the Company to determine the existence, availability and coverage of any such other insurance policy, insurance program, or defense or indemnification arrangement.
      This policy is specifically excess over coverage provided by school district or school board errors and omissions or general liability policies purchased by the Insured's employer or former employer and it is specifically excess over coverage provided by any School Leaders Errors and Omissions Policy purchased by the Insured's employer or former employer and it is specifically excess over coverage provided by any policy of insurance which purports to be excess to or recites that it is excess to a policy issued to the Insured for the benefit of members of the National Education Association.

       Coverage A — Educators Liability of Horace Mann's policy reads:
      HMIC agrees to pay on behalf of the Insured any and all loss, subject to the limit of liability, as set out in the declarations page for Coverage A. Such loss must be sustained by the Insured by reason of liability imposed by law for damage caused by an occurrence in the course of the Insured's educational employment activities.

       "The term "Educational Employment Activities" means the activities of the Insured performed:
      1. pursuant to the express or implied terms of his or her employment by an educational unit;
      2. at the express request or with the express approval of his or her supervisor, provided that, at the time of such request or approval, the supervisor was performing what would appear to be his or her educational employment activities within the meaning of Part 11(E)(1); or
      3. as a member of a state board or commission which has as its primary purpose the licensure or certification of educators, or the setting of standards for such licensure or certification.
      "Educational Employment Activities" does not include the activities of the Insured performed:
      1. as part of the collective bargaining process; or
      2. while acting in the capacity, whether paid or unpaid, of: a board member, a trustee, a director, a governor; or in a similar capacity, in a governing body of NEA or an NEA affiliate, or an educational unit."

       We are not alone in concluding that the type of intentional misconduct alleged against Bailey does not come within the definition of "educational employment activities" in the Horace Mann policy. See Horace Mann Ins. Co. v. Fore, 785 F. Supp. 947 (D. Ala. 1992).


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James I. Montroy, Defendant-Appellant.

    Court of Appeals

      Nos. 2004AP3249-CR, 2004AP3250-CR.

      Submitted on briefs June 20, 2005.

    Decided August 30, 2005.

    2005 WI App 230
    (Also reported in 706 N.W.2d 145.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jay E. Heit of Herrick & Hart, S.C., Eau Claire.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general, Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition for review denied 11-11-05.

   PETERSON, J.

¶ 1. James Montroy appeals judgments of conviction for burglary and cocaine possession with intent to deliver and an order denying his postconviction motion for sentence modification. Mon-troy argues the circuit court erred by: (1) concluding he was not entitled to a new presentence investigation report and sentencing hearing; (2) determining he was not eligible for the Earned Release Program; and (3) considering aggravating factors at sentencing that were not proven beyond a reasonable doubt. We disagree and affirm the judgments and order.

BACKGROUND

¶ 2. Montroy faced five charges in five different Pepin County cases. On August 19, 2003, he pled guilty to two of those charges, burglary and cocaine possession with intent to deliver. The repeater allegations on those charges were dismissed and the remaining three charges were dismissed and read in for sentencing. The presentence investigation report (PSI) erroneously included the repeater allegations. The court ordered a second PSI.

¶ 3. At the February 3, 2004, sentencing hearing, Montroy objected to information contained in the second PSI. Although the repeater allegations had been removed from certain sections, the preparer's sentencing recommendation still contained that erroneous information. The second PSI also incorrectly stated that Montroy had a prior first-degree sexual assault conviction. The court ordered a third PSI and continued the sentencing hearing.

¶ 4. When the sentencing hearing resumed on April 5, 2004, Montroy objected to the third PSI. The incorrect sexual assault conviction was still listed and the third PSI erroneously indicated that Montroy had pending bail jumping charges. Montroy requested a new PSI be prepared. The court denied Montroy's request, instead striking and disregarding the incorrect information. It sentenced Montroy to six years of confinement and four years of extended supervision on the burglary charge and a consecutive sentence of two years' confinement and four years' extended supervision on the drug charge. It also determined he was ineligible for the Challenge Incarceration and Earned Release programs because of his many drug-related convictions.

¶ 5. At a May 17, 2004, motion hearing, Montroy's counsel claimed that the court had not made a determination on Montroy's Earned Release eligibility. Montroy's counsel directed the court to the sentencing recommendation in the PSI, which indicated Montroy was ineligible based on his past sexual assault conviction. The court adopted that recommendation.

¶ 6. On August 18, 2004, Montroy moved for sentence modification. He argued that he was prejudiced by inaccuracies in the third PSI, that the court improperly determined he was ineligible for the Earned Release Program based on a sexual assault conviction, and that the court improperly considered aggravating factors that were not supported by sufficient evidence. The court denied Montroy's motion.

DISCUSSION

Inaccurate Information in PSI

¶ 7. Montroy argues he is entitled to a new PSI and a new sentencing hearing because the third PSI contained inaccurate information. A defendant has a due process right to be sentenced based on accurate information. State v. Johnson, 158 Wis. 2d 458, 468, 463 N.W.2d 352 (Ct. App. 1990). Whether a defendant has been denied this due process right is a question of constitutional fact. State v. Groth, 2002 WI App 299, ¶ 21, 258 Wis. 2d 889, 655 N.W.2d 163. We accept the circuit court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2). However, whether the facts amount to a constitutional violation is a question of law that we review independently. State v. Littrup, 164 Wis. 2d 120, 126, 473 N.W.2d 164 (Ct. App. 1991).

¶ 8. When a defendant seeks resentencing because the court relied on inaccurate information, the defendant must establish by clear and convincing evidence that the information was inaccurate and that the court relied on it to the defendant's detriment. Id. at 132. On appeal, Montroy contends the PSI contained the following inaccurate information: (1) it incorrectly stated he was convicted of first-degree sexual assault; (2) it incorrectly stated he had a pending bail jumping charge; and (3) it included eight juvenile adjudications, when only six should have been included. Montroy argues the court relied on this inaccurate information to his detriment.

¶ 9. The State concedes the third PSI contained inaccurate information. However, it argues that Mon-troy has not met his burden of proof that the court relied on that inaccurate information when it sentenced him. It contends the court properly struck the sexual assault conviction and pending bail jumping charge from the PSI and did not rely on them when sentencing Montroy. It also argues that even though only six juvenile adjudications should have been listed in the PSI, the court could properly consider all eight at sentencing and, further, that the difference between six and eight juvenile adjudications, in light of Montroy's extensive adult record, was not significant enough to prejudice Montroy.

¶ 10. When Montroy raised the first two errors at the sentencing hearing, the court responded:

Well, the remedy is to strike [the incorrect information] from the Pre-Sentence Investigation. And that is any reference to the bailjumping is stricken.
And, also, the first-degree sexual assault of a child conviction is stricken from it and will not be considered in the Court's sentencing.
The Court doesn't just swallow the Department's recommendations anyway on sentencing, especially in serious cases such as these with the long-term criminal activity of this individual, even striking the two cases.

Montroy argues that even though the court claimed it was not relying on the inaccurate information, he can still demonstrate detrimental reliance through other statements or the sentence itself, citing State v. Anderson, 222 Wis. 2d 403, 409-10, 588 N.W.2d 75 (Ct. App. 1998). In Anderson, we concluded the sentencing court had relied on inaccurate information to Anderson's detriment. We were unpersuaded by the sentencing court's after-the-fact comments at a postconviction motion hearing that it had not relied on inaccurate information because those comments were inconsistent with the court's comments at the sentencing hearing itself. Id. at 410.

¶ 11. The problem with Montroy's reliance on Anderson is that he fails to offer convincing evidence that, contrary to the court's disclaimer, the court actually relied on the inaccurate information when it sentenced him. Montroy contends that the court's statement, "the long string of antisocial criminal activity and manipulation of the system has gone on too long," demonstrates that it improperly relied on the PSI's inaccurate information. However, Montroy's accurate criminal record, which does not include the sexual assault conviction or pending bail jumping charges, is lengthy. The court need not have relied on inaccurate information to reach that conclusion. Therefore, the court's reference to Montroy's lengthy criminal history lends no support to his assertion that the court relied on inaccurate information.

¶ 12. Montroy also asserts that the sentence imposed demonstrates the court relied on inaccurate information. Because the sentence essentially adopted the PSI's sentencing recommendation, which was based on inaccurate information, Montroy reasons that the court must have also relied on the inaccurate information. However, as the court here acknowledged on the record, a sentencing court is not bound by the PSI's sentencing recommendation. That the court ultimately reached a sentence in the same range as that recommended by the PSI, without more, does not demonstrate that the court relied on the PSI's inaccuracies. Montroy has not provided evidence that, despite the court's statement that it would not rely on the inaccurate information, it nonetheless did so when it sentenced him. Accordingly, Montroy's reliance on Anderson is misplaced.

¶ 13. Montroy also argues that the PSI improperly included two of his juvenile adjudications, when there was no evidence that he was represented by counsel. The State concedes that the Department of Corrections guidelines mandate that unrepresented juvenile adjudications should not be included in a PSI. However, the State argues, and we agree, that regardless of whether the adjudications should have appeared in the PSI, the sentencing court could properly consider all of Montroy's juvenile adjudications at sentencing. See Triplett v. State, 51 Wis. 2d 549, 551-52, 187 N.W.2d 318 (1971). Additionally, Montroy's extensive adult criminal history was a sufficient basis for the court's conclusion that he was an habitual criminal, and the deletion of two juvenile adjudications would not have likely changed the court's conclusions on sentencing. Accordingly, Montroy has not met his burden to show prejudice from the two juvenile adjudications improperly included in the PSI.

¶ 14. Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites Wis. Admin. Code § DOC 328.27 (Nov. 2002) for examples of the various uses for a PSI beyond sentencing. However, Wis. Stat. § 973.08(2) requires that the transcript of Montroy's sentencing hearing be part of his record. Accordingly, Montroy's record will include the court's comments striking the improper references. Further, the uses the Department of Corrections might have for a PSI is not a basis to order a new PSI. See State v. Bush, 185 Wis. 2d 716, 723-24, 519 N.W.2d 645 (Ct. App. 1994). Any speculative future prejudice Montroy may suffer from the inaccuracies in his PSI does not compel us to overturn his sentence or order a new PSI.

Earned Release Program Eligibility

¶ 15. Montroy argues the circuit court erred when it determined he was not eligible for the Earned Release Program. See Wis. Stat. § 302.05(3). Defendants convicted of certain crimes are per se ineligible for the program. However, for all other defendants sentenced under Truth-in-Sentencing, the sentencing court must, as part of its sentencing discretion, determine whether a defendant is eligible for this program. See Wis. Stat. § 973.01(3g). We review a court's exercise of sentencing discretion to determine whether it erroneously exercised that discretion. State v. Echols, 175 Wis. 2d 653, 681, 499 N.W.2d 631 (1993).

¶ 16. Montroy argues the court improperly determined he was ineligible due to a sexual assault conviction. At the May 17, 2004, motion hearing, the court stated:

According to the report of the Department of Corrections, in the last sentence, "Mr. Montroy is not eligible for the Challenge Incarceration Program or the Earned Release Program due to his past sexual conviction."

Montroy argues the only sexual assault conviction that would disqualify him from eligibility was the inaccurately-listed first-degree sexual assault conviction. Thus, he contends, the court's determination that he was ineligible for the program was clearly erroneous.

¶ 17. The State concedes that Montroy does not have any convictions that render him per se ineligible for the program. However, it argues, the court corrected the error and properly exercised its discretion at the December 6, 2004, hearing. At that time, the prosecutor agreed that Montroy had no sex-related convictions that barred him from the program, but then reminded the court that it was within its discretion to determine Montroy's eligibility. The court stated:

Well, of course, the Court is very familiar with Mr. Montroy. He's had a long criminal record since he's been here in this state. And those are the primary considerations that the Court took into consideration.
He is incorrigible. I believe he is where he belongs. And he should stay there for as long as the Court has sentenced him.

The State argues that the court's statements here demonstrate that it exercised its discretion to deem Montroy ineligible.

¶ 18. Montroy replies that the court's statement was not a sufficiently specific determination of his eligibility for the program. He contends that "[t]he only finding the trial court made as to eligibility was that Mr. Montroy was not eligible because of his sexual conviction." We disagree. While the court did not specifically state that Montroy was ineligible for the program, it is apparent that the court did not think Montroy should be able to decrease his term of imprisonment. See State v. Gallion, 2004 WI 42, ¶ 49, 270 Wis. 2d 535, 678 N.W.2d 197 (exercise of sentencing discretion is not a matter of uttering "magic words").

¶ 19. Additionally, at the April 5, 2004, sentencing hearing, the court did, in fact, make a ruling on Montroy's eligibility for the program. At that time, the court stated, "[Y]ou do not qualify for Challenge Incarceration or for Earned Release credit because of the many convictions on your drug involvement." While this ruling is cited in Montroy's statement of facts, it is ignored in his argument. None of the inaccurate information he challenges on appeal relates to his past drug offenses or history of drug problems. Accordingly, because the court properly exercised its discretion by denying Montroy's Earned Release Program eligibility, Montroy's arguments fail.

Consideration of Aggravating Factors

¶ 20. Montroy argues that the court erred by considering aggravating factors at sentencing that were not proven beyond a reasonable doubt, in violation of his due process rights. He contends the court's use of the Wisconsin Sentencing Guidelines Worksheet in calculating his sentence and consideration of facts not found by the jury, such as the type of dwelling burglarized and whether children were present, violate the rules articulated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).

¶ 21. Blakely invalidated Washington's sentencing scheme that allowed courts to increase a sentence beyond the standard range if they found "substantial and compelling reasons" to do so. Blakely, 124 S. Ct. at 2535. The Blakely Court applied the rule that," 'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.1" Id. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The Court held that the "statutory maximum" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537. Because the sentencing court increased Blakely's sentence beyond the statutory maximum based on its own factual findings, the sentence violated Blakely's Sixth Amendment rights.

¶ 22. The Blakely holding was applied to the federal mandatory sentencing guidelines in Booker. In Booker, the Court concluded that because the guidelines were mandatory and increased sentences based on additional facts found by a preponderance of the evidence, those guidelines were unconstitutional. Booker, 125 S. Ct. at 746.

¶ 23. Montroy argues that the reasoning of Blakely and Booker is applicable here and supports his conclusion that his Sixth Amendment rights were violated. However, Blakely and Booker are implicated only when a sentencing court considers a "fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . ." Apprendi, 530 U.S. at 490 (emphasis added). Here the court considered facts not found by the jury when considering the length of Montroy's within the statutory limits, not to increase those limits.

¶ 24. Montroy also argues that the distinction between the mandatory guidelines rejected in Booker and Wisconsin's advisory guidelines is irrelevant because "the end result... is exactly the same." We are unpersuaded. As the Booker Court explained:

If the [federal] Guidelines as currently written could be read as merely provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.

Id. at 750. Because the Court sentenced Montroy for crimes found by a jury within the statutory limits for those crimes, the Sixth Amendment is not implicated and Montroy's due process claim fails.

By the Court. — Judgments and order affirmed.

       Montroy did not appear personally at the hearing.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Montroy does not challenge the court's authority to strike inaccurate information from a PSI. See State v. Bush, 185 Wis. 2d 716, 724 n.1, 519 N.W.2d 645 (Ct. App. 1994). Rather, he argues that that remedy was inadequate here.

       The PSI recommendation was five to seven years' confinement and three to four years' extended supervision on the burglary charge and three to four years' confinement and three to four years' extended supervision on the drug charge, to run concurrently. The court imposed six years' confinement and four years' extended supervision on the burglary charge and two years' confinement and four years' extended supervision on the drug charge, to run consecutively.

       Montroy did not ask the court to correct the improper references to his juvenile history at the sentencing hearing. Instead, he raised them as a basis for his request for resentenc-ing.

       The relevant portion of Wis. Stat. § 973.08, entitled "Records accompanying prisoner," provides:
      (2) The transcript of any portion of the proceedings relating to the prisoner's sentencing shall be filed at the institution within 120 days from the date sentence is imposed.

       Wisconsin Stat. § 302.05(3)(a)l. specifies that eligible inmates are those "incarcerated regarding a violation other than a crime specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.055, 948.06, 948.07, 948.075, 948.08, or 948.095."

       Wisconsin Stat. § 973.01 provides:
      (3g) Earned release program eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime other than a crime specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.055, 948.06, 948.07, 948.075, 948.08, or 948.095, the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible to participate in the earned release program under s. 302.05(3) during the term of confinement in prison portion of the bifurcated sentence.


author: NETTESHEIM, J.

text:
    Xuebiao Yao, Plaintiff-Respondent, v. Edwin Chapman and Richard Moss, Defendants-Appellants.
    Court of Appeals

      No. 2004AP1971.

      Submitted on briefs June 8, 2005.

      Decided August 31, 2005.

    2005 WI App 200
    (Also reported in 705 N.W.2d 272.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and James McCambridge, assistant attorney general.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James A. Olson, and Marsha M. Mansfield, of Lawton & Cates, S.C., of Madison.
    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 12-14-05.

   NETTESHEIM, J.

¶ 1. Professors Edwin Chapman and Richard Moss (the professors) of the University of Wisconsin-Madison (UW) Department of Physiology (Department) appeal from a monetary judgment in favor of Dr. Xuebiao Yao, a former researcher in the Department. The professors contend the trial court erred when it determined that they had a ministerial duty to safeguard Dr. Yao's cell lines due to a gratuitous bailment under an implied contract and when the court failed to dismiss a separate breach of contract claim.

¶ 2. We agree with the trial court that a gratuitous bailment was created, and that the professors were negligent under the bailment. We disagree, however, with the court's rulings that the bailment was created pursuant to an implied contract and that the professors' duties under the gratuitous bailment were ministerial in nature thus depriving them of their public officer immunity. Therefore, we reverse the judgment.

BACKGROUND

¶ 3. The facts, while lengthy, essentially are undisputed. Dr. Yao is from the People's Republic of China. He received his M.D. there in 1985 and came to the United States in 1990 to study at the University of California-Irvine. In 1995, he earned his Ph.D. in molecular and cellular biology from the University of California-Berkeley, after which he began doing postdoctoral work at the University of California-San Diego under Dr. Don Cleveland. While there, he developed a line of monoclonal antibody cells called "hybridoma cells." A hybridoma cell is a type of hybrid cancer cell that results from an immune reaction in mice exposed to proteins implicated in colon cancer. A part of the cell lines' value lies in the fact that they form the foundation for research that builds on itself year after year. Dr. Yao's unique cell lines held potential for use in the study of the causes and treatment of colon cancer.

¶ 4. Dr. Yao's research caught the attention of the UW, which began recruiting him in 1997. In 1998 he accepted the UW's offer of a tenure-track assistant professorship in the Department with a three-year contract. Dr. Cleveland permitted Dr. Yao to take the cell stock — over 600 vials — with him when he relocated to the UW-Madison.

¶ 5. Using start-up funds allocated to him by the UW, Dr. Yao purchased a liquid nitrogen tank to be used for long-term storage of his cell lines. The cells, kept in vials with a preservative, must be maintained at very cold temperatures, as the cells cannot survive more than a few hours at room temperature. Liquid nitrogen is a desirable refrigerant because it affords the cold temperatures essential to long-term preservation of valuable cell lines without the risk inherent in electric refrigeration. It must be replenished at least every 138 days, however, due to gradual evaporation. Only Dr. Yao and one of his students, Yun Zheng, had use of the liquid nitrogen tank and personally maintained the tank until December 10, 1998.

¶ 6. During Dr. Yao's first year at UW, his cell lines enabled him to secure several outside grants totaling over $1 million. At least two of the grants, one from the National Institutes of Health (NIH) and another from the American Cancer Society, depended upon the availability of his cell lines.

¶ 7. In December 1998, Chapman accused Dr. Yao of sabotaging his research efforts by destroying the work of one of Chapman's graduate students. After an investigation, Dr. Yao was suspended. On December 10, 1998, Moss barred Dr. Yao from any further access to the lab unless accompanied by Moss or one of his designees. Dr. Yao's cell stock was still being maintained in the liquid nitrogen tank at the time of his suspension. Dr. Yao arranged to move the cell stock to another laboratory on campus, but a UW official refused to permit him to do so.

¶ 8. Dr. Yao also was barred from communicating with anyone at the University. Accordingly, Dr. Yao's attorney, Hal Harlowe, secured assurances from John Dowling, the UW's attorney, that Moss would protect and properly store Dr. Yao's cell lines. Harlowe testified at trial that he did not know who specifically would be responsible for replenishing the liquid nitrogen or whether the tank itself would be locked. He further testified that while he had only a "general" rather than a "detailed" understanding with Dowling of the procedure by which the materials would be maintained, he nonetheless believed there was a contractual relationship with the UW regarding the cells. The consideration for the contract, according to Harlowe, was an agreement— one not "ever explicitly discussed" with Dowling, however —that Dr. Yao would not seek an injunction to force the UW to allow him access to the cells.

¶ 9. Under the general arrangement for safeguarding the cell lines, Dr. Yao was permitted to have Zheng, his former student, replenish the liquid nitrogen. Both the lab and the storage tank were kept locked. Moss held the only key to the lab. To gain entrance to the lab, Zheng would have to contact either Moss or his designee who then would accompany Zheng to the lab and unlock the door for him. Zheng then would retrieve the tank key from a storage closet, unlock the tank; replenish the liquid nitrogen and relock the tank. This pattern worked smoothly for about two years.

¶ 10. On December 7, 2000, Moss accompanied Dr. Yao to the laboratory so that Dr. Yao could retrieve some of his research materials to take to the University of California-Berkeley, which had agreed to let him use laboratory space. The lab was locked as it always had been, but Dr. Yao noticed that the padlock on the cover of the storage tank was missing. Moss told Dr. Yao that the tank key had been lost, so he had had the lock cut off. He also told Dr. Yao that he would have the lock replaced. If the tank cover is properly placed, however, a lock is not required to prevent evaporation. After retrieving a portion of his stock, Dr. Yao replaced the cover on the tank, noting that it contained enough liquid nitrogen in it to last at least sixty more days.

¶ 11. Fifty days later, on January 26,2001, Dr. Yao returned to collect the remainder of his stored research material from the liquid nitrogen tank. Upon opening the tank, he found that it contained no liquid nitrogen and was not refrigerating his samples. Instead, the vials containing hundreds of different cell lines were in an aqueous solution at room temperature. He also noticed the missing tank key at the bottom of the tank.

¶ 12. In addition, Dr. Yao noticed in the tank a container with three tubes of cells dated "12/20/2000." The container was marked "Chapman." Chapman was the Department professor who two years earlier had accused Dr. Yao of tampering with his experiments. Dr. Yao was "shocked" and "surprised" because he was unaware that anyone other than Moss had access to the laboratory. He later learned that sometime in the year 2000, Moss had given Chapman permission and a key to use Dr. Yao's former laboratory space. Chapman, in turn, gave a key to Cynthia Earles-Ochsner, a postdoctoral student working under Chapman's supervision. In late December 2000, Earles-Ochsner decided on her own to put some of her research materials in the same liquid nitrogen tank with Dr. Yao's cell stock because that tank was more conveniently located than one she had been told she could use in another lab.

¶ 13. At her deposition, Earles-Ochsner described verbally and through a sketch how she had secured the tank by turning the lid to the right. However, she testified at the trial that her deposition testimony had been incorrect and that in fact she had fastened the lid by securing it in a totally different manner. Also at trial, Earles-Ochsner testified about placing her cell samples in the liquid nitrogen tank. She said she remembered thinking that she "had not a lot of experience with liquid nitrogen tanks," and that, while it was not dry, "it probably needed more liquid nitrogen."

¶ 14. A UW publication entitled "Chemical Safety and Disposal Guide" (Guide) incorporates various Occupational Safety and Health Administration (OSHA) laws or standards. The law regulating exposure of laboratory personnel to hazardous chemicals, referred to as the "OSHA Laboratory Standard," covers UW laboratories and is enforced by Wisconsin's Department of Industry, Labor and Human Relations. At trial, the court took judicial notice that Wis. Admin. Code § Comm. 32.50(2) (Mar. 1999) incorporates by reference 29 C.ER. pt. 1910 (1999), the OSHA standards. Wisconsin Admin. Code § Comm. ch. 32 (Mar. 1999) is entitled "Public Employee Safety and Health;" Title 29 C.F.R. § 1910.1450 (1999) is entitled "Occupational exposure to hazardous chemicals in laboratories." The Guide and the OSHA Laboratory Standard point out that "Lab Directors, Managers and Supervisors" have compliance responsibilities, one of which is to inform and train laboratory personnel at the time of their initial work assignment as to the hazards of chemicals, including cryogenic liquids, in the workplace. Neither Chapman, who was Earles-Ochsner's direct supervisor, nor Moss, the Department chair, ever instructed Earles-Ochsner how to use the liquid nitrogen container.

¶ 15. After discovering that the cells had thawed, attempts were made to salvage them, but none survived. Dr. Yao has not been able to duplicate the lost cell lines or to purchase any commercially. The loss diminished his opportunities for getting published in recognized journals and imperiled the likely renewal of his NIH and American Cancer Society grants.

¶ 16. Dr. Yao sued Chapman and Moss, as well as the UW and the Board of Regents of the University of Wisconsin System and their agents, alleging negligence, breach of bailment and breach of contract. The defendants moved for summary judgment. Although the trial court granted the motion as to the UW and the Board of Regents on the basis of sovereign immunity, the court denied the motion as to Moss and Chapman on the grounds that the summary judgment record did not support the professors' defense of public officer immunity when performing discretionary conduct.

¶ 17. At the conclusion of a two-day bench trial, the trial court found that the parties had created a gratuitous bailment under an implied contract and that the professors had breached the standard of care imposed by the bailment. The court then rejected the professors' claim of public officer immunity. The court concluded that while Moss' decision to secure and protect Dr. Yao's property in the first instance was discretionary, once that responsibility was voluntarily undertaken, the ensuing acts were ministerial, thereby exposing Moss and his agents, including Chapman, to liability for their negligence. The court awarded Dr. Yao $415,712.

DISCUSSION

Dr. Yao's Bailment and Negligence Claims

¶ 18. We begin with Dr. Yao's breach of bailment and negligence claims. We address these claims in a single discussion since the premise of Dr. Yao's breach of bailment claim is premised upon his contention that the professors were negligent in failing to properly preserve his cell lines.

¶ 19. A bailment is created by the delivery of personal property from one person to another to be held temporarily for the benefit of the bailee, the bailor, or both. Manor Enters., Inc. v. Vivid, Inc., 228 Wis. 2d 382, 398, 596 N.W.2d 828 (Ct. App. 1999). Such a bailment may be created pursuant to an express or implied contract. Id. However, a gratuitous bailment does not require a contract or an actual meeting of the minds. See Burns v. State, 145 Wis. 373, 380, 128 N.W. 987 (1910). "It is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not." Id. A gratuitous bailment is one for which the bailee receives no compensation. Black's Law Dictionary 152 (8th ed. 2004).

¶ 20. We agree, and the professors really do not dispute, that the circumstances under which they came into possession and control of Dr. Yao's research materials constituted a gratuitous bailment. Dr. Yao's cell lines remained his personal property, but temporarily were held and controlled by Moss, and later Chapman, for Dr. Yao's benefit. The trial court correctly ruled that the circumstances created a gratuitous bailment.

¶ 21. Having gratuitously accepted the bailment, the professors owed Dr. Yao a duty to safeguard his cell lines in a nonnegligent fashion. See Bushweiler v. Polk County Bank, 129 Wis. 2d 357, 359, 384 N.W.2d 717 (Ct. App. 1986). Whether the professors were negligent under the bailment presents a mixed question of fact and law. Id. at 360. The trial court's factual findings will be upheld unless clearly erroneous. Id. Whether those facts fulfill a particular legal standard such as negligence presents a question of law. Id. While typically we review de novo a trial court's legal conclusions, where, as here, they are intertwined with the factual findings, we give weight — though not total deference — to the trial court's decision. Id.

¶ 22. Here, the trial court found, and the record shows, that Moss, as chairman of the Department, barred Dr. Yao from the laboratory where his research materials were stored; that, through their attorneys, Dr. Yao asked for and received Moss' personal assurance that his cell stock would be properly cared for and protected; and, again later, that the cell lines were being fully cared for; and that the liquid nitrogen tank and the laboratory itself would be kept locked and Moss controlled the keys to both.

¶ 23. Thereafter, the undisputed facts demonstrate a chain of lax behaviors. Moss granted lab access to Chapman, who in turn granted access to Earles-Ochsner, and neither of the professors gave Earles-Ochsner any training or information about working with the liquid nitrogen tank. Earles-Ochsner's contradictory testimony indicates that she likely replaced the lid improperly, thus allowing the liquid nitrogen to evaporate prematurely. Finally, the record reveals that when Moss discovered that the key to the tank was missing, instead of replacing the padlock, he had it removed.

¶ 24. In the face of these largely uncontested facts, we comfortably uphold the trial court's determination that the professors were negligent and breached their duty to Dr. Yao under the gratuitous bailment.

The Professors' Public Officer Immunity Defense

¶ 25. We next consider whether, despite their negligence, the professors are shielded from liability by the doctrine of public officer immunity. The trial court concluded that the professors' threshold decision whether or not to safeguard Dr. Yao's research materials was discretionary, but once having undertaken to do so, they owed a ministerial duty under 29 C.F.R. pt. 1910 (1999) and the Wisconsin Administrative Code to act in a certain manner. See Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 93, 596 N.W.2d 417 (1999).

¶ 26. For state officers and employees, immunity from tort liability is the rule and liability is the exception. See Lodi v. Progressive Northern Ins. Co., 2002 WI 71, ¶ 22, 253 Wis. 2d 323, 646 N.W.2d 314. Public officer immunity arises not from the state's sovereign immunity, which is constitutional in nature, but from the common law. See Lister v. Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976). Immunity is rooted in public policy considerations that strike a balance between the need of public officers to perform their functions freely and the right of an aggrieved party to seek redress, id. at 300, and focus on protecting the public purse and a preference for political rather than judicial redress for actions. Meyers v. Schultz, 2004 WI App 234, ¶ 11, 277 Wis. 2d 845, 690 N.W.2d 873.

¶ 27. Immunity exists for a public employee's negligent acts performed pursuant to a discretionary duty, but not pursuant to a ministerial duty. Spencer v. County of Brown, 215 Wis. 2d 641, 647, 573 N.W.2d 222 (Ct. App. 1997). Whether a duty is discretionary or ministerial is a question of law that we review de novo. Id. at 648; see also Bicknese v. Sutula, 2003 WI 31, ¶ 15, 260 Wis. 2d 713, 660 N.W.2d 289. A discretionary duty involves "the exercise of discretion of judgment in determining the policy to be carried out or the rule to be followed [and] the exercise of discretion and judgment in the application of a rule to specific facts." Spencer, 215 Wis. 2d at 648 (citation omitted). A public employee's duty is ministerial "only when it 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." Lister, 72 Wis. 2d at 301 (footnote omitted).

¶ 28. The trial court agreed with Dr. Yao that the professors' duty was ministerial. The court cited Bicknese, which it termed "very similar" to this case, for the proposition that once public officers choose in their discretion to act, they are bound by a ministerial duty to act in a particular way. Bicknese, 260 Wis. 2d 713, ¶ 26. The court evidently was persuaded that OSHA laboratory standards, particularly 29 C.F.R. § 1910.1450, as incorporated by reference in the Wisconsin Administrative Code, provided the authority and particularity necessary to create a ministerial duty.

¶ 29. We are not so persuaded. A close reading of Bicknese compels us to conclude that this case and Bicknese are not "very similar." In Bicknese, Sutula, a department chair at the University of Wisconsin Medical School, tendered to Bicknese an apparent offer as an untenured professor. Bicknese, 260 Wis. 2d 713, ¶ 3. He erroneously informed her that she would have five years to qualify for tenure, when UW rules actually mandate three years, with any extensions requiring approval. See id., ¶¶ 7, 9-10. In the end, the medical school did not make Bicknese a formal offer because it determined achievement of tenure in three years would be unlikely. Id., ¶ 10. In the meantime, Bicknese turned down another offer based on Sutula's representations regarding an offer and tenure. See id., ¶ 9. The supreme court held that, while Sutula had the discretion to offer Bicknese a position, once he did so he had a ministerial to act in a certain manner. Id., ¶ 26. Critical in Bicknese is that the "certain manner" was dictated by the "clear mandate" of § 7.04 of the UW Faculty Policies and Procedures adopted pursuant to Chapter UWS 3 of the Wisconsin Administrative Code which precisely directed the setting of tenure clocks. Bicknese, 260 Wis. 2d 713, ¶ 28. In keeping with other public officer immunity cases, Bicknese makes clear that for a duty to be ministerial, a public officer must be not only bound to act, but also bound by law to act in a very particular way, leaving nothing for judgment or discretion. Id., ¶ 21.

¶ 30. The latter prong is where Dr. Yao's argument, and the trial court's conclusion, falter. As in Bicknese, the regulations Dr. Yao relies upon also were adopted pursuant to the Wisconsin Administrative Code law. 29 C.F.R. § 1910.1450, entitled "Occupational exposure to hazardous chemicals in laboratories," is incorporated by reference into Wis. Admin. Code § Comm. ch. 32, "Public Employee Safety and Health." As these titles suggest, and as the substance of the regulations reveal, these are safety rules, addressing exposure to hazardous chemicals in a laboratory setting. They instruct laboratory personnel to exercise caution when working with chemicals and cryogenics such as liquid nitrogen. They also advise employers to ensure that lab personnel are properly trained and apprised of the hazards of the chemicals to which they may be exposed in their work area. As such, these regulations are not targeted at insuring the integrity and preservation of hazardous chemicals themselves. Rather, they are intended to assure the safety of those who handle, or otherwise may be exposed to, such materials. Thus, the regulations have no relevance to the issue in this case.

¶ 31. Moreover, the duties under these regulations suffer from a critical lack of particularity as to time, mode and occasion of their performance, an essential ingredient of a ministerial duty. See Bicknese, 260 Wis. 2d 713, ¶ 21. The regulations direct, in part:

(1) The employer shall provide employees with information and training to ensure that they are apprised of the hazards of chemicals present in their work area.
(2) Such information shall be provided at the time of an employee's initial assignment to a work area where hazardous chemicals are present and prior to assignments involving new exposure situations. The frequency of refresher information and training shall be determined by the employer.

29 C.F.R. § 1910.1450(f).

¶ 32. The standards say nothing about access to or control of a liquid nitrogen tank, how or how often to determine whether the liquid nitrogen level is sufficient, how to replenish the liquid nitrogen when it becomes necessary to do so, or how to properly open and refasten the tank lid. Moreover, permitting the employer to determine the frequency of delivering certain of the training plainly contemplates a measure of discretion in executing the standards. In short, the standards fall fatally short of the necessary "clear mandate" for the action the professors needed to take. See Bicknese, 260 Wis. 2d 713, ¶ 28. They do not "imposeü, prescriben and defineí] the time, mode and occasion" of performance under the law of public officer immunity, such that the duties at issue are rendered ministerial. Id,., ¶ 21; Lister, 72 Wis. 2d at 301.

¶ 33. Conceding that the C.F.R. and administrative code standards might lack precision, Dr. Yao further argues that "instructions concerning the use of laboratory equipment will most likely not come from the federal code but will come from the manufacturer of the equipment and the experience of the supervisor of the lab." We reject this argument for two reasons. First, the law necessary to define a ministerial task does not include manufacturer's instructions. See Meyers, 277 Wis. 2d 845, ¶ 19. Second, Dr. Yao offers no case law to explain how instructions founded on an individual's unique experience could be anything but discretionary.

¶ 34. In addition, like the C.F.R. and administrative code standards, the parties' arrangement producing the gratuitous bailment is also devoid of any understanding or terms regarding the needed specificity of time, mode and occasion to create a ministerial duty. The contours of the arrangement were essentially these: Dr. Yao could store his cell lines in the liquid nitrogen tank in the laboratory he had used prior to his suspension; the tank and the lab in which it was situated both would be kept locked; Moss would keep the lab key; at unspecified intervals Dr. Yao's former student would retrieve the lab key from Moss or another Department staff person to check the liquid nitrogen level; and Zheng would periodically replenish the liquid nitrogen. While the parties' arrangement created a bailment with a concomitant legal duty, it did not define the duty with the requisite time, mode and occasion in order to render the duty ministerial.

¶ 35. At bottom, Dr. Yao's core argument is not that the safety guidelines or any informal contract between the parties imposed an unambiguous legal duty on the professors. Rather, it is that the professors acted negligently under the duty imposed by the bailment. Moss gave a lab key to Chapman, Dr. Yao's principal accuser in the sabotage matter. Chapman, in turn, gave a key to Earles-Ochsner. On her own initiative, Earles-Oehsner used the liquid nitrogen tank storing Dr. Yao's materials despite knowing that a tank in another lab was available for her use, and despite being unfamiliar with such tanks and being untrained in their use by Moss, Chapman or anyone else. Finally, when the key to the storage tank went missing, Moss had the lock removed. As we have noted, the evidence shows that the conduct of the professors was negligent, but the evidence does not support the trial court's legal conclusion that the professors' duty was ministerial. As such, the professors are immune from liability for their negligence.

Dr. Yao's Breach of Contract Claim

¶ 36. We next turn to Dr. Yao's breach of contract claim. The trial court found that the parties' gratuitous bailment was the product of an implied contract. Because the facts bearing on this question are undisputed, we determine de novo whether a contract existed. See Gustafson v. Physicians Ins. Co. of Wis., 223 Wis. 2d 164, 173, 588 N.W.2d 363 (Ct. App. 1998).

¶ 37. As we have noted, a gratuitous bailment does not necessarily require a formal contract.

No particular ceremony or actual meeting of minds is necessary to the creation of a bailment. If one, without the trespass which characterizes ordinary larceny, comes into possession of any personalty of another and is in duty bound to exercise some degree of care to preserve and restore the thing to such other or to some person for that other, or otherwise account for the property as that of such other, according to circumstances, — he [or she] is a bailee. It is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not.

Burns, 145 Wis. at 380. Under a bailment, "the word 'contract' is used in a broad sense." Id. at 381. Furthermore, a bailment is rooted in tort principles of negligence, not contract. See Bushweiler, 129 Wis. 2d at 359-60.

¶ 38. We also may look to the complaint in its entirety to see if, as a whole, it sounds in contract or tort. See Boehrer v. Juergens & Anderson Co., 133 Wis. 426, 429, 113 N.W. 655 (1907). Where a complaint alleges both a breach of contract and a tort, the "true and logical test" of how the complaint should be construed is if it appears that the contract is alleged to show the existence of a duty and the emphasis is on willful or wrongful disregard of the duty the intent is to charge a tort. Id. at 429. If, by contrast, the emphasis is on default in carrying out the contract, the intent is to charge a breach of contract. Id. at 429-30.

¶ 39. The complaint here states three causes of action. Counts I and II are styled "Negligence" and "Breach of Bailment," respectively. Between them, they contain a dozen paragraphs and subparagraphs cataloging the defendants' wrongful disregard of their duty. Count III, denominated "Breach of Contract," reads in its entirety:

33. The defendants and their agents agreed to secure and protect the cell lines while the cell lines were in their custody and control.
32. The defendants breached this agreement when they permitted the cell lines to be destroyed.

Although the claim is labeled as a breach of contract, looking at the complaint as a whole, we conclude that the core of Dr. Yao's claim remains tort based.

¶ 40. Our conclusion is borne out by the trial court proceedings following the pleadings. Dr. Yao's core argument was that the professors were negligent in the discharge of their duties under the bailment, and the evidence at trial focused almost exclusively on the professors' conduct under the gratuitous bailment. The same is true of Dr. Yao's pretrial and posttrial briefs.

¶ 41. Even if we were to indulge Dr. Yao's contract argument, we reject it because the evidence fails to establish consideration. Harlowe, Dr. Yao's lawyer, testified that he believed that the consideration took the form of Dr. Yao refraining from seeking injunctive action against the UW. However, Harlowe acknowledged that he and the UW's attorney never explicitly discussed this and that he had only a general understanding of the arrangement for safeguarding Dr. Yao's cell stock. A party's subjective belief as to a provision of a contract is not controlling. See Gerruth Realty Co. v. Pire, 17 Wis. 2d 89, 92, 115 N.W.2d 557 (1962). While the question of whether consideration supports a contract is normally a question of fact, NBZ, Inc. v. Pilarski, 185 Wis. 2d 827, 838, 520 N.W.2d 93 (Ct. App. 1994), here the evidence as to consideration is so lacking that we comfortably state as a matter of law that no contract was achieved. Cf. Siva Truck Leasing, Inc. v. Kurman Distribs., 166 Wis. 2d 58, 68, 479 N.W.2d 542 (Ct. App. 1991) (In determining whether there was sufficient consideration for a novation, weight is accorded the trial court's decision, but whether the facts fulfill a legal standard is a matter of law.). The gratuitous bailment in this case was not the product of any contract, implied or otherwise.

¶ 42. Even if it could be said that the parties managed to create an agreement, it is devoid of any terms detailing the manner by which the professors were to tend to Dr. Yao's cell lines. On this point, we further discuss Major v. County of Milwaukee, 196 Wis. 2d 939, 539 N.W.2d 472 (Ct. App. 1995), a case we have already rejected as support for Dr. Yao's claims. See infra n.5. We speak in further detail to Major because both the trial court's decision and the predecessor court's summary judgment ruling relied upon this authority. Both courts cited Major for the proposition that while the initial governmental decision to enter into a contract is discretionary, once the contract is made, the duty thereunder is ministerial.

¶ 43. In Major, the plaintiff sued Milwaukee county for breach of contract, claiming that the county had falsely represented the condition of real estate that he had purchased from the county. Id. at 941. The trial court granted summary judgment to the county based upon the immunity for discretionary acts conferred by Wis. Stat. § 893.80(4). Major, 196 Wis. 2d at 942.

¶ 44. We reversed, noting that the plaintiffs summary judgment evidence showed that the county had prior notice of the defect, the county had represented that the property was without defect, and the plaintiff had relied on that representation in making his decision to purchase the property. Id. at 945-46. Under those circumstances, the court concluded that, while the county had discretion whether to enter into the contract, once the decision to contract was made, the county was bound by its representation that it had no notice or knowledge of the defect. Id. at 944-45. "Milwaukee County was under an 'absolute, certain and imperative' duty not to make this representation unless it was true." Id. at 945 (citation omitted).

¶ 45. Here, unlike Major, there is no evidence demonstrating, either directly or inferentially, an "absolute, certain [or] imperative" manner by which the professors were to tend to Dr. Yao's cell lines under the gratuitous bailment. See id. This is not a Major case.

¶ 46. In summary, considering Dr. Yao's complaint in its entirety, we conclude that the breach of contract cause of action, although framed in contract language, is in reality a recapitulation of the tort claim. Moreover, even allowing that the complaint stated a contract claim, the evidence failed to show consideration to support a contract. And even if a contract existed, it fails to prescribe the necessary mode of conduct under Major such that the professors' duty could be termed ministerial. As such, Dr. Yao's contract claim fails.

CONCLUSION

¶ 47. Although we uphold the trial court's rulings that the parties created a gratuitous bailment and that the professors were negligent, we reverse the court's further ruling that the bailment created a ministerial duty on the part of the professors. We also hold that Dr. Yao's contract claim is, at its core, a tort-based claim and is therefore governed by our holding that the professors' duty was not ministerial. Alternatively, we hold that the evidence fails to show consideration in support of a contract claim, and even if a contract was achieved, the professors' duty was not ministerial under Major.

By the Court. — Judgment reversed.

       Dr. Yao ultimately was terminated from his position in December 2002 as a result of the tampering allegations. This court affirmed his termination. Yao v. Board of Regents, 2002 WI App 175, ¶ 1, 256 Wis. 2d 941, 649 N.W.2d 356.

       This ruling was made by Judge Paul Higginbotham. The later trial was heard by Judge James Martin. We review Judge Martin's rulings on this appeal.

        Quoting Bushweiler v. Polk County Bank, 129 Wis. 2d 357, 360, 384 N.W.2d 717 (Ct. App. 1986), the professors assert that where a gratuitous bailment exists, the "conduct in question should be considered as ordinary negligence." This is correct as far as it goes. They fail to note, however — perhaps because the thrust of their appeal is that they are immune from negligence actions — that, under Bushweiler, they actually owed a diminished duty of care. Id. Bushweiler clarifies that the change in Wisconsin's negligence law from gross to ordinary negligence did not simultaneously abolish the three-tier standard of care owed by bailees. Id. at 359. Under gross negligence principles, a gratuitous bailee was said to owe only a "slight" duty of care. Smith v. Poor Hand Maids of Jesus Christ, 193 Wis. 63, 67, 213 N.W. 667 (1927). Although Wisconsin no longer embraces that doctrine, "there still remains a diminished duty of care from a gratuitous bailee." Bushweiler, 129 Wis. 2d at 360. We have no trouble concluding, however, that the professors failed even to satisfy this lesser duty of care with respect to safeguarding Dr. Yao's property.

       Wis. Const, art. W § 27.

       Based on this reasoning, we likewise decline Dr. Yao's invitation to find a ministerial duty based on other cases he suggests are in his favor. For instance, we disagree that the Guide and the OSHA standards are akin to the administrative rules directing the placement of a highway warning sign, Chart v. Dvorak, 57 Wis. 2d 92, 101-02, 203 N.W.2d 673 (1973), or the written contract dictating the terms of the sale of county property, Major v. County of Milwaukee, 196 Wis. 2d 939, 944-45, 539 N.W.2d 472 (Ct. App. 1995).

       We summarily reject the professors' argument that Dr. Yao's contract claim is barred because of sovereign immunity. The doctrine of sovereign immunity does not apply to suits for damages against public officers as individuals. Graney v. Board of Regents, 92 Wis. 2d 745, 756, 286 N.W.2d 138 (Ct. App. 1979), abrogated on other grounds, Bicknese v. Sutula, 2003 WI 31, ¶ 18, 260 Wis. 2d 713, 660 N.W.2d 289.

       Dr. Yao did not argue to the circuit court that governmental or public officer immunity does not apply where the governmental entity or the public officer has entered into a contract, despite case law supporting that point. See Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 464-65, 449 N.W.2d 35 (1989). Nor does Dr. Yao make that argument on appeal. Rather, Dr. Yao's argument is that the duty assumed by the professors under the alleged contract was ministerial. However, Dr. Yao's failure to argue this potential issue is of no consequence since, as our discussion will reveal, the parties' arrangement did not achieve a contract.