Governmental Immunity Update: Recent Additions to the House of Cards

This article first appeared in the New Lawyers Section of The Verdict’s Winter 2009, Volume 32.1 issue. The Verdict is published by the Wisconsin Association for Justice.

Since this article was written, the Wisconsin Supreme Court issued its opinion in Noffke v. Bakke.

In his dissent in Scott v. Savers Property and Casualty Insurance Co., [1] Justice Prosser noted the “zeal” with which a unanimous Wisconsin Supreme Court in Holytz v. City of Milwaukee, [2] declared that the doctrine of governmental immunity “was ‘ancient and fallacious,’ ‘archaic,’ ‘mistaken and unjust,’ ‘unsupported by any valid reason,’ ‘unjust, inequitable, and patently unfair,’ and an ‘absurdity.'” [3] However, for over thirty years, Wisconsin courts have paid mere lip service to, or downright ignored, this pronouncement in Holytz. Courts now routinely hold that government officials are “immune from personal liability for injuries resulting from acts performed within the scope of their official duties[.]” [4] Three recent decisions from the Wisconsin Court of Appeals—Noffke v. Bakke, [5] Umansky v. ABC Insurance Co., [6] and Pries v. McMillon, [7] —demonstrate that Holytz’s critique of governmental immunity [8] was accurate and that Wisconsin’s current governmental immunity doctrine is in dire need of substantial revision.

I. Background: A House of Cards
In Holytz, the Wisconsin Supreme Court abrogated the common-law doctrine of government immunity, declaring that “so far as governmental responsibility for torts is concerned, the rule is liability—the exception is immunity.” [9] The holding in Holytz supposedly applied with equal force to “all public bodies within the state: the state, counties, cities, villages, towns…” [10] The only exception to liability was for a narrow set of actions Holytz described as “legislative or judicial or quasi-legislative or quasi-judicial functions.” [11]

The Legislature subsequently codified Holytz in Wis. Stat. § 893.80, [12] as to municipalities and municipal employees. [13] Additionally, Wis. Stat. § 893.82 expressly allows state employees to be sued “on account of any act growing out of or committed in the course of the officer’s, employee’s, or agent’s duties…” [14] Furthermore, shortly after Holytz was decided, the legislature amended the public employee indemnification statute [15] by expanding it to cover any circumstance where an officer is acting “while carrying out his duties as an officer or employee…” [16] Six years after deciding Holytz, the Wisconsin Supreme Court declared: “[S]ince Holytz… there is substantive liability imposed upon the state when its agents, in the course of their employment, commit a tort.” [17]

However, beginning with Cords v. Ehly, [18] Lister v. Board of Regents, [19] and Lifer v. Raymond, [20] courts started to conflate the concepts of “quasi-judicial” and “quasi-legislative” acts with pre-Holytz case law that granted government entities and officers immunity for “discretionary” acts and restricted liability to “ministerial” acts. [21] Therefore, current case law considers any act involving discretion or judgment to be quasi-legislative or quasi-judicial and thus subject to immunity. [22] As a result of this sleight-of-hand, [23] a public officer will be held liable for his negligence only when his duty is “ministerial” due to a clear, positive obligation imposed by law, or when the officer faces a “known present danger” and possesses no discretion to act. [24] “In effect, this methodology has made immunity the rule and liability the exception.” [25]

As argued by the plaintiff in Stann v. Waukesha, the current discretionary act immunity doctrine simply fails to recognize that “certain acts may be… discretionary, but [are] not [necessarily] quasi-legislative or quasi-judicial…” [26] When examining Holytz and the Legislature’s response to the decision, it seems clear that the phrases “quasi-judicial” and “quasi-legislative” were meant to refer to discretionary decisions that involve enacting policy and decisions applying legislative policy to a particular set of facts in a judicial setting. Holytz and the legislative enactments that followed simply cannot support the notion that the Wisconsin Supreme Court and Legislature intended for governmental employees who merely carry out or implement existing policy decisions to be immune from liability for their tortious conduct. [27]

By focusing solely on whether an act is “discretionary,” Wisconsin courts have applied the doctrine of governmental immunity in a haphazard manner and generated a body of case law that is inconsistent, patently illogical, and often leaves citizens harmed by their government with no remedy for their injuries. [28] The decisions discussed below continue this trend and poignantly demonstrate the inherent problems with the current doctrine.

II. Recent Court of Appeals Decisions
A. Noffke v. Bakke: School Gets a Pass on Liability for Coach’s Negligence, Leaving Fellow Student Holding the Ball.
In Noffke, a high school cheerleader was seriously injured while practicing a new stunt with her squad during a pre-game “warm-up” session. [29] The plaintiff fell off of another student’s shoulders when performing the stunt, striking her head on the tile floor. The student who was supposed to be “spotting” Noffke was not positioned correctly so that he could catch her. Noffke’s coach failed to place mats in the area where the students were practicing and was not watching when the plaintiff fell. [30]

Noffke sued her spotter and the school district, contending that the coach possessed a ministerial duty—based on a “Spirit Rules Book” adopted by many high-schools—to use floor mats where the students were practicing and to ensure that spotters were properly positioned. [31] The Wisconsin Court of Appeals disagreed, reasoning that the Spirit Rules did not require spotters to be in any particular location. [32] The Court also concluded that the book did not create a ministerial duty to use matting, reasoning that the rules required only “appropriate matting,” which, according to the Court, could mean no matting. [33] Finally, the court of appeals questioned whether any of the Spirit Rules could form the basis of a ministerial duty because they were voluntarily adopted by the school district.” [34]

The practical effect of Noffke is that a student who is injured in an extracurricular activity sponsored by the school is prohibited from suing the school for the negligent actions of a coach, but may sue a fellow student whose negligence contributed to the injury. Thus, Noffke shifts a school’s liability for its employee’s negligence onto the shoulders of a student under the instruction of the negligent employee.

B. Umansky v. ABC Ins. Co.: OSHA Safety Standards Create a Ministerial Duty, But Violating Those Rules Does Not Create a Known Present Danger.
While the Court of Appeals’ decision in Noffke reveals the absurd consequences of the current immunity doctrine, the Umansky decision demonstrates the irrational manner in which it is applied. Umansky involved a cameraman who fell to his death at Camp Randall Stadium because the platform on which he was operating his camera, which was elevated nine feet above the stands, did not possess a safety railing. [35] Federal OSHA [36] regulations incorporated into Wisconsin law [37] require that platforms like the one from which Umansky fell possess a standard safety railing meeting regulatory specifications.

Umansky’s estate and heirs sued the Director of Facilities at Camp Randall, Barry Fox, who was responsible for ensuring that the stadium complied with all state and federal safety rules. The circuit court granted summary judgment to Fox, concluding he was immune from liability. The court of appeals reversed, holding that Fox could be held liable under the ministerial duty exception to governmental immunity, but that the known danger exception did not apply. [38]

The Court of Appeals held that the regulations created a ministerial duty to install a railing meeting OSHA specifications and rejected Fox’s argument that the State of Wisconsin could not delegate a statutory or regulatory duty to an employee. The court ruled that a ministerial duty can arise if a person’s position of employment makes him responsible for carrying out a duty that is clearly set forth in a statute or regulation, even if the statute does not specify to whom the duty belongs. [39]

However, the Court of Appeals concluded that Fox’s violation of the OSHA rules did not constitute a known present danger. [40] According to the Court of Appeals, even though the OSHA regulations recognized that a platform elevated nine feet into the air without a railing was inherently unsafe, and even though the danger was obvious to anyone who viewed the platform, the degree of danger was not “compelling” enough to warrant applying this exception. [41] The Court of Appeals stated that the known danger exception is “reserved for situations that are more than unsafe, where the danger is so severe and so immediate that a specific and immediate response is demanded.” [42]

C. Pries v. McMillon: “Dangerous Situation” is Sufficient to Trigger the Known Danger Exception.
Despite Umansky’s clear ruling that a situation that is merely “unsafe” does not fall within the known present danger exception, in Pries, the Court of Appeals ruled that a “dangerous situation” is sufficient to defeat immunity. In Pries, an inmate working at the Wisconsin State Fair was injured while disassembling horse stalls. [43] The standard disassembly practice was to disconnect individual sections of the stall and then unchain each section from the wall. If the chains were removed before a stall was disassembled, the metal sections would collapse. [44] A Wisconsin State Fair Employee, Raymond McMillon, jumped on a gate on one of the stalls because it was jammed, even though the chains holding the gate to the wall had been removed. As he jumped on the unchained gate, the stall collapsed and caused a number of other stalls to collapse, one of which landed on Mr. Pries’ leg, breaking his foot. [45]

Pries sued McMillon and the Wisconsin State Fair Park’s liability insurer, alleging McMillon was negligent. The circuit court concluded that the known danger exception to immunity did not apply but that McMillon was liable under the ministerial duty exception. [46] A divided Court of Appeals affirmed the circuit court, but concluded that McMillon was liable under the known present danger exception. [47]

The Court of Appeals ruled that “the removal of the chains… created a ‘dangerous situation’ that gave rise to a ministerial duty” to refrain from jumping on the gate, based on the known danger presented. [48] According to the Court, “it should have been self-evident to McMillon that once he saw the chains had been removed, he had a ministerial duty based on the known danger to stop the disassembly until the chains were reattached and to not jump on the unchained stall.” [49] Notably, the court did not attempt to explain the difference between an “unsafe” and “dangerous” situation. [50]

III. Wisconsin Supreme Court Will Revisit Governmental Immunity in 2009
Given the inconsistencies in these opinions and the results that were reached, it is not a surprise that the parties in all three cases have petitioned the Wisconsin Supreme Court for review. The Wisconsin Supreme Court accepted review in Noffke and Umansky, and the petition for review in Pries is still pending before the Court. As such, the Wisconsin Supreme Court will have a unique opportunity in 2009 to change or clarify its current discretionary act immunity jurisprudence. [51] Regardless of how the Court decides these cases, there is no doubt that they will have a substantial impact on the tort law of this state and the ability of injured persons to hold the government accountable for its acts of negligence.

[1] Scott v. Savers Property and Cas. Ins. Co., 2003 WI 60, 262 Wis. 2d 127, 663 N.W.2d 715.
[2] Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).
[3] Scott, 262 Wis. 2d 127, ¶ 75 (Prosser, J., dissenting) (quoting Holytz, 17 Wis. 2d at 33-35).
[4] Kimps v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996).
[5] Noffke v. Bakke, 2008 WI App 38, 308 Wis. 2d 410, 748 N.W.2d 195.
[6] Umansky v. ABC Ins. Co., 2008 WI App 101, ___ Wis. 2d ___, 756 N.W.2d 601.
[7] Pries v. McMillon, No. 2008AP89, slip op., 2008 WL 4710165 (Oct. 28, 2008) (final publication decision pending).
[8] The doctrine of “governmental immunity” is also referred to as “discretionary act immunity,” “public officer immunity,” and “public employee immunity.” See Pries, No. 2008AP000089, ¶ 1 n. 2.
[9] Holytz, 7 Wis. 2d at 39.
[10] Id. at 40.
[11] Id. at 40.
[12] The statue was originally enacted as sec. 331.43 by ch. 198, Laws of 1963.
[13] Graham v. Sauk Prairie Police Com’n, 915 F.2d 1085, 1091 (7th Cir. 1990).
[14] Wis. Stat. § 893.82(3).
[15] Wis. Stat. § 895.46
[16] Compare Wis. Stat. § 270.58 (1965) (limiting indemnification to acts undertaken in good faith) with Laws of 1965, Ch. 603, eff. July 17, 1966.
[17] Forseth v. Sweet, 38 Wis. 2d 676, 679, 158 N.W.2d 370 (1968).
[18] Cords v. Ehly, 62 Wis. 2d 31, 214 N.W.2d 432 (1974).
[19] Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976).
[20] Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537 (1977).
[21] Meyer v. Carman, 271 Wis. 329, 331-332, 73 N.W.2d 514 (1955).
[22] Stann v. Waukesha County, 161 Wis. 2d 808, 817-818, 468 N.W.2d 775 (Ct. App. 1991) (rejecting plaintiff’s argument that an act can be discretionary and yet not quasi-legislative or quasi-judicial).
[23] In Lifer, 80 Wis. 2d at 509-10, the court erroneously concluded that because quasi-legislative and quasi-judicial acts involve discretion, “[i]t follows that acts which ‘involve the exercise of judgment or discretion rather than the mere performance of a prescribed task’ do not come within the ‘ministerial duty’ exception to civil immunity rule.”
[24] Lodl v. Progressive N. Insurance Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314.
[25] Scott, 262 Wis. 2d 127 ¶ 78 (Prosser, J., dissenting).
[26] Stann, Wis. 2d 808 at 817.
[27] See Maynard v. City of Madison, 101 Wis. 2d 273, 282-83, 304 N.W.2d 163 (Ct. App. 1981), abrogated by Kimpton v. School Dist. of New Lisbon, 138 Wis. 2d 226, 405 N.W.2d 740 (Ct. App. 1987). See also Menick v. City of Menasha, 200 Wis. 2d 737, 745, 547 N.W.2d 778 (Ct. App. 1996) (“[W]hile the decision to install and provide a sewer system in a community is a discretionary decision, there is no discretion as to maintaining the system so as not to cause injury to residents.”).
[28] For instance, courts have declared that municipal employees are presumed to be liable for their torts, but there is a presumption of immunity as to state officers—even though the exact same test is used in both instances. Meyers v. Schultz, 2004 WI App 234, ¶ 10, 277 Wis. 2d 845, 690 N.W.2d 873. Compare Linville v. City of Janesville, 174 Wis. 2d 571, 497 N.W.2d 465 (Ct. App. 1993) (paramedics employed by municipality had ministerial duty to attempt rescue of child trapped in submerged vehicle) with Hoskins v. Dodge County, 251 Wis. 2d 276, 642 N.W.2d 213 (Ct. App. 2002) (no ministerial duty to investigate and rescue occupants of boat that struck a pier and appeared to be having difficulties on the lake). See also Scott, 262 Wis. 2d 127, ¶ 58 (Abrahamson, C.J., concurring) (noting the “jurisprudential chaos” created by the current discretionary act immunity analysis); Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶ 120, 235 Wis. 2d 409, 465, 611 N.W.2d 693 (Prosser, J., dissenting) (“The law on governmental immunity has become so muddled that it no longer provides reasonable guidance[.]”).
[29] Noffke, 308 Wis. 2d 410, ¶ 1.
[30] Id., ¶¶ 1, 5-6
[31] Id., ¶ 7.
[32] Id., ¶¶ 25-27.
[33] Id., ¶ 28.
[34] Id., ¶ 25, n.7.
[35] Umansky, ___ Wis. 2d ___, ¶ 1.
[36] Occupational Safety and Hazard Act of 1970.
[37] See Wis. Admin. Code §§ Comm 32.15 and 32.50.
[38] Umansky, ___ Wis. 2d ___, ¶¶ 2-4.
[39] Id., ¶¶ 2, 42-48.
[40] Id., ¶ 70.
[41] Id., ¶ 69.
[42] Id., ¶ 70.
[43] Pries, No. 2008AP89, ¶ 1.
[44] Id., ¶¶ 2-3.
[45] Id., ¶¶ 2-3.
[46] Id. ¶ 11.
[47] Id. ¶ 1.
[48] Id., ¶ 25.
[49] Id.
[50] In a strongly worded dissent, Judge Fine criticized the majority opinion for extending the known danger exception to cover any act of negligence. Id., ¶¶ 27-28 (Fine, J., dissenting).
[51] In Umansky, the plaintiffs have asked the court to repudiate the current formulation of discretionary act immunity and adopt an analysis consistent with Holytz.