State Worker Can Be Sued For Failing to Follow Safety Regulations

July 20, 2009

In Umansky v. ABC Insurance, Inc., 2009 WI 82, ____ Wis. 2d ____, ____ N.W.2d ____, the Wisconsin Supreme Court held that a state worker charged with overseeing safety at Camp Randall Stadium could be sued by the family of a deceased cameraman who fell to his death because there were no railings on the platform on which he was working. In making this ruling, the Court clarified the scope of “discretionary act immunity” in Wisconsin and held that public employees can be held liable for failing to comply with federal safety regulations that are incorporated into Wisconsin law.

Richard Umansky worked as a television camera operator for ABC, Inc. at Camp Randall Stadium. Umansky worked on a four-foot by eight-foot platform that was elevated eight feet into the air. The University had previously removed the railing surrounding the platform, even though a specific OSHA regulation required that the platform have a safety railing. Umansky died after falling eight feet to the ground. Umansky’s family sued Barry Fox, the director of facilities at Camp Randall, who was responsible for ensuring that the stadium complied with all applicable state and federal safety regulations.

Fox argued that he could not be sued as a state employee under the doctrine of “public officer immunity” also known as “discretionary act immunity.” This judicial doctrine states that public employees generally cannot be sued for failing to perform discretionary acts associated with their official duties. However, the doctrine contains an exception where a public officer violates a duty that is “ministerial” that is, a duty whose time, place and manner is mandated by law.

The Umanskys argued that Fox violated a ministerial duty because he did not follow the OSHA regulation that required a railing to be installed on the platform. The Umanskys noted that Wisconsin administrative regulations specifically adopted this OSHA regulation for “public buildings” and “places of employment.” Also, the regulation was very specific as to what type of railing was required.

However, Fox argued that the regulations protected only public employees and that Umansky’s estate could not recover because Umansky was a private employee. Fox also argued that the regulations did not apply because no public employee was using the platform at the time that Umansky fell.

The Wisconsin Supreme Court rejected Fox’s arguments. The Court concluded that the Wisconsin and Federal regulations created a mandatory duty to install a railing on the type of platform from which Umansky fell, and that the duty was “ministerial” because the regulations required a very specific type of railing and left no room for discretion. The Court also rejected Fox’s argument that the regulations protected only public employees. The Court stated that Fox’s position would result in a “divided, haphazardly applicable” rule of law and would be “unworkable” given the clarity of the requirement to install a railing around the platform. The Court stated: “It was Fox’s responsibility, as the director of facilities for Camp Randall Stadium, to be sure that the Stadium complied with OSHA regulations. Period.” The Court ruled that the Umanskys could proceed to trial on their negligence claim.

This decision is significant because it clarifies the scope of the “ministerial duty” exception to public officer immunity. If the Court had accepted Fox’s position, it would be hard to imagine anytime a public employee would have a “ministerial duty” because there was no dispute in this case that Fox was responsible for complying with OSHA regulations, or that the regulations required a very specific type of railing around the platform.

Likewise, Fox’s other argument that the regulations protected only public employees-would have led to extremely absurd results. For instance, if the Court had accepted Fox’s argument, the State could build unsafe public buildings and be protected by immunity so long as the only people injured were private citizens. Also, if both a public employee and private citizen were injured by the very same defect, the public employee would be allowed to recover but the private citizen would not.

The Court’s decision ensures that citizens who are injured by the State’s failure to follow its own safety regulations receive just compensation and that the government is held accountable to the public.

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