County immune from liability for car accident involving road
Directing traffic during road construction is a discretionary duty
protected by governmental immunity, an appeals court has ruled.
Ministerial duty and known danger exceptions didn’t apply.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
April 17, 2012 – A county employee who is negligent while
directing traffic during road construction does not mean the county is
liable for injuries that result, a state appeals court has ruled.
In 2009, Outagamie County employees were dispatched as
“flaggers” to control the flow of
traffic on a county highway under construction. On a flaggers’ command, the plaintiff,
traveling west, rolled into an intersection and was struck by a vehicle
traveling southbound through the intersection.
The plaintiffs, Beverly Socha and Jennifer Greiner, alleged the flagger’s negligence caused the accident
and therefore the county was liable for personal injury and property
damage. But the circuit court granted summary judgment to the county on
grounds of governmental immunity.
Family Mutual Ins. Co. v. Outagamie
County, 2011AP1211 (April
17, 2012), the District III Wisconsin Court of Appeals affirmed the
circuit court, despite the plaintiffs’ argument that ministerial
duty and known danger exceptions applied to defeat a governmental
Wis. Stat. section 893.80(4)
immunizes municipalities from liability for employee acts “done in
the exercise of legislative, quasi-legislative, judicial or
As the appeals court explained, immunity extends to acts involving the
exercise of discretion and judgment.
However, immunity does not apply if a municipal employee violates
ministerial duties, absolute and certain duties that involve the
performance of specific tasks specified by law. In addition, where a
municipal employee fails to correct a known danger, immunity may not
The plaintiffs argued that controlling traffic involves ministerial
duties that are not protected by governmental immunity, but the appeals
court rejected that argument.
“How to safely control traffic in a construction zone is an
inherently discretionary decision, requiring the County to exercise its
judgment,” wrote Judge Gregory Peterson. “Assuming the
County had a duty to provide traffic control to make the construction
zone reasonably safe for motorists, that duty is not precise and
detailed enough to eliminate the County’s discretion in deciding
how to control traffic.”
The appeals court also rejected the plaintiffs’ argument that the
county created a known danger by providing a single flagger to direct
traffic at a four-way highway intersection.
“We do not agree that the alleged hazard created by the County in
this case was so clear and absolute, and so certain to cause injury, as
to constitute a known and compelling danger,” Judge Peterson
The court also pointed to Lodl v. Progressive N. Ins. Co.,
2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314, to conclude that the
plaintiffs’ known danger argument was foreclosed.
In Lodl, police requested portable stop signs to address an
inoperable traffic light, but did not direct traffic. An accident
occurred before portable signs arrived. The court rejected the
plaintiff’s argument that police did not respond properly to a
“Like the officer in Lodl, the County had discretion to
decide how to address any danger presented by the lane closure at the
intersection. … Although the County could have used other
measures to control traffic, such as additional flaggers or temporary
traffic lights, the County was not required to do so,” wrote Judge
Peterson, affirming the circuit court’s summary judgment in favor
of the county.