Subcontractor gets governmental immunity as agent of city in negligence
A subcontractor met the legal requirements to be considered a
city's "agent" and thus immune from liability when a woman
tripped over barricades that protected the subcontractor's work
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Oct. 8, 2010 – Governmental immunity applies to a subcontractor
working on a city construction project if the subcontractor meets the
requirements to be considered an agent of the city and the city retains
ultimate responsibility for the project.
That’s what the district III Wisconsin appeals court held in
v. Pember Companies, Inc., 2009AP2297 (Oct. 5, 2010), a case in
which the plaintiff, Beverly Bronfeld, sustained injuries after tripping
over a barricade, placed to protect the work area of subcontractor
Pember Companies. Bronfeld claimed Pember “negligently constructed
barricades and safety signs and failed to maintain a safe site for the
In 2007, the City of River Falls contracted with Monarch Paving
(general contractor) and Pember (subcontractor) to revamp a downtown
intersection. Pember was responsible for constructing new sidewalks and
The city engineer assembled a project manual, which included
specifications for installing and maintaining barricades during the
course of the project. The manual also obligated the project to follow
the Wisconsin Manual on Uniform Traffic Control Devices.
In accordance with the manual, Monarch submitted a traffic control
plan, which the city approved, calling for the use of barricades
“for road closed areas, and to maintain a barrier between
construction activity and the traveling public.” Pember was
contractually bound to follow the plan submitted by Monarch.
During the course of the project, Pember erected barricades along a
crosswalk to protect the work area and divert traffic, and placed a
“sidewalk closed sign” on the edge of the sidewalk that led
to the crosswalk.
While walking near the work area one day, Bronfeld tripped over the leg
of a barricade and fell, sustaining injuries. Bronfeld filed suit,
alleging Pember “negligently erected barricades and safety signs
and failed to maintain a safe site for the public.”
The Pierce County Circuit Court granted summary judgment to Pember on
the grounds that Pember was entitled to governmental immunity as an
agent of the city.
Agent of the city
Wis. Stat. section 893.80(4) immunizes a local government’s agent
from liability for acts involving the exercise of discretion or
judgment, the appeals court explained. Sign placement is a discretionary
duty, and a barricade is considered a sign, the court noted.
Under Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446,
558 N.W.2d 658 (Ct. App. 1996), the court explained that an independent
government contractor is an agent for purposes of section 893.80(4) and
“entitled to immunity if: (1) the governmental authority approved
reasonably precise specifications; (2) the contractor’s actions
conformed to those specifications; and (3) the contractor warned the
supervising governmental authority about possible dangers associated
with those specifications that were known to the contractor but not to
the governmental officials.”
First, the court rejected Bronfeld’s argument that the city did
not approve precise specifications for barricade placement, traffic
control and safety signs, citing the project and Wisconsin manuals and
the traffic control plan as evidence of precise specifications
addressing those issues.
Although the specifications provided for “approximate
locations” for sign and barricade placement, the court explained
that “specifications need not spell out every minute detail of a
project to qualify as ‘reasonably precise.’”
Further, although the contract relinquished the city’s
responsibility for “initiating, maintaining and supervising all
safety precautions and programs in connection with the [work],”
the court explained that such relinquishment did not change the fact
that “Pember was contractually obligated to follow the
specifications in the project manual and traffic control
“[T]here is no reason a contractor cannot be held generally
responsible for safety on a job site while also being required to follow
reasonably precise specifications approved by a governmental
entity,” the court wrote.
In satisfying the second prong of Lyons, the court found
evidence that Pember followed the specifications in placing the
barricades and safety signs, and no evidence to the contrary.
Finally, under the third prong of Lyons, the court found no
evidence that Pember was aware of specification dangers that it was
required to warn the city about.
Thus, the court held that Pember satisfied all three prongs of
Lyons to be considered an agent of the city and thus immune from
Highway defect argument
Because Bronfeld failed to raise the issue at trial, the court quickly
disposed of Bronfeld’s argument that her negligence action
involved a “highway defect” under Wis. Stat. section
893.83(1), an exception to the general rule of governmental
However, the court explained that even if the issue were preserved for
appeal, the argument would not stand because “the undisputed facts
demonstrate this case does not involve an actionable highway
That is, negligent placement of barricades does not involve the
structural or construction components of the road bed and surface, as
required by section 893.83(1).