Construction & Public Contract Law Section Blog: Wisconsin Court of Appeals Affirms Contractor’s Immunity as Municipal Government’s Agent:

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  • Construction & Public Contract Law Section Blog
    November
    10
    2020

    Wisconsin Court of Appeals Affirms Contractor’s Immunity as Municipal Government’s Agent

    Patrick Whiting

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    A recent Wisconsin Court of Appeals decision reminds construction attorneys that clients working for municipal entities can have a layer of legal protection based on municipal immunity. Patrick Whiting discusses the details and implications of the decision.

    This past summer, the Wisconsin Court of Appeals issued an unpublished opinion in Coolidge A L.L.C. v. City of Waukesha,1 a case involving claims of negligence against both the City of Waukesha (City) and a contractor working for it, D.F. Tomasini Contractors (Tomasini).

    The Court of Appeals determined that the City was shielded from the negligence claim by governmental immunity, and that Tomasini, as an agent of the City, also was shielded.

    The court’s decision reminds construction attorneys, and particularly those who handle injury claims for their insurance carriers, that clients working for municipal entities are often provided a layer of legal protection based on municipal immunity not otherwise available when working on private projects.

    An Uninhabitable Apartment Building

    In Coolidge, the City hired Tomasini to replace water and sewer mains that ran down the middle of two roadways. Tomasini dug up the streets, replaced the pipes, and restored the roadways.

    Patrick Whiting Patrick Whiting, Minnesota 2006, is the corporate counsel at Kraemer North America, in Plain, Wisconsin.

    The plaintiff owned an apartment building constructed on top of a landfill near the project. According to the plaintiff, the heavy construction work’s vibrations caused the soil supporting the building to differentially settle, which in turn caused such damages to the building as to make it uninhabitable. Accordingly, the plaintiff sued both the City and Tomassini for negligence.2

    At the circuit court level, both the City and Tomasini were granted summary judgment against the negligence claims based on governmental immunity. The Court of Appeals reviewed the negligence claims de novo.

    The Court’s Analysis

    The court began by restating the general rule of municipal immunity. Under Wis. Stat. section 893.80(4), governmental subdivisions and their employees and agents are immune from liabilities “for acts done in the exercise of legislative, quasi-legislative, or quasi-judicial functions.”3

    The court emphasized that the statute has been interpreted to include “any act that involves the exercise of discretion and judgment.”4

    The court went on, quoting the decision in Lodl v. Progressive N. Ins. Co.: “The immunity defense assumes negligence, focusing instead on whether the municipal action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies.”5

    While the Coolidge decision did not list them, those “judicially-created exceptions” generally hold that there is no municipal immunity against liability associated with:

    • the performance of ministerial duties imposed by law;

    • known and compelling dangers that give rise to ministerial duties on the part of public officers or employees;

    • acts involving medical discretion; and

    • acts that are malicious, willful, and intentional.6

    Applying these rules to the facts in Coolidge, the Court of Appeals held that both the City and Tomasini were shielded by municipal immunity from the plaintiff’s negligence claims.

    The Coolidge court determined that City staff had prepared a comprehensive plan to rehabilitate the sewer and water lines, “debated and reviewed” the plans, and made discretionary design and policy decisions regarding the project. Accordingly, the court invoked the holding in Milwaukee Metro. Sewerage Dist. v. City of Milwaukee that “[d]ecisions concerning the adoption, design, and implementation of a public works system are discretionary, legislative decisions for which a municipality enjoys immunity.7

    In so holding, the Court of Appeals disagreed with the plaintiff’s assertion that the City’s inaction – i.e., its ignorance and/or failure to warn Tomasini about the condition of the plaintiff’s building – did not constitute an act of discretion entitled to municipal immunity.

    Instead, the court held that “[plaintiff] cites no authority for the proposition that individual elements of, or omissions from, a public works project that was created, planned and implemented pursuant to a municipality’s legislative or quasi-legislative functions can be isolated from the project as a whole and, in hindsight, picked apart to defeat immunity.”

    The court then turned to the question of whether Tomasini was immune from the plaintiff’s negligence claim. To assert immunity, the court stated that Tomasini needed to prove:

    • the City approved reasonably precise specifications that Tomasini followed at the time the plaintiff’s injury occurred; and

    • Tomasini’s conduct implemented the City’s decisions, made during the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions.8

    In response to each of the actions and inactions that the plaintiff alleged constituted negligence on the part of Tomasini, the court held that Tomasini was able to demonstrate that both prongs had been satisfied. As a result, Tomasini was immune as the City’s agent.

    Of note, the court brushed aside the plaintiff’s assertion that Tomasini's failure to perform extra-contractual property inspection and vibration monitoring amounted to negligence, as “[t]asks not included in the City’s specifications pertain to its project design and Tomasini cannot be held to account for their absence.”

    Additionally, the court determined that, because the City’s project specifications limited the choice of equipment that Tomasini could utilize to crush gravel, Tomasini had not been delegated with sole responsibility for its “means, methods, techniques, sequences, and procedures of construction.” As a result, the Court found that the specifications were reasonably precise to warrant immunity.

    Takeaway

    The Coolidge decision serves as a good reminder and a concise refresher that municipal immunity may be imputed to contractors working for governmental bodies.

    Attorneys representing such contractors would be wise to look to Wis. Stat. section 893.80(4) as a first line of defense the next time something goes sideways on their client’s public project.

    This article was originally published on the State Bar of Wisconsin’s Construction and Public Contract Law Section Blog. Visit the State Bar sections or the Construction and Public Contract Law Section web pages to learn more about the benefits of section membership.

    Endnotes

    1 Coolidge A L.L.C. v. City of Waukesha, 2018 AP 1441 (June 24, 2020).

    2 The plaintiff also sued the City of Waukesha for intentional nuisance, inverse condemnation, and indemnification. The court’s analysis of these causes of action are not analyzed in this post.

    3 Coolidge, at *2.

    4 Id. (citing Lodl v. Progressive N. Ins. Co., 646 N.W.2d 314 (Wis. 2002)).

    5 Id. (citing Lodl at 320-21).

    6 See Lodl, at 321.

    7 Milwaukee Metro. Sewerage Dist. v. City of Milwaukee 691 N.W.2d 658 (Wis. 2005).

    8 Id. (citing Melchert v. Pro Elec. Contractors, 892 N.W.2d 710 (Wis. 2017)).

    ​​​




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