Fighting City Hall
by Michael A. Pollack
In 1962, the Wisconsin Supreme Court abolished
the common law doctrine of sovereign immunity for municipalities and
their employees in the landmark Holytz v. City of Milwaukee 1 decision. Justice Gordon, writing for the
court, cited numerous reasons for rejecting this long-standing doctrine.
However, both Justice Gordon and Justice Currie's concurring opinion
left the door open for the legislature to "restore the court abolished
rule if it determines public policy so requires."2 Shortly thereafter, the legislature enacted
the predecessor of the current municipal claims statute.3 That legislation provided immunity for "acts
which are done in the exercise of legislative, quasi-legislative,
judicial, or quasi-judicial functions."4
This language merely repeats the exception that Justice Gordon provided
for in Holytz, which established that "[H]enceforward, so far
as governmental responsibility for torts is concerned, the rule is
liability - the exception is immunity."5
What remains of municipal immunity is an affirmative defense, which
may be waived if not pleaded in a timely manner.6 Nonetheless, the courts are again referring
to the "rule of immunity,"7 making
plaintiffs bear the burden of proving they fall within an exception,
even though the legislature has not acted and the supreme court has not
expressly overruled Holytz. Recently, three members of the
supreme court noted, "Wisconsin law has become unintelligible in
explaining what rights and remedies are available to persons who have
been injured by state or local government."8
This article examines the history and current status of municipal
immunity in the courts, and suggests future judicial and legislative
action on this issue. It also shows how recent appellate court
interpretations of the municipal immunity doctrine affected the recently
concluded class action arising out of the 1993 cryptosporidium
contamination of Milwaukee's drinking water. This author, as plaintiff
class co-counsel in that litigation, believes that the change in
appellate court treatment of the municipal immunity doctrine needlessly
complicates and prolongs the proceedings in such cases.
History of Municipal Immunity after Holytz
Much of Justice Gordon's criticism of municipal immunity focused on
"some highly artificial judicial distinctions" that had grown up around
it, such as the "proprietary or governmental function" test, or the
"governor to governed" relationship test. Cases dealing with the current
immunity statute have avoided those distinctions, but created new ones
to take their place. Today, the courts employ the "discretionary"
(immune) versus "ministerial" (not immune) duty test when deciding
whether a municipality is immune from suit.9
Likewise, cases dealing with municipal liability for accidents caused by
absent or misplaced traffic signs distinguish between placement
decisions (which may be immune) and maintenance issues (which are not
immune).10 The salient issue now is whether
these distinctions are any less artificial or any more necessary and
workable than the ones that preceded Holytz.
The "ministerial/discretionary" test can be traced to Lister v.
Board of Regents11, a 1976 decision
that held that state employees were immune from being sued by former
U.W. law students for refunds of tuition overpayments. The courts first
applied this test to a case involving a municipality in 1980, but held
that negligent acts by medical doctors employed by a municipality were
not covered because they were exercising nongovernmental discretion.12 Later cases held that "quasi-legislative"
and "quasi-judicial" were synonymous with "discretionary" acts, except
those performed by medical professionals.13
At the same time, another court recognized that governmental immunity
does not attach merely because the conduct involves discretion. "The
question is whether the decision involved the type of judgment and
discretion that rises to governmental discretion, as opposed to
professional or technical judgment and discretion."14 Nonetheless, by the mid 1990s, the supreme
court made it clear that the "discretionary/ministerial duty" test
applied equally to state employees and to municipalities and their
employees, regardless of the nature of their jobs or professions.15
Oddly, none of these cases overruled or even criticized a 1984
decision in Domino v. Walworth County, which found that a
municipality was not immune for failing to dispatch a sheriff's squad to
investigate a fallen tree that caused a motorcyclist to crash and injure
himself.16 Arguably, Domino was decided
upon the "known danger" exception to the "rule of immunity." However,
application of an exception normally follows a finding that the rule
applies. That did not happen in Domino. To the contrary, the Domino
court criticized the "discretionary" immunity test, noting, "Nearly
every human action involves the exercise of some discretion."17 Subsequent cases have ignored that
observation.
Legislative Intent and Public Policy Considerations
Missing from recent cases involving municipal immunity is any
discussion or analysis of the legislative intent behind the municipal
immunity law. In Lister, the supreme court discussed many public policy
considerations before it found the Board of Regents to be immune from
the suit for tuition refunds. Those considerations include:
1) whether public officers would be influenced in making their
decisions by the threat of a lawsuit;
2) the deterrent effect of potential liability on public
servants;
3) the drain of public servants' valuable time in defending the
lawsuit;
4) the unfairness of holding public officials liable for the acts of
their subordinates; and
5) the desirability of using the political process to remedy the
harm.
Conspicuously absent from this list is the desire to protect the
public treasury. Nonetheless, it is difficult to suppress the suspicion
that such a desire is behind recent decisions finding municipalities
immune from suit. The courts also have failed to consider the impact of
governmental immunity on third parties. Therefore, in light of recent
cases, an analysis of all of these public policy considerations and
justifications for governmental immunity is in order.
Would public officers be influenced in making their decisions by the
threat of a lawsuit? Presumably, no one ever wants to be sued, even when
they are negligent and cause injuries. However, we protect only
municipalities and state and municipal employees from such lawsuits.
Why? In the recently settled cryptosporidium litigation in Milwaukee,
the city suggested that "[W]ater treatment is not a fit subject for a
court or jury to substitute its own discretion. ..." There certainly are
governmental decisions that are properly left to one branch of
government, free from judicial second guessing. The amount of
supervision exercised by jailers18, parole
officers19, gym teachers20, and foster care workers21 may be among them. Immunity might be
especially appropriate in cases against police officers by plaintiffs
who have been injured by criminals or other third parties who are under
government supervision, not by state or municipal employees
themselves.22 Such supervision
traditionally has been a uniquely governmental function. However, one
might question why, in this day and age of private (and "choice")
schools and private prisons, only government employees should be immune
from suit. Surely, government employees are not less likely to be
negligent than employees in the private sector.
As a matter of public policy, municipal governments and their
employees should not be immune from being sued for negligence in
situations where their counterparts in private business would not be
immune. Either all teachers should be immune from being sued for
negligence on the job, or none of them should be. Likewise, water works
employees should be liable for their negligence or immune from suit
regardless of whether a municipality or a private company owns the
utility. Municipal immunity should apply only when the government is
providing a uniquely governmental service (that is, there is no private
sector counterpart).
Deterrent effect of lawsuits on public servants. It is not in the
public interest to deter anyone from running for public office because
they might be sued for something the government or its employees do
wrong. But how far down the line do we go? Cabinet officers? Department
heads? Staff and line employees? Since the government normally is liable
for judgments against its employees arising out of actions performed in
the line of duty23, is this really a
legitimate rationale for immunity? There is no evidence to suggest that
immunity is necessary in order to attract quality municipal
employees.
Drain of valuable time in defending lawsuits. Where defendants are
law enforcement officers, teachers, or foster care workers, courts are
reluctant to take up their time reviewing the myriad of decisions they
make in allocating their time between many competing and urgent demands.
Outside of those occupations, this author cannot think of any other
governmental units or employees who need more protection from lawsuits
than private businesses or their employees have.
Unfairness of holding public officials liable for the acts of their
subordinates. This consideration is really a restatement of the concerns
underlying the three previous considerations. Again, where is the
empirical evidence that municipal officials are being sued unjustifiably
for the acts of their subordinates or others whose actions they cannot
control? Our jurisprudence regarding negligent hiring and supervision,
and the burdens of proving liability and causation, usually are
sufficient to screen out the meritless cases. Where is the need to
provide more protection against legal action to government officials
than to their counterparts in private business?
Desirability of using the political process to remedy the harm. Where
many citizens are alleged to have been harmed by the action or inaction
of an elected public official, it might properly be argued that it
should be left to the electorate to decide what to do about it. For
example, the Chicago mayor in 1979 was blamed for not providing enough
workers and equipment to clean up after a New Year's Eve snowstorm,
leaving people stranded and businesses closed for more than a week. A
new mayor was elected within a year, largely due to the snow removal
crisis.
The question our courts, and perhaps the legislature, need to resolve
is what to do when the culpable public employees are merely civil
servants, rather than elected officials or their direct appointees. When
lower-level municipal employees (for example, operators and chemists at
the water works) cause the public harm, should the injured parties be
left to their political remedies? Two municipal elections have been held
since the 1993 crypto outbreak in Milwaukee, and no one has been able to
make it into a campaign issue against either the incumbent mayor or any
alderperson. In this situation, the political process has failed to
bring about accountability. Immunity from liability for damages in tort
would remove the only other available recourse.
Protecting the public treasury. Ideally, governmental immunity would
provide municipalities and their employees with a quick and inexpensive
means for obtaining dismissal of civil lawsuits upon a motion to dismiss
at the outset of the case.24 In practice,
Wisconsin's immunity statute has required most cases to be litigated
through discovery and resolved only upon a motion for summary judgment
or following a trial.
In the cryptosporidium cases, counsel for the city of Milwaukee
argued in court and in public statements that a settlement or judgment
against the city would only take money from all taxpayers' pockets and
put it into the pockets of some of those taxpayers. This ignores the
fact that many of those who were sickened by the contaminated water were
not Milwaukee residents, but drank the water at the airport, hospitals,
restaurants, schools, or other businesses in the service area. More
importantly, if this argument were true, it would be only because the
city of Milwaukee is "self-insured." Milwaukee could have protected
itself (and its taxpayers and water utility ratepayers) by buying
general liability insurance, as other water utilities and other
municipalities have done. Municipalities, like other defendants in civil
lawsuits, should not be allowed to argue that they should be immune from
suit merely because they are "self-insured" or uninsured.
In the crypto cases, six years of motions and discovery (including
hundreds of depositions of lay and expert witnesses) passed before
defense counsel felt comfortable enough to file a motion for summary
judgment on the immunity issue. Defense counsels' fees and costs
exceeded $1.5 million.25 In the absence of
liability insurance, that money obviously came from taxpayers' pockets.
Thus, the immunity defense did very little to protect the public
treasury in those cases. It did multiply the time, effort, and costs of
litigating the case for all parties.
In addition, even when immunity has been applied to protect municipal
employees, the municipality itself has been held liable for its own
negligence.26 Municipalities also are not
immune from suits for breach of contract27
or for maintaining a nuisance.28 Thus, in
the universe of things for which a municipality may be sued, immunity
against suits for damages in tort provides very limited protection.
Further, Wisconsin's municipal claims statute is a three-headed hydra.
In addition to the immunity provision, the statute imposes notice
requirements and a damage cap that is among the lowest in the nation.29 If immunity did not exist, the gates
holding back a flood of municipal tort claims would hardly be
budged.
Effect of governmental immunity on third parties. A frequently
overlooked side effect of any immunity doctrine is that the injured
parties inevitably look to viable nonimmune parties for compensation. In
the crypto case, it was the private company that sold a water treatment
chemical to the city that eventually came up with the lion's share of
the settlement money. It is companies like this (and their insurers) who
should be leading the attack on the governmental immunity doctrine. If
Wisconsin municipalities continue to insist that all of their activities
involving some discretion are immune from suit, regardless of how
tangentially they may or may not be related to legislative or judicial
functions, then private companies doing business with them had better
take precautions against being sued as the only viable parties connected
with the incident. Contractual provisions for indemnification or waiver
of the immunity defense may be necessary to protect relatively innocent
private companies whose products are misused by municipal employees,
like the chemical company in the crypto case.
Other grounds for dismissal of cases against municipalities.
Sometimes, immunity has been unnecessarily employed instead of other,
more conventional, means of defending municipalities and their
employees. For example, in one recent case, a man sued a school district
because it gave him bad advice regarding insurance and retirement
benefits resulting from the death of his wife, who had been a
schoolteacher.30 The court held that the
school district was immune from being sued for giving the bad advice
because it was a "discretionary" function. This holding was unnecessary
because the case could have been resolved on other grounds.
The case was based solely on negligence and involved only monetary
loss (not personal injury or public safety, the traditional concerns of
tort law). The defense should have based its motion on the economic loss
doctrine. Alternatively, it could have argued that the school district
had no duty to render what was essentially legal advice to the widower.
He paid nothing for the advice and the information he needed was easily
obtainable from other sources, like the public statutes, regulations, or
a lawyer. There was no contractual obligation to provide this advice,
and no guarantee that it would be correct. Under either theory, the case
could and should have been disposed of upon a motion to dismiss for
failure to state a claim at the outset.
Conclusion
The present municipal immunity statute, as interpreted by judicial
decisions in the 1990s, does not work. It does not accomplish any of the
public policy goals ever posited for it. When the crypto-sporidium cases
were filed in 1993, it was unlikely that the municipal defendants could
prevail on an immunity defense under the cases that had been decided up
to that point. However, beginning in 1995, the courts broadened their
interpretation of section 893.80(4) of the Wisconsin Statutes, and the
city's chances of prevailing increased. Finally, in 1999, following six
years of litigation and the expenditure of millions of dollars in
attorney fees and costs by all parties, the city filed its motion for
summary judgment based upon its "discretionary" immunity. Before the
court ruled on that motion, the parties reached a settlement that the
court approved on a class-action basis.31
The fairness of the settlement was based, at least in part, upon the
prospect that the case would be tied up for several more years in an
appeal of the trial court's ruling on immunity, regardless of who won in
the trial court.
The unresolved question is whether the legislature in 1963 intended
to reinstate municipal immunity beyond the "legislative,
quasi-legislative, judicial, and quasi-judicial" functions that survived
the Holytz decision. If it did find that public policy required
it to restore the court-abolished rule and legislatively overrule
Holytz, the legislature could and should have done so in much
more direct and comprehensive language. However, in the absence of
compelling empirical evidence that this is necessary, the legislature
should leave the current immunity statute alone. Instead, plaintiffs'
and defendants' attorneys, and judges, need to reexamine the public
policy considerations identified in Lister before applying the
"discretionary/ministerial" function test to anyone other than police,
jailers, teachers, and foster care workers.
It also is unnecessary to resurrect the "proprietary/governmental"
function test. Rather, immunity should be seen as the affirmative
defense that it is, and the burden should be placed upon the municipal
government to establish that the conduct for which it is being sued is
"legislative, quasi-legislative, judicial, or quasi-judicial." This
should be a legal decision that the courts can resolve upon a motion to
dismiss. The parties should not have to engage in discovery to determine
that issue.
In many cases, better defenses and procedural motions exist to
accomplish the stated goals of the municipal immunity defense. If that
is not enough protection for fragile public treasuries, more
municipalities should consider obtaining liability insurance. That also
would be the best protection for those injured due to the occasional
negligence of public employees.
Example Cases in which Government
Conduct Was Found to be Discretionary or Ministerial
The following is a list of cases showing examples of cases in which
government conduct has been found to be discretionary (immune) or
ministerial (not immune). The list is not exhaustive.
Case Name
|
Date
|
Court
|
Plaint.1
|
Defend.2
|
Cause of
Action
|
PI3
|
Public Work
|
Immunity4
|
Coffey v. City of Milwaukee |
1976 |
S.Ct. |
Individ. |
M |
Negligence |
No |
Bldg./fire inspect. |
No
|
Lister v. Board of Regents
|
1976 |
S.Ct. |
Individ. |
S |
Declaratory judgment |
No |
Law school registrar |
Yes |
Lange v. Town of Norway |
1977 |
S.Ct. |
Individ. |
M |
Nuisance |
No |
Dam |
No |
Cords v. Anderson |
1977
|
S.Ct. |
Individ. |
S |
Negligence |
Yes |
State park |
No |
Scarpaci v. Milwaukee County |
1980 |
S.Ct. |
Individ. |
M |
Negligence |
Yes |
Coroner |
Yes / No |
Domino v. Walworth County |
1984 |
App. |
Individ. |
M |
Negligence |
Yes |
Police |
No |
Hillcrest Golf & Country Club v. City of Altoona |
1986 |
App. |
Bus. |
M |
Nuisance |
No |
Sewer |
No |
C.L. v. Olson |
1988 |
S.Ct. |
Individ. |
S |
Negligence |
Yes |
Parole agent |
Yes |
Energy Complexes v. Eau Claire County |
1989 |
S.Ct. |
Bus. |
M |
Breach of contract |
No |
Power plant |
No |
Stann v. Waukesha County |
1991 |
App. |
Individ. |
M |
Negligence |
Yes |
Beach lifeguards |
Yes |
Sheridan v. City of Janesville |
1991 |
App. |
Individ. |
M |
Negligence |
Yes |
Police |
Yes |
Barillari v. Milwaukee |
1995 |
S.Ct. |
Individ. |
M |
Negligence |
Yes |
Police |
Yes |
Kara B. v. Dane
County |
1995 |
App. |
Individ. |
M |
Negligence |
Yes |
Foster care |
Yes |
Menick v. City of
Menasha |
1996 |
App. |
Individ. |
M |
Nuisance |
No |
Sewer |
No |
Kimps v. Hill |
1996 |
S.Ct. |
Individ. |
S |
Negligence |
Yes |
University phy. ed. class |
Yes |
Estate of Cavanaugh v.
Andrade |
1996 |
S.Ct. |
Individ. |
M |
Negligence |
Yes |
Police |
No / Yes |
Bauder v. Delavan-Darian
School District
|
1996 |
App. |
Individ. |
M |
Negligence |
Yes |
School gym class |
Yes |
Ottinger v.
Pinel |
1997 |
App. |
Individ. |
S |
Negligence |
Yes |
Prison guards |
Yes |
Spencer v. Brown
County |
1997 |
App. |
Individ. |
S |
Safe-place |
Yes |
Jail |
Yes |
Anderson v. City of
Milwaukee |
1997 |
S.Ct. |
Individ. |
M |
Safe-place |
Yes |
Sidewalk |
No (waived) |
Pichler v. Hamilton Sch.
Dist. |
1999 |
App. |
Individ. |
M |
Negligence |
Yes |
School |
Yes |
Kierstyn v. Racine Unified
Sch. Dist. |
1999 |
S.Ct. |
Individ. |
M |
Negligence |
No |
School |
Yes |
Willow Creek Ranch LLC v.
Town of Shelby |
2000 |
S.Ct. |
Bus. |
M |
Negligence |
No |
Zoning |
Yes |
1 Plaintiff: Individ. = Individual; Bus. =
Business.
2 Defendant: M = Municipality; S = State.
3 PI = Personal Injury.
4 Immunity: Yes / No = Municipality immune but
individual employees are not; No / Yes = Municipality not immune but
individual employees/officers are.
Michael Pollack, Tulane
1978, is engaged in a private civil litigation practice in Milwaukee. In
1999, he was appointed lead counsel for the Plaintiff Class in the
litigation arising out of the 1993 cryptosporidium contamination of
Milwaukee's drinking water supply, in which he recently concluded
settlements of $1.8 million. He also is admitted to practice law in
Florida and Illinois.
Endnotes
1 Holytz v. City of
Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).
2 115 N.W.2d at 625 and
627.
3 Wis. Stat. § 895.43,
later renumbered as § 893.80.
4 Id.
5 Holytz, 115 N.W.2d
at 625.
6 Anderson v. City of Milwaukee, 208 Wis.
2d 18, 559 N.W.2d 563 (1997).
7 Barillari v.
Milwaukee, 194 Wis. 2d 247, 258, 533 N.W.2d 759 (1995).
8 Willow Creek Ranch LLC v. Town of
Shelby, 2000 WI 56, 59, 235 Wis. 2d 409, 611 N.W.2d 693 (June
20, 2000). The dissenters further elaborated that "The law on
governmental immunity has become so muddled that it no longer provides
reasonable guidance about when local governments may be sued, what
remedies are available to persons claiming injury, and the circumstances
in which local governments and their employees may be held liable."
120.
9 E.g., Barillari v.
Milwaukee, supra note 7.
10 Foss v. Town of
Kronenwetter, 87 Wis. 2d 91, 102, 273 N.W.2d 801 (Ct. App. 1978).
Interestingly, the court noted, "Sec. 81.15,
Stats., has spawned a line of cases which have not always been
consistent in their development, theory, or language." 87 Wis. 2d at
100.
11 Lister v. Bd. of
Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976).
12 Scarpaci v.
Milwaukee County, 96 Wis. 2d 663, 683, 292 N.W.2d 816, 826
(1980).
13 Stann v. Waukesha
County, 161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991).
14 Sheridan v. City of
Janesville, 164 Wis. 2d 420, 474 N.W.2d 799 (Ct. App. 1991).
15 Kimps v. Hill, 200 Wis. 2d 1, 546
N.W.2d 151 (1996). See also, Barillari, supra note 7, and
Kara B. v. Dane County,
198 Wis. 2d 24, 542 N.W.2d 777 (Ct. App. 1995).
16 Domino v. Walworth
County, 118 Wis. 2d 488, 347 N.W.2d 919 (Ct. App. 1984).
17 Id. at 492, 247 N.W.2d
at 919.
18 Spencer v. Brown County, 215
Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997).
19 C.L. v. Olson,
143 Wis. 2d 701, 422 N.W.2d 614 (1988).
20 Bauder v. Delavan-Darien Sch.
Dist., 207 Wis. 2d 312, 558 N.W.2d 881 (Ct. App. 1996); Pichler v. Hamilton Sch.
Dist., 1999 WL 486927 (Ct. App. unpublished).
21 Kara B. v. Dane County, 198 Wis.
2d 24, 542 N.W.2d 777 (Ct. App. 1995).
22 E.g.,
Barillari, n.5, supra note 7.
23 Wis. Stat. § 895.46.
See Graham v. Sauk Prairie Police Comm'n, 915 F. 2d 1085 (7th
Cir. 1990).
24 Penterman v. Wisconsin Elec. Power Co.,
211 Wis. 2d 458, 468-69, 565 N.W.2d 521 (1997).
25 According to reports in
the local press.
26 Estate of Cavanaugh v. Andrade, 202
Wis. 2d 290, 550 N.W.2d 103 (1996). The police officer who was engaged
in a high-speed chase that resulted in the death of an innocent
bystander was found to be immune from liability, but the municipality
itself was not immune for failing to adopt adequate high-speed chase
guidelines.
27 Energy Complexes
Inc. v. Eau Claire County, 152 Wis. 2d 453, 449 N.W.2d 35
(1989).
28 Menick v. City of Menasha, 200
Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996). "The actions of the city in
operating and maintaining a sewer system do not fall within the immunity
provisions of § 893.80." 200 Wis. 2d at 739, 740.
29 Wisconsin recovery limit
for victims of municipal torts: A conflict of public interests, 1986
Wis. L. Rev. 155.
30 Kierstyn v. Racine Unified Sch.
Dist., 228 Wis. 2d 81, 596 N.W.2d 417 (1999).
31 The case was originally
certified as a class action for litigation purposes, but that was
reversed on appeal, Markweise v.
Peck Foods, 205 Wis. 2d 207, 556 N.W.2d 881 (Ct. App. 1996).
After remand, further hearings on class certification were held, and
ultimately the trial court denied certification for litigation
purposes.
Wisconsin
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