Government Immunity for Safe Place Statute Violations

The court of appeals has published conflicting decisions regarding whether governmental entities are immune from liability under section 893.80(4) for violations of the Safe Place Statute. Practitioners handling premises liability cases involving governmental entities should be familiar with the case law and consider how public policy factors affect their arguments for or against immunity.

Links to Wisconsin statutory materials in this article require that you have the free Adobe Acrobat Reader Software on your computer.

By Thomas A. Cabush

onflict exists among recent published decisions of the Wisconsin Court of Appeals regarding the applicability of the discretionary immunity statute to actions involving alleged Safe Place Statute violations. Governmental entities are afforded immunity under section 893.80(4) of the Wisconsin Statutes for the discretionary acts of their employees. In Anderson v. City of Milwaukee¹ (Anderson I), the District I Court of Appeals held that a government entity was not immune from liability for alleged Safe Place Statute violations. Shortly thereafter, in Spencer v. County of Brown,² the District III Court of Appeals held that a government entity was immune from liability for alleged Safe Place Statute violations. This article analyzes these conflicting decisions and attempts to provide some guidance to practitioners handling premises liability cases involving governmental entities.

General Rules for Determining Immunity

Section 893.80(4) of the Wisconsin Statutes provides immunity to governmental subdivisions such as towns, counties, and school districts. Section 893.80(4) states:

"No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."

The common law has developed some general rules of law that are applicable in determining whether a specific act of a governmental entity or its employees will be immune from liability under section 893.80(4). The courts have interpreted the terms "quasi-legislative" and "quasi-judicial" as synonymous with the term "discretionary."³ Therefore, governmental entities and their employees are immune from liability for their discretionary acts.

A discretionary act is viewed in contrast to a "ministerial" act. Ministerial acts are not subject to immunity.⁴ A ministerial act occurs when the act is "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion."⁵ Therefore, if it is determined that the act involved the exercise of judgment or discretion, then the governmental entity and its employees will be entitled to immunity because they are performing a discretionary and not a ministerial act.

Bauder v. Delevan-Darien School District⁶ provides an example of how courts distinguish between discretionary acts and ministerial functions. Christopher Bauder was injured during a gym class when a deflated soccer ball struck him in the eye. The teacher decided to move the class indoors because of inclement weather. Bauder sued the Delevan-Darien School District arguing that the school district was required to provide physical education classes to students and that the teacher's actions in carrying out this duty were ministerial.

The court of appeals held that the teacher was entitled to immunity under section 893.80(4). The court stated "[w]hile the obligation to provide physical education classes is mandated, and thus ministerial, the manner in which those classes are conducted is not specified either by state statute or by the school district." The court noted that the teacher made a decision to move the class indoors and deflate the soccer ball, hoping to reduce the chance of injury. The court concluded that these were judgmental-discretionary decisions and not ministerial acts.

One exception to the general rule of immunity for discretionary acts is the "known present danger exception." This exception applies when there exists a known present danger of such force that the time, mode, and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment or discretion. The known present danger exception is best illustrated by the facts in Cords v. Anderson.⁷ The Cords court held that the immunity defense was not available to a state park manager who failed to either notify superiors of a hazardous 80-foot drop along a trail or erect signs that would warn patrons of the trail's condition. In that case, the manager knew of the danger, had the authority to act, and failed to act.

Does the Safe Place Statute Impose
a Discretionary or Ministerial Duty?

There is a conflict among published decisions of the Wisconsin Court of Appeals districts regarding whether the Safe Place Statute⁸ imposes a ministerial duty on governmental entities and their employees. In Anderson I the District I Court of Appeals held that a city has a ministerial duty to comply with the Safe Place Statute. In Spencer the District III Court of Appeals held that the duty imposed by the Safe Place Statute is discretionary and the county was immune from liability for allegations of violating the Safe Place Statute.

The Safe Place Statute provides, in relevant part, that "[e]very employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe."⁹

Anderson I involved the defective design and construction of a walkway at a farmer's market owned, constructed, and operated by the City of Milwaukee. Anderson tripped and fell on a raised line of bricks on the market's walkway path, thereby suffering a transverse fracture of her right knee. Anderson commenced a negligence action against the city alleging inter alia that the city violated the Safe Place Statute and was negligent in the design, construction, and maintenance of the walkway. Anderson alleged that the city was not immune from liability because the negligence and Safe Place Statute violations constituted breaches of ministerial duties on the part of the city.¹⁰

The court of appeals held that once the city exercised overall discretion and decided to design and construct the walkway, it was under a ministerial duty to comply with the Safe Place Statute mandates.¹¹

The Wisconsin Supreme Court reversed Anderson I on other grounds.¹² The Wisconsin Supreme Court held that the City of Milwaukee waived its discretionary immunity defense because it did not raise the immunity defense as an affirmative defense. The court did not reach the issue of whether the city had a ministerial duty to comply with the Safe Place Statute ; however, the court stated "we do not reach the ministerial duty-safe place issue, we emphasize that our decision should not be taken as approval of the reasoning of the Court of Appeals on that issue."¹³

In Spencer the District III Court of Appeals held that the duty imposed by the Safe Place Statute was discretionary.¹⁴ Spencer, an inmate at the Brown County Jail, claimed that he suffered injuries to his head and body when he slipped and fell in the jail shower area. He brought suit against the county and the sheriff for damages resulting from his fall. The trial court granted summary judgment to the defendants finding that the county and the sheriff were immune from liability under section 893.80(4). The court of appeals affirmed the decision.

The District III Court of Appeals analyzed the Anderson I and Anderson II decisions in its opinion. The court recognized that holdings not specifically reversed on appeal generally retain precedential value. However, the court of appeals declined to follow the Anderson I holding. The court stated "based on the status of the Anderson decisions, we declined to follow Spencer's invitation to apply the reasoning that has not been approved by our state supreme court, though not specifically overruled, to the factually distinct situation of an inmate's fall in the shower area of a correctional facility."¹⁵

The court went on to analyze whether the design, equipment, and maintenance of the jail shower facilities entailed acts within the exercise of discretion or ministerial functions. The court concluded that the duty imposed by the Safe Place Statute was discretionary. Under the Safe Place Statute, the defendants were required to use reasonably adequate methods to make the shower area safe, and to do every other thing reasonably necessary to protect the safety of individuals like Spencer. The court noted that this language implied the exercise of discretion and judgment by government officials in determining what measures were reasonably necessary to make the shower facility safe. The Safe Place Statute does not impose the duty to perform an act with specificity as to time, mode, and occasion "with such certainty that nothing remains for judgment or discretion." The court stated that the Safe Place Statute imposes a duty on owners of public buildings to maintain safe premises for employees and frequenters, but the duty is not ministerial for purposes of analysis under section 893.80(4).¹⁶

In December 1998 the District I Court of Appeals issued an unpublished decision, Rilla Howard v. Milwaukee Area Technical and Adult Educ. Dist.,¹⁷ in which it followed the holding set forth in Spencer that the Safe Place Statute imposes a discretionary not ministerial duty. This unpublished decision confirms that District I does not view its prior decision in Anderson I as controlling. However, it must be noted that unpublished opinions are of no precedential value and may not be cited in any Wisconsin court as precedent or authority.¹⁸

In Howard, the plaintiff was injured when she walked by a cashier's booth in the cafeteria and a half-door on the booth fell off of its hinges and struck her in the leg. The facts established that an MATC supervisor knew the door was loose and advised the cashier to be cautious when using the door.

The District I Court of Appeals relied on the Spencer decision and concluded that the MATC employee's negligent effort to repair the door or failure to immediately arrange for its repair was immune from liability because the method and timing of repair were discretionary decisions that were not specifically directed by the Safe Place Statute. The court of appeals also held that the danger presented by the loose door was not so compelling as to rise to the level of a ministerial duty to repair under the known present danger exception to immunity.

Guidance to Practitioners

The Wisconsin Supreme Court or Court of Appeals ultimately will have to publish a decision to resolve the conflict that exists in the published case law regarding whether or not the Safe Place Statute imposes a ministerial duty on governmental entities for purposes of immunity under section 893.80(4). Until the appellate courts address this issue, trial judges and practitioners are left in a state of uncertainty. Lawyers on behalf of plaintiffs will argue that Anderson I retains its precedential value with regard to this issue because it was not specifically overruled by the Wisconsin Supreme Court.

Plaintiffs' counsel also will want to research whether there are any standards, policies, regulations, or other guidelines that specifically direct the method and timing for the act at issue in the case. Since the Safe Place Statute does not provide any specific guidance to governmental entities on how to comply in specific instances, plaintiffs' counsel will want to find out if other sources do provide specific guidance. If specific guidelines exist, then plaintiffs' counsel can avoid a discretionary immunity defense by arguing that the governmental entity had a ministerial duty to follow the specific guidelines.

Lawyers representing plaintiffs also may attempt to fit their facts under the "known present danger exception" to the general rule of immunity for discretionary acts.

Lawyers representing governmental entities will argue that the reasoning set forth in the Spencer decision is controlling and that Anderson I has limited value because the Wisconsin Supreme Court refused to adopt the court of appeal's reasoning that the Safe Place Statute imposed a ministerial duty. Lawyers on behalf of governmental entities also will argue that the act at issue involved the exercise of judgment or discretion and was not set forth with any certainty as to time or mode of performance.

Defense counsel will want to point out that the Safe Place Statute does not dictate the method or timing for correcting the alleged violations. Defense counsel also should point out if no standards, policies, or other guidelines exist directing how or when to perform the specific act at issue. In addition, discretionary immunity often is an appropriate subject for a motion for summary judgment.

Practitioners on both sides should consider how public policy factors affect their argument for or against immunity. The first Wisconsin decision to adopt municipal immunity was Hayes v. City of Oshkosh in 1873.¹⁹ In that case, the plaintiff alleged property damage due to the negligent management and operation of fire trucks by the City of Oshkosh. Firemen for the city were in the process of extinguishing a fire at a nearby building. The plaintiff alleged that the firemen negligently managed and operated the fire trucks causing sparks, coals, and cinders to escape from the smokestacks of the fire trucks and fall upon the building owned by the plaintiff. The court held that the city was immune from liability. The grounds for granting the immunity were that the city was engaged in the performance of a public service for which it derived no benefit or advantage but was bound to perform pursuant to a duty imposed by law for the general welfare of the inhabitants of the community. The court stated:

"Individual hardship or loss must sometimes be endured in order that still greater hardship or loss to the public at large or the community may be averted. It would seem to be a hard rule which would hold the city responsible in damages in such cases, when the work in which it, or rather its public officers are engaged, is one of mere good will, a charity, so to speak, designed for the relief of suffering members of the community."²⁰

The doctrine of government immunity is grounded in public policy.²¹ The policy considerations focus on protecting public officers from being unduly hampered or intimidated in the discharge of their functions by the threat of lawsuit or personal liability and protecting the public purse against legal action.²² The Wisconsin Supreme Court has set forth the following public policy considerations that underlie the immunity doctrine:

"(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office."²³

Practitioners will want to consider how these public policy factors affect their arguments for or against immunity in a particular case.

Conclusion

Thomas A. Cabush, U.W. 1992, practices with Kasdorf, Lewis & Swietlik S.C., Milwaukee.

The conflict that exists in the published decisions of the Court of Appeals regarding whether or not the Safe Place Statute imposes a ministerial or discretionary duty has yet to be decided by the Wisconsin Supreme Court. However, an unpublished decision of the District I Court of Appeals appears to indicate that Anderson I will not be followed and that the Spencer decision is controlling authority on this issue. Practitioners representing both plaintiffs and governmental entities should carefully review their facts and any applicable guidelines and consider how they apply in light of these appellate decisions and public policy.

As can be seen from these recent appellate decisions, the area of government immunity for discretionary acts under section 893.80(4) presents difficult issues and public policy considerations for the courts. Practitioners can greatly benefit their case by being knowledgeable of the case law and making strong public policy arguments in support of their client.

Endnotes

¹ Anderson v. City of Milwaukee, 199 Wis. 2d 479, 544 N.W.2d 630 (Ct. App. 1996).

² Spencer v. County of Brown, 215 Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997).

³ See Kierstyn v. Racine Unified Sch. Dist., __ Wis. 2d __, 596 N.W.2d 417 (1999); Bauder v. Delevan-Darien Sch. Dist., 207 Wis. 2d 312, 315, 558 N.W.2d 881 (Ct. App. 1996).

⁴ Bauder, 207 Wis. 2d at 315, 558 N.W.2d at 882.

⁵ Id. at 316, 558 N.W.2d at 882.

⁶ Bauder, 207 Wis. 2d 312, 558 N.W.2d 881 (Ct. App. 1996).

⁷ Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977).

⁸ Wis. Stat. § 101.11(1).

⁹ Id.

¹⁰ Anderson I, 199 Wis. 2d at 485, 544 N.W.2d at 633.

¹¹ Id. at 493-94, 544 N.W.2d at 636.

¹² See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997) (Anderson II).

¹³ Id. at 37 n.17, 559 N.W.2d at 570 n.17.

¹⁴ Spencer, 215 Wis. 2d at 648, 573 N.W.2d at 227.

¹⁵ Id. at 645, 573 N.W.2d at 226.

¹⁶ Id. at 646, 573 N.W.2d at 227.

¹⁷ Rilla Howard v. Milwaukee Area Technical and Adult Educ. Dist., Dist. I Ct. App., No. 97-2443 (Dec. 22, 1998).

¹⁸ Wis. Stat. § 809.23(3).

¹⁹ Hayes v. City of Oshkosh, 33 Wis. 314 (1873).

²⁰ Id. at 319.

²¹ Kierstyn, __ Wis. 2d at __, 596 N.W.2d at 417.

²² Id.; Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682, 292 N.W.2d 816 (1980).

²³ Kierstyn, __ Wis. 2d at __, 596 N.W.2d at 417 (quoting Lister v. Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).

Wisconsin Lawyer