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.
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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)).
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