Brown v. Acuity
815 N.W.2d 719
Wis. Ct. App.2012Background
- Brown and Schwartz were injured when Burditt, a volunteer firefighter for OFD, ran a red light en route to an emergency call.
- Burditt was in a personal vehicle with emergency lights but no siren when entering the intersection and collided with Brown's vehicle.
- Burditt was a lieutenant and EMS Director; volunteers must obey commanding officers and may report to the station or directly to the scene.
- Burditt’s future involvement was uncertain; he could be sent home after arriving at the station in some medical emergencies.
- Brown filed suit on February 8, 2010 against Burditt, OFD, and insurers, asserting negligence; defendants claimed governmental immunity under Wis. Stat. § 893.80(4).
- The trial court granted summary judgment for Burditt and OFD; Brown appealed, arguing Burditt was not acting within employment scope and/or his act was ministerial rather than discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Burditt acting within the scope of employment when he ran the red light? | Brown argues Burditt had not yet reported to the station, So not in scope. | Burditt/OFD argue volunteers respond to calls and are within the scope from dispatch onward. | Yes; Burditt acted within employment scope. |
| Was Burditt's red-light decision discretionary or ministerial? | Brown claims it was ministerial under § 346.03(3) due to lack of audible signal. | Burditt contends discretionary decision subject to immunity. | Discretionary; immunity applies. |
Key Cases Cited
- DeRuyter v. Wisconsin Electric Power Co., 200 Wis. 2d 349 (Ct. App. 1996) (coming-and-going rule differs for governmental immunity analysis)
- Cavanaugh v. Andrade, 202 Wis. 2d 290 (1996) (immunity for discretionary acts; ministerial duties may create liability if due regard violated)
- Lodl v. Progressive Northern Ins. Co., 253 Wis. 2d 323 (2002) (immunity preserved when officer discretion remains in emergency-traffic control)
- Willow Creek Ranch, LLC v. Town of Shelby, 235 Wis. 2d 409 (2000) (distinguishes discretionary acts from ministerial duties under immunity framework)
- J”ohnson v. City of Edgerton, 207 Wis. 2d 343 (Ct. App. 1996) (background on governmental immunity principles)
- Lister v. Board of Regents, 72 Wis. 2d 282 (1976) (defining ministerial duties for purposes of immunity analysis)