Marilyn M. Brown v. Acuity, A Mutual Insurance Company
833 N.W.2d 96
Wis.2013Background
- Burditt, a volunteer firefighter for Okauchee Fire Department (OFD), was responding to an emergency call when a collision occurred at a four-lane intersection.
- Burditt drove a vehicle through a red stop signal without an audible signal, after initially stopping and then proceeding with caution.
- The OFD guidelines require emergency responders to follow orders, use emergency lights, and operate within Wis. Stat. ch. 346 rules when responding to calls.
- Brown and Schwartz sued Burditt and OFD (and insurers); the circuit court granted summary judgment on immunity grounds.
- Court of Appeals affirmed, holding Burditt within scope of employment but not protected by ministerial duty immunity.
- Wis. Supreme Court reversed, holding Burditt acted within scope of employment but violated a ministerial duty, thus not immune and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Burditt acting within the scope of employment? | Burditt acted while on-call as OFD member and under command. | Scope depends on DeRuyter framework for commuters; Burditt’s travel may not be employment-related. | Yes; Burditt acted within scope of employment. |
| Does the ministerial duty exception apply to Burditt's red-light conduct? | Burditt’s conduct should be discretionary, not ministerial. | Acting contrary to statutory duties can be ministerial. | No immunity; Burditt violated a ministerial duty through Wis. Stat. § 346.03(3). |
| Does public officer immunity shield Burditt from liability? | Because Burditt was within scope, immunity should apply. | Even within scope, ministerial violations negate immunity. | Not shielded; ministerial-duty violation defeats immunity. |
Key Cases Cited
- DeRuyter v. Wis. Elec. Power Co., 200 Wis. 2d 349, 546 N.W.2d 534 ((Ct. App. 1996)) (scope depends on employer control in commuting context)
- Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 ((1990)) (employee intent to serve employer relevant to scope)
- Murray v. Travelers Ins. Co., 229 Wis. 2d 819, 601 N.W.2d 661 ((Ct. App. 1999)) (no fixed place of employment; travel can be employment-driven)
- Lodl v. Progressive Northern Ins. Co., 253 Wis. 2d 323, 646 N.W.2d 314 ((2002)) (whether officer-directed traffic duties are ministerial)
- Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 ((1996)) (high-speed-chase decisions may be discretionary; vehicle operation may be ministerial)
- Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 ((1976)) (ministerial duty requires absolute, certain performance with no discretion)