921 N.W.2d 714
Wis.2019Background
- Eight‑year‑old Lily Engelhardt, a non‑swimmer, attended an optional day‑camp field trip run by City of New Berlin Parks & Recreation to a busy aquatic center; her mother told camp coordinator Stuart Bell that Lily could not swim.
- Bell said Lily would be limited to the splash pad and that swimming ability would be evaluated, but no swim test was given and Bell told no other staff Lily was a non‑swimmer.
- Upon arrival, 77 campers used locker rooms to change; leaders were not stationed to direct untested new campers and procedures for identifying/test‑isolating untested campers were ineffective.
- While staff and some campers were still in the locker rooms, lifeguards found Lily distressed in the pool; she drowned.
- Lily’s parents sued for negligence; New Berlin moved for summary judgment asserting governmental immunity under Wis. Stat. § 893.80(4). The circuit court denied immunity, the court of appeals reversed, and the Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New Berlin is entitled to governmental immunity under Wis. Stat. § 893.80(4) for camp staff conduct | Engelhardts: immunity does not apply because a ministerial duty arose from an obviously hazardous situation (known danger) and from policies; negligent performance of ministerial duties is not immune | New Berlin: camp supervision decisions are discretionary/quasi‑legislative or otherwise immune under § 893.80(4) | Held: New Berlin not entitled to immunity — known danger exception applies |
| Whether the known‑danger exception applies (i.e., did facts create a non‑discretionary duty) | Engelhardts: bringing a non‑swimming child to a busy pool created a self‑evident, compelling danger requiring a swim‑test before pool access | New Berlin: danger was not imminent/self‑evident; multiple discretionary, reasonable alternatives existed (lifeguards on duty, splash pad, lifejackets, supervision) | Held: known danger exception applies — coordinator had ministerial duty to ensure Lily was tested before pool access |
| Whether a ministerial duty arose from written policies or only from the known‑danger exception | Engelhardts: policies and staff guidelines support a ministerial duty to supervise and test swimmers | New Berlin: policies do not eliminate staff discretion and do not negate immunity | Held: Court did not decide ministerial‑duty exception based on documents because known‑danger exception alone removes immunity |
| Procedural: whether summary judgment was appropriate for immunity | Engelhardts: factual disputes (e.g., who knew what and actions taken) are construed in plaintiffs’ favor but known‑danger exception can be decided as matter of law here | New Berlin: entitlement to immunity would warrant summary judgment | Held: On these facts court concluded as matter of law that known‑danger exception applied and reversed court of appeals; remanded for further proceedings |
Key Cases Cited
- Cords v. Anderson, 80 Wis. 2d 525 (1977) (known‑danger exception: park manager had ministerial duty to warn or remedy a known hazardous trail condition)
- Voss ex rel. Harrison v. Elkhorn Area Sch. Dist., 297 Wis. 2d 389 (2006) (known‑danger exception applied where teacher continued hazardous classroom exercise after observing students stumble)
- Pries v. McMillon, 326 Wis. 2d 37 (2010) (ministerial duty exception applied where supervisor violated written safety procedure for disassembling heavy stalls; concurrence analyzed known‑danger doctrine)
- Lodl v. Progressive N. Ins. Co., 253 Wis. 2d 323 (2002) (discusses overlap between ministerial duties and known‑danger exception; ministerial/discretionary duty analysis)
- Meyer v. Carman, 271 Wis. 329 (1955) (articulated test for ministerial duty: duty is absolute, certain, imperative, with time, mode, occasion prescribed so no discretion remains)