Showers Appraisals, LLC v. Musson Bros., Inc.
835 N.W.2d 226
Wis.2013Background
- Showers sues Musson and the City for flood damage from the Ohio Street sewer project in Oshkosh; Musson was a DOT-contracted private contractor seeking immunity under Wis. Stat. § 893.80(4).
- Wisconsin courts previously granted immunity to government contractors under Lyons based on following government specifications; the Supreme Court later clarified the agency and function requirements.
- The trial court and court of appeals granted summary judgment to City and Musson on immunity grounds; the Supreme Court granted review.
- Musson removed the entire roadbed and disconnected storm sewers, relying on the contract’s means-and-methods clause, which authorized contractor discretion.
- June 2008 storm caused extensive flooding on Showers’ property, resulting in substantial damages; Showers alleged negligent performance by Musson and the City.
- This Court reversed the court of appeals, holding immunity requires both Lyons-based agency and injury-causing acts to be within a governmental function; case remanded for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lyons agent test satisfied for immunity? | Showers contends Musson acted as an agent. | Musson contends Lyons test is not met due to lack of reasonably precise specifications. | Not satisfied; Musson not an agent under Lyons. |
| Is the alleged injury the result of implementing a governmental decision within a protected function? | Showers alleges negligent performance, not design decisions. | Immunity applies only to acts implementing such governmental decisions. | No immunity; injury not tied to a protected function. |
| Does immunity apply if Lyons test fails but contract language suggests means-and-methods discretion? | N/A or Showers argues for negligence standard when immunity fails. | N/A or Musson argues for immunity via contract terms. | Immunity not available; case to proceed under negligence. |
| Procedural takeaway for future government contractors asserting immunity? | Showers highlights need for clarifying pleadings. | N/A. | Immunity analysis requires both Lyons agency showing and function-based immunity. |
Key Cases Cited
- Lyons v. CNA Ins. Cos., 207 Wis. 2d 446 (Wis. Ct. App. 1996) (establishes Lyons agency test for governmental contractor immunity)
- Boyle v. United Technologies Corp., 487 U.S. 500 (Supreme Court 1988) (discretionary-function framework for contractor immunity)
- Holytz v. City of Milwaukee, 17 Wis. 2d 26 (Wis. 1962) (origin of immunity for entities exercising specified functions)
- Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723 (Wis. Ct. App. 1995) (limits on agency/servant concept under § 893.80(4))
- Bronfeld v. Pember Cos., Inc., 330 Wis. 2d 123 (Wis. Ct. App. 2010) (illustrates Lyons test applied to a contractor with approved specifications)
- Estate of Brown v. Mathy Constr. Co., 313 Wis. 2d 497 (Wis. App. 2008) (private governmental contractor immunity discussed)