Showers Appraisals, LLC v. Musson Bros.
819 N.W.2d 316
Wis. Ct. App.2012Background
- June 2008 Oshkosh floods damaged Showers' property; Musson was contracted by the state to replace storm sewer in front of Showers' building.
- Musson claimed governmental immunity under Lyons v. CNA Ins. Cos. for independent contractors when certain conditions are met; Showers challenged immunity.
- Contract involved DOT-approved project plans; Musson was responsible for means and methods of construction with ongoing DOT oversight.
- DOT engineer Schanhofer and project staff regularly oversaw the project and could intervene if contract compliance faltered.
- Showers alleged Musson's decision to disconnect the storm sewer en masse caused flooding; there is dispute whether a block-by-block approach was unwritten understood.
- Trial court granted summary judgment in favor of Musson; Showers appeals and Musson cross-appeals against the City; court affirmed immunity for Musson
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Musson qualifies for independent contractor immunity under Lyons | Showers argues discretion in methods defeats immunity | Musson followed reasonably precise specifications with DOT oversight | Yes; immunity affirmed for Musson |
| Whether the DOT specifications were reasonably precise and followed | Discretion and general clauses show lack of reasonably precise specs | Written specs plus DOT oversight controlled discretion | Yes; specifications reasonably precise and followed by Musson |
| Whether Musson had a ministerial duty to maintain drainage that defeats immunity | June 8 rain created known danger requiring ministerial action | No ministerial duty; discretion to address danger existed | No ministerial duty; Lyons immunity stands |
| Whether the block-by-block agreement and DOT oversight influenced immunity | Unwritten understanding to do block-by-block; Musson deviated | DOT approval and oversight confirmed conformity to contract; deviation allowed | DOT oversight and contract specifications sufficient to sustain immunity |
Key Cases Cited
- Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446 (Ct. App. 1996) (independent contractor immunity when following official directives)
- Bronfeld v. Pember Cos., Inc., 330 Wis.2d 123 (Wis. App. 2010) (limits of contractor discretion when safety/contract specs apply)
- Willow Creek Ranch, LLC v. Town of Shelby, 235 Wis.2d 409 (2000) (discretionary acts vs. ministerial duties in immunity analysis)
- Lodl v. Progressive N. Ins. Co., 253 Wis.2d 323 (Wis. 2002) (ministerial duty standard under immunity framework)
- Caraher v. City of Menomonie, 256 Wis.2d 605 (Wis. App. 2002) (definition of ministerial duty and discretionary acts)
- Estate of Brown v. Mathy Const. Co., 313 Wis.2d 497 (Wis. App. 2008) (immunity analysis in construction projects; contractor oversight)