Eileen W. Legue v. City of Racine

Plаintiff-Appellant, Eileen W. Legue, and Department Human Services Health Exchange, Farmers Insurance Involuntary-Plaintiffs,

v. Amy Matsen, L. City Racine Defendants-Respondents.

Supreme Court argument March Oral 2012AP2499. No. July Decided 2014 WI 92 837.) (Also N.W.2d reported plaintiff-appellant, by For the there were briefs Timothy LLC, S. Knurr and Law Gruber Mil- Offices, argument by Timothy waukee, oral and S. Knurr. defendants-respondents, For the there was brief by Anthony Devine, Hahn, M. Thomas E O. Jennifer Hemmer, Hostak, Bichler, S.C., & Racine, Henzl argument by and oral Thomas M. Devine. Riley

An amicus curiae brief filed J. was Michael Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Association for Justice.

¶ 1. SHIRLEY S. ABRAHAMSON, C.J. This is an appeal judgment from the circuit court for Racine County, Judge, dismissing Constantine, Charles H. Legue, plaintiff,1 against City action of W Eileen Department The U.S. of Health and Human Services and Farmers Exchange involuntary plaintiffs. Insurance are We only Legue plaintiff refer Eileen W. as for the sake of simplicity. Amy Matsen, L. a Racine officer.2

of Racine and appeal appeals certified the to this court The court of (Rule) § pursuant to Wis. Stat. 809.61. appeal originates

¶ at an 2. This from a collision plaintiffs City in the of Racine between intersection police Matsen, a Racine car driven Officer car and responding police to an the defendant. The car was calling emergency dispatch the officer to the scene of an accident. presents

¶ the automobiles an 3. The collision of § juncture 893.80 of law at the of Wis. Stat. issue (2011-12),3 governing immunity municipal gov- employees, and ernment and its officers and Wis. Stat. § governing emergency 346.03, the rules of the road for vehicles. 893.80(4), § statute, 4. The Wis. Stat. may brought against any that no suit be

declares governmental in the actor for acts done exercise of judicial, quasi-judicial legislative, quasi-legislative, or synonymous functions. "These functions are with dis- cretionary The acts."4 law of our state is clear 2 Matsen, simplicity only Amy For the sake of refer L. we officer, as defendant. 3 subsequent All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 4 Ranch, 56, Shelby, Willow Creek LLC v. Town 2000 WI 25, 409, 2d 235 Wis. N.W.2d 693. 893.80(4), analyzing applying §

"When Wis. Stat. we 'discretionary' often have used the term as a shorthand to refer governmental entity legislative, to decisions of a that are judicial quasi-legislative, quasi-judicial." Appraisals, Showers Bros, 509, 2d LLC v. Musson 2013 WI 350 Wis. Ranch). alia, (citing, inter Willow Creek N.W.2d municipal government liability actors "the rule is —the exception immunity."5 governing

¶ 5. The statute the rules of the road applicable emergency vehicles, 346.03, Stat. statutory privileges emergency sets forth of authorized exempt operators vehicles to their from certain rules of explicitly operator road, but also states that an of an "duty vehicle is not relieved of the to drive or ride with due under the circumstances for the 346.03(5). safety persons of all . . . ." Wis. Stat. appeal ¶ 6. The raises two issues of law. The more implicates interplay difficult one between Wis. Stat. 346.03(5). §§ appeal ques- raises the statutory dichotomy tion of how to reconcile the discretionary immunity liability and ministerial 893.80(4) § statutory imposition duty with the of a on operate officers to an authorized vehicle regard "with safety due under the circumstances for the 346.03(5). persons" § of all phrased

¶ by appeals 7. The issue is the court of question its memorandum certification as a the case open: law has left governmental

Does immunity apply when someone is injured because an proceeds against officer a traffic signal 346.03(2)(b) as by § authorized Wis. Stat. (2011-12), if the officer slowed the vehicle and acti- 346.03(3) lights vated and required by § sirens as but arguably nonetheless violated duty operate the to the vehicle regard "with due under the circumstances" as 346.03(5)? required by § . . . specifically, More . . . when, ever, if the regard" requirement "due imposed by 5 Holytz Milwaukee, City v. 26, 39, 17 Wis. 2d 115 N.W.2d (1962). Co., See also Lodi v. Progressive 71, N. Ins. 2002 WI 22, 323, 2d ¶ 646 N.W.2d 314. obligation, violation

§ becomes a "ministerial" exception governmental an to of which will create immunity.6 whether, assuming 8. The second issue of law is

¶ alleged for the officer's there liability police negligence, to the that support jury's was credible evidence verdict officer's caused police negligence plaintiffs injuries.7 that requires 9. The first issue we interpret statute and the rules of the road statute and

immunity them to the facts apply presented. The that asserts stat- plaintiff

ute does not to the acts of the apply alleged negligent officer in lookout and failing keep proper to maintain a that allowed for a failing speed proper contrast, lookout. In the defendant asserts police officer's decisions lookout and regarding speed, appeals' The court of certification memorandum viewed following question open by Acuity, as left Brown v. 2013 WI 42, 348 Wis. 2d 833 N.W.2d96: immunity apply proceeding against [D]oes if an officer's manner of signal a traffic fulfills the ministerial duties of Wis. Stat. 346.03(2)(b) (3) (that is, the officer slows the vehicle and sirens) lights arguably activates but violates the operate the vehicle "with due under the as circumstances" 346.03(5)?

required City Amy of Racine and L. Matsen raised the issue governmental immunity by their post-verdict seeking motion judgment notwithstanding verdict. Wis. Stat. 805.14(5)(b). § A granting judgment circuit court's order a notwithstanding ruling the verdict is a on an issue of law. The granted by circuit court in dismissing effect thе motion the ground governmental immunity. action on the City Amy challenged jury of Racine and L. Matsen the by verdict a motion for directed verdict. The circuit court in granted effect the motion. plaintiff alleges part duty

which the regard are of the of "due part circumstances," under the are instead of the discretionary decision enter officer's against to the intersection light. In sum,

the red the officer contends that regarding speed, her decisions proceeded through lookout and when she light slowing

the red after down squad lights engaged car's with pliance and siren in com- 346.03(2)(b) (3), § with Wis. Stat. were discretionary immune acts. parties rely Cavanaugh ¶ 11. Both on Estate v. (1996),

Andrade, 2d 290, 319, 202 Wis. 550 N.W.2d103 support respective positions. their plaintiff following ¶ 12. The relies on the sentence Cavanaugh: sum, despite general discretionary immunity In act 893.80(4), §in negligence may set forth a action be against high-speed sustained an officer involved pursuit grounds on the that he or she breached the operate vehicle with "due under 346.03(5). § circumstances" under Cavanaugh, 202 Wis. 2d at 319. very

¶ 13. The defendant relies on the next sen- Cavanaugh: tence in

However, negligent operation under discretionary does not include the decisions to initiate pursuit; or continue such decisions 893.80(4). continue to be afforded under Id.

¶ 14. In memorandum, its certification the court appeals pointed Cavanaugh out that instructs that negligent driving during "an officer can be liable for emergency response an damages if were caused negligent operation beyond officer's vehicle discretionary Yet this of the decision itself." context go negligent puzzle: to Which decisions to leaves us go operation, decision? and which to appeals explains gray this areа court by Cavanaugh as follows: left

When, ever, obligation to public if does a officer's regard under operate an vehicle with "due 346.03(5) § create the circumstances" under Wis. Stat. exception governmental immunity provided an Wis. Stat. 893.80? When, ever, public if does a officer's decision to violate during emergency trigger potential of the an rules road liability arguable operate failure to with "due by making under the circumstances" that decision? ¶ 16. We conclude that the statute does apply present police in the not case to the officer's operate violation of the regard the vehicle "with due contrary A under the circumstances." outcome 346.03(5), would contravene Wis. Stat. public policy, statutory interpretation, the rules of case law.

¶ 17. We further conclude that there was credible support jury negligence evidence to verdict of causal part on the of the officer. forth, 18. For the reasons set we reverse the

judgment dismissing of the circuit court the action and remand the matter to the circuit court to reinstate jury verdict. by reasoning

¶ 19. We reach this conclusion as follows: procedural

I. posture We state the facts and appeal. survey

II. We the current state of doctrine of governmental immunity governed by Wis. Stat. 893.80(4) give § for our in the context decision instant case. apply statutory interpre-

III. We state and the rules of 893.80(4) 346.03(5). § § and tation to Wis. Stat. law, especially IN We scrutinize our case Estate of Andrade, Cavanaugh v. 2d Wis. (1996), principles guiding

N.W.2d 103 for our un derstanding interplay Stat. 346.03(5), §§ the distinction be tween immune and non-immune 893.80(4), ministerial acts under Wis. Stat. regard"

the nature of the of "due in Wis. Stat. 346.03(5). Upon holding in the apply N does not case,

instant search the record for credible we support jury evidence to verdict that the alleged negligent plaintiffs officer's acts сaused the injury. forth, 20. For the reasons set we reverse the

¶ of the circuit court the action and judgment dismissing remand the matter to the court to reinstate the circuit jury verdict.

I 21. The facts and of this case procedural history are this undisputed purposes appeal. 27, 2009, 22. On Police Officer Mat- July Amy

sen to a her to the scene of responded dispatch calling motor vehicle accident with She injuries. unknown her engaged emergency response, activating a full and siren in the car and exceeded the lights squad speed limit. proceeding noon, was north- 23. At around she City Douglas in the of Racine at a

bound on Avenue occasionally using high speed, bullhorn. rate of car's approached ¶ 24. the intersection of Dou- As she glas Street, she observed the red Avenue and South light per her car to 27 miles hour. The and slowed posted speed per hour. limit was 30 miles Northbound stopped light. traffic was at the The officer maneuvered stopped light and her car around the traffic at the into Douglas enter the the southbound lanes of Avenue to intersection. impact,

¶ 25. Before the officer saw another ve- hicle turn from the eastbound lane of South Street onto Douglas The officer the southbound lane of Avenue. testified that had maneuver her car to avoid the she turning car.

¶ 26. When the officer's car entered the intersec- plaintiffs tion, the car was eastbound on South Street including per traffic, at 30 miles hour. Eastbound the plaintiff, light. plaintiff green a The did not had slow plaintiffs The down when she entered the intersection. conditioning on; on; and radio was the car's air was the plaintiff car The did windows were closed. not see the hear the horn. officer's vehicle or officer's siren or ¶ A27. KFC store sits on the southwest corner of parties stipulated the intersection. Both that the store entering blocked the of the view cars intersection. The plaintiffs car would not have been visible to the officer and the officer's car would not have been visible to the plaintiff until about two seconds before collision occurred.

¶ intersection, 28. When both cars entered the plaintiffs vehicle struck driver's side of the The recorded officer's vehicle. collision was dash- squad camera in the car. mounted 29. Both the and the officer in- plaintiff were The jured. plaintiff brought against suit the police officer and the ‍‌​​‌‌‌​​​‌​‌​​​‌‌‌​​‌‌​‌​​​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‍of City injuries Racine for sustained. At trial, officer conceded that she considered it to check necessary for and pedestrians other and vehicles travel at a reasonable to make speed traffic, observations about in order to exercise properly her of care. Additionally, parties stipulated City

of Racine Police Department Policy and Procedure Number 812 dictates the of an officer in requirements to an responding emergency The reads request. policy in relevant part:

POLICY: operator emergency anof vehicle shall insure that safety

he or she has due all occupants safety pedestrians of his or her vehicle as well as the occupants of other vehicles. PROCEDURE: responding actively

When to an call or pursuit, following requirements involved must complied be with: emergency lights

1. Use and siren simulta- neously continuously. times,

2. At all comply requirements with the Wisconsin State Statute [Section] 346.03 rela- giving signals tive to the of audible and visual (sub. 3).

a. operator may vehicle exceed speed giving limit without and audible visual (sub. signals following under the circumstances 4): 1) obtaining speed While evidence of a violation

2) responding When call which he/she reasonably felony progress believes involves a in reasonably any following: believes a) Knowledge presence may endanger of his/her safety person. of a victim or other b) Knowledge presence may of cause the his/her suspected apprehension. violator to evade c) Knowledge presence may of cause the his/her suspected destroy violator to evidence of a sus- pected felony may otherwise result in the loss suspected felony. of evidence of a d) Knowledge presence may cause his/her suspected violator to cease the commission of a suspected felony before obtains sufficient he/she grounds evidence to establish for arrest. Keep exemptions granted mind that the above do not department relieve members from to drive with due under the safety circumstances for the persons, of all tak- ing into consideration: type,

a. The speed actions and of the vehicle being pursued; geographic pursuit

b. The popu- area of and its density; lation day week;

c. The time day d. The pedestrian vehicular and present traffic area; e. The conditions; road and weather familiarity f. The officer's pur- with the area of suit. Although the conditions are identified indi-

vidually, another; impact each can have an on therefore, totality the circumstances be considered. Their value for should decision- making purposes is enhanced when considered in combination. jury special finding verdict, 32. The returned a (1) causally negligent

that, inter alia: the defendant was regard operation vehicle; with to the of her motor (2) plaintiff causally negligent regard was (3) operation vehicle; of her motor the defen- plaintiff fifty causally percent dant and the each were negligent. jury damages plaintiff The awarded to the in police $129,799.72. the amount of did officer not damages present seek case.

¶ 33. After the returned, verdict was the officer brought judgment notwithstanding a motion for asserting verdict the officer's a motion challenging, jury's alia, for a directed verdict inter finding negligence. of the defendant's causal judgment

¶ 34. On the motion for notwithstand- ing verdict, the circuit court ruled as a matter of law police that because the officer's to enter the decision discretionary, allegedly intersection was all her other negligent part decisions deci- were her and immune for a sion from suit. On the motion police verdict, directed the circuit court ruled that the officer had a to exercise due but that negligence case the not instant officer's was causal.

II requires survey ¶ 35. The instant case us to the governmental immunity current state of the doctrine of governed by § give Stat. 893.80 to context for our decision.

¶ 1961, 36. Prior to the common law doctrine of governmental immunity generally barred tort suits against governmental entity. Holytz City In v. (1962), Milwaukee, 26, 17 Wis. 2d 115 N.W.2d618 the rejected outright court doctrine for mu- nicipalities "[HJenceforward, and stated a new rule: so governmental responsibility far as for torts is con- liability exception immunity." cerned, the rule is —the Holytz, Holytz Nevertheless, 17 Wis. 2d at 39. declared municipality that a "in is not liable for acts done legislative judicial quasi-legislative exercise of its or or quasi-judicial Holytz, or functions." 17 Wis. 2d at 40. Holytz legisla-

¶ 37. The court if noted that public policy, legislature ture deemed it better was immunity. of course free to reinstаte Holytz, legislature ¶ 38. After created Wis. § § setting 331.43, 893.80, Stat. now numbered forth general the circumstances under which the rule of governmental liability apply.8 does not The statute Holytz's exception municipal governmental codified liability: Government is immune for acts done in the "legislative, judicial, quasi-legislative, exercise of quasi-judicial functions."9 8 198, Ch. Laws of 1963. Milwaukee, Sewerage City See Milwaukee Metro. Dist. v. 8, 53, (recognizing WI 277 Wis. 2d 691 N.W.2d in Holytz regarding holding 893.80 "codified immu- (which 39. Wisconsin Stat. is sub- 1963)

stantially the same as the provision adopted reads as follows: presently may brought against any suit be

No volunteer fire company organized political corporation, under ch. governmental any agency subdivision or thereof for the officers, officials, agents intentional torts of its or may any employees brought against nor suit be such corporation, agency subdivision or or volunteer fire company against officers, officials, or its agents or employees legislative, acts done in the exercise quasi-legislative, judicial quasi-judicial functions added). (emphasis 40. The court has explicated purpose government immunity statute as protecting separation and avoiding judicial of intrusion into the powers policy decisions of the other branches. The court explained: purpose [governmental] immunity

The of is to ensure pass judgment policy that courts refuse to on decisions province government, in the of coordinate branches of decision, policy consciously balancing if such a risks advantages, place.10 and took 41. The exceptions municipal employee ¶ "a immunity judicial balance struck between represent need 'the of officers to their functions public perform the of an freely right aggrieved [and] to seek party nity judicial, legislative, quasi-legislative, quasi-judicial or acts") (citing Lange Norway, 313, 314-18, v. Town 77 Wis. 2d of (1977)). 253 240 N.W.2d 10 663, 687, Scarpaci County, v. Milwaukee 2d 292 96 Wis. (1980) (internal 816, quotation N.W.2d 827 marks and citations omitted).

267 "11 and a liability against redress.' The threat of lawsuit concerns, public policy actors creates governmental seeks to reduce. The governmental which concerns include: public policy (1) in danger influencing public officers performance by of their the threat functions (2) lawsuit; the deterrent effect which the threat of personal liability might have on those who are consid- (3) service; ering entering public the drain on valuable (4) actions; time caused such unfairness of subjecting personal liability officials to for the acts of (5) subordinates; feeling their that the ballot procedures appropriate and removal are more methods dealing public misconduct office.12 These public policy considerations have to be balanced the need to against protect public against misfortune of being injured by government actor.13 42. The court has interpreted words "legis- lative, quasi-legislative, judicial quasi-judicial func- tions" Wis. Stat. to be synonymous with If "discretionary."14 word an act is discretionary, 11Lodi, Olson, (quoting 2d C.L. v. (1988)). 701, 710, Wis. 2d 422 N.W.2d614 12Lodi, (quoting 253 Wis. 2d Lister v. Board of (1976)). 282, 299, Regents, 72 Wis. 2d 240 N.W.2d610 13C.L., 143 Wis. 2d at 708-09.

14The rule was first announced in Lister v. Board of Regents, 282, (1976), 72 Wis. 2d 240 N.W.2d 610 which stated generally that "the principle public most favored is that officers liability damages resulting are immune from for from their negligence performance fault in unintentional of discre Lister, tionary functions." 72 2d at Wis. 301. The court has See, Lodi, echoed multiple e.g., this notion times. 253 Wis. 2d ("The 323, against 21 statute liability legisla ¶ immunizes for tive, judicial, quasi-legislative, quasi-judicial acts, and which

268 governmental immunity then Wis. Stat. provided by 893.80(4) however, § There is no аpplies. immunity, for associated with "the liability performance of ministerial duties imposed by law."15 43. The court's explication application

¶ the doctrine of governmental under immunity Wis. Stat. has come under increasing criticism by members of the court.16 44. The criticism came clearly forcefully

¶ in the fore Scott v. Savers & Insur- Property Casualty Co., 60, ance 2003 262 127, WI Wis. 2d 663 N.W.2d 715. Scott, In a school guidance counselor gave ¶ incorrect information to a student regarding appropri- collectively interpreted have been any to include act that judgment."); involves the exercise of discretion and Willow ("Under Ranch, 409, Creek 235 2dWis. 25 Wis. Stat. 893.80(4), municipality 'any immune from suit' for 'acts legislative, done the exercise of quasi-legislative, judicial or quasi-judicial synonymous functions.' These functions are acts."). discretionary 15Brown, Lodi, 348 2d 42 (quoting Wis. 253 2d 24). 323, ¶ law, duty, according ministerial to some case is not so much an exception recognition as a law distin- guishes acts, discretionary immunizing between and ministerial performance Lodi, of the former but not the latter. See 2dWis. 16Commentators have also noted the court's recent criti cism of the doctrine and existing have themselves criticized the See, e.g., Comment, case law. M. Annoye, Revising Linda Doctrine, Immunity Wisconsin's Marq. Government L. Rev. (2005) (advocating requirement for an additional that a policy decision be a immunity); decision to receive Dudding, Comment, Andrea Reining Municipalities: How To Wisconsin, Municipal Immunity Tame the Monster in 2004 Wis. (criticizing application governmental L. Rev. 1741 immu nity to low municipal advocating immunity only level actors and actors). high policy making level and decision ineligible an for the student was a result ate classes. As majority scholarship.17 held that of the court A athletic performing a immune, was the counselor act. explore writings separate the in Scott existing governmental surrounding the

dissatisfaction immunity-governmental liability Scott, See doctrines. (Abrahamson, concurring) C.J., 127, 58 2d 262 Wis. surrounding "jurisprudential (noting chaos quasi- judicial quasi-legislative, phrase 'legislative, (Bablitch, 893.80(4)"); judicial id., 62 functions' J.) (decrying by concurring, joined the exist- Crooks, J., unjust ing producing result" and creat- "an as doctrine predicting "injustice inequity," ing that and and immunity not[ ] governmental stand (criti- "will doctrine (Prosser, dissenting) longer"); id., ¶ J., 82 much "wrong immunity governmental cizing as doctrine intent"). legislative "contrary unjust" See Sewerage Dist., Milwaukee Metro. LLC v. also Bostco ¶¶ 554, 108-109, 2d 835 N.W.2d 78, 350 Wis. 2013 WI (Gableman, concurring) (discretionary immu- J., governmental nity "to stretch has been used Holytz beyond and the the text of the statute both governmental "essentially restored and has decision" immunity"); (Abrahamson, ¶¶ C.J., dissent- id., 182-83 J.) (criticizing majority by Bradley, ing, joined ruling opinion a nuisance continuation though the nuisance act, even a ministerial constituted design being design defect, created was act). discretionary immune Co., Prop. v. & Cas. Ins. See Scott Savers 2003 WI Wis. 2d 663 N.W.2d

¶ 47. Some of the criticism has centered on the alleged rewriting by substituting court's of the statute "discretionary" § 893.80(4), the word for the text of "legislative, which immunizes acts in the exercise of quasi-legislative, judicial quasi-judicial or functions."18 may These critics reason that an act involve an exercise judgment and discretion but is not an exercise of a "legislative, quasi-legislative, judicial, quasi-judicial or function."

¶ 48. Other criticism has been directed at the case consistently explaining law for not the distinction be- discretionary tween and ministerial acts. The test dis- tinguishing discretionary between ministerial and acts disparaged has been as too malleable and not consis- tently applied. discretionary

¶ 49. Some cases have defined a act broadly discretionary as "A follows: act involves the judgment application exercise of in the of a rule to specific Ranch, facts." Willow Creek L.L.C. v. Town of Shelby, ¶56, 25, 2000 WI 2d 409, 611 N.W.2d Consequently, one would assume that a ministerial act, in act, contrast to a is one that does judgment application not involve the exercise of in specific of a rule to facts. appear

¶ 50. Other cases to set forth a more specific, more difficult test to be met for an act to be characterized as ministerial: An act is ministerial if it imperative, involving per- absolute, "is certain and specific imposes formance of a task that the law performance time, defines the mode and occasion for its certainty nothing judgment with such that remains for 18See, Scott, e.g., 127, (Prosser, J., 2dWis. 75-79 ¶¶ dissenting). "duty that a also stated The court has

or discretion."19 regulation, procedure must imposed statute, duty."20 of a ministerial elements to all conform imperative" and "absolute, certain This act has for a ministerial occasion" test mode and "time, engendered among disagreement the court members of meaning application. regarding and its its example, McMillon, 2010 WI in Pries v. ¶ 52. For 648, the ¶¶ 2d 784 N.W.2d 33-37, 326 Wis. dismantling company's a horse stall at instructions "[A]lways have someone admonished, Park Fair State taking you piece holding up down." The are piece is to be held or do not state where instructions high Nevertheless, the court ruled it is to be held. how requirements language company's satisfied that the duty. of a ministerial three-justice that the dissent asserted

¶ "a critical lack of suffer from instructions written particularity perfor- occasion for time, mode and as to mance."21 Cavanaugh, that al-

¶ the court noted In 346.03(6) requires though law enforcement Wis. Stat. guidelines, provide agencies does the statute written to agency specify to mode, occasion for the time, not guidelines. provide Nevertheless, Ca- the written agency's vanaugh to held that the law enforcement 19 Lister, Brown, 603, 72 Wis. 2d (quoting 43 348 Wis. 2d ¶ 301). Hill, 1,10-11, 2d 546 N.W.2d Kimps v. 200 Wis. at See also (1996) Olson, (quoting 2d at 711-12 143 Wis. (quoting 151 301)). Lister, 2d at 72 Wis. 20Brown, 603, Chapman, (quoting 44 Yao v. 348 Wis. 2d 272). 445, 200, 31, 705 Wis. 2d N.W.2d App 2005 WI 287 21 McMillon, 37, 326 Wis. 2d 2010 WI Pries v. & J., joined by Roggensack, J. (Bradley, dissenting, N.W.2d J.). Gableman, promulgate guidelines under awas minis- agency's promul- terial function and that the failure to gate guidelines conforming written statute ren- agency dered the liable. following

¶ 55. The functions have been held to be discretionary and thus A immune: school district ben- specialist giving employee regard- efit information to an ing employment University faculty benefits;22 a mem- constructing volleyball physical ber a net base for a directing class;23 education officer traffic at light an intersection when the traffic was not function- ing despite mandatory police department protocols for directing traffic.24 Conversely, following

¶ 56. functions have been held be to ministerial and not A immune: sewer authority's system;25 maintenance of a sewer a Univer- sity department employ- of Wisconsin chair's offer of faculty ment to member;26 a director of facilities' platform Camp construction and maintenance of a at according safety regulations.27 Randall ¶ 57. criticisms In the face of the of and inconsis- governmental immunity, tencies in the law of our state operate nevertheless continues to under the doctrine of liability acts and for minis- terial acts. Kierstyn Dist., See v. Racine School 228 Wis. 2d Unified (1999).

81, 596 N.W.2d 417 23 Kimps, 200 2dWis. 1. 24 Lodi, See 253 2dWis. 25 Dist, Milwaukee Sewerage Metro. Wis. 2d 635. 277 26 Sutula, v. Bicknese 31, 713, 2003 WT 260 Wis. 2d 660 N.W.2d 289. 27 Co., Umansky v. ABC Ins. 82, 622, 2009 WI 319 Wis. 2d 769 N.W.2d 1.

273 parties positions ¶ their The frame within dichotomy. plaintiff discretionary-ministerial The con- policе "due officer act with tends that the circumstances," under Wis. Stat. under the 346.03(5) § that is not immune is a ministerial function 893.80(4). § might expected, be As under police Stat. acting was the exercise officer asserts she and therefore immune function is of a from suit. general

¶ of the current 59. With this overview immunity gov- governmental of of the doctrine state 893.80(4), § appli- by look to the Stat. we erned Wis. regulations, procedures statutes, and to deter- cable officer's conduct mine how to characterize present in the case. the intersection

Ill interpretation ¶ turn to the Wis. Stat. 60. We 346.03(5) application to the and their present Interpretation application case. facts ordinarily question is of law that this of a statute benefiting independently but from court determines appeals.28 ‍‌​​‌‌‌​​​‌​‌​​​‌‌‌​​‌‌​‌​​​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‍analyses of court and court of the circuit looking interpret ¶ 61. We a statute at text statutory language is examined statute.29 in which it used.30 are within the context Words 28 Inc., Removal, 27, City v. River 2007 WI DOR Refuse 26, 561, 2d 729 N.W.2d 396. 299 Wis. 29 Co., LLC, 37, 18, v. Am. Transmission 2011 WI Klemm 580, 2d N.W.2d 223. 333 Wis. Inc., Servs., v.Anew Health Care 2000 WI Alberte ("While 587, 592, 605 it is true that 232 Wis. 2d N.W.2d to ordinarily interpreted their according common and approved usage; technical words and phrases and oth- are ers ordinarily interpreted to their techni- according cal Statutes are give effect interpreted meaning.31 each word to avoid surplusage.32 We interpret statute of a by examining purpose and the statute33 consequences alternative We also interpretations.34 examine our case law interpreting and the statute35 statutory interpretation begins with language of the stat ute, it is also well established that courts not must look at a single, sentence, portion isolated sentence or of a but at the role language stаtute."); relevant in the entire Seider v. O'Connell, 76, 43, 2000 211, WI 236 2d 612 ¶ Wis. N.W.2d659 (contextual Klemm, approach new); 580, is not 333 Wis. 2d 18¶ ("The statutory language is examined within the context in used."). it which 31Klemm, 580, 18; 333 Wis. 2d see also ¶ Wis. Stat. § 990.01. 32 Klemm, See, e.g., 580, 18; 333 Wis. 2d Pawlowski v. ¶ Co., Family 105, n.14, Am. Mut. Ins. 2009 WI 22 322 Wis. 2d ¶ 21, (citing State, 777 v. 306, N.W.2d 67 Donaldson 93 2dWis. (1980)). 315, 286 N.W.2d817 33 Hanson, 4, 16, 243, v. WI State 2012 338 2dWis. 808 ¶ Klemm, 390; 580, 18; N.W.2d 333 2d Lagerstrom Wis. v. ¶ Myrtle Hosp.-Mayo Sys., 124, 51, Werth Health 2005 WI 285 ¶ 1, 2dWis. 700 N.W.2d 34 80, 16, v. Hayes, 1, State 2004 WI 273 Wis. 2d 681 ¶ Cos., 203; 89, N.W.2d v. State Farm Ins. 2006 WI Teschendorf 30, 123, (considering 293 Wis. 2d 717 ¶ N.W.2d258 "alternative interpretation" potential results); to evaluate absurd State v. Cole, 59, 66, 167, WI 2003 2d ¶ 262 Wis. 663 N.W.2d 700 (considering consequences party's interpreta of a alternative tion). 35 Wausau, 21, City 88, Nowell v. WI 2013 351 2d Wis. 1, 852; 838 County N.W.2d Juneau Star-Times v. Juneau County, 4, 66, 122, 457; 2013 WI 345 Wis. 2d N.W.2d State Davison, 61, v. 2003 WI 2d N.W2.d 1.

statutory history mean- the to determine its of statute ing.36 text two

¶ first the of the relevant 62. We look to fact that the texts of The most noticeable is statutes. At first not refer to each other. the statutes do two relationship they to each other seem to have no blush, at all. granted previously,

¶ As noted is we § governmental for in the in actors acts judicial quasi-legislative, "legislative, or exercise of quasi-judicial functions," deci- which the court has range synonymous phered of with a wide functions as "discretionary." as which are described "liability," "immunity," ¶ suit," The "no words "discretionary," "quasi- "legislative," "ministerial," "judicial" judicial" legislative," "quasi appear not or do Wis. Stat. 346.03. lays

¶ Stat. 346.03 out various 65. Wisconsin operator which an of an autho- circumstances under may "privilege" emergency set rized vehicle exercise exempt operator "privileges" an forth in the section. emergency complying of an vehicle from authorized 36"Statutory history encompasses previously enacted By analyzing changes repealed provisions statute. years, we legislature has made over the course of several may meaning at of а statute. arriving be assisted in Therefore, statutory history part of the context in we which Badger in a v. Mut. interpret words used statute." Richards Co., 22, 52, 541, Ins. 2008 WI 309 Wis. 2d 749 N.W.2d 581 ¶ (citations omitted). See, Co., e.g., v. Cas. 2006 WI LaCount Gen. 14, 358, 418; City 31, 288 2d N.W.2d VanCleve v. Wis. 709 Marinette, 2, 6,258 80, 113; 2003 2d 655 N.W.2d State WI Wis. 22-27, 113, Byers, v. 2d 665 N.W.2d 2003 WI ¶¶ 980-84, 729; 2d Chrysler Corp., v. 197 Wis. Hughes Motors (1996). N.W.2d certain rules road, including: stopping, standing, or parking; past a red or proceeding stop or signal stop sign; exceeding limit; the speed of a leaving parked doors vehicle open. Exercising these privileges is, however, subject to the conditions stated (2) (5m). in § 346.03 66. Section full 346.03 reads in as follows:

(1) The operator of an emergency vehicle, authorized responding when to an call or when pursuit of an actual suspected law, or violator when responding upon to but not returning from a fire alarm, transporting when an organ for human trans- plantation, when transporting personnel medical performing of purpose organ harvesting human or transplantation immediately the transportation, after may in privileges section, exercise set forth this but (2) (5m). subject to the conditions stated in subs. (2) The operator of an emergency authorized vehicle may:

(a) Stop, park, or irrespective provisions stand chapter; this

(b) past Proceed stop signal sign, a red or or stop but only slowing after may necessary down as be for safe operation;

(c) limit; speed Exceed the

(d) Disregard regulations governing direction of move- turning ment or in specified directions.

(2m) Notwithstanding 346.94(20), a s. law enforcement officer, fighter, a fire personnel or medical may open any and open leave of an door authorized emergency vehicle when the is stopped, vehicle stand- ing, or parked person and performing is official duties. (3) operator of an autho- granted the exemption The (2)(a) only applies emergency vehicle sub.

rized signal giving is visual of the vehicle operator when rotating flashing, oscillating one or by means of at least signal given by police a light except red visual light light red by means a blue and a may vehicle be except as oscillating rotating, or flashing, which are (4m). exemptions provided sub. otherwise (c) (d) (2)(b), apply only when the and granted by sub. giving is both such emergency vehicle operator of the signal by means of a also an audible signal visual whistle, provided except as otherwise or exhaust siren (4) (4m). in sub. or (4) (4m), a law Except enforcement provided as sub. comply operating police shall otherwise officer a vehicle (3) giving relative to the requirements with the sub. may speed signals but exceed the of audible and visual signal giving and visual under limit without audible following circumstances:

(a) obtaining speed If is evidence of the officer violation.

(b) call responding If the to a which the officer officer felony in progress reasonably believes involves following: reasonably any of the the officer believes may endanger Knowledge presence of the officer's person. safety of a victim other presence may cause the Knowledge 2. of the officer's suspected apprehension. to evade violator the presence may cause Knowledge 3. of the officer's destroy suspected evidence of a suspected to violator felony in the loss evidence of may or otherwise result of suspected felony. a may the Knowledge presence the officer's cause of the of a sus-

suspected violator to cease commission pected felony before the officer obtains sufficient evi- grounds dence to establish for arrest.

(4m) A law operating enforcement officer a bicycle vehicle that is a not required is to comply with (3) requirements of sub. giving relative to the of signals. audible and visual

(5) exemptions The granted operator of an autho- emergency by rized vehicle this do section not relieve operator such from the to drive or ride with due regard under the for safety circumstances of all persons they protect nor do operator such from the consequences disregard of his or her reckless for the safety of others.

(5m) privileges granted under this apply section operator of an authorized emergency vehicle under (dh) 340.01(3)(dg) only s. or if operator has success- fully completed safety training a course in emer- gency operation vehicle taken is at technical college by under ch. approved depart- that is only ment and being operated if the vehicle plainly marked, prescribed by in manner department, identify it an emergency as authorized vehicle under s. (dh). 340.01(3)(dg) or (6) Every law agency enforcement that uses authorized provide guidelines vehicles shall written employees regarding its officers and exceeding speed (4) limits under the specified circumstances in sub. pursuit when otherwise suspected actual or viola- consider, guidelines among tors. The shall other fac- conditions, tors, road density of population, severity of necessity crime and pursuit by guide- vehicle. The subject are not to requirements lines for rules under ch. Each law agency enforcement shall review its guidelines by written June 30 each even-numbered year and, if appropriate cоnsidered the law enforce- agency, guidelines. ment shall revise those exemp- In to the other subsections' contrast compliance operators emergency from vehicle tion of (5) of Wis. road, the subsection rules of with certain operator duty imposes § anof a on an 346.03 Stat. (5) emergency states vehicle. Subsection authorized granted exemptions road from the rules of the that the emergency operator "do not vehicle of an authorized an duty operator or ride with from to drive the the relieve safety regard all for the of the circumstances due under protect operator persons from not and do disregard consequences or her reckless of his safety of others." 346.03(5), appeals § of Thus, as the court by privileges granted "qualifies explained, secs.

has (5) 346.03(1) (4)."37 however, not, Subsection does liability governmental explicitly impose a actor. on 346.03(5) § is to be inter- Stat. 69. That Wis. governmental imposing liability preted a actor is on as imposing by supported text of Stat. Wis. regard, duty in the context of the of a exemption/privilege due provisions

language of of the other language an us to conclude that This leads 346.03. duty begets exemption privilege a legislature liability. Why exempt begets an would the operator an from com- of authorized vehicle duty impose plying rules the road and certain of can result unless a violation due liability?38 37 Polenska, 525, 527, 143 2d 421 City v. Wis. Madison (Ct. 1988). 862, App. N.W.2d 863 2d Egan, 84 N.W.2d See Candee v. (1978) ("Even provide not a civil though expressly a statute does violation, imply this court will

remedy injured for those its legislature remedy if intended such such a it concludes that exist."). remedy interpreted ¶ 70. Our case law has Wis. Stat. 346.03(5) providing arising a as cause of aсtion out of emergency operator's duty a of breach an vehicle cre e.g., Acuity, See, ated the statute. v. Brown 2013 WI Cavanaugh, 60, 603, 348 Wis. 96; 2d 833 N.W.2d 202 Cnty., 2d 290; Wis. see also Montalto v.Fond du Lac 272 (1956) (holding negli 552, 76 N.W.2d 279 a that gence action could be sustained based on an ambulance operator's safety to failure exercise due for the of others). statutory history

¶ 71. The of Wis. Stat. supports interpretation. also this legislature exempted police ¶ 72. 1915, In the regulations officers from automobile and rules of the police pursuing road when the officers were of violators explicitly provide code, the automobile did but not for police liability.39 the officer's Zuege,

¶ 73. In 264, Suren v. 186 Wis. 201 N.W. (1925), interpreted 722 the court the statute as render- ing duty officer for liable breach of of the ordinary safety care for the himself, of others and stating:

This statutory exemption .. . rendering [the while of- ficer] prosecution immune from or preventing the application the of rule that such speed may excess of prima establish a facie presumption negligence, of does duty [the not absolve the to that exercise officer] from which, conditions, under those circumstances and reasonable ordinary safety care the others and of himself. 39 511, provided: Section ch. Laws of "Any police any city, county, officer of town or village exempt shall be from [the sections the regarding code regulation], auto while actually pursuit of and attempting apprehend person violating any

who is provisions of these sections." added). (emphasis

Suren, atWis. the automobile code revision of In its explicit adopted provision legislature an 1929, the protected operator emergency from is not vehicle safety disregard consequences for the of a reckless others.40 legislation, legislature In the same 1929 speed emergency exempted operators of vehicles from legislature In amended restrictions.41 speed exemption from to state that limit statute operator speed of an autho- does not relieve an limits operate either the vehicle from rized using safety persons regard" the the of all "due for with operator protect highway, from the it the nor shall safety disregard consequence of of the of a reckless others.42 454, 1929, 3, codified at Wis. Stat. Section ch. Laws of 85.12(5) (1929), provides part: in relevant (5) VE- EXEMPTIONS TO AUTHORIZED EMERGENCY movement, regulating provisions of the HICLES. The said sections apply

parking standing not of vehicles shall to authorized and operating emergency operator the such while of vehicle is vehicles necessary performance public emergency in of the same in an the however, not, exemption protect operator shall the duties. This of disregard any consequence the such vehicle reckless of from added). (emphasis safety others of in not "The limitations forth section 85.40 shall speed set operating emergency to vehicles when apply authorized 454, 1929, 3, Stat. emergencies." § ch. Laws of codified as Wis. (1929). § 85.42 1947, Stat. ch. of codified as Wis. Section Laws 85.40(5) (1947), provides as follows: (5) apply speed to limitations set forth in this section shall not responding emergency emergency when to authorized vehicles signal by operators and audible siren or calls thereof sound whistle, emergency equipped exhaust and when such vehicle is light lighted lamp exhibiting at red visible under least one Thus, even in the pre-Holytz era, authorized vehicle who were operators from exempt certаin obeying traffic laws were nonetheless "bound to exercise reasonable precautions the extraordi- against nary dangers situation which duty them compels Montalto, to create." 272 Wis. at 558. Montalto, In court concluded that Wis. 85.40(5) (1953)

Stat. §§ could be the basis of an against action of operator an emergency vehicle:

The right way given public to service vehicles exemption however, their regulations, from traffic do operators duty not relieve their from exercising prevent due injury care to to themselves and others lawfully upon ways. Although generally recog- it is driving fire, nized firemen safety to a when the property stake, lives and at in many are are instances to proceed speed greater bound at a rate of than any ordinary that which justify driver could and cannot be required stop lights for red signals, or other traffic they they must include the care are bound to exercise precautions against reasonable extraordinary dan- gers of the which duty compels situation them They keep speed create. must in mind the at which their traveling probable vehicle is and the conse- quences of their disregard signals of traffic ....

Montalto, 272 Wis. Nadeau, at 558 Russell (quoting v. (Me. 1943)). 916, 29 A.2d 917 1957, 78. In legislature the enacted new ¶ a ve- hicle code, codifying the new rules of the Wis. road atmospheric normal conditions from a of distance 500 feet to the provision operator front of such vehicle. This shall not relieve the duty emergency of an operate authorized vehicle from the to regard safety persons highway, using

due for the all the of shall nor protect operator any it consequence the of such the vehicle from of added). disregard safety (emphasis a reckless of others

283 (1957) a adopting provision 346 Chapter Stat. 346.03(5). § the present the same as substantially 1957, of codified at 1, 260, Laws 79. Section ch. ¶ 346.03(5) (1957), § in relevant provides part: Wis. Stat. (5) granted operator the of an autho- exemptions The section do not relieve emergency rized vehicle this duty regard operator drive with due from the to such safety persons for the of all under the circumstances operator from the conse- they protect do such nor safety for the of disregard his reckless quences of others. note ch. 1957 Council to Legislative 80. The 1957, our of supports interpretation Laws of also

260, 346.03(5) § creating liability: as Wis. Stat. (5) operator of an makes clear that

Subsection relieved of the emergency vehicle is not authorized applicable due This is the rule under to drive with care. speed present respect violation of the law with 85.12(5) operator of an law .. . but seems make negligence for emergency authorized vehicle liable his only disregard of if in the case of of other rules the road disregard negligence amounts to reckless such safety Supreme Court so held Mon others. 2d County, v. Lac 272 76 N.W.2d talto Fond du Wis. (1956). logical is for 279 There no basis this distinction it has been eliminated. (1960). Wisconsin Annotations In 2d Wis. court Cavanaugh, held that the standard for an authorized operating vehicle "with due under the circum- all safety negligence stances persons" 2d at 316. Cavanaugh, standard. Thus, history of Wis. Stat. statutory it is a our supports interpretation

liability statute. 83. Our of interpretation the language 346.03(5) statutory § of Wis. Stat. history as a liability § statute dovetails with 893.80(5), a subsection of the statute that we have not previously dis- cussed. 84. The legislature affirmed in Wis. Stat. 893.80(5)

§ that § statutes other than 893.80 might govern liability of governmental actors. The legislature (5) declared in subsection §of 893.80 that "[w]hen or rights remedies are provided by any other statute against any [governmental for injury, actor] or damage death, such statute shall and the apply limitations (3) sub. [referring to on caps shall damages] be inappli- cable."43 893.80(5) Wisconsin Stat. provides full

as follows:

Except provided subsection, as in this provisions and limitations of this section shall be exclusive apply shall against to all claims a volunteer fire com- pany organized 213, political under ch. corporation, governmental agency subdivision or against any or officer, official, agent or employee thereof for acts done in an capacity official or the course agency of his or her employment. or rights When provided or remedies are by any against other statute any political corporation, governmental agency any subdivision or officer,offi- 43The court interpreted has the last sentence refer specifically applicability to the damage caps and not to other subsections of 893.80(5), Stats., 893.80. only "[Section] directs statute, when a claim is based on another damage 893.80(3) 893.80(5) limitations of sec. not apply. do not Section does say provisions that the notice of sec. apply." do not Waukesha, City 178, DNR v. 192-93, 2dWis. 515 N.W.2d (1994), 893-94 abrogated grounds on other by State ex rel. Auchinleck v. LaGrange, Town 200 Wis. 2d 547 N.W.2d (1996). damage or

cial, injury, employee agent or thereof for death, and the limitations apply such statute shall added). (3) (emphasis inapplicable be sub. shall legisla- language ¶ makes clear that 86. This possibility that other statutes ture envisioned plaintiffs might rights can that or remedies create despite against governmental pursue Stat. actors Wis. 893.80(4)'s legislative, § codification of quasi-judicial judicial, quasi-legislative, acts. or statutory interpretation re- ¶ rules of 87. Our interpreting surplusage garding militate in favor of 346.03(5) liability imposing § on the officer as Stat. regard. exercise due case for failure to in the instant present police ¶ in the The defendant officer 88. 346.03(5) § and its Wis. Stat. case invites us to view "vague suggestion."44 regard" requirement Yet as a "due duty: imposition vague The of not ‍‌​​‌‌‌​​​‌​‌​​​‌‌‌​​‌‌​‌​​​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‍in its the statute is duty" operator [the] from the of not relieve section "does asking regard. us to read the The defendant due 346.03(5) entirely. § out of the statute mandate of police further avers The defendant officer requirements Stat. met the of Wis. that because she 346.03(2)(b) 346.03(3), § § is, she slowed her and that duty lights siren, her and and activated vehicle already regard" met.45 "due was Reading compliance Wis. Stat. with 346.03(3) 346.03(2)(b) meeting § § the due re- as urge, ignores gard standard, as the defendants 346.03(5). (5) explicitly § language states Subsection Defendants-Respondents at 18. Brief of memoran appeals asks in its certification court lights-and- compliance dum whether slow-down regard" to demonstrate "due requirements sirens are sufficient in the instant case. duty regard notwithstanding

that the of due exists exemptions § privileges exemp- other or in 346.03: "The granted... by [§ 346.03] tions do not relieve such operator duty from the to drive or ride with due safety per- under the circumstances for the of all 346.03(5) § regard" . . . ."The sons text of envisions "due existing independently as a standard of care § exemptions granted by 346.03. holding adopting A91. officer's inter-

pretation compliance exemptions privi- with the leges authorized in 346.03 meets the of "due regard" language under would treat the of (5) surplusage. holding exactly as Such a would do what namely operator forbids, the statute it would relieve the duty. of this We decline to do so. 893.80(4) (5) §

¶ 92. To be true to Wis. Stat. and 346.03(5), § statutory interpreta- and and the rules of police tion, we conclude that the in officer the instant alleged duty case who is to have breached the of "due 346.03(5) regard" § under is not immune from suit 893.80(4). § under

IV applying ¶ 93. We turn now from rules of statu- tory interpretation scrutinizing espe- to our law, case cially Cavanaugh Andrade, Estate v. Wis. 2d of (1996), principles guiding 550 N.W.2d 103 derstanding our un- interplay § of Wis. Stat. 346.03(5), § and the distinction between immune dis- cretionary and non-immune ministerial acts under 893.80(4), § regard" Stat. and the nature of "due 346.03(5). § glance, question

¶ 94. At first the whether Wis. 893.80(4), § immunity Stat. the statute, bars claims operator's brought vehicle of an for breach appears regard to duty the circumstances" under of "due inspection by Cavanaugh. reveals A closer be resolved it is not. that Cavanaugh noted declared, as we court The 95. discretionary general "despite act

previously, 893.80(4), negligence § immunity action set forth against in a may involved an officer be sustained grounds high-speed pursuit that he or she on operate 'due the vehicle with to breached 346.03(5)." under the circumstances' under Cavanaugh, 2d at 319. 202 Wis. Cavanaugh presented The dilemma distinguishes deci-

opinion it is that (entitled immunity pursue Stat. under Wis. to to sion § 893.80(4)) operation physical the vehicle from 893.80(4)) (not without under entitled clarifying in the decision acts are included which physical pursue are included within and acts which operation the vehicle. her lookout contends that officer parcel part speed her decision to were slowing light, through

proceed down with after the red engaged pursuant lights police to and siren car's the (3). 346.03(2)(b) pro- § to and The decision Wis. Stat. discretionary act and a reasons, was ceed, the officer subject speed to and were thus her lookout pursuit engage persist in in the decision to akin to Cavanaugh case. the plaintiff argues that the contrast, In the negligence, to the officer's failure such as officer's operation goes "physical

keep lookout, to the vehicle." Cavanaugh closely

¶ 99. Wefirst examine more to teachings. distill its We then turn ato closer examina- discretionary-ministerial dichotomy tion in Ca- vanaugh.

A reasoning First, the facts and of Ca- vanaugh. Cavanaugh, pursued by police In a driver high-speed pursuit officer in a collidedwith car, another killing brought the victim. The victim's estate an action against city, officer, and the other driver for negligence. alleged their negligent The estate that the officer was failing pursuit negli-

in to terminate the gent respect operation to the vehicle, contrary regard" to "due standard under Wis. Stat. 346.03(5). § alleged city The estate also that the was negligent failing provide adequate guidelines to 346.03(6). high-speed contrary chases, Stat. jury city partially The found the officer and the each negligent damages and awarded to the victim.46 judgment notwithstanding

¶ 101. In motions for city verdict, the immunity. the officer and the each raised claims of holding claims, The circuit court denied both city that the officer and the were not immune. The appeals holding court of court, reversed the circuit city was immune but the officer was not. appeals, ¶ 102. This court reversed the court of holding, inter alia:

1) city guidelines The had a ministerial to create

pursuant to Wis. Stat. and was not immune from negligence failing suit for its adopt guidelines; such jury percent negligent, found the other driver 75 percent negligent,

officer 2 city percent negligent. and the Cavanaugh, 202 2dWis. at 297.

2) continue the to initiate and decision The officer's discretionary and the of- was

high-speed pursuit liability alleged for his from ficer was immune negligent speed; and

3) against an may maintained negligence be A suit for notwith- high-speed pursuit engaged in a

officer op- if the officer's standing the statute statutory duty vehicle breaches eration of the regard."47 "due holding, regard the Ca- the first 103. With 346.03(6), majority vanaugh that Wis. Stat. declared agencies requires to create law enforcement which duty. guidelines, The Ca- a ministerial established statutory vanaugh mandate reasoned that court agency provide "shall written enforcement that guidelines" law specific dictates consider" factors and "shall imperative, in- absolute, certain actions that "are specific merely performance volving of a task." Cavanaugh, 202 Wis. 2d at 301. and third hold- to the second 104. With distinguished Cavanaugh

ings, two court between separate officer—"an officer's functions of the high- initiate and continue a decision to operation "physical speed chase" and the officer's Cavanaugh, 202 Wis. 2d at 317. vehicle." Cavanaugh considered the deci- The court high-speed chase to be initiate and continue a sion to inherently discretionary. that the It further concluded (e.g., speeding) allegedly negligent acts were officer's Cavanaugh, pursue." "[inherent in the decision to that the officer was not Cavanaugh court also held any no credible evidence... [was] liable "because there physical operation [the] negligence respect ... alleged causing the accident." Ca factor vehicle was substantial vanaugh, 202 Wis. 2d at 322. (citing City

Wis. 2d at 316 Chambers, Lancaster v. of (Tex. 1994)). 883 S.W.2d Cavanaugh 106. Nevertheless, the court did not immunity liability by create a "blanket from all virtue of public [a officer's] pursuit." involvement in a Ca- vanaugh, Cavanaugh 202 Wis. 2d at 317. The court relating drew a distinction between acts to the decision pursue relating negligent physical opera- to and acts to being tion of the vehicle, with the former immune and being subject liability. Cavanaugh the latter to explained: court 893.80(4)

Our holding that provides immunity for an officer's decision to pursuit initiate or continue a does mean, suggested not as section, the dissent to this that officers are afforded blanket all from liability by virtue of their involvement in pursuit. We agree with the court appeals may that an officer be negligent pursuant failing physically to operate regard his or her vehicle with due safety for the of others.

This distinction between an officer's de- pursuit cision to initiate and continue a physi- and the operation cal of the recognized by vehicle has been jurisdictions other ....

Cavanaugh, Cavanaugh 2dWis. at 317. thus at- tempted segregate an officer's decision to initiate or pursuit physical operation continue a from that officer's of the vehicle with due under the circumstances safety persons. for the of all support

¶ 107. To its distinction between the de pursue, physical cision to which immune, and the operation vehicle, of the which immune, is not Cavanaugh court relied cases, on two sister-state (Kan. 1983), Kelly Shore, Thornton v. 666 P.2d 655 (Okla. 1990), App. City Tulsa, 791 P/.2d826 Civ. v. interpreting statutory language to Wis. Stat. similar 346.03(5). cases declare that under statutes 108. These 346.03(5) requiring "due care" to Wis. Stat. similar during emergency "duty responses, due vehicle "only operation applies to the care" itself," not to the initiation or continuation of vehicle pursuit. Kelly, Thornton, 828; 666 P.2dat 791 P.2dat 318). by Cavanaugh, (quoted 2d at 667-68 practical ¶ 109. The theoretical and difficulties of making acknowledged in this distinction has been the Kelly. years Cavanaugh, Thornton, since Supreme ¶ 110. The Kansas Court overruled City Wichita, in Robbins v. 172 P.3d Thornton of (Kan. 2007), "refusing distinguish between the pursue pursuit decision to and continue the from the pursuing." method of engaged high- Robbins, In 111. officers

speed chase that resulted in a fatal collision. The argued pursue suspect officers that their decision to the high speed at was immune because their decision on speed their from their deci- was derived pursue, negligent operation sion to not from their of vehicle.

¶ 112. The Robbins court reasoned that it was not distinguish feasible to between which actions derived pursue from the decision to and which actions derived operation vehicle, from the driving because "the act of physical components." involves both mental and Robbins, at 172 E3d Thus, the Robbins court concluded that duty

officers could be liable for breaches of the of due pursue pursuit care for decisions to or continue aof fleeing driver. Similarly, Supreme

¶ 114. the Oklahoma Court Kelly Dep't in State ex rel. Oklahoma Public overruled (Okla. 2010), citing Safety Gurich, v. 238 P.3d Robbins proposition begin that "a decision to or discon police pursuit indistinguishable tinue a from the pursuing." similarly method of court con Gurich duty cluded that officers are liable for breaches of the physical operation due care for both of a vehicle and the pursue pursuit. decision to or continue Cavanaugh's ¶ 115. distinction between the deci- pursue, physical immune, sion to operation which is and the vehicle, immune, which is not has thus jurisdictions been rebuffed other as unworkable. Cavanaugh vitality ¶ 116. nevertheless retains in the case, is instructive instant as is the manda- tory language declaring of Wis. Stat. exemptions privileges opera- or "do not relieve suсh regard tor from the to drive or ride due . . . ." Cavanaugh ¶ 117. teaches that an officer must persons still treat all and vehicles with "due notwithstanding circumstances," under the the discre- tionary engage high-speed decision of officer to pursuit respond Cavanaugh to an call. operate instructs that duties of the officer to by discretionary vehicle are not subsumed an initial decision. though "may. proceed

¶ 118. Even the officer . . signal past stop stop sign," a red or or Wis. Stat. 346.03(2)(b), § "slow[] that officer must still down as 346.03(2)(b), may necessary § operation," be for safe "giv[e] signal signal both such visual and also an audible 346.03(3),48 § whistle," means of a siren or exhaust infra, 125-130, requirement See discussion on this ¶¶ Brown, 348 Wis. 2d 603. duty regard or ride with due

and maintain "the to drive 346.03(5). ...."§ under the circumstances B Cavanaugh's pursuit/physi- ¶ 119. We turn from discretionary-minis- operation cal distinction to the police determine whether terial distinction to duty regard officer's breach of the of due under Wis. 346.03(5) subjects present § in the case Stat. officer liability. or key step inquiring A an act is whether identify or ministerial is to the law creat- ing duty to act. "Where there is a written law or naturally policy defining duty, language we look to the writing to evaluate whether the and its parameters clearly precisely, expressed are as so so to eliminate the of discretion."49 official's exercise plaintiff points

¶ 121. In the case, instant allegedly two sources of law that create the ministerial duty requiring regard act "due officer to with govern- First, under the circumstances": ing the statute applicable the rules of the road to an authorized 346.03(5); emergency vehicle, second, Stat. procedures Depart- the internal of the Racine Police ment.

¶ 122. The text of Wis. Stat. declares operators vehiclеs, of authorized de- spite privilege exemption require- their from other operate road, ments of the rules of the must continue to their vehicles due under the circumstances safety for the of others. Pries, See 326 Wis. 2d procedures

¶ 123. The internal for the Racine language Department echo the of Wis. Stat. Police 346.03(5), exemptions granted stating that "the above department duty members from the do not relieve regard under the circumstances for the drive with due safety persons." police procedures of all The internal list that a officer must take into the considerations regard": account to drive with "due type, speed being a. The actions and of the vehicle pursued; geographic pursuit population

b. The area of and its density; week; day day

c. The and time of area; pedestrian present traffic d. The vehicular conditions; e. road weather familiarity pursuit.50 f. The officer's the area of ¶ 124. Stat. 346.03 and the internal Wisconsin Department procedures Racine Police create a ministe- duty.51 rial 125. Our conclusion that the statute sets forth by duty supported law. See

ministerial our case Cavanaugh 2d Brown, 603; 2d 348 Wis. Brown, officer In the court held that an regarding duty the method breached a ministerial operated an vehicle and which an officer 50 City Department, Policy and Procedure of Racine Police (2006). No. governmental entity's of a ministerial See the discussion supra. 102-103, guidelines, to create ¶¶ subjected liability,

consequently to even if the himself part operation of his of the vehicle occurred as officer's discretionary performance act that is otherwise of some immune.

¶ Brown, truck driver 127. In a volunteer fire was emergency responding intersec- to an and entered an exemption general against light. An the tion a red 346.03(2)(b) § granted by Wis. Stat. rules of the road emergency operator an states that an authorized may past stop signal stop "proceed a red or or vehicle may necessary sign, only slowing but after down as be operation." for safe had 128. The fire truck driver his vehicle's

lights siren activated. Under Wis. Stat. on but no was 346.03(3), § exception allowing operator the an of an emergency authorized against vehicle to enter an intersection only stop ‍‌​​‌‌‌​​​‌​‌​​​‌‌‌​​‌‌​‌​​​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‍signal applies if a red both the visual signal signal by and audible means of a siren or exhaust engaged.52 whistle are The court held that Brown driver's perform a failure a

failure to use a siren was duty. Although initial ministerial decision to initiate emergency response proceed through the red light Cavanaugh, was under the driver's "directly govern[ed]" by activation of the siren was 346.03(3) § Wisconsin Stat. reads full: granted operator emergency exemption The of an authorized (2)(a) only by applies operator vehicle sub. when the of the vehicle giving signal by flashing, oscillating at least one is visual means of rotating light except signal given by police or red that the visual may by light light vehicle means of a blue and a red which are be flashing, oscillating rotating, except provided in or as otherwise (4m). (c) (d) (2)(b), exemptions granted apply sub. sub. only operator giving vehicle both when signal signal by such visual and also an audible means of a siren or (4m). (4) whistle, except provided exhaust as otherwise in sub. nondiscretionary statute and was a ministerial function part Brown, on the driver. 348 Wis. 2d perform nondiscretionary Failure to ministerial func- 346.03(3) forth in tion set Wis. Stat. resulted liability in Brown.

¶ 130. The Brown court did not address whether regard" obligation imposed by the "due Wis. Stat. support liability could also in that case. ¶ 131. The ministerial in the instant case is duty particular a to maintain a standard of care— namely duty regard a of "due under the circumstances." duty given This clarification, additional but not precision, through police proce- the Racine internal detailing dures what due entails. As our case law although consistently, duty demonstrated, has not a precise undertaking need not dictate each government implement actor in must order to be min- isterial.53 Cavanaugh, example,

¶ 132. In for the statute part governmental established a on the of the entity guidelines explain to create but did not the exact by guidelines, method or means which to enact those entity.54 i.e., it left them to the discretion of the Never- Cavanaugh, theless, the court held that when the governmental entity comply require- fails to immunity 346.03, ments of Wis. Stat. statute does protect governmental entity liability. not from Ca- vanaugh, 202 2d at 300-01. 48-59, supra. See ¶¶ 346.03(6). Wis. Stat. di- discretionary-ministerial Using we hold immunity liability, to determine

chotomy acts in the instant case are outside the that the officer's and the officer is liable immunity of the statute scope for negligence. is in with sister Today's holding keeping similar to Wisconsin's jurisdictions

state with statutes of a vehicle as a paradigmatic that view the operation ministerial act.55 These tend to hold that jurisdictions negligent operation does not attach to on an emergency operator.56 vehicle part (6th 1975) States, As Downs v. United 522 F.2d 990 Cir. Act, notes, interpreting operating the Federal Tort Claims an act, nondiscretionary though archetypal automobile is the even judgment part operator: it on the still involves however, judgment, It the mere which immunizes is not exercise liability employees. the United from for the torts of its Statеs Driving frequently congressional an automobile was cited in the reports leading example "non-discretionary" the Act an as activity excep- which would be outside the function Driving judgment. tion. an automobile involves The failure to turn, may signal example, represent be said to an exercise of Yet, judgment, poor one. accident albeit automobile caused employee job archetypal a federal while on the is an claim which Congress sought place in the courts. (citations omitted). Downs, 522 F.2d at 995 See also Schmitz v. (Iowa 2004) 70, City Dubuque, (quoting 682 N.W.2d 73 Downs)-, City 36, Brandenburg, (Ky. Pile v. 215 S.W.3d 40 2006) ("The safely controlling police act of a cruiser is not a act, function."); but rather a ministerial Mumm v. (Minn. 2006) (officers Mornson, 475, 708 N.W.2d 491-92 were immunity pursuit, not entitled to for decision to continue pursuit because officers' discontinue was ministerial compliance department policies). 56 (Ind. 2006) See, Miresso, e.g., Patrick v. 848 N.E.2d 1083 (holding emergency operator that a claim that an vehicle regard" by breached a similar "due statute was not barred (Kan. Robbins, 2007); immunity); 172 P.3d 1187 Mason v.

298 Consequently, discretionary- we view our jurisprudence directing ministerial as us to hold that immunity apply does not to the officer's conduct simply in the instant case because she made the discre- tionary respond emergency decision to to an call.

V ¶ 136. Because we hold that no exists for the officer in the case, instant we review the circuit court's decision to direct a verdict favor of the officer. challenges 137. A motion for a directed verdict sufficiency may of the evidence. A circuit court grant the motion if the circuit "court is considering all credible evidence and reasonable infer- that, satisfied light party ences therefrom in the most favorable to the against whom the motion made, there is no credible finding party." evidence to sustain a in favor of such 805.14(1). any Wis. Stat. When there is credible support jury's though evidence to verdict, even it is contradictory appears contradicted and the stronger evidence convincing, and more nevertheless the verdict must stand.57

Bitton, (Wash. 1975) 1360, 534 P.2d (holding that immu nity liability cannot bar alleging in a case breach of due emergency an type vehicle because this "[i]f of conduct were liability, immune from exception would surely engulf the rule, totally it"); if not destroy Arlington County, Biscoe v. (D.C. 1984) F.2d 1352 (applying Cir. District of Columbia law using regard" similar "due language to negli allow suit for gence against operator an vehicle governmental failing actor for regard" to exercise "due holding pursuit duty). was a ministerial USA, Marquez LLC, v. Mercedes-Benz 2012 WI 119, 143, 314, 326, 341 Wis. 2d 815 N.W.2d decision on clarified appellate court court, an

¶ Like the circuit 138. uphold for facts to of the record a search conducts appellate jury overturn a court should not An verdict.58 evi- for insufficient to dismiss court's decision circuit the circuit court reveals that the record dence unless "clearly wrong."59 decision to A circuit court's was wrong jury's clearly jury's change if the answer is by any supported credible evidence.60 verdict that a di- ¶ determined The circuit court 139. justified. present The case was rected verdict negligence as set standard to the circuit court adhered officer's] "[the Cavanaugh and concluded forth in negligence causal, and on that have been could not by the as determined not be liable basis, she should jury." jury that there

¶ it evidence had before 140. police vision; that to the officer's was an obstruction intersection; that familiar with the officer was busy; police officer en- that the the intersection was per hour; thаt the 27 miles intersection at tered the police destination; that the a block from her officer was right turning into the south- car officer saw another reconsideration, 254, 74, 342 Wis. 2d 823 denial of 2012 WI denied, 106, 2d reconsideration 266, 2012 WI 343 Wis. N.W.2d 558, 820 432. N.W.2d 119, Marquez, 341 Wis. 2d 48. Id, Marquez, 2d 341 Wis. jury . . which the any "If credible evidence . from there is negligent respect conclude that the ... driver was could they were negligence which any of the items control, lookout, speed management instructed — —the jury's denied and the properly [is] verdict motion for directed v. Milwaukee & Suburban must be sustained." Crowder verdict (1968). Transp. Corp., 39 Wis. 2d 159 N.W.2d 723 car; bound lanes and had to avoid the that the officer plaintiffs police car; never saw the and that the officer entering could not have avoided the accident after the intersection. any

¶ 141. The circuit court reasoned that breach duty regard initiating entry of of due after into the intersection could not accident, have caused the be- any keep entering cause failure to a lookout after would prevented not have the accident. police duty

¶ 142. Yet the officer's of due simply emerge police did not once the officer entered keep the intersection. The a lookout existed entry before into the intersection.61 jury police ¶ 143. A could find that the officer's conduct demonstrated a failure of lookout, a failure to speed, management reduce and a failure of and control. Viewing light credible evidence most favor- plaintiff, able to the we conclude that there is credible support jury's finding evidence to a that the officer's negligence. conduct constituted causal police argues ¶ 144. The officer that because she right way 346.03(2), had thе of under Wis. Stat. which against authorizes the officer to enter the intersection a stop signal, plaintiff only red could not have been 50 percent causally negligent.

¶ 145. The officer cites to Sabinasz v. Mil Transport Co., waukee & Suburban 71 2d 238 (1976), proposition plaintiffs N.W.2d99 for the that the yield right way jury failure to to the officer's of bars finding plaintiff only percent responsible. that the Yet the Sabinasz court noted even when a driver right way has the of and can assume that drivers Gibson, 275, 290-91, Leckwee v. 90 Wis. 2d 280 N.W.2d (1979). way yield, "[T]his right not does of will without way] right [with from main- driver excuse the liability proper taining him if the relieve lookout or jury Sabinasz, 2d 71 Wis. he failed to do so." finds that principle true even when the vehicle holds at 223. This way right is an authorized negligent and also the other driver was vehicle yield. Montalto, 272 Wis. failed to See dictates our result. The standard of review was that the officer There negligent "credible evidence" was injury. Therefore, the circuit and caused the directing case. in the instant erred in verdict court ¶ that statute 147. We conclude police present apply officer's in the case to does not operate due the vehicle "with of the violation regard contrary A circumstances." outcome under the 893.80(4) § contravene Wis. Stat. would 346.03(5), statutory interpreta- public policy, § rules of tion, and case law. that there was cred- 148. We further conclude support jury verdict of causal

ible evidence to part negligence of the officer. on forth, 149. For the reasons set we reverse judgment dismissing the action and of the circuit court to the circuit court to reinstate remand the matter jury verdict.

By judgment court is of the circuit the Court.—The remanded. reversed and the cause is (dis- ZIEGLER, J. KINGSLAND 150. ANNETTE ) Emergency responders permittеd, senting. are some extent, to violate the of the rules road when responding to an and for emergency, good reason. See Wis. Stat. 346.03(2).1 § I recognize this privilege is not limit- less, see 346.03(3),2 § Wis. Stat. and I further recognize that an emergency must responder exercise "due regard under the circumstances for the of all safety persons." 346.03(5).3 §See Under the facts of case, this however, the circuit court correctly concluded that Officer Mat- 346.03(2) Wisconsin provides: Stat. operator

The may: of an authorized vehicle (a) Stop, park, irrespective provisions stand or of the of this chapter; Ob) past stop signal stop sign, Proceed only red or or but slowing may necessary operation; after down as be for safe

(c) speed limit; Exceed the

(d) Disregard regulations governing direction of movement or turning specified directions. provides: Wisconsin Stat. exemption granted operator of an authorized emer- (2) (a) gency applies only operator vehicle sub. when the giving signal by

vehicle is flashing, visual means at least one oscillating rotating light except signal given red that the visual by police may by light light vehicle be means of a blue and a red flashing, oscillating rotating, except which are or as otherwise (4m). provided (c) exemptions granted by (2)(b), in sub. The sub. (d) apply only and operator emergency when the vehicle is giving signal both signal by such visual and also an audible means whistle, except of a siren or provided exhaust as otherwise in sub. (4) (4m). § Wisconsin Stat. provides: exemptions granted operator The of an authorized emer- gency by operator vehicle this section do not relieve such from the duty regard to drive or ride with due under the circumstances for safety persons they protect of all operator nor do such from the consequences disregard safety of his or her reckless for the of others. responder, complied emergency with her sen, as an immunity. statutory obligations and is entitled reasoning majority opinion's it to leads by legis- disregards it the standard set err because departs jurispru- § 346.03; from our in Stat. lature Wis. and to ministerial dence disregards set in Estate Ca- act; the standard we vanaugh Andrade, 202 Wis. 2d 550 N.W.2d v. (1996); ignores under and the circumstances which acting. Accordingly, respectfully I Officer Matsen was dissent. acting issue, Matsen, In at Officer the case lights emergency responder, had activated her

as an 346.03(3). § complying As siren, thus with Wis. Stat. approached slowed intersection, Officer Matsen she per per hour, the 30 miles her vehicle to 27 miles below speed complying posted limit, thus hour 346.03(2)(b). Legue § it is true that and Officer While to one because a KFC Matsen were not visible another other, each Officer Matsen had blocked their view of engaged emergency response squad lights full with her sounding. emergency on and siren Legue obligation ¶ 153. was under an absolute give right way. Officer Matsen the See Wis. Stat. 346.19(1).4 Legue on, had her radio her air condition- ing Legue on, and her windows closed. did not see or Legue hear Officer Matsen's vehicle. entered the inter- traveling per at 30 miles hour and broadsided section squad jury Legue Officer car. The found Matsen's equally negligent. court, Matsen The circuit Officer 346.19(1) provides part: Wisconsin Stat. relevant any Upon approach authorized vehicle yield giving signal operator audible siren the of a vehicle shall right-of-way.... however, concluded that Matsen, Officer as an emer- gency responder, immunity was entitled to as she was acting discretionary capacity regard in a with due under agree. the circumstances. I majority opinion interpret

¶ 154. The fails to 346.03(5) § Stat. and concludes that Officer Matsen, as emergency responder, an is not entitled to acting discretionary because she was not ity, author- duty" but instead failed in her "ministerial to act regard Majority with "due under the circumstances." op., doing, majority opinion ig- ¶¶ In 131-33. so plain meaning § by affording nores the virtually legislature's coupling no consideration to the regard" of "due with "under the circumstances." The majority opinion confuses decision- making legislature emergency afforded to responders negligence principles. with common law

¶ 155. I conclude that Wis. Stat. 346.03 sets the apply. test arewe The statute illuminates what is by regard" emergency meant "due an when authorized against light. vehicle provides an enters intersection a red It operator that an of an vehicle can proceed past light "slow[s] may if a red it down as be necessary operation" gives if for safe and it a "visual by signal flashing, oscillating of at means least one or rotating light except signal given by red that the visual may light a vehicle be means of a blue a light flashing, oscillating rotating,. red which are . . signal by and also an audible means of siren or 346.03(2)(b) (3). exhaust whistle." Wis. Stat. requirements These inform what is due. Although ¶ 156. the case at issue involved an traveling speed lights officer below limit with her entering engaged, against and siren an intersection signal, respond- red the circumstances that can attend example incredibly

ing emergency are diverse. For to an through emergency responder which the the area day part passes the time of are of circumstances and the response, e.g., emergency re- is the of an sponder prоceeding through chil- a school district with through present proceeding a rural dren or is he or she morning? type in of emer- area at gency o'clock the two part e.g., circumstances, the call of the is also help help request a for a feared heart attack or for a for stop in a traffic call to a vehicle involved violation? regard ¶ for "Due under the circumstances fully persons" safety the particularity, all is not described with of be, could it because circumstances nor judgment by generally require of will the exercise particular emergency responder ways are that to emergency responder is circumstance with which the require an the circumstances such confronted. When qua judgment, it sine non a discre- exercise of is the tionary decision. that 158. Wisconsin Stat. also shows

exercising regard often "due under circumstances" require judgment requires This section law will call. agencies guidelines provide written enforcement response emergency. in their to an officers to assist guidelines "road conditions, Those are consider den- sity severity necessity population, of crime and 346.03(6). pursuit by vehicle." expect emergency respond- course, Of we permit ers to use discretion under the circumstances to safely promptly. respond course, them to Of we contemplate they may that not follow the rules responding. responder mind of road when so In the language, legislature's response and in own will responder be measured in that the must balanced and use "due under balanc- the circumstances." This ing generally requires judgment vary calls circum- balancing stance circumstance. Such of continu- ingly changing emergency respоnse factors an then is imperative" decision-making "absolute, not certain and legislature as the if would have set out a ministerial fully duty were described. explain precedent, further, 160. To under our very and ministerial duties are different. " impera

Ministerial duties are 'absolute, certain and involving 'performance specific tive,' the of a task' that imposes 'time, the law and the defines mode and occa performance certainty sion for its such that noth ing judgment for remains or discretion.'" Brown v. Acuity, ¶60, 43, 2013 WI 603, 348 Wis. 2d 833 N.W.2d (quoting Regents University 96 Lister v. Board of System, 282, 301, Wisconsin 72 Wis. 2d 240 N.W.2d610 (1976)). public

¶ 161. officer, A such an as responder, is immune from suit for acts done the legislative, quasi-legislative, judicial exercise of or quasi-judicial Brown, functions. 603, 348 Wis. 2d 41 893.80(4)). (quoting require Stat. Wis. Acts that judgment "discretionary" exercise of are under the law. public Lister, discharging 72 2d A officer duty," by "ministerial contrast, is not entitled immu nity. Kimps Hill, 1, 10, v. 2dWis. 546 N.W.2d 151 (1996).5 consistently "[a] 162. As stated, this court has

public duty only officer's is ministerial when it is imperative,' involving 'perfor- 'absolute, certain and 5While majority opinion criticizes distinction be acts, "discretionary" tween duties, and "ministerial" majority see op. 48-56, it nonetheless remains ¶¶ the law Wisconsin. See Acuity, 42-43, 603, v. Brown 2013 WI 348 Wis. 2d ¶¶ N.W.2d 96. imposes specific and task' that the law of a

manee performance for its 'time, mode and occasion defines judgment certainty nothing for that remains with such (quoting Brown, 2d or 348 Wis. discretion.'" 301).6 Lister, 72 Wis. 2d at departs majority opinion, however, ¶ 163. The majority longstanding principles. fails from these duty regard of due Officer Matsen's to address how " ’absolute, certain the circumstances was under perform only imperative,'" 'a needed to a" such that she obligation. specific Id. meet her task'" in order to 301). major- (quoting Lister, Further, the 72 Wis. 2d at duty ity explain not Officer Matsen's does how in the "due under the circumstances" exercise " impоsed 'time, or defined mode case at issue " performance any task such 'with occasion'" judgment certainty nothing remains for such 301). (quoting Lister, 72 2dWis. at discretion.'" Id. opinion majority that an emer- Instead, the concludes responder gency be under a ministerial not to majority op., ¶¶ If in an See 142-43. involved accident. majority's im- standard, under the occurs, an accident munity seemingly precluded. is Additionally, majority opinion's analy-

¶ 164. prior inconsistent with this court's decision sis is 6 cases, specifically majority opinion that some claims Ranch, Shelby, L.L.C. v. Town Willow Creek 56, 2000 WI 235 of 693, stringent 409, used Wis. 2d 611 N.W.2d have a less state standard. See majority op., 49. ment of the ministerial Creek, is incorrect. See Willow assertion, however, This 235 act, 409, (stating "[a] Wis. 2d 27 that ministerial contrast discretionary act, duty that to immune involves a 'is abso an lute, involving merely performance imperative, certain prescribes imposes, of a task the law and defines specific when time, performance mode occasion for its with such discretion'"). judgment certainty nothing remains for or

308 Cavanaugh Andrade, Estate v. 202 Wis. 2d (1996). Cavanaugh In N.W.2d we concluded that 346.03(5) "§ preclude Wis. Stat. does not the defense of discretionary initiating for the acts of continuing pursuit.’1 high-speed a Id. at In so doing, distinguished discretionary we a between deci pursue suspect, obligation to a sion and a ministerial to "physically operate" regard a vehicle with "due under safety persons." the circumstances for the of all Id. at pointed 316-17. also We out that determination that negligent preclude the officer was did not the conclu regard sion that he or had she acted with "due under the thereby liability. circumstances" and was from immune at Id. 319.7 Cavanaugh In the officer initiated and high speed pursuit through

continued neighborhood. a residential pursuit proceeded

Id. at 296. The through signals solid red traffic at between 60 and 80 per despite suspect's illegal hour, miles the fact that the merely moving conduct involved a violation. Id. We nonetheless concluded that the officer entitled was to immunity, engage because the decision to in such a pursuit was and not Id. ministerial. at "[ijnherent pursue 316. We noted that in the decision to speed." applied decision to Id. The court the "due regard under the circumstances" standard and stated may negligent pursuant [Wis. that "an officer be to Stat.] § failing physically operate for to his or regard safety her vehicle with due others." Id. Andrade, In Cavanaugh Estate v. 202 Wis. 2d (1996), jury N.W.2d 103 found that the officer failed to proper maintain a lookout and this failure causal in was Cavanaugh's injuries. us, Id. at 319. In the case before Officer jury Matsen found was to have failed maintain a proper lookout. officer's that the however, concluded court, 317. The at per lights, running hour, not miles did at 60 to 80 of red stan- under circumstances" the "due violate immune from that the officer was dard, and concluded liability. precedent reconcile It is difficult to today. majority opinion

Cavanaugh inAs with the operating Cavanaugh, her vehicle Matsen was Officer Cavanaugh, response. emergency the officer In in an per lights at and 80 miles red between 60 ran several By Matsen entered an intersec- contrast, Officer hour. only against signal, did at a traffic but so tion red acting Cavanaugh, per in In the officer was miles hour. issue, ticket. In the case at issue a traffic an effort to responding dis- to an Officer Matsen was patch calling her to the scene an accident. Cavanaugh As and that officer's deci- judgment pursue, Officer exercised her to Matsen sion proceed through deciding in intersection, in response to Cavanaugh, emergency. inher- an As with to judgment in Officer Matsen's is the exercise ent through deciding proceed to in whether discretion danger its risk of from cross-traffic. intersection with Cavanaugh, Matsen did not maintain As with Officer proper lookout. differently, at the case issue con- 168. Stated Cavanaugh by Cavanaugh. If the officer was

trolled lights to red his decision run immune for per to in order to chase traffic at 60 80 miles hour her offender, is immune for discre- Officer Matsen also tionary against red enter an intersection decision to per respond signal an at 27 hour order miles calling emergency dispatch her to the of an scene accident. majority opinion dutifully

¶ 169. The recites the Cavanaugh apply standard in articulated but does not opines Cavanaugh merely it, and instead is "in- Majority op., majority ¶¶ structive." 100-16. The nei- Cavanaugh, seriously ther overrules nor reverses but it precedent.8 undermines its value as analysis, majority's ¶ 170. Under the amI con- plaintiff cerned whether a iswho involved in an auto- emergency responder mobile accident with an ‍‌​​‌‌‌​​​‌​‌​​​‌‌‌​​‌‌​‌​​​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‍need plead only responder that the failed to exercise "due regard" automatically in order to a claim of defeat immunity. principle clearly Such a is at odds with one justifications primary governmental immunity: "[t]he danger influencing public per- officers in the formance their functions the threat of lawsuit." Kimps, plain 2d 9. is It also at odds with the meaning of Wis. Stat. 346.03. foregoing respectfully

¶ 171. For reasons, I dissent.

¶ 172. I am authorized to state that Justices ANN WALSH BRADLEY and PATIENCE DRAKE join ROGGENSACK this dissent. only real that, difference between the two cases issue, accident, at case the officer herself was involved Cavanaugh suspect

while in it was who struck another aptly majority's vehicle. This difference illustrates how the holding really works: officers are under a now ministerial not to be involved in traffic accidents.

Case Details

Case Name: Eileen W. Legue v. City of Racine

Court Name: Wisconsin Supreme Court

Date Published: Jul 25, 2014

Citation: 849 N.W.2d 837

Docket Number: 2012AP002499

Court Abbreviation: Wis.