Mаrilyn M. BROWN and Delores M. Schwartz, Plaintiffs-Appellants-Petitioners, DEAN HEALTH INSURANCE, INC., Conseco Insurance Company and Kathleen Sebelius, Involuntary-Plaintiffs, v. ACUITY, A MUTUAL INSURANCE COMPANY, Parnell P. Burditt, American Alternative Insurance Company and Okauchee Fire Department, Defendants-Respondents, UTICA MUTUAL INSURANCE COMPANY, Defendant.
No. 2011AP583
Supreme Court of Wisconsin
Decided July 9, 2013
2013 WI 60 | 833 N.W.2d 96 | 348 Wis. 2d 603
For defendants-respondents American Alternative Insurance Company and Okauchee Fire Department, there was a brief by Bennett J. Brantmeier, Amanda J. Ramaker, Danielle H. Thompson and Brantmeier Law, LLC, Jefferson, with oral argument by Bennett J. Brantmeier.
For defendants-respondents Acuity, A Mutual Insurance Company, and Parnell P. Burditt, there was a brief filеd by Lance S. Grady and Daniel K. Miller, Waukesha, with oral argument by Lance S. Grady.
An amicus curiae brief was filed by J. Michael Riley and Axley Brynelson, LLP, Madison, and oral argument by J. Michael Riley on behalf of Wisconsin Association for Justice.
An amicus curiae brief was filed by Michele M. Ford and Crivello Carlson, S.C., Milwaukee, on behalf of Wisconsin Defense Counsel.
¶ 1. ANN WALSH BRADLEY, J. The petitioners, Marilyn M. Brown (Brown) and Delores M. Schwartz (Schwartz), seek review of a published opinion of the court of appeals affirming the circuit court‘s grant of summary judgment in favor of the defendants, dismissing Parnell P. Burditt (Burditt), the Okauchee Fire Department (OFD), and their insurers.1 Brown and Schwartz commenced an action alleging that Burditt, a
¶ 2. Brown and Schwartz argue that Burditt was not acting within the scope of his employment as a volunteer firefighter when the collision occurred, thus placing him outside the class of individuals subject to public officer immunity. Additionally, they argue that because Burditt acted contrary to a ministerial duty to stop at the red stop signal, his acts fall within the ministerial duty exception to public officer immunity.
¶ 3. We conclude that Burditt was acting within the scope of his employment when the collision occurred. Accordingly, he is within the class of individuals that may be shielded by public officer immunity.
¶ 4. However, we further conclude that Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity. The “rules of the road” statutes codified at Chapter 346 of the Wisconsin Statutes required Burditt to stop at the red stop signal because his vehicle lacked an audible signal. Because Burditt‘s acts fall within the ministerial duty exception to public officer immunity, he is not shielded by immunity and summary judgment is not appropriate. Accordingly, we reverse the court of appeals and remand for further proceedings.
¶ 5. The material facts of this case are undisputed. On June 8, 2008, a dark and rainy evening, Burditt was driving his truck on his way to the OFD fire station when he came to an intersection with a four-lane divided highway. It was approximately 10:20 p.m., and Burditt was responding to an emergency call issued by the OFD. The OFD is organized as a non-stock corporation and serves several communities in the area around Okauchee, Wisconsin. Burditt has been a member of the OFD since 2002. Burditt served as a Lieutenant volunteer firefighter and Emergency Medical Services (EMS) Service Director with the OFD.
¶ 6. When Burditt reached the intersection, he encountered a red stop signal and accordingly he brought his truck to a stop. His truck had three flashing lights activated, but it had no audible signal.2 Burditt looked to his left into the southbound lanes of the intersecting road and saw that there was no oncoming traffic coming from that direction, so he proceeded through the red stop signal into the middle of the intersection.
¶ 7. Burditt stopped his truck again at the median between the northbound and southbound lanes of the intersecting road. He looked to the right into the northbound lanes. Seeing a vehicle coming, he waited for the other vehicle to pass through the intersection. However, just prior to reaching the intersection, the other vehicle pulled over to the side of the road and stopped.
¶ 9. As indicated, Burditt was on the road on the evening of June 8 in response to the OFD‘s emergency call for assistance.3 The OFD uses a system of pagers to dispatch emergency calls to volunteer firefighters. When the volunteer firefighters receive the call on their pagers, they decide if they can respond. In most cases, responding to a call initially means leaving from home, work, or some other location and traveling to the fire station. For calls that are related only to EMS, the volunteer firefighters respond directly to the scene of the emergency.
¶ 10. The call that was issued on June 8 was not an EMS-only call, and therefore Burditt was traveling to the fire station. The means and methods by which Burditt traveled to the station were left up to him.
¶ 11. The OFD exercises no control over how volunteer firefighters choose to travel to the fire station when responding to a call. Variables of travel such as route, speed, and the type of vehicle used to travel to the fire station are left entirely to the volunteer firefighters.
¶ 13. The OFD procedures are collected in a set of Standard Operating Guidelines that are set forth by the OFD. One such guideline governs the manner in which volunteer firefighters may utilize personal vehicles to respond to calls:
S.O.G. 300.0
Goal: Provide a guideline for the operation of motor vehicles.
....
Use of Personal Vehicles
A) Members may have emergency lights only
B) Members vehicles used to respond to alarms are not covered by the Okauchee Fire Department
C) Unless authorized, emergency lights will not be used, if responding more than 15 minutes f[rom] the fire station. Red lights may be used only when responding to an alarm for OKFD, unless authorized by O.I.C.
No warning device will automatically grant you the right of way!
Another guideline states that ”
¶ 15. Brown and Schwartz were passengers in the vehicle that collided with Burditt‘s truck. They commenced this action, alleging that Burditt negligently caused their injuries. The allegations in the complaint are brief and are set forth in relevant part as follows:
On June 8, 2008, in Waukesha County, Wisconsin, a motor vehicle collision oсcurred involving automobiles being driven by defendant, Parnell Burditt, who was responding to a volunteer fire call with the Okauchee Fire Department and struck the automobile being driven by Frank V. Brown. Plaintiffs, Marilyn M. Brown and Delores M. Schwartz were passengers in the vehicle operated by Frank V. Brown.
[] The negligence of defendant, Parnell Burditt, was a substantial factor causing the collision.
¶ 16. Burditt moved for summary judgment, arguing that he was acting within the scope of his employment with the OFD when he was responding to the call and traveling to the fire station, and that he was therefore shielded by public officer immunity.4 Addi-
¶ 17. In addressing the motion, the circuit court considered first whether Burditt was acting in the scope of his employment at the time the collision occurred. It determined that “the minute that... he‘s responding to the circumstances of the emergency, whether he goes to the firehouse, the scene of the motor vehicle accident, the crisis... it‘s occurring within the scope of the umbrella covered by the Okauchee Fire Department, [and] he is acting within the scope of his employment.”
¶ 18. It addressed next whether Burditt acted contrary to a ministerial duty when he proceeded through the red stop signal. The circuit court explained that the act of going through the red stop signal requires discretion, “one to operat[e] the vehicle, two [to] put your foot on the accelerator, and three [to] drive your car through the intersection.” It distinguished a duty to “obey traffic laws” from a ministerial duty, and ultimately concluded that the duties imposed on Burditt in this case were not ministerial. As a result, the circuit court granted summary judgment dismissing Burditt and his insurer from the case.
¶ 20. The court of appeals affirmed the circuit court. Brown v. Acuity, 2012 WI App 66, 342 Wis. 2d 236, 815 N.W.2d 719. Addressing first whether Burditt was within the scope of his employment, the court of appeals determined that Burditt‘s relationship with the OFD is “nontraditional.” Id., ¶ 9. It observed that although Burditt chooses the mode of transportation and the route he will take once a call comes in, “it is the OFD that decides when a call goes out and to whom.” Id. The court of appeals opined that volunteer firefighters “are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call.” Id. Ultimately, it concluded that Burditt was acting within the scope of his employment while en route to the fire station. Id.
¶ 21. Turning to address whether Burditt‘s acts in proceeding through the red stop signal were contrary to a ministerial duty, the court of appeals determined that the ministerial duty exception to public officer immunity does not apply. It concluded that although Burditt undisputedly “failed to meet” the standard set forth in
II
¶ 22. In this case, we are called upon to review the opinion of the court of appeals that affirmed the circuit court‘s grant of summary judgment in favor of the defendants. The circuit court dismissed Burditt, the OFD, and their insurers because of its conclusion that Burditt is shielded by public officer immunity.6 Summary judgment is appropriate when there is no genuine
¶ 23. The first question presented is whether Burditt falls within a class of individuals who may be shielded by public officer immunity because he was acting within the scope of his employment as a volunteer firefighter at the time the accident occurred. Whether Burditt was acting within the scope of his employment given the undisputed material facts presents a question of law that we review independently of the determinations of the circuit court and the court of appeals. See Olson v. Connerly, 156 Wis. 2d 488, 494–95, 457 N.W.2d 479 (1990).
¶ 24. If we determine that Burditt was acting within the scope of his employment as a volunteer firefighter, we must then determine whether Burditt‘s acts in proceeding through a red stop signal fall within the ministerial duty exception to public officer immunity. Whether the ministerial duty exception to public officer immunity applies to undisputed facts presents a question of law that we review independently of the determinations of the circuit court and the court of
III
¶ 25. We first address whether Burditt was acting within the scope of his employment at the time of the collision. Burditt argues that he was acting as a volunteer firefighter from the moment he chose to respond to the call and began to travel to the fire station. He contends that this case differs from a typical commuter case and therefore the general rule set forth in DeRuyter v. Wis. Elec. Power Co., 200 Wis. 2d 349, 546 N.W.2d 534 (Ct. App. 1996) stating that an employee is not acting within the scope of his employment when going to and from a given place of employment does not apply under these circumstances. Because he was merely acting within the scope of his employment, Burditt contends that he falls within the class of individuals to which public officer immunity applies.7 Thus, the ultimate aim of our inquiry into whether Burditt acted within the scope of his employment is to determine whether he falls within the class of individuals who may be shielded by public officer immunity.
¶ 27. Two civil actions were commenced after the accident, and both alleged that the driver was acting within the scope of his employment with Wisconsin Electric when the accident occurred. Id. at 356. The allegations were advanced in order to render Wisconsin Electric vicariously liable through the doctrine of respondeat superior. Id. at 358–59.
¶ 28. The court of appeals, in concluding that the driver was not acting within the scope of his employment, noted that the “touchstone of scope-of-employment issues... is employer control over the employee.” Id. at 360. It set forth as a “general maxim” in commuter cases that where an employee works for another at a given place of employment, and lives at home or boards himself, “it is the business of the employee to present himself at the place of employment, and the relation of master and servant does not exist while he is going bеtween his home and place of employment.” Id. at 361. Therefore, under those circumstances, only when the employer “exercises control over the method or route of the employee‘s travel to or from work can the employee be said to be acting within his or her employment.”8 Id. The DeRuyter court focused on em-
¶ 29. Thus, the DeRuyter court‘s ultimate focus was on whether the employee is actuated by a purpose to serve the employer. Id. Other scope of employment cases likewise focus on that same requirement. For example, in Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 (1990), this сourt addressed a scope-of-employment question arising under
¶ 30. In Olson, a faculty member argued that he was acting within the scope of his employment when he negligently caused injury to a medical assistant, making the State responsible for the damages and costs entered against him pursuant to
¶ 31. Ultimately, the Olson court determined that there is no requirement that serving the employer be the employee‘s “only purpose or even the employee‘s primary purpose.” Id. at 499. Rather, an employee‘s conduct is not within the scope of his employment if “it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee‘s own purposes.” Id. at 499–500.
¶ 32. Here, as in other contexts, the focus of our inquiry must likewise center on whether an employee is actuated by a purpose to serve his employer. However, a different analysis from the one set forth in DeRuyter is required under circumstances where the employee does not have a fixed place of employment. Recognizing the differences in cases where there is no fixed place of employment, the court of appeals declared that the DeRuyter analysis “does not apply” in those circumstances.10 Murray v. Travelers Ins. Co., 229 Wis. 2d 819, 828, 601 N.W.2d 661 (Ct. App. 1999).
¶ 34. The court of appeals reasoned that the circumstances presented in that case distinguished it from DeRuyter because under DeRuyter, the employee must have a fixed place of employment. Id. at 827–28. Upon determining that the DeRuyter analysis did not apply, the court of appeals examined the circumstances of the physical therapist‘s travel and concluded that her travel “was actuated by a purpose to serve her employer when the accident occurred.” Id. at 831.
¶ 35. Like Murray, the facts of this case do not comfortably fit into the DeRuyter analysis. Burditt is an on-cаll volunteer firefighter who could be called to any number of locations at any time. Sometimes he may be required to report to the fire station and sometimes he may need to report directly to the scene of the emergency depending on the nature of the call. Even though the OFD guidelines require him to travel first to the fire station in responding to a non-EMS call, the fire station is still not Burditt‘s ultimate destination. Rather, he is expected to pick up the necessary equipment and travel again to the scene of the emergency.
¶ 36. Thus, Burditt is not a typical commuter with a fixed place of employment as described by DeRuyter. Instead he is more like the physical therapist in Murray, whose employment required her to
¶ 37. The undisрuted facts of this case show that Burditt was actuated by a purpose to serve the OFD when the accident occurred. His entire purpose in traveling to the fire station on the evening of June 8 was to respond to the emergency call that had come through on his pager. No one argues that he had any other motivation.
¶ 38. Furthermore, once he responded, Burditt was obligated to follow the orders of his commanding officers. Although DeRuyter does not apply, the fact that Burditt was bound by the orders of his commanding officers lends further support to our analysis.11
IV
¶ 40. Having determined that Burditt falls within the class of individuals who may be shielded by public officer immunity, we address next whether Burditt‘s allegedly negligent acts qualify for an exception to that immunity. Brown and Schwartz argue that Burditt acted contrary to a ministerial duty to follow certain “rules of the road,” which are codified in Chapter 346 of the Wisconsin statutes. Specifically, they contend that Burditt disregarded a statutory requirement that he may not proceed through a red stop signal unless he activates both an emergency light and an audible signal as set forth in
¶ 41. Public officer immunity is grounded in
(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the
intentional torts of its оfficers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
Thus, a public officer is immune from “any suit” for “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” Id.; see also Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶ 25, 235 Wis. 2d 409, 611 N.W.2d 693.
¶ 42. The general rule of immunity for public officers in their performance of acts within the scope of employment is subject to four exceptions identified in case law. Scott v. Savers Property and Cas. Ins. Co., 2003 WI 60, ¶ 16, 262 Wis. 2d 127, 663 N.W.2d 715. The four exceptions to public officer immunity are set forth as follows:
Both state and municipal immunity are subject to several exceptions “rеpresenting a judicial balance struck between ‘the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.’ ” ... There is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional.
Lodl v. Progressive Northern Ins. Co., 2002 WI 71, ¶ 24, 253 Wis. 2d 323, 646 N.W.2d 314.
¶ 43. In this case, the sole exception at issue is the ministerial duty exception. A public officer‘s duty is
¶ 44. To determine whether a ministerial duty exists, this court has in past cases examined the language of an applicable statute, regulation, or procedure that is argued to impose such a duty. See, e.g., id., ¶¶ 29–30 (examining an operations policy guideline to determine whether it imposed a ministerial duty); Bicknese v. Sutula, 2003 WI 31, ¶ 25, 260 Wis. 2d 713, 660 N.W.2d 289 (evaluating an employee policy manual); Umansky v. ABC Ins. Co., 2009 WI 82, ¶ 18, 319 Wis. 2d 622, 769 N.W.2d 1 (examining a safety regulation). The duty imposed by the statute, regulation, or procedure must conform to all elements of a ministerial duty. Yao v. Chapman, 2005 WI App 200, ¶ 31, 287 Wis. 2d 445, 705 N.W.2d 272.
¶ 45. Here, Brown and Schwartz argue that the “rules of the road” codified at Chapter 346 of the Wisconsin Statutes imposed a ministerial duty upon Burditt to stop at a red stop signal. The “rules of the road” generally require that a vehicle must stop at a red stop signal:
(1) Whenever traffic is controlled by traffic control signals exhibiting different colored lights successively, or with arrows, the following colors shall be used and shall indicate and apply to operators of vehicles and pedestrians as follows:
...
(c) Red. 1. Vehicular traffic facing a red signal shall stop before entering the crosswalk on the near side of an intersection, or if none, then before entering the intersection or at such other point as may be indicated by a clearly visible sign or marking and shall remain standing until green or other signal permitting movement is shown.
¶ 46. In order to lawfully proceed through a red stop signal, the operator of the authorized emergency vehicle must give a “visual signal,” which is defined as “at least one flashing, oscillating or rotating red light.”
¶ 47. Even if an operator of an authorized emergency vehicle gives both a visual and an audible signal,
¶ 48. Here, Burditt by his own admission made a “poor decision” to proceed through the red stop signal, proceeding while giving a visual signal, but not while giving any audible signal. His actions are undisputedly contrary to the statutory requirements set forth in
¶ 49. This court considered whether acting contrary to the “rules of the road” may сonstitute an act contrary to a ministerial duty in Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 (1996). In that case, a law enforcement official engaged in a high-speed chase with another vehicle that failed to stop at a red stop signal. Id. at 296. The vehicle which was being pursued struck and killed a third-party driver. Id. The deceased driver‘s estate sued the law enforcement official and the municipality for which he was employed alleging a cause of action sounding in negligence. Id. at 297.
¶ 50. The municipality and the law enforcement official argued that they were immune from liability.13 Id. The law enforcement officer argued that his alleged
¶ 51. The Cavanaugh court determined that
¶ 52. In Cavanaugh, it was the officer‘s decisions relating to the initiation and continuance of the high-speed chase that constituted the negligent conduct. Id. This court employed a similar analysis in Lodl, 253 Wis. 2d 323, ¶ 27, where it examined law enforcement regulations relating to the decision to direct traffic at an intersection. The Lodl court noted that the regulations did not require the officer to direct traffic in any given situation or otherwise remove officer discretion
¶ 53. In this case, Burditt argues that, like the officer initiating and continuing the high-speed chase in Cavanaugh, his decision to enter the intersection was not ministerial. Likewise, he contends that his decision to proceed through the red stop signal is comparable to the law enforcement officer deciding whether to direct traffic in Lodl. However, unlike the decisions to initiate and continue a high-speed chase in Cavanaugh and the decision to direct traffic in Lodl,
¶ 54. Burditt may proceed through a red stop signal only if his vehicle gives a visual and an audible signal.
¶ 55. Thus,
¶ 57. Accordingly, we conclude that Burditt is not shielded by public officer immunity because he acted contrary to a ministerial duty. Because Burditt is not shielded by public officer immunity, summary judgment dismissing Burditt, the OFD, and their insurers is not appropriate.
V
¶ 58. In sum, we conclude that Burditt was acting within the scope of his employment when the collision occurred. Accordingly, he is within the class of individuals that may be shielded by public officer immunity.
¶ 59. However, we further conclude that Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity. The “rules of the road” statutes codified at Chapter 346 of the Wisconsin Statutes required Burditt to stop at the red stop signal because his vehicle lacked an audible signal. Because Burditt‘s acts fall within the
By the Court.—The decision of the court of appeals is reversed and the cause is remanded.
Notes
(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought
against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.(3) The exemption granted the operator of an authorized emergency vehicle by sub. (2)(a) applies only when the operator of the
vehicle is giving visual signal by means of at least one flashing, oscillating or rotating red light except that the visual signal given by a police vehicle may be by means of a blue light and a red light which are flashing, oscillating or rotating, except as otherwise provided in sub. (4m). The exemptions granted by sub. (2)(b), (c) and (d) apply only when the operator of the emergency vehicle is giving both such visual signal and also an audible signal by means of a siren or exhaust whistle, except as otherwise provided in sub. (4) or (4m).The requirements set forth in
The OFD and its insurer appear to advance these positions because they additionally contend that Burditt‘s insurer is the primary insurer under
The questions concerning the OFD‘s ultimate liability and whether there are statutory limitations on any damages that may be awarded are outside the scope of our review and we do not address them.
(1)(a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee, except as provided in s. 146.89(4), in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee....
(1b) In this section, “agent” includes a volunteer. In this subsection, “volunteer” means a person who satisfies all of the following:
(a) The person provides services or performs duties for and with the express or implied consent of a volunteer fire company organized under ch. 181 or 213, political corporation, or governmental subdivision or agency thereof. A person satisfies the requirements under this paragraph even if the activities of the person with regard to the services and duties and the details and method by which the services are provided and the duties are performed are left to the discretion of the person.
(b) The person is subject to the right of control of the volunteer company, political corporation, or governmental subdivision or agency described in par. (a).
(c) The person is not paid a fee, salary, or other compensation by any person for the services or duties described in par. (a). In this paragraph, “compensation” does not include the reimbursement of expenses.In examining the statute, the court observed that although “the promulgation of guidelines in general involves a great amount of governmental discretion, § 346.03(6) makes the inclusion of certain parts of the policy promulgation ministerial.” Id. The duty was ministerial because the statute mandated that law enforcement agencies consider “specific factors” that were “absolute, certain and imperative, involving merely the performance of a specific task.” Id. (quoting Kimps v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996)).