Pries v. McMillon

Michael Pries, Plaintiff-Respondent-Cross-Appellant,

v. Raymond McMillon, Defendant-Appellant-Cross-Respondent-

Petitioner, ABC Insurance Company,

Defendant. Court Supreme argument No. 2008AP89. Oral March July Decided 2010 WI (Also 648.) reported 784 N.W.2d

40 defendant-appellant-cross-respondent- For petitioner argued by Gibson, the cause was Charlotte attorney general, assistant whom the briefs was attorney general. Hollen, J.B. Van plaintiff-respondent-cross-appellant For the there by Anthony Skemp, Domnitz, was brief Merrick R. J. Skemp, argu- and Domnitz & S.C., Milwaukee, and oral by ment Merrick R. Domnitz.

An amicus curiae brief was filed Robert L. Jaskul- Habush, ski and Rottier, Habush & S.C.,Milwaukee, and Gleisner, William C. III and the Law William Officesof Gleisner, Milwaukee, on behalf of the Wisconsin Associa- tion for Justice.

¶ 1. CROOKS, N. PATRICK J. This is a review of a published appeals1 affirming decision of the court of judgment Raymond circuit court's defendant, that the (McMillon), governmental McMillon is not entitled to immunity2 employee negligently causing as a state McMillon, v. App Pries 2008 WI 314 Wis. N.W.2d 174. Governmental is also described as "discretion ary immunity" "discretionary immunity" act in our case law. (Pries), plaintiff,

injuries when Michael Pries to disassembling parties at the Wiscon- horse stalls were Park. State Fair sin analysis scope limited. The of our 2. The findings dispute

parties court's the circuit not do negligence negligent caused that his McMillon was dispute Additionally, injury no there is Pries. governmental employee to whom McMillon is a state liability apply immunity his him from to shield could negligent under Rather, issue here is whether acts. exceptions to immu- either of two these circumstances duty exception nity applies: and the ministerial danger" exception. the circuit court Both "known ap- exception appeals that an concluded court of the plied, to the defense was not entitled and that McMillon immunity. governmental court However, each exception. on a different that conclusion based reached Michael B. Brennan court, the Honorable The circuit protected presiding, not that McMillon was concluded immunity by governmental these circumstances under duty exception applied; that ministerial because the danger exception known determined that the court also appeals applicable. contrast, In the court of was governmental not entitled held that McMillon was danger applied, exception known because the whether the it declined to address but exception applicable. was grounds although on different affirm, 3. We appeals. that, are satisfied under the court of We

than presented here, the ministerial the circumstances Specifi- immunity applies. governmental exception Sutula, See, n.3, 31, Wis. 2d e.g., Bicknese v. 2003 WI 260 Hill, Kimps 289; v. 546 N.W.2d Wis. 660 N.W.2d (1996). "governmental the term simplicity, For we use throughout opinion. this immunity" cally, "[a]lways State Fair Park instructions to have holding up piece you taking someone down" created a ministerial that McMillon violated when pieces he failed to ensure that the stall were secured. protected by Hence, McMillon is not a defense of governmental immunity, negligent and is liable for his injury acts that caused to Pries.

I. FACTS AND PROCEDURAL BACKGROUND September through In arrangement an between the Milwaukee House of Corrections and the group approximately Park, Wisconsin State Fair a brought taking inmates were to the Park to in assist down structures. Pries was one of the in inmates group, assigned which was to dismantle horse stalls. employee McMillon, a full-time with the State Fair supervised Park, the inmates. up pieces: 5. The stalls are made of four steel a piece

front, back, and two sides. Each is solid steel with running upper portion. horizontal bars across the Each piece approximately high, measures 10 feet 10 feet weighs wide, mately approxi- and four thick, inches and each pounds. According (Stein), to Ross Stein supervising accompanied correctional officer who piece "usually inmates, each took four individuals to pick up." [it] pieces ... When assembled, are se- pins, cured to each other with and the side and back pieces are secured to a wall with chains. In total, there were 10 to 12 stalls a row where the inmates were working.

¶ 6. Pries dismantled several stalls with two other point, struggled dislodge inmates. At one Pries' crew to piece piece. According a stall that was stuck to another approached Pries, to McMillon the inmates and told you "[L]et do it." McMillon them, show how we me securing responsible chains observed that the they pieces should commented had removed and been according Despite McMil- Pries, to that, have been. "jumped up" stall to the and next lon straddled trying piece free "started inmates were and Immediately jerking up hands. it down" his according "devastating accident," after, there was a falling pieces Stein, in which unchained stall started striking three of inmates, all a "domino effect" on falling piece face, struck him in the Pries, As for them. ground, pinned him under- knocked him to piece people helped free lift the it. several neath After hospital for a Pries, he to a and treated was taken along injuries. foot, with other broken Park's sued and the State Fair Pries McMillon theory negligence.3 filed a of McMillon insurer a summary judgment, to and a motion for motion dismiss asserting employee, he that, as a state was entitled negligent governmental acts committed for scope employment exceptions and that in the of his no immunity applied. that The Milwaukee rule County T. Court, Honorable Francis Circuit the presiding, of McMillon's mo- Wasielewski denied each proceeded trial. The a court tions. case trial, 8. At two other witnesses corroborated description However, the McMillon Pries' accident. causing shaking jumping the on or the stall or denied collapse. working Rather, he that he was about claimed away feet in different of the barn. He testified a area they Pries' his were that crew drew attention because County Department Pries also included the Milwaukee subsequently Health and Human Services as a defendant. Pries voluntarily department party. a the as dismissed "taking holding down chains there no was one up approach the stalls." He claimed that he started to began situation, them to correct the falling and that the stalls away. when he feet was about 30 two-page trial, 9. At Pries introduced a written procedure setting in at effect the time of accident proper disassembling forth method of the horse (Hedden), operations stalls. Patricia Hedden direc- acknowledged Park, tor at the Fair State instructions were State Fair effect document before September Jaeger (Jaeger), 2005. Ken McMillon's su- pervisor, procedure those described instructions as "the putting up taking that we created for. . . down the ... horse stalls." McMillon testified that he received years those instructions before accident, and that procedure leading changed years up had not in the require "[m]ini- to the accident. Those instructions [four] people up explain mum of to set the stalls" and pieces together. Specifically, how to secure the provided procedures document "Take Down" (a) "Always six. states, section Part of that section have up taking holding piece you someone added.) (Emphasis down." The instructions do not men- proceed pieces tion the chains how to if the stall jammed together. become acknowledged

¶ 10. McMillon the written in instructions were effect the time of the at accident and that he was familiar with them.4 He stated he ability vary did have to from the take-down 4 McMillon stated he later first saw instructions accident, in present after the connection with the case. On cross-examination, however, acknowledged deposition he testi mony in which he stated that he was with the familiar instruc they tions and that had been in use at the State Fair Park for years leading up several to the of time the accident. the stalls removing down taking when

procedure to be followed [had] "same procedure confirmed that the time."5 every single procedure in the tear-down if the knew that stalls 11. He also stated that he manner, they in an appropriate were not disassembled if knew that He confirmed he injury. a risk of posed stall pieces, from the back the chains had been removed standing nearby, injure people could fall and stalls on the stalls. He also jumped up if someone particularly had chains in fact been he knew that the confirmed that stall that started the collapse. removed from the piece instructions that the written testified Jaeger the stalls. taking "fundamentals" down contained the and judgment He discretion when said he exercised to do his expected employees down the taking pieces, However, any asked there was so well. when whether as to on or shake unsecured stall legitimate reason stand there no written noted that was Jaeger although pieces, behavior, such it was "more expressly forbidding policy removed, if the chains were then thing, a common sense one should not be stalls."6 jumping conflicting testimony as gave level McMillon taking he down the stalls. After could use when discretion procedure Pries' that he had to follow same telling counsel counsel, time, stated, he his that he every later when asked job performing his tasks judgment was to use his own able six did not procedures section and that take-down everything taking he did when down stalls. Pries' describe noted, successfully counsel, impeached as the circuit court then testimony questions at McMillon's in-court his answers every procedures follow same deposition his that he was to stalls, he did not have the he dismantled the and that time ability procedure to be followed. change deposition, Jaeger following made the pre-trial In a also comments: court, 13. The circuit the Honorable Michael B.

Brennan found that Pries' presiding,7 of the description accident more than was credible and that McMillon's McMillon "was stalls jumping to loosen them before the stalls and . . . toppled injured Pries."8 It also found "McMillon's chains, statement in- regarding the [his statement in Exhibit cluding a statement noticed, which McMillon reiterated he from a distance, had inmates created a hazardous chains], situation by removing to be self-serving Q [Pries' counsel]: And if someone go were to down and separate remove the on all pieces, chains of the that would be a violation, correct? [Jaeger]:

A Correct. Q: you Do know why that would be a violation of the procedure?

A: all the pieces Because stall would fall.

Q: danger taking would for Which create a those down the stalls, correct?

A: Correct. July In Judge replaced Brennan Judge Wasielewski presiding judge

as the on this case. witnesses, court, parties, The appeals circuit of court variety use a pieces, terms to the four describe individual stall "section," "fence," "piece," such as and "wall." We understand interchangeably those terms be used to to refer to the individual pieces. stall court,

Additionally, witnesses, parties, circuit and court appeals appear interchangeably term also use the "stall" fully refer or partially to a assembled horse stall as well as pieces. Generally, individual stall context clarifies the intended record, meaning appears briefs, when "stall" that word in the However, use, and other directly quoting, materials. we unless consistency, fully partially word to refer "stall" or "piece" "pieces" assembled horse stalls and to refer to one or more of individual pieces. stall facts, the circuit court on those

not credible." Based and that negligent concluded that McMillon was Pries' causing factor in was a substantial negligence injuries: training, experience, and McMillon had

Defendant assembly and disassem- knowledge regard the contrast, was plaintiff In this bly of these stalls. Pries'll the McMillon saw in- doing so. Defendant first time having McMillonwas aware problems, defendant mates stuck, he aware chains were were was the the stalls standing undone, inmates were and was aware that negli- was the stall. Defendant McMillon next to stuck stalls, danger, gent jump created the which fell, injured by falling plaintiff and was stalls. stalls by McMillon protected 14. As to whether was liability from for that circuit immunity negligence, Pries his in proof court met burden concluded a ministerial establishing that defendant violated Fair in the written instruc- "by policy" State provided tions: disassembling the stalls ... do guidelines

The for horse employees following directives have not indicate that (or assemble) any the stalls in discretion to disassemble they necessary holding any way for chose. Chains together been Defendant Mc- stalls had disconnected. jumped anyway. stall Defendant McMillon Millon on the disassembly specifically as was aware methods ... not designated policy the State Fair but did follow procedure, He from the written which them. deviated plaintiff injuries. in resulted Pries'O The court also concluded McMil- circuit lon, testimony, and did not deposition based on his own disassembly have discretion to deviate from the instruc- it held Accordingly, exception tions. result, governmental and that as a applied liability. It did not shield McMillon from awarded a total judgment pain to Pries for his medical bills suffering approximately plus $14,000 costs and attor- ney fees.9 appealed appeals, McMillon to the court of

arguing concluding that the circuit court erred duty exception applied. the ministerial Pries cross- appealed portion judgment of the circuit court's danger exception which it concluded that the known did apply. appeals The court of affirmed the circuit court grounds. accepted on different It the circuit court's findings diverged fact, of but from the circuit court's reasoning by concluding danger excep- that the known immunity applied. appeals tion to The court of based knowledge that determination on McMillon's that the dangerous jump stalls were to stand or on when un- chained, his awareness that the chains were undone jumped stall, when he on the that the his awareness standing path pieces inmates they in if were of the stall App McMillon, ¶¶ 167, 25, fell. Pries v. 2008 WI 24— 706, 2dWis. 760 N.W.2d174. Based on that conclu appeals sion, the court of declined to evaluate whether duty exception applied. Id., the ministerial also II. ARGUMENTS, ISSUES, PARTIES'

AND STANDARDOF REVIEW argues court, 17. Before this that the McMillon appeals concluding in court of erred that the known danger The circuit court also concluded known exception apply circumstances, rejecting did not under these theory supervise Pries' that McMillon's failure to train and created present danger" injury. inmates a "known and of inmate It there observed that was no evidence the record that previous dangerous volunteers inmates created situations warranting duly supervise. such a to train and exception applies

danger these circumstances. under correctly appeals responds the court Pries danger exception applies. the known concluded exception if that did not that, even Pries further asserts apply duty exception apply, as an should the ministerial appeals. ground More to affirm the court of alternative urged argument, for Pries this over, counsel at oral initially general rule set forth reaffirm a court to City Holytz Milwaukee, 115 N.W.2d 17 Wis. v. (1962). abrogated by law, case rule, That since negligent by public alleging provided acts that in cases liability governmental immu the rule and officials, nity was exception.10 was issues confront here focus Hence, we duty exception or, alter- either the

whether exception applies natively, danger under the known deprive the defense McMillon of these circumstances to immunity. governmental governmental 19. A defense of employees public the action or focuses on whether upon liability premised is entitled to which inaction immunity. Progressive Co., N. Ins. 2002 WI Lodl v. ¶ an 17, 323, 2d 646 N.W.2d 314. Whether 253 Wis. immunity applies requires exception to us to determine govern scope proper the common law doctrine of of immunity; question of that we mental is a law circuit court or de deference to the review novo without analysis benefitting appeals, of but from the court of Kimps Hill, 1, 8, v. 200 Wis. 2d 546 N.W.2d each court. 10 for Justice submitted an am The Wisconsin Association argument urging this court to icus curiae brief with a similar currently governmental immunity expand exceptions recognized in Wisconsin.

50 (1996). However, we are to the circuit uphold 151 errone they clearly court's factual unless are findings Co., 34, 74, v. Ins. 2009 WI Physicians ous. Phelps ¶ 1, 319 Wis. 2d 768 N.W.2d 615.

III. DISCUSSION immunity The rule of governmental pro 20. ¶ immune vides that state officers and employees liability injuries resulting from for from acts personal duties. scope within the of their official performed law, 200 Wis. 2d at 10. Grounded in common Kimps, governmental immunity doctrine of is based on "public in considerations from an interest policy spring and a protecting public purse preference politi Lodl, cal rather than redress" for actions.11 253 judicial 323, 72 23; Regents, Wis. 2d see also Lister v. Bd. (1976) 282, 299, other (listing Wis. 2d 240 N.W.2d 610 considerations, influencing as the danger such policy 11 from sovereign immunity The is distinct doctrine Bicknese, 713, immunity. 2d 67. Sov governmental Wis. ereign immunity based in article section 27 of the is W Id., in nature. procedural Wisconsin Constitution and is essence, sued provides, That doctrine that the state cannot be A without its consent. Id. successful motion to dismiss personal sovereign immunity grounds deprives the court of i.e., defendant, jurisdiction over the the state. Id. immunity, governmental the doctrine of it treats

As for employees differently employ from state municipal officials and ways. significantly, governmental unlike ees several Most immunity immunity applied employees is the as state where liability exception, opposite is true for rule and is the actors, i.e., liability the rule and is the municipal Co., 22, exception. Progressive v. N. Ins. 2002 WI Lodl Wis. N.W.2d

public and the the threat of a lawsuit officials with might a lawsuit have that the threat of deterrent effect considering public positions). on those subject excep- The rule of is injured parties rights tions, which seek to balance public compensation officers the need for to seek freely. perform employees Lister, their duties apply exceptions at here 2d at 300. The two issue Wis. employee in has no discretion when an officer or duty. particular performance of a employee not be First, a state officer or will liability negligent performance of "shielded from for the duty." purely Kimps, 2d at 10. a 200 Wis. duty is discretion The test Wisconsin for whether ary initially Meyer v. or ministerial was articulated (1955). Carman, 329, 332, 73 That 271 Wis. N.W.2d by provides: test, court, this as described duty only when it is public A officer's is ministerial absolute, imperative, involving merely certain and specific imposes, when the performance of a task law time, prescribes mode and and defines occasion performance certainty nothing re- its with such judgment mains for or discretion. Olson,

Lister, 301; v. 72 Wis. 2d at see also C.L. (1988). 701, 711-12, 422 N.W.2d 614 Stated Wis. differently, regarded is as ministerial when it has been law, performance required

positively imposed and its manner, upon at a time and in a conditions which are specifically designated, perform under the specified being dependent upon the conditions liability premised judgment officer's or discretion. If (or non-performance) negligent performance upon the duty imposed by government law or ministerial of a apply. policy, then will (internal quotation marks Lodl, 323, 2d 26 253 Wis. omitted). and citations danger exception oper Second, the known 23. obviously an hazardous situa in situations where

ates danger compelling is and "the nature of tion exists that the and is of such force and known to the officer public C.L., 143 not to act." officer has no discretion applying case at The seminal Wisconsin Wis. 2d danger exception Anderson, 2d Cords v. 80 Wis. is known (1977). an accident 672 Cords involved 525, 259 N.W.2d during accessing park hiking legally a trail hikers, where deep gorge nighttime, a hazardous into a from fell portion case, In that concluded that the of the trail. we par park manager, trail had known that the was who duty ticularly dangerous dusk, had a ministerial after warning signs superiors place of the trail or advise Elkhorn Area 541-42; at see also Voss v. condition. Id. App Dist., 389, 2d 724 N.W.2d 297 Wis. Sch. WI duty (holding end a class that ministerial danger excep purposes for known exercise arose sight-altering goggles wearing be tion where students falling gan stumbling of hard ob in a room full stacles). overlap exceptions extent, to an The two they require of a the identification as both

inasmuch appeals duty. in this Indeed, the court danger exception ap- that the known case concluded plied to Mc- have been self-evident "it should because removed, had been he saw the chains Millon that once danger duty on the known had a ministerial based he stop disassembly until the chains reattached were jump Pries, and to not the unchained stall." explained above, 25. As a ministerial Wis. purposes duty exception imposed for of the ministerial is policy performance required in time, law manner, and under conditions where the officer does not judgment. contrast, exercise discretion or In the minis- purposes danger exception terial of the known policy, arises not from a written law or an but when obviously dangerous presents situation itself. As this "[C]ircumstances explained may give C.L., in court rise duty, danger to such a certain ... the where nature of the compelling and known to the officer and is of such public force thát the officer has no discretion not to act." 143 Wis. at2d begin analysis

¶ 25. We with our of whether the duty exception applies ministerial under the circum- presented stances here. Pries identifies the take-down policy dictating instructions as a source of law or duty here to disassemble the in stalls a specific responds manner. McMillon that those instruc- duty they tions do not create a ministerial because lack employees direction on how are to use the chains or how they respond are to to the here, i.e., circumstances when pieces together. light parties' posi- are stuck In of the specific question tions, we frame the here as follows: duty Did the instructions establish a ministerial jumped McMillon then violated when he on and shook knowing the stuck stall that "the chains were undone" knowing "[ajlways and of the instructions to have some- holding up piece you taking one are down"?Our provides guidance answering case law some in question. policy or defin- there is a written law 26. Where naturally language

ing duty, of the look to the we param- writing and its whether to evaluate clearly precisely, expressed and so as so eters exercise of discretion. eliminate the official's example, Meyer, in at 271 Wis. 27. For injured from students could recover was whether issue capacities, for officials, in their individual school board safety guardrails in a or other devices to erect failure retaining statutory language assessed wall. We buildings grounds "keep and officials had suitably equipped good repair, in and safe sanitary times," and concluded that that condition at all duty. language As we create a ministerial did not explained: may many need to be consid- great circumstances

[A] so, necessary to do deciding what action is ered judgment exercise of decisions involve the such performance mere of a rather than the discretion prescribed task.

Id. at 331-32. Similarly, Lodi, and

¶ in we looked at a statute 28. policy police department those to determine whether for officers created a ministerial materials manually responding at an inter- when control traffic signals inoperable.12 were where traffic section duty was in whether a ministerial The court Lodi assessed danger exception. of the known the framework present within the ministerial exception is different from Although that as we overlap exceptions, the two exception, there is an between event, in of the known any our assessment Lodi have noted. In markedly have differ from how we danger exception does not duty exception. duty under the ministerial generally assessed the ¶ 323, noted, first, Wis. 2d 27. We the relevant signals statute mandated a series of an whistle directing traffic; however, officer must use when require perform did an statute not officer to manual operation given strip situation, traffic in a nor did it an officer of discretion to determine when to effectuate Id., manual control. 27. language police Likewise, Lodi, in 29. of the

department policy operations procedures on was language merely provided ministerial, where the suggestions manually for an officer to follow when controlling policy The traffic. did not mandate when or whether an officer should undertake such control. (1) significant Moreover, it was to this court that police policy merely "guide chief described the as (2) language line[s]"; other in the manual stated that expected judgment officers are ing problems; to use their in address (3) language policy para of the graph discretionary at issue used the word "should" throughout. Similarly, ¶¶ Id., 29-30. in v. Noffke Bakke, WI 10, 156, 315 Wis. 2d 760 N.W.2d we language "spirit governing responsi assessed in rules" cheerleading bilities for coaches to determine whether imposed duty. those rules a ministerial We concluded impose duty, part that the rules did not such a based in language describing "guidelines," the rules as "a procedures," permis useful reminder of basic and other (rather language sive such as "should" than a manda "shall") tory throughout. Id., "must" or discretionary Indeed, the choice of versus mandatory language significant is a factor determin ing duty. example, the existence of a ministerial For (1973), Dvorak, Chart v. 57 Wis. 2d 203 N.W.2d673 alleged improper placement where the failure was of a highway warning sign, statutory we assessed several

56 Highway Commission provisions as a State as well (commission) language statutory manual. We assessed stating maintain" "shall erect and that the commission necessary" warning signs guide it and "as deems and sign "[n]o be installed unless . . . . shall that . . operation design, of such and use or installation sign. rules of the . . . commission." conforms to the . . added.) (Emphasis understood We at 99 n.5. Id. although language had the commission to mean (i.e., place signs all "as to at as to whether discretion place necessary"), a officials decided once it deems by duty sign, particular a to erect were bound workers sign with in conformance and maintain commission-developed Accordingly, di- those directives: imperative" set "absolute, certain and rectives were duty made to a decision was once forth a ministerial place negligent sign, failure to the defendants' comport would not be directives the relevant immunity. by governmental protected identify a in this case is to Our first task policy imposing a ministerial source of law expressly Although defined we have not McMillon. context to this "law" is sufficient what manner of duty, we have for a ministerial as a source serve variety traditionally materials a wide assessed e.g., See, existed. whether a determine (evaluating employee 713, Bicknese, 2d 260 Wis. (re manual); ¶¶ 28-30 policy Lodl, 253 Wis. Kimps, operations policy); department viewing police job descrip (assessing employee 14-15 200 Wis. 2d at tion). appeals has understood Moreover, the court relatively encompass broad, in this context "law" Meyers spectrum v. of materials. See limitless, but not App 845, 690 19, Wis. 2d Schultz, 2004 WI (concluding instruc- manufacturers' N.W.2d governmental tions that the unit did not create and obligation by that did not establish a contractual entity government" satisfy was not "an act of that could requirements policy pur- the minimal of a law or poses duty exception). of the ministerial Here, 32. the take-down instructions fall within range of documents that could serve as basis for a duty. Jaeger provided ministerial Both Hedden and testimony procedures that State Fair were Park documents and created State Fair Park staff for use Jaeger, Moreover, State Fair Park work. Hedden, acknowledged procedures McMillon all that set required by steps employees forth the State Fair Park safely.Accordingly, take down the stalls we are satisfied procedures that the set of is a source of "law" for purposes establishing duty. a ministerial inquiry

¶ 33. We now return to the central here: duty Did the instructions establish a ministerial that jumped McMillon then violated when he on and shook knowing the stuck stall that "the chains were undone" knowing "[a]lways of the instructions to have some- holding up piece you taking one are down"?We are satisfied that the instructions created such a minis- duty terial and that McMillon violated based following on the reasons.13 strongly disagree We that, by with the dissent's assertions holding here, that a present depart we from precedent and abandon our approach" courts' "time-tested assessing the See Justice duty exception. limited ministerial Bradley's dissent, thing. Rather, do no such ¶¶ We we holding by reach our applying the law developed as this court has fifty it over the years last to the facts and circumstances language in the writ- foremost, the First and procedure instructions section for the take-down ten 6(a) specificity requisite and definition of the has performance its with such and occasion for "time, mode nothing judgment certainty discre- remains for above, noted Lister, 2d at 301. As we 72 Wis. tion." taking pieces require down stall workers instructions piece you holding up "[ajlways have someone added.) may (Emphasis taking That instruction down." "always"imparts significant. The word it is brief, be but discretionary mandatory requirement, words unlike permit "Always" "may" does not or "should." such as up the hold to have workers as to whether discretion requires being to piece workers Rather, it taken down. during falling pieces from are secured that the ensure just process. the words, as In other take-down the language highway manual in Chart commission the high- place possibility could that workers the foreclosed way signs rules, to the not conform in a location that did definitively attempting proscribe to here the instructions being pieces pieces those of a stall without take down during process. secured testimony supports con- our Furthermore, "[ajlways requirement to the take-down clusion that taking you piece holding up the have someone for its "time, mode and occasion down" defines nothing certainty performance remains such judgment testified that McMillon or discretion." for provided steps in the take- to be taken instructions exercise, we are on that record. Based presented in this case and duty exists that a narrow ministerial satisfied here.. concerns dispute the dissent's unfounded Accordingly, we narrow any degree holding expands here that our —the —to and local immunity that state duty exception to century. half subject to the last governments have been process, required down that he was to follow those "every single instructions time" he took down stalls. Jaeger although Moreover, that, testified some discretion permitted employees was to State Fair Park to do their jobs, procedure it was a violation of State Fair Park leave the stall sections unsecured. distinguishable

¶ 36. Those circumstances are police Lodi, from the facts in where the chief testified to importance permitting the performing officers discretion jobs, policy

their and where the had discre tionary language throughout. Lodl, such as "should" 323, 29; 253 Wis. 2d see also Noffke, Wis. 2d (noting permissive language ¶ 46 and use of the spirit suggested word "should" in rules that the rules at discretion). permitted issue Here, the circuit court following findings made the of fact: According to defendant deposition, McMillon's same dismantling process time; is followed each employees ability do not have the change process; only acceptable way dislodge the walls is to use a hammer jump walls; rather than top the stalls put up have to be and taken down in a certain manner or there danger is a of being someone hurt.

(Citations omitted). findings to the record Those are clearly agree erroneous, and we with the circuit findings compel court that those the conclusion that proper procedures McMillon knew of the take-down pursuant to the instructions, and that he understood he required every was to follow those instructions time he disassembled the stalls. mandatory language In addition to the to

"[a]lways holding up piece you have someone the that taking understanding are down" and McMillon's that he "every was to follow the instructions time" he dis- the and the stalls, the nature of work the mantled support performed our conclusion it is context which 6(a) a creates ministerial that instruction section According employees. to instruction Fair Park for State 1(a), people required up to at four set section least testimony trial that Moreover, at established the stalls. (10 feet), weighed large by piece feet each steel was required people pounds, approximately and four process differently, the involves lift it. Put multiple take-down of least some whom workers and volunteers —at proce- experience equipment or with the do not have moving heavy, equip- large, awkward dures involved— annually Fair Park events. In ment used at least light at State imparting presence a that, the of instructions of necessity. nondiscretionary procedures a As is the set "[Disassembling stalls a noted, circuit court process horse is with set can, should, and be controlled that prevent preserve equipment guidelines as and so given performing injury, as to are not discretion workers support disassembly." the conclu- circumstances Those 6(a) discretion- the instruction section is not sion that ary purely ministerial. but purely en- Moreover, during disassembly compasses proper the use chains appeals process. observed, it is undis- the As court separate up puted are made of four stalls pieces: back, sides front, sides, and a with the and two prevent pieces pieces those each chained to a back wall attaching falling pins from when removed the workers proper pieces together. undisputed It is also disassembling is to first remove the stalls method of pins lifting piece, by removing then front removing pins again each one at a time side piece up, removing while hold chains workers by removing finally chain, the with the and the back

61 to from holding up prevent workers it it again falling. both and Additionally, McMillon testi- Jaeger provided the in mony explaining important chains' role the stall Further, process. his disassembly Jaeger stated depo- sition that from stall other than removing pieces chains the the are pieces moving workers is a violation of procedure. Accordingly, we understand the precaution side securing the and back with chains is pieces logically within the encompassed literal instruction "[a]lways have someone are holding up piece you taking Thus, down." duty ministerial here requires employ- ees to ensure that the pieces they taking are down are secured.14 39. Given that ministerial to ensure that duty

the stall were from pieces secure and McMillon's falling awareness of that we duty, also are satisfied that McMillon violated that here. duty this record Although 6(a) part Neither nor the remainder of the instructions designate refer to the chains or their proper That use. omission analysis would problematic be if our of the duty ministerial exception required strictly language us to look at the of the policy. Our assessment is not so limited. Review whether a policy duty contains a ministerial focuses on text of policy relevant or rule and nature. its However context which policy is used and the circumstances of the case are support relevant considerations negate that can or a conclusion policy language duty. Compare, e.g., creates a ministerial Bicknese, Wis. 2d (looking mandatory 27-30 ¶¶ language employee's well policy acknowledgement as and duties) Lodl, understanding that he subject was (looking Wis. 2d 24-34 to permissive language ¶¶ testimony stating policies only guidelines were to deter existed). mine Here, that no ministerial are we satisfied considerations, that all of those taken together, establish a pieces to ensure by that stall are secured chains holding up piece you taking "someone down." it to discern the inmates were makes difficult where happening positioned McMil- and else was when what jumped stalls, testified that he was on the Pries lon standing piece "the end of' a when McMillon near falling given jumped that stall Moreover, on the stalls. they pieces the indicates that hit all three of inmates trajectory standing unse- within the the were well testimony pieces. came from The most relevant cured McMillon, fell, that the stalls he saw who stated before that "no one was that the chains were removed and holding up testimony sections." That came the stall the that he was near the context McMillon'sdenial not that circuit fell, a denial the stalls when sections appears found incredible. It is worth court to have to be noting, denial, it some however, that was McMillon's not specific observations, other that the court found of his incredible. clearly supports Furthermore, the record that the chains

conclusion that McMillon was aware piece. testimony In the back were undone on credible, Pries circuit court found to be testified off—and should McMillon stated that chains were jumping have removed—before the stall. not been Accordingly, pieces those McMillon was were aware standing nearby, unsecured, that the inmates were injury they pieces cause if fell. that the unsecured could required, steps before he not take the Because did piece, dislodge attempting stall to ensure stuck any pieces properly secured, he unsecured were comport established failed to with ministerial 6(a) Accordingly, the take-down instructions. section duty applies governmental him under the circum- as a defense for available presented stances here.

¶ 41. Because we conclude that the ministerial duty exception applies necessary here, it is not for us to danger exception determine whether the known also applies. Moreover, we decline the invitation extended Holytz general Pries' counsel to revisit and resurrect its question fully argued by rule. That was not briefed or parties. unnecessary Moreover, it is for us to undertake analysis given such an and case law review our conclu duty exception governmental sion that the ministerial to immunity applies Stoughton here. Trailers, See Inc. v. LIRC, 2007 105, n.3, WI 5 & 2d 514, Wis. (explaining N.W.2d 477 that we decide cases on the grounds). narrowest

IV.CONCLUSION although grounds affirm, We on different appeals. than the court of We are that, satisfied under presented duty circumstances here, the ministerial exception governmental immunity applies. Specifi- to cally, State "[a]lways Fair Park instructions to have holding up piece you someone taking down" duty created a ministerial that McMillon violated when pieces he failed to ensure that the stall were secured. protected by Hence, McMillon is not a defense of governmental immunity, negligent and is liable for his injury acts that caused to Pries.

By appeals Court.—The decision of the court of is affirmed.

¶ 43. {concur- SHIRLEY S. ABRAHAMSON, C.J. ring). agree majority opinion Raymond I with the liability. McMillon Although go is not immune from I along majority's with separately analysis, ministerial I write because I conclude that known Appeals danger analysis upon which the Court of re- provides simpler, a more me, this a solved case resolving persuasive this case.1 means of danger reasoning prece- our 44. The known danger of the that where "the nature dent establishes compelling to the and is of such force and known officer public act," a officer has no discretion arises.2 explaining case the known dan 45. The seminal ger Anderson, 525, 259 Cords v. 80 Wis. 2d rationale is (1977), concluded that which the court N.W.2d drop-offs park and location within a foot trail's obvious sufficiently dangerous edge high bluff were manager's give park "absolute, certain, and rise to the warning signs, duty" place imperative trail, to close the notify adequate pro superiors, his ensure otherwise public invited tection of the who had been to use park. The court held that 80 Wis. 2d at 541.3 duty, manager liable for of that was breach absolute

1 court, majority, The like the concluded that circuit analysis applied. duty" "ministerial 2 (1988). Olson, 701, 715, 422 v. 143 Wis. 2d N.W.2d 614 C.L. 3 488, County, 118 2d See Domino v. Walworth Wis. also 1984) (Ct. (holding 490-91, the known App. 347 917 N.W.2d analysis the sherriffs dis danger applied from Cords where night tree road at but failed of a downed across a patcher knew response the first was reassign squad car to scene after Dist., diverted); Harrison v. Area Sch. 2006 ex rel. Elkhorn Voss 19-22, 389, 234, 297 724 420 App Wis. N.W.2d WI ¶¶ exception applies" (holding present danger known and that "the goggles" "fatal vision where a teacher had students wear filled with of balance in a classroom distort vision and sense "it injury; of have metal desks created an immediate risk should activity teacher was hazardous been self-evident to the it."). only put was to an end to option and the saying "There comes a time when 'the buck stops,'" and set aside immunity where the manager "knew the terrain . . . was dangerous at particularly night; . . . was in a position as park manager to do something about it; . . . [and] failed to do anything about it." 80 Wis. 2d at 541.4 46. The Cords analysis is fully in the applicable

present case. The of pieces solid steel horse stalls weigh 200 pounds, are typically handled no less than four workers, and need to be constantly supported during disassembly. here is Disassembly an "accident waiting rise happen"5 gives to an absolute duty to take steps prevent steel horse stall from pieces falling. McMillon knew the unchained steel stall pieces were dangerous; he was in a position supervisor as to do something about and he danger; failed to do any- thing worse, about he jumped onto the stalls.6 In it — availability The possible ways of several to fulfill an duty arising absolute danger from a known does bring scope defendant within the governmental immunity. See Domino v. Walworth County, 488, 491, 118 Wis. 2d 347 N.W.2d (Ct. 1984) App. ("[S]imply allowing for exercise discretion does bring not suffice to the actions under the blanket of provided by 893.80(4), Stats., sec. when allegations facts or the reveal a so clear and absolute that it falls concept within the duty."). a ministerial

For a danger discussion of the known exception, seealso Lodl Co., Progressive v. 32-48, 253 N. Ins. 2002 WI Wis. 2d ¶¶ 314; 646 N.W.2d id. at (Bradley,J., 53-60 dissenting). ¶¶ Voss, See 297 Wis. 2d at 398. 6 The circuit court found that McMillon "was aware the undone,... chains were was aware that standing inmates were stall," next to the stuck and "knew that if the holding chains those back removed, stalls to the wall they had been could fall." Pries v. McMillon, 167, 2008 App 23-24, 706, WI 314 Wis. 2d ¶¶ 760 N.W.2d174.

66 "absolute, duty a that was view, he breached thereby my of following analysis certain, and imperative" defense an Accordingly, cases. danger known him. is not available I reasons, concur. foregoing For the 47.

¶ BRADLEY, (dissenting). J. WALSH 48. ANN officers of liability public expands decision Today's a more than established the confines beyond far expansion result of this The half-century precedent. Fair Park State only the Wisconsin expose could boards, towns, cities, school villages, but also liability, aat treasuries government and local and other state it. entities can least afford these time when narrow reaffirmed the term, we Just last "[t]he recognized of ministerial definition ministerial remained substan- has definition 1955[.]" Uman- it adopted the same since was tially 622, 2d 769 Fox, 82, 11, 319 Wis. WI v. 2009 sky Carman, 329, Wis. 73 v. 271 (citing Meyer 1 N.W.2d (1955)). by law duty imposed A ministerial 514 N.W.2d v. Lister duty." "absolute, imperative certain is an 301, 240 N.W.2d 282, 2d 72 Wis. Regents, Board of (1976). task" specific "the performance It involves and occasion for time, mode "defines the the law when re- nothing certainty such performance its Id. or discretion." for judgment mains officer or public To determine whether looked always have liable, courts can be held employee statute, regula of the relevant language to the written very if it fits within to see tion, policy, procedure See, immunity. duty exception limited 27-28, Sutula, WI v. ¶¶ Bicknese e.g., N. Ins. v. 289; Progressive Lodl 660 N.W.2d Wis. Co., ¶¶ 27-28, WI 2dWis. 646 N.W.2d Today, majority however, 314. abandons this time- approach. tested away majority

¶ 51. footnote, Tucked in a explains untethering analysis it is its from the language procedure. Majority of the relevant written op., analyzes ¶ 38 n.14. Instead it and relies on the opinions safely extraneous of coworkers about how to perform job. problem relying

¶ opinions 52. The on the coworkers to inform the nature of the ministerial (1) majority essentially is two-fold: rewrites the expanding beyond text, the duties those found (2) procedure; analysis written it conflates the negligence duty immunity with the ministerial defense. writing beyond Both the in of ministerial duties those appear negligence in the text and the conflation of governmental with immunity will result in diminished exposure gov-

and increased of all levels of costly ernment to lawsuits. way I conclude that there is another to re- examining

solve this In case. the text of the take-down procedure, procedure I determine that the suffers from a particularity critical lack of time, as to mode and occa- performance. procedure sion The written is not sufficiently particularized to remove McMillon's discre- tion as he faced the dilemma of what to do when the together. Accordingly, respectfully stalls became stuck I dissent.

I majority begins by examining 54. The the lan- guage parameters procedure. of the take-down Majority op., procedure provides: 26. The written you holding up piece "Always have someone focusing language taking Initially of that down."1 majority the word instruction, determines mandatory requirement. "always" imparts Id., majority recognizes apparently the ¶ that The 55. insufficiently particularized procedure to im- is written language duty. departs pose from the a ministerial It testimony of State and examines instead the instruction understanding employees of their about their Fair Park Although ¶ the written take-down duties. Id. 38 & n.14. procedure chains or discuss their does not mention majority "purely proper the use, the concludes duty encompasses proper chains." use of Id., majority Ultimately, appears to conclude the says. procedure mean what it does not

that the written procedure provides Although that McMillon the written "[ajlways holding up piece that the should have someone majority taking [he is] that actu- down," the determines holding up always ally,McMillonneed not have someone according taking piece Rather, to the down. the majority, that he is securing the McMillon could choose between securing up by having the or someone hold them stalls proce the written take-down Section 6 sets forth entire provides dure. It in full: you taking Always holding up piece are someone the

a. have down. pins top piece then lift top of the stall

b. Take out the piece pins. off the bottom the stall horizontally with 15 to a stack. c. The sides can be stacked storage vertically, possible put racks. if d. Fronts must be stored storage pins picked up put into e. Make sure all of the (These lost) box. can not be long "ensure[s] stalls with chains—as as McMillon pieces [are] falling." Id., the stall secure from n.14.

A By untethering analysis ¶ 57. its from the lan- guage procedure, majority departs written approach. Although from our established courts have employee testimony reviewed ployee to confirm that an em- responsible complying text of a specific regulation, procedure, they statute, or have not testimony change meaning text, used as the majority does here.

¶ 58. To determine whether there is ministerial duty, always language we have examined the of the applicable regulation, procedure. e.g., statute, See, (examining Bicknese, ¶¶ 260 Wis. 2d 27-28 § University "clear mandate" of 7.04 of of Wisconsin Faculty Procedures, Policies and forth which set the procedure clocks); calculating Lodl, tenure (examining ¶¶ 323, Wis. 2d 27-28 the text of Wis. Stat. § Department's 346.40 and the Town of Pewaukee Police Operations Policy). past, employee

¶ 59. In the we have referenced testimony employee required to confirm an was regulation, procedure. statute, adhere to the text of a e.g., (discussing See, Bicknese, 260 Wis. 2d an employee's job admission that one of his duties was to § according calculate tenure clock to the terms of 7.04 University Faculty the of of Wisconsin Policies and (conclud Procedures); Lodl, ¶¶ 253 Wis. 2d 29-30 ing Operations Policy guideline the set forth a duty, relying part rather than a ministerial in on the drafter's statement he could not sit in his office and way many jobs). dictate the best for officers to their do employee However, have not used testi- we majority mony expand as the does here—to alter and meaning adding text, duties that the of the new cannot procedure. Compare in the text of the the be found majority by pieces identified the that the stall —"ensure falling" proce- [are] from the text the secure of —with provides dure, which that McMillon must "have some- holding up taking [he is] piece the down." one majority employee

¶ 61. Because the uses testi- mony expand meaning text, to alter and of the by majority is much ministerial identified any duty broader than identified the text of analysis, procedure. majority's Under the it take-down appear a ministerial would that McMillon has violated duty any regardless fall, time that the stalls of whether adhering text of the take-down he was to the written procedure. majority's is an 62. The result of the innovation liability. By relying

expansion on sources extraneous scope law, it to the text of the relevant broadens may imposed duties that be considered ministerial duties result, As a more duties will be considered law. exposure increasing nature, of state municipal treasuries.

B testimony by focusing Further, on the major- employees case, and the circumstances of immunity. ity negligence conflates the standards for inquiries. Negligence immunity separate "The immunity negligence, focusing instead defense assumes (or inaction) upon municipal on whether the action immunity liability premised is entitled to under which 71 judicially- statute, so, and if whether one of the exceptions applies." Lodl, created 253 ¶ 2d 17. Wis. duty ordinary "[0]ne care 64. has a to exercise Hoida, v. M&I Midstate

under the circumstances." Inc. Bank, ¶WI 69, 30, 291 Wis. 717 N.W.2d17. way person If in a "that a reasonable a acts or fails act person recognize creating as an unreasonable risk would injury damage," person exercising "is not of ordinaiy circumstances,

care under the and is therefore negligent." Id. duty ordinary care, 65. Unlike the a ministe imposed "absolute,

rial law is an certain and imperative" duty. Lister, 2d at 301. It 72 Wis. involves performance specific "the a task" when law perfor time, "defines the and occasion for its mode certainty nothing mance with such remains for judgment jury or discretion." Id. "Just because a can negligent find that certain conduct was does not trans duty." form that conduct a into breach of ministerial (1996). Kimps Hill, 1, 11, v. 200 Wis. 2d N.W.2d employee's testimony A State Fair Park safely perform job may about how to determining his be relevant negligent

whether McMillon was for fail- ing ordinary testimony to use care. Such could inform the factfinder's determination of whether reasonable person recognize that would McMillon's actions or injury. inactions an would create unreasonable risk of testimony However, the same is not relevant identifying duty. opinion a ministerial An of an employee safely perform job about how to his does not imperative." "absolute, create a that is certain and By conflating negligence ¶ 68. the standards for immunity, majority opin- I am concerned that the ion could be understood to that an hold officer who fails ordinary duty. to exercise care has violated a ministerial departure Such a from established law would broaden duty exception encompass the narrow ministerial all involving negligence public Again, cases expansion officers. this exception

of the would result in increased liability public exposure for officers and increased for public treasuries.

II Contrary majority, ¶ 69. to the when I examine procedure here, take-down I conclude that it does impose duty. excep a ministerial fitTo within the imposing duty mandatory tion, the law a must be both highly particularized. "[F]or a to be ministe public only rial, a officer act, must be not bound to but very particular way, also bound law to act in a leaving nothing judgment or discretion." Yao v. Chapman, App ¶ 200, 29, 2005 WI 287 Wis. 2d N.W.2d272. applied term, 70. Just last we this in standard involving Camp

case a death at Randall stadium. See Umansky, plaintiff case, 319 Wis. 2d 622. In that fell working unguarded platform to his death while on an eight ground. Umansky's located gued feet above estate ar- required that the director of facilities was under the Wisconsin Administrative Code to adhere to an regulation, railings plat- OSHA which mandated on all ground. forms located more than four feet above regulation Umansky "highly spe- 71. The was "Every open-sided Id., cific." 18. It stated: floor or platform adjacent ground 4 feet or more above floor or (or guarded by railing level shall be a standard (e)(3) equivalent specified paragraph as open of this sec- tion) except on all sides where there is entrance to Id., 6. It further . . ." or fixed ladder. stairway, ramp, railing: for a standard specifications

provided rail, intermediate top railing shall consist A standard height of 42 a vertical rail, shall have posts, and and floor, top of rail to upper from surface inches nominal top rail shall be runway, ramp level. The or platform, length railing. of the throughout smooth-surfaced halfway approximately rail shall be The intermediate floor, runway, platform, or and the top rail between overhang the rails shall not ramp. The ends of the overhang does except where such posts terminal hazard. projection a constitute Id., 16 n.8.2 ¶ and the court adopted agreed 72. We

¶ have a duty railing "[t]he conclusion that appeals' law, imposed by is requirements meeting regulation's and it absolute, requires imperative, certain and it is upon specified manner and in a specified performance the exercise of upon dependent that are not conditions Id., 3-4, 17. As the court of or discretion." judgment ¶¶ mandatory specific is explained, "[i]t had appeals impose has chosen to government nature of the will be carried expectation that triggers if it liability imposition and the concomitant out 2 equiva specifications for an regulation provided also The sizes, arrangements railing types, "Other lent rail: following they meet the acceptable provided are construction (a) floor, height above top A rail at conditions: smooth-surfaced (b) nominal; A 42 ramp level of inches platform, runway, or of 200 requirement minimum at least the strength to withstand (c) top rail and pressure; Protection between top rail pounds treads, at least floor, equivalent runway, ramp, or stair platform, Umansky v. rail...." by a standard intermediate to that offered 622, Fox, 9, 769 N.W.2d 16 n. 319 Wis. 2009 WI Umansky App Co., not." v.ABC Ins. 101, 35, WI 2dWis. 756 N.W.2d601. By regu- contrast, Yao, 2d 445, Wis. mandatory language lation that contained nevertheless requisite particularity impose lacked the a ministerial duty. In case, a researcher stored his cells in a nitrogen university laboratory. tank at a The cells were destroyed professor permitted when a students to access providing training the tank without Id., instruction. ¶ 23. Yao introduced evidence that one of the students replaced improperly, allowing liquid nitrogen the lid evaporate. Id.

¶ 74. The Wisconsin Administrative Code man- laboratory employers dates that ensure that their em- ployees properly trained to work with chemical cryogenics liquid nitrogen. regu- such as Id., 30. The employers provide employees lation states that "shall training they with information and to ensure that are apprised present of the hazards of chemicals in their "[s]uch provided area," work information shall be at employee's assignment[.]" the time of the initial Id., ¶ 31. Although regulation

¶ 75. the contained manda- tory language, "suffer[ed] the court concluded it particularity from a critical lack of time, as to mode and performance." [] ¶ occasion for Id., 31. The court ex- plained: say nothing "The standards about access to or liquid nitrogen control of a tank, how or how often to liquid nitrogen determine whether the sufficient, level is replenish liquid nitrogen how to the when it becomes necessary properly open so, to do or how to and refasten the Id., tank lid." 32. Umansky

¶ 76. and Yao make clear that manda- tory language regulation enough impose in a is not to a duty. mandatory language, In addition to sufficiently particularized regulation so be

the must nothing discretion about left to officer's that there duty. perform where, when, and to how although procedure Here, con- take-down 77. procedure "always,"I conclude tains word particularity time, as to a lack of from critical suffers proce- performance. The written mode and occasion particularizéd sufficiently to remove dure is impose duty purely a that is discretion and McMillon's many It describe workers are ministerial. necessary does not how piece. up It does not describe to hold a stall positioned. be when and where those workers should particularity provides how it more about to Rather, prevent properly loss that the stalls are stored ensure injury damage prevent than it about how when or does dismantling the stalls. procedure Critically, does not mention prescribe chains, much less their use such

the use particularity nothing judg- or is left to discretion many safely are need secure stall? ment. How chains only top times, after the chains be used at all or Should pins been Should the chains remain have removed? lifting particular attached while the workers stall piece pins, must be off the bottom the chains removed time? before that Finally, procedure specify does not what employee if the stuck to-

an should do stalls become gether, procedure Rather, as occurred in this case. contemplate the stalls not seem to could does stuck. become gaps procedure,

¶ Because of the in the an 80. employee necessarily in how best to must use discretion result, As a I that the dismantle stalls. conclude procedure a is written does delineate merely imperative, involving "absolute, certain and 76 of a task performance specific when the law imposes, prescribes time, and defines the mode and occasion for its with such performance certainty that re- nothing mains for judgment or discretion."

Ill 81. In Scott v. Savers & Property Insur Casualty ¶ Co., ance we acknowledged governmental immunity could produce results, harsh especially negli when the gence 60, 37, officer "was so clear." public 2003 WI ¶ 127, ’Yet," 262 Wis. 2d 663 concluded, N.W.2d 715. we "the doctrine of governmental immunity plays signifi in cant role our in legal system. liability this Imposing case would therefore not serve the policy underlying doctrine of Id. immunity."3 82. Over the have years, we adhered to a con-

¶ sistent In approach governmental immunity. Uman- for sky, example, injured plaintiff argued we "should repudiate the current formulation of public officer immunity."4 rejected We and de- argument clined Id., to alter 14 longstanding law. n.6. ¶ Scott, Similarly, we declined to alter our approach officer 262 municipal immunity. Wis. 127, Writing concurrence, 34-37. the Chief Jus- ¶¶ tice explained "construing governmental [would] anew have a far-reaching impact, and this court only should undertake such a task with the benefit of Id., full information." (Abrahamson, C.J., 59 concur- ring). Unfortunately, majority's construes approach

3 public policies underlying immunity One of the protect ing public purse taxpayers against liability money Co., Progressive See Lodl v. N. Ins. damages. 71, 23, 2002 WI 323, 253 Wis. 2d 646 N.W.2d Umansky, Response Umansky Brief of Harold at (available Wis. 2d Library). at the Law Wisconsin acknowledging immunity it is anew without even respectfully doing above, I forth For the reasons set so. dissent. I state Justices am authorized 84. and MICHAEL DRAKE ROGGENSACK

PATIENCE join this dissent. J. GABLEMAN (dissenting). GABLEMAN, J. MICHAEL J. 85. ably Bradley's demonstrates that Justice dissent existing exception apply our does not under separately, join however, it I I in full. write case law. troublingly, is, law untethered from because our case 893.80(4) (2007-08).1 § governing statute, Stat. Wis. its in the has roots 86. Governmental abrogated prior rule of This court common law. immunity Holytz City Milwaukee, 17 in Wis. v. (1962). regard in made We clear N.W.2d liability municipalities, going forward, "the rule is —the excep exception immunity." Id. at 39. outlined an We immunity, government stating however, tion to body "in the its liable for actions done exercise of is not quasi-judicial legislative judicial quasi-legislative or or or legislature disagreed this Id. at If the functions." approach, is, course, free to noted, we "it of reinstate new immunity." Id. year following Holytz, decision in In the our comprehensive legislature into this area waded essentially

way It created a new statute for the first time. Holytz. codifying language The current version of our provides follows: the statute as may against any volunteer fire brought No be suit corporation, organized political ch. company under any governmental agency or thereof for the subdivision to the Statutes are to subsequent All references Wisconsin otherwise indicated. the 2007-08 version unless officers, officials, agents intentional torts its may any brought against employees nor suit be such agency or or volunteer fire corporation, subdivision officers, officials, company against agents or its or legislative, employees for acts done in the exercise of judicial quasi-judicial or quasi-legislative, functions. 893.80(4). § Wis. Stat. adoption The context of this and 88. statute's its liability

plain language suggest rule, should be the generally only under that suits barred two against First, circumstances.2 the statute bars suits governmental listed bodies "for the intentional torts of agents employees." [their] officers, officials, Second, or listed'governmental against it bars suits bodies and legislative, employees "for acts done in the exercise of quasi-legislative, judicial quasi-judicial or functions." Reading might statute, this one surmise that, where the claim did not involve an intentional allegedly tort, our center on cases would whether legislative, quasi-legislative, judicial, harmful acts were reality. quasi-judicial Yet, or in nature. this is not the years following legislature's proc In the interpreted 1963, lamation in this court has this subsec government tion to mean that the listed officials are immunity any entitled to for acts that involve "the judgment." Progressive exercise of discretion and Lodl v. Co., ¶ 71, 323, N. Ins. 2002 WI 253 Wis. say granted "generally" legislature 2 I because the has immu See, nity specific e.g., in other factual scenarios. Wis. Stat. 301.46(7) any § (granting good "for faith act or omis regarding concerning release of information" sex offend sion 30.2026(5) section); (granting § ers under that Wis. Stat. immu damage injury and that nity "for acts or omissions that cause construction, maintenance, any or use of artificial relate to the 30.2026(1)). by § barrier" authorized to the letter Now, adhering instead of N.W.2d 314. exceptions specifies the statute —which spirit law have a series common rule of we created liability, This 21-24. majority op., See immunity. exceptions ¶¶ doctrines in this has its current recognized court are the are, effect, policy judgments; they public area to balance attempt competing of the court's product Lodl, We Wis. 2d 23-24. societal interests. ¶¶ the text of with the notion that dispensed seem have be here is guide. Something the statute should our amiss.3 Justice Prosser issued years 91. Seven ago, its in this jurisprudence court to reexamine

call this Co., & Cas. Ins. area.4 See v. Savers Prop. Scott 3 of The for the District United States District Court Western Baumgardt v. Sch. Wausau recognized this Wisconsin also (WD. 2007). of Educ., Dist. Bd. Judge F. Supp. 475 2d 800 Wis. Crabb observed: 893.40(4)] immunity granted [Wis. § its under Stat. On face Milwaukee, City 26, 39, Holytz appears v. 17 Wis. 115 limited. 2d of (1962) (first setting test now codified in Wis. Stat. N.W.2d618 forth 893.80(4) noting liability exception § "the rule immu and is is —the nity"). However, statutory expansive in a curious and exercise of 893.80(4) construction, interpreted § have the Wisconsin courts "any immunity government mean that officials act are entitled judgment." and Lodl v. involves the exercise discretion Co., 71,

Progressive 21, 2d Northern Insurance 2002 WI 253 Wis. (2002). 323, Currently, 646 there are narrow N.W.2d 314 four categories non-discretionary immunity not acts to which does "(1) (2) law, apply: imposed by duties duties to address (3) discretion, danger, involving professional known actions (4) malicious, willful, and intentional." Scott v. actions that are Co., 60, 16, Casualty Property 2003 WI 262 Savers Insurance (2003). Thus, 127, appears immunity Wis. 2d 715 it 663 N.W.2d exception. now the than the rule Wisconsin rather added). Id. at (emphasis 809 approach in a This to reexamine our was echoed call joined by

concurrence Bablitch and Justice written Justice 127, 663 N.W.2d 715 2d 60, 75-82, 262 Wis. WI ¶¶ con- My this call. join I now (Prosser, J., dissenting).5 The has legislature law. in the rule of is rooted cern governmental the issue of to address chosen our obliga- has spoken, the legislature When directly. in the as expressed its intentions to follow tion is law has strayed current case Statutes. Our Wisconsin duty. this constitutional from Justice I short, agree In though here is warranted liability Bradley's dissent that our law, I not satisfied case am existing our under 893.80(4), my and urge § faithfully interpret cases to more jurisprudence reconsider our colleagues mandate. the legislative it with closely align Co., 60, 2003 WI Prop. & Cas. Ins. v. Savers Crooks. See Scott (Bablitch, J., concur 127, 61-64, 2d 663 N.W.2d 715 262 Wis. ¶¶ ring). Ranch, Shelby, L.L.C. v. Town Creek also Willow See 59-172, 611 N.W.2d 235 Wis.

2000 WI ¶¶ Crooks). Bablitch and (Prosser, J., dissenting) (joined by Justices

Case Details

Case Name: Pries v. McMillon

Court Name: Wisconsin Supreme Court

Date Published: Jul 2, 2010

Citation: 784 N.W.2d 648

Docket Number: 2008AP89

Court Abbreviation: Wis.