Umansky v. ABC Insurance

Individually Harold Umansky, Representative as Personal of the Estate of Umansky Umansky, Richard and Thelma Plaintiffs-Appellants-Cross-Respondents,

v. ABC Insurance Company, Defendant,

Barry Fox, Defendant-Respondent-Cross-Appellant-Petitioner.

Supreme Court No. argument 4, 2007AP385. Oral February July

Decided 2009 WI 82 (Also 1.) reported in 769 N.W.2d respondent-cross-appellant-petitioner For the Glinski, attorney J. assistant John argued by cause was Hollen, J.B. Van on the briefs was with whom general, attorney general.

For the plaintiffs-appellants there cross-appellants Barber, was a brief filed J. Michael by M. Riley, Timothy Madison, and Axley Brynelson, oral argument LLP J. by Michael Riley.

An amicus curiae brief was filed James by Olson Cates, and Lawton & SC, Madison, on behalf of the Wisconsin Association for Justice. 1. N. PATRICK CROOKS, J. This is a a review of court of

published decision1 that appeals reversed a grant of summary judgment for the petitioner remanded the case to the circuit court. This wrongful (the death case concerns a claim by cross-respondents Umanskys) (Fox), Fox Barry the director of facili ties for Randall Camp Stadium, negligently caused the death of Richard Umansky (Umansky) by failing enforce a specific safety regulation Randall. Camp Umansky was television ABC, cameraman for Inc. He fell approximately eight feet to his death from a four- foot eight-foot platform supplied by University. There was no railing Umansky's at the platform time. Wisconsin legislature has adopted federal safety regulations and made them for all applicable public buildings, and such regulations require that railings be installed on platforms like the one from which Umansky fell. 2. As a state employee, however, Fox enjoys

immunity from liability unless, under the circum stances, at least one of the limited to immu exceptions nity We must applies. address whether obligation Fox's pursuant statute to act to ensure that Randall Camp Stadium complies with the Occupational Safety (OSHA) Health Administration regulation requiring Co., Umansky v. ABC Ins. App 2008 WI 313 Wis. 2d 445, 756 N.W.2d 601. on certain creates ministerial

railing types platforms to the standard rule of state employee duty exception question the narrow we address is immunity. Specifically, Fox had a ministerial under 29 C.F.R. whether 1910.23(c)(1), Admin. Code incorporated by 2004),2 to a rail (Aug. §§ Comm 32.15 and 32.50 have from fell. that no Umansky Finding the which platform Court, the Dane Circuit the County exception applied, John C. Albert presiding, granted summary Honorable Umanskys The court judgment appealed. Fox. reversed, making rulings a number favor appeals to the related to the issue of whether Umanskys able and is thus unable to claim Fox had a ministerial immunity. However, the court of declined to appeals made on newly appeal,

address one of Fox's arguments, it Because of the of the deeming potential impact waived. Fox's on a determination of whether argument3 new was state law to employer required comply the court of regulation, appeals stopped applicable that to Fox's holding regulation applied short of to be made on that determination employer, leaving subsequent All references to the Wisconsin Administra- otherwise August Code are to the 2004 version unless tive herein language The relevant in the sections cited indicated. unchanged it took effect on March has remained since summary Fox entitled to argument The new was that alleged showing judgment plaintiff had not facts because workspace public employees, platform was a duty of showing employer Fox's had a had made no thus words, respect platform. In other any sort with safety platform any duty to ensure the of the argument was that private employee belonged employer have to the would brought argument by petitioner has it. Here the who used regulations apply to as to whether the sharp into focus issue employer employer. such as Fox’s public buildings of a remand the circuit court. The court thus appeals rulings4 agree made a number of with which we ultimately which we concluded that Fox was adopt judgment not entitled to on the summary ground immunity: responsible compliance Fox was for

[W]e conclude with safety regulations job respon- state and federal and this sibility impose duty is on him comply sufficient 1910.23(c)(1) § with regulation 29 C.F.R. insofar as the that, applies employer. given to his We further conclude height platform and structure of the from which fell, Umansky duty Fox a had ministerial to have a railing or specified standard an alternative as in 29 1910.23(c)(1) § open C.F.R. on the side sides of the platform, employer if required by Fox's state law to comply regulation platform. this as to this Co., v. ABC Ins. Umansky 101, 3, 2008 WI App 445, Wis. 2d 756 N.W.2d 601. Fox for petitioned review and we his granted petition.

4 The appeals court of stated: rulings exception. First, [W]emake a number of related to the nondelegability parties employer's duty to third anof under place prevent against employee safe statute does not suit a state comply safety regulation adopted pursuant for failure to with a 101.055(3) (2001-02). Second, § Wis. Stat. the "law"that is the duty specify employee source of the ministerial need not position responsible carrying duly; for out the it is sufficient if the imposes duty "law" a is ministerial and other evidence particular employee responsible a carrying establishes that for Third, duty. regulation imposes out that a that otherwise a duty discretionary simply ministerial supervi- is not because the sory employee responsible compliance regulation with the has respect assigning carry duty. discretion with tasks to out that Fourth, 1910.23(c)(1), incorporated by § 29 C.F.R. Wis. Admin. 32.50, imposes §§ duty Code Comm 32.15 and a ministerial to have railing meeting specifications regulation platform of the on a requirements regulation. that meets the 445, Umansky, 2d 313 Wis. 2.¶ and affirm those court of adopt 4. We now We conclude that Fox had listed above. appeals' rulings job description provided ministerial here. His with state and responsible compliance that he was 29 C.F.R. including safety regulations, federal 1910.23(c)(1). "[Gjiven the and structure of the height § fell, ministe- Umansky from Fox had a which platform standard or an alternative as railing rial to have a 1910.23(c)(1) side or C.F.R. on the specified open Umansky, . . .." 313 Wis. 2d sides of the platform Further, ultimately reject because we reach and issue does argument regulation resolves the re- holding to Fox's our apply employer, rulings. from the We maining appeals' court question court, answered the having thus remand to the circuit from immunity Fox's concerning threshold question that Fox had a ministerial by concluding suit that the platform complied the act of perform ensuring the circuit The focus of regulation. with the applicable breach, causation, comparison court must be on of whom the fault, by not on the damages, question and a trial on the We remand for employed. deceased was claim. negligence Umanskys' background first set forth factual We I II. In Part in Parts legal framework applicable that creates the

III, the specific regulation we address iy In we discuss here. Part duty exception ministerial buildings to all regulation public the applicability y inappli- In Part we discuss the of a public employer. Place Statute to this case. of the Safe cability

I. BACKGROUND set forth the facts The court appeals as follows: history procedural Umansky employed by was as a cameraman ABC Inc. 21, 2003, lying he found On November was unconscious platform working he had beneath a from which been University Camp of Wisconsin's Randall Stadium. injuries falling He later died as a result of sustained from platform walkway from the to the concrete below. Umansky's parents Umansky and the Estate of Richard Fox, against claiming Umansky's filed this action by negligence. fall was caused Fox's The amended com- plaint alleged responsible safety that Fox was for the Stadium, Camp including compliance Randall with state safety regulations, negligent and federal and that he was failing platform reasonably to ensure that in failing comply applicable regula- safe and with the tions, including failing provide railings plat- 1910.23(c)(1). form in violation of 29 C.F.R. denied,] [After a motion to dismiss was Fox moved for summary judgment discretionary based on act immu- nity affidavit employees. He submitted his platform which he averred from which Uman- sky fell had been in use ABC Inc. and other broad- casting companies years prior several to the acci- dent, and no one platform had indicated to him that the was not or did comply applicable regula- safe Umansky's tions. deposi- submissions included Fox's tion, Occupational Safety and Health Administra- (OSHA) tion investigation report, accident and a citation penalty and notification of Inc. ABC for a 1910.23(c)(1). § violation of 29 C.F.R. regulation provides: "Every open-sided platform floor or 4 feet or adjacent ground more above floor or level shall be (or guarded by railing equivalent a standard as (e)(3) section) specified paragraph open this on all except sides where there ramp, is entrance to a stair- way, or fixed ladder...."

Umansky, 445, 313 Wis. 2d 6-9. ¶¶

630 granted above, 7. As noted the circuit court summary judgment, reasoning Fox's motion for duty exception neither the ministerial nor the known danger exception applied case; in this because it found applicable exception, no the circuit court found that immunity employee Fox's as a state barred a suit. As appeals above, noted the court of reversed.

II. STANDARDOF REVIEW AND RELEVANT LAW grant summary judgment

¶ 8. We review de Spring Kersten, novo. See Green Farms v. 136 2dWis. (1987). Summary judgment 304, 315, 401 N.W.2d816 is proper genuine when there are no issues of material moving party judgment fact and the is entitled to as a 802.08(2) (2001-02)5. matter of law. See Wis. Stat. Immunity employees ¶ 9. for officers and grounded Kimps Hill, law, 1, in common v. 200 Wis. 2d (1996), largely "public 9, 546 N.W.2d is based policy spring considerations that from an interest protecting public purse preference politi and a judicial cal rather than redress" for actions. Lodl v. Progressive Co., 323, N. Ins. 2002 WI 2dWis. ¶ 23, 646 N.W.2d314. general

¶ 10. The rule is that state officers and personal inju- liability are immune from resulting performed scope ries from acts within the Kimps, their official rule, duties. 200 Wis. 2d at 10. The subsequent All references to Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. subject "judicial exceptions, representing

however, is public balanc[e] [struck between] the need of officers to perform freely right [and] their functions of an aggrieved party Regents, to seek redress." Lister v.Bd. of (1976). excep 282, 300, 72 Wis. 2d 240 N.W.2d610 employee tion at in issue this case is a state "is not liability negligent performance shielded from for the of a purely duty."Kimps, ministerial 200 Wis. 2d at 10.

¶ 11. The definition of ministerial has re substantially adopted mained the same since it was Meyer Carman, 329, 1955 (1955): v. 271 Wis. 73 N.W.2d514 " only 'A... is ministerial when it is abso imperative, involving merely per lute, certain and specific imposes, formance of a task when the law prescribes and time, defines the mode and occasion for performance certainty nothing its with such re judgment Olson, mains for or discretion.'" C.L. v. (1988) (quoting 701, 711-12, Wis. 2d 422 N.W.2d 614 301). Lister, 72 Wis. 2d at discretionary immunity

¶ 12. The defense of act negligence officers and assumes upon focuses on whether the action or inaction which liability premised immunity. Lodl, is entitled to proper scope 323, Wis. 2d 17. The of the common law discretionary immunity, doctrine of act when there are disputed question no facts, Sutula, is a of law.Bicknese v. ¶31, 713, 2003 WI 2dWis. 660 N.W.2d289. III. THE MINISTERIAL DUTY EXCEPTION begin by setting question ¶ 13. We we are to Umanskys' answer into context. The claim is that Fox negligently Umansky. caused the death The amended complaint alleges: pertinent

At all times to this respon- [Fox] action was sible for the condition of Camp the Randall Stadium killed, Umansky where Richard was and specifi- was cally responsible safety for facility, of the including compliance with the state regulations. and federal belief, On information and incident was caused negligence Barry failing Fox ... to ensure the platform from Umansky which Richard fell was reason- ably safe, failing comply to with regulations, OSHA failing comply safety to with regulations Wisconsin structures, similar failing to appropriate establish guidelines practices compliance to ensure OSHA and safety regulations, State failing provide to and maintain a safe environment Camp within Randall Stadium, failing provide to railings platform on the from which Richard Umansky fell in violation of 29 1910.23(c)(1).... CFR Of course, 14. before the Umanskys can proceed to attempt prove their negligence case, they must first defeat Fox's defense of immunity, to which he is entitled as a state employee unless an exception app The Umanskys that argue ministerial duty lies.6 exception applies defeat Fox's As dis immunity.7 cussed above, "a public officer or employee is not Umanskys The suggest this court should use this case limiting to state a new rule discretionary immunity doctrine those state legislative involved in judicial policymaking. Under approach, they such an argue, Fox would immunity. have no decline We to do so. Umanskys argue exception, that another the "known danger" exception, applies as well. exception, That set forth Anderson, Cords v. (1977), Wis. 2d 259 N.W.2d 672 is present where danger "the nature compelling is known to the officer and is of such force officer performance from for the liability negligent

shielded Kimps, 200 Wis. 2d at We ministerial duty." a purely it, To answer turn, then, question. to this preliminary of safety regulations consider the relevance we will under state law to the platform applicable establishing regulations whether purpose limited of a ministerial therefore satisfy the definition rule immunity an to the Fox giving constitute exception liability. from subject If Fox ministerial "purely he to have a installed on the

duty" railing platform, As liability. previously, immune from we noted "absolute, if it is duty" is a ministerial "purely involving imperative, merely perfor- certain and imposes, pre- of a task when the law specific mance time, for and defines the mode and occasion its scribes certainty nothing with such that remains performance C.L., 2d at or discretion." 143 Wis. 711 judgment 301). Lister, 72 2d at (citing Wis. 16. We first need to determine whether a source time, and mode "imposes,

of law defines prescribes a specific [of task]." and occasion performance [the] C.L., At the its 143 Wis. 2d at 711. of beginning analy- act sis, specific the court identified appeals and the it: requires issue law which Olson, 701, 715, discretion to C.L. v. 143 Wis. 2d has no not act." (1988). regard exception, agree In we 422 N.W.2d 614 that appeals the court of that it is clear from the amended presents type compelling that complaint platform "the Umansky, danger exception immunity." an 313 warrants 445, danger exception "has 2d The known been unsafe, more where reserved for situations that are than response danger is so severe and so immediate" that a is Id., There is no need for to address demanded. us exception any further here.

634 allegation provide railings of a failure to in [T]he 1910.23(c)(1) allege § of 29 violation C.F.R. does specific this, Fox failed perform, plaintiffs act and assert, duty. the source of ministerial his 1910.23(c)(1) (c) § provides: 29 C.F.R. Protection (1) floors, open-sided platforms, runways. Every open-sided floor or platform feet or more above adjacent ground guarded by floor or level shall be (or (e)(1)8] railing paragraph [defined standard in (e)(3)9 equivalent specified paragraph as in of this section) [.] regulations general,

OSHA and this one particu- lar, apply directly University do not to the of Wisconsin because a state and its are from subdivisions excluded the definition of "employer." Williams-Steiger Occupa- Safety 1970, tional Act of L. Health Pub. No. 91-596, 3(5), (1970); § 84 Stat. C.F.R. 1910.2(c). However, § § Wis. Admin. Code Comm 32.15 1910.23(e)(1) provides: 29 C.F.R. rail, railing top rail, A shall standard consist of intermediate posts, height have a of 42 and shall vertical inches nominal from upper top floor, ramp platform, runway, rail surface or level. top throughout length shall The rail be smooth-surfaced railing. approximately halfway The intermediate rail shall be floor, top platform, runway, ramp. between the rail and the overhang posts except rails ends of the shall not the terminal overhang projection where such does not a constitute hazard. 9 1910.23(e)(3)(v) § provides: 29 C.F.R. sizes, types, arrangements railing and of Other construction are (a) provided acceptable they following A meet the conditions: top floor, height platform, runway, smooth-surfaced rail at a above (b) nominal; ramp strength of 42 A level inches withstand requirement pounds top pressure;

least the minimum of rail (c) floor, top platform, runway, ramp, Protection between rail and treads, equivalent by or stair to that at least afforded a standard intermediate rail.... here, applicable not exceptions with certain provides, buildings of a public employment and places of that "all [OSHA] the federal comply with employer shall public 32.50." Wiscon- s. Comm adopted under requirements 32.50(2) pt. adopts 29 C.F.R. § Admin. Code Comm sin places of applicable to making § 1910.23 1910, thus buildings. public employment and ¶¶ Umansky, 25-27. 313 Wis. 2d appeals 29 C.F.R. examined The court of 1910.23(c)(1) regulation § does observed, "The and railing option circumstances in these of no for the allow type very specific regulation of as to what is meeting railing railing required. to have a is by imposed requirements regulation's law, it is per- requires imperative, and it absolute, certain and upon specified specified manner formance upon dependent exercise of are not that conditions addition, the court judgment Id., In or discretion." testimony, deposition appeals Fox, that in his noted safety, facility regarding oversight that had stated single responsibility "day-to-day lie me" and does with require- compliance platform's with OSHA my "ultimately... been decision." would have ments ¶ 50. Id., appeals the court of determination 18. That regulation safety highly specific in force

—that platforms railings created under Wisconsin law exception to the that there is an such ministerial immunity ordinary the court the basis for rule of —was summary judgment. grant appeals' reversal of appeals agree that because the court of We 1910.23(c)(1) prescribes "imposes, and defines C.F.R. certainty . . with such time, and occasion. mode nothing judgment or discretion" remains for 32.50(2) § because Wis. Admin. Code Comm makes it applicable public buildings public employer, to of a Fox duty railing was under a ministerial to act to ensure platform. was on the

IV FOX THAT ARGUES ANY DUTY RUNS ONLY

TO PUBLIC EMPLOYEES OR TO A ONLY PLAT- FORM WHICH ON PUBLIC EMPLOYEES WORK duty First, Fox contends created regulation pursuant the OSHA to administrative code provisions, pursuant statute,10 which turn are to is a duty only public employees. Umansky to Because public employee, argues, not a Fox does not argument run to him. basis for this is that the provision relevant administrative code notes that its purpose safety public is to create work standards for employees,11 underlying and statute has stated purpose giving employees workplace safety protections equivalent private to those afforded to employees under OSHA.12We therefore turn our atten specific regulation tion from the that creates a minis terial here and statute administrative code purpose sections that authorized it. The stated of the 10 101.055(3)(a). infra, § Wis. Stat. See 26 n.18 11 § Wis. Admin. Code "Purpose. chap- Comm 32.001: This occupational safety ter establishes minimum and health stan- public employees." dards for 12 101.055(1): Wis. Stat. give employees state, Intent. It is the intent of this section to any any agency political rights and of subdivision of this state protections relating safety occupational equiva- and health granted private

lent to those in the under sector (5 safety occupational 5108,5314,5315 and health act of 1970 USC 7902; 636; 1114; 633 USC 18 USC and 651 USC 553 1421). 678; 3142-1 USC and 49 USC safety protec equivalent occupational statute is to offer Fox's by turned on its head tions. That is purpose divided, appli a argues haphazardly that reading OSHA comply explicit to the duty cable ministerial with on That such railing platform. a a regulation requiring the is readily apparent given an is unworkable approach by regula this duty nature the ministerial created of 1910.23(c)(1), § incorpo 29 C.F.R. regulation, tion. The 32.50, §§ Comm 32.15 and created rated Wis. Admin. by safety with the regulation to comply a ministerial the such as one involved railings requiring platforms that even here. conclusion urges peculiar Fox to adopted pursuant code though the administrative admittedly necessary § 101.055 requires Wis. Stat. in "all of safety places employment provisions pro stated buildings,"13 purpose the statute's public justifies allowing somehow tecting public long with so as impunity, of a ministerial breach to public killed be a person injured happens or employee. in the There the statute or nothing is says that compli

administrative code which provisions 1910.23(c)(1) intended, and is § ance 29 C.F.R. is is or relevant, only injured when a employee public employe killed. OSHA does not apply Since es,14 adopt there was need to a Wisconsin OSHA There indicate nothing include those is employees. safety intended create different legislature that § Admin. Comm Code 32.002. 652(5) (defining employer governed U.S.C.A. an (not includ[ing] regulations as "not the United States Service) or any Postal State including the United States State"). political subdivision standards for public private employers employ ees; rather, noted as we the intent previously, was to safety create identical standards.15 is no dispute There the legislature all required to be public buildings brought into compli- ance with minimum OSHA standards. There is no dispute that Randall Stadium is a Camp public build- ing, and there no dispute University Wisconsin is a It public employer. was Fox's responsi- bility, as director facilities Camp Randall Sta- dium, to be sure that Stadium complied with OSHA regulations. Period. The OSHA at issue in regulation this case created ministerial a and duty, nothing our case law on duty ministerial the supports proposition such that a be limited by can reference to whether a only is particular duty. owed that person 22. As we earlier in opinion, noted this the court a appeals argument deemed new Fox raised at oral argument it waived and declined to before address it though the court left open the that the possibility argument could pursued be remand the circuit court, court. Before this Fox argument. made a similar The argument overlaps the considerably argument discussed; just question Fox contends that the is not the whether was platform generally required have a but whether the railing, platform required was to have a at the time Fox railing Umansky fell. submits that because there been no has evidence submitted that a employee using was the at the time platform Umansky fell,16 the failed to Umanskys have allege 101.055(1), supra, § See Wis. 19 n.12 Stat. appeals, At the argument presented court of the was slightly differently: regulation "Fox asserts that the did not apply no platform because there is evidence this was ever used duty and that that establish a ministerial

facts would granted summary judgment in his be should therefore argument. The his earlier This variation on favor. is a identity above, the on the first, turns addressed injured (i.e., platform persons person if were on the two exception apply could fell, both no ministerial by person's private employee, that and a claim as to the by immunity). representative This be barred would platform argument itself, the use on the focuses by public employee platform time a at relevant (i.e., only alleged public employee a if it were private occupying platform at the moment duty exception employee would fell, the ministerial by private employee's apply, apparently a and claim by immunity). representative not be barred would 2d workspace." Umansky, 313 Wis. public employee as However, argu- Fox abandoned that version of the brief, more In he instead stated a ment before this court. his argument: limited 1910.23(c)(1) question required is not whether C.F.R. railing

platform but whether Admin. to have a all times platform required §§ to have a Code Comm 32.15 32.50 railing at answer because the time decedent fell. And the is no any public employees using there no evidence were added.) (Emphasis platform at that time." inconsistently argument, argued, At oral Fox somewhat brief, such facts with any practical difference matter because even

would make as a using platform public employees Mr. if had been the time Umansky fell, part there would still be no on the of the State Umansky delegated to Fox run to Mr. that could be that would private employee. [because] he was a assertion, court, Contrary before Fox to the dissent's this only appeals request and made no sought to reverse court of fact-finding in the for a remand for additional alternative platform's public employ- of the use question related dissent, Ziegler's ees. Justice 105-07 ¶¶

640 previously, appeals ¶ 23. As noted the court of argument deemed this argument waived but noted that this developed could be further at the circuit disagree. again court. We Since the issue was raised here, we exercise it, our discretion to reach rather than argument deem it waived.17Fox's to this court was that public employee the material facts—that no was on the platform Umansky Umansky at the time fell and that public employee undisputed. himself was not a —were argues Because Fox that at least one of those conditions would have to be met order to establish a ministerial duty, summary he contends that absent such evidence, judgment appropriate. in his favor is

¶ 24. Since we have established that a ministerial duty exception 1910.23(c)(1), arises from 29 C.F.R. incorporated by §§ Wis. Admin. Code Comm 32.15 and person responsible 32.50, and Fox's role as the acting comply to ensure that the facilities regulations, already rejected and because we have Fox's argument purpose applica- that the statute's limits the bility public employees, any we view argument people occupying occupying as to other or.not platform as not material and therefore not neces- sary holding to our as set forth herein.

¶ 25. We therefore answer in the affirmative the question presented narrow Umanskys and conclude that proceed

can to trial in the circuit court on negligence. questions their breach, claim of Caban, 597, 609, State v. 2dWis. 563 N.W.2d 501 (1997) ("The judicial rule of waiver one of administration and power appellate does not limit the of an in proper court case address issues not raised the circuit court. Ehly, Wirth v. (1980). 433, 444, Wis. 2d 287 N.W.2d 140 This court has the power discretion, in the exercise its to consider raised issues appeal.") for the first time on of fault, will

causation, damages of and comparison of fact. addressed the trier course need to be V. THE SAFE PLACE STATUTE addition, Fox OSHA argues In to Wis. Admin. Code pursuant in force regulations Stat. 32.50 and to Wis. pursuant §§ Comm 32.15 and I0l.055(3)(a)18 under the safe articulate the standard § The statute statute, adopt § Stat. 101.11.19 place is therefore employees for public OSHA standards ing asserts, in tandem the safe read, Fox properly then law that holds statute. Fox case points place imposes the safe law obligations place See, v. e.g., Dykstra delegated. cannot be employers Co., 120, 132, Arthur McKee & 2d 301 G. 100 Wis. (1981) ("[T]he has that duty who person N.W.2d 101.055(3) employee safety § and Public Wis. Stat. health: (a) rule, adopt, by department standards The shedl administrative safety public employees. protect and health of standards equal provided private provide protection shall at least to that promulgated by employees under stemdards the federed sector occupational safety administration!] and health .... Employer's duty to furnish safe em- Wis. Stat. 101.11 place:

ployment and (1) employment Every employer be safe shall furnish which shall place employment employees for the therein and shall furnish frequenters employees safe for therein and for which shall be safety safeguards, use and thereof and shall furnish and devices reasonably adopt processes and and use methods and ad- shall safe, employment places employment equate to render such and thing reasonably necessary protect every and shall do other life, health, safety, frequenters. of such welfare every place employment Every employer or a owner of a construct, public building now or hereafter constructed shall so public building repair place employment or maintain such as to render the same safe. that another to whom he has allegedly- cannot assert is to be substituted as the duty primary the delegated in his stead for a violation of safe place defendant v. 55 Wis. 2d 627, Taylor, Pitrowski 615, provisions."); (1972) ("[T]he [the with duty complying 201 N.W.2d on the It cannot be employer[.]... statute] safe is place employees."). to or ... officers or delegated placed upon are, course, not here with a dealing 27. We ¶ of the safe statute at all. The place claimed violation claim Umanskys the makes it clear that the complaint of the we address here as to immu- underlying questions is one of common law We with nity negligence. agree that there is "no connection logical court of appeals for a liability an to shift its employer's inability between ability safe violation to a third and its place party an with employee duty comply appli- delegate 445, safety regulations." Umansky, 313 Wis. 2d cable case, and the rules 31. This is not a statute safe-place claims do not here. govern such concerning

VI. CONCLUSION 28. We now and affirm those court adopt listed that Fox had a rulings above. We conclude appeals' here. His that duty job description provided ministerial state and federal compliance he was with responsible 1910.23(c)(1). § 29 C.F.R. safety regulations, including from and structure of the height platform "[G]iven fell, Fox had a ministerial to have Umansky which or an alternative as railing specified a standard 1910.23(c)(1) or sides of the C.F.R. on the side open Further, Umansky, 2d platform____" reject argument reach and ultimately because we to Fox's issue does not regulation apply remaining question our resolves the employer, holding thus remand to appeals' rulings. from the court of We question having the threshold court, circuit answered immunity by concluding concerning Fox's from suit ensuring perform the act of Fox had a ministerial complied applicable regula- platform that the breach, the circuit court must be on tion. The focus of comparison damages, causation, fault, employed. question the deceased was We of whom Umanskys' negligence claim. remand for a trial on the appeals By decision of the court of the Court.—The to the circuit affirmed, and the cause is remanded negligence. court for a trial on the claim of (concurring). join I CROOKS, 29. N. PATRICK J. highlight majority opinion, separately but I write to jurisdictions have taken fact courts other positions reasoning majority to the in this similar case. approach logical

¶ 30. The that is most and re- mains true to the intent of the statute and the admin- applies safety regulation code, istrative is one that workplace, irrespective employees of to whose Eire working there. jurisdictions noted, 31. As courts from other consistently

have incorporating endorsed the idea that state statutes safety regulations apply places,

federal people. Co., not Teal v. DuPont & E.I. de Nemours (6th ("[Ojnce 1984) employer F.2d Cir. an is responsible complying regula deemed OSHA with obligated protect every employee tions, it is who workplace."); Hargis Baize, works at its v. 168 S.W.3d 2005) (where (Ky. specific 36, 44 defendant's violation of regulation death, OSHA-derived caused the deceased plaintiff SEifetyregula [state was "no less entitled to protections" tions'] based on the fact that he was not the employee); Simplot Co., defendant's Goucher v. J.R. 1985) ("WISHA (Wash. regulations 774, 780 709 P.2d an only employer's to protect should be construed be harmed but all may who employees, own One the regulations."). violation employer's by where refusing quibble, rationale for court stated concerned, about whether are safety regulations OSHA a particular killed was owed injured or the worker involved: at the site gloss is that since "multi-employer" point of this

[T]he regulations subject to OSHA's contractor being engaged in the virtue safety construction business, comply with those and has to construction at the his own workers protect in order to regulations assuming the same him as site, to think it is sensible be might who at the site the other workers regulations. he injured or killed violated if Inc., 364, 366 MYR Group, 361 F.3d v. United States omitted) 2004) (internal (7th (emphasis citations Cir. added). safety regu- the idea that based Rulings not a to a place, to apply are promulgated

lations regu- relevant Here, the sensible. eminently are person, concern- protections compliance mandate lations OSHA to federal safety equivalent occupational ing and public employment places for "all requirements that a statute determined Once it has been buildings[.]" deter- as we duty, ministerial imposes or regulation of appeals, the court in with mine here agreement status The employment at an end. should be inquiry as a or killed injured the person (public private) is simply that with comply of a failure to result analysis. to the irrelevant and Wis. § 101.055 in Wis. Stat. We find

¶ and 32.50 32.002, 32.15 32.001, §§ Comm Admin. Code limita- any intended legislature that no indication extending adopted tion it when the measure OSHA regulations safety public buildings"; holding to "all contrary disparate result would unwarranted similarly injured for treatment persons situated or deceased simply and would be unfair. public building public A34. that for safe

employees including everyone, employ- must be safe for private provides Indeed, ees of a firm. the statute also department. "[t]he plan . . shall and conduct com- prehensive safety prevention programs and health loss employees state Wis. Stat. for facilities." 101.055(9) added). (emphasis go It would seem to saying legislature without for intended buildings public, and facilities to be safe includ- ing public employees private of a em- ployer say as well. To otherwise flies in the face of common sense. foregoing respectfully 35. For the reasons, I

concur. I am authorized to state that Justice DAVID joins

T. PROSSER this concurrence. {concurring). ¶ 37. DAVID PROSSER, T. J. overarching employee issue this case is whether an University respon- of Wisconsin-Madison who safety Camp including sible for at Stadium, Randall compliance applicable safety state and federal regulations, liability is immune from tort death privately employed working of a television cameraman University employee stadium, after the know- ingly comply applicable failed to with an state safety regulation non-compliance federal and his was a causing substantial factor in the cameraman's death. bluntly ¶ 38. The issue is stated so that there can challenge be no mistake about the that confronted this em- University majority court. concludes in the narrow circumstances of is not immune ployee a small my view, In the decision represents this case. in has the course this court very but welcome correction I many years, join majority opinion followed in full. more I because I believe 39. write separately

¶ concurrence necessary. attempt This will change on government responsibil- how Wisconsin law explain it is. has come to be what for torts ity I has to sue state easy government 40. It not been has 1848, in Since the Wisconsin Constitution tort. against barriers to direct action erected procedural iy Article Section 27 legislative consent. state without di- "The shall legislature of the constitution provides, in suits in what manner and what courts rect law the state." brought against be may is dif liability from substantive Immunity Ar immunity from the embodied procedural ferent Milwau iy Section 27 of the constitution. City ticle of Milwaukee, 42 Wis. 2d v. Firemen Ass'n kee Relief of (1969). As this court observed 34, 165 N.W.2d 1915, "nonliability arising prosecu for torts out of the upon grounds of functions is based governmental tion immunity from the distinct public policy may policy from suit.... No doubt such sovereign in a from the large have measure sprung originally wrong." Apfel can do no sovereign conception (1915). State, 565, 575, 152 N.W. v. bacher underpin- the intellectual years, Over gov- doctrine substantive court-created nings severely tort liability ernmental from were immunity criticized. In 1962, this court reacted to that criticism a landmark In decision. v. Holytz Milwaukee, City 17 of 26, Wis. 2d 115 N.W.2d 618 (1962), the court unani mously "disavowed its past decisions and abrogated the principle of governmental immunity." Scott v. Savers Co., Prop. & Cas. Ins. 60, 76, 2003 WI 262 Wis. 2d ¶ 127, 663 (Prosser, J., N.W.2d 715 It dissenting). declared in the clearest terms possible that"henceforward, so far as governmental concerned, responsibility torts is for rule is liability exception is immunity Holytz, —the added). Wis. 2d at 39 (emphasis 43. The court went on: "This

¶ decision is not to be interpreted as imposing liability on a governmental body the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." Id. at 40. For this proposition, the court cited Hargrove v. Town Beach, (Fla. 1957).1 Cocoa 130, 96 So. 2d of 44. The court also explained that if "the legisla- ture deems it is, better public policy, course, it of free to reinstate immunity." Holytz, 17 Wis. 2d at 40. "The legislature may also impose ceilings the amount of or set damages up administrative requirements which may be to the preliminary judicial commencement of an proceedings for alleged tort." Id. 1 In Hargrove v. Beach, Town Cocoa 96 So. 2d

(Fla. 1957), a widow sued a municipality damages for the alleged wrongful death of her husband who died of smoke being suffocation after jail locked in a that was left unattended by a municipal jailer. The Supreme Florida Court held that the widow could maintain an against action Cocoa Beach for the alleged negligence police of its officer acting in the course of his employment. Id. at 133-34. The court said the issue was municipal "whether a corporation should enjoy continue to immunity liability from wrongful police acts of officers." Id. at 131. Legislature did not deem it 45. The Wisconsin go century public policy nineteenth back to

better immunity. In 1963, it enacted Stat. theories against (1963-64), § politi actions entitled "Tort 331.43 corporations, governmental agencies subdivisions or cal employes; agents officers, claim; notice of limi damages and suits." This statute now Wis. tation (2007-08),2 put and it must be in context. Stat. 893.80 governmental Holytz facts 46. The involved immunity City municipality, of a Milwaukee. why Holytz, Bill 17 2d at 28-29. That is 1963 Senate Wis. (1963-64), § 331.43 283, the bill that created Wis. Stat. County requested by the Boards Associa- was Wisconsin and the tion, League Association, the Wisconsin Town Boards Municipalities. Holytz But the de- of Wisconsin municipal abrogation of to the cision government not confined immunity. Again, the court was clear: govern- [of abrogation consider of the doctrine [W]e applies to bodies within the immunity] public mental all state, counties, cities, The towns, villages, school state: districts, districts, districts, drainage any sewer they political of state —whether other subdivisions the respon- rule By the reason of incorporated or not. be of body superior public damages shall be liable deat for for agents, employees occurring officers, the torts itsof body. in the the business such course of of its various So far as the state Wisconsin concerned, must be made a careful distinction arms immunity doctrine and abrogation between the The right the state. private party of a to sue immunity governmental from torts difference between from sovereign immunity state suit was and the of the . . Apfelbacher. . recognized in are to references to Statutes subsequent All the Wisconsin indicated. 2007-08 unless otherwise version Henceforward, liability there will be substantive on state, part right of the but sue the state is 27, subject to [Section] [Article] IV Wisconsin decision in case at bar [C]onstitution.... torts, nonliability removes the state's but it defense has no upon sovereign right effect state's under only constitution sued upon to be consent. its added) (internal Holytz, Wis. 2d at 40-41 (emphasis omitted). citations 47. When Holytz abrogated governmental im

munity, governments municipal acted quickly to enact some limitations their liability new tort. The Wisconsin statute is now 893.80 was their an However, swer. this statute was not intended to apply to the state.3 Thus, the state was to enact other required legislation or to look elsewhere limits on liability barriers to suit. 48. The court discussed these principles

Forseth Sweet, v. (1968). 2d 158 N.W.2d370 Forseth, In the court explained the Holytz: meaning Holytz, "there is substantive liability said, Since it imposed upon the state when its in the agents, course of their a tort." Id. at 679. It added commit employment, that, prior to Holytz, two reasons supported the state's from immunity suit: (1) The sovereign immunity governmental [or immu-

nity] of the king implemented can do no wrong, by denying the of respondeat superior doctrine where an agent of the guilty conduct, state was of tortious and (2) the procedural lack of implementation the of Article Holytz Section 27. only removed the first barrier. IV Id. at 684. 3 Ass'n, Townsend v. Wis. Desert Horse 423, 414, Wis. 2d (1969).

167 N.W.2d 425 in The issue Forseth was whether the victim could a direct negligence bring of a state employee's the state. Id. at 679-81. answer was action against But was no the dispute no. See id. there damage judgment for a responsible state would be if the negli a state state against employee employee's injury the of caused to employment, in course his gence, court Id. at 681. The to then-Wis. pointed Forseth. (1965-66),4 which is now Stat. § Stat. 270.58 governmental § Id. at 681. This statute directs 895.46.5 (1965-66) 270.58(1) § reads follows: Stat. as Wisconsin pay judgments political State and subdivisions thereof (1) against any in or officers. Where the defendant action taken public employe proceeded special proceeding or and is a is officer proceeded against against capacity an in his or is as official carrying out his duties because of acts committed while individual jury he employe as or the or the court finds that an officer and judgment damages good entered in faith the as to costs acted employe paid by political against the state the officer or shall be or Regardless employe. the is or of subdivision which he an officer governmental pay litigation unit shall reasonable results action, attorney's defending fees it is found and costs unless by jury employe or did not the court or defendant officer faith, provide legal good it to the in when does not counsel act employe. Deputy sheriffs in those counties defendant officer or they not at the sheriff but civil service where serve will subsection, by except provision that the be covered this basis shall discretionary relating payment judgment shall and not be damages mandatory. judgment In and costs such counties the as county county by paid approved may if board. be added.) (Emphasis 895.46(1) reads, part, as follows: Stat. Wisconsin pay judgments political subdivisions thereof State (l)(a) against any or If the action

taken officers. defendant special proceeding employee proceeded officer or is proceeded against against capacity as an in an or is official carrying duties as of acts committed while out individual because jury employee and or that the the court finds an officer state, bodies, the to including pay judgments against public officers and in most situations. See 895.46(1). Wis. Stat. The Forseth court unusually was candid the

summing up situation: This public policy court has made the decision in justice the Holytz it is in of interest to abolish the sovereign immunity[, i.e., court-made rule of govern- immunity].... mental It apparent present that the statutory gives structure the protection, state scant by [(1965-66)], Stats., sec. 270.58 it has made itself fully liable judgment right for a when it has no to litigation the leading judgment. control to the present system imposes great handicaps upon legal the of defending officers the state in the treasury, while leaving treasury exposed liability.

Forseth, 38 Wis. 2d at 690. The court speculated that "possibly there awas failure the legislature] [in appreciate potential exposure liability that flow from the 1965 amendment included the state [(1965-66)] in sec. 270.58 as a backstop any judg- ment that might against be taken its tortiously culpable Id. employees." at 681. acting scope employment, judg- defendant was within the of damages against as to ment and costs entered or officer employee any applicable in excess of insurance to the or officer employee by paid shall political be the state or which subdivision of Agents employee. any the defendant is an department officer or by state acting shall be covered this section while within the of scope agency. Regardless their litigation of the results of the governmental unit, it provide legal if does not counsel to the employee, pay defendant officer attorney shall reasonable fees action, defending costs unless it is found the court or

jury employee that the defendant officer or did not act within scope employment. added.) (Emphasis § 270.58 later amended legislature 51.

¶ defend state (1965-66) attorney general permit (such as the present in suits tort and employees officers case). In late 1960s. law in the This was Wisconsin 52.

¶ L. Torts, William Professor the Law his Handbook of of and ob- Hargrove in decision Florida's cited Prosser following: served years followed two Hargrove] was of rationale [The liable when Illinois, holding school district

later of a school negligent operation by the injured child was off, during the have touched examples bus. These of decisions avalanche years, a minor succeeding four California, Michi- immunity, in municipal repudiating Minnesota, Arizona, and Alaska.... Wisconsin, gan, Arizona, and Wisconsin in The decisions California .... immunity state also abolished 1012 Law Torts Prosser, Handbook L. William added) (internal 1964) footnotes (3d (emphasis ed. omitted). in the read we background, this 53. Against "The general statement: following

majority opinion immune are and employees officers is that state rule acts from resulting injuries liability from personal duties." of their official scope within performed Majority op., ¶ the decision this square does 54. How

Holytz?

II 282, 2d Regents, Wis. In Lister v. Board as follows: (1976), court stated this N.W.2d not person- that a officer rule is "The general act performed of an as a result injured to one liable ally within the of his official scope authority the line of his official The court duty." did not cite any Wisconsin precedent for this Instead, statement. it cited 63 Am. 2d, Jur. Public and Employees, Section 288 Officers (1972).6 Id. at 300 n.17. The stated in principle Am. Jur. 2d was indisputably intended to apply both state and municipal public officers. 56. Twenty years later, Hill,

¶ v. Kimps 200 1, 10, (1996) Wis. 2d 546 N.W.2d 281 Lister (citing 300), Wis. 2d at expanded rule in announced Lister: "Under the general rule as in applied Wisconsin, state officers and employees are immune from liabil personal ity injuries for from acts resulting performed within the added.) scope their official duties." (Emphasis This sweeping statement was and is broad enough to cover all state employees. footnote, In a however, Kimps narrowed the Lister rule with respect municipalities: "The general rule of immunity for state public officers stands in contrast to that municipalities where, 'the rule is liability exception immunity.'" Id. at 10 n.6 —the 39) added). (quoting Holytz, Wis. 2d at (emphasis "The common law immunity municipalities was abrogated by added). this court in Holytz----" Id. (emphasis 57. These passages

¶ are not an accurate state- ment of the in holding Holytz, and did they not antici- pate immunity courts would continue to be- stow upon municipal employees. 58. The Kimps court, after establishing

broad immunity, also stated an exception: "a public rule, officer, "As a public judicial, quasi-judicial, whether executive, personally is not injured liable to one in conse- quence of an act performed scope within the of his official authority, and in the line of duty." 2d, his official 63 Am. Jur. Public Employees, (1972). at 798 Officers from for the liability is not shielded or employee officer Id. duty." of a ministerial purely performance negligent 300-01). Lister, 72 Wis. 2d at (citing at 10 frame- Kimps provide Lister Today, Ac- torts Wisconsin. analyzing government work for their within the scope tions by government immune from liabil- seen as generally duties are official in narrow only exceptions be found Liability may ity. has Thus, immunity immunity. governmental general employee broad extremely an supplanted by been Court. Supreme the Wisconsin by created immunity Ill way, long back a immunity goes 60. Pubbc officer from extent, governmental it is separate and to some that a pubbc all understand the principle We immunity. her doing job held liable for should not be officer that even manner, perfect we know because proper law, may generate by authorized fully performance, disadvantaged are hurt or from those who litigation or policy. action pubbc officer explained pubbc Professor Prosser

¶ Torts: Handbook the Law in in 1964 his immunity of re- legal administration complex process duty of charged with the shall be quires that officers fact, acting in decisions, or of making either law servants determinations. Public with their accordance in and intimidated unduly hampered would be duties, impossible burden and an discharge of their agencies government, upon all our would fall if extended, in some liability immunity private were improperly, or who act degree, to those reasonable authority given. exceed the

Prosser, at 1013-14. supra, 62. The in key words this are passage "private

¶ liability." Public officer immunity made great sense when state and municipal governments had govern- mental immunity were able to disavow any liability for the torts of their officers and employees. Public officer still immunity makes sense good when public officers and employees are in a acting legislative or judicial or quasi-legislative quasi-judicial capacity, where the exercise of discretion is essential. 63. Public employee does immunity not make (1) sense

good under the following circumstances: sub- governmental stantive immunity has been abrogated; (2) governments have accepted respondeat superior (3) with their relationship employees; and public em- ployee immunity is being used to liability evade for a public employee's obvious breach of a known standard of care. 64. The current problem is bound up

term "ministerial duty." Wisconsin courts have taken of "ministerial principle duty" from a context it which was valuable and necessary it in employed a context in which it is unfair and absurd.

IV In Eugene Meyer, 14, a student at Hawthorne Junior High School in Wauwatosa, fell from a five-foot retaining wall on school grounds and sus Carman, tained injuries. Meyer v. 329, 331, 271 Wis. (1955). N.W.2d 514 His guardian litem, ad Patrick T. Sheedy, father, and his Alvin Meyer, filed a tort action in Eugene's behalf against the eight members of the Wauwatosa board of education individually. Id. 330-31. When the case came to the supreme court, the issue was whether Eugene could recover from the school board members individually "failure to erect safety or other devices on guardrails and maintain Id. at 331. The circuit court had con- wall." retaining because the school recovery possible cluded that had a ministerial under Wis. Stat. board members (1953-54) 40.29(2) grounds § "keep buildings in suitably safe and equipped in good repair, at all times." Id. Wis. Stat. (quoting condition sanitary 40.29(2) (1953-54)). The court "applied § circuit officer knowingly rule of law that who ministerial act which the law fails to do a negligently him be may compelled respond to do requires Id. 43 Am. Jur. (citing to an damages injured party." (1942)). Public Officers 278, at 90 reversed, rejecting court supreme 66. The First, deter- claim for two reasons. the court Eugene's on the board. Id. imposed mined the cited statute duties must of action taken under statute "Any 333-34. . [A]ny be an official action of the board. . . necessity board, and no neglect failure to take action is the the individual upon therefor devolves responsibility members." Id. Second, for our and more important act, stated that "duty" upon the court purposes, members, its was not "ministerial." either the board or Id. at 331-32. The court stated as follows: keep might appear

At blush it that the first character, grounds "safe" is ministerial but the school many analysis great on closer that a apparent it is deciding may need to be considered in circumstances so, and decisions necessary action is to do such what judgment or discretion rather involve the exercise of performance prescribed of a task. As than the mere (3d McQuillin, ed.), Corp. p. Mun. sec. in 18 stated 53.33: it is abso- action... is ministerial when

"Official certain, merely lute, involving imperative, task, the law which execution of a set and when imposes time, mode, prescribes it and defines the certainty occasion for performance its with such nothing judgment remains for or discretion." in Id. (ellipsis original). case, 67. The court a quoted also Florida First

¶ (Fla. Filer, 204, National Bank v. 1933), 145 So. which stated that: duty ministerial, regarded

[A] is to be as it when is a positively by law, imposed has been and its manner, performance required upon at a time and in a specifically designated conditions which are perform specified, being under the depen- conditions upon judgment dent the officer's or discretion.

Meyer, 271 Wis. at 332. 68. In examining the case in it Meyer retrospect,

should be remembered that both governmental immu- nity and officer still in immunity were full flower. The court was disturbed that a however plaintiff, sym- pathetic, attempting extract money damages from individual members the Wauwatosa school board. Because existing governmental re- immunity jected principle respondeat superior, the court knew that school board members found liable individu- in ally tort had no assurance that the judgment against them would be covered school district. The opinion recognized possibility in ofpersonal liability cases, extreme but it limited those cases to violations of defined narrowly "ministerial duty" exception.

V in Meyer the case of Chart reappeared v. (1973). Dvorak, 57 Wis. 2d 203 N.W.2d 673 Chart is instructive how we have showing retreated from state liability in tort. Chart was a in a car that passenger Penelope at an on a curve intersection negotiate sharp

failed to Id. at 94. The car crashed County. Vilas highway state Id. injured. Chart was severely into a power pole, Dvorak, the chief maintenance engineer She sued Carl Commission, State Highway District Seven of the Varekois, the district traffic for that supervisor Martin district. Id. at 95. She claimed that the two defendants (a) to critical failing in: causally negligent place were the far in advance of warning signs enough highway to warning ap- to an provide adequate intersection (b) traffic; the warning sign[s] proaching "placing the intersection so as to make it impos- a distance from at a rate of to traveling legal speed sible for a driver Id. There was no dispute the corner negotiate safely." in the defendants had no role the two actual and did not warning signs supervise placement Id. at 96. their placement. argu- the defendants' rejected The court state- following included opinion

ments. The court's ments: warning alleged wrongful act... is an insufficient highway hazard. As both Dvorak and

of a known official, authority and re nondelegable had Varekois warning placement highway of such sponsibility for the defendant.[ signs, they proper parties 7] are the argument placement is that the Appellants' second warning sign legislative quasi- is a or highway of a (*485), Milford, 21 v. Town Accord Seward (*488) (1867) against (affirming judgment negligence roadway for travel damaged make a safe town for its failure to once, roadway] at or at least... "repairing either from guards prevent travelers keeping] up some suitable track"). dangerous going over the legislative predicate liability decision and ... cannot resulting respect an accident from its location. In this correctly the trial conclu[ded] we think court ... legislative appellants once made quasi-legislative or place they highway warning sign, decision had a place negligence. it and maintain it without Appellants' final contention is that the trial court ought granted have summary their motion for judg- they individually ment because cannot be liable tort they even if did place highway warning signs conformity with highway legis- the state commission's again lative directive. Here appellants two advance arguments .... The appellants first that since the agents highway were of the state .. . commission their and, therefore, acts were acts of such commission they partake are entitled to of the governmental immu- enjoyed by nity Appellants commission. cite no authority for this proposition. There is none. It is that the obvious state is immobile absent agents carry are, on its Ml employees state functions. agents therefore, the state when performing those of agree appellants' [To tasks entrusted to them. position they, that agents as of the highway commis- sion, ought partake to be allowed to governmen- the immunity enjoyed by commission, tal that this court would have to long overlook the séttled law this state, embodied in [(1965-66)], sec. 270.58 that employees or may proceeded officers against be in their capacities.] conclude, therefore, official We appel- lants, public officials, may proceeded against as be of their resulting dereliction duties in injury to another. Here, the appellants responsible ... proper were for the sign placement and, therefore, are proper parties the defendant. added) (inter- 102-04,

Id. 98, 100-01, (emphasis in omitted and outer brackets original). nal footnotes Depart- This the Wisconsin ruling spooked Justice, for reconsideration ment of which moved the court to the bracketed sentence from clarify caused The court's clarification stated 103 of the page opinion. following: the [(1965-66)], 270.58, opinion refers to sec. Stats. long public offic- embodying "the settled law...

as employees may proceeded against he in their ers or capacities." rehearing, On it has been called official quoted portion of the statement our attention that the liability. as a rule of It was not so could be construed intended; given interpretation, and were it that blanket [(1965-66)] im- Sec[tion] would be incorrect. 270.58 it only if obligation municipality poses an on state against or em- judgment has been seemed the officer opinion, in of the defen- ployee. As stated nondelegable, herein was of a ministerial natme. dants trial, facts, impose liability not proved if on would These 270.58, the rationale sec. but rather on basis Meyer v. Carman. added). Id. at 105 (emphasis in Cords v. Meyer again The court turned to (1974). case, 31, 214 In this

Ehly, 2d N.W.2d 432 in park fell into a at a state young gorge three women Id. at 33. The sued seven state County. plaintiffs Sauk "in to be allowing park negligence darkness, failing guard hours of open during above run of the cliffs along very edge trails which failing give any warning gorge, Id. The nature of the terrain." hazardous naturally the contention that rejected court the state's supreme immune from suit: were employees employees private indi- defendant are sued as [T]he damages alleged to have resulted from their viduals for negligent alleged The conduct occurred within conduct. employment by state .... scope the of their the employee defendants in this The individual state 270.58, [(1965-66)], sec. Stats. auto- case contend that matically any against employee suit a state transforms against into a suit the state because the state is However, judgment. if potentially liable on the sec. [(1965-66)] provide that suits in tort is read 270.58 against employees are to be treated as in tort state suits state, against legislature by if the and the has state, against in statute consented to suits tort the then damage judgments against in no could be obtained suits employees, provision the in state sec. 270.58 [(1965-66)] payment damages such out state meaningless. be would funds

Quite contrary, enacting it is clear that sec. [(1965-66)], Stats., legislature contemplated 270.58 employees subject that state were to suit in tort under gratuitously law Wisconsin and wished to shield monetary them from loss in such suits. Sweet,

In Forseth v. this court that "[n]o said new exposure liability contemplated by to substantive this statute." most recent case to discuss sec. 270.58[(1965-66)], Stats., was Chart v. Dvorak. ... Any liability . . governed by . of state adopted common supreme law as this state applicable court. If the defendants are liable under the [(1965-66)] doctrines, provides then sec. 270.58 pay judgment if state will the action or inaction giving liability good rise to the was done in faith within employment. scope Sec[tion] the of state 270.58 [(1965-66) applicable does not become until after a judgment liability is entered.

The defendants call this court's attention to the Meyer v. Carman. ... case of Meyer v. Carman and Chart v. Dvorak

The cases Meyer distinguishable contradictory. are and not The [c]ase, facts, confined to its concerns the absence of members, personal liability they of school board where performing discretionary are considered to be duties. Chart involves the alleged performance ministerial, nondiscretionary duties. [cjase Meyer general the reiterates rule that knowingly negligently

"a officer who fails to requires do a ministerial act which the him law may compelled respond damages do be in to an Chart v. Dvorak the injured party." court, In applying distinction, ministerial/discretionary the high- held that way engineers commission could not be held liable sign the decision as to whether or not to locate a traffic particular place, at a but that once the decision was made, signs placed were to be in accord with stan- by Therefore, developed highway dards commission. signs placement the actual was ministerial. This question presented court held that a of fact was toas signs question properly placed. whether had been The court also concluded that the named defendants had nondelegable duly signs prop- were see erly placed. question presented

A different of fact is here as to alleged negligence performance whether is in the ministerial duties the individual defendants. It can- complaint on the basis of not be said prove any set of facts be unable to plaintiffs will would entitle them of their claim which support relief. added) (footnotes

Cords, 2d at (emphasis 62 Wis. 35-41 omitted). Lister, us back to where brings 74. This stated as follows:

court public a officer is not general rule is that injured of an act to one as a result personally liable authority and scope of his official performed within exceptions to duty. official The various in the line his balancing of the by judicial determined a this rule are freely their functions public perform need of officers to right aggrieved party to seek redress. against the an recognized exception to the generally The most damages immunity for rule of is that an officer is liable negligent performance purely of a resulting from his duty. A is ministerial ministerial officer's absolute, imperative, only it certain and involv- when is performance specific a task when the ing merely the time, mode and imposes, prescribes law defines performance certainty with occasion its such nothing judgment remains or discretion. added) (citations Lister, (emphasis 2d at 300-01 omitted). Lister shifted the focus from liability limited the severely exception and it

immunity, words like ministerial with immunity by defining that had been used "absolute, certain and imperative" in- immunity, governmental before when many years was still in full force. This immunity, cluding municipal with cases inflexible formulation was inconsistent rigid, like Chart and Cords. Lister never mentioned Holytz. None of the Lister justices had participated Holytz decision. In v. Raymond, 80 Wis. 2d Lifer

503, 259 (1977), N.W.2d 537 the supreme court rewrote history as it firmed up effective restoration governmental immunity. an Rebutting accident victim's exaggerated argument that under Holytz there should be no distinction between the liability of a state em and the ployee of a liability private citizen, the court stated as follows: Holytz

That is not what says or Holytz means. dealt sovereign the doctrine of immunity in an action against governmental body, not public officer.

Although plaintiff contends that the defendant is only immune from suit legislative, for acts which are judicial, quasi-legislative quasi-judicial, or we base our contrary conclusion principles on the of official immu- nity set out in Lister that the defendant is not for liable his discretionary To acts. so hold is imply not to that immunity test of a state officer set out is Lister different from the immunity test of a municipal officer 895.43(3), under sec. quasi- Stats. A legislative act involves the exercise of discretion or judgment in determining policy to be or carried out the rule to be followed. A quasi-judicial act involves the exercise of judgment discretion and application in the specific of a rule to facts. Acts "legislative, that are quasi-legislative, judicial quasi-judicial functions," are, definition, by nonministerial applied, acts. As terms "quasi-judicial or quasi-legislative" and "discre- tionary" synonymous.... are (citations omitted).

Lifer, 80 Wis. 2d at 510-12 by au unsupported This 77. pronouncement, ¶ For, law. of Wisconsin tort as thority, changed the course treatise, in his "It would be noted Professor Prosser no matter act, of official how any difficult conceive did not of some discre ministerial, admit directly if its even it performance, in the manner of tion Prosser, a nail." at only supra, driving involved 462, 189 P. Angeles County, Ham v. Los 1017 (quoting 1920)). (Cal. App. Lister, have become the Kimps 78. Lifer, ¶ militantly unpro- that define the hallmark decisions as government state of law. So far Wisconsin gressive concerned, immunity is has for torts responsibility the rare liability the rule and has become become to a crawl space Justice has been confined exception. narrow for most tort victims to fit. too

VI hand, In the appeals 79. case court v. Umansky to deal with these decisions. ABC forced Co., 445, 2008 WI 313 Wis. 2d 756 N.W.2d Ins. App well- opinion Vergeront scholarly, 601. The Judge reasoned, and it is Fortunately, highly persuasive. being in an majority opinion by excellent adopted Crooks. or later this court will realize Justice Sooner justice. is the accountability price stated, For I respectfully the reasons concur. I am authorized to state that JUSTICE N. PATRICK this concurrence. joins CROOKS (dis- ZIEGLER, J. 82. ANNETTE KINGSLAND The issue before court is whether senting). Barry Wisconsin, of the Fox, an individual state of is employee ABC, immune from for an accident to an Inc. liability 666 employee working Camp who was Randall Stadium. majority opinion I must dissent from the because the majority ignores plain language of the Wisconsin improp- statutes administrative code and instead erly provisions relies on OSHA to create ministerial duty where none exists. majority

¶ 83. As a result of the decision, a wind- recovery potentially any fall employee created for non-state compensation

who can obtain both worker's recovery against employee, and a injured the state while an employee

state under the same circumstances compensation recovery. be would limited to worker's majority opinion opens any also the door to allow injured frequenter recovery against the state or a state employee. today, Until state treated legislature differently private employer than a in order protect public Accordingly, respectfully I fisc. dissent.

I. MINISTERIAL DUTY BY IMPOSED LAW general applied ¶ 84. "Under rule as in Wis employees consin, state officers and are immune from injuries personal liability resulting per from acts scope Kimps formed within their official duties." (1996) (citing Hill, 1, 10, v. Wis. 2d 546 N.W.2d151 Regents, 282, 300, Lister v.Bd. 72 Wis. 2d 240 N.W.2d (1976)). public immunity officers, For is the rule liability exception, municipalities, is the unlike liability immunity exception. where is the rule and is the Progressive Co., dl v. 71, 22, Lo N. Ins. 2002 WI Immunity Wis. 2d 646 N.W.2d314. largely officers and "is state based upon public policy spring considerations that from the protecting public purse preference interest and a for judicial than redress the actions for rather political Id., forth number of (setting a public of officers." ¶ considerations). policy however, is not immunity, 85. This doctrine of

¶ Id., is immunity 24. There no without exceptions. ¶ "1) the of performance associated liability with: against 2) law; and com- imposed by ministerial duties known that rise to ministerial duties give pelling dangers 3) of officers or acts involv- part employees; 4) discretion; malicious, that acts are ing medical intentional." Id. willful, exception 86. "The ministerial is not so ¶ immunity an as a that law exception recognition much ministerial distinguishes discretionary between acts, former but immunizing performance Id., "A 25. ministerial one that 'is latter." absolute, imperative, involving merely certain and a the law performance specific imposes, task when time, and defines the mode and occasion prescribes its with such that re- performance certainty nothing (citing Lister, Id. judgment mains for or discretion.'" 301). 2d at assist in whether an act is determining To ministerial, traditionally this court has discretionary or statute, as things examined such administrative code, or materials are unique specific other case, such manuals. job descriptions policy as Lister, in the court asked to example, For if registrar's decide classification students nature. Id. at 300. tuition was ministerial purposes plaintiffs argued registrar when the determines residency status, a student's which could entitle the costs, student tuition the determination was to lower Id. The relevant statute provided part, ministerial. (l)(a) Any adult student who has been a fide bona resident of year the state for one next preceding the beginning any semester for which such student registers university at the ... shall while he continues a resident of the state be exemption entitled to from nonresident tuition....

(3) In determining residence, bona fide filing of state income tax Wisconsin, returns eligibility for voting state, in this registration motor vehicle in Wis- consin, employment and in Wisconsin shall be consid- ered. ... (1969-70).

Wis. Stat. 36.16 89. The court concluded that "[t]he statute did prescribe classification process with such cer- that tainty nothing remained for the administrative Lister, officer's judgment and discretion." 72 Wis. 2d at 301. The court stated that "[i]t must be conceded that an officer charged with the administration and applica- tion of the standards set forth in [§] [] 36.16 could make mistakes in judgment which would result an errone- ous classification." Id. result, 302. As a the court concluded that "the policy considerations underlying the immunity principle require that the officer be free from the threat of personal liability for damages result- ing from mistakes of judgment." Id. In Kimps, the plaintiff was injured at the

University Wisconsin-Stevens Point while moving "volleyball standard." Kimps, 200 Wis. 2d at 6. As she moving "standard," "the metal base separated from the pole and fell onto her foot." Id. The plaintiff asserted that the safety director was liable because he breached a ministerial duty set forth in the safety description. Id. at 14. job director's job The description all "Investigate incidents part: in relevant provided that procedure the condition take action to correct Id. plaintiff argued accident." caused the similarly injured a maintenance worker was because earlier, should have per- director years safety two set or directed someone sonally screws tightened prevent screws in order another the set tighten safety Id. The court concluded accident. a ministerial did not create job description director's " 'time, for per- mode occasion' duty because the maintenance worker's forming investigation an correc- appropriate accident determination totally [the action be taken remained within tive Id. discretion." at 15. safety judgment and director's] Lodl, plaintiff police In asserted that the ministerial manually traffic officer had a control control no lights at an intersection where traffic were Lodl, 323, 6-8, 2d 27. This longer working. ¶¶ that and the court concluded statute applicable confer ministerial department's policy did not a police Id., manually officer to direct traffic. duty police did not direct the officer 27-28. The statute issue ¶¶ traffic in any manual control situa perform specific tion, and manual control policy described traffic if the decided only manually officer procedures Id. Neither the statute nor the policy control traffic. officer's as to or where eliminated the discretion when Id., manual traffic control. 28-31. undertake ¶¶ Bakke, v. 92. In that a asserted plaintiff ¶ Noffke a duty rules established ministerial cheerleading spirit mats required spotter that the coach to provide WI 10, for a stunt. 2009 315 Wis. 2d cheerleading ¶ 350, 760 156. We rules N.W.2d concluded the spirit as were more characterized appropriately "guidelines" language dictating and did not include mandatory specific example, spirit ¶ Id., action. 45-47. For provided part spirit "[a]ll rules activities should spirit be held in a location suitable for activities with away mats, obstructions, use free of from excessive noise or Id., distractions." 46. As a result, spirit we determined that the rules did not set forth a duty, they provided ministerial leading rather, but the cheer- significant coach Id., discretion. majority hand, In the case at concludes duty imposed by precludes

that a ministerial law im- munity disagree I, however, this case. that Fox has a duty imposed by ministerial law under the facts of this Umanskys majority case. The and the focus their atten- regulations tion on the federal OSHA that have been incorporated into the Wisconsin Administrative Code. They argue individually that Fox had a ministerial platform's railing. to ensure that the front side had a A proper analysis, begins plain reading however, with a Wis. Stat. 101.055 and then the Wisconsin Adminis- beginning language Code, trative rather than with the regulations. of the federal

A. Wisconsin statutes and administrative code

¶ 94. In order to determine if Fox had a ministe- necessary rial in the hand, case at it is to review the Wisconsin statutes as well as the administrative incorporated by portion code, which has reference a regulations. the federal purpose "[T]he statutory interpretation

¶ 95. may to determine what the statute means so that it be given proper, full, its and intended effect." State ex rel. County, Kalal v. Circuit Court Dane 2004 WI ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. This court begins statutory interpretation language with the of the Id., is plain, of the statute meaning If the 45.

statute. ¶ its language give and inquiry ordinarily stop we except meaning, "common, accepted and ordinary, are or phrases words or specially-defined technical meaning." or definitional special technical their given Id. are im- a statute structure of and 96. Context

¶ "There- Id., of the statute. meaning ¶ portant in the context interpreted is fore, language statutory whole; of a but as used; part in isolation it is which closely- or surrounding language in relation to absurd or to avoid statutes; reasonably, and related Id. "[statutory Moreover, results." unreasonable reasonable to give possible is read where language Id. avoid word, surplusage." in order to to every effect may readily apparent be scope or purpose "A statute's surround- relationship to or its language from its plain is, from its context statutes —that closely-related ing Id., whole." statute as coherent or the structure " clear plain, analysis yields 'If this process ambiguity, there is no then statutory meaning, of its to this ascertainment according applied statute is omitted). Id., (citation statutory If meaning.'" consult not need to we do unambiguous, language Id. interpretation. sources of extrinsic (2001-02)1 pro § 101.055 Stat. 97. Wisconsin part: in relevant vides

(1) give of this section to It is the intent INTENT. any state, any agency and of employees of the rights protections of this state political subdivision equivalent to safety health relating occupational under private sector granted those are to Statutes references to the Wisconsin subsequent All indicated. otherwise version unless the 2001-02 (5 occupational safety and health act of 1970 USC 5108, 5314, 7902; 636; and 15 USC 633 and 1114; 678; USC 29 USC 553 and 651 to 3142-1 USC 1421). and 49 USC STANDARDS,

(3) (a) department The adopt, shall by rule, protect safety administrative standards public employees. health of and standards shall provide protection equal provided at least to that private promulgated sector under standards occupational safety the federal and health adminis- .... tration 98. Pursuant 101.055, to Wis. Stat. the Wis- Code,

consin Administrative Ch. Comm Public Health, Employee Safety provides relevant part: Purpose. chapter Comm 32.001 This establishes occupational safety minimum and health standards public employees. Scope.

Comm The provisions chapter 32.002 of this apply places employment public buildings all public employer. of a

Comm 32.01 Definitions....

(5) employee" "employee", "Public as defined in s. 101.055(2)(b), Stats., state, any employee means any agency any political state or of subdivision of the state. Safety standards. OSHA and health

Comm 32.15 IV¡all in s. Comm 32.16 and subch. Except provided as buildings public of a employment places of Occupational comply with the federal employer shall (OSHA) require- Safety and Health Administration Comm 32.50. adopted ments under s. §

¶ 32.50 in- Admin. Code Comm 99. Wisconsin by corporates 1910, C.F.R. Part reference 29 which 1910.23(c)(1): § part provides in at 29 C.F.R. relevant 4 more Every platform floor or feet or open-sided adjacent ground guarded or level shall be above floor (or railing equivalent specified in a the as standard (e)(3) section) open except sides paragraph of this all stairway, ramp, entrance to or fixed where there is a ladder.... reading

¶ text of the relevant 100. When provision, and administrative code it statute Wisconsin duty that Fox did not have a ministerial becomes clear following railing a in this case for the four to install reasons. § First, and Wis. both Wis. Stat. 101.055 § plainly Comm 32.001 state that

Admin. Code pursuant provisions adopted to these are standards safety public protect meant to and health of em- employee employee" any ployees. or "means "Public any agency any employee state, state or of political of the state." Wis. Admin. Code subdivision 32.01(5). § Thus, to the extent that a ministerial Comm duty may provisions, out of these that ministerial arise Umansky, duty public employees. however, is owed to private employee ABC, Inc. Because was only provisions public em- relevant ployees, any address action Fox could have taken would 674 have rather Umansky discretionary benefitted ministerial. than Second, decision to refer- legislature's only

ence and thus limit must be because the provision's applicability respected broadly. could have been drafted more See C. provisions Milwaukee, Relocation Inc. v. 2008 Coakley Sys., City of n.10, 456, 2d WI N.W.2d that courts must (stating presume legislature statute; it in a says legislature's what means omis- sions must be and it is respected; generally accept- statute). into the If the able for courts to insert words meant for this statute to to more than legislature apply it could have included other just public employees, verbiage, example, such as the word For "frequenters." 101.11(1), Wis. Stat. to furnish safe Employer's "[e]very that employment place, provides employer shall for the shall furnish which be safe employment furnish a place employ- therein and shall employees ment which shall be therein safe for safety thereof and shall furnish and use frequenters added.) . . In con- safeguards (Emphasis devices and . trast, used no such to legislature language expand the in the coverage beyond public employees provisions however, The majority opinion today, now at issue. a the deep pocket any frequenter makes state "fre- state the fact the term building despite statutes and codes. is absent from the relevant quenter" Lister, Lodl, Third, unlike in Kimps, no the documents contained controlling where Noffke could duty restrictions as to whom a ministerial be in contain a owed, the statute and code this case do duty may restriction as to whom a ministerial be must respect owed —a We employee. enacted legislature decision. When legislature's protective provisions, protection pub- it limited that employees. provide public lic employee This, however, does not protection private employee

with more than a §§ because 29 C.F.R. 1910.2 and 1910.23 on their face protect private employees. private employ- Therefore, protection; they protected by ees are not without are provisions employer the OSHA and the that their owes them. foregoing interpretation Fourth, is con principle

sistent with the that an administrative rule may provide protection not be read so as to broader contemplated by authorizing than that its statute. Mfg. Health, Josam Co. v. State Bd. 26 Wis. 2d (1965). authorizing 600-01, 133 N.W.2d 301 stat clearly ute, Wis. Stat. 101.055, sets forth that protections belong specifically public employees. If provisions we conclude that at issue here could duty Umansky, establish that Fox had a ministerial reading provisions beyond we would be well purpose protecting public employees. stated ¶ 105. While I conclude there is no ministerial majority case, this I further note that the does completely argument regard address Fox's public employees platform whether worked on the question. Majority op., Though 22 & n.16. it is true argues Umansky prove that Fox needed to that a public employee working platform on the at Umansky argument time majority fell, an which the argues id., address, does Fox in the alternative that it necessary public employees was at least to show that in employment the course of their had worked on the platform question point public in at some in time. If no platform, ever worked on the then it would regulated "platform" not have been a under 29 C.F.R. 1910.21(a)(4) § perspective, from the state's and Fox in railing no to have a under obligation could have been this as argument discussed appeals The court place. open left the on remand follows, question and expressly to evidence: present for Fox apply regulation did not because

Fox asserts that the platform ever is no this was used there evidence workspace.... points Fox out that employee as a public 1910.21(a)(4) § "platform" in 29 C.F.R. definition of the persons, elevated the working space "A above is ground; balcony as a surrounding floor or such machinery operation equip- platform for the the position, As Fox's because ment." we understand ch. Comm is to Admin. Code purpose Wis. occupational safety health establish "minimum employes," Wis. Admin. Code standards 1910.23(c)(1) (Mar. § 1999), 29 C.F.R. 32.001 Comm Umansky fell platform from which apply does not space public employee. it the work unless was (and view, perhaps Inc. other Apparently in Fox's ABC well) responsible for com- as commercial stations was regulation regarding par- this with federal plying obligation no University had platform ticular ch. 32.... under Admin. Code Comm do so fully developed, as it record not [T]he . . . factual argument likely had Fox raised this would have been is, present That while the evidence at the circuit court. platform, we do employees used this indicates no state know had there been evidence show what the would platform.... exploration of use of further appeal, rule on this Although apply we waiver circuit from nothing opinion prevents court our on remand to the argument to raise this permitting Fox resolving we are this suggest circuit court. as not So in the phrase rulings we our appeal, on this issue following caveats. paragraph italicized developed undisputed facts and Based on the (1) us, conclude: Fox arguments presented we responsible compliance safety for with state and federal regulations job responsibility and this is sufficient to impose comply on him the 29 with C.F.R. 1910.23(c)(1) § regulation applies as the to his insofar (2) height employer. Given the and structure platform (including and upper platforms) lower and side, open at least one Fox had a ministerial railing specified have a standard or in an alternative as 1910.23(c)(1) open § 29 C.F.R. on side or sides upper platform, employer required by Fox's was state if comply law regulation platform. this as to this Umansky App Co., ¶¶ 101, v.ABC Ins. 63-66, WI (footnotes 313 Wis. 2d omitted; N.W.2d emphasis original). majority short makes shrift argument by conflating argument of this it with Fox's public employee platform that a needed to be on the Umansky majority op., ¶ fell, the same time 22 n.16;& analytically argument however, it is an distinct question open necessitates this factual be left on remand. § 1910.21(a)(4), regu- 106. Under 29 C.F.R. "platform" working "[a] space

lated as defined persons, surrounding elevated above the floor or ground; balcony platform operation such as a for the machinery equipment." Wisconsin Admin. Code occupational Ch. Comm 32 "minimum establishes safety public employees." and health standards added). § (emphasis Admin. Code Comm 32.001 If no public employees platform ques- ever worked regulated "platform" tion, then it was not a under 1910.21(a)(4) perspective from the of the state admin- obliga- code, istrative Fox therefore no under railing. tion to maintain a Were that found be the only employer obliga- case, the who would had an have railing tion to maintain would ABC, Inc., be from only employer actual employer Umansky's —the in "platform" was fact a platform this whose perspective under OSHA. noted, of However, appeals as the court 107.

¶ fully developed" respect "the factual record is At 2d 64. the Umansky, this issue. ¶ appeals' the court of least, this court should follow very for further fact- lead leave this question open and of as a matter law concluding on remand before finding a on railing to maintain the that Fox was required If employees in no ever question. public platform it of scope the the Fox's platform, beyond worked on obligations. contrary The with a is holding 108. problem seriously The cannot intend majority sug-

obvious. maintaining railing of around that the burden gest be every single might architectural structure which as a at Randall parties platform Camp used third by on there must Certainly, should be Fox. placed Stadium duties, under a limit on the of his even scope be limit from lan- apparent view. That is majority's 32.001, which § Code Comm guage of Wis. Admin. "minimum oc- state conform requires employers em- public and health standards cupational safety added). are re- Private employers ployees" (emphasis OSHA. safety under employees' for their sponsible conclusions, should not to the Fox Contrary majority's everybody's keeper. to be expected be Umanskys majority argue The and the cannot depend nature of Fox's ministerial Fox's injured negli- who is person status is that such a distinction Umanskys The assert gence. provisions. Injury to the text of contrary .relevant is argue, the Umanskys public place employment, thus, and, in factor this case determining public private employees distinction and between theory. following irrelevant their under For three disagree I reasons, with the reliance on where the injury place disregard employee's takes for the public private employee. status as a argument ignores First, this the full text the Wisconsin While Administrative Code. Wis. Admin. § provisions "[t]he Code Comm 32.002 states chapter apply places employment this to all buildings public employer," aof the administra- "[t]his tive code chapter also states Comm 32.001 that occupational safety establishes minimum public employees." result, health standards As a together, provisions protect public when read these public places. Umanskys1 argument ignores the text of the relevant administrative code provisions.

¶ interpretation Second, 111. such an as not, does Umanskys argue, protection public the lead to more for employees private employees. private than for Both public employees equally protected working are when platform on the at issue in this On their face, case. the regulations apply protect private employee. OSHA a §§ 1910.1, See 29 C.F.R. 1910.2, case, 1910.5. In this failing ABC, $7,000 Inc. fined to ensure a that railing guarded platform.2 the front side of this The protects public through code administrative incorporation provisions. the reference of OSHA See §§ Wis. Admin. Code Comm 32.15 and 32.50. Both the

private employee public employee protected and the are Compensation provisions. under Wisconsin's Worker's fact, In ABC, it was Inc. and a camera technician ABC, requested Inc. railing that removed be because the camera technician he could "pan stated camera" when railing was in place. see Wis. Stat. 102; ch. See generally Wis. Stat. 102.03(2) recovery under right (stating § this em- against remedy is "the exclusive chapter ployer"). ABC is Third, employee it not that is 112. is not recourse, rather, but recourse proper

without re- A has employee individually. private Fox against the Umanskys' his Under course against employer. is to a employee, state entitled Umansky, unlike a logic, the ABC employee a state employee, windfall. Unlike one employer his recovery against can obtain one However, a employee. public a recovery against just recovery. be limited to one employee would 102.04(1) (The subject is to worker's com- state Stat. pensation.). reading I relevant conclude pro- their plain language consistent with

authorities duty to install did not have a ministerial vides that Fox I Umansky. Accordingly, railing for the benefit ministerial any that Fox did not violate would hold by law. imposed

B. OSHA provisions use the OSHA majority's The Umanskys improper. create a ministerial state, rather than Fox, an suing employee

are obvious. Were The reasons for this are Fox's employer. the state would directly, to sue the state Umanskys the under the doctrine of sover liability from be shielded DOT, 235 v. 62, 17, German 2000 WI immunity. ¶ eign ("It the axiomatic that 576, 2d 612 N.W.2d 50 Wis. the consent express state cannot be sued without Lister, 291; Chicago, 72 Wis. 2d at (citing legislature.") State, v. 512-13, 10 N.W. M. & St. P. R. Co. 509, 53 Wis.

681 (1881); Bd., 560 Bahr v. Inv. 379, State 2d 521 (Ct. 1994)). App. N.W.2d 152 telling Umanskys

¶ It 115. is also that the have gone way having out of their to avoid the claim charac- being brought terized as under Safe Wisconsin's Place despite many allegations, Statute, the fact that of their glance, type at first would seem state the of claim brought that should be under that statute. See Wis. (requiring every employer Stat. 101.11 "furnish place employment employees shall which be safe for frequenters therein and thereof and shall furnish safety safeguards, adopt and use devices and shall processes reasonably adequate and use methods and employment places employment render such every thing reasonably safe, and do shall other neces- sary protect safety, life, health, the and welfare of employees frequenters"). majority opin- such The Umanskys' Majority op., ion the follows lead. 26. majority opinion's reasons for the place avoidance of the safe statute First, are obvious. duty imposed place the tionary under safe the statute is discre- duty.

and cannot form basis for a ministerial Spencer County Brown, 641, v. Wis. 2d (Ct. 1997). App. N.W.2d 222 Therefore, Fox, who is a employee, liability state is shielded from for violation place by public immunity, of the safe statute officer precludes liability against employees which state discretionary negligently acts undertaken. Id. imposed by place Second, safe duty imposed employer

statute is a or owner of facility question, employees. Employees place cannot be sued for a violation of the statute, safe duty imposed nor can the egated by under that statute be del- employer or owner to the in a allowing employer manner or owner to avoid liabil- 624, 615, 2d 201 N.W.2d Taylor, Pitrowski v. 55 Wis. ity. ("[A] (1972) be brought only action can safe-place 52 not an against employer corporation an against safe-place corporation.... [A]s of the employee liable, it who is rather than statute,'... employer is the v. (quoting Wasley of the employer....'" an agent Kosmatka, (1971)); 738, 744, 184 2d N.W.2d 821 50 Wis. Co.,& v. Arthur G. McKee 100 Wis. 2d Dykstra see also ("It (1981) is, course, clear 120, 130, 301 N.W.2d 201 owner or under safe duty of an employer if even Accordingly, nondelegable."). statute is place a ministerial which it imposed duty, safe statute place not be for a not, Fox, an could sued employee, does Pitrowski, See 2d 55 Wis. violation of its provisions. 624. sued for a viola- Fox cannot be Although statute, contrasts can significant

tion of the safe place and the OSHA the safe statute place be drawn between a minis- majority uses to manufacture regulations terial for Fox. OSHA First, imposed by although but just not on

regulations duty imposed employers, 654(b), well, § 29 sanctions for as U.S.C.A. either an regulations by with OSHA noncompliance solely on the shoulders rest employer employee OSHA be cannot sanctioned employer; employees v. 411, Doig, See United States 950 F.2d 413 violations. 654(b)'s (7th 1991) that, § di- despite Cir. (concluding rective, sanctioning employ- OSHA does permit OSHA; only employers ees their own violations Stevedores, Inc. & v. Atlantic sanctioned); can be Gulf (3d 1976) (same); OSHRC, see 541, 534 F.2d 553 Cir. (6th Indus., Inc., v. U.S. F.2d also Minichello 1985) ("OSHA only to regulations pertain employ- Cir. conduct.") McKinnon v. Skil 654; (citing ers' U.S.C. (1st 1981)). Corp., 270, 638 F.2d result, 275 Cir. As a duty comply regulations to is, OSHA in a manner speaking, nondelegable, employers because cannot noncompliance arguing by avoid sanctions for that it employee's, employer's, responsibility was the not to comply duty imposed. with the § 653(b)(4),

¶ 120. Second, under 29 U.S.C.A. vio- expanding lations of OSHA.cannot be as a used basis for diminishing liability; or common law is, civil that OSHA private right does a not create of action that did not already Minichello, exist at common law. 29; 756 F.2d at (6th Bartley, see also v. 334, Russell 494 F.2d Cir. 1974) ("[T]here legislative history is no or case to law support [the] proposition private that OSHA created remedy language [29 U.S.C.A.] civil and the clear 653(b)(4). § specifically congressional . . evidences contrary"). intention Having principles, ¶ 121. set forth these the flaw majority opinion's analysis apparent. in the becomes majority using regulations, The is OSHA which do impose duty employees, Doig, a sanctionable private 413, F.2d at and which do not create a civil remedy, Russell, 335, 494 F.2d at to create a civil claim against employee an there where would not otherwise precluded by public a be claim because it would be immunity. by using regulations is, officer That OSHA as creating duty, being the basis for a ministerial OSHA is expand liability used to it where would not otherwise directly contrary express exist. This is to one of OSHA's congressional directives:

Nothing chapter in this shall be construed to ... or enlarge any diminish or affect in other manner the statutory common rights, law or or duties liabilities of employers any under respect law with of, injuries, employees arising or death out diseases of, employment. in the course 653(b)(4). 29 U.S.C.A. using is majority opinion improperly 122. The could Although a new civil claim. one

OSHA create OSHA as use evidence regulations see, has breached, e.g., care been ordinary exercise (1st Co., 1998), 134 F.3d Cir. Elliott v. S.D. Warren further, OSHA goes using regula- the majority opinion Fox, a ministerial a state tions to establish with this demonstrated employee. problem following discussion. the of ordi duty 123. The distinction between ¶ ministerial is critical under duty care and a nary than something A more duty requires stand. ministerial 2d care. 200 ordinary Kimps, the exercise of See Wis. ("Just conduct jury 11 a can find that certain because into a not transform that conduct negligent was does ("The 12 a id. at n.8 of ministerial duty."); breach care does not neces duty of a to another existence ministerial."). Accord duty the was sarily imply that as a immunity officer is asserted when ingly, public defense, excep and ministerial is asserted as an duty a defense, is assumed. negligence Noffke, tion to ("The defense assumes immunity 2d ¶ 17)). Lodl, 2d 323, 253 Wis. negligence." (citing ¶ Therefore, if that Fox had ministerial it can be shown majority perform, that he failed to which duty be is sole will here, question concludes presented failure to that ministerial perform whether Fox's a cause Id. Umansky's injuries. for Fox based creating In a ministerial majority OSHA eviscerates regulations, 653(b)(4). § of 29 U.S.C.A. Stated express directive majority regulations otherwise, the uses OSHA to cre- ate a cause of action where no cause of action would Furthermore, otherwise exist. this cause of action will prove ordinary negligence. now be even easier to than majority's analysis 125. The effect of the is not just disregard 653(b)(4), By 29 U.S.C.A. however. giving Umanskys a cause of action on these facts allegations they and based on the forth, have set majority permitting Umanskys pursue is what is essentially place an action under the safe statute, while allowing them to avoid the inconvenient case law stat- (1) ing duty imposed by place the safe statute discretionary, not ministerial, and therefore cannot exception public immunity, create an Spencer, officer (2) only employer 651; Wis. 2d at an or owner place can be sued for a violation of the safe statute, Wasley, Pitrowski, 55 624; Wis. 2d at 50 Wis. 2d at 744. majority Umanskys' has allowed the creative law- yering to result in the manufacture of a new cause of action heretofore unheard of under Wisconsin law. It protections has abandoned all fisc that governmental immunity provide. is intended to

II. CONCLUSION requires straightforward analy- 126. This case sis of the Wisconsin statutes and administrative code in order to determine whether Fox was immune from liability arising out of an incident that occurred at Camp majority disposes Randall Stadium. The of this by ignoring plain language case of the Wisconsin improp- statutes and administrative code and instead erly provisions relies on OSHA to create a ministerial duty where none exists. Because Fox had no ministerial exception case, this there is no to the rule of that Fox is I conclude result, would As a immunity. therefore, I respectfully liability, immune from dissent. Justices PA- to state that authorized I am J. and MICHAEL DRAKE ROGGENSACK

TIENCE this dissent. join GABLEMAN

Case Details

Case Name: Umansky v. ABC Insurance

Court Name: Wisconsin Supreme Court

Date Published: Jun 17, 2009

Citation: 769 N.W.2d 1

Docket Number: 2007AP385

Court Abbreviation: Wis.