Jan. 4, 2019 – In a tragic case involving a young girl who drowned at summer camp, the Wisconsin Supreme Court has ruled that the City of New Berlin does not have a governmental immunity defense to a negligence claim because an exception applies.

The parents of eight-year-old Lily Engelhardt filed a lawsuit against the city after Lily drowned on a summer camp field trip to an aquatic center. Lily could not swim.

Lily’s mother told the camp coordinator that Lily could not swim and questioned whether Lily should go. The coordinator said staff would evaluate her swimming ability at the pool and she could be restricted to the splash pad area. But that did not happen.

The lawsuit, filed by the Engelhardts in 2014, claimed the city’s summer camp staff was negligent because Lily did not receive a swim test before she entered the water and the coordinator did not tell other staff that Lily could not swim or properly supervise her.

Lily was among nearly 80 campers and most of the campers entered the pool without a swim test even though new campers were advised to see a camp leader first. Lifeguards discovered Lily distressed in the pool but could not save her in time.

The city argued that governmental immunity applied to bar the lawsuit. The circuit court rejected that argument, denying the city’s motion for summary judgment. The city immediately appealed the circuit court’s decision, and the court of appeals reversed.

In Engelhardt v. City of New Berlin, 2019 WI 2 (Jan. 4, 2018), a four-justice majority of the state supreme court reversed the appeals court, concluding that a “known danger” exception applied to bar the city’s assertion of a governmental immunity defense.

“[T]he danger to which Lily was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident,” wrote Justice Shirley Abrahamson.

“The obvious dangers involved here resemble other obviously hazardous circumstances presented in Wisconsin cases that applied the known danger exception.”

Three justices – Justices Rebecca Dallet, Rebecca Bradley, and Daniel Kelly – agreed that governmental immunity could not shield the City of New Berlin from a negligence claim by the Engelhardt family, but not because of the known danger exception.

“While the majority opinion chooses to expand the narrow exception to immunity carved out for a ‘known danger,’ I apply the plain language set forth in Wis. Stat. § 893.80(4) to reach the same result,” wrote Justice Dallet in a concurring opinion.

The Immunity Statute and Known Danger Exception

Wis. Stat. section 893.80(4) bars lawsuits against municipalities and their employees “for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” Discretionary acts in the exercise of these functions are protected.

The majority declined to adopt an interpretation of the governmental immunity statute, urged by the Engelhardts, which would reverse long-standing precedent and open municipalities to lawsuits in more circumstances than the statute currently allows.

“It is unwise for a court to frequently call into question existing and long-standing law,” Justice Abrahamson wrote. “Doing so gives the impression that the decision to overturn prior cases is ‘undertaken merely because the composition of the court has changed.’”

However, the majority said immunity did not apply under one of several exceptions to the immunity statute – the known danger exception – “known and compelling dangers that give rise to ministerial duties on the part of public officers or employees.”

Ministerial duties, according to the majority, involve duties that are “absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.”

The majority concluded that the pool was a danger to Lily, a camper who could not swim, and the known danger gave rise to a ministerial duty that was absolute: the staffers were required to test Lily’s swimming ability before she entered the water.

“The danger ‘was of such force’ that [the coordinator] had no discretion not to act – the circumstances of the situation imposed upon him a ministerial duty to test Lily’s swimming ability before shot got into the water,” Justice Abrahamson wrote.

Abrahamson – noting the circuit court was reviewing facts in the light most favorable to the Engelhardts on summary judgment – said the camp coordinator failed to test Lily or inform other staff that Lily could not swim. “He did nothing to ensure that Lily’s swimming ability would be tested before allowing her to be without direct supervision.”

The majority opinion noted the summer camp could have imposed procedures to ensure new campers like Lily would not have entered the pool without a swim test first.

Concurrence

Justice Dallet wrote a concurring opinion, joined by Justices Kelly and R. Bradley. They agreed with the ultimate conclusion: the City of New Berlin did not have immunity.

But the concurring justices took a different road to get there, concluding that the known danger exception does not apply to the facts of this case. That is, they said Lily’s presence at the pool did not present the “compelling danger” necessary for it to apply.

The camp’s coordinator had been taking kids to that aquatic center every week, every summer for 12 years, lifeguards were on duty, staff members were present, and there were procedures in place to protect campers who could not swim.

“While in hindsight Lily’s drowning can be said to be an ‘accident waiting to happen,’ most cases alleging negligence fit that broad definition,” wrote Justice Dallet, noting a swim test would have revealed Lily could not swim, which the coordinator already knew.

Although the concurring justices concluded that the known danger exception did not apply, they still concluded that the city did not have governmental immunity by applying the plain language of the governmental immunity statute, Wis. Stat. section 893.80(4).

The statute says immunity applies to “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” In this case, there were “guidelines” that camp staff members were required to follow, including close supervision of the kids.

“When the New Berlin camp staff failed to supervise Lily as required by the guidelines, they were not making any laws or exercising any judgments related to government business,” Justice Dallet wrote. “They cannot be said to have acted in a quasi-legislative or quasi-judicial manner and therefore governmental immunity does not apply.”

The supreme court reversed the appeals court and remanded the case to the circuit court to be decided consistent with the decision that immunity does not apply.