July 13, 2010 – A government worker cannot invoke immunity from negligence when guidelines establish nondiscretionary duties to perform and such duties are not performed, the Wisconsin Supreme Court recently held in Pries v. McMillon, 2010 WI (July 2, 2010).

In 2005, Michael Pries was one of 12 Milwaukee House of Correction inmates helping to dismantle horse stalls at Wisconsin State Fair Park. Raymond McMillon, a full-time employee at State Fair Park, supervised the employees. Each horse stall had four steel pieces, weighing 200 pounds each.

State Fair Park’s “take-down instructions” on stall disassembly required the supervisor “to always have someone holding up the piece that you are taking down.” McMillon, the court found, had knowledge of the dangers involved in deviating from the take-down procedures and no discretion to deviate from those procedures.

When a steel piece became stuck, McMillon jumped on and began shaking the piece loose despite knowing that other pieces were not secured by chains. Unsecured pieces fell, and one landed on Pries, causing injury. He sued, claiming McMillon was negligent. McMillon invoked governmental immunity as a state employee under Wis. Stat. section 893.80(4).

Procedural history

Governmental immunity is subject to common law exceptions. First, government officers or employees are not shielded from liability for the “negligent performance of a purely ministerial duty.” Second, an exception applies where the nature of a danger “is so compelling” that the government officer or employee “has no discretion not to act.”

The circuit court determined that McMillon was negligent, negligence played a substantial role in causing the injury, and Pries met his burden to prove that McMillon violated a ministerial duty to preclude governmental immunity.

The appeals court affirmed, but held that the “known-danger exception” to governmental immunity applied because McMillon knew it was dangerous to stand or jump on unchained stalls. The appeals court did not evaluate whether a ministerial duty applied.

In a majority opinion written by Justice N. Patrick Crooks, the supreme court affirmed (4-3), but held that a ministerial duty applied and did not decide whether the “known-danger exception” also applied. Two justices filed dissenting opinions.

Ministerial duty

The question was whether “take-down instructions” established a ministerial duty that McMillon violated when he shook a stall that was stuck knowing the chains were undone and knowing of the instruction to always have someone holding the stall when disassembling.

A ministerial duty involves the performance of a duty, the court explained, “when the law defines the time, and occasion for its performance with such certainty that nothing remains for judgment or discretion.” The court held that the take-down instructions are a source of law for purposes of establishing a ministerial duty, and McMillon violated that duty.

A ministerial duty arises when law or policy eliminates the discretion of a government officer or employee, and “we are satisfied that the set of procedures is a ‘source’ of law for purposes of establishing a ministerial duty,” the court wrote.

McMillon violated the duty, the court held, primarily because the mandatory take-down instruction required workers to “always” have someone holding up the stall piece when someone else was taking it down. That is, nothing “remain[ed] for judgment or discretion.’”

In addition, the ministerial duty “require[d] employees to ensure that the pieces they are taking down are secured,” and here they were not, the court concluded.

Notes

Both Justice Ann Walsh Bradley and Justice Michael J. Gableman filed dissenting opinions. Justice Patience D. Roggensack and Gableman joined Bradley’s dissent.  Chief Justice Shirley S. Abrahamson filed a concurring opinion.

Justice Bradley argued the decision “expands the liability of public officers far beyond the confines established by more than a half century of precedent.”

Justice Gableman argued that the court should reconsider its jurisprudence under the governmental immunity statute “to more closely align it with the legislative mandate.”

Chief Justice Abrahamson thought application of the “known-danger exception” provided a simpler and “more persuasive means to resolve the case.”

Attorneys

Assistant Attorney General Charlotte Gibson and Attorney General J.B. Van Hollen represented Raymond McMillon. Merrick Domnitz and Anthony Skemp of Domnitz & Skemp S.C., Milwaukee, represented Michael Pries.