Subcontractor gets governmental immunity as agent of city in negligence action

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 8, 2010 – Governmental immunity applies to a subcontractor working on a city construction project if the subcontractor meets the requirements to be considered an agent of the city and the city retains ultimate responsibility for the project.

That’s what the district III Wisconsin appeals court held in Bronfeld v. Pember Companies, Inc., 2009AP2297 (Oct. 5, 2010), a case in which the plaintiff, Beverly Bronfeld, sustained injuries after tripping over a barricade, placed to protect the work area of subcontractor Pember Companies. Bronfeld claimed Pember “negligently constructed barricades and safety signs and failed to maintain a safe site for the public.”

In 2007, the City of River Falls contracted with Monarch Paving (general contractor) and Pember (subcontractor) to revamp a downtown intersection. Pember was responsible for constructing new sidewalks and crosswalks.

The city engineer assembled a project manual, which included specifications for installing and maintaining barricades during the course of the project. The manual also obligated the project to follow the Wisconsin Manual on Uniform Traffic Control Devices.

In accordance with the manual, Monarch submitted a traffic control plan, which the city approved, calling for the use of barricades “for road closed areas, and to maintain a barrier between construction activity and the traveling public.” Pember was contractually bound to follow the plan submitted by Monarch.

During the course of the project, Pember erected barricades along a crosswalk to protect the work area and divert traffic, and placed a “sidewalk closed sign” on the edge of the sidewalk that led to the crosswalk.

While walking near the work area one day, Bronfeld tripped over the leg of a barricade and fell, sustaining injuries. Bronfeld filed suit, alleging Pember “negligently erected barricades and safety signs and failed to maintain a safe site for the public.”

The Pierce County Circuit Court granted summary judgment to Pember on the grounds that Pember was entitled to governmental immunity as an agent of the city.

Agent of the city 

Wis. Stat. section 893.80(4) immunizes a local government’s agent from liability for acts involving the exercise of discretion or judgment, the appeals court explained. Sign placement is a discretionary duty, and a barricade is considered a sign, the court noted.

Under Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), the court explained that an independent government contractor is an agent for purposes of section 893.80(4) and “entitled to immunity if: (1) the governmental authority approved reasonably precise specifications; (2) the contractor’s actions conformed to those specifications; and (3) the contractor warned the supervising governmental authority about possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.”

First, the court rejected Bronfeld’s argument that the city did not approve precise specifications for barricade placement, traffic control and safety signs, citing the project and Wisconsin manuals and the traffic control plan as evidence of precise specifications addressing those issues.

Although the specifications provided for “approximate locations” for sign and barricade placement, the court explained that “specifications need not spell out every minute detail of a project to qualify as ‘reasonably precise.’”

Further, although the contract relinquished the city’s responsibility for “initiating, maintaining and supervising all safety precautions and programs in connection with the [work],” the court explained that such relinquishment did not change the fact that “Pember was contractually obligated to follow the specifications in the project manual and traffic control plan.”

“[T]here is no reason a contractor cannot be held generally responsible for safety on a job site while also being required to follow reasonably precise specifications approved by a governmental entity,” the court wrote.

In satisfying the second prong of Lyons, the court found evidence that Pember followed the specifications in placing the barricades and safety signs, and no evidence to the contrary.

Finally, under the third prong of Lyons, the court found no evidence that Pember was aware of specification dangers that it was required to warn the city about.

Thus, the court held that Pember satisfied all three prongs of Lyons to be considered an agent of the city and thus immune from liability. 

Highway defect argument 

Because Bronfeld failed to raise the issue at trial, the court quickly disposed of Bronfeld’s argument that her negligence action involved a “highway defect” under Wis. Stat. section 893.83(1), an exception to the general rule of governmental immunity.

However, the court explained that even if the issue were preserved for appeal, the argument would not stand because “the undisputed facts demonstrate this case does not involve an actionable highway defect.”

That is, negligent placement of barricades does not involve the structural or construction components of the road bed and surface, as required by section 893.83(1).