The 2012-13 Wisconsin Supreme Court term saw three decisions involving Wisconsin’s governmental immunity statute, Wis. Stat. section 893.80(4)^1:Bostco LLC v. Milwaukee Metropolitan Sewerage District, Brown v. Acuity, and Showers Appraisals LLC v. Musson Bros. Each of these cases dealt with a different aspect of governmental immunity law and each included potentially noteworthy developments in its respective area.

In Bostco, the court rejected a governmental entity’s claim of immunity for its negligent maintenance of its sewerage facilities and held that the entity could be required to expend millions of dollars to abate the resulting nuisance. In Brown, the court concluded that a governmental officer was not entitled to immunity because his conduct was governed by a ministerial duty created by a traffic statute.

And in Showers Appraisals, the court rejected a governmental contractor’s claim of immunity; the court based its decision on the nature of the contractual relationship and the type of act for which the contractor sought immunity under Wis. Stat. section 893.80(4). The Showers decision also noted that, at least for governmental contractors, the immunity statute requires contractors to affirmatively plead an entitlement to immunity under the governing statutory language.

Collectively, these cases may be read as potentially indicating an incremental shift in Wisconsin governmental immunity law,² reaffirming the fundamental principle that liability is the rule for governmental entities, with immunity being a limited exception under the language of Wis. Stat. section 893.80(4). The purpose of this article is to inform the legal community about these recent cases and to note some practical considerations for the bench and bar when analyzing immunity issues going forward.

Development of Wisconsin’s Current Governmental Immunity Jurisprudence

The doctrine of governmental immunity developed from the ancient principle of sovereign immunity that “the king can do no wrong.”³ Governmental immunity was intended to insulate governmental entities from liability for their torts and the torts of their officers, on the theory that these entities were performing public services with publicly funded budgets.⁴ Difficulty arose, however, in determining which governmental acts should be afforded immunity.

By the middle of the 20th century, the doctrine had developed into a tangle of labels, providing, for example, that governmental entities would be afforded immunity for certain “governmental functions” but not for other, factually similar, “proprietary functions.”⁵ These labels, the Wisconsin Supreme Court noted, “resulted in some highly artificial distinctions” that provided little guidance for governmental entities or courts attempting to discern which conduct should be entitled to immunity.⁶

Thus, in 1962, the court in Holytz v. City of Milwaukee sought to effect a sweeping reconceptualization of governmental immunity. In Holytz, the court abrogated the doctrine of broad governmental immunity and held that “henceforward, so far as governmental responsibility for torts is concerned, the rule is liability – the exception is immunity.”⁷ Holytz thus set an entirely new course for governmental liability, but also acknowledged that the legislature was free to enact legislation reinstating broad immunity. Moreover, the Holytz decision explicitly preserved limited immunity for governmental entities exercising legislative, quasi-legislative, judicial, or quasi-judicial (hereinafter legislative/judicial) functions.⁸

After Holytz, the legislature enacted Wis. Stat. section 331.43, effectively codifying Holytz’s limitations on governmental immunity. That statute was a predecessor to the current immunity statute, Wis. Stat. section 893.80(4),⁹ which provides in relevant part that “[n]o suit may be brought against any… [political] corporation, [governmental] subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions” (emphasis added).

Since its enactment, however, courts have struggled to define what types of acts or omissions are immunized under the governmental immunity statute.¹⁰ In particular, some commentators and jurists charge that the current governmental immunity doctrine immunizes too much governmental conduct, and that immunity law has returned to a pre-Holytz state, notwithstanding the plain language of Wis. Stat. section 893.80(4).¹¹

These criticisms seem to stem in large part from the use of the term “discretionary” as a synonym for the legislative/judicial functions included under Wis. Stat. section 893.80(4).¹² According to this interpretation, governmental entities and officers are immune for “discretionary” acts, subject to certain court-recognized “exceptions” to this “general rule” of immunity, such as when a governmental entity or officer violates a “ministerial duty.”¹³

This approach provides that immunity will be “pierced”¹¹⁴ only when a governmental actor violates a duty “that ‘is 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.’”¹⁵ Thus, under the discretionary-ministerial approach, governmental immunity is effectively presumed, and a party alleging injury must overcome this presumption by showing that the allegedly injurious conduct violated a specifically defined obligation.¹⁶

But the 2012-13 term’s immunity decisions might suggest some notable changes to governmental immunity law. For example, one potentially significant change is the apparent shift in the pleading standard for establishing immunity (at least for some entities): in Showers, the court held that a governmental contractor claiming immunity must clearly plead its entitlement to immunity, rather than the plaintiff being required to establish that immunity does not apply.¹⁷

And while last term’s governmental immunity decisions expressly declined to alter the discretionary-ministerial framework,¹⁸ the decisions did address some of the definitional difficulties surrounding Wis. Stat. section 893.80(4)’s legislative/judicial terminology. For example, the court in Showers stated that legislative and quasi-legislative functions “generally refer to those policy choices made in an official capacity, e.g., when a governmental entity chooses one project design over another,” and that quasi-judicial functions “involve the exercise of discretion in coming to a judgment, the availability of a public hearing on the judgment before a specialized board, and the imposition by a board of an appropriate final decision.”¹⁹

Thus, the 2012-13 term’s cases might be read to suggest an incremental refocusing of the immunity inquiry onto the plain language of Wis. Stat. section 893.80(4),²⁰ while gradually shifting away from the “artificial” distinction drawn in case law between discretionary functions and ministerial duties. As one of the 2012-13 term’s concurring opinions reiterated:

“Stating the reasons for the discretionary-ministerial distinction is much easier than stating the rule.… An act is said to be discretionary when the officer must exercise some judgment in determining whether and how to perform an act. The problem is that ‘[i]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.’”²¹

As discussed below, each of last term’s governmental immunity decisions grappled with this difficulty, but also provided guidance for attorneys confronting these issues in future cases.

Bostco: Governmental Entity’s Duty to Abate Nuisance Created by Its Negligent Maintenance of Sewerage Facilities

The first immunity case heard by the court during the 2012-13 term was Bostco LLC v. Milwaukee Metropolitan Sewerage District,²² which involved allegations by the owners of the Boston Store buildings in downtown Milwaukee (Bostco) that the Milwaukee Metropolitan Sewerage District’s (MMSD) operation of its sewerage facilities was causing continuing damage to Bostco’s buildings. Bostco claimed that leaks in the MMSD’s “Deep Tunnel” project – a 400-million gallon underground storage system for storm water awaiting treatment – was draining groundwater beneath Boston Store, thereby causing millions of dollars of damage to the buildings’ foundations. Bostco asserted claims for negligence and nuisance.

A jury found that the MMSD was negligent in its maintenance of the Deep Tunnel, the negligence caused Bostco’s damages, and the past and future damages amounted to $9 million (reduced to $6.3 million because of Bostco’s 30 percent comparative negligence). Pursuant to the damages cap in Wis. Stat. section 893.80(3), the circuit court further reduced the damages award to $100,000 ($50,000 each for two plaintiff-owners). Additionally, the jury rejected Bostco’s nuisance claim, finding that the MMSD’s negligent maintenance of the Deep Tunnel unreasonably interfered with Bostco’s use of its property, but that the MMSD’s interference did not result in “significant harm.”

After opposing post-verdict motions were filed, Bostco sought injunctive relief, arguing that a $100,000 recovery for $6.3 million in damages was an inadequate remedy at law. The circuit court agreed and ordered the MMSD to line portions of the Deep Tunnel with concrete.

On appeal, the court of appeals rejected the MMSD’s claim of immunity, concluding that the MMSD violated a ministerial duty by failing to properly maintain the Deep Tunnel. Nonetheless, the court of appeals concluded that Bostco was not entitled to injunctive relief, because such relief would nullify the Wis. Stat. section 893.80(3) damages cap.²³

The supreme court agreed that the MMSD was not entitled to immunity. But the court went one step further, concluding that Bostco was entitled to injunctive relief. The court held that the MMSD’s negligent maintenance of its Deep Tunnel constituted a continuing nuisance, and that the MMSD had a duty to abate the nuisance. The duty to abate, the court stated, is a “ministerial duty,” because proper maintenance of the Deep Tunnel is not a legislative/judicial function for which immunity would be available under section 893.80(4).

The court relied on prior case law holding that once a governmental entity makes a decision to install a particular system or structure, “the entity is under a subsequent ministerial duty to maintain the system or structure in a safe and working order.”²⁴ Therefore, the court held, notwithstanding the MMSD’s exercise of any actual discretion in its maintenance of the Deep Tunnel, the MMSD was not entitled to immunity for its failure to exercise due care in maintaining the tunnel.

Thus, while the Bostco decision reaffirmed the applicability of the discretionary-ministerial approach for governmental immunity, the court’s holding seems to connect the provision of immunity with the exercise of legislative/judicial functions expressly stated in Wis. Stat. section 893.80(4).²⁵ The court’s reasoning therefore suggests that after the legislative/judicial function of selecting a plan or design is completed, more types of governmental conduct may be governed by the “ministerial duty” of exercising due care in the performance of non-legislative/judicial functions.

Additionally, the Bostco court interpreted Wis. Stat. section 893.80(3), which establishes a $50,000 damages cap for recoveries against governmental actors. Examining the statutory text, the court concluded that section 893.80(3) did not preclude injunctive relief, even though such relief may require the MMSD to expend millions of dollars to abate the nuisance caused by its negligent maintenance of the Deep Tunnel.²⁶

The effect of the Bostco decision, then, is that governmental entities may be required to expend significant resources to remedy ongoing injurious conditions when those conditions were caused by the entity’s negligent conduct and the conduct is deemed to fall outside the entity’s legislative/judicial functions. How the courts will continue to define these functions remains to be seen, but the court’s two other governmental immunity cases in the 2012-13 term provided further guidance regarding other types of conduct that would not be entitled to immunity under section 893.80(4).

Brown: No Immunity for Governmental Officer Who Failed to Obey a Traffic Statute

The second immunity case, Brown v. Acuity,²⁷ involved a negligence claim against a volunteer firefighter who, while responding to an emergency call, drove his vehicle through a red stop signal, with the vehicle’s emergency lights flashing but without any audible signal. His vehicle collided with another vehicle in the intersection, causing injuries to the individuals in the other vehicle. The injured individuals alleged that the firefighter’s negligence caused their injuries, and that he was not entitled to immunity because he had violated one of the “rules of the road” set forth in Wis. Stat. chapter 346, specifically section 346.03, which requires that emergency vehicles give both visual and audible signals before proceeding through red stop signals.

The firefighter argued he was immune from liability under Wis. Stat. section 893.80(4) because his act of proceeding through the intersection was discretionary and, therefore, his conduct was not controlled by any ministerial duty. The circuit court agreed and granted the firefighter’s motion for summary judgment, concluding that although the firefighter violated the traffic statute, his acts were discretionary, and the statute did not impose a ministerial duty.²⁸ The court of appeals affirmed.

Before the supreme court, the plaintiffs urged the court to revisit its immunity jurisprudence, which, they contended, had drifted away from the principles of Holytz and the plain language of Wis. Stat. section 893.80(4). But while the court in Brown declined to undertake such a sweeping reexamination of immunity law, the court did apply the concept of “discretion” more narrowly than had the lower courts.

In doing so, the Brown decision reaffirmed the discretionary-ministerial framework for governmental officer immunity, reiterating the “general rule” that governmental officers (as opposed to governmental bodies) are entitled to immunity for negligent acts within the scope of their employment, unless the acts fall within an established exception to immunity, such as the ministerial duty exception. The court noted that in situations in which a ministerial duty is allegedly created by a statute, regulation, or other official procedure, courts must examine the language of the applicable provision to determine whether a ministerial duty is indeed created or whether the language leaves room for discretion.²⁹ Because the firefighter had indisputably violated Wis. Stat. section 346.03 by driving through the red stop signal, the only relevant question was whether the statute had imposed a ministerial duty on the firefighter or whether he retained some measure of discretion to proceed through the red stop signal.³⁰

The court concluded that Wis. Stat. section 346.03 “directly govern[ed]” the firefighter’s acts, and that the statute satisfied all the elements of a ministerial duty. Under the statute, the firefighter “had no discretion to proceed through the red stop signal.” Because he did not comply with the ministerial duty imposed by statute, he was not entitled to immunity.

Although the court’s conclusion in Brown could be read to suggest that any statutory provision may subject public officers to a ministerial duty, the court made clear (and reaffirmed in a footnote in Bostco) that for individual governmental officers, the “rule” of immunity still applies, with liability being the exception.³¹ Nevertheless, Brown’s holding that the firefighter could be held liable for violating the traffic statute might suggest that not all acts involving actual discretion or some measure of choice on the part of a governmental officer will be immunized as “discretionary acts” under governmental immunity law.³²

Showers: “Agency” and “Act” Requirements for Governmental Contractors Seeking Immunity Under Wis. Stat. Section 893.80(4)

The court’s third immunity case was Showers Appraisals LLC v. Musson Bros.,³³ which involved a negligence claim against a contractor hired by the Wisconsin Department of Transportation to work on a sewer-improvement project. The plaintiffs claimed that the contractor, Musson Bros., was liable for flooding in their basement caused by Musson’s negligent maintenance of drainage at the construction site. The primary issue in Showers was whether Wis. Stat. section 893.80(4) gave Musson immunity as a governmental contractor.³⁴

Musson argued that it was entitled to immunity under the test laid out in Estate of Lyons v. CNA Insurance Cos., which provides that a governmental contractor’s actions may be immunized when “(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 the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.”³⁵ Musson argued that immunity was appropriate under Lyons because Musson had simply carried out the DOT’s discretionary decision of approving reasonably precise construction specifications under the sewer-construction contract.

The supreme court disagreed with Musson and held that Musson was not entitled to immunity as a governmental contractor. The court recognized a two-pronged inquiry to determine whether immunity is available for a governmental contractor under Wis. Stat. section 893.80(4). Under this approach, a contractor seeking immunity must establish that it was acting as an agent of a governmental entity – namely, that the contractor was a “servant” of the relevant governmental entity.³⁶

Additionally, the contractor must establish that the negligent act for which the contractor seeks immunity is one for which immunity is available under Wis. Stat. section 893.80(4), that is, that the act arose from a governmental entity’s exercise of a legislative/judicial function. Therefore, a contractor may only receive immunity if the alleged negligent act is a legislative/judicial act for which the governmental entity could claim immunity under section 893.80(4).³⁷

Applying this two-pronged approach, the court concluded that Musson had not established that it was entitled to immunity. First, under Lyons, the court held that Musson had not acted pursuant to “reasonably precise specifications” and was therefore not an “agent” as required by Wis. Stat. section 893.80(4).³⁸ In particular, the court held that under Musson’s contract with the DOT, Musson had exercised too much independent discretion to be a “servant” of the governmental entity, because the contract provided that Musson was “solely responsible for the means, methods, techniques, sequences, and procedures of construction.”

Second, Musson had not demonstrated that the alleged injury-causing conduct (Musson’s maintenance of drainage at the construction site) was a legislative/judicial act for which immunity could be available under Wis. Stat. section 893.80(4). Although the court noted that Musson’s failure to establish either prong was sufficient to reject Musson’s claim of immunity, the court addressed both prongs to provide guidance for future governmental immunity claims.³⁹

In addition to laying out the two-pronged “agency” and “act” analysis, the court also set forth a pleading standard for claims of governmental immunity. Again pointing directly to the language of Wis. Stat. section 893.80(4), the court affirmed that the burden of establishing immunity belongs to the party claiming immunity.⁴⁰ Although the court’s decision applied solely to governmental contractors who seek the protection of immunity, the court’s rationale could be equally applicable to any party asserting immunity under Wis. Stat. section 893.80(4). Such a result would seem to comport with the fundamental principle that, following Holytz and the continuing validity of the governmental immunity statute, governmental liability is the rule, and immunity the exception, in accordance with the express language of section 893.80(4).

Conclusion

Last term’s three governmental immunity cases illustrate the continuing presence of Holytz’s guiding principles in the development of governmental immunity law in Wisconsin. The impact of these decisions will depend on how Wisconsin courts characterize governmental actions within the evolving definitions of legislative/judicial functions under Wis. Stat. section 893.80(4), as well as how the courts continue to apply the discretionary-ministerial approach in appropriate contexts.⁴¹ Accordingly, attorneys confronting immunity issues should be familiar with all of these decisions, and how they may affect the interests of governmental entities, officers, contractual agents, or private parties.

¹ All references to the Wisconsin Statutes are to the 2011-12 edition unless otherwise indicated.

² This article uses the term “governmental immunity” to refer to the immunity available under Wis. Stat. section 893.80(4) for those political bodies (for example, counties, municipalities, sewerage districts, and so on), agents, and individual officers included under the statute. Unless otherwise noted, the term “entities” is used here to refer to political bodies, agents, and individual officers. These designations are used for ease of discussion and are not intended to attempt to harmonize any distinctions drawn in the case law between immunity for political bodies and individual officers. See, e.g., Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶ 22-24, 253 Wis. 2d 323, 337, 646 N.W.2d 314.

³ Britten v. City of Eau Claire, 260 Wis. 382, 386, 51 N.W.2d 30 (1952).

⁴ See Holytz v. City of Milwaukee, 17 Wis. 2d 26, 31–32, 115 N.W.2d 618 (1962).

⁵ See id. at 32-36. Although this article provides only a brief background of governmental immunity law, more thorough historical examinations are included in other supreme court opinions. See, e.g., Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78, ¶¶ 47-52, 350 Wis. 2d 554, 835 N.W.2d 160; Umansky v. ABC Ins. Co., 2009 WI 82, ¶¶ 40-78, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring); Willow Creek Ranch L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶ 60-99, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting).

⁶ See Holytz, 17 Wis. 2d at 32.

⁷ Id. at 39.

⁸ Id. at 40.

⁹ See Willow Creek Ranch, 2000 WI 56, ¶¶ 63–66, 71, 235 Wis. 2d 409 (Prosser, J., dissenting).

¹⁰ See, e.g., Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶ 58, 262 Wis. 2d 127, 663 N.W.2d 715 (Abrahamson, C.J., concurring) (recognizing that the court has “struggled to define the proper scope of governmental immunity”); id. ¶ 62 (Bablitch, J., concurring) (noting that the revitalization of broad governmental immunity results in injustice and “cannot … stand much longer”); id. ¶ 79 (Prosser, J., dissenting) (arguing that the court’s reliance on the discretionary-ministerial framework “has made the rule become immunity – the exception, liability,” referring to “decades of backsliding” from Holytz’s principles). For other cases discussing the development and application of governmental immunity law, see generally Pries v. McMillon, 2010 WI 63, 326 Wis. 2d 37, 784 N.W.2d 648; Umansky, 319 Wis. 2d 622; Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658; Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314; Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 596 N.W.2d 417 (1999); Scarpaci v. Milwaukee Cnty., 96 Wis. 2d 663, 292 N.W.2d 816 (1980); Lister v. Board of Regents of the Univ. of Wis. Sys., 72 Wis. 2d 282, 240 N.W.2d 610 (1976); Coffey v. City of Milwaukee, 74 Wis. 2d 526, 247 N.W.2d 132 (1976); Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964).

¹¹ See, e.g., Scott, 2003 WI 60, ¶¶ 75–82, 262 Wis. 2d 127 (Prosser, J., dissenting) (noting that the court “has come virtually full circle on governmental immunity since Holytz”); see also Linda M. Annoye, Comment, Revising Wisconsin’s Government Immunity Doctrine, 88 Marq. L. Rev. 971 (2005); Andrea Dudding, Comment, Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin, 2004 Wis. L. Rev. 1741 (2004); see generally Scott, 2003 WI 60, 262 Wis. 2d 127 (including three separate opinions acknowledging the need to revisit immunity law).

¹² See, e.g., Kierstyn, 228 Wis. 2d at 90; see also Scott, 2003 WI 60, ¶ 79, 262 Wis. 2d 127 (Prosser, J., dissenting).

¹³ See Brown v. Acuity, 2013 WI 60, ¶ 42, 348 Wis. 2d 603, 833 N.W.2d 96; Lodl, 2002 WI 71, ¶¶ 20-21, 253 Wis. 2d 323.

¹⁴ See Deegan v. Jefferson Cnty., 188 Wis. 2d 544, 548, 525 N.W.2d 149 (Ct. App. 1994).

¹⁵ Milwaukee Metro. Sewerage Dist., 2005 WI 8, ¶ 54, 277 Wis. 2d 635 (quoting Willow Creek Ranch, 2000 WI 56, ¶ 27, 235 Wis.2d 409).

¹⁶ See, e.g., Lodl, 2002 WI 71, ¶¶ 17, 19-21, 24-25, 253 Wis. 2d 323.

¹⁷ See Showers Appraisals LLC v. Musson Bros., 2013 WI 79, ¶ 58, 350 Wis. 2d 509, 835 N.W.2d 226.

¹⁸ See, e.g., Showers Appraisals, 2013 WI 79, ¶ 35, 350 Wis. 2d 509.

¹⁹ Id. ¶ 26.

²⁰ See id. ¶ 35.

²¹ Id. ¶ 68 (Crooks, J., concurring) (quoting Eugene McQuillin, Municipal Corporations § 53.04.10 (3d ed.)); see also Willow Creek Ranch, 2000 WI 56, ¶ 136, 235 Wis. 2d 409 (Prosser, J., dissenting) (same).

²² 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160.

²³ See Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2011 WI App 76, ¶¶ 123-33, 334 Wis. 2d 620, 800 N.W.2d 518.

²⁴ Bostco, 2013 WI 78, ¶ 51, 350 Wis. 2d 554 (emphasis added) (footnote omitted).

²⁵ See id. ¶¶ 3, 33, 41, 51–52, 64.

²⁶ See id. ¶ 4 (“Because MMSD’s maintenance of the continuing private nuisance is not a [legislative/judicial] function, MMSD is not entitled to immunity.”); see also id. ¶¶ 41 & n.21, 51, 50-72.

²⁷ Brown v. Acuity,2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96.

²⁸ Id. ¶ 21.

²⁹ Id. ¶¶ 42-44, 49-52.

³⁰ See id. ¶ 48.

³¹ See id. ¶ 42; see also Bostco, 2013 WI 78, ¶ 50 n.28, 350 Wis. 2d 554.

³² Cf. Showers Appraisals, 2013 WI 79, ¶ 69, 350 Wis. 2d 509, 835 N.W.2d 226 (Crooks, J., concurring) (expressing concern that an application of the ministerial duty framework that immunizes any act involving the exercise of discretion may immunize too much governmental conduct).

³³ Showers Appraisals,2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226.

³⁴ See id. ¶ 22 & n.12.

³⁵ 207 Wis. 2d 446, 457-58, 558 N.W.2d 658 (Ct. App. 1996).

³⁶ See Showers Appraisals, 2013 WI 79, ¶¶ 37, 40, 350 Wis. 2d 509.

³⁷ Id. ¶¶ 36, 52-54, 57-58.

³⁸ See id. ¶¶ 36-37, 47-51, 57-59.

³⁹ See id. ¶¶ 47, 52-56.

⁴⁰ See Showers Appraisals, 2013 WI 79, ¶ 58, 350 Wis. 2d 509.

⁴¹ For example, on Nov. 26, 2013, the Wisconsin Supreme Court accepted certification from the court of appeals in Legue v. City of Racine, No. 2012AP2499, which presents an issue left open after Brown: whether a public officer operating an emergency vehicle is entitled to governmental immunity when the officer is found to have failed to exercise “due regard under the circumstances,” as required under Wis. Stat. section 346.03(5). Whereas in Brown, the court determined that the firefighter was subject to a ministerial duty not to proceed without activating both visual and audible signals (and was therefore liable), Legue presents a question with potentially broader sweep: whether a public officer who decides to proceed against a stop sign or signal, but who is not in violation of a ministerial duty in that regard, may nonetheless be held liable for failing to exercise due care under the circumstances. Although at the time of this writing the supreme court has not yet issued a decision in Legue, the case presents yet another opportunity for the court to explore and delineate the contours of the discretionary-ministerial approach for governmental immunity.