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Vol. 72, No. 10, October 1999

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Government Immunity
for Safe Place Statute Violations

Guidance to Practitioners

The Wisconsin Supreme Court or Court of Appeals ultimately will have to publish a decision to resolve the conflict that exists in the published case law regarding whether or not the Safe Place Statute imposes a ministerial duty on governmental entities for purposes of immunity under section 893.80(4). Until the appellate courts address this issue, trial judges and practitioners are left in a state of uncertainty. Lawyers on behalf of plaintiffs will argue that Anderson I retains its precedential value with regard to this issue because it was not specifically overruled by the Wisconsin Supreme Court.

Plaintiffs' counsel also will want to research whether there are any standards, policies, regulations, or other guidelines that specifically direct the method and timing for the act at issue in the case. Since the Safe Place Statute does not provide any specific guidance to governmental entities on how to comply in specific instances, plaintiffs' counsel will want to find out if other sources do provide specific guidance. If specific guidelines exist, then plaintiffs' counsel can avoid a discretionary immunity defense by arguing that the governmental entity had a ministerial duty to follow the specific guidelines.

Lawyers representing plaintiffs also may attempt to fit their facts under the "known present danger exception" to the general rule of immunity for discretionary acts.

Lawyers representing governmental entities will argue that the reasoning set forth in the Spencer decision is controlling and that Anderson I has limited value because the Wisconsin Supreme Court refused to adopt the court of appeal's reasoning that the Safe Place Statute imposed a ministerial duty. Lawyers on behalf of governmental entities also will argue that the act at issue involved the exercise of judgment or discretion and was not set forth with any certainty as to time or mode of performance.

Defense counsel will want to point out that the Safe Place Statute does not dictate the method or timing for correcting the alleged violations. Defense counsel also should point out if no standards, policies, or other guidelines exist directing how or when to perform the specific act at issue. In addition, discretionary immunity often is an appropriate subject for a motion for summary judgment.

Practitioners on both sides should consider how public policy factors affect their argument for or against immunity. The first Wisconsin decision to adopt municipal immunity was Hayes v. City of Oshkosh in 1873.¹⁹ In that case, the plaintiff alleged property damage due to the negligent management and operation of fire trucks by the City of Oshkosh. Firemen for the city were in the process of extinguishing a fire at a nearby building. The plaintiff alleged that the firemen negligently managed and operated the fire trucks causing sparks, coals, and cinders to escape from the smokestacks of the fire trucks and fall upon the building owned by the plaintiff. The court held that the city was immune from liability. The grounds for granting the immunity were that the city was engaged in the performance of a public service for which it derived no benefit or advantage but was bound to perform pursuant to a duty imposed by law for the general welfare of the inhabitants of the community. The court stated:

"Individual hardship or loss must sometimes be endured in order that still greater hardship or loss to the public at large or the community may be averted. It would seem to be a hard rule which would hold the city responsible in damages in such cases, when the work in which it, or rather its public officers are engaged, is one of mere good will, a charity, so to speak, designed for the relief of suffering members of the community."²⁰

The doctrine of government immunity is grounded in public policy.²¹ The policy considerations focus on protecting public officers from being unduly hampered or intimidated in the discharge of their functions by the threat of lawsuit or personal liability and protecting the public purse against legal action.²² The Wisconsin Supreme Court has set forth the following public policy considerations that underlie the immunity doctrine:

"(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office."²³

Practitioners will want to consider how these public policy factors affect their arguments for or against immunity in a particular case.

Conclusion

Thomas A. Cabush, U.W. 1992, practices with Kasdorf, Lewis & Swietlik S.C., Milwaukee.

The conflict that exists in the published decisions of the Court of Appeals regarding whether or not the Safe Place Statute imposes a ministerial or discretionary duty has yet to be decided by the Wisconsin Supreme Court. However, an unpublished decision of the District I Court of Appeals appears to indicate that Anderson I will not be followed and that the Spencer decision is controlling authority on this issue. Practitioners representing both plaintiffs and governmental entities should carefully review their facts and any applicable guidelines and consider how they apply in light of these appellate decisions and public policy.

As can be seen from these recent appellate decisions, the area of government immunity for discretionary acts under section 893.80(4) presents difficult issues and public policy considerations for the courts. Practitioners can greatly benefit their case by being knowledgeable of the case law and making strong public policy arguments in support of their client.

Endnotes

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¹ Anderson v. City of Milwaukee, 199 Wis. 2d 479, 544 N.W.2d 630 (Ct. App. 1996).

² Spencer v. County of Brown, 215 Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997).

³ See Kierstyn v. Racine Unified Sch. Dist., __ Wis. 2d __, 596 N.W.2d 417 (1999); Bauder v. Delevan-Darien Sch. Dist., 207 Wis. 2d 312, 315, 558 N.W.2d 881 (Ct. App. 1996).

⁴ Bauder, 207 Wis. 2d at 315, 558 N.W.2d at 882.

⁵ Id. at 316, 558 N.W.2d at 882.

⁶ Bauder, 207 Wis. 2d 312, 558 N.W.2d 881 (Ct. App. 1996).

⁷ Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977).

⁸ Wis. Stat. § 101.11(1).

⁹ Id.

¹⁰ Anderson I, 199 Wis. 2d at 485, 544 N.W.2d at 633.

¹¹ Id. at 493-94, 544 N.W.2d at 636.

¹² See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997) (Anderson II).

¹³ Id. at 37 n.17, 559 N.W.2d at 570 n.17.

¹⁴ Spencer, 215 Wis. 2d at 648, 573 N.W.2d at 227.

¹⁵ Id. at 645, 573 N.W.2d at 226.

¹⁶ Id. at 646, 573 N.W.2d at 227.

¹⁷ Rilla Howard v. Milwaukee Area Technical and Adult Educ. Dist., Dist. I Ct. App., No. 97-2443 (Dec. 22, 1998).

¹⁸ Wis. Stat. § 809.23(3).

¹⁹ Hayes v. City of Oshkosh, 33 Wis. 314 (1873).

²⁰ Id. at 319.

²¹ Kierstyn, __ Wis. 2d at __, 596 N.W.2d at 417.

²² Id.; Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682, 292 N.W.2d 816 (1980).

²³ Kierstyn, __ Wis. 2d at __, 596 N.W.2d at 417 (quoting Lister v. Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).