Government Immunity
for Professional Independent Contractors

By Jeffrey L. Janik & W. Wayne Siesennop

Editor's Note: To view Wisconsin statutory materials referenced in this article you must have and/or install Adobe Acrobat Reader 3.0 on your computer.

In a case of first impression, the Wisconsin Court of Appeals extended governmental immunity to an independent contractor, insulating it from liability for injuries alleged to have been caused by defective

The Lyons claim

In Estate of Lyons v. CNA Insurance Companies the plaintiffs were victims of an automobile accident that occurred when an uninsured driver failed to stop at a stop sign and collided with the Lyons' vehicle in an intersection in Walworth County. Theresa Lyons suffered serious injuries and died after an extended period in a coma. Her estate and her widower brought a tort action against the other driver, the State of Wisconsin, and the municipal subdivisions. All of the governmental defendants were dismissed, leaving the uninsured driver as the sole defendant.

Plaintiffs were granted leave to amend their complaint and implead Strand Associates Inc., a private engineering and design firm that had designed the replacement roadway and bridge in 1978-79. Plaintiffs argued that Strand negligently designed the bridge that the uninsured driver crossed just before the intersection where the accident occurred. Plaintiffs' expert opined that the bridge design was contrary to standards promulgated by the American Association of State Highway and Transportation Officials (AASHTO) concerning vertical curves and lines-of-sight. Plaintiffs contended that the design of the bridge's vertical curve ­ a measurement reflecting an engineered hill's length and height ­ was too short and high for its proximity to the intersection, thereby blocking the uninsured driver's view of the intersection.

Strand denied the allegations of negligence, denied that the cited standard was applicable to the intersection, affirmatively alleged it was entitled to governmental immunity for the alleged design flaw, and entitled to immunity under Wisconsin law as an agent of the government as that term is used in the statute.²

The design work

Strand was hired by the municipal subdivisions in 1978 to design a bridge and roadway to replace a dilapidated bridge that spanned a set of railroad tracks. Evidence showed that the existing bridge was severely in need of replacement. The municipalities secured federal highway money for the project, which was administered and distributed by the Wisconsin Department of Transportation (DOT). Strand's contract defined it as an independent contractor and required it to abide by existing design standards, wherever feasible, and DOT requirements.

The design of the bridge height initially was constrained by the requirements for spanning the railroad tracks. A variance was secured allowing a bridge 18 feet above the tracks instead of the 22 feet required under the existing standard.

Following the variance, Strand submitted its initial design to the DOT and municipalities. This design provided a bridge with a 150-foot vertical curve. To effect this design, portions of the roadway and adjacent intersection would have needed razing, filling, and repaving.

In May 1979 Strand met with DOT and municipal government officials at the proposed construction site. The DOT recognized that the 150-foot vertical curve bridge design would have resulted in significant additional costs associated with raising the elevation of the adjoining roadways. To control taxpayer expense, the DOT directed Strand to submit a new bridge design with a shorter vertical curve, thereby eliminating the need for elevating the adjacent roadways. Strand responded by reminding the DOT that it followed the 150-foot vertical curve criteria for the roadway, and, with the nearby intersection, a reduced roadway speed ­ from 40 m.p.h. to 25 m.p.h. ­ was appropriate. Strand also indicated that it was submitting a new design with a 70-foot vertical curve, based on the directives of DOT officials, and as a further exception to design criteria.

The DOT approved the revised plans, and the bridge was constructed with a 70-foot vertical curve ­ an engineered hill with a shorter length and steeper grade than the 150-foot original design.

Immunity

Strand moved for summary judgment at the trial court, arguing that it should be immune for merely implementing in a nonnegligent manner a governmental decision made by immune state officials entrusted with the duty to make such discretionary decisions for the good of the citizens. In the alternative, Strand argued that it should be afforded statutory immunity as a government agent for performing a quasi-judicial or quasi-legislative function, ³ and should be dismissed for plaintiffs' failure to name Strand in the requisite Notice of Claim. ⁴

Plaintiffs argued that, as a professional designer, Strand had a professional duty to design the bridge and roadway to then-existing standards. Plaintiffs' expert opined that Strand had a duty "not to proceed" with a design that did not comply with professional standards. Plaintiffs also contended that no governmental immunity should be available to Strand. Citing A.E. Investment Corp. v. Link Builders Inc., ⁵ plaintiffs argued that Strand was a private entity with a professional duty to the public, and its status as a professional independent contractor took it out of the realm of a master-servant relationship with the government. Plaintiffs cited the fact that no previous Wisconsin decision has ever extended governmental immunity to a private independent contractor.

The Hon. John R. Race, Walworth County circuit court judge, granted summary judgment to Strand, finding no dispute on the material fact that plaintiffs' only criticism of Strand's design work involved the use of a 70-foot rather than a 150-foot vertical curve. The court also found no dispute concerning the fact that Strand submitted an original design with a 150-foot vertical curve, but was directed by the DOT to redesign the bridge with a shorter vertical curve.

The trial court explored Wisconsin precedent holding government officials immune for discretionary decisions made in the course of their government employment. The court cited Pavlik v. Kinsey ⁶ for the rule that public officers are immune for injuries resulting from their discretionary official acts. The immunity rationale, the court reiterated, is to avoid influencing government officials' performance with the threat of lawsuits, avoid the deterrent effect for those considering public service, avoid having public officials use their official time responding to and defending lawsuits, unfairness in subjecting government officers to liability for their subordinates' actions, and that the ballot box is the proper forum for dealing with official misconduct. ⁷

The trial court held that the decision to design the bridge with a shorter vertical curve was an immune discretionary decision made by a government official, and plaintiffs were attempting to impute onto Strand this allegedly negligent discretionary governmental decision. Therefore, the court held, Strand was entitled to immunity "when faithfully executing the discretionary act of the state." ⁸

Plaintiffs appealed the granting of summary judgment and Strand cross-appealed on the undecided issue of whether it was a government agent for purposes of the statutory Notice of Claim requirements.

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