Wisconsin Lawyer: Wisconsin Lawyer December 2000: Fighting City Hall:

December 01, 2000

Wisconsin Lawyer December 2000: Fighting City Hall

Share This:

A


Vol. 73, No. 12, December 2000

Fighting City Hall

Previous Page

Conclusion

The present municipal immunity statute, as interpreted by judicial decisions in the 1990s, does not work. It does not accomplish any of the public policy goals ever posited for it. When the crypto-sporidium cases were filed in 1993, it was unlikely that the municipal defendants could prevail on an immunity defense under the cases that had been decided up to that point. However, beginning in 1995, the courts broadened their interpretation of section 893.80(4) of the Wisconsin Statutes, and the city's chances of prevailing increased. Finally, in 1999, following six years of litigation and the expenditure of millions of dollars in attorney fees and costs by all parties, the city filed its motion for summary judgment based upon its "discretionary" immunity. Before the court ruled on that motion, the parties reached a settlement that the court approved on a class-action basis.³¹ The fairness of the settlement was based, at least in part, upon the prospect that the case would be tied up for several more years in an appeal of the trial court's ruling on immunity, regardless of who won in the trial court.

The unresolved question is whether the legislature in 1963 intended to reinstate municipal immunity beyond the "legislative, quasi-legislative, judicial, and quasi-judicial" functions that survived the Holytz decision. If it did find that public policy required it to restore the court-abolished rule and legislatively overrule Holytz, the legislature could and should have done so in much more direct and comprehensive language. However, in the absence of compelling empirical evidence that this is necessary, the legislature should leave the current immunity statute alone. Instead, plaintiffs' and defendants' attorneys, and judges, need to reexamine the public policy considerations identified in Lister before applying the "discretionary/ministerial" function test to anyone other than police, jailers, teachers, and foster care workers.

It also is unnecessary to resurrect the "proprietary/governmental" function test. Rather, immunity should be seen as the affirmative defense that it is, and the burden should be placed upon the municipal government to establish that the conduct for which it is being sued is "legislative, quasi-legislative, judicial, or quasi-judicial." This should be a legal decision that the courts can resolve upon a motion to dismiss. The parties should not have to engage in discovery to determine that issue.

In many cases, better defenses and procedural motions exist to accomplish the stated goals of the municipal immunity defense. If that is not enough protection for fragile public treasuries, more municipalities should consider obtaining liability insurance. That also would be the best protection for those injured due to the occasional negligence of public employees.

Example Cases in which Government Conduct
Was Found to be Discretionary or Ministerial

The following is a list of cases showing examples of cases in which government conduct has been found to be discretionary (immune) or ministerial (not immune). The list is not exhaustive.

CaseName	Date	Court	Plaint.1	Defend.2	Cause of Action	PI3	Public Work	Immunity4
Coffey v. City of Milwaukee	1976	S.Ct.	Individ.	M	Negligence	No	Bldg./fire inspect.	No
Lister v. Board of Regents	1976	S.Ct.	Individ.	S	Declaratory judgment	No	Law school registrar	Yes
Lange v. Town of Norway	1977	S.Ct.	Individ.	M	Nuisance	No	Dam	No
Cords v. Anderson	1977	S.Ct.	Individ.	S	Negligence	Yes	State park	No
Scarpaci v. Milwaukee County	1980	S.Ct.	Individ.	M	Negligence	Yes	Coroner	Yes / No
Domino v. Walworth County	1984	App.	Individ.	M	Negligence	Yes	Police	No
Hillcrest Golf & Country Club v. City of Altoona	1986	App.	Bus.	M	Nuisance	No	Sewer	No
C.L. v. Olson	1988	S.Ct.	Individ.	S	Negligence	Yes	Parole agent	Yes
Energy Complexes v. Eau Claire County	1989	S.Ct.	Bus.	M	Breach of contract	No	Power plant	No
Stann v. Waukesha County	1991	App.	Individ.	M	Negligence	Yes	Beach lifeguards	Yes
Sheridan v. City of Janesville	1991	App.	Individ.	M	Negligence	Yes	Police	Yes
Barillari v. Milwaukee	1995	S.Ct.	Individ.	M	Negligence	Yes	Police	Yes
Kara B. v. Dane County	1995	App.	Individ.	M	Negligence	Yes	Foster care	Yes
Menick v. City of Menasha	1996	App.	Individ.	M	Nuisance	No	Sewer	No
Kimps v. Hill	1996	S.Ct.	Individ.	S	Negligence	Yes	University phy. ed. class	Yes
Estate of Cavanaugh v. Andrade	1996	S.Ct.	Individ.	M	Negligence	Yes	Police	No / Yes
Bauder v. Delavan-Darian School District	1996	App.	Individ.	M	Negligence	Yes	School gym class	Yes
Ottinger v. Pinel	1997	App.	Individ.	S	Negligence	Yes	Prison guards	Yes
Spencer v. Brown County	1997	App.	Individ.	S	Safe-place	Yes	Jail	Yes
Anderson v. City of Milwaukee	1997	S.Ct.	Individ.	M	Safe-place	Yes	Sidewalk	No (waived)
Pichler v. Hamilton Sch. Dist.	1999	App.	Individ.	M	Negligence	Yes	School	Yes
Kierstyn v. Racine Unified Sch. Dist.	1999	S.Ct.	Individ.	M	Negligence	No	School	Yes
Willow Creek Ranch LLC v. Town of Shelby	2000	S.Ct.	Bus.	M	Negligence	No	Zoning	Yes

1 Plaintiff: Individ. = Individual; Bus. = Business.

2 Defendant: M = Municipality; S = State.

3 PI = Personal Injury.

4 Immunity: Yes / No = Municipality immune but individual employees are not; No / Yes = Municipality not immune but individual employees/officers are.

Michael Pollack, Tulane 1978, is engaged in a private civil litigation practice in Milwaukee. In 1999, he was appointed lead counsel for the Plaintiff Class in the litigation arising out of the 1993 cryptosporidium contamination of Milwaukee's drinking water supply, in which he recently concluded settlements of $1.8 million. He also is admitted to practice law in Florida and Illinois.

Endnotes

1 Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).

2 115 N.W.2d at 625 and 627.

3 Wis. Stat. § 895.43, later renumbered as § 893.80.

4 Id.

5 Holytz, 115 N.W.2d at 625.

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

7 Barillari v. Milwaukee, 194 Wis. 2d 247, 258, 533 N.W.2d 759 (1995).

8 Willow Creek Ranch LLC v. Town of Shelby, 2000 WI 56, 59, 235 Wis. 2d 409, 611 N.W.2d 693 (June 20, 2000). The dissenters further elaborated that "The law on governmental immunity has become so muddled that it no longer provides reasonable guidance about when local governments may be sued, what remedies are available to persons claiming injury, and the circumstances in which local governments and their employees may be held liable." 120.

9 E.g., Barillari v. Milwaukee, supra note 7.

10 Foss v. Town of Kronenwetter, 87 Wis. 2d 91, 102, 273 N.W.2d 801 (Ct. App. 1978). Interestingly, the court noted, "Sec. 81.15, Stats., has spawned a line of cases which have not always been consistent in their development, theory, or language." 87 Wis. 2d at 100.

11 Lister v. Bd. of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976).

12 Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 683, 292 N.W.2d 816, 826 (1980).

13 Stann v. Waukesha County, 161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991).

14 Sheridan v. City of Janesville, 164 Wis. 2d 420, 474 N.W.2d 799 (Ct. App. 1991).

15 Kimps v. Hill, 200 Wis. 2d 1, 546 N.W.2d 151 (1996). See also, Barillari, supra note 7, and Kara B. v. Dane County, 198 Wis. 2d 24, 542 N.W.2d 777 (Ct. App. 1995).

16 Domino v. Walworth County, 118 Wis. 2d 488, 347 N.W.2d 919 (Ct. App. 1984).

17 Id. at 492, 247 N.W.2d at 919.

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

19 C.L. v. Olson, 143 Wis. 2d 701, 422 N.W.2d 614 (1988).

20 Bauder v. Delavan-Darien Sch. Dist., 207 Wis. 2d 312, 558 N.W.2d 881 (Ct. App. 1996); Pichler v. Hamilton Sch. Dist., 1999 WL 486927 (Ct. App. unpublished).

21 Kara B. v. Dane County, 198 Wis. 2d 24, 542 N.W.2d 777 (Ct. App. 1995).

22 E.g., Barillari, n.5, supra note 7.

23 Wis. Stat. § 895.46. See Graham v. Sauk Prairie Police Comm'n, 915 F. 2d 1085 (7th Cir. 1990).

24 Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 468-69, 565 N.W.2d 521 (1997).

25 According to reports in the local press.

26 Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 (1996). The police officer who was engaged in a high-speed chase that resulted in the death of an innocent bystander was found to be immune from liability, but the municipality itself was not immune for failing to adopt adequate high-speed chase guidelines.

27 Energy Complexes Inc. v. Eau Claire County, 152 Wis. 2d 453, 449 N.W.2d 35 (1989).

28 Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996). "The actions of the city in operating and maintaining a sewer system do not fall within the immunity provisions of § 893.80." 200 Wis. 2d at 739, 740.

29 Wisconsin recovery limit for victims of municipal torts: A conflict of public interests, 1986 Wis. L. Rev. 155.

30 Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 596 N.W.2d 417 (1999).

31 The case was originally certified as a class action for litigation purposes, but that was reversed on appeal, Markweise v. Peck Foods, 205 Wis. 2d 207, 556 N.W.2d 881 (Ct. App. 1996). After remand, further hearings on class certification were held, and ultimately the trial court denied certification for litigation purposes.