July 17, 2009 – A director for facilities at Camp Randall Stadium owed a duty of care to the ABC network cameraman who fell to his death from a platform that should have had guardrails, the Wisconsin Supreme Court held in Umansky v. ABC Ins. Co., 2009 WI 82.

The finding that Barry Fox had a definite obligation to ensure railings allows the estate of Richard Umansky to proceed with a negligence suit that otherwise would have been barred by the immunity granted to public employees.

In dissent, Justice Annette Kingsland Ziegler, joined by Justice Patience Roggensack, accused the majority of incorrectly applying state and federal regulations to create a new right of recovery for a private-sector employee injured at a public facility that is not enjoyed by similarly situated public employees.

However, Justice David Prosser, writing in concurrence, hailed the majority opinion as a first step toward correcting the overly expansive immunity for government officers and employees found in recent Wisconsin case law.

Lower courts

The circuit court concluded that Fox was entitled to public officer immunity, dismissing the wrongful death complaint filed by Umansky’s parents. Citing Kimps v. Hill, 200 Wis. 2d 1 (1996), the court said the general rule is that Wisconsin officers and employees “are immune from personal liability for injuries resulting from acts performed within the scope of their official duties.”

Under the facts of this case, the circuit court said the “ministerial duty exception” to Fox’s immunity did not apply. A ministerial duty must be imposed by law and involve the performance of a specific task within a legally prescribed time, mode, and occasion such that “nothing remains for judgment or discretion.”

Further, the circuit court said that ABC – not U.W.-Madison or Fox – had employed Umansky. Therefore, Fox owed no duty to the cameraman under the federal Occupational Safety and Health Administration rules.

But the court of appeals reversed, finding that Fox was responsible for compliance with state and federal safety regulations. This responsibility is sufficient to impose a duty to comply with 29 C.F.R. § 1910.23(c)(1) of the OSHA rules as that rule applies to U.W.-Madison, the court of appeals said.

Additionally, the court of appeals found that, considering the height of the platform in question, Fox had a ministerial duty to have a standard railing or suitable alternative on the open sides of the platform, if UW-Madison was required by state law to comply with this regulation. But the court of appeals did not say whether the ministerial exception applied.

At the outset, the supreme court affirmed the facts found by the court of appeals. The supreme court then used those facts to answer the questions posed on review.

The ministerial duty exception applies

OSHA imposed a ministerial duty on Fox because the regulation did not allow him to consider installing nothing and it “is very specific as to what type of railing is required,” the supreme court said.

The federal OSHA law does not apply to public employees and so Wisconsin had to adopt a state version to reach them. Accordingly, Fox argued that he owed no duty to private employees like Umansky who are outside the Wisconsin Administrative Code’s stated purpose of giving public employees protections equivalent to their private sector counterparts.

But the justices said that Fox’s focus on the status of individual workers rather than the safety of a workplace is “unworkable.” The court said it is a “peculiar conclusion” that “the statute’s stated purpose of protecting public employees somehow justifies allowing the breach of a ministerial duty with impunity, so long as the person injured or killed happens not to be a public employee.”

In a concurring opinion, Justice N. Patrick Crooks remarked that the Legislature gave no indication that it intended to create disparate treatment for similarly situated persons. The Legislature “adopted the measure extending OSHA safety regulations to ‘all public buildings,’" Crooks noted. “A public building that is safe for public employees must be safe for everyone, including employees of a private firm,” he wrote.

Intentional distinction?

But Kingsland Ziegler insisted the legislative intent was to treat the public worker differently from the private employee. She argued that the Legislature could have – but did not – use language to specifically include others within the scope of its workplace safety laws.

From this, Kingsland Ziegler concluded Fox did not owe a ministerial duty to Umansky.

Because the law shields only public employees, Kingsland Ziegler argued that Fox should have been able to build the evidentiary record to determine whether any public employee ever worked on this platform. If none had, the platform would not even be a regulated workplace, she said. The obligation to ensure its safety would fall to the ABC network, Umansky’s private employer.

Kingsland Ziegler asserted that the majority leaves the private employee in a better position than that of the public employee.

“Unlike a state employee, the ABC employee can obtain one recovery against his employer and one recovery against a public employee,” Kingsland Ziegler wrote. “However, a public employee would be limited to just one recovery.”

Overdue correction?

In a concurring opinion, Prosser wrote that the majority opinion “represents a small but very welcome correction in the course this court has followed for many years” regarding government responsibility for torts.

Prosser outlined the history of tort claims against state government, noting the Wisconsin Constitution bars direct action against the state without legislative consent. But the procedural immunity found in the constitution is different from substantive immunity, he continued. And when the criticism against the court-created doctrine of substantive governmental immunity from tort liability crested, the supreme court surrendered it in Holytz v. City of Milwaukee, 17 Wis. 2d  26 (1962).

“It declared in the clearest possible terms that ‘henceforward, so far as governmental responsibility for torts is concerned, the rule is liability – the exception is immunity,’” Prosser wrote, quoting Holytz. Prosser observed that the Legislature did not act to reinstate this immunity.

But in Lister v. Board of Regents, 72 Wis. 2d 282 (1976), Prosser said the supreme court retreated, proclaiming a new rule that came from Am. Jur. 2d, Public Officers and Employees, Section 288 (1972). As of Lister, public officers could not be personally liable as the result of an act performed within the scope of their duties.

Twenty years later, Prosser said, Kimps extended Lister to include public employees, while also making an exception for negligent performance of a purely ministerial duty.

“Today, Lister and Kimps provide the framework for analyzing government torts in Wisconsin,” Prosser stated. “Actions by government employee within the scope of their official duties are generally seen as immune from liability … Thus, governmental immunity has been supplanted by an extremely broad public employee immunity created by the Wisconsin Supreme Court.”

Public officer immunity has value because “even perfect performance, fully authorized by law, may generate litigation from those who are hurt or disadvantaged by public action or policy,” Prosser wrote.

But Prosser said this type of immunity “does not make good sense” when substantive governmental immunity is abrogated, the government has accepted a respondeat superior relationship with its employees, and the public employee immunity is being used to evade liability for a public employee’s obvious breach of a known standard of care.

Prosser accused the Wisconsin courts of furthering this problem by abusing the principle of “ministerial duty.” He criticized Lister for recasting “ministerial duty” into a “rigid, inflexible formulation” that broke with precedent.

“Lister, [Lifer v. Raymond, 80 Wis. 2d 503 (1977)], and Kimps have become the hallmark decisions that define the militantly unprogressive state of Wisconsin law,” Prosser declared. “So far as government responsibility for torts is concerned, immunity has become the rule and liability has become the rare exception. Justice has been confined to a crawl space too narrow for most tort victims to fit.”

Applauding the outcome of this case, Prosser said, “Sooner or later this court will realize that accountability is the price of justice.”