June 1, 2012 – A recent state appeals court decision is a driving school reminder to “assess the intersection before proceeding,” even if no police or fire sirens can be heard.

The passengers in a car suffered injuries when a volunteer firefighter ran a red light and struck their car. The firefighter, Parnell Burditt, was responding to an emergency call in his personal vehicle, driving to the Okauchee Fire Department. His car had emergency lights, but no siren.

The plaintiffs sued Burditt, claiming he was negligent. The trial court granted summary judgment to Burditt on grounds of governmental immunity. The plaintiffs appealed. In Brown v. Burditt, 2011AP583 (May 30, 2012), the District II Wisconsin Court of Appeals affirmed.

Wis. Stat. section 893.80(4) grants governmental immunity to volunteer firefighters for so-called discretionary acts, “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions” that require the actor’s discretion or judgment.

The plaintiffs first argued that governmental immunity did not apply because Burditt was not acting within the scope of his employment when driving. That is, governmental immunity did not kick in until Burditt reached the fire station to begin his duties.

Plaintiffs cited the “coming and going rule” in DeRuyter v. Wisconsin Electric Power Co., 200 Wis. 2d 349, 546 N.W.2d 534 (Ct. App 1996), which states that an employee acts outside the scope of employment unless the employer exercises control over the employee’s route to work.

The OFD did not control the method or route that Burditt took on his way to the fire station, plaintiffs argued. But the three-judge appeals panel disagreed.

“[T]he issue in this case is not whether the OFD is liable for Burditt’s actions, as it would be in a respondeat superior case, but whether Burditt’s status as a volunteer firefighter shields him from liability for his discretionary actions while responding to an emergency call,” wrote Chief Appeals Court Judge Richard Brown, concluding that DeRuyter was not relevant.

The plaintiffs also argued that governmental immunity did not apply because Burditt’s decision to run the red light was a ministerial act, not a discretionary one that is protected. Ministerial duties are absolute and imposed by law, with no room for judgment or discretion.

More specifically, the plaintiffs argued that emergency vehicles can’t run red lights unless they give both visual and audible warnings under section 346.03, and Burditt’s car did not have a siren. Thus, Burditt had a ministerial duty to stop at the red light, they argued.

Again the court disagreed, relying on a high-speed police chase case. “Burditt’s decision to proceed through the intersection against the red light, like the decision to initiate and continue a high-speed chase, was discretionary,” Judge Brown wrote.

In other words, Burditt’s discretionary decision to violate the rules of the road was protected by the governmental immunity statute, even though he’s on the hook for running the red light.

“Burditt still has immunity from a tort action,” explained Judge Brown, who noted that Burditt must pay a penalty, between $25 and $100, for violating the traffic statute.

Joe Forward is the Legal Writer for the State Bar of Wisconsin