County immune from liability for car accident involving road construction flagger

By Joe Forward, Legal Writer, State Bar of Wisconsin

April 17, 2012 – A county employee who is negligent while directing traffic during road construction does not mean the county is liable for injuries that result, a state appeals court has ruled.

In 2009, Outagamie County employees were dispatched as “flaggers” to control the flow of traffic on a county highway under construction. On a flaggers’ command, the plaintiff, traveling west, rolled into an intersection and was struck by a vehicle traveling southbound through the intersection.

The plaintiffs, Beverly Socha and Jennifer Greiner, alleged the flagger’s negligence caused the accident and therefore the county was liable for personal injury and property damage. But the circuit court granted summary judgment to the county on grounds of governmental immunity.

In American Family Mutual Ins. Co. v. Outagamie County, 2011AP1211 (April 17, 2012), the District III Wisconsin Court of Appeals affirmed the circuit court, despite the plaintiffs’ argument that ministerial duty and known danger exceptions applied to defeat a governmental immunity defense.

Wis. Stat. section 893.80(4) immunizes municipalities from liability for employee acts “done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” As the appeals court explained, immunity extends to acts involving the exercise of discretion and judgment.

However, immunity does not apply if a municipal employee violates ministerial duties, absolute and certain duties that involve the performance of specific tasks specified by law. In addition, where a municipal employee fails to correct a known danger, immunity may not apply.

The plaintiffs argued that controlling traffic involves ministerial duties that are not protected by governmental immunity, but the appeals court rejected that argument.

“How to safely control traffic in a construction zone is an inherently discretionary decision, requiring the County to exercise its judgment,” wrote Judge Gregory Peterson. “Assuming the County had a duty to provide traffic control to make the construction zone reasonably safe for motorists, that duty is not precise and detailed enough to eliminate the County’s discretion in deciding how to control traffic.”

The appeals court also rejected the plaintiffs’ argument that the county created a known danger by providing a single flagger to direct traffic at a four-way highway intersection.

“We do not agree that the alleged hazard created by the County in this case was so clear and absolute, and so certain to cause injury, as to constitute a known and compelling danger,” Judge Peterson wrote.

The court also pointed to Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314, to conclude that the plaintiffs’ known danger argument was foreclosed.

In Lodl, police requested portable stop signs to address an inoperable traffic light, but did not direct traffic. An accident occurred before portable signs arrived. The court rejected the plaintiff’s argument that police did not respond properly to a known danger.

“Like the officer in Lodl, the County had discretion to decide how to address any danger presented by the lane closure at the intersection. … Although the County could have used other measures to control traffic, such as additional flaggers or temporary traffic lights, the County was not required to do so,” wrote Judge Peterson, affirming the circuit court’s summary judgment in favor of the county.