Sept. 30, 2009 – Governmental immunity does not shield a middle school science teacher who failed to take any precautionary measures in the face of a known and compelling danger posed by a dissection exercise, the Wisconsin Court of Appeals held today.

In Heuser v. Community Ins. Corp., 2008AP2760, the court of appeals also addressed the role of foreseeability in a teacher’s duty to warn students of a hazard.

A series of accidents

Attempting to complete the flower dissection assignment in his eighth grade science class, student Andrew Heuser struggled to remove a stuck cap from his scalpel. As he pulled harder, the scalpel suddenly broke free and cut through two of his fingers, severing a tendon.

The teacher had given the “standard” lab instructions, which warned students against “horsing around” and the need to be especially careful with the scalpels. But the teacher did not demonstrate or give specific instruction on scalpel use.

In an earlier class on the same day, two other students had cut themselves with scalpels. The teacher had completed accident report forms, including the portion soliciting the teacher’s recommendations for preventing further accidents. The teacher had suggested limiting scalpel use or substituting scissors, but she had not actually implemented any of these ideas.

Heuser sued the Kenosha Unified School District #1, alleging that the teacher negligently provided a scalpel without providing the proper training and supervision. The district denied negligence and argued that even if it were negligent, governmental immunity precluded the suit.

Following a bench trial, the circuit court held that the teacher was negligent and the “known and compelling danger exception” to the district’s immunity applied, citing Voss ex rel. Harrison v. Elkhorn Area School Dist., 2006 WI App 234. In Voss, a teacher persisted with a classroom activity in which students wore disorienting goggles intended to simulate the effects of alcohol intoxication even as students were injuring themselves.

Teacher’s negligence

In an opinion authored by Chief Judge Richard Brown, the court of appeals concluded that the teacher breached the duty of care owed to her students.

The circuit court had referred to the jury instructions defining negligence of teachers, which outlines the duty to instruct or warn students. Specifically, a teacher has a duty to warn students of any dangers of which the teacher knows or should know, and to instruct them in methods that will protect them from those dangers.

A finding of negligence in this case was supported by the teacher’s awareness of the earlier injuries, the lack of preparations, and the teacher’s comments on the incident reports, the court of appeals concluded.

The district argued that the circuit court had improperly considered the accident reports, which the district characterized as “subsequent remedial measures.” But the court of appeals said that “[t]his contention is a nonstarter” because the reports were not “measures taken,” but merely response forms with written statements by the teacher. “No party alleged that either the School District or the teacher applied any of the remedial precautions suggested by the teacher,” the court wrote.

“Just because an incident report may be designed to allow remedial measures to be taken … that intent does not alone make the contents of the reports inadmissible under Wis. Stat. § 904.07,” the court wrote.

Likewise, the court of appeals discounted the district’s argument that nobody could have foreseen that Heuser would injure himself because of a stubborn scalpel cover. “No one is asking that the teacher be a clairvoyant,” the court stated. “Rather, the fault lies in the teacher doing nothing in the face of personal knowledge that using the scalpels raised a safety issue.”

The teacher could have substituted scissors, performed the dissecting for the students herself, or given more thorough instructions on how to handle a scalpel. “Anything. Anything. But she did nothing,” the court wrote.

Governmental immunity

Wis. Stat. section 893.80 (4) immunizes school districts from liability for acts that involve the exercise of discretion or judgment. But the immunity does not extend to acts associated with “known and compelling dangers that give rise to ministerial duties on the part of public officers or employees,” the court of appeals observed.

Determining whether this exception applies, the court said that “the focus is on the action (or inaction) that could cause injury, not on the particular injury that occurred.” Consequently, it did not matter that the cause of Heuser’s specific accident was unknown.

The court explained that a danger amounting to an “accident waiting to happen” imposes a ministerial duty, requiring a particularized action with a self-evident “time, mode, and occasion.”  Citing Lodl v. Progressive N. Ins. Co., 2002 WI 71, the district argued that the teacher’s duty in this case was discretionary, not ministerial. In Lodl, an auto accident occurred after a police officer chose to use folded stop signs affixed to malfunctioning traffic lights rather than manually direct traffic. The Wisconsin Supreme Court held that the officer’s decision was discretionary because the circumstances did not demand just one particular response.

But the court of appeals distinguished instances giving rise to a ministerial duty from those in which a government has a discretionary duty with a three-step analysis:

• Something happens to create a compelling danger
• A government actor finds out about the danger, making it a known and compelling danger
• The government actor either addresses the danger and takes one or more precautionary measures, or the actor does nothing and lets the danger continue

In Lodl, the court of appeals explained, the officer addressed the danger with a measure among those options entrusted to his discretion.

“Here, it is self-evident that another student could get hurt from the flower dissection lab unless the activity was changed from the way it had heretofore been conceived,” the court of appeals wrote. “It was not changed. And under those circumstances, the teacher had the same ministerial duty as the teacher in Voss: to ‘stop the activity the way it was presently conceived.’

“Had the teacher performed one of the two precautionary measures she identified (limiting scalpel use or using scissors instead), this accident may never have occurred,” the court continued.

Alternatively, the court said, the teacher might have adopted a safety measure and the accident would still have occurred. “[T]hen we would have a situation like Lodl, where the teacher would have made the discretionary choice to do ‘something.” But again, the teacher here did nothing.”