PUBLISHED OPINION
Case No.: 95-3372
†Petition for
review filed
Complete Title
of Case:
THE ESTATE OF THERESA E. LYONS and
WILLIAM LYONS,
Plaintiffs-Appellants-
Cross Respondents,†
ILLINOIS DEPARTMENT OF PUBLIC AID,
Plaintiff,
v.
CNA INSURANCE COMPANIES and
STRAND ASSOCIATES, INC.,
Defendants-Respondents-
Cross Appellants,
DONNA K. WALLER,
Defendant.
Submitted on Briefs: November 10, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December 11, 1996
Opinion Filed: December 11, 1996
Source of APPEAL Appeal
and Cross-Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If "Special", JUDGE: John R. Race
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the plaintiffs-appellants-cross respondents, the cause was submitted
on the briefs of Carl W. Chesshir of Cameron & Penegor, S.C.,
of Brookfield.
Respondent
ATTORNEYSOn
behalf of the defendants-respondents-cross appellants, the cause was submitted
on the briefs of W. Wayne Siesennop and Jeffrey L. Janik of Godfrey,
Braun & Hayes of Milwaukee.
Amicus
ATTORNEYSOn
behalf of the Wisconsin Department of Transportation, there was a brief filed
by James E. Doyle, attorney general, and Charles D. Hoornstra,
assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED December 11, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3372
STATE
OF WISCONSIN IN COURT OF
APPEALS
THE ESTATE OF THERESA
E. LYONS and
WILLIAM LYONS,
Plaintiffs-Appellants-
Cross Respondents,
ILLINOIS DEPARTMENT OF PUBLIC AID,
Plaintiff,
v.
CNA INSURANCE
COMPANIES and
STRAND ASSOCIATES,
INC.,
Defendants-Respondents-
Cross
Appellants,
DONNA K. WALLER,
Defendant.
APPEAL and CROSS-APPEAL
from an order of the circuit court for Walworth County: JOHN R. RACE, Judge. Affirmed; cross-appeal dismissed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. Strand
Associates, Inc., a professional engineering firm, is accused of having
negligently designed a highway bridge in the town of East Troy. Strand contends, however, that the state
Department of Transportation (DOT) directed it to implement the allegedly
faulty aspects of the bridge design and therefore argues that it should be
entitled to immunity against claims arising out of this design choice. Although no Wisconsin case has extended governmental
immunity to private parties who act under directives from state agencies, we
adopt the reasoning of other jurisdictions which have. We hold that Strand is entitled to immunity
and affirm the order granting summary judgment in its favor.[1]
Background
Theresa E. Lyons
sustained fatal injuries in February 1992 when her car was struck by another
driver. The accident occurred at the
intersection of Highway ES and Beach Road in the town of East Troy. Beach Road passes over a railway bridge just
before the ES intersection. The driver
who hit Lyons was passing over the bridge and missed the stop sign at the ES
intersection.
Lyons' widower and her
estate, which we refer to collectively as the Estate, subsequently brought
claims against the other driver, the government, private authorities who were
involved in the construction and maintenance of the bridge and Strand, the
designer.[2] The circuit court later dismissed the claims
against all of these defendants except for the driver. We now address the Estate's contention that
the circuit court erred when it dismissed the claims against Strand.
The Estate believes that
Strand negligently designed the bridge.
It specifically contends that the “vertical curve” of the bridge is too
high and thus limits the distance at which drivers passing over the bridge toward
the ES intersection can first see the stop sign at the ES intersection. As Strand explains in its brief, “vertical
curve” is a term used to describe the curvature of an engineered hill.[3] Generally, a hill with a high vertical curve
has a steeper incline and is shorter in length; a hill with a low vertical
curve is comparatively flatter and longer in length.
Furthermore, through
discovery, the Estate learned that although the bridge was initially designed
at a length of 150 feet and a relatively low vertical curve, the length was
eventually set at 70 feet and a higher curve.
Finally, the Estate's expert states that the shorter and higher design
which Strand implemented did not conform to safety standards promulgated by the
American Association of State Highway and Transportation Officials (AASHTO).
Strand, and the DOT as
amicus, responded that the decision to utilize a vertical curve greater than
those recommended under AASHTO standards was actually made by a DOT designer. Strand realized during its analysis that the
long and low design would require reconstruction of adjoining roadways,
substantially increasing the overall cost of the project. It reported these findings to the DOT
designer. The DOT thus approved the short
and high design because it would save excavation and highway reconstruction
costs and would also provide Beach Road drivers with greater visibility when
approaching ES. Although Strand was
retained by the town of East Troy, the bridge was being built with federal
highway funds, and the DOT had to approve the final plans.
Accordingly, because the DOT directed Strand
to implement the short and high design option, Strand moved for summary
judgment on the grounds that it was entitled to immunity from the Estate's
claim that the firm negligently designed the bridge. The circuit court agreed and dismissed the claims against
Strand.
The Estate now appeals
the order awarding summary judgment to Strand.
It raises two general arguments.
First, it contends that the circuit court erred as a matter of law when
it found that a private entity could be entitled to governmental immunity. Second, it alternatively contends that if
such immunity is available, the record does not conclusively answer whether the
DOT directed Strand to implement the short and high design and that this issue
can only be settled at a trial. We will
address each argument in turn. We note
that a few additional facts pertinent to the resolution of the second issue
will be set out in later paragraphs.
Governmental Immunity
We begin with Strand's
argument, which the DOT joins, that it should be entitled to immunity against
the Estate's negligence claim because it did not select the short and high
bridge design, but rather was directed to use these parameters by a
governmental authority. This issue
presents a question of law which we decide independently of the trial
court. See Stann v.
Waukesha County, 161 Wis.2d 808, 815, 468 N.W.2d 775, 778 (Ct. App.
1991).
While Strand and the DOT
acknowledge that no Wisconsin case has extended governmental immunity to
private entities who carry out governmental directives, they cite to this
state's municipal governmental immunity statute, § 893.80(4), Stats., and case law from other
jurisdictions which have extended immunity in similar circumstances and argue
that we should adopt such a rule here.[4]
We will start our
analysis with Wisconsin's municipal immunity statute. At the outset, we make two important observations. Although this statute does not apply to
state officers or employees, such as those who allegedly directed Strand to use
the short and high design, the supreme court has concluded that the common law
immunity which does apply to state officers or employees is essentially equal
to the statutory immunity granted to municipal officers and employees. See C.L. v. Olson, 143 Wis.2d
701, 716 n.9, 422 N.W.2d 614, 619 (1988).
Moreover, the specific conduct which Strand claims should be immunized,
bridge designing, is certainly a form of the discretionary decision-making
which the statute and the common law both immunize. See id. at 710-12, 422 N.W.2d at 617.
With these two observations in hand, we see
that the language of the municipal immunity statute seems to apply to
Strand. It plainly prohibits suits
against a governmental body or any of its “officers, officials, agents
or employes” because of acts done in the exercise of legislative or
quasi-legislative functions. Section
893.80(4), Stats. (emphasis
added).
Furthermore, the
rationale for providing such immunity also supports extending it to independent
contractors who act at the direction of a state or municipal authority. In Gordon v. Milwaukee County,
125 Wis.2d 62, 65-66, 370 N.W.2d 803, 805 (Ct. App. 1985), we explained that
the purpose of this discretionary immunity was to insulate legislative policy
decisions from judicial examination. We
reasoned that the tort process was an “inadequate crucible” for testing the
merits of choices made in the political arena.
Id. at 66, 370 N.W.2d at 805 (quoted source omitted).
Thus, the language of
§ 893.80(4), Stats., and the
reasoning of Gordon demonstrate that the focus of our inquiry
should be whether Strand was simply acting as an “agent” of governmental
authorities who had retained ultimate responsibility for these aspects of the
bridge design. If this accurately
describes the situation, then Strand should be immune, just as the state
authorities would be, because this court would otherwise be placed in the
position of having to examine the merits of what was really a political choice.
Other jurisdictions
facing this issue have extended immunity to private parties for similar
reasons. Indeed, Strand and the DOT
rely heavily on Boyle v. United Technologies Corp., 487 U.S. 500,
512-13 (1988), where the Supreme Court adopted a “government contractor
defense” and held that it could bar the estate of a military helicopter pilot
from suing the manufacturer for alleged design flaws if the challenged design
choice was made by military officials.
The Court was concerned that without such a defense, the Armed Forces'
decisions regarding the design of military equipment, especially the trade off
between safety and combat effectiveness, would be subject to second-guessing in
tort suits. See id.
at 511. To reach this conclusion, the
Court turned to a federal statute, similar to Wisconsin's, which conferred
immunity to federal agencies and employees against claims arising out of their
discretionary functions. See id.
(citing 28 U.S.C.A. § 2680(a) (West 1994)).
Strand and the DOT also
point us toward Vanchieri v. New Jersey Sports and Exposition Auth.,
514 A.2d 1323, 1326 (N.J. 1986). There,
the court held that a statute conferring immunity to public entities and
employees could extend to an independent contractor when that contractor is
performing tasks in accordance with the government's plans and specifications. The New Jersey Supreme Court offered two
rationales for this rule. One, it was
concerned that independent contractors, without such immunity, would simply
pass the costs of their liability along to government, thereby eliminating the
fiscal savings associated with governmental immunity. See id.
Two, the court noted that it would be “fundamentally unfair” to make an
independent contractor liable for injuries caused by a defective design when
the governmental authority was responsible for developing the design. See id.
The Vanchieri
court, however, faced a factual situation distinguishable from the case before
us; the plaintiff claimed that a government-hired security agency had not
properly controlled the crowd at a football game. See id. at 1325. The difference in the intellectual exercises involved with
effective crowd management versus those associated with quality bridge design
is obvious. Nonetheless, we have traced
the subsequent treatment of the Vanchieri rule and observe that
it has been applied in the more analogous context of building design and
construction. See Board of Educ.
v. W.R. Grace Corp., 609 A.2d 92 (N.J. Super. Ct. Law Div. 1992).
Our review of these
authorities demonstrates that there are strong reasons to join the above courts
and extend the § 893.80(4), Stats.,
municipal immunity and the common law state immunity to contractors who act in
accordance with directions given by these authorities.
The Estate contends,
however, that an engineering firm should not be automatically cloaked with
immunity because a state agency directs what the firm is to do. The Estate suggests that Strand had an
independent duty to the public not to compromise on the safety of a design. It buttresses this argument with a cite to A.E.
Inv. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 488, 214 N.W.2d 764,
769 (1974), where the supreme court rejected an architectural firm's claim that
it only owed a duty to its client, reasoning that members of the profession had
a separate and distinct “responsibility to the public welfare.” So in circumstances such as this case, where
the government-approved design contradicts generally accepted standards, the
Estate concludes that a professional designer has a duty “to not proceed.”
Nonetheless, close
examination of the Boyle and New Jersey decisions explored above
reveals that what appear to be mutually exclusive values of giving professional
designers immunity and ensuring that these professionals not abdicate their
responsibility to the public at large can be reconciled. In Boyle, the Supreme Court
did not confer blanket immunity to governmental contractors. Instead, it set out a three-part test that
only granted immunity to military equipment manufacturers when:
(1)the United States approved reasonably
precise specifications;
(2) the
equipment conformed to those specifications;
and
(3)the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States.
Boyle, 487
U.S. at 512. And although the Supreme
Court's concern about judicial involvement in military affairs might suggest
that the above test has limited use in other contexts, the New Jersey Superior
Court adapted it to the building construction industry. See Board of Educ., 609
A.2d at 110.
The Supreme Court
explained in Boyle that this three-part test served two
goals. We believe that both goals
support extending this test to the engineering field. First, prongs one and two of the Boyle test ensure
that the challenged design is within the class of official decisions that
should be insulated from judicial scrutiny and that the design feature being
challenged was actually reflected upon by a governmental official. See Boyle, 487 U.S. at
512. As important, the third prong
alleviates the concern that the Estate raises—the risk that a governmental
contractor will ignore its duty to the public and withhold information about
dangers that the government might not know about. See id.
By requiring the contractor who seeks immunity to show that it informed
the government about hidden flaws, society is ensured that governmental
officers and officials get all the information necessary to support a proper
discretionary choice. See id.
at 512-13.
In summary, we adopt a
form of governmental contractor immunity applicable to parties who contract
with municipal or state authorities and are directed to perform certain tasks
under that contract. An independent
professional contractor who follows official directives is an “agent” for the
purposes of § 893.80(4), Stats.,
or is entitled to common law immunity when:
(1)the governmental authority approved
reasonably precise specifications;
(2)the contractor's actions conformed to
those specifications; and
(3)the contractor warned the supervising governmental authority about the
possible dangers associated with those specifications that were known to the
contractor but not to the governmental officials.
This
three-part test will ensure that state and municipal government, and the public
at large, is able to make the best use of professional design assistance, but
that professional contractors are not unfairly burdened by lawsuits when they
follow governmental directives.
Summary Judgment
Having concluded that
Strand might be entitled to immunity, we must now address whether the record so
conclusively demonstrates that Strand meets the three-part standard we set out
above that it is entitled to judgment as a matter of law. See generally Preloznik v. City
of Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App.
1983). Although the circuit court
already determined that Strand is so entitled to judgment, we owe no deference
to this conclusion because we independently apply the summary judgment methodology.
See id.
Our review of the record
reveals several documents which support Strand's claim to immunity. First, a letter from a director at the DOT
to Strand, dated May 23, 1979, describes how the DOT and Strand met for a “field
review” and there discussed how to “eliminate the large fill area” which would
be required if the long and low design were used. In this letter, the DOT also asked Strand to prepare cost
estimates for various alternatives.
Next, the record
contains a letter dated June 12, 1979, where Strand outlined two possible
solutions. In this letter, a Strand
engineer explained how:
[t]he original selection of vertical
design geometrics for Beach Road was based upon DOT Design Criteria for this
class of Roadway. This design criteria
normally requires a 40 mph design speed, but with the approach to the stop
condition on CTH ES, we reduced the design speed on this approach to 20-25 mph
and utilized a 150 ft vertical curve.
Your letter suggests that we utilize a design speed and vertical curve
even below our reduction and we are in agreement that a further exception to
the general design criteria is warranted in this instance. We have therefore revised the vertical
profile to utilize a 70 ft vertical curve ....
Thus
far, these two letters demonstrate that Strand and the DOT were working
together on the development of the short and high design option and, more
importantly, that Strand was waiting for the DOT's final approval of this
aspect of the bridge design.
The supervisory character
of the DOT is further revealed in a June 20, 1979, letter where the DOT
informed Strand that it had reviewed the options that Strand proposed and
directed Strand to “please proceed” with the profile for a 70-foot bridge with
its higher vertical curve. This letter
is followed a month later by another where Strand wrote to the DOT confirming
that: “[t]he revised vertical profile
for Beach Road is in accord with the result of our May 23 field review and your
June 20 approval of the vertical profile revision using exceptions to the
design standards.”
Even though this series
of letters undoubtedly points to the conclusion that Strand implemented the
short and high design at the DOT's direction, the Estate nonetheless maintains
that a dispute of material facts remains.
The Estate argues that
“[a] reasonable inference can be drawn that no ‘directive’ was ever
given.” While we acknowledge that no
single document contains a bald command to Strand directing it to “design this
bridge with a 70 foot curve,!” the whole series of correspondence certainly
supports that conclusion. Indeed, we
are unable to discern what other possible (and reasonable) inference could be
drawn from these letters. Since the
Estate does not contest the verity of these letters, see Kosmatka v. DNR,
77 Wis.2d 558, 564, 253 N.W.2d 887, 890-91 (1977), we conclude that Strand is
entitled to summary judgment.
The Estate also argues
that the above correspondence does not entitle Strand to judgment because
Strand had a duty as a professional engineer to “disagree with suggestions from
the Department of Transportation and to insist that the design of the bridge
meet necessary safety requirements.”
But this contention is an allegation of law which cannot be used to
defeat a motion for summary judgment. See
Krieg v. Dayton-Hudson Corp., 104 Wis.2d 455, 465, 311 N.W.2d 641,
646 (1981). And as we explained above,
the legal standard appropriate to this case only requires that a professional
engineer warn the supervising state officials about any possible dangers that
are otherwise unknown to the state. In
these letters, Strand repeatedly stated that the 70-foot design curve was an
exception to the current standards.
This was sufficient to fulfill its obligation to inform the DOT about
possible concerns with the short and high design.
In sum, we hold that the
record conclusively demonstrates that Strand is entitled to immunity against
the Estate's claim. No issue remains
for trial. First, the correspondence
outlined above demonstrates how the DOT approved the 70-foot design, a reasonably
precise standard. Next, the record
contains no dispute that the bridge was ultimately designed and constructed
pursuant to this 70-foot design.
Finally, the exchange of letters demonstrates that Strand and its DOT
supervisors were aware that this design was outside accepted standards, but
that the DOT nonetheless directed Strand to implement it because of site
conditions.
By the Court.—Order
affirmed; cross-appeal dismissed.
[1] Because we hold that the trial court properly dismissed the claims against Strand, we need not address Strand's cross-appeal in which it alleges an alternative ground for dismissing the claims against it. Here, Strand contends that it is a governmental “agent” for the purposes of § 893.82, Stats., which requires parties making claims against such an “agent” to follow certain procedures. Because the plaintiffs did not allegedly comply with these procedures, Strand contends that the suit should be dismissed. We do not reach that issue. However, we do discuss agency as it relates to a completely different issue. Within our discussion of whether Strand was a governmental agent for immunity purposes, we address its related argument that it is an “agent” under § 893.80(4), Stats., the municipal immunity statute.
[4] We observe that in C.L. v. Olson, 143 Wis.2d 701, 718 n.10, 422 N.W.2d 614, 620 (1988), the supreme court cautioned that “the analysis applied in other jurisdictions regarding immunity is unhelpful.” In C.L., however, the court was concerned with whether a state employee's conduct was of a “discretionary nature” and hence immunized, see id. at 711, 422 N.W.2d at 617, not the issue we face of whether a private entity working at the direction of the state is entitled to immunity. We conclude that the immunity analysis of other jurisdictions is relevant and helpful to this latter issue.