COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 18, 1997 |
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. 96-1366
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CHRISTOPHER MUELLER,
Plaintiff-Appellant,
DEPARTMENT OF HEALTH
AND
SOCIAL SERVICES and
its agent,
DUNN COUNTY,
Involuntary-Plaintiff,
v.
GERALD MILLER,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Dunn County:
JAMES A. WENDLAND, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Christopher Mueller appeals a judgment dismissing his
personal injury action against Gerald Miller, a custodian employed by the
University of Wisconsin-Stout. Mueller
fell on ice or snow while crossing an uncleared paved area between a ramp and a
bicycle rack. The trial court ruled
that Miller was protected by governmental immunity. Mueller argues that governmental immunity does not apply because
Miller’s snow-clearing duties were ministerial, not discretionary, and because
the accumulated snow presented a “known present danger.” We reject these arguments and affirm the
judgment.
A state employee, such
as Miller, is protected from civil liability for negligent acts within the
scope of his employment unless the duty he violated is purely ministerial in
nature. Lister v. Board of
Regents, 72 Wis.2d 282, 300-01, 240 N.W.2d 610, 621-22 (1976). Ministerial duties arise under either of
two conditions: (1) the law
imposes, prescribes and defines the time, mode, and occasion for the duty’s
performance with such certainty that nothing remains for the exercise of his
judgment and discretion; or (2) a “known present danger” of such force
exists that the danger itself defines the time, mode, and occasion for the
duty’s performance with such certainty that nothing remains for the exercise of
the officer’s judgment and discretion. C.L.
v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d 614, 617 (1988).
Mueller argues that a
ministerial duty was created by a city ordinance that required removal of snow
from some surfaces within twenty-four hours.
The state is not bound by the city’s ordinance. See Milwaukee v. McGregor, 140
Wis. 35, 37, 121 N.W. 642, 642 (1909).
No law applicable to the state created a ministerial duty to remove
snow.
Mueller argues that the
failure to remove the snow presented a known present danger. In Cords v. Anderson, 80
Wis.2d 525, 541-42, 259 N.W.2d 672, 672 (1977), the court held that
governmental immunity did not apply to a state employee who had knowledge of
the uniquely dangerous terrain of a path passing close to a ninety-foot gorge
because the danger itself created a circumstance in which the employee had a
nondiscretionary duty to barricade the path or provide warning to its users. The accumulation of snow and ice does not
create a comparable danger known or appreciated only by the custodian. The dangers of a slippery walkway are a
matter of general common knowledge.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.