COURT OF APPEALS DECISION DATED AND FILED April 7, 2011 A. John Voelker Acting Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL
from a judgment of the circuit court for
Before Lundsten, Sherman and Blanchard, JJ.
¶1 PER CURIAM. Dale Weis appeals a summary
judgment dismissing claims against Ronald Ratzburg, Jefferson Bus Service, Inc.
(“JBS”), and their insurer, Cornhusker Casualty Company. Weis argues that the circuit court improperly
concluded that Ratzburg and JBS were agents of the
¶2 The relevant facts are undisputed. Linda Weis was operating a lawn tractor on
the shoulder of
¶3 Ratzburg, JBS, and Cornhusker moved for summary judgment, contending that the undisputed facts established that Ratzburg and JBS were agents of the school district and therefore entitled to governmental immunity under Wis. Stat. § 893.80. The circuit court agreed, and granted summary judgment dismissing Weis’s claims. Weis now appeals.
¶4 On review of a summary judgment decision, we employ the same
methodology as the circuit court. Lambrecht
v. Estate of Kaczmarczyk, 2001 WI 25, ¶21, 241
¶5 The governmental immunity statute, Wis. Stat. § 893.80(4), confers broad immunity from
suit to public officers or employees for acts done pursuant to legislative,
judicial, quasi-legislative, or quasi-judicial capacities. See
Kierstyn
v.
¶6 The dominant factor in determining whether a master-servant
relationship exists is the right to control.
¶7 The circuit court noted that bus routes were subject to approval by the school district. The court also referenced the fact that JBS was required to transport students in compliance with passenger lists, days of operation, and time schedules established by the school district. In addition, the school district required JBS to provide a resident manager “immediately available” to the district, and the district had the right to monitor JBS radio traffic. The school district also required drivers to have first aid certification, attend safety meetings, write reports concerning rider misconduct, follow school board procedures on discipline, and wear appropriate clothing. The contract also provided that the school district could terminate its contract with JBS on thirty days’ notice for cause, and JBS had no reciprocal right. JBS was also required to cooperate with the school district on media and community issues.[2]
¶8 Aside from the right to control, several secondary factors
may be taken into account, including such factors as the nature of the job, the
intent of the parties, and which party provided any instrumentalities or
tools.
¶9 However, as the circuit court pointed out, the school district “does not mandate bus manufacturer nor require the buses to be housed on school property, but in almost all other respects, the District controls the buses.” Furthermore, the court emphasized that the school district controls the details of non-routine events, such as snow days and passenger list amendments.
¶10 In addition, the use of the label “independent contractor” in
the contract between the parties is not dispositive. See
Pamperin
v. Trinity Mem’l Hosp., 144
¶11 Weis contends that the circuit court failed to give “due weight to the joint decision-making that was performed by both the District and JBS.” We disagree. The court acknowledged the joint decision-making, but also recognized that many of these decisions were subject to the school district’s ultimate approval.
¶12 Weis also contends that the circuit court failed to appreciate the extent of statutory regulation of bus drivers and transportation companies. See Wis. Stat. §§ 121.51-121.58. To the contrary, the court emphasized that the parties’ relationship went beyond those aspects required by statute. In any event, the fact that school bus service is regulated does not change the Kettner analysis.[4]
¶13 Finally, Weis argues that, even if Ratzburg and JBS are agents
for purposes of Wis. Stat. § 893.80(4),
there is no immunity arising out of the negligent operation of a motor vehicle
under Wis. Stat. § 345.05. Weis concedes that this issue was raised for
the first time on appeal. We generally
do not address issues raised for the first time on appeal, and decline to do so
here. See Wirth v. Ehly, 93
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] The circuit court acknowledged that the school district did not have daily control over JBS to the extent that school district employees did not ride along with and instruct drivers.
[3] Weis argues that none of these factors “was a cause of
this fatal rear end crash that claimed the life of Linda Weis.” However, this argument is unsupported by
legal citation and we therefore will not address the argument further. See
Kruczek
v. DWD, 2005 WI App 12, ¶32, 278
[4] Because we conclude that Ratzburg and JBS were agents
of the school district and therefore entitled to immunity pursuant to Wis. Stat. § 893.80(4), we need not
reach the issue of whether the government contractor defense applies to the
operation of a school bus. See Gross v. Hoffman, 227