COURT OF APPEALS DECISION DATED AND RELEASED November
22, 1995 |
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. 95-0446
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
JOHN
ERICKSON
AND
JOYCE ERICKSON,
Plaintiffs-Appellants,
v.
CITY
OF JANESVILLE,
A
WISCONSIN MUNICIPAL CORPORATION,
FRANK
SILHA AND
FRANK
SILHA & SONS, INC.,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Rock County: MICHAEL J.
BYRON, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
DYKMAN,
J. John and Joyce Erickson appeal from
a summary judgment in which the trial court dismissed their negligence action
against the City of Janesville, Frank Silha, and Frank Silha & Sons, Inc.,
a construction company. The case arises
out of property damage which occurred when the City enforced an ordinance
prohibiting open excavations. The court
dismissed the action against the City, concluding that it was immune from
liability under § 893.80(4), Stats.,
because the City's enforcement of its ordinances and the method of enforcement
were discretionary acts. It also
dismissed the action against Silha because the Ericksons did not oppose his
summary judgment motion.[1] The Ericksons argue that summary judgment
was inappropriately granted because the City is not immune from liability and
genuine issues of material fact remain as to its negligence. We conclude that the City is entitled to
immunity from the Ericksons' claims because the actions complained of
constitute discretionary acts.
Accordingly, we affirm.
BACKGROUND
In
July 1991, John and Joyce Erickson received a foundation permit for a parcel of
residential property located in the City of Janesville and began to excavate a
basement. The work was completed
sometime during the summer and fall of 1991.
In September, they applied for a building permit but apparently once the
basement was dug and the foundation completed, no other construction proceeded
on the project.
The
City received several complaints about the open excavation from neighbors, and
on July 9, 1992, it sent the Ericksons an Order to Correct. The order directed them to cover their
basement walls and backfill the area around the exterior of the basement walls
which had remained open and unprotected for over sixty days in violation of §
12.16.030 of the City's ordinances. The
City ordered the work to be completed by July 30. The City also indicated that if the Ericksons failed to comply
with the order, it would have the work completed at their expense. The Ericksons did not cover or backfill the
excavation.
By
letter dated September 22, 1992, the City once again directed the Ericksons to
cap the basement and backfill the exterior of the basement walls by October
15. The City noted that the letter would
serve as its last and final notice.
Again, the Ericksons did not cover or fill in the excavation.
On
January 19, 1993, the City sent another letter to the Ericksons, noting that
they had failed to backfill and cap their excavation and ordered them to do so
within twenty days or the City would do it at the Ericksons' expense. The City, again, wrote to the Ericksons on
June 8, noting that children were playing near the open basement and directed
them to enclose the excavation with a fence to prevent a child from being
injured. Finally, on June 24, the City
wrote to the Ericksons and told them that they had five days to either enclose
the excavation with a fence or to fill it to grade. The Ericksons did neither.
On
July 7, 1993, the City contracted with Silha to fill in the basement as best as
it could. It instructed Silha to be as
careful as possible. The work was
completed between July 7 and 8 at a cost of $920.
The
Ericksons brought this action against Silha and the City, alleging that Silha negligently
filled in the excavation and that the City negligently enforced its ordinance
and negligently supervised Silha's work.
They alleged that the City's and Silha's negligence caused extensive
property damage to the basement walls, public sidewalk, turf, and drainage and
water lines. They also alleged that the
negligence caused great emotional trauma and distress. The City moved to dismiss the action,
arguing that it was immune from liability under § 893.80(4), Stats.
The trial court agreed and dismissed the action. This appeal followed.
STANDARD OF REVIEW
We
review a trial court's grant of summary judgment de novo. Barillari v. City of Milwaukee,
194 Wis.2d 247, 256, 533 N.W.2d 759, 762 (1995). We apply the same standards and methodology as the trial court,
and if the moving party has established a prima facie case for summary
judgment and no genuine issues of fact are in dispute, the moving party is
entitled to judgment. Brownelli
v. McCaughtry, 182 Wis.2d 367, 372-73, 514 N.W.2d 48, 49-50 (Ct. App.
1994).
The
application of § 893.80(4), Stats.,
to a set of facts is a question of law which we review de novo. Estate of Cavanaugh v. Andrade,
191 Wis.2d 244, 251-52, 528 N.W.2d 492, 495 (Ct. App.), review granted,
___ Wis.2d ___, 534 N.W.2d 85 (1995). A
determination of what is imposed by a ministerial duty is also a question of
law which we review de novo. Kimps
v. Hill, 187 Wis.2d 508, 513, 523 N.W.2d 281, 284 (Ct. App. 1994), review
granted, ___ Wis.2d ___, 531 N.W.2d 325 (1995).
IMMUNITY
Section
893.80(4), Stats., provides that
a governmental body is immune from liability for injuries resulting from the
quasi-judicial and quasi-legislative acts of public officers or employees. A quasi-judicial or quasi-legislative act is
synonymous with a discretionary act. Sheridan
v. City of Janesville, 164 Wis.2d 420, 425, 474 N.W.2d 799, 801 (Ct.
App. 1991).
Three
exceptions to this rule are: (1) a
public officer or employee does not enjoy immunity if he or she engages in
malicious, willful or intentional conduct; (2) a public officer or
employee is not immune if he or she negligently performs a ministerial duty;
and (3) a public officer is not immune is he or she is aware of a danger that
is of "such quality that the public officer's duty to act becomes
`absolute, certain and imperative.'"
Barillari, 194 Wis.2d at 257-58, 533 N.W.2d at 763 (quoted
source omitted). A ministerial duty is
one which is "absolute, certain and imperative, involving merely the
performance of a specific task when the law imposes, prescribes and defines the
time, mode and occasion for its performance with such certainty that nothing
remains for judgment or discretion."
Kimps, 187 Wis.2d at 513, 523 N.W.2d at 284 (quoted source
omitted).
A
fourth exception is when the public officer's decision involves the exercise of
discretion but the discretion exercised is not governmental, i.e., it
does not require the application of statutes to facts nor a subjective
evaluation of the law. Id. In other words, immunity does not attach
merely because the official's conduct involves discretion, but when the
decision involves the type of judgment and discretion which rises to governmental
discretion, as opposed to professional or technical discretion. Sheridan, 164 Wis.2d at 427,
474 N.W.2d at 802. However, this last
exception is applicable only to cases involving medical decisions, Stann
v. Waukesha County, 161 Wis.2d 808, 818, 468 N.W.2d 775, 779-80 (Ct.
App. 1991), and the cases adopting it, Sheridan, 164 Wis.2d at
427, 474 N.W.2d at 802, and Scarpaci v. Milwaukee County, 96
Wis.2d 663, 685-87, 292 N.W.2d 816, 826-27 (1980), are therefore not relevant
to this case.
The
Ericksons contend that the City's duty was ministerial in two respects. First, the City had a ministerial duty to
include in the written notice the alternatives available to them to attain
compliance with the ordinance. They
point to Section 12.16.030 which provides:
A. The owner of any property upon
which there are excavations of any kind ... which have been allowed to remain
open and unprotected for a period of sixty days from the date of the issuance
of the permit for such work, and which, in the opinion of the building
inspector, constitutes a hazard, shall, upon written notice from the building
inspector, cover, fence or fill in such excavations within twenty days of the
date of such notice; failing which, it shall be the duty of the building
inspector to see that such work is done by the city, and the costs thereof
shall be charged against the real estate upon which such excavation is located
and shall be a lien upon such real estate, and shall be assessed and collected
as a special tax.
B. No excavation shall be left open
for more than six months. The
requirements of this subsection shall be in addition to the requirements of
subsection A. In the event any such
excavation remains open for more than six months, the building inspector or
other designated officer shall order that a subfloor be installed which would
completely cover the excavation or in the alternative that the excavation be
filled to grade. The order shall be
served upon the owner of the land or his agent and upon the holder of any
encumbrance of record. If the owner of
the land fails to comply with the order within twenty days after service
thereof upon him, the inspector of buildings or other designated officer shall
cause the excavation to be filled to grade, and the costs thereof shall be
charged against the real estate upon which such excavation is located and shall
be a lien upon such real estate, and shall be assessed and collected as a
special tax. The building inspector in
his discretion may extend the time period for thirty, sixty or ninety days, if,
in his opinion, weather or other uncontrollable circumstances have unduly
delayed the building upon the open excavation.
C. The types of excavations to which
subsections A and B apply include, but are not limited to:
1. Open excavations for basements;
2. Open basement excavations in
which foundations [h]ave been constructed, and upon which no building has been
erected or from which a building has been removed;
3. Any foundation in a basement
excavation whether supporting a building or not, around which backfilling has
not been completed;
4. Any
case where a foundation has failed, and any part of such foundation has fallen
in, whether supporting a building or not.
City of Janesville, Wis., Ordinance 12.16.030 (February
1981). They contend that the notices
sent by the City were confusing, conflicting and deficient for the purposes of
informing them that they were in violation of this ordinance. We disagree.
The
ordinance provides that when an excavation is left open for more than sixty
days, if the inspector considers it to be a hazard, he or she may send a
written notice to the offending party, ordering the party to either cover,
fence or fill in the excavation within twenty days. Thus, the inspector has discretion in several respects. First, the inspector may decide whether an
excavation poses a hazard. Second, the
inspector retains discretion as to whether to enforce the ordinance. And third, once that determination is made,
the inspector may choose which of the several options would best remedy the
situation.
The
ordinance also provides that if an excavation is left open for more than six
months, the inspector shall order the owner of the land to install a subfloor
to completely cover the excavation or, in the alternative, to fill the
excavation to grade. The ordinance
instructs the inspector to send a notice to the offending party. The ordinance, therefore, leaves discretion
with the inspector to determine which alternative would best remedy the violation.
The
Ericksons argue that the use of the word "shall" imposes a
ministerial duty on the City. But the
ordinance provides that the owner of any property shall cover, fence or
fill in the excavation. Thus, this is
not a mandatory or ministerial directive to the City, but a directive to the
landowner. There is no question but
that the City ordered the Ericksons to backfill or cover their open
excavation. The Ericksons were also
given notice of the ordinance the City charged them with violating. The City was under no obligation to explain
the notices further. The ordinance does
not impose upon the City a ministerial duty to use the exact language in the
ordinance. Instead, it leaves the City
with discretion to choose the appropriate remedy.
Second,
the Ericksons also argue that the City negligently supervised Silha's
work. They argue that the part of the
ordinance which provides that if the landowner does not respond to the City's
orders, "it shall be the duty of the building inspector to see that such
work is done by the city," and the inspector "shall cause the
excavation to be filled to grade," imposes a ministerial duty on the City
to ensure the proper execution of this work.
We disagree.
The
ordinance provides that if an offending party fails to respond to the City's
written notice of an ordinance violation, the inspector must see that such work
is done by the City at the offending party's expense. The Ericksons argue that the City had a duty to supervise Silha's
work by providing more instruction and spending time at the site. But the Ericksons do not cite any statutes,
rules, policies or orders setting out the procedures to be used when the City
hires a contractor to fill in an excavation.
Thus, the City's duty to enforce compliance is not one which
"imposes, prescribes and defines the time, mode and occasion for its
performance with such certainty that nothing remains for judgment or
discretion." Kimps,
187 Wis.2d at 513, 523 N.W.2d at 284.
Consequently, we conclude that it is a discretionary duty, entitled to
immunity. Indeed, like law enforcement
officials, building inspectors must retain the discretion to determine, at all
times, how best to carry out their responsibilities. See Barillari, 194 Wis.2d at 260-61, 533
N.W.2d at 764. The trial court did not
err when it concluded that the City was entitled to immunity.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.