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COURT OF
APPEALS DECISION DATED AND
RELEASED March
21, 1996 |
NOTICE |
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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. 95-2029
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
ROBERT
VINES, JR.,
Plaintiff-Appellant,
v.
DON
NORENBERG,
KATHY
NAGEL
AND
MARVIN VANTHOFF,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Dodge County: JOHN R. STORCK, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Robert Vines, Jr. is an inmate at Dodge Correctional
Institution (DCI). He appeals from a
summary judgment dismissing his claim for personal injuries against three
officials at DCI--Don Norenberg, Director of Maintenance, Marvin VantHoff, Food
Production Supervisor, and Kathy Nagel, Associate Warden Security Director. Vines alleged in his complaint that while he
was performing kitchen duties, a gallon of dishwashing liquid broke off its
machine and fell to the floor. He
allegedly slipped in the liquid soap that spilled from the machine and fell.
The
trial court granted summary judgment to the defendants on the grounds that
Vines' notice of claim did not meet the requirements of § 893.82(3), Stats., as to any of the three
defendants. The notice of claim did not
contain the names of Nagel and VantHoff and, although it contained Norenberg's
name, did not specify the location where the injury occurred. The trial court also ruled that Norenberg
was entitled to summary judgment on the ground that he was immune because his
actions were discretionary, not ministerial.
Vines
contends on appeal that the notice of claim was adequate as to all three
defendants,[1] and that
there is a genuine issue of material fact as to Norenberg's immunity, making
summary judgment improper. We conclude
that the notice of claim was deficient as to VantHoff and Nagel, and that
Norenberg was entitled to summary judgment on the immunity issue. We therefore affirm the trial court's order.
The
notice of claim listed the names and addresses of two persons: Gordon Abrahamson, Warden of DCI, and Don
Norenberg. It also stated, among other
assertions: "Gordon Abrahamson and
Don Norenberg knew, or in the exercise of reasonable care, should have known,
that the liquid soap container, in its condition on August 18, 1991, posed an
unreasonable risk of harm to persons in the area." The notice of claim does not mention Nagel
or VantHoff.
Section
893.82(3), Stats., states that no
civil action may be brought against a state employee for acts arising out of
his or her duties unless, within a prescribed time period, the claimant serves
upon the attorney general a written notice of claim "stating the time,
date, location and the circumstances of the event ... and the names of persons
involved, including the name of the state officer, employe or agent
involved." In Modica v.
Verhulst, 195 Wis.2d 633, 536 N.W.2d 466 (Ct. App. 1995), we held that
a notice of claim that identified an unnamed person by job description was deficient
as to that person because it did not meet the requirement in § 893.82(3) that
the notice of claim state the name of the state officer, employee or agent
involved.
Modica disposes of Vines' contentions regarding VantHoff and
Nagel. The notice of claim does not
state either name. Therefore no action
may be brought against either for the acts alleged in the complaint. We do not reach the issue of the adequacy of
the notice of claim as to Norenberg because we conclude that he is entitled to
summary judgment on the immunity issue.
We
review summary judgments de novo, employing the same methodology as the trial
court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816, 820 (1987). Generally, summary judgment is proper where
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. "[T]he `mere existence of some
alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.'" Baxter v. DNR, 165 Wis.2d 298,
312, 477 N.W.2d 648, 654 (Ct. App. 1991) (emphasis in original) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A factual issue is genuine if the evidence
is such that reasonable jurors could return a verdict for the nonmoving
party. Id.
Generally
a public official is immune from liability for injuries resulting from acts
performed within the scope of his or her public duties. C.L. v. Olson, 143 Wis.2d 701,
710, 422 N.W.2d 614, 617 (1988). This
rule does not apply, however, when the official's negligence is in the
performance of ministerial duties or when the act was malicious, willful and
intentional. Id. at
710-11, 422 N.W.2d at 617. Since Vines'
complaint does not allege that Norenberg acted maliciously, willfully or
intentionally, we are concerned only with the exception for ministerial duties.
"A
public officer's duty is ministerial only when it 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." Lister v. Board of Regents, 72
Wis.2d 282, 301, 240 N.W.2d 610, 622 (1976) (footnote omitted). A discretionary, or non-ministerial act, is
one which "involves the exercise of discretion or judgment in determining
the policy to be carried out or the rule to be followed ... [and] the exercise
of discretion and judgment in the application of a rule to specific
facts." Lifer v. Raymond,
80 Wis.2d 503, 511-12, 259 N.W.2d 537, 541-42 (1977) (footnote omitted).
A
ministerial duty may also exist when there is a danger that is obvious to the
defendant but hidden to the plaintiff. Cords
v. Anderson, 80 Wis.2d 525, 541, 259 N.W.2d 672, 680 (1977). In such a situation, a duty to warn
exists. Id. The question whether a ministerial duty
exists is one of law, which we review de novo.
Larsen v. Wisconsin Power & Light Co., 120 Wis.2d 508,
516, 355 N.W.2d 557, 562 (Ct. App. 1984).
We
first examine the material submitted by Norenberg in support of his motion to
determine whether it establishes a prima facie case that he is immune
from liability because he was engaged in a discretionary, not ministerial,
act. Norenberg states in his affidavit
that he is the Director of Maintenance at DCI.
In this position, he does not personally inspect, maintain or repair any
DCI kitchen soap containers or dispensing equipment. No statute, administrative rule, or other mandatory regulation
prescribes the time, manner or occasion for the inspection, maintenance or
repair of such soap containers or dispensers by him or staff members under his
control and direction. He was at no
time on or prior to August 18, 1991 (the date of the alleged injury), informed
or otherwise aware, that such soap containers or dispensers were in defective
condition or that they presented a risk of harm due to improper maintenance or
repair.
Norenberg
avers that his job duties are specified in the job description attached to his
affidavit. Vines does not appear to
argue that any of the duties described are specific or defined sufficiently to
give rise to a ministerial duty in and of themselves. We conclude they are not.
We therefore turn to Vines' argument that evidence of Norenberg's
duties, in conjunction with the material submitted by Vines in opposition to
the motion, create a genuine dispute as to the ministerial nature of
Norenberg's duty with respect to the soap container.
Vines
submitted the affidavit of John McMichael, also an inmate at DCI, which states
as follows. VantHoff was the food
production supervisor at DCI. McMichael
was the lead man in the DCI kitchen, assigning tasks to other inmates. There was a defective soap rack in the
kitchen that contained a gallon of liquid soap and that would come unattached
at random or when the dish machine shook.
McMichael informed VantHoff (his boss) on several occasions that the
rack should be fixed before someone was injured, specifically on July 28, 29,
30 and 31, 1991, and on August 1 and 2, 1991.
VantHoff stated, "[W]hat the fuck do you care, much money as we're
paying you, most of these assholes ain't nothing but sex offenders
anyways." VantHoff made no effort
to contact the appropriate individuals to resolve the situation. According to McMichael, "[a] safety
hazard of this magnitude was known to all DCI staff who worked in the DCI
kitchen and most inmates who worked in the kitchen for any length of
time."
Vines
argues that, in view of certain duties in Norenberg's position description,
there is a reasonable inference that VantHoff told Norenberg about the
defective soap container, or that Norenberg observed it or learned about it in
his routine inspections and discussions with the staff and supervisors. For this reason, Vines contends, there is a
genuine issue of material fact as to whether the defective soap container was a
known and obvious danger, such that Norenberg should have either warned others
or had the defective container repaired.
Norenberg
states in his affidavit that no one told him about the defective soap container
and he was not aware of it. In order to
create a genuine factual dispute concerning Norenberg's knowledge, Vines must
present evidence from which it is reasonable to infer that Norenberg did
know. He has not done so.
The
specific duties Vines points to in Norenberg's position description are: (1) review work orders for items of
repair work which are received from each department, supervise repair work in
progress, and interact with other program supervisors on matters of repair and
maintenance;[2]
(2) conduct periodic performance report interviews with employees in the
maintenance section; and (3) inspect all building interiors on a periodic
basis.
All
of these duties are phrased generally and none require Norenberg to inspect the
kitchen, let alone inspect or repair the kitchen soap containers at particular
times or by particular methods. None
require Norenberg to initiate discussion of the need for repairs in the kitchen
or elsewhere. The most that can be
reasonably inferred from these duties is that if VantHoff had decided that
repair of the defective soap container was necessary, Norenberg would have
learned of the need for the repair. It
is not reasonable to infer from the description of Norenberg's duties that
VantHoff told him about the defective container. Indeed, McMichael's affidavit itself states that VantHoff did not
contact "the appropriate individuals"; and VantHoff's response to
McMichael's complaint, as related by McMichael, certainly is not evidence that
VantHoff had any intention of requesting a repair. It is also not reasonable to infer from the description of Norenberg's duties that
Norenberg himself would have observed the defective soap container in the
kitchen.
Because
the undisputed facts, including all reasonable inferences from them drawn in
Vines' favor, show that Norenberg's duties with respect to the defective soap
container were not ministerial, the trial court properly granted summary
judgment in Norenberg's favor.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
No. 95-2029(D)
SUNDBY,
J. (dissenting). If Robert
Vines, Jr. had been a patron of Simpson's Garment Store and slipped and fell on
dishwashing liquid negligently discharged onto the floor, he would state a
claim for his injuries. See Sturm
v. Simpson's Garment Co., 271 Wis. 587, 74 N.W.2d 137 (1956). However, because he is an inmate in a
correctional institution, we propose to hold that he does not state a claim
against a prison official who negligently caused and allowed that condition to
exist where he lived and worked. My
colleagues conclude that Vines cannot state a claim against the director of
maintenance and engineering because the director's duty to maintain the prison
in a condition reasonably safe for the inmates is discretionary and he is
therefore immune from personal liability.
The
majority does not decide the question of immunity but the question of
negligence. They state: "[The director of maintenance] was at
no time ... informed or otherwise aware, that [the] soap containers or
dispensers were in defective condition or that they presented a risk of harm
due to improper maintenance or repair."
Maj. Op. at 6. On a summary
judgment motion to dismiss on grounds of immunity, the officer's negligence is
assumed. Kimps v. Hill,
187 Wis.2d 508, 514, 523 N.W.2d 281, 285 (Ct. App. 1994), review granted,
531 N.W.2d 325 (1995). However, even if
a public officer's choice turns out badly, he or she is immune from suit and
liability if the choice was within the officer's discretion.
Because
the director of maintenance and engineering is a state officer or employee,
§ 893.82, Stats.,
governs. That statute does not contain
a provision comparable to § 893.80(4), Stats.,
which immunizes local officials from suits for acts done in the exercise of
legislative, quasi-legislative, judicial or quasi-judicial functions. However, the test for the immunity of a
state officer under § 893.82 is no different from the test for immunity of
a local officer under § 893.80(4).
See Lifer v. Raymond, 80 Wis.2d 503, 511-12, 259
N.W.2d 537, 541-42 (1977). Lifer
defines acts for which a public officer may not be held liable as follows:
A quasi-legislative act involves the exercise of
discretion or judgment in determining the policy to be carried out or the
rule to be followed. A
quasi-judicial act involves the exercise of discretion and judgment in the
application of a rule to specific facts.
Id. at 511-12, 259 N.W.2d at 541 (emphasis added).
The
Holytz court,[3]
which abrogated governmental immunity (not public officer immunity), excepted
acts of governance. Unfortunately, by
judicial construction, the courts have so broadened the doctrines of
governmental immunity and public officer immunity that immunity is accorded
because of the officer's or employee's status, not his or her act. Kimps is a classic example of
that unwarranted expansion of public officer immunity. In that case, we found that the University's
safety officer was immune from liability when a volleyball standard he was
charged with maintaining fell and injured a student. The fall occurred because the screws attaching the standard to
its base had not been properly tightened.
The only way the majority would have found the safety officer non-immune
would have been if his job description had read: "Tighten screws on volleyball standards every Tuesday at
8:30 a.m." 187 Wis.2d at 528, 523
N.W.2d at 290.
In
the appeal before us, apparently the only way the majority would find the
director of maintenance non-immune would be if his job description
included: "[P]ersonally inspect,
maintain or repair any DCI kitchen soap containers or dispensing
equipment." Maj. Op. at 6. Thus, even though it is the director of
maintenance's duty to keep the prison safe for inmates, because he did not
personally perform all of the duties of his office, he is immune. That is an unacceptable result because it
allows a public officer to escape liability by simply failing to perform the
duties imposed upon him or her. An
officer whose general duties include supervision of acts performed by
subordinates is liable for the subordinate's negligence in performing those
acts under the rule of respondeat superior. See Holytz, 17 Wis.2d at 40, 115 N.W.2d at 625.
Further,
in applying the rule of public officer immunity in a particular case, we do not
look to the nature of the officer's or employee's general duties but to the
specific act of negligence. Coffey
v. City of Milwaukee, 74 Wis.2d 526, 533-34, 247 N.W.2d 132, 136
(1976). "[I]t is the
categorization of the specific act upon which negligence is based and not the
categorization of the overall general duties of a public officer which will
dictate whether or not the provisions of § 895.43(3), Stats., apply to enable the
municipality to escape liability."
Id. That holding
applies with equal force to the public officer. See Scarpaci v. Milwaukee County, 96 Wis.2d
663, 685, 292 N.W.2d 816, 826-27 (1980).
Our
decision in Kimps and our decision today are directly contrary to
the holding of the supreme court in Coffey, and as such, cannot
stand. We are bound by the decisions of
the supreme court. State v.
Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159, 163 (1994). If a building inspector's duty to inspect
premises and discover defects is not discretionary, Scarpaci, 96
Wis.2d at 686, 292 N.W.2d at 827, how can we say that the failure of the
prison's director of maintenance to inspect the prison premises and correct
dangerous defects is a discretionary act?
I submit that the gulf between Coffey/Scarpaci and Kimps
and this appeal has so widened that no consistent principles of law guide our
decisionmaking. Each case is decided on
an ad hoc basis without concern for doctrinal consistency. In my dissent in Vines v. Clusen,
No. 89-2065, unpublished slip op. (Wis. Ct. App. Mar. 29, 1990), I suggested
that we adopt the Restatement's proposal that in attempting to decipher the
undecipherable discretionary/ministerial dichotomy, the court weigh a number of
policy factors and make its decision accordingly. I again commend that approach.
The
decisions of the appellate courts since Holytz and Lister
v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976), amply
demonstrate that we have forgotten that there is a distinction between
governmental tort immunity and public officer tort immunity. Holytz abrogated governmental
tort immunity, not public officer immunity.
The court was concerned that the scope of its abrogation would be eroded
by subsequent judicial decisions and therefore declared: "Perhaps clarity will be afforded by
our expression that henceforward, so far as governmental responsibility for
torts is concerned, the rule is liability--the exception is
immunity." 17 Wis.2d at 39, 115 N.W.2d
at 625. However, when the suit is
against a public officer or employee, the rule is immunity and the exception is
liability. "[I]n negligence
actions against individual officers, the rule is immunity, the exception,
liability." Cords v.
Anderson, 80 Wis.2d 525, 555, 259 N.W.2d 672, 686 (1977) (Hansen, J.,
dissenting). It does not follow,
however, that the governmental employer is immune whenever the public officer
is immune. A municipal employer is
liable for the negligence of its employees by reason of the rule of respondeat
superior. "By reason of the
rule of respondeat superior a public body shall be liable for damages
for the torts of its officers, agents and employees occurring in the course of
the business of such public body."
Holytz, 17 Wis.2d at 40, 115 N.W.2d at 625.
The
doctrine of respondeat superior does not, however, transmute an action
against a state officer or employee into an action against the state. Cords v. Ehly, 62 Wis.2d 31,
36-37, 214 N.W.2d 432, 435 (1974).
Under Holytz, there is substantive liability
imposed upon the state when its agents, in the course of their employment,
commit a tort. Forseth v. Sweet,
38 Wis.2d 676, 679, 158 N.W.2d 370, 371 (1968). However, "the mere creation of substantive liability [does]
not suffice to pierce the legislatively controlled barrier against
suit." Id. at 684,
158 N.W.2d at 373. Contrary to
municipal liability and immunity, the state's immunity has a dual nature. As the Forseth court
observed, "[s]ince a municipal body has always been subject to suit, the
entire barrier of immunity crumbled when it was concluded that there was
substantive liability under sec. 270.58 [now § 895.46, Stats.] as well as under Holytz." Id. at 685, 158 N.W.2d at
374. However, the state's barrier of
immunity from suit is unaffected by Holytz and
§ 895.46. Id.
The
inapplicability of the doctrine of respondeat superior to the state is,
therefore, procedural, not substantive.
However, there is no procedural barrier to imposing the doctrine of respondeat
superior on the superior officer who is responsible for the acts of his or
her agents. "The thrust of [Clausen
v. Eckstein, 7 Wis.2d 409, 97 N.W.2d 201 (1959)] is that the respondeat
superior chain extends from those who are responsible for an act to their
superiors." Chart v. Dvorak,
57 Wis.2d 92, 105, 203 N.W.2d 673, 679 (1973).
The
sum of the these cases is that § 895.46, Stats.,
removes the procedural impediment to state substantive liability. Under that statute, a judgment against a
state officer or employee acting within the scope of his or her employment is
to be paid by the state rather than the public officer or employee. However, the judgment is entered against the
officer or employee.
It
is this lack of personal liability which signals that the time has come to
abrogate public officer immunity. See
Restatement (Second) of Torts
§ 895D, Comment f (1979). The
common-law bases for public officer immunity included the danger of influencing
public officers in the performance of their functions by the threat of personal
liability and the deterrent effect which personal liability might have on those
considering entering public service. Lister,
72 Wis.2d at 299, 240 N.W.2d at 621.
With the enactment of what is now § 895.46, Stats., and the advent of liability insurance, a public
officer or employee need no longer fear personal liability for acts performed
in the course of the officer's or employee's employment. The reason for the rule of public officer
immunity having disappeared, so should the rule. Since the rule was court-created, it may be abrogated by the
court. See Holytz,
17 Wis.2d at 39, 115 N.W.2d at 624 ("The doctrine of governmental immunity
having been engrafted upon the law of this state by judicial provision, we deem
that it may be changed or abrogated by judicial provision."). Plainly, however, so important a judicial
act should be taken by our supreme court, not this court. It is, of course, appropriate for the
legislature to abrogate public officer immunity. It is time that Wisconsin join the rest of the world in assuming
community liability for the torts of its public officers. See Comment,
Municipal Responsibility for the Torts of Policemen, 42 Yale L.J. 241, 244-45 (1932), quoted
in Holytz, 17 Wis.2d at 35, 115 N.W.2d at 622-23; see also
Walker v. University of Wis. Hospitals, 542 N.W.2d 207, 213-14
(Wis. Ct. App. 1995) (Sundby, J., concurring).
The
majority seems to have written the concept of duty out of the public officer
immunity equation. However, when the state
takes away from a person the power to protect himself or herself from harm, the
state assumes a duty to exercise reasonable care to protect such person. See 60 Am. Jur. 2d Penal and Correctional Institutions
§ 200 (1987). "The majority
of courts hold that the sheriff or other officer owes a duty to the prisoner to
keep him safely and protect him from unnecessary harm and it has also been held
that the officer must exercise reasonable and ordinary care for the life and
health of the prisoner." Annotation,
Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or
Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353, 354 (1950); see
also Vines v. Clusen.
The state's duty to keep prisoners safe makes moot any claim that that
duty can be avoided by labeling it "discretionary."
Because
the majority does not reach the issue of the adequacy of Vine's notice of
claim, I express no opinion on that question.
[1] Vines' first brief, prepared by counsel,
states that while the brief does not challenge the order dismissing the
complaint against VantHoff and Nagel, Vines wishes to do so. Vines' pro se reply brief addresses this
issue. We do not ordinarily decide
issues raised for the first time in the reply brief because that is unfair to
the respondent. However, since the issue
was mentioned in the first brief and fully briefed in the reply brief, and since
there is no prejudice to the respondents given our resolution of this issue, we
address it briefly in this opinion.
[2] Vines actually refers to another duty in the
position description instead of the first one we have cited: "Communicate regularly with supervisor
on all matters affecting the services of the Maintenance Department and the
operation of the Repair and Maintenance Department in general." However, this duty relates to Norenberg's
duty to communicate with his supervisor and is not relevant to Vines' argument. We understand Vines to be concerned here
with those duties that require him to interact with the persons he supervises
concerning repair and maintenance and we have therefore substituted the
pertinent duty for the one referred to by Vines.