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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
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No. 92-2736
STATE OF WISCONSIN
: IN SUPREME COURT
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RENEE KIMPS, PLAINTIFF-RESPONDENT-CROSS
APPELLANT-CROSS
RESPONDENT- PETITIONER, NORTH CENTRAL HEALTH CARE PROTECTION PLAN, NOMINAL-PLAINTIFF, v. DR. LEONARD HILL, DEFENDANT-APPELLANT-CROSS
RESPONDENT, JAYFRO CORPORATION, a subsidiary of Verified Sports, Inc., DEFENDANT-RESPONDENT-CROSS RESPONDENT-CROSS
APPELLANT- PETITIONER, ALLEN R. KURSEVSKI, DEFENDANT-CROSS
RESPONDENT, DR. JOHN MUNSON, MARTY LOY, SISTER
ROSELLA REINWAND, JERRY BURLING, MILWAUKEE SPORTING GOODS, PACIFIC EMPLOYERS
INSURANCE COMPANY, ALLEN R. KURSEVSKI, DONALD P. BURLING, GREGORY DIEMER,
VALLEY SCHOOL SUPPLIERS, a division of QIII Corporation AND INA INSURANCE
COMPANY, DEFENDANTS. |
FILED APRIL 10,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
Review
of a decision of the Court of Appeals. Affirmed.
JANINE P. GESKE, J. This is a review of a published decision of
the court of appeals,[1]
affirming in part and reversing in part the judgment of the Circuit Court for
Portage County, Frederic W. Fleishauer, Judge.
The case arose as a negligence action brought by Renee Kimps (Kimps),
for a foot injury she sustained during a class at the University of
Wisconsin-Stevens Point (UW-SP). The
central issue is whether public officer immunity bars recovery against either
or both named state employee defendants.
The circuit court dismissed the claim against Allen Kursevski
(Kursevski), a former UW-SP safety officer, on grounds of immunity, but ruled
that Leonard Hill (Hill), the instructor of the class in which Kimps was
injured, was not entitled to such immunity.
The court of appeals reversed in part, concluding that both men were
entitled to public officer immunity. We
agree.
FACTS
Kimps was enrolled at UW-SP
studying to be an elementary teacher.
On October 20, 1988, she attended a required laboratory section of
Physical Education for the Classroom Teacher in which the student teachers were
to instruct young children, who had volunteered for the exercise, in a variety
of physical education activities. Kimps
and her partner had chosen to present a class on volleyball. As part of the course, Hill instructed his
students on general safety matters and the use of some of the more dangerous
gymnastics equipment, but did not give any specific warnings as to use of the
volleyball equipment. Approximately 60
college students were enrolled in the course and about 100 children between the
ages of three and twelve were participating.
The class was simultaneously conducted in three adjacent areas of the
gymnasium. Hill testified that he had
decided to primarily direct his attention on that day to supervision of the
trampoline class, as the equipment was the most complicated and its use posed
the greatest risk of injury in his opinion.
UW-SP had purchased nine sets
of portable volleyball standards (poles to which a volleyball net is attached)
from their manufacturer, Jayfro Corporation, between 1969 and 1971. The standards were designed to disassemble
for storage and consisted of detachable poles which fit into sleeves or holes
in the 150 pound metal bases. The poles
were held in place by two set screws which passed through the sleeve and
tightened against the outside surface of the pole. The standard is designed to be moved by tipping it onto two wheels
permanently mounted on the sides of the circular base and either pulling or
pushing on the pole.
In preparation for her class
exercise, Kimps and another student were moving a volleyball standard which was
kept in a hallway near the gym. Kimps,
who was walking behind the standard, was injured when the metal base separated
from the pole and fell onto her foot as the student who was pulling it tried to
dislodge it from a doorsill on which it had become stuck.
Two years prior to this
incident, in October of 1986, a similar accident occurred in which a pole
separated from its base which fell onto the foot of a maintenance worker who
was helping to move one of the standards.
At the time, Kursevski was the safety officer at UW-SP.[2] He investigated the incident, which had been
reported under worker's compensation.
Another employee[3]
suggested to Kursevski the possibility of drilling holes into the standards and
inserting a bolt through the sleeve into the interior of the poles. However, Kursevski decided that altering the
manufacturer's design potentially posed a greater risk management problem than
leaving it as is and rejected the idea.
Kursevski determined that the
appropriate response to the accident was that maintenance personnel should
check to make sure the set screws were tight before moving the standards. He memorialized this in the required worker's
compensation report in the following manner: "supervisors must check
equipment and material to insure that it can be safely used and/or
handled." Existing UW-SP procedures did not provide for campus-wide
distribution of these reports. Neither
the administration nor any of the teaching personnel in the physical education
department, including Professor Hill, knew of the maintenance worker's
accident. Hill testified that, in his
twenty-plus years of teaching (eight of them at UW-SP) and using such volleyball
standards, he was not aware of any prior occasions on which a pole and base had
separated.
Kimps brought a negligence
action against Hill, Kursevski and Jayfro, the manufacturer of the volleyball
standard.[4] At the close of Kimps' case in the ensuing
trial, the State (representing its employees, Hill and Kursevski) moved for
dismissal of the claims against both men on the basis of public officer
immunity. The circuit court took the
motion under advisement and, after the jury had retired for deliberations,
granted the motion as to Kursevski but denied it as to Hill. The jury returned a verdict allocating
causal negligence in the following manner: Renee Kimps (plaintiff) -- 10
percent; Jayfro Corp. (defendant) -- 10 percent; Allen Kursevski (defendant) --
35 percent; Dr. Len Hill (defendant) -- 45 percent. The jury fixed damages at $59,853.
Hill appealed the judgment
against him, and Kimps and Jayfro cross-appealed concerning Kimps' rights of
recovery against Kursevski. The court of
appeals concluded that both Hill and Kursevski were entitled to immunity as
public officers and therefore affirmed the circuit court's dismissal of the
claim against Kursevski and reversed the order of judgment against Hill. This court granted Kimps' and Jayfro's
petitions for review.
ISSUES
(1) Is professor Hill
entitled to the protection of public officer immunity?
(2) Is former UW-SP safety
officer Kursevski entitled to the protection of public officer immunity?
Both issues require us to
determine the proper scope of the common law doctrine of public officer
immunity, a question of law which we review de novo without deference to the
courts below. K.L. v. Hinickle,
144 Wis. 2d 102, 109, 423 N.W.2d 528 (1988).
Although both the petitioners
and respondents, in their briefs, and the court of appeals, in its opinion,
addressed the arguments concerning immunity as they applied to Hill and then
Kursevski sequentially, we will approach them topically. The arguments raised by the petitioners can
be generally divided into the categories of: discretionary versus ministerial
duties, known and compelling danger, the applicability of the "sign
cases" (or the duty to maintain), and finally, an effort to distinguish
governmental versus non-governmental and planning versus operational
conduct. Following a short
introduction, we will address each category in turn in an attempt to clarify
overlapping issues and arguments.
PUBLIC
OFFICER IMMUNITY
Immunity for public officers
does not arise from the state's sovereign immunity (which is constitutional in
nature),[5]
but rather is grounded in the common law and based on public policy
considerations. Lister v. Board of
Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976). These considerations include:
(1) The danger of influencing
public officers in the performance of their functions by the threat of lawsuit;
(2) the deterrent effect which the threat of personal liability might have on
those who are considering entering public service; (3) the drain on valuable
time caused by such actions; (4) the unfairness of subjecting officials to
personal liability for the acts of their subordinates; and (5) the feeling that
the ballot and removal procedures are more appropriate methods of dealing with
misconduct in public office.
C.L. v. Olson, 143
Wis. 2d 701, 709, 422 N.W.2d 614 (1988) (quoting Lister, 72 Wis. 2d
at 299).
Under the general rule as
applied in Wisconsin, state officers and employees are immune from personal
liability for injuries resulting from acts performed within the scope of their
official duties. Lister, 72 Wis.
2d at 300.[6] This doctrine of immunity is not without
exception, however, the most common of which is that a public officer or
employee is not shielded from liability for the negligent performance of a
purely ministerial duty.[7] Id. at 300-301. The test for determining whether a duty is
discretionary (and therefore within the scope of immunity) or ministerial (and
not so protected) is that the latter is found "'only when [the duty] 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.'" Olson, 143
Wis. 2d at 711-12 (quoting Lister, 72 Wis. 2d at 301).
DISCRETIONARY v. MINISTERIAL
The petitioners, Kimps and
Jayfro, argue that Hill is not entitled to immunity because he breached a
ministerial duty. They assert that a
teacher has a duty, that is ministerial in nature, to provide safe equipment
for his or her students. In support of
this contention, Jayfro cites Wisconsin Civil Jury Instruction 1380:
Negligence: Teacher: Duty to
Instruct or Warn
. . . A teacher has the duty to instruct and to warn the pupils in his
or her custody of any dangers which the teacher knows, or in the exercise of
ordinary care ought to know, are present in the classroom (laboratory,
gymnasium, etc.) and to instruct them in methods which will protect them from
those dangers, whether the danger arises from equipment, devices, machines, or
chemicals. A failure to warn the
students of such danger or instruct them in means of avoiding such danger is
negligence.
This argument is illustrative of a recurrent problem in the manner in
which this case was briefed and orally argued--the petitioners confuse the
issue of negligence with that of immunity.
Just because a jury can find that certain conduct was negligent does not
transform that conduct into a breach of a ministerial duty.[8] Hill and Kursevski do not contest the jury's
findings of negligence and consequently that is not the subject of our
review. Indeed, we begin our review of
this case on the assumption that negligence exists here; if it were otherwise,
Hill and Kursevski would not need to seek the protection of immunity.
Jayfro argues that the
existence of a teacher's duty to provide safe equipment, combined with the
simple design of the Jayfro standard, equate to a ministerial duty. "Nothing remained for the exercise of
Dr. Hill's judgment of discretion. [sic]
If the set screws were loose, which they obviously were, they needed to
be tightened immediately." We find
this reasoning not only circular (the pole and base of the standard separated,
therefore the set screws must have been loose, the accident would not have
happened if the screws had been tightened, therefore Hill had a ministerial
duty to tighten the screws, which he violated), but also wholly
unconvincing. Such an argument
completely misconstrues the test for determining when a duty is ministerial. A party cannot work backwards from a
consequence to create a duty that is "absolute, certain and
imperative."
The petitioners also argue
that once Hill decided to use the volleyball equipment he assumed a ministerial
duty to assure that the equipment was safe.[9] Jayfro and Kimps rely on the decision of the
court of appeals in Barillari v. City of Milwaukee, 186 Wis. 2d 415,
418, 521 N.W.2d 144 (Ct. App. 1994), rev'd, 194 Wis. 2d 247, 533 N.W.2d
759 (1995), to support the proposition that once a public official undertakes a
certain course of conduct, he or she thereby undertakes a ministerial
duty. Last term, subsequent to the
filing of briefs in this case, we reversed the court of appeals on this very
issue. See Barillari v. City
of Milwaukee, 194 Wis. 2d 247, 255, 533 N.W.2d 759 (1995). That case involved an incident in which
Shannon Barillari reported to the police that she had been sexually assaulted
by her ex-boyfriend who then threatened to kill her and himself. Milwaukee police detectives allegedly
promised to either apprehend the suspect or notify her if he was not arrested. They did neither, and five days later Shannon
was shot to death by her ex-boyfriend who then committed suicide. We held that any "promise" that
was made by the police "did not transform the character of their
discretionary acts during the investigation of the case to ministerial
duties." Barillari, 194
Wis. 2d at 255-56.[10] Similarly, we find that Professor Hill's
decision to allow his students to teach a section on volleyball in a class
devoted to teaching physical education did not transform his exercise of
discretion in how to conduct that class into a ministerial duty.
The petitioners also assert
that Kursevski should be held liable because he was negligent in the
performance of a ministerial duty.
Jayfro contends that "one source" of Kursevski's ministerial
duty can be found in his job description as "Risk Manager/Safety
Director." Jayfro cites the
following language as relevant:
Investigate all incidents and
take action to correct the condition or procedure that caused the
accident. Incidents investigated
include Worker's Compensation claims, . . .
This language, according to Jayfro, creates a ministerial duty in that
it is "absolute, certain and imperative" in requiring that Kursevski
"take action to correct the condition" that caused the maintenance
worker's accident. Jayfro further
argues that, given the "extremely simple design" of the volleyball
standard, the "mode and occasion" for the corrective action was
limited to only one possibility--that Kursevski tighten the set screws or make
sure someone else did. Kursevski's
response to this argument was that application of such an analysis would
effectively result in abandonment of the Lister
discretionary/ministerial distinction and substitution of an after-the-fact
determination to be made on a fact sensitive case-by-case basis. We agree with Kursevski and reject Jayfro's
invitation to so alter the test which we have employed for twenty years.
To restate that test, in Lister
we held that "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,
72 Wis. 2d at 301. We do not find that
Kursevski's job description created a ministerial duty. The "time, mode and occasion" for
performing an investigation of the maintenance worker's accident and
determination of the appropriate corrective action to be taken remained totally
within Kursevski's judgment and discretion.
KNOWN
DANGER
Next Kimps argues that a
ministerial duty arose when Kursevski failed to respond to a compelling and known
danger. This argument is based on our
decision in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672
(1977). We found that the facts in that
case warranted a special exception be made to the general rule of public
employee immunity. The manager of a
state-owned park was held subject to liability for negligence by failing to
take steps to warn of the dangerous condition posed by a path open for night
hiking that ran within inches of a precipitous drop into a 90-foot gorge. Id.
We concluded that because the park manager knew of the dangerous
terrain, was in a position to do something about it, yet did nothing, he was
not immune to liability. Id. at
541. Our holding in that case was based
on facts that presented a "duty so clear and so absolute that it falls
within the definition of a ministerial duty." Id. at 542.
In Olson, we clarified
that a public officer's duty becomes ministerial only "where, as in Cords,
the nature of the danger is compelling and known to the officer and is of such
force that the public officer has no discretion not to act." Olson, 143 Wis. 2d at 715. The facts here show that Kursevski did
investigate and take action he deemed appropriate to address the problem. Further, a single incident involving a piece
of athletic equipment that the University had owned and safely used for between
15 and 17 years cannot reasonably be compared with the "compelling and
known" danger posed by a path passing within inches of a 90-foot
cliff. We conclude that the nature of
the danger posed here cannot be equated with that in Cords and did not
create a duty so "clear and absolute" that it became ministerial on
Kursevski's part. Kursevski acted
within his discretion as safety officer and is therefore entitled to immunity.
APPLICABILITY
OF THE "SIGN" CASES
Kimps draws an analogy
between the situation in this case and the case law that holds that once a
municipality makes a discretionary decision to place a sign or light pole, the
actual placement of the object and its maintenance are ministerial in nature
and thus not entitled to immunity. She
argues that, in this manner, Hill lost his discretionary immunity once he
decided to allow the volleyball standards to be used in his class. Kimps bases this argument on a line of
"sign" cases which include: Firkus v. Rombalski, 25
Wis. 2d 352, 130 N.W.2d 835 (1964) (town had no initial duty to erect sign
but, having done so, had duty to properly maintain); Chart v. Dvorak, 57
Wis. 2d 92, 203 N.W.2d 673 (1973) (state highway officials held amenable
to suit for sign placement inconsistent with the Uniform Manual); and Foss
v. Town of Kronenwetter, 87 Wis. 2d 91, 273 N.W.2d 801 (Ct. App. 1978)
(town immune from suit for non-placement of sign but amenable to liability for
lack of maintenance of barriers at dead-end).
Hill counters that the cases
Kimps relies on are inapplicable because each involved failure to obey a
specific order or legislative directive: Firkus, 25 Wis. 2d at 357
(new stop sign to replace one removed by vandals had been ordered but not yet
received or replaced); Chart, 57 Wis. 2d at 100 (Uniform Manual
adopted by State Highway Commission under its statutory authority directed that
warning sign be placed 750 feet in advance of hazard warned of); Foss,
87 Wis. 2d at 104 (failure to replace barricade at Town-approved fill site for
future road extension).
We agree with Hill that the
entire line of "sign" cases is inapplicable to our analysis in this
instance. This is not a case where a
specific task had been undertaken such that certainty attached to the
"time, mode and occasion" for its completed performance. Not only was Hill under no order or
directive to use particular equipment or teach his class in a particular
manner, but we do not find the placement or maintenance of highway warnings in
any way analogous to the discretionary activities that Professor Hill engaged
in on a day-to-day basis.
GOVERNMENTAL
v. NON-GOVERNMENTAL
In the alternative, the
petitioners argue that even if Hill's activities are characterized as
discretionary, he is excepted from immunity because that discretion was
non-governmental. The petitioners offer
three definitions of non-governmental discretion which they claim apply equally
well to Hill. First, they assert that,
as a "professional," Hill's activities are necessarily
non-governmental. In support of this
position, they quote the following language from the court of appeals' decision
in C.L. v. Olson, 140 Wis. 2d 224, 231, 409 N.W.2d 156 (Ct. App.
1987), aff'd, 143 Wis. 2d 701, 422 N.W.2d 614 (1988):
[g]overnmental immunity does not
attach to a parole agent's decision merely because it involves discretion. The question is whether the decision
involved the type of judgment and discretion which rises to governmental
discretion, as opposed to professional or technical judgment and discretion.
Jayfro and Kimps advance the theory that a "professional"
like Hill (whom the petitioners remind the court has a doctorate in education
and 23 years of teaching experience), by definition, cannot exercise
governmental discretion in the performance of his job because he "was not
advising his students regarding purely governmental functions."
We do not read the appellate
court's decision in Olson as holding that "professional
judgment" and "governmental discretion" are mutually
exclusive. In fact, in reviewing the
lower court's opinion, this court commented that the decision in question there
(that of a parole agent granting driving privileges to a paroled sex-offender)
involved the exercise of both governmental discretion and professional
judgment. We held that the parole
officer was entitled to immunity. Olson,
143 Wis. 2d at 725. Here, the fact that
Hill's profession requires that he exercise his discretion in the performance
of his governmental duties as a teacher for the state does not strip him of the
protective cloak of immunity.
Secondly, Kimps claims that
this court must find that Hill's conduct was non-governmental because Hill
failed to demonstrate that his discretion involved the application of statutes
to facts. Initially, it should be noted
that Hill does not carry a burden to demonstrate that he is entitled to
immunity; on the contrary, the general rule for state employees is immunity and
an exception must be demonstrated in order for this rule not to apply.
As noted earlier in this
opinion, there are many public policy reasons underlying public officer
immunity. Hill correctly argues
that government employees must be free
to make judgment calls on difficult choices regarding the allocation of public
resources such as money and time, including their own. Professor Hill was faced with just such a
resource allocation dilemma in determining what was the safest way to supervise
his students and a large number of youngsters from the community engaged in a
variety of activities. He decided to
focus his attention on the activity posing the greatest potential risk--the
trampoline. That discretionary call is
entitled to immunity.
The court of appeals
responded to the petitioners' "non-governmental" argument by citing Stann
v. Waukesha County, 161 Wis. 2d 808, 818, 468 N.W.2d 775 (Ct. App. 1991),
which held that the non-governmental exception to discretionary immunity was
applicable only in situations involving medical decisions.[11] The appellate court concluded, therefore,
that such an argument was foreclosed in this case under the rule of stare
decisis. Kimps, 187 Wis.
2d at 516. We do not take this
opportunity to comment on the conclusion reached by the appellate court in Stann
nor do we accept the petitioners' invitation to extend the Scarpaci
governmental/
non-governmental exception to a state-employed teacher.[12] The
distinction between governmental and non-governmental conduct was first
utilized by this court in Scarpaci v. Milwaukee County, 96 Wis. 2d 663,
292 N.W.2d 816 (1980), where we found that the manner in which a county coroner
performed an autopsy involved an exercise of medical non-governmental
discretion and therefore did not fall under the statutory exception to
liability for "quasi-judicial acts" expressed in § 895.43(4). Scarpaci, 96 Wis. 2d at 686-88. It is notable that Scarpaci involved
a municipal claim (where the general rule is liability not immunity) which we
decided on the grounds that the statutory exception to liability was
inapplicable in the given situation.
Here, we deal with the common law rule that state officials and
employees are generally immune from liability for their discretionary
acts. In Olson, we found the
presence of no circumstances that warranted exception to the general rule of
public officer immunity. Olson,
143 Wis. 2d at 725. We concluded that
the professional judgment involved in a parole officer's decision regarding
rules and conditions of parole constituted governmental discretion and was not
similar to the type of judgment exercised in performing an autopsy that had
been excepted from immunity in Scarpaci. Id. at 724-25.
We find the Scarpaci
non-governmental exception equally inapplicable to the circumstances here. We conclude that any negligent omissions or
commissions by Hill were clearly made in the course of performing governmental
functions as a state‑employed teacher.
The critical inquiry when determining public officer immunity, in all
but the very rare case, remains the discretionary versus ministerial
analysis. Hill exercised his discretion
on how best to teach the class while acting within the scope of his employment
and, therefore, is entitled to immunity.
PLANNING v. OPERATIONAL
Finally,
Kimps argues that even should this court view Kursevski's duty as
discretionary, he is still excepted from immunity because that discretion was
operational. Kimps maintains that only
discretionary decisions that are on the planning level, i.e. those that
involve evaluation or determination of fundamental governmental policy, should
be entitled to immunity.[13]
Kimps supports this position
by again citing the "sign" cases (Foss and its progeny) and Domino
v. Walworth County, 118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984). According to Kimps, these cases delineate a
zone of protected discretion which encompasses only planning decisions, whereas
those decisions which are merely operational in nature extend beyond the zone
and are therefore not covered by immunity.
Kimps acknowledges that the words "planning" or "operational"
are not used in these cases and yet she contends "it is clear that the
same [planning/operational] rationale was being employed."
Jayfro makes this same
argument relying primarily on Gordon v. Milwaukee County, 125 Wis. 2d
62, 370 N.W.2d 803 (Ct. App. 1985), which in turn is based on a series of federal
circuit court cases interpreting 28 U.S.C. § 2680(a) of the Federal Tort Claims
Act. The Gordon court found
persuasive the reasoning of federal courts drawing a distinction between
planning functions which involve policy choices and operational acts involving
details of day-to-day management, with the former entitled to immunity and the
latter not. Id. at 68-69. Jayfro argued that further evidence that
Wisconsin has "essentially adopted the operational level exception to
public officer immunity" could be found in the "sign" cases and Lange
v. Town of Norway, 77 Wis. 2d 313, 253 N.W.2d 240 (1977). In the latter case, this court found that
the municipality might be held subject to liability for negligence in the
maintenance and operation of a dam it had acquired. Id. at 322.
As the respondents correctly
point out, this court has never articulated an "operational"
exception to the rule of discretionary public officer immunity and we decline
to do so now.[14] We find the federal cases upon which Gordon
relied to be inapposite because they involve statutory construction of a
specific section of the United States Code.
We are not faced with an analogous situation in our examination of the
scope of Wisconsin's common law rule of public officer immunity. Further, in United States v. Gaubert,
499 U.S. 315, 326 (1991), the Supreme Court has decried the perpetuation of the
"nonexistent dichotomy between discretionary functions and operational
activities."
A discretionary act is one that
involves choice or judgment; there is nothing in that description that refers
exclusively to policy-making or planning functions. Day-to-day management of banking affairs, like the management of
other businesses, regularly requires judgment as to which of a range of
permissible courses is the wisest.
Discretionary conduct is not confined to the policy or planning
level.
Id. at 325. We agree with this statement and believe it
is equally applicable to the wide range of permissible choices that public
officers like Kursevski and Hill are called upon to make in the daily exercise
of their discretionary judgment.
We decline the invitation to
create a planning/operational distinction to be utilized in the analysis of
state employee immunity. The cases
interpreting the common law rule of public officer immunity are already
complicated enough and we do not endorse the addition of yet another test which
is ill-defined and difficult to apply.
The critical distinction remains whether or not a public officer's acts
are discretionary or ministerial. We
conclude that both Hill and Kursevski's actions were discretionary in nature
and fall squarely within the general rule that "a public officer is not
personally liable to one injured as a result of an act performed within the
scope of his official authority and in the line of his official
duty." Lister, 72 Wis. 2d
at 300.
For the reasons articulated
above, we conclude that both Hill and Kursevski are entitled to public officer
immunity. Therefore, we affirm the
decision of the court of appeals.
By the Court.—The
decision of the court of appeals is affirmed.
SHIRLEY
S. ABRAHAMSON, J. and WILLIAM A. BABLITCH, J. did not participate.
SUPREME
COURT OF WISCONSIN
Case No.: 92-2736
Complete Title
of Case: Renee Kimps,
Plaintiff-Respondent-Cross
Appellant-
Cross
Respondent-Petitioner,
North Central Health Care Protection
Plan,
Nominal-Plaintiff,
v.
Dr. Leonard M. Hill,
Defendant-Appellant-Cross
Respondent,
Jayfro Corporation,
a Subsidiary of Verified Sports, Inc.,
Defendant-Respondent-Cross
Respondent,
Cross
Appellant-Petitioner,
Allen R. Kursevski,
Defendant-Cross
Respondent,
Dr. John Munson, Marty Loy, Sister Rosella Reinwand,
Jerry Burling, Milwaukee Sporting Goods,
Pacific Employers Insurance Company,
Allen R. Kursevski, Donald P. Burling,
Gregory Diemer, Valley School Suppliers, a Division
of QIII Corporation and INA Insurance Company,
Defendants.
____________________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 187 Wis. 2d
508, 523 N.W.2d 281
(Ct. App. 1994)
PUBLISHED
Opinion Filed: April 10, 1996
Submitted on Briefs:
Oral Argument: November
28, 1995
Source of APPEAL
COURT: Circuit
COUNTY: Portage
JUDGE: FREDERIC FLEISHAUER
JUSTICES:
Concurred:
Dissented:
Not Participating: ABRAHAMSON, J. and BABLITCH,
J., did
not participate
92-2736 Kimps v. Hill
ATTORNEYS: For the plaintiff-respondent-cross
appellant-cross respondent-petitioner there were briefs by Keith F. Ellison,
Paul E. David and Patterson, Richards, Hessert, Wendorff & Ellison,
Wausau and oral argument by Keith F. Ellison.
For the
defendant-appellant-cross respondent there were briefs by David A. Ray
and Terwilliger, Wakeen, Piehler & Conway, S.C., Stevens Point and Frank
A. Scherkenbach, Susan R. Tyndall and Hinshaw & Culbertson,
Milwaukee, of counsel and oral argument by David A. Ray.
For the
defendant-appellant-cross respondent the cause was argued by Robert D.
Repasky, assistant attorney general, with whom on the brief was James E.
Doyle, attorney general.
[3] This employee, Larry Obiala, was the supervisor of the injured maintenance worker but was not in a position of authority in relation to Kursevski.
[4] Kimps additionally named several other defendants including the State of Wisconsin, the University of Wisconsin-Stevens Point, the Board of Regents of the University of Wisconsin System, Milwaukee Sporting Goods and Valley School Supplies (distributors of the equipment), Pacific Employers Insurance Company, INA Insurance Company and several additional individual UW-SP employees: Dr. John Munson, Marty Loy, Sister Rosella Reinwand, Jerry Burling, Donald P. Burling, and Gregory Diemer. Resolution of the claim against these parties is not at issue here.
[6] The general rule of immunity for state public officers stands in contrast to that for municipalities where, "the rule is liability--the exception is immunity." Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39, 115 N.W.2d 618 (1962). The common law immunity for municipalities was abrogated by this court in Holytz, however, we held that liability will not lie "on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." Id. at 40. This exception to municipal liability was codified in 1963 as Wis. Stat. § 331.43(3) (subsequently renumbered as Wis. Stat. § 895.43(3), and now § 893.80(4)). The concepts and theories articulated in Lister are generally applicable to both state and municipal officers and the tests for immunity are similar. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682 n.19, 683 n.20, 292 N.W.2d 816 (1980).
[7] Further, there is no immunity for conduct that is malicious, willful and intentional. Ibrahim v. Samore, 118 Wis. 2d 720, 728, 348 N.W.2d 554 (1984).
[8] In order to find negligence, a jury must find that a duty was breached, if only the duty of ordinary care. The existence of a duty of care to another does not necessarily imply that the duty was ministerial.
[9] In briefs, and in oral argument, petitioners took the position that the only way that Hill's conduct could have been characterized as discretionary, not ministerial, would be if Hill had "chosen not to allow volleyball standards to be utilized in the teaching program. He could have chosen not to teach volleyball." This argument compels us to respond. Hill was hired by the state of Wisconsin to teach aspiring teachers how to conduct physical education classes. The logical extension of the petitioners' argument is that UW professors would be faced with the option of choosing either not to teach or losing all immunity for doing what they've been hired to do--teach. We reject this argument.
[10] Unlike the situation in this case, which involves state employees, Barillari involved a claim against a municipality for the acts of its employees and our holding was based upon statutory immunity provided under Wis. Stat. § 893.80(4). Barillari v. City of Milwaukee, 194 Wis. 2d 247, 262, 533 N.W.2d 759 (1995).
[11] The
following quote from Stann v. Waukesha County, 161 Wis. 2d 808, 818, 468
N.W.2d 775 (Ct. App. 1991), refers to Scarpaci v. Milwaukee County, 96
Wis. 2d 663, 292 N.W.2d 816 (1980); Protic v. Castle Co., 132 Wis. 2d
364, 392 N.W.2d 119 (Ct. App. 1986); and Gordon v. Milwaukee County, 125
Wis. 2d 62, 370 N.W.2d 803 (Ct. App. 1985):
First, the authorities upon which the Stanns rely for their "discretion but still not governmental discretion" argument are not applicable to the case at bar. Only three Wisconsin decisions have recognized such a distinction. However, each of these cases involved allegations of negligence regarding medical decisions. These cases are restricted to their facts, as no Wisconsin decision applies this exception in any other setting.
[12] In tort
jurisprudence in Wisconsin and other states, the governmental/proprietary
dichotomy arose in the context of immunity for municipal corporate entities and
is uniquely applicable to claims against municipalities. "Governmental" functions have
alternately been defined as those involving the kind of power expected of
government, those of the essence of governing, public, mandatory or essential,
while "proprietary" functions are associated with actions of a
municipality that are akin to those of a private corporation or private
enterprise that are somewhat commercial in nature. See generally W. Page Keeton et al., Prosser and Keeton
on the Law of Torts § 131 (5th ed. 1984); 5 Fowler V. Harper et al., The
Law of Torts § 29.6 (2nd ed. 1986); 2 Stuart M. Speiser et al., The
American Law of Torts § 6:9 (1985).
According to one commentator, this dichotomy has led to "an endless
proliferation of decisions teeming with subtle and tortured distinctions . .
." Speiser et al., supra,
at 49.
In 1962, this court stated that "[i]n
determining the tort liability of a municipality it is no longer necessary to
divide its operations into those which are proprietary and those which are
governmental." Holytz, 17
Wis. 2d at 39. We reject the
petitioners' attempt to resurrect this test in the context of a claim against a
public officer. When reviewing the
common law rule of immunity for state officers or employees, the inquiry has
been and remains primarily one of determining whether the alleged negligent
conduct involved a discretionary or ministerial duty. As we summarized in Olson, the shield of immunity will
fall with the latter when a duty is:
absolute, certain and imperative, involving
merely the performance of a specific task and (1) the law imposes, prescribes
and defines the time, mode and occasion for its performance with such certainty
that nothing remains for the exercise of discretion; or (2) there exists a
known present danger of such force that the time, mode and occasion for
performance is evident with such certainty that nothing remains for the
exercise of judgment and discretion.
Olson, 142 Wis. 2d at 717 (citations omitted).