Pries v. McMillon: Dissent Accuses Majority of Partly Basing a Ministerial Duty on Unwritten Safety Procedures
In a recent decision, the Wisconsin Supreme Court revisited the
"ministerial duty" exception to governmental immunity. In 'Pries
v. McMillon', 2010 WI 63, (2008AP89) a majority of the court
found that a state employee was not entitled to immunity for
negligently disassembling horse stalls at the Wisconsin State
Fair Park. According to the dissent, however, the decision opens
up a can of worms by finding a ministerial duty in part based on
unwritten procedures.
The Accident
Plaintiff Pries was one of 12 inmates who were brought to the
State Fair Park to assist in taking down horse stalls. The
defendant, McMillon, was supervising. At one point, Pries' crew
struggled to dislodge a stall piece. McMillon approached the
inmates to assist, "jumped up" on and straddled a neighboring
stall, and "started jerking it up and down with his hands." As a
result, unsecured stall pieces started falling in a "domino
effect" on the inmates. Pries was struck, pinned and injured by
a falling piece of a stall.
At trial, McMillon acknowledged that he did not have the ability
to vary from the take-down procedure and confirmed that the same
procedure had to be followed every single time. McMillon's
supervisor also testified there was no "legitimate reason" to
stand on or shake unsecured stall pieces. In addition,
McMillon's coworkers testified to the importance of using chains
to secure stall pieces during the disassembly process.
The Issue
Generally, government employees are immune from liability for
their negligent acts under Wis. Stat. §893.80(4). That statute
immunizes government employees for any act that involves the
exercise of discretion and judgment. The issue in Pries was
whether one of the two exceptions to immunity applied: the
ministerial duty exception or the "known danger" exception.
The circuit court concluded that McMillon was not entitled to
immunity because the ministerial duty exception applied. The
court of appeals affirmed the lower court's finding that there
was no immunity. Contrary to the circuit court, however, the
court of appeals applied the known danger exception and declined
to address the ministerial duty exception.
Supreme Court Affirms
The Wisconsin Supreme Court affirmed, but on the same ground as
the lower court.
Writing for the majority, Justice Crooks held that the written
take-down procedure created a ministerial duty to always have
someone holding up the piece that was being taken down. The duty
was specified at a time, in a manner, or upon conditions which
are specifically designated and were not dependent upon
McMillon's judgment or discretion. The majority also found that
the ministerial duty encompassed the proper use of chains during
the disassembly process.
Because McMillon violated these ministerial duties, he was not
protected by governmental immunity. The majority did not address
the known danger exception.
In a concurring opinion, Chief Justice Abrahamson found no
immunity based on the known and compelling danger exception. The
nature of the danger was compelling and known to McMillon and of
such force that McMillon "had no discretion not to act."
The Dissent
The three dissenting justices criticized the majority for its
reliance on testimony of co-workers, as opposed to the language
of the written procedure, to define the ministerial duty.
Justice Bradley reasoned that the majority used the testimony to
expand the meaning of the written procedure. The result, she
claimed, is a much broader duty than any duty identified in the
text of the take-down procedure. The text of the procedure
required that McMillon "have someone holding up the piece" that
he was taking down, while the majority found a duty to "ensure"
that the stall pieces were "secure from falling."
Justice Bradley also accused the majority of conflating the
standards for negligence and immunity. The dissent expressed
concern that the majority opinion will be understood to provide
that an officer who fails to exercise ordinary care - as opposed
to clearly violating a non-discretionary, written policy - has
violated a ministerial duty.
Justice Gableman also authored his own dissenting opinion,
calling for a wholesale reexamination of governmental immunity
rules under Wis. Stat. §893.80(4).
Bottom Line
A state employee is not immune for negligence if the employee
violates a duty based on a clear, established safety procedure.
Government employers may wish to consult with their counsel
regarding the effect of 'Pries' on their procedures.
