Revisiting the Limits of Governmental Immunity

WDC Journal Edition: Fall 2003
By: Cari L. Westerhof

Should municipal governments and their employees be liable to suit for their mistakes or should they be immune from liability for negligent acts? For more than forty years, the Wisconsin Supreme Court has been developing and defining the limits of municipal immunity. Although there is a wide range of views on whether governmental immunity is desirable and to what extent immunity should be granted to municipalities, today those limits are relatively clear, at least insofar as the ministerial/discretionary duties analysis is concerned. A recent decision by the Wisconsin Supreme Court, Scott v. Savers Prop. & Cas. Ins. Co., indicates that the full court is not yet satisfied that the doctrine has completely evolved. Five of the six Justices participating in Scott agreed that a finding of immunity was required under the law. However, a significant portion of the Court is apparently ready to “revisit the limits” of governmental immunity.

The facts considered in Scott are fairly straightforward. Because the school district’s motion to dismiss was granted, the facts alleged in the complaint were assumed to be true.

Ryan Scott was a student at the Stevens Point Area Senior High School when, he alleged, he and his parents asked a guidance counselor employed by the Stevens Point Area Public School District to help him select classes that would meet NCAA scholarship eligibility requirements. Ryan was hoping to obtain a scholarship to play NCAA Division I hockey and, after taking a year off after high school to play junior hockey in Iowa, he was offered a full four-year scholarship to the University of Alaska, an NCAA Division I school. Ryan accepted the scholarship only to have it withdrawn after NCAA found that his Broadcast Communications class did not satisfy NCAA’s standards for credit in English.

The Scotts sued the School District claiming the guidance counselor gave them bad advice. Specifically, they alleged that the guidance counselor told them that the School District's Broadcast Communications class met NCAA core curriculum standards for English when in fact, according to NCAA publications, it clearly did not.

The Scotts’ complaint asserted three causes of action: breach of contract, promissory estoppel, and negligent misrepresentation. Upon the School District's motion, Portage County Circuit Court Judge James M. Mason dismissed the Scotts' breach of contract and promissory estoppel claims on the basis that they failed to state claims upon which relief could be granted. Citing Kierstyn v. Racine Unified School District, the trial court also dismissed the Scotts' negligence claim on the basis of immunity under Wis. Stat. § 893.80(4). The Scotts appealed the trial court’s dismissal and the appellate court affirmed the trial court's judgment in an unpublished opinion. The Wisconsin Supreme Court accepted the Scotts’ petition for review and ultimately affirmed the appellate court decision in its entirety.

Although the majority opinion reiterates the bounds of governmental immunity for the negligent performance of discretionary duties as stated in Kierstyn and repeated in Lodl v. Progressive Northern Ins. Co., four separate opinions were filed—three concurring and one dissenting—for a total of five opinions by the six Justices participating in the case. Chief Justice Abrahamson authored the majority opinion and filed a separate concurring opinion which was joined by Justices Bablitch and Crooks and which expressed their opinion that were the Supreme Court to “revisit the limits” of governmental immunity, it should only do so with input from amicus curiae due to the “far-reaching” impact of “construing governmental immunity anew.” Justice Bablitch wrote a separate concurring opinion which was joined by Justice Crooks to state that they joined the majority only because the doctrine of stare decisis compelled them to do so—not because they believe the doctrine of governmental immunity is just. Justice Sykes’s concurring opinion criticized the majority’s characterization of promissory estoppel while Justice Prosser, the lone dissenter, expressed his belief that the Wisconsin Supreme Court “is responsible for several decades of backsliding,” resulting in a doctrine of governmental immunity that is “profoundly wrong,” “unjust,” and “contrary to legislative intent.”

This article reviews the discretionary/ministerial acts analysis, outlines the current bounds of municipal immunity, and discusses the sound policy reasons for maintaining the doctrine of governmental immunity.

Discretionary v. Ministerial Acts Analysis

Twenty-seven years of Wisconsin Supreme Court precedent leaves little doubt about where the bounds of government immunity for the performance of discretionary duties lie today. The analysis begins with section 893.80(4) of the Wisconsin Statutes which provides that governmental subdivisions (such as cities, towns, school districts) and fire departments are relieved from liability for acts done “in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” Since the 1976 case of Lister v. Board of Regents, the Wisconsin Supreme Court has described a “quasi-judicial or quasi-legislative” activity as one which involves the exercise of discretion. In Lister, the Court described ministerial duties as ones which are “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.” These definitions have not changed since Lister. Thus, it is well-established under the law that a municipality’s negligent exercise of ministerial duties give rise to liability while the negligent exercise of discretionary duties does not.

Further decisions of the Supreme Court recognized other exceptions to immunity. The Court summarized the exceptions to municipal immunity in Lodl as follows:

There is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional.

Over the years, among other issues regarding governmental immunity, controversies have made their way to the Supreme Court regarding when a duty is properly considered ministerial and when it is rightly considered discretionary. These decisions make it clear the ministerial duty analysis focuses on whether or not the particular act in question was required to be performed. If the law does not require a particular action at a particular time, in a particular way, the act will be characterized as discretionary and not subject to liability.

The Court followed this analysis in Kierstyn v. Racine Unified School District, the case it found “legally indistinguishable” from the facts and negligence claim in Scott. In Kierstyn, the plaintiffs asked the School District's benefits specialist for advice, the answer to which was in the statutes. The benefits specialist gave them a wrong answer. Unfortunately, the Kierstyns followed that advice to their substantial detriment. The plaintiffs in Kierstyn argued that the benefits specialist's conduct should be considered ministerial because the incorrect advice resulted from his incorrect reading of a clear and unambiguous statute. The Court, however, held that the benefits specialist was performing discretionary duties because he did not have a specific legal obligation to advise the plaintiffs in a proscribed manner. Similarly in Scott, the Scotts claimed to have asked a school district guidance counselor for advice, the answer to which was clearly set forth in the NCAA handbook. The guidance counselor allegedly gave them an erroneous answer which the Scotts followed to their detriment. Similarly to the plaintiff’s argument in Kierstyn, the Scotts argued that the guidance counselor’s conduct should be considered ministerial because incorrect advice resulted from an incorrect reading of a clear and unambiguous NCAA publication. Following Kierstyn, however, the Court disallowed the Scotts claim. The Court noted that the plaintiffs in both cases improperly focused on the negligence of the advice rather than the nature of the duty being performed. As the Court stated, “failure to provide correct advice in the face of clear and unambiguous information goes to his negligence, not the nature of his duty,” which the Court found to be discretionary. The Court explained the nature of the guidance counselor’s duty as follows:

The counselor’s general obligation to provide counseling services did not dictate precisely what advice or information should be given to each student. Rather, the counselor was required to apply the requirements of various institutions to each student’s situation. This interpretive process was inherently discretionary in nature.

Thus, in both Scott and Kierstyn, the municipal employee’s conduct involved rendering advice. The benefits specialist’s job duties included giving advice about WRS benefits while the guidance counselor’s job duty was to perform guidance counseling. Neither the benefits specialist nor the guidance counselor had a specific legal obligation to advise the plaintiff’s in a proscribed manner. That being the case, neither the benefits specialist nor the guidance counselor was engaged in ministerial duties. Thus, the Court found that even if the guidance counselor in Scott made the mistake as alleged, the School District is immune from suit.

Professional Duties Exception

The Court not only upheld its ministerial/discretionary duties analysis, it refused to expand the professional duties exception to immunity as well. In Scarpaci v. Milwaukee County, the Supreme Court held that a public officer's “professional” discretionary acts are not protected by immunity. Since that time, the Court has refused to expand the “professional duties” exception beyond the exercise of professional medical duties despite numerous opportunities to do so. It is interesting to note that in two cases decided just prior to Scott, the Court referred to the professional duty exception as “actions involving medical discretion”, but in Scott, the Court reverted to its prior description of the third exception as “actions involving professional discretion.” This suggests that the Court might, under the right circumstances, expand this exception of immunity. Although the Scotts argued for such an expansion, the Court declined to expand the exception noting that the Court’s recognition of the professional duties exception “has been limited to the medical setting.”

Stare Decisis

Only Justice Prosser dissented in Scott. Nevertheless, it is clear from the concurring opinions that others believe an “injustice” may have occurred (assuming the facts alleged were proven true) and that the Court should reconsider its interpretation of the immunity statute. A majority of the Court, however, apparently agreed with the School District that the doctrine of stare decisis and the proper role of the Court reserves this function to the legislature. As the Court has often held, “Construction given to a statute by the Supreme Court becomes part of the statute unless the legislature subsequently amends the statute to effect change.” Although the doctrine of stare decisis may not be immutable, the Court should not overrule decades of precedent after the legislature has shown its approval of the Court’s interpretation of the statute through inaction.

Chief Justice Abrahamson’s concurring opinion noted that the Court should only reconsider its interpretation of the municipal immunity statute with participation from various groups who may wish to participate as amicus curiae. It is certainly an appropriate and often desirable procedure for a court to obtain the advice of disinterested experts on legal issues and to invite such experts to file a brief amicus curiae and it should be noted that the Court accepted an amicus brief from the Wisconsin Academy of Trial Lawyers supportive of the Scott’s position on review. However, the jurisdiction of the Supreme Court on appeal is limited to that of a court of review. It is not to legislate. As the Court recently recognized, "The legislature, with all its resources and investigative powers, is the appropriate forum for such a sweeping policy decision, which would affect millions of Wisconsin citizens."
Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution.

It appears that Chief Justice Abrahamson’s invitation to the Court to revisit the bounds of governmental immunity is a signal to potential plaintiffs and their attorneys that they should “try again” should the composition of the Court be more amenable to a change in the well-established limits of governmental immunity. As set forth below, however, the Court has recognized the important policy issues favoring governmental immunity since its inception.

Public Policy Values Governmental Immunity

It is interesting to note that despite her concurring opinion apparently inviting the Court to revisit the limits of governmental immunity, Chief Justice Abrahamson, along with the four Justices who joined the majority opinion, recognize that imposing liability on the School District in Scott would not serve the policy underlying the doctrine of immunity. The Court noted the underlying policy goals of governmental immunity as follows:
The doctrine of governmental immunity represents a balance between the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress. The doctrine reflects concern for protection of the public purse against legal action and . . . the restraint of public officials through political rather than judicial means.

Governmental immunity was developed to protect public officers from being unduly hampered or intimidated in the discretion of their functions by threat of lawsuit or personal liability. Guidance counselors are important figures in our educational system. They are regularly required to make discretionary decisions and judgment calls in performing their functions, and the future progress and success of students rests on the ability of the guidance counselors to perform their duties free from the hindrance of threats of litigation or liability.

Other policy considerations support the doctrine of governmental immunity as well. First, allowance of recovery for negligence in the performance of discretionary duties would place too unreasonable a burden on municipalities. Municipalities and their employees have contact with high numbers of people during the performance of their discretionary duties on behalf of the municipalities. Many of their duties are discretionary, such that they are not specifically required to be performed in a particular time or in a particular manner. If immunity were denied, local governments across the state may decide to undertake a less helpful mode of providing services or refuse to provide certain discretionary services altogether. The legislature’s grant of immunity provides a balance that is needed to promote the provision of valuable public services. On the one hand, the state legislature requires municipalities to provide certain services to the public. On the other, it provides those municipalities and their employees with the protection of immunity for the exercise of their discretionary duties.

Second, allowance of recovery would be too likely to open the way for spurious claims. It is unlikely that every municipal employee can recall the factual circumstances of each and every contact with perhaps hundreds of citizens during the course of a year or two or three. It would not be difficult for individuals to claim that particular action was taken but it could be difficult for municipalities to conclusively disprove an allegation of negligence. As the trial court noted in its judgment of dismissal, allowing the Scotts’ claims to proceed would open the floodgates and school districts (as well as other municipal entities) would be overwrought with costly, fact-intensive litigation.

Finally, as Justice Sundby noted, the courts’ “burdensome and rapidly expanding case load is hugely contributed by governmental and public officer tort liability actions.” Since settlements of lawsuits have become the norm due to the high cost of protracted litigation, the potential expense to Wisconsin taxpayers is immense. Plaintiffs and their attorneys may argue that the statutory damage cap of $50,000 and the ability for municipalities to obtain insurance coverage limit the potential cost to municipalities. The high cost of insurance is a reality and is a burden on municipalities at present, especially in light of the current fiscal crisis facing the state and all Wisconsin municipalities. Without immunity, insurance rates would sky rocket and municipalities might be discouraged from providing services beyond the bare minimum required by law. Instead of providing services, municipalities may be put in the position of making avoidance of liability a prime concern rather than promoting the welfare of the people they serve.


The doctrine of governmental immunity has many facets that open the doctrine up to criticism and debate. Scott, however, was decided on the basis of what is now the well-established ministerial/discretionary act analysis. Although the concurrence describes the immunity analysis as having created “jurisprudential chaos,” five of the six Justices participating found the precedent clear; the legal analysis in this case mirrored its prior decision in Kierstyn. Although some may find the law to be “unjust,” five of six Justices agreed that it is the law. As such, it must be honored by all unless and until the state legislature determines that the law should be changed.