What is the Scope of Municipal Immunity Under Sec. 893.80, Stats. and What are Exceptions Allowing for Liability for Official Acts?

WDC Journal Edition: May 2002
By: Michele M. Ford, Esq. - Crivello, Carlson, Mentkowski & Steeves, S.C.

Because of public policy considerations which include balancing "the need of public officers to perform their functions freely against the rights of an aggrieved party to seek redress" [Lister v. Bd. of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976)], Sec. 893.80, Stats. contains a number of preconditions to and limitations on liability of municipal entities, agents and employees for acts taken within the scope of their authority. Even if an aggrieved party successfully meets the arduous preconditions of filing and serving a notice of circumstances and itemized statement of relief sought outlined in Sec. 893.80(1), Stats., immunities for intentional and negligent conduct are difficult and often insurmountable barriers to ultimate recovery.

Sec. 893.80(4), Stats. contains an absolute bar for suits against governmental entities for intentional torts. Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 293, 531 N.W.2d 357 (Ct. App. 1995). Sec. 893.80(4), Stats. provides in relevant part:

(4) No suit may be brought against any ... political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees ...

Because this immunity is straightforward, it's scope and application has not been the subject of much dispute at the appellate level. The appropriate scope of immunity for negligent acts, on the other hand, has provoked much debate.

Section 893.80(4), Stats., affords municipal entities, officials and employees immunity for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. Kimps v. Hill, 200 Wis. 2d 1, 10 n. 6, 546 N.W.2d 151 (1996). Section 893.80(4), Stats., provides in relevant part:

No suit may be brought against any... political corporation, governmental subdivision, or any agency thereof... or against its officers, officials, agents, or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

The terms "quasi-judicial" and "quasi-legislative" are synonymous with "discretionary". Johnson v. City of Edgerton, 207 Wis. 2d 345, 355, 558 N.W.2d 653 (Ct. App. 1996). A quasi-judicial or quasi-legislative or discretionary act involves "judgment and discretion". Kimps, 200 Wis. 2d at 15.

Immunity for negligent acts is not absolute. Courts have recognized exceptions to immunity where:

1. the conduct amounts to the performance of a ministerial duty;

2. an existing "known present danger" makes the duty to remedy the danger "so clear and so absolute" that there is no room for discretion;

3. the conduct arose out of the performance of "professional" or "non-governmental" conduct; or

4. the conduct was "malicious, willful and intentional".

Kierstyn v. Racine Unified School District, 228 Wis. 2d 81, 88 596 N.W.2d 417 (1999).

The Ministerial Act Exception

Ministerial acts may be found only where conduct:

[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 which such certainty that nothing remains for judgment or discretion.

Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 299, 550 N.W.2d 103 (1996).

In Kierstyn, the Wisconsin Supreme Court addressed the scope of the ministerial duty exception in the context of a case involving the claim that a school "employee benefits specialist" gave incorrect advise to the plaintiff, allegedly resulting in the plaintiff's loss of a significant amount of benefits. The court first discussed the policy considerations underlying immunity, pointing out the need for "the protection of the public purse against legal action and . . . the restraint of public officials through political rather than judicial means." The court observed:

For at least a century, the law has drawn a distinction between discretionary and ministerial acts, shielding the performer of the former but exposing the latter to liability.

Kierstyn, 228 Wis. 2d at 91.

The ministerial duty exception applies only where "the subject matter of [officials'] action imposed specific legal obligations on the manner in which they were to act." If there are no laws or specific rules dictating the manner in which an official is to act in the situation alleged to create liability, the ministerial duty exception does not apply. Id.

Courts have rejected attempts to recognize the existence of a ministerial duty if where a law or rule is implicated by the official's conduct, unless the law or rule itself defines the way in which the official was required to act. In Kierstyn, the plaintiff argued that a ministerial duty to correctly interpret the statute defining when applications for disability benefits could be submitted existed because the statute was unambiguous. The court rejected this argument, pointing out that the issue was not the clarity of the statute, but whether it imposed limitations on information the benefits specialist was required to give. The court stated:

...[T]o argue that the statute is clear is to miss the point of immunity. As the circuit court aptly stated:

'[Kierstyn really argues] that Farrell had a duty to excursive due care and a duty not to be negligent [in interpreting an unambiguous statute]. That, however, is precisely what the doctrine of immunity insulates a party from, i.e., liability due to the fact that they have been negligent...'

Similarly, in Bauder v. Delavan-Darien School District, 207 Wis. 2d 312, 558 N.W.2d 881 (Ct. App. 1996), the appellate court held that a teacher's statutory duty to provide physical education in "safe and healthful facilities" under Sec. 121.02(1)(i), States., did not create a ministerial duty, observing that "[w]hile the obligation to provide physical education classes is mandated, and thus ministerial, the manner in which those classes are conducted is not specified either by state statute or by the school district under the facts of this case.... Bauder, 207 Wis. 2d at 316.

Ministerial duties have been recognized when an official fails to follow statutes prescribing the manner in which to erect signs [Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673 (1973)]; the failure to strictly follow contract language governing conduct [Major v. County of Milwaukee, 196 Wis. 2d 939, 539 N.W.2d 472 (Ct. App. 1995)]; and the construction of sewers in accordance with specific designs. Allstate v. Metropolitan Sewerage District, 80 Wis. 2d 10, 258 N.W.2d 148 (1977).

The Known Present Danger Exception

The known present danger exception is a "very limited exception" to immunity, which applies where "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." Kimps, 200 Wis. 2d at 15. The Kierstyn court referred to Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977) as the best example of the types of extraordinary events necessary to trigger the exception. In Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), a park manager was aware of a trail with a sheer drop off which never had a rail or a warning sign. The park manager testified that he knew the trail would be hazardous at night. Despite this knowledge, he did not erect a warning sign or advise superiors of the condition. Cords, 80 Wis. 2d at 538. The Cords court held that the duty to remedy the situation based on the facts was a duty "so clear and so absolute" that it fell within the definition of a ministerial duty. Cords, 88 Wis. 2d at 542.

Courts have declined to apply the known present danger exception to hazards or dangers less obvious and extreme than that found in Cords. In Kimps, which involved an injury on gym equipment, the Supreme Court observed:

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 ...

Kimps, 200 Wis. 2d at 15-16.

Similarly, in Bauder, the court held that a teacher's decision to deflate a soccer ball and allow students to play with the ball without eye protection did not fall within the "known present danger" exception. The court observed:

While Bauder's experts certainly has an opinion that a deflated ball is dangerous, it is not an opinion that is so clear and so absolute that no reasonable person would think to use a deflated ball. And while a gym is not usually used to play soccer, it is not so clear and absolute, as Bauder claims it to be, that school gyms should be used only for basketball and nothing else.

Bauder, 207 Wis. 2d at 317-318.

The Supreme Court is currently considering the application of the known present danger exception in Lodl v. Progressive Northern Insurance Co., 2001 WI App 3, 240 Wis.2d 652, 660, 625 N.W.2d 601 (2001). In Lodl, the Court of Appeals held that an intersection was a compelling and known danger because the traffic control lights were inoperative during an evening storm. Lodl, 240 Wis.2d at 662. The court of appeals further held that there was a genuine issue of material fact as to whether a police officer responding to the scene was in a position to do something about the compelling and known danger at the intersection and did not adequately respond. Currently pending before the Supreme Court are two primary issues: (1) whether the danger posed by an intersection with downed traffic lights was sufficiently great to be a known present danger, and (2) whether the degree of response (as opposed to not responding at all) is the correct test in the context of addressing such a danger for purposes of application of immunity.

The Non-Governmental Acts Exception

A limited category of acts falls within the "nongovernmental acts" exception. Appellate courts have rejected attempts to expand this exception beyond decisions of medical personnel. See Kimps, 200 Wis. 2d at 17-23; C.L., 143 Wis. 2d at 725. In C.L., 143 Wis. 2d at 725, the court expressly defined "non-governmental" acts as those that "[do] not require the application of statutes nor a subjective evaluation of the law". C.L., 143 Wis. 2d at 717-18.

The "Malicious, Willful And Intentional" Exception

Conduct falling within this exception must generally be proven to be the result of hatred, ill-will, a desire for revenge or inflicted under circumstances where insult or injury was intended. Ervin v. City Of Kenosha, 159 Wis.2d 464, 464 N.W.2d 654 (1991). Malicious acts are "[c]haracterized by, or involving, malice; having or done with, wicked, evil or mischievous intention or motives". Id.

There is a conflict among courts of appeals as to whether this exception requires proof of all three elements, or whether proof of intent is itself sufficient. See Bicknese v. Sutula, 2001 WL 988820 (Wis.App.)(unpublished). In Bicknese, the court held that proof of all three elements was required, observing:

Although Ottinger [v. Pinel, 215 Wis.2d 266, 274-75, 572 N.W.2d 519 (Ct.App.1997), and Walker [v. Univ. of Wis. Hosps., 198 Wis.2d 237, 249, 542 N.W.2d 207 (Ct.App.1995)], use the disjunctive "or," the bulk of the case law favors the conjunctive "and,"...

The Supreme Court accepted Bicknese for review on January 29, 2002, and may take up the issue of whether the phrase "malicious, willful and intentional" is conjunctive or disjunctive.