Legal Updates


August 27, 2019

The Wisconsin Supreme Court recently made two important rulings regarding the doctrine of governmental immunity.  These decisions have helped to refine the scope of governmental immunity.

Governmental immunity generally protects local governments from lawsuits pertaining to “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”  Wis. Stat. § 893.80(4).  Courts have ruled that this statute grants broad protections to local governments and their officers and employees in performing “discretionary acts”.   Although the scope of immunity is broad, the Wisconsin Supreme Court has identified four exceptions for which immunity will not apply:

  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.

Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 24.

The Court recently addressed the known and compelling danger exception in Engelhardt v. City of New Berlin, 2019 WI 2.  This case tragically involved the drowning of a young girl, Lily.  Lily’s parents enrolled her in a summer program offered by the City of New Berlin (City).  Part of that program involved a trip to the City’s aquatic center.  Knowing that Lily could not swim, her parents contacted the City and asked if Lily should attend the trip.  The program employee they spoke to assured Lily’s parents that she would be supervised, would undergo an initial swim test at the pool, and would be limited to the splash pad area if she could not swim.  After that assurance, Lily’s parents consented to her attending.

The trip included 70 participants on an already busy day at the aquatic center.  The program supervisors split the kids into two groups based upon gender, and went into the locker rooms.  Lily left the locker room early and went to the pool unsupervised, where she drowned.  Lily’s parents then sued the City and others for negligence.  The City claimed immunity from all claims pursuant to Wis. Stat. § 893.80(4).

The Court found that the City was not immune from liability because the known and compelling danger exception applied.  The known danger exception applies when a public officer or employee has knowledge of an “obviously hazardous” situation, such that he or she has a duty to address it.  In those situations, the public officer or employee does not exercise judgment or discretion.  In this case, the City knew that Lily could not swim when she went to the aquatic center.  This created a situation so dangerous that it compelled the City to act. However, the City did nothing to reduce Lily’s risk of drowning.  Therefore, the Court concluded that governmental immunity did not apply.

More recently, the Court decided Pinter v. Village of Stetsonville, 2019 WI 74, which involved the ministerial duty exception to governmental immunity.  In this case, the homeowner, Pinter, brought suit against the Village claiming that the Village failed to empty its wastewater disposal system into the ditch, which caused flooding in Pinter’s basement.

The Village had an oral policy regarding water overflow at its wastewater pumping station. The station had a large concrete water storage pit with ladder rungs installed on the side.  When water reached a certain level, it triggered an alarm warning employees about the rising water levels.  Further, employees would use the ladder rungs to gauge water levels.  If the water rose above a specific rung, then an employee would set a bypass pump in place to pump water directly into the ditch.  One employee said it was the sixth rung, while another claimed it was the fourth rung. If water continued to rise, then an employee would activate the pump to disperse the water into the ditch.  This was an informal oral policy.  The Village board never formally approved it, and no one had ever put it in writing.

In September of 2014, the Village experienced a heavy rainstorm.  Water in the pumping station began to rise, triggering the alarm.  Employees called a septic hauling company to transport water away from the station.  Pinter began to hear “gargling” in his basement.  He called the Village and requested that it start pumping water into the ditch.  The Village refused because employees wanted to wait for the septic hauling truck prior to dumping wastewater in the ditch.  Water at the pumping station continued to rise, reaching the second rung on the ladder, the highest it had ever been.  Water continued to back-up into Pinter’s basement.  While waiting for the septic hauling company, the Village activated the bypass pump and dumped water into the ditch.  Pinter then sued the Village because of the water damage to his basement.

Pinter argued the Village’s oral policy created a ministerial duty.  A ministerial duty exists when a law specifically defines the time, mode and occasion for performance of a duty with such certainty that the government cannot exercise any judgment or discretion.

The Court found no ministerial duty existed.  The Village’s oral policy was not definite, as evidenced by the discrepancy in which ladder rung triggered placement of the water bypass pump.  Further, the policy was informal.  The Village board never approved it, and no one ever formalized the policy in writing.  At most, the policy was a signal to do something, but the Village had discretion in which actions it took.  The Village employees would evaluate water levels, assess whether rain subsided, and could call in septic trucks to haul water away.  Further, the Wisconsin Department of Natural Resources created guidelines for when municipalities could dump wastewater directly into the ditch.  Those guidelines were discretionary in nature, meaning there was no duty to act.

The dissenting opinions in both Engelhardt and Pinter are of particular note.  The dissenting opinions are not binding, but show some justices want to completely re-work the governmental immunity framework.  The dissenting justices believe the current governmental immunity rule is unworkable, and that the rule favors immunity as opposed to liability.  The dissenting justices would do away entirely with the current judicially created exceptions, and instead focus only on the statutory language in Wis. Stat. § 893.80(4), related to immunity for acts performed in the “exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”  This would reinforce the principle that liability is the rule and governmental immunity is the exception.  For example, the dissenting justices in Pinter reasoned that governmental immunity should not apply because the Village employees were not making laws, balancing policy decisions, or exercising any judgments related to government business.

Although the dissenting opinions are not binding, they nevertheless signal that a change could be on the horizon in the area of governmental immunity, if the appropriate case comes before the Court.  At present, however, the majority of the Court continues to broadly interpret governmental immunity based on Wis. Stat. § 893.80(4), subject to the four exceptions described above.

For questions regarding this article, please contact your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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