Michael Engelhardt v. City of New Berlin ( 2019 )

2019 WI 2
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP801
COMPLETE TITLE: Michael Engelhardt, Julieann Engelhardt,
individually and as the Personal Representative
of the Estate of Lily Engelhardt,
Plaintiffs-Respondents-Petitioners,
State of Wisconsin Department of Health
Services,
Involuntary-Plaintiff,
v.
City of New Berlin, ABC Insurance Company and
New Berlin Parks and Recreation Department,
Defendants-Appellants,
Wiberg Aquatic Center f/k/a Wirth Aquatic Center
and MNO Insurance Company,
Defendants.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 740, 905 N.W.2d 843
(2017 – unpublished)
OPINION FILED: January 4, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 24, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: J. Mac Davis
JUSTICES:
CONCURRED: DALLET, J. concurs, joined by R.G. BRADLEY, J. &
Kelly, J. (opinion filed)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-respondents-petitioners, there were
briefs filed by Christopher E. Rogers, Susan R. Tyndall, and
Habush Habush & Rottier S.C., Madison. There was an oral
argument by Christopher E. Rogers.
For the defendants-appellants, there was a brief filed by
Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee.
There was an oral argument by Dustin T. Woehl.
An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by William C. Gleisner, III, and Law
Offices of William C. Gleisner, III, Brookfield.
An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities, Wisconsin Towns Association, and
Wisconsin Counties Association by Ted Waskowski, Kyle W.
Engelke, and Stafford Rosenbaum, LLP, Madison. There was an oral
argument by Kyle W. Engelke.
2
2019 WI 2
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP801
(L.C. No. 2014CV1085)
STATE OF WISCONSIN : IN SUPREME COURT
Michael Engelhardt, Julieann Engelhardt,
individually and as the Personal Representative
of the Estate of Lily Engelhardt,
Plaintiffs-Respondents-Petitioners,
State of Wisconsin Department of Health
Services,
Involuntary-Plaintiff, FILED
v.
JAN 4, 2019
City of New Berlin, ABC Insurance Company and
New Berlin Parks and Recreation Department, Sheila T. Reiff
Clerk of Supreme Court
Defendants-Appellants,
Wiberg Aquatic Center f/k/a Wirth Aquatic
Center and MNO Insurance Company,
Defendants.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
No. 2016AP801
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an
unpublished decision of the court of appeals reversing the
circuit court's denial of summary judgment to the City of New
Berlin and the New Berlin Parks and Recreation Department
(together, "New Berlin").1
¶2 Eight-year-old Lily Engelhardt attended a field trip
to Brookfield's Wiberg Aquatic Center organized and run by the
New Berlin Parks and Recreation Department. Lily could not
swim. Lily's mother told Stuart Bell, the "Playground
Coordinator" in charge of the field trip, that Lily could not
swim. She questioned whether Lily should go on the trip at all.
Bell responded that Lily would be safe because her swimming
ability would be evaluated at the shallow end or zero depth area
of the pool. Tragically, Lily drowned while staff and other
children were changing in the locker rooms and proceeding to the
pool deck.
¶3 Lily's parents filed suit against New Berlin and
several other defendants, alleging negligence. New Berlin moved
for summary judgment, arguing that it was immune from suit
pursuant to the governmental immunity statute, Wis. Stat.
§ 893.80(4) (2011-12).2 The circuit court denied New Berlin's
summary judgment motion, and New Berlin moved for leave to
1
Engelhardt v. City of New Berlin, No. 2016AP801,
unpublished slip op. (Wis. Ct. App. Oct. 4, 2017).
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2016AP801
appeal. The court of appeals granted New Berlin's motion and
reversed the circuit court's denial of summary judgment to New
Berlin.
¶4 We conclude that New Berlin is not entitled to the
defense of governmental immunity. The known danger exception to
governmental immunity applies in the instant case.
¶5 The known danger exception to governmental immunity,
set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672
(1977), applies when an obviously hazardous situation known to
the public officer or employee is of such force that a
ministerial duty to correct the situation is created.3 "[A]
dangerous situation will be held to give rise to a ministerial
duty only when '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."4
¶6 In the instant case, the danger to which Lily was
exposed at the Aquatic Center as an eight-year-old non-swimmer
was compelling and self-evident. The obvious dangers involved
3
Pries v. McMillon, 2010 WI 63, ¶23-24, 326 Wis. 2d 37, 784
N.W.2d 648; Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶32-40,
253 Wis. 2d 323, 646 N.W.2d 314; C.L. v. Olson, 143 Wis. 2d 701,
715, 422 N.W.2d 614 (1988); Voss ex rel. Harrison v. Elkhorn
Area Sch. Dist., 2006 WI App 234, ¶¶14-18, 297 Wis. 2d 389, 724
N.W.2d 420.
4
Lodl, 253 Wis. 2d 323, ¶38 (quoting C.L., 143 Wis. 2d at
717); see also Pries, 326 Wis. 2d 37, ¶24 (quoting C.L., 143
Wis. 2d at 715).
3
No. 2016AP801
here resemble other obviously hazardous circumstances presented
in Wisconsin cases that applied the known danger exception.5
Drowning was a known danger. Under the circumstances present
here, Bell and other camp staff had a ministerial duty to give
Lily a swim test before allowing her near the pool. They did
not perform this ministerial duty.
¶7 Because New Berlin is not entitled to the defense of
governmental immunity, we reverse the decision of the court of
appeals and remand the cause to the circuit court for further
proceedings consistent with this opinion.
I
¶8 The instant case reaches this court on summary
judgment. We recite the facts in the light most favorable to
5
See, e.g., Cords v. Anderson, 80 Wis. 2d 525, 541, 259
N.W.2d 672 (1977) (park manager who knew that a trail was
particularly dangerous at night had ministerial duty to "either
place the signs warning the public of the dangerous conditions
existing on the upper trail or to advise his superiors" of the
hazardous condition); Voss, 297 Wis. 2d 389, ¶¶19-20 (teacher
who witnessed students stumbling and falling while wearing
"fatal vision goggles" in classroom full of desks and hard tile
floor had ministerial duty to "stop the activity the way it was
presently conceived"); Pries, 326 Wis. 2d 37, ¶¶43-47
(Abrahamson, C.J., concurring) (applying known danger exception
where supervisor, aware of the dangers associated with heavy
pieces of solid steel horse stalls that are unchained during the
process of disassembly, "was in a position as supervisor to do
something about the danger[,] and he failed to do anything about
it——worse, he jumped onto the stalls").
4
No. 2016AP801
the Engelhardts, the parties opposing summary judgment, and draw
all reasonable inferences from those facts in their favor.6
¶9 On Monday, July 2, 2012, eight-year-old Lily
Engelhardt started her first day at a summer day camp organized
and run by the New Berlin Parks and Recreation Department. On
her second day of camp, the camp was scheduled to take a field
trip to Brookfield's Wiberg Aquatic Center.
¶10 Lily could not swim. Despite having taken three
sessions of beginner swimming lessons through the New Berlin
Parks and Recreation Department, Lily had not moved on to the
next level and was otherwise not making much progress. Other
than these three sessions of swimming lessons, Lily had very
little experience with swimming or being in or around pools.
¶11 The field trip to the Aquatic Center was optional.
When Lily's mother received a permission slip upon picking Lily
up after her first day, she questioned whether Lily should go on
the field trip given that Lily could not swim.
¶12 Lily's mother communicated her concerns to Stuart
Bell, the "Playground Coordinator" in charge of the day camp
program. She told Bell that Lily could not swim and asked
whether Lily should go on the field trip to the Aquatic Center.
Bell responded that it would be all right for Lily to attend the
6
Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2006
WI 67, ¶19, 291 Wis. 2d 259, 715 N.W.2d 620; Kraemer Bros., Inc.
v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857
(1979).
5
No. 2016AP801
field trip because Lily would be restricted to the splash pad
area of the Aquatic Center.
¶13 In his deposition, Bell testified that New Berlin gave
swim tests to all new campers in order to test their swimming
ability. In fact, when Lily's mother told Bell that her
daughter could not swim, Bell told her that Lily would be safe
because her swimming ability would be evaluated at the pool.
However, Lily was not given a swim test, and Bell told no other
staff members that Lily could not swim.
¶14 The Aquatic Center was very busy the day of the field
trip. Upon arriving at the Aquatic Center, 77 campers were
divided by gender and went into the locker rooms to change.
Although new campers who had not been given a swim test were
instructed to find a leader before getting into the pool, they
were not directed to go to any specific location to find a
leader, and no leaders were stationed at the locker room door to
direct them.
¶15 At some point when most of the children were in the
water but before all staff members were out of the locker room,
lifeguards had already discovered a distressed Lily in the pool.
Despite the efforts of lifeguards and other medical personnel,
Lily died as a result of this incident.
¶16 Lily's parents sued New Berlin and several other
defendants, alleging negligence. New Berlin moved for summary
judgment, arguing that it was immune from suit pursuant to Wis.
Stat. § 893.80(4). The circuit court determined that an issue
of fact precluded New Berlin's immunity as a matter of law. New
6
No. 2016AP801
Berlin moved for leave to appeal. The motion was granted by the
court of appeals.
¶17 The court of appeals reversed the circuit court,
concluding that New Berlin was immune from suit under Wis. Stat.
§ 893.80(4)7 and was entitled to summary judgment.
¶18 The court of appeals reasoned that none of the camp
documents highlighted by the Engelhardts (specifically, the
camp's information packet, staff guidelines, and staff handbook)
created ministerial duties and that the known danger exception
to governmental immunity did not apply.
II
¶19 The issue presented is whether New Berlin is entitled
to governmental immunity or whether an exception to governmental
immunity applies. "Whether an exception to immunity applies
requires us to determine the proper scope of the common law
doctrine of governmental immunity; that is a question of law
that we review de novo without deference to the circuit court or
7
Wisconsin Stat. § 893.80(4) provides:
No suit may be brought against any volunteer fire
company organized under ch. 213, political
corporation, governmental subdivision or any agency
thereof for the intentional torts of its officers,
officials, agents or employees nor may any suit be
brought against such corporation, subdivision or
agency or volunteer fire company or against its
officers, officials, agents or employees for acts done
in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions.
7
No. 2016AP801
court of appeals, but benefitting from the analysis of each
court."8
III
A
¶20 We begin our analysis with the text of Wis. Stat.
§ 893.80(4), the governmental immunity statute.9
¶21 In relevant part, Wis. Stat. § 893.80(4) immunizes
municipalities from liability arising out of "acts done in the
exercise of legislative, quasi-legislative, judicial or quasi-
judicial functions."
¶22 For over 40 years, this court has consistently
interpreted this particular statutory language to include any
acts that involve the exercise of discretion.10 Immunizing
government officials from liability arising out of their
discretionary acts "is based largely upon public policy
considerations that spring from the interest in protecting the
public purse and a preference for political rather than judicial
8
Pries, 326 Wis. 2d 37, ¶19 (citing Kimps v. Hill, 200
Wis. 2d 1, 8, 546 N.W.2d 151 (1996)); see also Lodl, 253
Wis. 2d 323, ¶17 (citing Kierstyn v. Racine Unified Sch. Dist.,
228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999)).
9
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
10
Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537
(1977); see also Willow Creek Ranch, L.L.C. v. Town of Shelby,
2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693 (concluding
that this particular statutory language is "synonymous with
discretionary acts").
8
No. 2016AP801
redress for the actions of public officers."11 We highlighted
these important policy considerations in Lister v. Board of
Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976), as follows:
(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.12
¶23 Despite decades of legislative silence with regard to
this court's long-standing interpretation of the governmental
immunity statute, the Engelhardts invite this court to reverse
course on the past 40 years of Wisconsin jurisprudence
interpreting the governmental immunity statute.13 They urge the
court to adopt an interpretation of the statute that would have
the effect of exposing municipalities to liability in a far
greater number of circumstances.
11
Lodl, 253 Wis. 2d 323, ¶23 (citing Kierstyn, 228
Wis. 2d at 89-90).
12
See also Lodl, 253 Wis. 2d 323, ¶23 (quoting Lister v.
Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).
13
Our interpretation of the particular statutory language
at issue has stood undisturbed for over 40 years. The
distinction between discretionary and ministerial acts is over
60 years old. See Meyer v. Carman, 271 Wis. 329, 331-33, 73
N.W.2d 514 (1955).
9
No. 2016AP801
¶24 We decline the Engelhardts' invitation. Decades of
jurisprudence cannot, and should not, be discarded casually.
"'This court follows the doctrine of stare decisis scrupulously
because of our abiding respect for the rule of law.'"14 The
doctrine of stare decisis is vital to "the evenhanded,
predictable, and consistent development of legal principles[.]"15
It "fosters reliance on judicial decisions[] and contributes to
the actual and perceived integrity of the judicial process."16
¶25 The doctrine of stare decisis is a particularly
important concern "where a court has authoritatively interpreted
a statute[.]"17 This is because "the legislature remains free to
alter its construction" if it believes we interpreted the
statute incorrectly or in a way that results in unintended or
undesirable consequences.18
¶26 The legislature has not overturned our interpretation
of the statute. Although it is not conclusive of legislative
14
Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶41,
281 Wis. 2d 300, 697 N.W.2d 417 (quoting Johnson Controls v.
Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257).
15
Payne v. Tennessee, 501 U.S. 808, 827 (1991); Romanshek,
281 Wis. 2d 300, ¶43; Johnson Controls, 264 Wis. 2d 60, ¶95.
16
Payne, 501 U.S. at 827; Romanshek, 281 Wis. 2d 300, ¶43;
Johnson Controls, 264 Wis. 2d 60, ¶95.
17
Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton v. S.C.
Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)).
18
Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton, 502 U.S.
at 202).
10
No. 2016AP801
intent, we note that the legislature has on numerous occasions
revised and recreated Wis. Stat. § 893.80 without altering the
statutory language in response to this court's interpretation of
the statute.19 Indeed, the legislature repealed and recreated
the governmental immunity statute in 1977,20 but it did not see
fit to "correct" the court's understanding of governmental
immunity for discretionary acts as discussed in Lister, a case
decided just one year earlier.21
¶27 If we adopt the interpretation of Wis. Stat.
§ 893.80(4) urged by the Engelhardts, we would effectively pull
the rug out from under municipalities and other governmental
entities that have managed their affairs relying upon our
decades-old interpretation of the governmental immunity statute.
Such a result would be especially jarring to the public and
legal community given that just two years ago, we rejected the
specific interpretation of the statute that the Engelhardts urge
us to adopt today.22
19
Romanshek, 281 Wis. 2d 300, ¶52 ("Legislative inaction
following judicial construction of a statute, while not
conclusive, evinces legislative approval of the
interpretation.") (quoted source omitted).
20
See 1977 Wis. Act 285, § 11.
21
Lister, 72 Wis. 2d at 300-02.
22
See generally Melchert v. Pro Elec. Contractors, 2017 WI
30, ¶¶53-65, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J.,
dissenting).
11
No. 2016AP801
¶28 It is unwise for a court to frequently call into
question existing and long-standing law. Doing so gives the
impression that the decision to overturn prior cases is
"undertaken merely because the composition of the court has
changed."23 "When existing law is open to revision in every
case, deciding cases becomes a mere exercise of judicial will,
with arbitrary and unpredictable results."24
B
¶29 Wisconsin Stat. § 893.80(4) provides no immunity
against liability associated with several categories of acts:
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.25
¶30 These exceptions "represent[] a judicial balance
struck between 'the need of public officers to perform their
functions freely [and] the right of an aggrieved party to seek
redress.'"26
23
Johnson Controls, 264 Wis. 2d 60, ¶95.
24
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (internal quotation marks omitted) (quoting State v.
Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶29, 244
Wis. 2d 613, 628 N.W.2d 376); see also Romanshek, 281
Wis. 2d 300, ¶42; Johnson Controls, 264 Wis. 2d 60, ¶95.
25
Lodl, 253 Wis. 2d 323, ¶24 (citing Willow Creek Ranch,
235 Wis. 2d 409, ¶25).
26
C.L., 143 Wis. 2d at 710 (quoting Lister, 72 Wis. 2d at
300).
12
No. 2016AP801
¶31 In the instant case, the Engelhardts invoke the
"ministerial duty" and "known danger" exceptions to governmental
immunity. These two exceptions are related——they "overlap to an
extent, inasmuch as they both require the identification of a
ministerial duty."27 Thus, a brief discussion of ministerial
duties is relevant to the application of both exceptions.
¶32 In Wisconsin, the test for determining whether a duty
is ministerial or discretionary was articulated in Meyer v.
Carman, 271 Wis. 2d 329, 332, 73 N.W.2d 514 (1955). We have
described the test for ministerial duties as follows:
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.28
27
Pries, 326 Wis. 2d 37, ¶24.
28
Lister, 72 Wis. 2d at 301; see also Pries, 326
Wis. 2d 37, ¶22.
The difference between a ministerial duty for purposes of
the "ministerial duty" exception to governmental immunity and a
ministerial duty for purposes of the "known danger" exception
has been described as follows:
[A] ministerial duty for purposes of the ministerial
duty exception is imposed by law or policy and
performance is required in a time, manner, and under
conditions where the officer does not exercise
discretion or judgment. In contrast, the ministerial
duty for purposes of the known danger exception arises
not from a written law or policy, but when an
obviously dangerous situation presents itself.
Pries, 326 Wis. 2d 37, ¶24.
13
No. 2016AP801
¶33 We have explained that "circumstances may give rise to
such a certain duty, 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."29
¶34 If either the "ministerial duty" exception or the
"known danger" exception applies, New Berlin is not entitled to
governmental immunity pursuant to Wis. Stat. § 893.80(4).
IV
¶35 Having established the proper legal framework, we now
apply that framework to the facts of the case. We conclude that
the known danger exception applies, and therefore, New Berlin is
not entitled to governmental immunity.
¶36 The known danger exception was first established by
this court in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672
(1977). The Cords case involved an accident where hikers,
legally accessing a park hiking trail at night, fell into a deep
gorge located on a part of the trail known by the park manager
to be particularly hazardous at night.30
29
C.L., 143 Wis. 2d at 715 (citing Domino v. Walworth Cty.,
118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984)); see also
Pries, 326 Wis. 2d 37, ¶24.
30
Cords, 80 Wis. 2d at 532-35.
In Cords, we described the topography of the trail in great
detail, and we do not repeat that description here. We note,
however, that the hazardous condition on the trail was a cutback
"where one misstep of a foot in a southerly direction would
cause an uninterrupted twenty foot slide down a sharp incline to
a direct dropoff of approximately eighty feet to the rock bottom
of the gorge." Cords, 80 Wis. 2d at 532.
14
No. 2016AP801
¶37 The issue was whether the park manager was entitled to
immunity from the hikers' negligence suit.
¶38 We concluded that the park manager "had an absolute,
certain, or imperative duty to either place the signs warning
the public of the dangerous conditions existing on the upper
trail or to advise his superiors" of the hazardous conditions.31
¶39 We explained: "[The park manager] knew the terrain at
the glen was dangerous particularly at night; he was in a
position as park manager to do something about it; he failed to
do anything about it. He is liable for the breach of this
duty."32 Based on the facts presented in Cords, the court held
"that the duty to either place warning signs or advise superiors
of the conditions is . . . a duty so clear and so absolute that
it falls within the definition of a ministerial duty."33
¶40 The court of appeals applied the known danger
exception in Voss ex rel. Harrison v. Elkhorn Area School
District, 2006 WI App 234, 297 Wis. 2d 389, 724 N.W.2d 420. In
Voss, a teacher was instructing the class regarding the dangers
of driving after having consumed alcohol.34 The teacher had the
students wear "fatal vision goggles" which, when worn,
replicated a .10 blood alcohol concentration.35 The teacher
31
Id. at 541.
32
Id.
33
Id. at 542.
34
Voss, 297 Wis. 2d 389, ¶2.
35
Id.
15
No. 2016AP801
arranged the desks in the classroom into three straight rows and
instructed three students wearing goggles to walk in between the
rows and go after a tennis ball thrown by the teacher.36 "[T]he
purpose of this particular exercise was to divert the student's
attention away from an otherwise simple task (walking down an
aisle of desks) and then show how the addition of another simple
task (going after a ball) makes the performance of both tasks
difficult when a person is under the influence of alcohol."37
¶41 The teacher was aware of the risks inherent in the
exercise. Although the potential for danger was obvious, the
teacher had also witnessed first-hand a student who bumped into
a desk and hit her knees against the floor while performing this
exercise.38 The incident giving rise to the lawsuit in Voss
occurred when a student caught her foot on the leg of a desk,
tripped, and hit her mouth on the top of the desk, causing
severe injuries to her teeth.39
¶42 The student's parents sued the school district
claiming negligence, and the school district argued that it was
entitled to governmental immunity pursuant to Wis. Stat.
§ 893.80(4).40
36
Id., ¶4.
37
Id., ¶5.
38
Id., ¶¶5-6.
39
Id., ¶¶6-9.
40
Id., ¶10.
16
 No. 2016AP801
¶43 The court of appeals determined that the school
district was not entitled to governmental immunity because the
known danger exception applied to the facts of the case.41
¶44 The court of appeals stated that, like the facts
presented in Cords, the facts presented in Voss represented an
"example[] of conditions that are nearly certain to cause injury
if not corrected, or in other words, are 'accidents waiting to
happen.'"42 The court of appeals explained:
The teacher knew of the perils of conducting the
exercise. The fatal vision goggles distort vision and
impair depth perception and sense of balance. The
teacher testified that students using the goggles
would lose their balance and slip or stumble while
doing the simple tasks he had them perform. In fact,
that was the entire purpose of the exercise——to show
students how difficult a simple task becomes when
alcohol is consumed. The teacher, however, chose to
conduct the exercise within the confines of a
classroom with a hard tile floor and in between aisles
of desks made of steel or aluminum and wood. Despite
these obvious hazards, the teacher took no precautions
to minimize the risk of injury.
. . . .
[T]he circumstances presented on the day of Voss'
injury admitted of only one response on behalf of the
teacher——stop the activity the way it was presently
conceived. Before Voss tripped and fell, some of the
male students had collided with each other and slid on
the floor and one other student had stumbled and
fallen to her knees. At that point, given the
physical layout of the room and the desks made of
steel or aluminum and wood, the manner in which the
students were stumbling and falling and the very
41
Id., ¶23.
42
Id., ¶19.
17
 No. 2016AP801
nature of the effects of the goggles themselves, it
should have been self-evident to the teacher that the
activity was hazardous and the only option was to put
an end to it. Accordingly, the known and present
danger exception to immunity applies.43
¶45 Though not decided on the basis of the known danger
exception, Pries v. McMillon, 2010 WI 63, 326 Wis. 2d 37, 784
N.W.2d 648, is also instructive.
¶46 In Pries, a group of workers were disassembling a
steel horse stall at the state fair.44 The stalls were made up
of four steel pieces: a front, back, and two sides.45 Each
piece measured approximately 10 feet high, 10 feet wide, and
four inches thick, and weighed approximately 200 pounds.46 When
assembled, the pieces were secured to each other with pins, and
the side and back pieces were secured to a wall with chains.47
¶47 At the time of the accident giving rise to the
lawsuit, a two-page written procedure was in effect setting
forth the proper method of disassembling horse stalls. The
supervisor who was in charge of the workers was aware of the
written instructions and that they stated, in relevant part:
"Always have someone holding up the piece that you are taking
down."48 The supervisor also knew that if the stalls were not
43
Id., ¶¶19-20.
44
Pries, 326 Wis. 2d 37, ¶4.
45
Id., ¶5.
46
Id.
47
Id.
48
Id., ¶9.
18
 No. 2016AP801
disassembled in an appropriate manner, they posed a risk of
injury.49 "[The supervisor] confirmed that he knew that if the
chains had been removed from the back stall pieces, the stalls
could fall and injure people standing nearby, particularly if
someone jumped up on the stalls."50
¶48 At one point while disassembling a stall, the
plaintiff and two other workers struggled to dislodge a stall
piece that was stuck to another piece.51 The supervisor, a full-
time employee of the Wisconsin State Fair Park, observed that
the chains responsible for securing the pieces had been removed
and commented that they should not have been.52 Despite that,
the supervisor jumped up on and straddled the stall next to the
piece that the workers were trying to free and started jerking
it up and down with his hands.53 Immediately after, there was a
devastating accident in which unchained stall pieces started
falling in a domino effect on the workers, striking all three of
them.54
¶49 The plaintiff sued the supervisor and State Fair Park
claiming negligence, and the supervisor argued that he was
49
Id., ¶11.
50
Id.
51
Id., ¶6.
52
Id.
53
Id.
54
Id.
19
No. 2016AP801
entitled to governmental immunity pursuant to Wis. Stat.
§ 893.80(4).55
¶50 The Pries court held that the ministerial duty
exception to governmental immunity applied because the written
instructions "establish[ed] a ministerial duty that [the
supervisor] then violated when he jumped on and shook the stuck
stall knowing that 'the chains were undone' and knowing of the
instructions to '[a]lways have someone holding up the piece that
you are taking down.'"56
¶51 Although the parties in Pries briefed the application
of the known danger exception, the Pries court concluded that
"[b]ecause . . . the ministerial duty exception applies here, it
is not necessary for us to determine whether the known danger
exception also applies."57
¶52 Writing separately, one justice analyzed the known
danger exception and concluded that it applied to the facts of
the case:
The pieces of solid steel horse stalls weigh[ed] 200
pounds, [were] typically handled by no less than four
workers, and need[ed] to be constantly supported
during disassembly. Disassembly here [was] an
"accident waiting to happen" and gives rise to an
absolute duty to take steps to prevent the steel horse
stall pieces from falling. [The supervisor] knew the
unchained steel stall pieces were dangerous; he was in
a position as supervisor to do something about the
55
Id., ¶¶7, 14-16.
56
Id., ¶33.
57
Id., ¶41.
20
 No. 2016AP801
danger; and he failed to do anything about it——worse,
he jumped onto the stalls. In my view, he thereby
breached a duty that was "absolute, certain, and
imperative" following the analysis of the known danger
cases.58
¶53 Our review of Cords, Voss, and Pries leads us to the
conclusion that the known danger exception applies in the
instant case, and as a consequence, New Berlin is not entitled
to governmental immunity pursuant to Wis. Stat. § 893.80(4).
¶54 As the facts somberly illustrate, the danger
associated with bringing a young child who cannot swim to a busy
water park along with 76 other children is apparent. A young
child can quickly become distressed in deep water if he or she
cannot swim. Serious injury or death can occur very suddenly,
so it is paramount that precautions be taken to lessen those
risks. The nature of the danger here was immediate, compelling,
and self-evident. The danger was like hiking a trail with a
treacherous cutback along a steep gorge at night, attempting to
go after a tennis ball in a classroom full of desks while
wearing goggles that simulate a .10 BAC, and jumping on an
unchained 200-pound solid steel piece of a horse stall. The
danger was "of such force" that Bell had no discretion not to
act——the circumstances of the situation imposed upon him a
ministerial duty to test Lily's swimming ability before she got
into the water.59
58
Id., ¶46 (Abrahamson, C.J., concurring).
59
See C.L., 143 Wis. 2d at 715.
21
No. 2016AP801
¶55 Bell was aware that Lily could not swim. Lily's
mother told him that Lily could not swim before the field trip
to the Aquatic Center, but Bell did nothing with this
information. He did not tell any other staff member that Lily
could not swim. He did nothing to ensure that Lily's swimming
ability would be tested before allowing her to be without direct
supervision. In short, Bell was aware of the danger, he was in
a position as the Playground Coordinator to do something about
it, and he failed to do anything about it.60
¶56 The parties spend a great deal of effort questioning
whether Bell and other camp staff had a ministerial duty to
directly supervise Lily and keep an eye on her at all times
before administering a swim test.
¶57 Properly framed, the issue in the instant case is
whether the circumstances of the situation created a ministerial
duty to test Lily's swimming ability before she got into the
pool. We conclude that they did. The Engelhardts' theory of
liability is that New Berlin's procedure for making sure that
new campers like Lily did not get into the water without first
having a swim test was ineffective and constitutes negligence.
New Berlin negligently performed (or, as a result of its
negligence, did not perform) its ministerial duty to administer
a swim test before Lily got into the water, and governmental
60
Cords, 80 Wis. 2d at 541.
22
No. 2016AP801
immunity is not available "for the negligent performance of a
purely ministerial duty."61
¶58 Before ending, we note that there might have been a
number of ways in which New Berlin could have discharged its
ministerial duty to test Lily's swimming ability before she got
in the water. For example, new campers who had not yet taken a
swim test, including Lily, could have been grouped together by
gender and assigned a specific counselor to supervise them until
a swim test was performed. Alternatively, camp staff could have
been stationed at the exit of each locker room to fit each new
camper who had not yet taken a swim test, including Lily, with a
life jacket.
¶59 In Cords, we specifically enumerated two different
ways in which the park manager could have fulfilled the
ministerial duty arising out of the circumstances of that
particular case.62 That there were at least two possible ways
for the park manager to fulfill his ministerial duty did not
affect the resolution of the case. "[S]imply allowing for the
exercise of discretion does not suffice to bring the actions
under the blanket of immunity provided by sec. 893.80(4),
Stats., when the facts or the allegations reveal a duty so clear
61
Pries, 326 Wis. 2d 37, ¶22 (quoting Kimps, 200 Wis. 2d at
10).
62
See Cords, 80 Wis. 2d at 541 (concluding that the park
manager had a duty to either place signs warning the public of
the dangerous condition or advise his superiors of the dangerous
condition).
23
No. 2016AP801
and absolute that it falls within the concept of a ministerial
duty."63
¶60 Similarly, that there may have been several possible
ways in which New Berlin could have fulfilled its ministerial
duty does not affect the resolution of the instant case.
Rather, it is sufficient for us to conclude that a ministerial
duty was created by the obviously hazardous circumstances
presented in the instant case, and as a result, New Berlin is
not entitled to governmental immunity from the Engelhardts'
negligence suit.
¶61 Accordingly, we conclude that the known danger
exception applies.
¶62 Because we conclude that the known danger exception to
governmental immunity applies, we need not and do not address
whether any of the written documents highlighted by the
Engelhardts created a ministerial duty for purposes of the
ministerial duty exception.
V
¶63 We conclude that the known danger exception applies in
the instant case, and as a result, New Berlin is not entitled to
governmental immunity pursuant to Wis. Stat. § 893.80(4).
63
C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d
at 491-93); see also Pries, 326 Wis. 2d 37, ¶45 n.4 (Abrahamson,
C.J., concurring) (quoting Domino, 118 Wis. 2d at 491).
24
No. 2016AP801
¶64 Accordingly, we reverse the decision of the court of
appeals and remand the cause to the circuit court for further
proceedings consistent with this opinion.
By the Court.—The decision of the court of appeals is
reversed and the cause remanded.
25
No. 2016AP801.rfd
¶65 REBECCA FRANK DALLET, J. (concurring). This case is
about whether the City of New Berlin and the New Berlin Parks
and Recreation Department (together, "New Berlin") are entitled
to immunity for the negligent acts of their camp staff which
resulted in the drowning of eight-year-old Lily. While the
majority opinion chooses to expand the narrow exception to
immunity carved out for a "known danger," I apply the plain
language set forth in Wis. Stat. § 893.80(4) to reach the same
result.
¶66 After adopting and applying governmental immunity in
Wisconsin for almost a century, in 1962 this court boldly
abrogated governmental immunity, declaring it "ancient and
fallacious," "archaic," and "unjust, inequitable, and patently
unfair." Holytz v. City of Milwaukee, 17 Wis. 2d 26, 33-35, 115
N.W.2d 618 (1962). In the landmark Holytz decision, this court
provided clarity in its statement that "henceforward, so far as
governmental responsibility for torts is concerned, the rule is
liability——the exception is immunity." Id. at 39. An exception
to immunity was carved out for a governmental body in the
exercise of its "legislative or judicial or quasi-legislative or
quasi-judicial functions." Id. at 40.
¶67 The following year, the legislature signaled its
approval of the Holytz decision with the enactment of Wis. Stat.
§ 893.80(4) which provides, in pertinent part, that "[n]o suit
may be brought against any . . . governmental subdivision or any
agency thereof . . . or against its officers, officials, agents
or employees for acts done in the exercise of legislative,
1
No. 2016AP801.rfd
quasi-legislative, judicial, or quasi-judicial functions."1 The
language of Holytz and § 893.80(4) advance the original purpose
of governmental immunity, which is "to ensure that courts refuse
to pass judgment on policy decisions in the province of
coordinate branches of government, if such a policy decision,
consciously balancing risks and advantages, took place." Legue
v. City of Racine, 2014 WI 92, ¶40, 357 Wis. 2d 250, 849
N.W.2d 837.
¶68 Although governmental immunity was intended to be
reserved only for government agents or employees in the exercise
of their legislative, quasi-legislative, judicial, or quasi-
judicial functions, this court soon revived the pre-Holytz
distinction between "ministerial duties" and "discretionary
acts." See Cords v. Ehly, 62 Wis. 2d 31, 39-41, 214 N.W.2d 432
(1974). The exercise of a "discretionary act," subject to
immunity, is now synonymous with the exercise of a legislative,
quasi-legislative, judicial, and quasi-judicial function.
Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25,
235 Wis. 2d 409, 611 N.W.2d 693.
¶69 The artificial distinction between a ministerial duty
and discretionary act is impracticable and the resulting
decisions regarding the limits of governmental immunity have
been labeled "jurisprudential chaos." Scott v. Savers Property
1
The legislature enacted Wis. Stat. § 331.43, which later
became Wis. Stat. § 895.43, which is now Wis. Stat. § 893.80.
See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005
WI 8, ¶¶53-54 & n.13, 277 Wis. 2d 635, 691 N.W.2d 658. However,
the pertinent language of the statute has remained unchanged.
2
No. 2016AP801.rfd
and Cas. Ins. Co., 2003 WI 60, ¶58, 262 Wis. 2d 127, 663
N.W.2d 715 (Abrahamson, C.J., concurring).2 Every act has a
discretionary component, such that "[i]t would be difficult to
conceive of any official act, no matter how directly
ministerial, that did not admit of some discretion in the manner
of its performance, even if it involved only the driving of a
nail." Id., ¶136 (Prosser, J., dissenting)(citations omitted).
¶70 Far from creating an "evenhanded, predictable, and
consistent development of legal principles,"3 the basis for
adherence to stare decisis, the determination that an act is
sufficiently discretionary so as to invoke immunity has appeared
almost random at times. See, e.g., Lodl v. Progressive N. Ins.
Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314 (holding that
although the statute at issue described the procedures the
officer should use in deciding to manually control traffic, the
2
While the majority opinion paints a picture of the
jurisprudence surrounding governmental immunity as being clear
and consistent, quite the contrary is true. See Bostco LLC
v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶135,
350 Wis. 2d 554, 835 N.W.2d 160 (Abrahamson, C.J., dissenting)
("Government immunity and liability is a complicated area of
jurisprudence with 50 years of Wisconsin case law precedent that
is not always easy to explain or justify."). Criticism of this
court's interpretation of Wis. Stat. § 893.80(4) is well
documented. See, e.g., Melchert v. Pro Electric Contractors,
2017 WI 30, ¶57, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley,
J., dissenting); see also Nicholas J. Bullard, Comment, Pushing
the Reset Button on Wisconsin's Governmental Immunity Doctrine,
2014 Wis. L. Rev. 801.
3
Payne v. Tennessee, 501 U.S. 808, 827 (1991); Progressive
N. Ins. Co. v. Romanshek, 2005 WI 67, ¶43, 281 Wis. 2d 300, 697
N.W.2d 417; Johnson Controls, Inc. v. Employers Ins. of Wausau,
2003 WI 108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257.
3
No. 2016AP801.rfd
officer had discretion as to when to perform manual traffic
control); Scott, 262 Wis. 2d 127 (holding that a guidance
counselor's act of wrongly advising a student that his classes
were approved by the NCAA was discretionary, despite the
guidance counselor's receipt of clear and unambiguous forms
detailing approved and unapproved NCAA courses); Brown v.
Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96 (holding that
a firefighter was liable for running through a red stop signal
with his emergency lights activated, but without an audible
signal, because he violated a clear ministerial duty). The
result of this court's adoption of the pre-Holytz, pre-Wis.
Stat. § 893.80(4) language conditioning immunity on the
performance of discretionary acts has been a return to
governmental immunity as the rule and liability as the
exception.
I. THE NARROW KNOWN DANGER EXCEPTION DOES NOT APPLY
¶71 In this case, instead of analyzing whether New Berlin
camp staff had a ministerial duty by operation of law,
regulation, or governmental policy, the majority opinion
concludes that a ministerial duty arose by virtue of a "known
danger." To date, the known danger exception has been limited
to situations where "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." C.L. v. Olson, 143
Wis. 2d 701, 717, 422 N.W.2d 614 (1988). "[T]he danger must be
compelling enough that a self-evident, particularized, and non-
4
No. 2016AP801.rfd
discretionary municipal action is required. The focus is on the
specific act the public officer or official is alleged to have
negligently performed or omitted." Lodl, 253 Wis. 2d 323, ¶40.
The known danger exception has been applied in cases where the
potential of danger was high and the act required to prevent the
danger was clear. See, e.g., Voss ex rel. Harrison v. Elkhorn
Area School Dist., 2006 WI App 234, 297 Wis. 2d 389, 724
N.W.2d 420 (known danger exception applied where the hazards of
conducting an exercise within the confines of a classroom with a
hard tile floor and full of desks was apparent after other
students had previously collided with each other and fallen);
but cf. C.L., 143 Wis. 2d at 723 (known danger exception did not
apply because the potential danger of a parolee attacking a
victim did not rise to "such a degree of probability" that the
parole agent was deprived of the discretion regarding the manner
and level of parole supervision required).
¶72 In order to apply the known danger exception to the
case at hand, the majority opinion must necessarily expand the
exception to apply in situations where the danger was not
necessarily imminent and where there was discretion in how to
respond to the potential danger. The majority opinion concludes
that the known, compelling danger to Lily as a non-swimmer was
that she would drown and that the ministerial duty that arose
from the compelling danger was the administration of a swim
test. Majority op., ¶6. The known danger exception as
previously defined does not apply to the facts of this case.
5
No. 2016AP801.rfd
¶73 First, the danger involved was not compelling and of
such force to give rise to a duty to act. Lily's presence at
the Wiberg Aquatic Center alone did not present a compelling
danger. Stuart Bell, the Playground Coordinator, had taken
campers to the Aquatic Center every Tuesday in the summer for
twelve years. During that time there were only two incidents in
which participants needed lifeguard assistance, with neither
incident resulting in injury. On the date of the incident,
Aquatic Center lifeguards were on duty, New Berlin camp staff
was present, and procedures were in place to allow non-swimmers
like Lily to safely enjoy the trip to the Aquatic Center. No
one saw Lily near the pool which could have created a compelling
danger. As noted by the court of appeals, "[a]ware that Lily
could not swim, if Bell had seen her walking right along the
edge of a deep area of the pool, this case would be akin to Voss
in that a situation would exist that required Bell to take
immediate action to stop an 'accident waiting to happen.'"
Engelhardt v. City of New Berlin, No. 2016AP801, unpublished
slip op., ¶33 (Wis. Ct. App. Oct. 4, 2017). While in hindsight
Lily's drowning can be said to be an "accident waiting to
happen," most cases alleging negligence fit that broad
definition.
¶74 Second, there was discretion as to the mode of
response. The majority opinion defines the immediate action
required to prevent the danger of Lily drowning as a swim test.
A swim test would have revealed that Lily could not swim, a fact
already known by Bell based on a conversation that he had with
6
No. 2016AP801.rfd
Lily's mother the day before the incident. Lily's mother
testified at her deposition that after she informed Bell that
Lily could not swim, Bell's response was: "That's okay. She can
stay in the splash pad area." There were multiple ways that the
New Berlin camp staff could have kept Lily safe at the Aquatic
Center, such as keeping her at the shallow end of the pool or in
the splash pad area, alerting the lifeguards and other camp
staff of her inability to swim, having her wear a lifejacket
and, most importantly, supervising Lily. There was no one time,
mode or occasion for performance to alleviate the risk of Lily
drowning. The facts of this case did not present a known,
present and compelling danger and there was no "self-evident,
particularized, and nondiscretionary" response. Lodl, 253
Wis. 2d 323, ¶40. The known danger exception does not apply.
II. APPLICATION OF WIS. STAT. § 893.80(4)
¶75 Instead of expanding the known danger exception to fit
the facts of this case, allowing for broader future use of what
was intended to be a "narrow, judicially-created exception,"
this court should return to an interpretation that is tethered
to the text of Wis. Stat. § 893.80(4). Lodl, 253 Wis. 2d 323,
¶4. Returning to the text of § 893.80(4) would not only result
in coherency in our jurisprudence, it would also allow redress
7
No. 2016AP801.rfd
to innocent victims for wrongs committed by the government.4 See
Melchert v. Pro Electric Contractors, 2017 WI 30, ¶¶63-65, 374
Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J., dissenting).
¶76 This court recently acknowledged that Wis. Stat.
§ 893.80(4) "is best honored by applying the legislature's
chosen plain language, rather than a judicial distillation
thereof." Showers Appraisals, LLC v. Musson Bros., 2013 WI 79,
¶35, 350 Wis. 2d 509, 835 N.W.2d 226. This court has been
called upon in the past to revisit § 893.80, yet we have been
reluctant to do so. See Melchert, 374 Wis. 2d 439, ¶¶52-65
(R.G. Bradley, J., dissenting); Bostco LLC v. Milwaukee Metro.
Sewerage Dist., 2013 WI 78, ¶136, 350 Wis. 2d 554, 835
N.W.2d 160 (Abrahamson, C.J., dissenting); Scott, 262 Wis. 2d
127, ¶33. The argument for revisiting the standard of
governmental immunity has been made and, through amicus briefs,
the court has heard from governmental entities and
representatives of tort victims. There is no time like the
present.
¶77 It is a fundamental principle of statutory
construction to presume that the legislature's intent is
expressed in the statutory language. State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633,
4
As Justice N. Patrick Crooks noted in his concurrence in
Showers, the court "must do a better job of striking the balance
between too much immunity, which creates a heavy burden for
those who suffer harm from negligent government acts, and too
much liability, which creates a heavy burden for taxpayers."
Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶69, 350
Wis. 2d 509, 835 N.W.2d 226 (Crooks, J., concurring).
8
No. 2016AP801.rfd
681 N.W.2d 110. Statutory interpretation begins with the
language of the statute. Id., ¶45. "Statutory language is
given its common, ordinary, and accepted meaning . . . ." Id.
Where the "meaning of the statute is plain, we ordinarily stop
the inquiry," and decline to consult extrinsic sources of
interpretation. Id. (citations omitted).
¶78 We look then to the common, ordinary and accepted
meaning of the words in Wis. Stat. § 893.80(4). The word
"legislative" means "[o]f, relating to, or involving lawmaking
or the power to enact laws; concerned with making laws."
Legislative, Black's Law Dictionary 1039 (10th ed. 2014). The
word "judicial" means "[o]f, relating to, or involving a
judgment." Judicial, Black's Law Dictionary 974. The word
"quasi" means "[s]eemingly but not actually; in some sense
or degree; resembling; nearly." Quasi, Black's Law Dictionary
1439. A "function" refers to an "[a]ctivity that is
appropriate to a particular business or profession." Function,
Black's Law Dictionary 787. Taken together, § 893.80(4)
provides governmental immunity only for agents or employees of a
governmental entity who are engaged in an act that, in some
sense or degree, resembles making laws or exercising judgments
related to government business.
¶79 Applying the plain language of Wis. Stat. § 893.80(4)
to the facts in this case, the New Berlin camp staff was
provided with "Staff Guidelines" which set forth the relevant
expectations of camp staff as follows: "[i]t is your
responsibility to supervise the kids at all times. For example,
9
No. 2016AP801.rfd
during weekly swimming field trips you are to actually watch the
kids in the water by being in the water with them, or by sitting
on the edge of the pool." The guidelines further provided:
"[m]ake sure you know where the kids in your care are at all
times," and, underlined for emphasis, that "[u]nder no
circumstances should kids be left alone."
¶80 While the promulgation of these guidelines would
qualify as a "quasi-legislative" activity of New Berlin, and
thus New Berlin would receive immunity for legal challenges
involving the content of those guidelines, New Berlin is not
immune from suit for its camp staff negligently failing to
supervise Lily in accordance with the guidelines. The
guidelines provided clear instructions to camp staff to "know
where the kids in your care are at all times" and "[u]nder no
circumstances should kids be left alone." When the New Berlin
camp staff failed to supervise Lily as required by the
guidelines, they were not making any laws or exercising any
judgments related to government business. They cannot be said
to have acted in a quasi-legislative or quasi-judicial manner
and therefore governmental immunity does not apply.
III. CONCLUSION
¶81 In sum, although I agree with the majority opinion's
conclusion that New Berlin is not immune from suit for the
negligence of its camp staff, I cannot join the majority opinion
because it expands the known danger exception beyond the
"narrow, judicially-created exception" to confer immunity in
this case. Instead, I return to the plain language of Wis.
10
No. 2016AP801.rfd
Stat. § 893.80(4) and conclude that New Berlin is liable for
Lily's drowning because the negligent supervision of Lily at the
Aquatic Center on July 3, 2012 was not an act done in the
exercise of a quasi-legislative or quasi-judicial function.
¶82 For the foregoing reasons, I concur.
¶83 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and DANIEL KELLY join this concurrence.
11
No. 2016AP801.rfd
1