Eileen W. Legue v. City of Racine ( 2014 )


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    2014 WI 92
    SUPREME COURT             OF    WISCONSIN
    CASE NO.:               2012AP2499
    COMPLETE TITLE:         Eileen W. Legue,
    Plaintiff-Appellant,
    Department of Health and Human Services and
    Farmers
    Insurance Exchange,
    Involuntary-Plaintiffs,
    v.
    City of Racine and Amy L. Matsen,
    Defendants-Respondents.
    ON CERTIFICATION FROM THE COURT OF APPEALS
    OPINION FILED:          July 25, 2014
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:          March 14, 2014
    SOURCE OF APPEAL:
    COURT:               Circuit
    COUNTY:              Racine
    JUDGE:               Charles H. Constantine
    JUSTICES:
    CONCURRED:
    DISSENTED:           ZIEGLER, BRADLEY, ROGGENSACK, JJJ., dissent.
    (Opinion filed.)
    NOT PARTICIPATING:
    ATTORNEYS:
    For the plaintiff-appellant, there were briefs by Timothy
    S.   Knurr        and   Gruber   Law   Offices,   LLC,   Milwaukee,    and   oral
    argument by Timothy S. Knurr.
    For the defendants-respondents, there was a brief by Thomas
    M. Devine,          Anthony P. Hahn,     Jennifer O. Hemmer, and        Hostak,
    Henzl & Bichler, S.C., Racine, and oral argument by Thomas M.
    Devine.
    An amicus curiae brief was filed by J. Michael Riley and
    Axley   Brynelson,   LLP,   Madison,   on   behalf   of   the   Wisconsin
    Association for Justice.
    2
    
    2014 WI 92
                                                                NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.    2012AP2499
    (L.C. No.   2011CV2090)
    STATE OF WISCONSIN                        :            IN SUPREME COURT
    Eileen W. Legue,
    Plaintiff-Appellant,
    Department of Health and Human Services and
    Farmers Insurance Exchange,                                      FILED
    Involuntary-Plaintiffs,
    JUL 25, 2014
    v.
    Diane M. Fremgen
    Clerk of Supreme Court
    City of Racine and Amy L. Matsen,
    Defendants-Respondents.
    APPEAL from a judgment of the Circuit Court for Racine
    County, Charles H. Constantine, Judge.        Reversed and remanded.
    ¶1    SHIRLEY S. ABRAHAMSON, C.J.       This is an appeal from a
    judgment of the circuit court for Racine County, Charles H.
    Constantine, Judge, dismissing the action of Eileen W. Legue,
    No.   2012AP2499
    the plaintiff,1 against the City of Racine and Amy L. Matsen, a
    Racine      police       officer.2     The      court    of    appeals     certified    the
    appeal to this court pursuant to Wis. Stat. § (Rule) 809.61.
    ¶2         This     appeal    originates         from    a    collision     at    an
    intersection in the City of Racine between the plaintiff's car
    and a Racine police car driven by Officer Matsen, the defendant.
    The police car was responding to an emergency dispatch calling
    the officer to the scene of an accident.
    ¶3         The collision of the automobiles presents an issue of
    law at the juncture of Wis. Stat. § 893.80 (2011-12),3 governing
    the    immunity          of    municipal   government          and   its   officers     and
    employees, and Wis. Stat. § 346.03, governing the rules of the
    road for emergency vehicles.
    ¶4         The immunity statute, Wis. Stat. § 893.80(4), declares
    that no suit may be brought against any governmental actor for
    acts       done    in    the   exercise    of       legislative,     quasi-legislative,
    judicial,         or     quasi-judicial    functions.           "These     functions    are
    synonymous with discretionary acts."4                      The law of our state is
    1
    The U.S. Department of Health and Human Services and
    Farmers Insurance Exchange are involuntary plaintiffs. We refer
    only to Eileen W. Legue as the plaintiff for the sake of
    simplicity.
    2
    For the sake of simplicity we refer only to Amy L. Matsen,
    the police officer, as a defendant.
    3
    All subsequent references to the Wisconsin Statutes are to
    the 2011-12 version unless otherwise indicated.
    4
    Willow Creek Ranch, LLC v. Town of Shelby, 
    2000 WI 56
    ,
    ¶25, 
    235 Wis. 2d 409
    , 
    611 N.W.2d 693
    .
    2
    No.     2012AP2499
    clear        that    for      municipal      government            actors         "the     rule     is
    liability——the exception is immunity."5
    ¶5      The statute governing the rules of the road applicable
    to emergency vehicles, Wis. Stat. § 346.03, sets forth statutory
    privileges          of   authorized     emergency             vehicles       to       exempt     their
    operators from certain rules of the road, but also explicitly
    states that an operator of an emergency vehicle is not relieved
    of    the     "duty      to   drive    or     ride       with      due      regard       under     the
    circumstances for the safety of all persons . . . ."                                     Wis. Stat.
    § 346.03(5).
    ¶6      The       appeal   raises       two      issues        of    law.          The     more
    difficult       one       implicates        the       interplay       between          Wis.      Stat.
    §§ 893.80(4) and 346.03(5).                  The appeal raises the question of
    how     to     reconcile       the     statutory         dichotomy          of        discretionary
    immunity       and       ministerial      liability           in   § 893.80(4)            with     the
    statutory       imposition        of    a    duty       on     officers          to    operate      an
    authorized          emergency        vehicle          "with     due        regard        under     the
    circumstances for the safety of all persons" in § 346.03(5).
    "When analyzing and applying Wis. Stat. § 893.80(4), we
    often have used the term 'discretionary' as a shorthand to refer
    to decisions of a governmental entity that are legislative,
    quasi-legislative,   judicial    or   quasi-judicial."   Showers
    Appraisals, LLC v. Musson Bros, 
    2013 WI 79
    , ¶26, 
    350 Wis. 2d 509
    , 
    835 N.W.2d 226
    (citing, inter alia, Willow Creek
    Ranch).
    5
    Holytz v. City of Milwaukee, 
    17 Wis. 2d 26
    , 39, 
    115 N.W.2d 618
    (1962).   See also Lodl v. Progressive N. Ins. Co.,
    
    2002 WI 71
    , ¶22, 
    253 Wis. 2d 323
    , 
    646 N.W.2d 314
    .
    3
    No.    2012AP2499
    ¶7   The issue is phrased by the court of appeals in its
    certification memorandum as a question the case law has left
    open:
    Does governmental immunity apply when someone is
    injured because an officer proceeds against a traffic
    signal as authorized by Wis. Stat. § 346.03(2)(b)
    (2011-12), if the officer slowed the vehicle and
    activated lights and sirens as required by § 346.03(3)
    but nonetheless arguably violated the duty to operate
    the vehicle "with due regard under the circumstances"
    as       required      by       § 346.03(5)? . . . More
    specifically, . . . when, if ever, the "due regard"
    requirement    imposed  by    § 346.03(5)   becomes   a
    "ministerial" obligation, violation of which will
    create an exception to governmental immunity.6
    ¶8   The second issue of law is whether, assuming liability
    for the police officer's alleged negligence, there was credible
    6
    The court of appeals' certification memorandum viewed the
    following question as left open by Brown v. Acuity, 
    2013 WI 60
    ,
    ¶42, 
    348 Wis. 2d 603
    , 
    833 N.W.2d 96
    :
    [D]oes immunity apply if an officer's manner          of
    proceeding against a traffic signal fulfills         the
    ministerial duties of Wis. Stat. § 346.03(2)(b)      and
    (3) (that is, the officer slows the vehicle          and
    activates lights and sirens) but arguably violates   the
    duty to operate the vehicle "with due regard under   the
    circumstances" as required by § 346.03(5)?
    The City of Racine and Amy L. Matsen raised the issue of
    their governmental immunity by a post-verdict motion seeking
    judgment    notwithstanding   the    verdict.       Wis.   Stat.
    § 805.14(5)(b).    A circuit court's order granting a judgment
    notwithstanding the verdict is a ruling on an issue of law. The
    circuit court in effect granted the motion by dismissing the
    action on the ground of governmental immunity.
    4
    No.   2012AP2499
    evidence to support the jury's verdict that the police officer's
    negligence caused the plaintiff's injuries.7
    ¶9     The    first    issue     requires        that     we   interpret      the
    immunity statute and the rules of the road statute and apply
    them to the facts presented.
    ¶10    The plaintiff asserts that the immunity statute does
    not apply to the alleged negligent acts of the police officer in
    failing to keep a proper lookout and failing to maintain a speed
    that allowed for a proper lookout.                In contrast, the defendant
    asserts that the police officer's decisions regarding lookout
    and speed, which the plaintiff alleges are part of the duty of
    "due regard under the circumstances," are instead part of the
    officer's    discretionary      decision         to    enter    the     intersection
    against the red light.         In sum, the officer contends that her
    decisions    regarding      lookout    and       speed,      when     she   proceeded
    through the red light after slowing down with the squad car's
    lights     and    siren    engaged    in     compliance        with     Wis.    Stat.
    § 346.03(2)(b) and (3), were immune discretionary acts.
    ¶11    Both parties rely on Estate of Cavanaugh v. Andrade,
    
    202 Wis. 2d 290
    , 319, 
    550 N.W.2d 103
    (1996), to support their
    respective positions.
    ¶12    The    plaintiff   relies       on   the    following       sentence   in
    Cavanaugh:
    7
    The City of Racine and Amy L. Matsen challenged the jury
    verdict by a motion for directed verdict. The circuit court in
    effect granted the motion.
    5
    No.   2012AP2499
    In sum, despite the general discretionary act immunity
    set forth in § 893.80(4), a negligence action may be
    sustained against an officer involved in a high-speed
    pursuit on the grounds that he or she breached the
    duty to operate the vehicle with "due regard under the
    circumstances" under § 346.03(5).
    
    Cavanaugh, 202 Wis. 2d at 319
    .
    ¶13   The   defendant   relies       on   the   very   next    sentence    in
    Cavanaugh:
    However, the negligent operation under § 346.03(5)
    does not include the discretionary decisions to
    initiate or continue a pursuit; such discretionary
    decisions continue to be afforded immunity under
    § 893.80(4).
    
    Id. ¶14 In
    its certification memorandum, the court of appeals
    pointed out that Cavanaugh instructs that "an officer can be
    liable for negligent driving during an emergency response if
    damages were caused by the officer's negligent operation of the
    vehicle     beyond   the   context     of       the   discretionary       decision
    itself."     Yet this leaves us to puzzle:             Which decisions go to
    negligent operation, and which go to the discretionary decision?
    ¶15   The court of appeals explains this gray area left by
    Cavanaugh as follows:
    When, if ever, does a public officer's obligation to
    operate an emergency vehicle with "due regard under
    the circumstances" under Wis. Stat. § 346.03(5) create
    an exception to the governmental immunity provided by
    Wis. Stat. § 893.80?
    When, if ever, does a public officer's decision to
    violate rules of the road during an emergency trigger
    potential liability for arguable failure to operate
    with "due regard under the circumstances" by making
    that decision?
    6
    No.    2012AP2499
    ¶16    We conclude that the immunity statute does not apply
    in the present case to the police officer's violation of the
    duty    to     operate      the     vehicle        "with     due    regard       under    the
    circumstances."           A contrary outcome would contravene Wis. Stat.
    § 893.80(4) and 346.03(5), public policy, the rules of statutory
    interpretation, and case law.
    ¶17    We further conclude that there was credible evidence
    to support the jury verdict of causal negligence on the part of
    the police officer.
    ¶18    For the reasons set forth, we reverse the judgment of
    the circuit court dismissing the action and remand the matter to
    the circuit court to reinstate the jury verdict.
    ¶19    We reach this conclusion by reasoning as follows:
    I.    We    state    the     facts     and     procedural      posture      of     the
    appeal.
    II.    We       survey    the      current    state    of    the     doctrine      of
    governmental           immunity         governed       by      Wis.        Stat.
    § 893.80(4) to give context for our decision in the
    instant case.
    III.       We     state      and      apply    the     rules       of     statutory
    interpretation            to     Wis.        Stat.     § 893.80(4)           and
    § 346.03(5).
    IV.    We       scrutinize      our    case    law,   especially         Estate     of
    Cavanaugh v. Andrade, 
    202 Wis. 2d 290
    , 
    550 N.W.2d 103
    (1996), for principles guiding our understanding of
    the       interplay        of    Wis.        Stat.    §§ 893.80(4)           and
    346.03(5),           the         distinction          between          immune
    7
    No.     2012AP2499
    discretionary        and    non-immune         ministerial           acts   under
    Wis. Stat. § 893.80(4), and the nature of the duty of
    "due regard" in Wis. Stat. § 346.03(5).
    V.   Upon    holding      that    immunity         does     not    apply     in    the
    instant     case,     we     search         the     record     for     credible
    evidence to support the jury verdict that the police
    officer's      alleged            negligent           acts      caused        the
    plaintiff's injury.
    ¶20   For the reasons set forth, we reverse the judgment of
    the circuit court dismissing the action and remand the matter to
    the circuit court to reinstate the jury verdict.
    I
    ¶21   The    facts   and    procedural            history    of     this     case   are
    undisputed for purposes of this appeal.
    ¶22   On July 27, 2009, Police Officer Amy Matsen responded
    to   a    dispatch     calling      her    to        the   scene    of   a   motor     vehicle
    accident with unknown injuries.                      She engaged in a full emergency
    response, activating her lights and siren in the squad car and
    exceeded the speed limit.
    ¶23   At    around   noon,        she       was   proceeding        northbound       on
    Douglas Avenue in the City of Racine at a high rate of speed,
    occasionally using the car's bullhorn.
    ¶24   As she approached the intersection of Douglas Avenue
    and South Street, she observed the red light and slowed her car
    to 27 miles per hour.              The posted speed limit was 30 miles per
    hour.      Northbound traffic was stopped at the light.                         The officer
    maneuvered her car around the traffic stopped at the light and
    8
    No.       2012AP2499
    into    the    southbound         lanes       of       Douglas    Avenue     to     enter      the
    intersection.
    ¶25    Before impact, the officer saw another vehicle turn
    from the eastbound lane of South Street onto the southbound lane
    of   Douglas       Avenue.        The     officer        testified     that       she    had    to
    maneuver her car to avoid the turning car.
    ¶26    When the officer's car entered the intersection, the
    plaintiff's car was eastbound on South Street at 30 miles per
    hour.    Eastbound traffic, including the plaintiff, had a green
    light.       The plaintiff did not slow down when she entered the
    intersection.            The     plaintiff's           radio    was   on;    the    car's      air
    conditioning        was    on;    and     the      car    windows     were    closed.          The
    plaintiff         did    not     see    the     officer's         vehicle     or    hear       the
    officer's siren or horn.
    ¶27    A    KFC    store        sits   on       the     southwest     corner      of    the
    intersection.            Both parties stipulated that the store blocked
    the view of cars entering the intersection.                           The plaintiff's car
    would not have been visible to the officer and the officer's car
    would not have been visible to the plaintiff until about two
    seconds before the collision occurred.
    ¶28    When        both     cars       entered           the   intersection,            the
    plaintiff's vehicle struck the driver's side of the officer's
    vehicle.      The collision was recorded by a dash-mounted camera in
    the squad car.
    ¶29    Both the plaintiff and the officer were injured.                                 The
    plaintiff brought suit against the police officer and the City
    of Racine for injuries sustained.
    9
    No.    2012AP2499
    ¶30    At     trial,   the    police       officer    conceded       that     she
    considered   it    necessary     to    check     for   pedestrians       and    other
    vehicles and travel at a reasonable speed to make observations
    about traffic, in order to properly exercise her duty of care.
    ¶31    Additionally,       the     parties    stipulated   that       City     of
    Racine    Police    Department        Policy     and   Procedure     Number       812
    dictates the requirements of an officer in responding to an
    emergency request.     The policy reads in relevant part:
    POLICY:
    The operator of an emergency vehicle shall insure that
    he or she has due regard for the safety of all
    occupants of his or her vehicle as well as the safety
    of pedestrians and occupants of other vehicles.
    PROCEDURE:
    When responding to an emergency call or actively
    involved in a pursuit, the following requirements must
    be complied with:
    1. Use emergency lights and siren simultaneously
    and continuously.
    2. At all times, comply with the requirements of
    Wisconsin State Statute [Section] 346.03 relative
    to the giving of audible and visual signals (sub.
    3).
    a. The emergency vehicle operator may exceed
    the speed limit without giving audible and
    visual    signals   under    the   following
    circumstances (sub. 4):
    1) While obtaining evidence of a speed
    violation
    2) When responding to a call which
    he/she reasonably believes involves a
    felony   in  progress   and   reasonably
    believes any of the following:
    10
    No.   2012AP2499
    a) Knowledge of his/her presence
    may endanger the safety of a
    victim or other person.
    b) Knowledge of his/her         presence
    may cause the suspected         violator
    to evade apprehension.
    c) Knowledge of his/her presence
    may cause the suspected violator
    to destroy evidence of a suspected
    felony or may otherwise result in
    the   loss   of   evidence  of   a
    suspected felony.
    d) Knowledge of his/her presence
    may cause the suspected violator
    to cease the commission of a
    suspected   felony   before   he/she
    obtains   sufficient   evidence   to
    establish grounds for arrest.
    . . . .
    5. Keep in mind that the exemptions granted above
    do not relieve department members from the duty
    to drive with due regard under the circumstances
    for the safety of all persons, taking into
    consideration:
    a. The type, actions        and   speed    of   the
    vehicle being pursued;
    b. The geographic area of pursuit and its
    population density;
    c. The time of day and day of week;
    d. The vehicular      and   pedestrian     traffic
    present in area;
    e. The road and weather conditions;
    f. The officer's familiarity with the area
    of pursuit.
    6.   Although  the   conditions  are   identified
    individually, each can have an impact on another;
    therefore, the totality of the circumstances
    11
    No.    2012AP2499
    should be considered. Their value for decision-
    making purposes is enhanced when considered in
    combination.
    ¶32   The    jury   returned        a     special      verdict,      finding    that,
    inter   alia:      (1)    the      defendant         was    causally      negligent     with
    regard to the operation of her motor vehicle; (2) the plaintiff
    was causally negligent with regard to the operation of her motor
    vehicle; and (3) the defendant and the plaintiff were each fifty
    percent causally negligent.                   The jury awarded damages to the
    plaintiff in the amount of $129,799.72.                          The police officer did
    not seek damages in the present case.
    ¶33   After the verdict was returned, the officer brought a
    motion for judgment notwithstanding the verdict asserting the
    officer's      immunity      and     a    motion           for    a     directed    verdict
    challenging, inter alia, the jury's finding of the defendant's
    causal negligence.
    ¶34   On     the    motion         for        judgment       notwithstanding       the
    verdict, the circuit court ruled as a matter of law that because
    the   police     officer's      decision        to    enter       the   intersection     was
    discretionary, all her other allegedly negligent decisions were
    part of her discretionary decision and immune from suit.                             On the
    motion for a directed verdict, the circuit court ruled that the
    police officer had a duty to exercise due regard but that in the
    instant case the police officer's negligence was not causal.
    II
    ¶35   The instant case requires us to survey the current
    state of the doctrine of governmental immunity governed by Wis.
    Stat. § 893.80 to give context for our decision.
    12
    No.   2012AP2499
    ¶36     Prior to 1961, the common law doctrine of governmental
    immunity    generally   barred    tort      suits   against     a    governmental
    entity.      In Holytz v. City of Milwaukee, 
    17 Wis. 2d 26
    , 
    115 N.W.2d 618
       (1962),   the    court   rejected      the     immunity       doctrine
    outright      for    municipalities         and     stated     a      new      rule:
    "[H]enceforward, so far as governmental responsibility for torts
    is concerned, the rule is liability——the exception is immunity."
    
    Holytz, 17 Wis. 2d at 39
    .        Nevertheless, Holytz declared that a
    municipality is not liable for acts done "in the exercise of its
    legislative or judicial or quasi-legislative or quasi-judicial
    functions."     
    Holytz, 17 Wis. 2d at 40
    .
    ¶37     The Holytz court noted that if the legislature deemed
    it better public policy, the legislature was of course free to
    reinstate immunity.
    ¶38     After   Holytz,   the     legislature      created       Wis.     Stat.
    § 331.43, now numbered § 893.80, setting forth the circumstances
    under which the general rule of governmental liability does not
    apply.8     The statute codified Holytz's exception to municipal
    governmental liability:        Government is immune for acts done in
    the exercise of "legislative, judicial, quasi-legislative, and
    quasi-judicial functions."9
    8
    Ch. 198, Laws of 1963.
    9
    See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee,
    
    2005 WI 8
    , ¶53, 
    277 Wis. 2d 635
    , 
    691 N.W.2d 658
    (recognizing
    that § 893.80 "codified the holding in Holytz regarding immunity
    for legislative, judicial, quasi-legislative, or quasi-judicial
    acts") (citing Lange v. Town of Norway, 
    77 Wis. 2d 313
    , 314-18,
    
    253 N.W.2d 240
    (1977)).
    13
    No.    2012AP2499
    ¶39     Wisconsin   Stat.   § 893.80(4)       (which    is    substantially
    the same as the provision adopted in 1963) presently reads as
    follows:
    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 (emphasis added).
    ¶40     The court has explicated the purpose of the government
    immunity statute as protecting separation of powers and avoiding
    judicial      intrusion   into    the   policy    decisions        of    the   other
    branches.      The court explained:
    The purpose of [governmental] immunity 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.10
    ¶41     The   exceptions    to    municipal     and    employee      immunity
    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.'"11            The threat of liability and
    a   lawsuit    against    governmental       actors   creates      public      policy
    10
    Scarpaci v. Milwaukee County, 
    96 Wis. 2d 663
    , 687, 
    292 N.W.2d 816
    , 827 (1980) (internal quotation marks and citations
    omitted).
    11
    Lodl, 
    253 Wis. 2d 323
    , ¶24 (quoting C.L. v. Olson, 
    143 Wis. 2d 701
    , 710, 
    422 N.W.2d 614
    (1988)).
    14
    No.     2012AP2499
    concerns,    which   governmental     immunity    seeks   to     reduce.       The
    public policy concerns include:
    (1) The danger of influencing public officers in the
    performance of their functions by the threat of a
    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
    These public policy considerations have to be balanced against
    the need to protect the public against the misfortune of being
    injured by a government actor.13
    ¶42    The   court   has   interpreted      the    words    "legislative,
    quasi-legislative, judicial or quasi-judicial functions" in Wis.
    Stat.      § 893.80(4)    to     be        synonymous     with         the    word
    12
    Lodl, 
    253 Wis. 2d 323
    , ¶23 (quoting Lister v. Board of
    Regents, 
    72 Wis. 2d 282
    , 299, 
    240 N.W.2d 610
    (1976)).
    13
    
    C.L., 143 Wis. 2d at 708-09
    .
    15
    No.    2012AP2499
    "discretionary."14    If an act is discretionary, then governmental
    immunity provided by Wis. Stat. § 893.80(4) applies.            There is
    no   immunity,   however,   for   liability   associated       with   "the
    performance of ministerial duties imposed by law."15
    14
    The rule was first announced in Lister v. Board of
    Regents, 
    72 Wis. 2d 282
    , 
    240 N.W.2d 610
    (1976), which stated
    that "the most generally favored principle is that public
    officers are immune from liability for damages resulting from
    their negligence or unintentional fault in the performance of
    discretionary functions." 
    Lister, 72 Wis. 2d at 301
    . The court
    has echoed this notion multiple times.     See, e.g., Lodl, 
    253 Wis. 2d 323
    , ¶21 ("The statute immunizes against liability for
    legislative, quasi-legislative, judicial, and quasi-judicial
    acts, which have been collectively interpreted to include any
    act that involves the exercise of discretion and judgment.");
    Willow Creek Ranch, 
    235 Wis. 2d 409
    , ¶25 ("Under Wis. Stat.
    § 893.80(4), a municipality is immune from 'any suit' for 'acts
    done in the exercise of legislative, quasi-legislative, judicial
    or quasi-judicial functions.'    These functions are synonymous
    with discretionary acts.").
    15
    Brown,   
    348 Wis. 2d 603
    ,    ¶42   (quoting     Lodl,       
    253 Wis. 2d 323
    , ¶24).
    The ministerial duty, according to some case law, is not so
    much   an  exception    as   a   recognition   that   immunity   law
    distinguishes   between    discretionary   and   ministerial   acts,
    immunizing the performance of the former but not the latter.
    See Lodl, 
    253 Wis. 2d 323
    , ¶25.
    16
    No.   2012AP2499
    ¶43     The   court's    explication    and   application   of    the
    doctrine of governmental immunity under Wis. Stat. § 893.80(4)
    has come under increasing criticism by members of the court.16
    ¶44     The criticism came clearly and forcefully to the fore
    in Scott v. Savers Property & Casualty Insurance Co., 
    2003 WI 60
    , 
    262 Wis. 2d 127
    , 
    663 N.W.2d 715
    .
    ¶45     In Scott, a school guidance counselor gave incorrect
    information to a student regarding appropriate classes.               As a
    result the student was ineligible for an athletic scholarship.17
    A majority of the court held that the counselor was immune,
    performing a discretionary act.
    ¶46     The   separate     writings     in    Scott   explore     the
    dissatisfaction surrounding the existing governmental immunity-
    governmental liability doctrines.           See Scott, 
    262 Wis. 2d 127
    ,
    ¶58 (Abrahamson, C.J., concurring) (noting the "jurisprudential
    chaos     surrounding   the   phrase   'legislative,   quasi-legislative,
    judicial or quasi-judicial functions' in § 893.80(4)"); 
    id., ¶62 (Bablitch,
    J., concurring, joined by Crooks, J.) (decrying the
    16
    Commentators have also noted the court's recent criticism
    of the doctrine and have themselves criticized the existing case
    law. See, e.g., Linda M. Annoye, Comment, Revising Wisconsin's
    Government Immunity Doctrine, 88 Marq. L. Rev. 971 (2005)
    (advocating for an additional requirement that a discretionary
    decision be a policy decision to receive immunity); Andrea
    Dudding, Comment, Reining in Municipalities: How To Tame the
    Municipal Immunity Monster in Wisconsin, 
    2004 Wis. L
    . Rev. 1741
    (criticizing the application of governmental immunity to low
    level municipal actors and advocating immunity only for high
    level policy and decision making actors).
    17
    See Scott v. Savers Prop. & Cas. Ins. Co., 
    2003 WI 60
    ,
    
    262 Wis. 2d 127
    , 
    663 N.W.2d 715
    .
    17
    No.    2012AP2499
    existing doctrine as producing "an unjust result" and creating
    "injustice and inequity," and predicting that the doctrine of
    governmental immunity "will not[ ] stand much longer"); 
    id., ¶82 (Prosser,
    J., dissenting) (criticizing the governmental immunity
    doctrine         as    "wrong       and    unjust"     and    "contrary    to    legislative
    intent").             See also          Bostco LLC v. Milwaukee Metro. Sewerage
    Dist., 
    2013 WI 78
    , ¶¶108-109, 
    350 Wis. 2d 554
    , 
    835 N.W.2d 160
    (Gableman, J., concurring) (discretionary immunity has been used
    "to stretch governmental immunity beyond both the text of the
    statute and the Holytz decision" and has "essentially restored
    governmental               immunity");         
    id., ¶¶182-83 (Abrahamson,
              C.J.,
    dissenting,            joined      by    Bradley,      J.)    (criticizing      the    majority
    opinion          for       ruling       that    the    continuation       of     a    nuisance
    constituted            a   ministerial         act,    even    though   the    nuisance      was
    created by a design defect, the design being a discretionary
    immune act).
    ¶47        Some      of   the     criticism      has    centered   on    the    court's
    alleged          rewriting         of    the   statute       by   substituting        the   word
    "discretionary"              for    the    text   of    § 893.80(4),      which       immunizes
    acts        in    the       exercise       of     "legislative,         quasi-legislative,
    judicial or quasi-judicial functions."18                           These critics reason
    that an act may involve an exercise of judgment and discretion
    but is not an exercise of a "legislative, quasi-legislative,
    judicial, or quasi-judicial function."
    18
    See, e.g., Scott, 
    262 Wis. 2d 127
    , ¶¶75-79 (Prosser, J.,
    dissenting).
    18
    No.   2012AP2499
    ¶48     Other criticism has been directed at the case law for
    not        consistently          explaining       the       distinction            between
    discretionary        and    ministerial      acts.      The    test       distinguishing
    between ministerial and discretionary acts has been disparaged
    as too malleable and not consistently applied.
    ¶49     Some cases have defined a discretionary act broadly as
    follows:      "A discretionary act involves the exercise of judgment
    in the application of a rule to specific facts."                            Willow Creek
    Ranch,      L.L.C.    v.     Town    of    Shelby,      
    2000 WI 56
    ,    ¶25,   
    235 Wis. 2d 409
    ,     
    611 N.W.2d 693
    .        Consequently,         one    would    assume
    that a ministerial act, in contrast to a discretionary act, is
    one   that    does    not    involve      the    exercise      of   judgment       in   the
    application of a rule to specific facts.
    ¶50     Other cases appear to set forth a more specific, more
    difficult test to be met for an act to be characterized as
    ministerial:         An act is ministerial if it "is absolute, certain
    and imperative, involving the performance of a specific task
    that the law imposes and defines the time, mode and occasion for
    its performance with such certainty that nothing remains for
    judgment or discretion."19                The court has also stated that a
    "duty      imposed   by    the    statute,      regulation,     or    procedure         must
    conform to all elements of a ministerial duty."20
    19
    Brown, 
    348 Wis. 2d 603
    , ¶43 (quoting 
    Lister, 72 Wis. 2d at 301
    ).    See also Kimps v. Hill, 
    200 Wis. 2d 1
    , 10-11, 
    546 N.W.2d 151
    (1996) (quoting 
    Olson, 143 Wis. 2d at 711-12
    (quoting
    
    Lister, 72 Wis. 2d at 301
    )).
    20
    Brown, 
    348 Wis. 2d 603
    , ¶44 (quoting Yao v. Chapman, 
    2005 WI App 200
    , ¶31, 
    287 Wis. 2d 445
    , 
    705 N.W.2d 272
    ).
    19
    No.    2012AP2499
    ¶51       This    "absolute,    certain   and    imperative"    and   "time,
    mode and occasion" test for a ministerial act has engendered
    disagreement among members of the court regarding its meaning
    and its application.
    ¶52       For example, in Pries v. McMillon, 
    2010 WI 63
    , ¶¶33-
    37, 
    326 Wis. 2d 37
    , 
    784 N.W.2d 648
    , the company's instructions
    for dismantling a horse stall at State Fair Park admonished,
    "[A]lways have someone holding up the piece that you are taking
    down."       The instructions do not state where the piece is to be
    held or how high it is to be held.                     Nevertheless, the court
    ruled that the company's language satisfied the requirements of
    a ministerial duty.
    ¶53       The three-justice dissent asserted that the written
    instructions suffer from "a critical lack of particularity as to
    time, mode and occasion for performance."21
    ¶54       In Cavanaugh, the court noted that although Wis. Stat.
    § 346.03(6) requires law enforcement agencies to provide written
    guidelines, the statute does not specify the time, mode, or
    occasion         for    the   agency   to   provide    the   written   guidelines.
    Nevertheless, Cavanaugh held that the law enforcement agency's
    duty        to    promulgate      guidelines     under       § 346.03(6)     was   a
    ministerial function and that the agency's failure to promulgate
    written guidelines conforming to the statute rendered the agency
    liable.
    21
    Pries v. McMillon, 
    2010 WI 63
    , ¶77, 
    326 Wis. 2d 37
    , 
    784 N.W.2d 648
    (Bradley, J., dissenting, joined by Roggensack, J. &
    Gableman, J.).
    20
    No.    2012AP2499
    ¶55       The        following       functions         have      been        held     to     be
    discretionary           and      thus     immune:       A     school      district         benefit
    specialist         giving         information          to      an     employee            regarding
    employment benefits;22 a University faculty member constructing a
    volleyball        net      base    for    a    physical       education        class;23      and    a
    police officer directing traffic at an intersection when the
    traffic     light          was    not     functioning        despite      mandatory         police
    department protocols for directing traffic.24
    ¶56       Conversely, the following functions have been held to
    be ministerial and not immune:                      A sewer authority's maintenance
    of a sewer system;25 a University of Wisconsin department chair's
    offer      of    employment          to    a    faculty       member;26        a    director       of
    facilities' construction and maintenance of a platform at Camp
    Randall according to safety regulations.27
    ¶57       In the face of the criticisms of and inconsistencies
    in   the    law       of    governmental        immunity,       our    state        nevertheless
    continues        to        operate      under    the        doctrine      of       immunity      for
    discretionary acts and liability for ministerial acts.
    22
    See Kierstyn v. Racine                          Unified        School         Dist.,      
    228 Wis. 2d 81
    , 
    596 N.W.2d 417
    (1999).
    23
    Kimps, 
    200 Wis. 2d 1
    .
    24
    See Lodl, 
    253 Wis. 2d 323
    .
    25
    Milwaukee Metro. Sewerage Dist., 
    277 Wis. 2d 635
    .
    26
    Bicknese             v.    Sutula,      
    2003 WI 31
    ,    
    260 Wis. 2d 713
    ,           
    660 N.W.2d 289
    .
    27
    Umansky v. ABC Ins. Co., 
    2009 WI 82
    , 
    319 Wis. 2d 622
    , 
    769 N.W.2d 1
    .
    21
    No.   2012AP2499
    ¶58        The     parties       frame        their          positions        within     the
    discretionary-ministerial                   dichotomy.              The     plaintiff     contends
    that the duty of the police officer to act with "due regard
    under       the    circumstances,"           under       Wis.       Stat.    § 346.03(5)      is   a
    ministerial             function     that     is     not       immune       under     Wis.    Stat.
    § 893.80(4).             As might be expected, the police officer asserts
    that she was acting in the exercise of a discretionary function
    and is therefore immune from suit.
    ¶59        With this general overview of the current state of the
    doctrine          of     governmental         immunity          governed       by     Wis.    Stat.
    § 893.80(4), we look to the applicable statutes, regulations,
    and   procedures           to   determine          how    to     characterize         the    police
    officer's conduct in the intersection in the present case.
    III
    ¶60        We     turn      to   the        interpretation             of     Wis.     Stat.
    § 893.80(4) and § 346.03(5) and their application to the facts
    of    the     present       case.           Interpretation           and     application      of   a
    statute       is        ordinarily      a     question         of    law     that     this    court
    determines independently but benefiting from the analyses of the
    circuit court and court of appeals.28
    ¶61        We interpret a statute by looking at the text of the
    statute.29         The statutory language is examined within the context
    28
    DOR v. River City Refuse Removal, Inc., 
    2007 WI 27
    , ¶26,
    
    299 Wis. 2d 561
    , 
    729 N.W.2d 396
    .
    29
    Klemm v. Am. Transmission Co., LLC, 
    2011 WI 37
    , ¶18, 
    333 Wis. 2d 580
    , 
    798 N.W.2d 223
    .
    22
    No.   2012AP2499
    in   which    it    is      used.30    Words     are     ordinarily         interpreted
    according to their common and approved usage; technical words
    and phrases and others are ordinarily interpreted according to
    their     technical      meaning.31    Statutes        are       interpreted    to    give
    effect to each word and to avoid surplusage.32                        We interpret a
    statute      by    examining     the   purpose     of        a    statute33     and    the
    consequences of alternative interpretations.34                       We also examine
    30
    Alberte v. Anew Health Care Servs., Inc., 
    2000 WI 7
    , ¶10,
    
    232 Wis. 2d 587
    , 592, 
    605 N.W.2d 515
    ("While it is true that
    statutory interpretation begins with the language of the
    statute, it is also well established that courts must not look
    at a single, isolated sentence or portion of a sentence, but at
    the role of the relevant language in the entire statute.");
    Seider v. O'Connell, 
    2000 WI 7
    6, ¶43, 
    236 Wis. 2d 211
    , 
    612 N.W.2d 659
    (contextual approach is not new); Klemm, 
    333 Wis. 2d 580
    , ¶18 ("The statutory language is examined within the
    context in which it is used.").
    31
    Klemm,         
    333 Wis. 2d 580
    ,     ¶18;      see       also     Wis.      Stat.
    § 990.01.
    32
    See, e.g., Klemm, 
    333 Wis. 2d 580
    , ¶18; Pawlowski v. Am.
    Family Mut. Ins. Co., 
    2009 WI 105
    , ¶22 n.14, 
    322 Wis. 2d 21
    , 
    777 N.W.2d 67
    (citing Donaldson v. State, 
    93 Wis. 2d 306
    , 315, 
    286 N.W.2d 817
    (1980)).
    33
    State v. Hanson, 
    2012 WI 4
    , ¶16, 
    338 Wis. 2d 243
    , 
    808 N.W.2d 390
    ; Klemm, 
    333 Wis. 2d 580
    , ¶18; Lagerstrom v. Myrtle
    Werth Hosp.-Mayo Health Sys., 
    2005 WI 124
    , ¶51, 
    285 Wis. 2d 1
    ,
    
    700 N.W.2d 201
    .
    34
    State v. Hayes, 
    2004 WI 80
    , ¶16, 
    273 Wis. 2d 1
    , 
    681 N.W.2d 203
    ; Teschendorf v. State Farm Ins. Cos., 
    2006 WI 89
    ,
    ¶30, 
    293 Wis. 2d 123
    , 
    717 N.W.2d 258
    (considering "alternative
    interpretation" to evaluate potential absurd results); State v.
    Cole, 
    2003 WI 59
    , ¶66, 
    262 Wis. 2d 167
    , 
    663 N.W.2d 700
    (considering    consequences   of    a    party's    alternative
    interpretation).
    23
    No.    2012AP2499
    our case law interpreting the statute35 and the statutory history
    of the statute to determine its meaning.36
    ¶62    We    look    first     to   the    text   of   the       two    relevant
    statutes.    The most noticeable fact is that the texts of the two
    statutes do not refer to each other.               At first blush, they seem
    to have no relationship to each other at all.
    ¶63    As    we     noted    previously,      immunity      is     granted     in
    § 893.80(4) to governmental actors for acts in the exercise of
    "legislative,      quasi-legislative,           judicial    or    quasi-judicial
    functions," which the court has deciphered as synonymous with a
    wide range of functions which are described as "discretionary."
    ¶64    The    words         "liability,"     "immunity,"          "no     suit,"
    "discretionary,"           "ministerial,"          "legislative,"             "quasi-
    legislative," "judicial" or "quasi judicial" do not appear in
    Wis. Stat. § 346.03.
    35
    Nowell v. City of Wausau, 
    2013 WI 88
    , ¶21, 
    351 Wis. 2d 1
    ,
    
    838 N.W.2d 852
    ; Juneau County Star-Times v. Juneau County, 
    2013 WI 4
    , ¶66, 
    345 Wis. 2d 122
    , 
    824 N.W.2d 457
    ; State v. Davison,
    
    2003 WI 89
    , ¶61, 
    263 Wis. 2d 145
    , 
    666 N.W.2d 1
    .
    36
    "Statutory history encompasses the previously enacted and
    repealed provisions of a statute. By analyzing the changes the
    legislature has made over the course of several years, we may be
    assisted in arriving at the meaning of a statute. Therefore,
    statutory history is part of the context in which we interpret
    the words used in a statute." Richards v. Badger Mut. Ins. Co.,
    
    2008 WI 52
    , ¶22, 
    309 Wis. 2d 541
    , 
    749 N.W.2d 581
    (citations
    omitted). See, e.g., LaCount v. Gen. Cas. Co., 
    2006 WI 14
    , ¶31,
    
    288 Wis. 2d 358
    , 
    709 N.W.2d 418
    ; VanCleve v. City of Marinette,
    
    2003 WI 2
    , ¶6, 
    258 Wis. 2d 80
    , 
    655 N.W.2d 113
    ; State v. Byers,
    
    2003 WI 86
    , ¶¶22-27, 
    263 Wis. 2d 113
    , 
    665 N.W.2d 729
    ; Hughes v.
    Chrysler Motors Corp., 
    197 Wis. 2d 973
    , 980-84, 
    542 N.W.2d 148
    (1996).
    24
    No.        2012AP2499
    ¶65    Wisconsin        Stat.      § 346.03        lays       out            various
    circumstances under which an operator of an authorized emergency
    vehicle may exercise a "privilege" set forth in the section.
    The "privileges" exempt an operator of an authorized emergency
    vehicle   from     complying    with     certain       rules     of        the    road,
    including:    stopping, standing, or parking; proceeding past a
    red or stop signal or stop sign; exceeding the speed limit; and
    leaving   doors    of   a   parked   vehicle      open.        Exercising         these
    privileges   is,   however,    subject      to   the   conditions          stated     in
    § 346.03 (2) to (5m).
    ¶66    Section 346.03 reads in full as follows:
    (1) The operator of an authorized emergency vehicle,
    when responding to an emergency call or when in the
    pursuit of an actual or suspected violator of the law,
    when responding to but not upon returning from a fire
    alarm,   when   transporting  an   organ   for   human
    transplantation,    or   when   transporting   medical
    personnel for the purpose of performing human organ
    harvesting or transplantation immediately after the
    transportation, may exercise the privileges set forth
    in this section, but subject to the conditions stated
    in subs. (2) to (5m).
    (2) The operator of an authorized emergency vehicle
    may:
    (a)   Stop,  stand   or  park,               irrespective         of     the
    provisions of this chapter;
    (b) Proceed past a red or stop signal or stop sign,
    but only after slowing down as may be necessary for
    safe operation;
    (c) Exceed the speed limit;
    (d) Disregard regulations governing direction                                of
    movement or turning in specified directions.
    25
    No.   2012AP2499
    (2m) Notwithstanding s. 346.94(20), a law enforcement
    officer,   a  fire   fighter,  or  emergency  medical
    personnel may open and leave open any door of an
    authorized emergency vehicle when the vehicle is
    stopped, standing, or parked and the person is
    performing official duties.
    (3)   The  exemption   granted  the   operator  of  an
    authorized emergency vehicle by sub. (2)(a) applies
    only when the operator of the vehicle is giving visual
    signal by means of at least one flashing, oscillating
    or rotating red light except that the visual signal
    given by a police vehicle may be by means of a blue
    light and a red light which are flashing, oscillating
    or rotating, except as otherwise provided in sub.
    (4m). The exemptions granted by sub. (2)(b), (c) and
    (d) apply only when the operator of the emergency
    vehicle is giving both such visual signal and also an
    audible signal by means of a siren or exhaust whistle,
    except as otherwise provided in sub. (4) or (4m).
    (4) Except as provided in sub. (4m), a law enforcement
    officer operating a police vehicle shall otherwise
    comply with the requirements of sub. (3) relative to
    the giving of audible and visual signals but may
    exceed the speed limit without giving audible and
    visual signal under the following circumstances:
    (a) If the officer is obtaining evidence of a speed
    violation.
    (b) If the officer is responding to a call which the
    officer reasonably believes involves a felony in
    progress and the officer reasonably believes any of
    the following:
    1. Knowledge of the officer's presence may endanger
    the safety of a victim or other person.
    2. Knowledge of the officer's presence may cause the
    suspected violator to evade apprehension.
    3. Knowledge of the officer's presence may cause the
    suspected violator to destroy evidence of a suspected
    felony or may otherwise result in the loss of evidence
    of a suspected felony.
    26
    No.   2012AP2499
    4. Knowledge of the officer's presence may cause the
    suspected violator to cease the commission of a
    suspected felony before the officer obtains sufficient
    evidence to establish grounds for arrest.
    (4m) A law enforcement officer operating a police
    vehicle that is a bicycle is not required to comply
    with the requirements of sub. (3) relative to the
    giving of audible and visual signals.
    (5) The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive or ride
    with due regard under the circumstances for the safety
    of all persons nor do they protect such operator from
    the consequences of his or her reckless disregard for
    the safety of others.
    (5m) The privileges granted under this section apply
    to the operator of an authorized emergency vehicle
    under s. 340.01(3)(dg) or (dh) only if the operator
    has successfully completed a safety and training
    course in emergency vehicle operation that is taken at
    a technical college under ch. 38 or that is approved
    by the department and only if the vehicle being
    operated is plainly marked, in a manner prescribed by
    the department, to identify it as an authorized
    emergency vehicle under s. 340.01(3)(dg) or (dh).
    (6) Every law enforcement agency that uses authorized
    emergency vehicles shall provide written guidelines
    for its officers and employees regarding exceeding
    speed limits under the circumstances specified in sub.
    (4) and when otherwise in pursuit of actual or
    suspected violators.    The guidelines shall consider,
    among other factors, road conditions, density of
    population, severity of crime and necessity of pursuit
    by vehicle.     The guidelines are not subject to
    requirements for rules under ch. 227.        Each law
    enforcement agency shall review its written guidelines
    by June 30 of each even-numbered year and, if
    considered appropriate by the law enforcement agency,
    shall revise those guidelines.
    ¶67   In   contrast   to   the   other   subsections'   exemption    of
    emergency vehicle operators from compliance with certain rules
    27
    No.   2012AP2499
    of the road, subsection (5) of Wis. Stat. § 346.03 imposes a
    duty    on   an     operator   of   an    authorized        emergency    vehicle.
    Subsection (5) states that the exemptions from the rules of the
    road granted an operator of an authorized emergency vehicle "do
    not relieve the operator from the duty to drive or ride with due
    regard under the circumstances for the safety of all persons and
    do not protect the operator from the consequences of his or her
    reckless disregard for the safety of others."
    ¶68   Thus,    § 346.03(5), as         the   court     of   appeals     has
    explained, "qualifies the privileges granted by secs. 346.03(1)
    to (4)."37     Subsection (5) does not, however, explicitly impose
    liability on a governmental actor.
    ¶69   That Wis. Stat. § 346.03(5) is to be interpreted as
    imposing liability on a governmental actor is supported by the
    text of Wis. Stat. § 346.03(5) imposing a duty of due regard, in
    the context of the exemption/privilege language of the other
    provisions of § 346.03.        This language leads us to conclude that
    an exemption or privilege begets immunity and a duty begets
    liability.        Why would the legislature exempt an operator of an
    authorized emergency vehicle from complying with certain rules
    37
    City of Madison v. Polenska, 
    143 Wis. 2d 525
    , 527, 
    421 N.W.2d 862
    , 863 (Ct. App. 1988).
    28
    No.   2012AP2499
    of the road and impose a duty of due regard unless a violation
    of the duty can result in liability?38
    ¶70    Our case law has interpreted Wis. Stat. § 346.03(5) as
    providing    a    cause    of   action     arising     out    of    a   breach   of   an
    emergency vehicle operator's duty created by the statute.                          See,
    e.g.,     Brown    v.     Acuity,   
    2013 WI 60
    ,    
    348 Wis. 2d 603
    ,       
    833 N.W.2d 96
    ; Cavanaugh, 
    202 Wis. 2d 290
    ; see also Montalto v. Fond
    du Lac Cnty., 
    272 Wis. 552
    , 
    76 N.W.2d 279
    (1956) (holding that a
    negligence       action    could    be   sustained         based   on   an    ambulance
    operator's failure to exercise due regard                         for the safety of
    others).
    ¶71    The statutory history of Wis. Stat. § 346.03(5) also
    supports this interpretation.
    ¶72    In 1915, the legislature exempted police officers from
    automobile regulations and rules of the road when the police
    officers were pursuing violators of the automobile code, but did
    not explicitly provide for the police officer's liability.39
    ¶73    In Suren v. Zuege, 
    186 Wis. 264
    , 
    201 N.W. 722
    (1925),
    the court interpreted the statute as rendering a police officer
    38
    See Candee v. Egan, 
    84 Wis. 2d 348
    , 357, 
    267 N.W.2d 890
    (1978) ("Even though a statute does not expressly provide a
    civil remedy for those injured by its violation, this court will
    imply such a remedy if it concludes that the legislature
    intended such a remedy to exist.").
    39
    Section 1, ch. 511, Laws of 1915 provided:     "Any police
    officer of any city, county, town or village shall be exempt
    from [the sections of the code regarding auto regulation], while
    actually in pursuit of and attempting to apprehend a person who
    is violating any of the provisions of these sections."
    29
    No.   2012AP2499
    liable for breach of the duty of ordinary care for the safety of
    others and himself, stating:
    This statutory exemption . . . while rendering [the
    officer] immune from prosecution or preventing the
    application of the rule that such excess of speed may
    establish a prima facie presumption of negligence,
    does not absolve [the officer] from the duty to
    exercise that which, under those circumstances and
    conditions, is reasonable and ordinary care for the
    safety of others and himself.
    
    Suren, 186 Wis. at 267
    (emphasis added).
    ¶74    In its revision of the automobile code in 1929, the
    legislature     adopted   an   explicit   provision   that   the   emergency
    vehicle operator is not protected from the consequences of a
    reckless disregard for the safety of others.40
    ¶75    In the same 1929 legislation, the legislature exempted
    operators of emergency vehicles from speed restrictions.41                In
    1947, the legislature amended the speed limit statute to state
    that    the   exemption   from   speed    limits   does   not   relieve   an
    40
    Section 3, ch. 454, Laws of 1929, codified at Wis. Stat.
    § 85.12(5) (1929), provides in relevant part:
    (5) EXEMPTIONS TO AUTHORIZED EMERGENCY VEHICLES.    The
    provisions of said sections regulating the movement,
    parking and standing of vehicles shall not apply to
    authorized emergency vehicles while the operator of
    such vehicle is operating the same in an emergency in
    the necessary performance of public duties.        This
    exemption shall not, however, protect the operator of
    any such vehicle from the consequence of a reckless
    disregard for the safety of others (emphasis added).
    41
    "The speed limitations set forth in section 85.40 shall
    not apply to authorized emergency vehicles when operating in
    emergencies."   § 3, ch. 454, Laws of 1929, codified as Wis.
    Stat. § 85.42 (1929).
    30
    No.    2012AP2499
    operator of an authorized emergency vehicle from either the duty
    to operate with "due regard" for the safety of all persons using
    the   highway,    nor   shall    it    protect   the   operator    from    the
    consequence of a reckless disregard of the safety of others.42
    ¶76   Thus, even in the pre-Holytz era, authorized emergency
    vehicle operators who were exempt from obeying certain traffic
    laws were nonetheless "bound to exercise reasonable precautions
    against the extraordinary dangers of the situation which duty
    compels them to create."        
    Montalto, 272 Wis. at 558
    .
    ¶77   In   Montalto,   the      court   concluded   that    Wis.    Stat.
    §§ 85.12(5) and 85.40(5) (1953) could be the basis of an action
    against the operator of an emergency vehicle:
    The right of way given to public service vehicles and
    their exemption from traffic regulations, however, do
    not   relieve  their  operators  from   the   duty of
    exercising due care to prevent injury to themselves
    and others lawfully upon the ways.     Although it is
    generally recognized that firemen driving to a fire,
    42
    Section 1, ch. 407, Laws of 1947, codified as Wis. Stat.
    § 85.40(5) (1947), provides as follows:
    (5) The speed limitations set forth in this section
    shall not apply to authorized emergency vehicles when
    responding to emergency calls and the operators
    thereof sound audible signal by siren or exhaust
    whistle, and when such emergency vehicle is equipped
    with at least one lighted lamp exhibiting red light
    visible under normal atmospheric conditions from a
    distance of 500 feet to the front of such vehicle.
    This provision shall not relieve the operator of an
    authorized emergency vehicle from the duty to operate
    with due regard for the safety of all persons using
    the highway, nor shall it protect the operator of any
    such vehicle from the consequence of a reckless
    disregard of the safety of others (emphasis added).
    31
    No.   2012AP2499
    when the safety of lives and property are at stake,
    are in many instances duty bound to proceed at a rate
    of speed greater than that which any ordinary driver
    could justify and cannot be required to stop for red
    lights or other traffic signals, they must include in
    the care they are bound to exercise reasonable
    precautions against the extraordinary dangers of the
    situation which duty compels them to create.     They
    must keep in mind the speed at which their vehicle is
    traveling and the probable consequences of their
    disregard of traffic signals . . . .
    
    Montalto, 272 Wis. at 558
    (quoting Russell v. Nadeau, 
    29 A.2d 916
    , 917 (Me. 1943)).
    ¶78   In 1957, the legislature enacted a new vehicle code,
    codifying the new rules of the road in Wis. Stat. Chapter 346
    (1957) and adopting a provision substantially the same as the
    present § 346.03(5).
    ¶79   Section 1, ch. 260, Laws of 1957, codified at Wis.
    Stat. § 346.03(5) (1957), provides in relevant part:
    (5) The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive with due
    regard under the circumstances for the safety of all
    persons nor do they protect such operator from the
    consequences of his reckless disregard for the safety
    of others.
    ¶80   The 1957 Legislative Council note to ch. 260, Laws of
    1957, also supports our interpretation of Wis. Stat. § 346.03(5)
    as creating liability:
    Subsection (5) makes clear that the operator of an
    authorized emergency vehicle is not relieved of the
    duty to drive with due care. This is the rule
    applicable under the present law with respect to
    violation of the speed law . . . but § 85.12(5) seems
    to make the operator of an authorized emergency
    vehicle liable for his negligence in the case of
    disregard of other rules of the road only if such
    32
    No.    2012AP2499
    negligence amounts to a reckless disregard of the
    safety of others.      The Supreme Court so held in
    Montalto v. Fond du Lac County, 
    272 Wis. 2d 442
    , 
    76 N.W.2d 279
    (1956). There is no logical basis for this
    distinction and it has been eliminated.
    Wisconsin Annotations 1804 (1960).
    ¶81   In Cavanaugh, 
    202 Wis. 2d 290
    , the court held that the
    standard for operating an authorized emergency vehicle "with due
    regard under the circumstances for the safety of all persons" is
    a negligence standard.         
    Cavanaugh, 202 Wis. 2d at 316
    .
    ¶82   Thus, the statutory history of Wis. Stat. § 346.03(5)
    supports our interpretation that it is a liability statute.
    ¶83   Our    interpretation       of   the     language     and       statutory
    history      of    Wis.   Stat.     § 346.03(5)      as   a    liability       statute
    dovetails with § 893.80(5), a subsection of the immunity statute
    that we have not previously discussed.
    ¶84   The    legislature      affirmed   in    Wis.      Stat.    § 893.80(5)
    that    statutes     other   than    § 893.80     might   govern        liability    of
    governmental actors.         The legislature declared in subsection (5)
    of § 893.80 that "[w]hen rights or remedies are provided by any
    other    statute     against      any   [governmental         actor]    for    injury,
    33
    No.   2012AP2499
    damage or death, such statute shall apply and the limitations in
    sub. (3) [referring to caps on damages] shall be inapplicable."43
    ¶85    Wisconsin      Stat.      § 893.80(5)       provides       in    full   as
    follows:
    Except as provided in this subsection, the provisions
    and limitations of this section shall be exclusive and
    shall apply to all claims against a volunteer fire
    company    organized   under    ch.   213,    political
    corporation, governmental subdivision or agency or
    against any officer, official, agent or employee
    thereof for acts done in an official capacity or the
    course of his or her agency or employment.         When
    rights or remedies are provided by any other statute
    against   any   political   corporation,   governmental
    subdivision or agency or any officer, official, agent
    or employee thereof for injury, damage or death, such
    statute shall apply and the limitations in sub. (3)
    shall be inapplicable (emphasis added).
    ¶86    This       language    makes        clear   that     the     legislature
    envisioned      the    possibility    that      other   statutes       might   create
    rights     or    remedies      that     plaintiffs       can     pursue        against
    governmental          actors      despite        Wis.    Stat.         § 893.80(4)'s
    codification      of    immunity     for    legislative,       quasi-legislative,
    judicial, or quasi-judicial acts.
    43
    The court has interpreted the last sentence to refer
    specifically to the applicability of damage caps and not to
    other subsections of § 893.80.     "[Section] 893.80(5), Stats.,
    only directs that when a claim is based on another statute, the
    damage limitations of sec. 893.80(3) do not apply.       Section
    893.80(5) does not say that the notice provisions of sec.
    893.80(1) do not apply."        DNR v. City of Waukesha, 
    184 Wis. 2d 178
    , 192-93, 
    515 N.W.2d 888
    , 893-94 (1994), abrogated on
    other grounds by State ex rel. Auchinleck v. Town of LaGrange,
    
    200 Wis. 2d 585
    , 
    547 N.W.2d 587
    (1996).
    34
    No.   2012AP2499
    ¶87    Our        rules     of     statutory         interpretation         regarding
    surplusage     militate         in     favor       of     interpreting       Wis.        Stat.
    § 346.03(5) as imposing liability on the officer in the instant
    case for failure to exercise due regard.
    ¶88    The     defendant         police       officer    in   the     present        case
    invites us to view Wis. Stat. § 346.03(5) and its "due regard"
    requirement as a "vague suggestion."44                       Yet the statute is not
    vague in its imposition of duty:                    The section "does not relieve
    [the] operator from the duty" of due regard.                         The defendant is
    asking us to read the mandate of § 346.03(5) out of the statute
    entirely.
    ¶89    The     defendant         police       officer       further     avers        that
    because she met the requirements of Wis. Stat. § 346.03(2)(b)
    and § 346.03(3), that is, she slowed her vehicle and activated
    her lights and siren, the duty of "due regard" was already met.45
    ¶90    Reading compliance with Wis. Stat. § 346.03(2)(b) and
    § 346.03(3)       as     meeting       the     due      regard     standard,        as    the
    defendants     urge,           ignores       the        language    of      § 346.03(5).
    Subsection (5) explicitly states that the duty of due regard
    exists    notwithstanding         the    other       exemptions     or   privileges         in
    § 346.03:    "The       exemptions       granted . . . by          [§ 346.03]       do     not
    relieve such operator from the duty to drive or ride with due
    44
    Brief of Defendants-Respondents at 18.
    45
    The court of appeals asks in its certification memorandum
    whether compliance with the slow-down and lights-and-sirens
    requirements are sufficient to demonstrate "due regard" in the
    instant case.
    35
    No.    2012AP2499
    regard    under        the     circumstances           for        the     safety       of     all
    persons . . . ."        The text of § 346.03(5) envisions "due regard"
    as a standard of care existing independently of the exemptions
    granted by § 346.03.
    ¶91     A holding adopting the police officer’s interpretation
    that compliance with the exemptions or privileges authorized in
    § 346.03 meets the duty of "due regard" under § 346.03(5) would
    treat the language of (5) as surplusage.                           Such a holding would
    do exactly what the statute forbids, namely it would relieve the
    operator of this duty.           We decline to do so.
    ¶92     To    be    true     to   Wis.     Stat.        § 893.80(4)         and    (5)    and
    § 346.03(5),      and    the     rules        of    statutory       interpretation,            we
    conclude that the police officer in the instant case who is
    alleged    to    have        breached    the        duty     of    "due        regard"      under
    § 346.03(5) is not immune from suit under § 893.80(4).
    IV
    ¶93     We    turn        now     from         applying       rules        of     statutory
    interpretation to scrutinizing our case law, especially Estate
    of Cavanaugh v. Andrade, 
    202 Wis. 2d 290
    , 
    550 N.W.2d 103
    (1996),
    for principles guiding our understanding of the interplay of
    Wis. Stat. § 893.80(4) and § 346.03(5), the distinction between
    immune discretionary and non-immune ministerial acts under Wis.
    Stat.     § 893.80(4),         and      the        nature     of        "due     regard"      in
    § 346.03(5).
    ¶94     At    first       glance,     the       question       whether          Wis.    Stat.
    § 893.80(4),      the     immunity       statute,          bars    claims        brought      for
    breach of an emergency vehicle operator's duty of "due regard
    36
    No.    2012AP2499
    under the circumstances" appears to be resolved by Cavanaugh.                              A
    closer inspection reveals that it is not.
    ¶95     The Cavanaugh court declared, as we noted previously,
    that "despite the general discretionary act immunity set forth
    in § 893.80(4), a negligence action may be sustained against an
    officer involved in a high-speed pursuit on the grounds that he
    or she breached the duty to operate the vehicle with 'due regard
    under   the    circumstances'            under       § 346.03(5)."       
    Cavanaugh, 202 Wis. 2d at 319
    .
    ¶96     The dilemma presented by the Cavanaugh opinion is that
    it distinguishes the discretionary decision to pursue (entitled
    to   immunity       under    Wis.       Stat.    § 893.80(4))       from    the   physical
    operation      of    the     vehicle         (not     entitled    to    immunity     under
    § 893.80(4)) without clarifying which acts are included in the
    decision      to    pursue       and    which    acts     are    included     within     the
    physical operation of the vehicle.
    ¶97     The police officer contends that her lookout and speed
    were part and parcel of her decision to proceed through the red
    light, after slowing down with the police car's lights and siren
    engaged pursuant to Wis. Stat.                       § 346.03(2)(b) and (3).             The
    decision to proceed, the officer reasons, was a discretionary
    act and thus her lookout and speed were subject to immunity akin
    to   the    decision        to    engage      and      persist   in    pursuit      in   the
    Cavanaugh case.
    ¶98     In    contrast,          the   plaintiff     argues      that   the   police
    officer's negligence, such as the officer's failure to keep a
    lookout, goes to the "physical operation of the vehicle."
    37
    No.    2012AP2499
    ¶99    We first examine Cavanaugh more closely to distill its
    teachings.         We    then        turn   to       a    closer     examination       of   the
    discretionary-ministerial dichotomy in Cavanaugh.
    A
    ¶100 First,       the        facts   and      reasoning       of    Cavanaugh.        In
    Cavanaugh, a driver pursued by a police officer in a high-speed
    pursuit collided with another car, killing the victim.                                      The
    victim's estate brought an action against the officer, the city,
    and the other driver for their negligence.                               The estate alleged
    that    the   officer         was    negligent       in     failing       to   terminate    the
    pursuit      and   negligent         with   respect         to     the    operation    of   the
    vehicle, contrary to the "due regard" standard under Wis. Stat.
    § 346.03(5).            The     estate      also         alleged    that       the   city   was
    negligent in failing to provide adequate guidelines for high-
    speed chases, contrary to Wis. Stat. § 346.03(6).                                    The jury
    found the officer and the city each partially negligent and
    awarded damages to the victim.46
    ¶101 In motions for judgment notwithstanding the verdict,
    the officer and the city each raised claims of immunity.                                    The
    circuit court denied both claims, holding that the officer and
    the city were not immune.                   The court of appeals reversed the
    circuit court, holding that the city was immune but the officer
    was not.
    46
    The jury found the other driver 75 percent negligent, the
    officer 2 percent negligent, and the city 23 percent negligent.
    
    Cavanaugh, 202 Wis. 2d at 297
    .
    38
    No.    2012AP2499
    ¶102 This   court      reversed      the     court      of    appeals,      holding,
    inter alia:
    1) The city had a ministerial duty to create guidelines
    pursuant to Wis. Stat. § 346.03(6) and was not immune
    from suit for its negligence in failing to adopt such
    guidelines;
    2) The officer's decision to initiate and continue the
    high-speed pursuit was discretionary and the officer
    was immune from liability for his alleged negligent
    speed; and
    3) A suit for negligence may be maintained against an
    officer        engaged          in           a       high-speed         pursuit
    notwithstanding the immunity statute if the officer's
    operation of the vehicle breaches the statutory duty
    of "due regard."47
    ¶103 With     regard    to     the        first       holding,     the     Cavanaugh
    majority declared that Wis. Stat. § 346.03(6), which requires
    law   enforcement    agencies      to    create     guidelines,          established      a
    ministerial   duty.          The   Cavanaugh            court      reasoned      that   the
    statutory mandate that the law enforcement agency "shall provide
    written    guidelines"       and   "shall         consider"           specific     factors
    dictates   actions    that    "are      absolute,           certain    and     imperative,
    47
    The Cavanaugh court also held that the officer was not
    liable "because there [was] no credible evidence . . . that any
    alleged negligence . . . with respect to physical operation of
    [the] vehicle was a substantial factor in causing the accident."
    
    Cavanaugh, 202 Wis. 2d at 322
    .
    39
    No.    2012AP2499
    involving       merely    the        performance           of    a      specific      task."
    
    Cavanaugh, 202 Wis. 2d at 301
    .
    ¶104 With    regard      to    the    second        and   third      holdings,    the
    Cavanaugh court distinguished between two separate functions of
    the    police     officer——"an       officer's          discretionary        decision       to
    initiate    and    continue     a    high-speed         chase"       and    the   officer's
    "physical operation of the vehicle."                     
    Cavanaugh, 202 Wis. 2d at 317
    .
    ¶105 The     Cavanaugh        court         considered        the     decision       to
    initiate    and    continue      a     high-speed          chase     to     be    inherently
    discretionary.           It   further         concluded          that      the     officer's
    allegedly negligent acts (e.g., speeding) were "[i]nherent in
    the decision to pursue."             
    Cavanaugh, 202 Wis. 2d at 316
    (citing
    City of Lancaster v. Chambers, 
    883 S.W.2d 650
    , 655 (Tex. 1994)).
    ¶106 Nevertheless,        the    Cavanaugh          court     did    not    create    a
    "blanket immunity from all liability by virtue of [a public
    officer's] involvement in a pursuit." 
    Cavanaugh, 202 Wis. 2d at 317
    .     The     Cavanaugh      court       drew    a    distinction         between    acts
    relating    to     the   decision       to        pursue    and      acts    relating       to
    negligent physical operation of the vehicle, with the former
    being immune and the latter being subject to liability.                                  The
    Cavanaugh court explained:
    Our holding that 893.80(4) provides immunity for an
    officer's decision to initiate or continue a pursuit
    does not mean, as suggested by the dissent to this
    section, that officers are afforded blanket immunity
    from all liability by virtue of their involvement in a
    pursuit.  We agree with the court of appeals that an
    officer may be negligent pursuant to 346.04(5) for
    40
    No.     2012AP2499
    failing to physically operate his or her vehicle with
    due regard for the safety of others.
    This distinction between                 an officer's discretionary
    decision to initiate and                 continue a pursuit and the
    physical operation of the                vehicle has been recognized
    by other jurisdictions . .               . .
    
    Cavanaugh, 202 Wis. 2d at 317
    .            Cavanaugh       thus attempted to
    segregate      an    officer's          decision       to    initiate     or    continue        a
    pursuit from that officer's physical operation of the vehicle
    with due regard under the circumstances for the safety of all
    persons.
    ¶107 To      support       its    distinction         between    the     decision       to
    pursue,    which     is     immune,       and    the    physical       operation       of     the
    vehicle, which is not immune, the Cavanaugh court relied on two
    sister-state cases, Thornton v. Shore, 
    666 P.2d 655
    (Kan. 1983),
    and Kelly v. City of Tulsa, 
    791 P.2d 826
    (Okla. Civ. App. 1990),
    interpreting         statutory           language           similar     to     Wis.         Stat.
    § 346.03(5).
    ¶108 These      cases       declare      that    under     statutes          similar    to
    Wis.   Stat.     § 346.03(5)        requiring        "due      care"    during       emergency
    vehicle responses, the "duty of due care" applies "only to the
    operation      of     the     emergency         vehicle        itself,"        not     to     the
    initiation or continuation of the pursuit.                            
    Kelly, 791 P.2d at 828
    ; 
    Thornton, 666 P.2d at 667-68
    (quoted by                                 
    Cavanaugh, 202 Wis. 2d at 318
    ).
    ¶109 The theoretical and practical difficulties of making
    this   distinction          has    been    acknowledged          in     the    years        since
    Cavanaugh, Thornton, and Kelly.
    41
    No.     2012AP2499
    ¶110 The Kansas Supreme Court overruled Thornton in Robbins
    v. City of Wichita, 
    172 P.3d 1187
    , 1195 (Kan. 2007), "refusing
    to distinguish between the decision to pursue and continue the
    pursuit from the method of pursuing."
    ¶111 In     Robbins,      officers       engaged      in    a    high-speed       chase
    that resulted in a fatal collision.                     The officers argued that
    their decision to pursue the suspect at high speed was immune
    because their decision on their speed was derived from their
    discretionary    decision          to    pursue,    not       from    their     negligent
    operation of the vehicle.
    ¶112 The Robbins court reasoned that it was not feasible to
    distinguish between which actions derived from the decision to
    pursue   and   which   actions          derived    from       the    operation       of   the
    vehicle, because "the act of driving involves both mental and
    physical components."         
    Robbins, 172 P.3d at 1195
    .
    ¶113 Thus, the Robbins court concluded that officers could
    be liable for breaches of the duty of due care for decisions to
    pursue or continue pursuit of a fleeing driver.
    ¶114 Similarly, the Oklahoma Supreme Court overruled Kelly
    in State ex rel. Oklahoma Dep't of Public Safety v. Gurich, 
    238 P.3d 1
    (Okla. 2010), citing Robbins for the proposition that "a
    decision   to    begin        or        discontinue       a     police     pursuit        is
    indistinguishable      from    the       method    of   pursuing."             The   Gurich
    court similarly concluded that officers are liable for breaches
    of the duty of due care for both physical operation of a vehicle
    and the decision to pursue or continue pursuit.
    42
    No.     2012AP2499
    ¶115 Cavanaugh's           distinction         between    the     decision         to
    pursue,       which    is   immune,   and    the      physical    operation       of     the
    vehicle, which is not immune, has thus been rebuffed by other
    jurisdictions as unworkable.
    ¶116 Cavanaugh         nevertheless         retains       vitality        and      is
    instructive in the instant case, as is the mandatory language of
    Wis.        Stat.     § 346.03(5)     declaring        that     the     exemptions        or
    privileges "do not relieve such operator from the duty to drive
    or ride with due regard . . . ."
    ¶117 Cavanaugh teaches that an officer must still treat all
    persons and vehicles with "due regard under the circumstances,"
    notwithstanding         the   discretionary        decision      of   the      officer    to
    engage in a high-speed pursuit or respond to an emergency call.
    Cavanaugh instructs that the duties of the officer to operate
    the    vehicle        are   not   subsumed       by    an     initial    discretionary
    decision.
    ¶118 Even though the officer "may . . . proceed past a red
    or stop signal or stop sign," Wis. Stat. § 346.03(2)(b), that
    officer must still "slow[] down as may be necessary for safe
    operation," § 346.03(2)(b), "giv[e] both such visual signal and
    also an audible signal by means of a siren or exhaust whistle,"
    § 346.03(3),48 and maintain "the duty to drive or ride with due
    regard under the circumstances              . . . ."        § 346.03(5).
    B
    48
    See discussion infra, ¶¶125-130, on this requirement in
    Brown, 
    348 Wis. 2d 603
    .
    43
    No.       2012AP2499
    ¶119 We             turn    from       Cavanaugh's       pursuit/physical           operation
    distinction           to        the     discretionary-ministerial             distinction          to
    determine whether the police officer's breach of the duty of due
    regard under Wis. Stat. § 346.03(5) subjects the officer in the
    present case to immunity or liability.
    ¶120 A              key     step       in    inquiring       whether          an     act    is
    discretionary or ministerial is to identify the law creating the
    duty to act.              "Where there is a written law or policy defining a
    duty,      we    naturally            look    to   the    language      of    the     writing     to
    evaluate whether the duty and its parameters are expressed so
    clearly         and       precisely,         so    as    to    eliminate      the        official's
    exercise of discretion."49
    ¶121 In             the    instant       case,     the    plaintiff      points       to   two
    sources         of    law        that      allegedly     create    the       ministerial         duty
    requiring the police officer to act with "due regard under the
    circumstances":                 First, the statute governing the rules of the
    road applicable to an authorized emergency vehicle, Wis. Stat.
    § 346.03(5); and second, the internal procedures of the Racine
    Police Department.
    ¶122 The             text       of    Wis.   Stat.       § 346.03(5)      declares         that
    operators            of     authorized         emergency        vehicles,      despite        their
    privilege or exemption from other requirements of the rules of
    the   road,          must       continue      to   operate      their    vehicles         with   due
    regard under the circumstances for the safety of others.
    49
    See Pries, 
    326 Wis. 2d 37
    , ¶26.
    44
    No.       2012AP2499
    ¶123 The      internal       procedures        for     the        Racine       Police
    Department echo the language of Wis. Stat. § 346.03(5), stating
    that "the exemptions granted above do not relieve department
    members   from    the   duty    to    drive     with      due    regard       under       the
    circumstances for the safety of all persons."                            The internal
    police procedures list the considerations that a police officer
    must take into account to drive with "due regard":
    a. The type, actions and speed of the vehicle being
    pursued;
    b. The geographic area of pursuit and its population
    density;
    c. The time of day and day of week;
    d. The      vehicular     and   pedestrian        traffic        present      in
    area;
    e. The road and weather conditions;
    f. The officer's             familiarity        with       the     area       of
    pursuit.50
    ¶124 Wisconsin       Stat.      § 346.03       and    the    internal          Racine
    Police Department procedures create a ministerial duty.51
    ¶125 Our      conclusion        that     the    statute          sets        forth     a
    ministerial duty is supported by our case law.                         See Brown, 
    348 Wis. 2d 603
    ; Cavanaugh 
    202 Wis. 2d 290
    .
    ¶126 In Brown, the court held that an officer breached a
    ministerial      duty   regarding     the     method      by     which       an    officer
    50
    City of Racine Police Department, Policy and Procedure
    No. 812 (2006).
    51
    See the discussion of a governmental entity's ministerial
    duty to create guidelines, 
    ¶¶102-103, supra
    .
    45
    No.   2012AP2499
    operated an emergency vehicle and consequently subjected himself
    to liability, even if the officer's operation of the vehicle
    occurred as part of his performance of some discretionary act
    that is otherwise immune.
    ¶127 In Brown, a volunteer fire truck driver was responding
    to an emergency and entered an intersection against a red light.
    An exemption to the general rules of the road granted by Wis.
    Stat. § 346.03(2)(b) states that an operator of an authorized
    emergency vehicle may "proceed past a red or stop signal or stop
    sign, but only after slowing down as may be necessary for safe
    operation."
    ¶128 The fire truck driver had his vehicle's lights on but
    no   siren    was    activated.       Under     Wis.    Stat.    § 346.03(3),      the
    exception        allowing    an    operator     of     an   authorized       emergency
    vehicle     to    enter     an   intersection    against     a   red    stop   signal
    applies only if both the visual signal and audible signal by
    means of a siren or exhaust whistle are engaged.52
    52
    Wisconsin Stat. § 346.03(3) reads in full:
    The exemption granted the operator of an authorized
    emergency vehicle by sub. (2)(a) applies only when the
    operator of the vehicle is giving visual signal by
    means of at least one flashing, oscillating or
    rotating red light except that the visual signal given
    by a police vehicle may be by means of a blue light
    and a red light which are flashing, oscillating or
    rotating, except as otherwise provided in sub. (4m).
    The exemptions granted by sub. (2)(b), (c) and (d)
    apply only when the operator of the emergency vehicle
    is giving both such visual signal and also an audible
    signal by means of a siren or exhaust whistle, except
    as otherwise provided in sub. (4) or (4m).
    46
    No.   2012AP2499
    ¶129 The Brown court held that the driver's failure to use
    a siren was a failure to perform a ministerial duty.                         Although
    the   initial       decision     to     initiate     the   emergency   response    and
    proceed through the red light was discretionary under Cavanaugh,
    the driver's activation of the siren was "directly govern[ed]"
    by the statute and was a nondiscretionary ministerial function
    on    the    part    of   the    driver.         Brown,    
    348 Wis. 2d 603
    ,      ¶53.
    Failure to perform a nondiscretionary ministerial function set
    forth in Wis. Stat. § 346.03(3) resulted in liability in Brown.
    ¶130 The      Brown      court    did   not    address    whether     the   "due
    regard" obligation imposed by Wis. Stat. § 346.03(5) could also
    support liability in that case.
    ¶131 The ministerial duty in the instant case is a duty to
    maintain a particular standard of care——namely a duty of "due
    regard under the circumstances."                   This duty is given additional
    clarification, but not precision, through the Racine internal
    police procedures detailing what due regard entails.                           As our
    case law has demonstrated, although not consistently, a duty
    need not dictate each precise undertaking that the government
    actor must implement in order to be ministerial.53
    ¶132 In Cavanaugh, for example, the statute established a
    duty on the part of the governmental entity to create guidelines
    but did not explain the exact method or means by which to enact
    those guidelines, i.e., it left them to the discretion of the
    53
    See 
    ¶¶48-59, supra
    .
    47
    No.   2012AP2499
    entity.54    Nevertheless, in Cavanaugh, the court held that when
    the governmental entity fails to comply with the requirements of
    Wis. Stat. § 346.03, the immunity statute does not protect the
    governmental entity from liability.              
    Cavanaugh, 202 Wis. 2d at 300-01
    .
    ¶133 Using       the   discretionary-ministerial            dichotomy    to
    determine immunity and liability, we hold that the officer's
    acts in the instant case are outside the scope of the immunity
    statute and the officer is liable for negligence.
    ¶134 Today's      holding    is      in   keeping    with   sister   state
    jurisdictions with statutes similar to Wisconsin's that view the
    operation    of   a   vehicle    as   a    paradigmatic    ministerial    act.55
    54
    Wis. Stat. § 346.03(6).
    55
    As Downs v. United States, 
    522 F.2d 990
    (6th Cir. 1975)
    notes, in interpreting the Federal Tort Claims Act, operating an
    automobile is the archetypal nondiscretionary act, even though
    it still involves judgment on the part of the operator:
    It is not the mere exercise of judgment, however,
    which immunizes the United States from liability for
    the torts of its employees. Driving an automobile was
    frequently cited in the congressional reports leading
    to the Act as an example of "non-discretionary"
    activity which would be outside the discretionary
    function exception. Driving an automobile involves
    judgment. The failure to signal a turn, for example,
    may be said to represent an exercise of judgment,
    albeit a poor one.      Yet, the automobile accident
    caused by a federal employee while on the job is an
    archetypal claim which Congress sought to place in the
    courts.
    
    Downs, 522 F.2d at 995
    (citations omitted). See also Schmitz v.
    City of Dubuque, 
    682 N.W.2d 70
    , 73 (Iowa 2004) (quoting Downs);
    Pile v. City of Brandenburg, 
    215 S.W.3d 36
    , 40 (Ky. 2006) ("The
    act   of  safely  controlling   a  police  cruiser  is   not  a
    48
    No.   2012AP2499
    These jurisdictions tend to hold that immunity does not attach
    to   negligent        operation      on   the      part    of   an    emergency    vehicle
    operator.56
    ¶135 Consequently,             we   view       our    discretionary-ministerial
    jurisprudence as directing us to hold that immunity does not
    apply      to   the    police   officer's          conduct      in    the   instant     case
    simply because she made the discretionary decision to respond to
    an emergency call.
    V
    ¶136 Because        we    hold      that       no    immunity    exists     for    the
    officer     in   the    instant       case,     we    review     the    circuit    court's
    decision to direct a verdict in favor of the officer.
    ¶137 A      motion       for    a    directed         verdict     challenges       the
    sufficiency of the evidence.                      A circuit court may grant the
    discretionary act, but rather a ministerial function."); Mumm v.
    Mornson, 
    708 N.W.2d 475
    , 491-92 (Minn. 2006) (officers were not
    entitled to immunity for decision to continue pursuit, because
    the officers' duty to discontinue pursuit was ministerial in
    compliance with department policies).
    56
    See, e.g., Patrick v. Miresso, 
    848 N.E.2d 1083
    (Ind.
    2006) (holding that a claim that an emergency vehicle operator
    breached a similar "due regard" statute was not barred by
    immunity); Robbins, 
    172 P.3d 1187
    (Kan. 2007); Mason v. Bitton,
    
    534 P.2d 1360
    , 1365 (Wash. 1975) (holding that immunity cannot
    bar liability in a case alleging breach of due regard by an
    emergency vehicle because "[i]f this type of conduct were immune
    from liability, the exception would surely engulf the rule, if
    not totally destroy it"); Biscoe v. Arlington County, 
    734 F.2d 1352
    (D.C. Cir. 1984) (applying District of Columbia law using
    similar "due regard" language to allow a suit for negligence
    against an emergency vehicle operator and governmental actor for
    failing to exercise "due regard" and holding that pursuit was a
    ministerial duty).
    49
    No.   2012AP2499
    motion if the circuit "court is satisfied that, considering all
    credible    evidence     and    reasonable      inferences   therefrom    in    the
    light most favorable to the party against whom the motion is
    made, there is no credible evidence to sustain a finding in
    favor of such party."           Wis. Stat. § 805.14(1).            When there is
    any credible evidence to support a jury's verdict, even though
    it   is    contradicted        and   the    contradictory    evidence     appears
    stronger    and   more    convincing,       nevertheless     the   verdict     must
    stand.57
    ¶138 Like the circuit court, an appellate court conducts a
    search of the record for facts to uphold the jury verdict.58                    An
    appellate court should not overturn a circuit court's decision
    to dismiss for insufficient evidence unless the record reveals
    that the circuit court was "clearly wrong."59                A circuit court's
    decision to change the jury's answer is clearly wrong if the
    jury's verdict is supported by any credible evidence.60
    57
    Marquez v. Mercedes-Benz USA, LLC, 
    2012 WI 57
    , ¶47, 
    341 Wis. 2d 119
    , 143, 
    815 N.W.2d 314
    , 326, decision clarified on
    denial of reconsideration, 
    2012 WI 74
    , 
    342 Wis. 2d 254
    , 
    823 N.W.2d 266
    ,   reconsideration  denied,   
    2012 WI 106
    ,   
    343 Wis. 2d 558
    , 
    820 N.W.2d 432
    .
    58
    Marquez, 
    341 Wis. 2d 119
    , ¶48.
    59
    
    Id., ¶49. 60
              Marquez, 
    341 Wis. 2d 119
    , ¶49.
    50
    No.     2012AP2499
    ¶139 The circuit court determined that a directed verdict
    in the present case was justified.            The circuit court adhered to
    the negligence standard as set forth in Cavanaugh and concluded
    that "[the officer's] negligence could not have been causal, and
    on that basis, she should not be liable as determined by the
    jury."
    ¶140 The jury had before it evidence that there was an
    obstruction    to   the   police   officer's     vision;    that        the   police
    officer    was      familiar   with     the     intersection;           that    the
    intersection     was   busy;   that   the   police    officer      entered      the
    intersection at 27 miles per hour; that the police officer was a
    block from her destination; that the officer saw another car
    turning right into the southbound lanes and had to avoid the
    car; that the officer never saw the plaintiff's car; and that
    the police officer could not have avoided the accident after
    entering the intersection.
    ¶141 The circuit court reasoned that any breach of duty of
    due   regard   after   initiating     the   entry    into   the    intersection
    could not have caused the accident, because any failure to keep
    a lookout after entering would not have prevented the accident.
    "If there is any credible evidence . . . from which the
    jury could conclude that the . . . driver was negligent with
    respect to any of the items of negligence in regard to which
    they were instructed——lookout, management and control, or speed—
    —the motion for directed verdict [is] properly denied and the
    jury's verdict must be sustained."       Crowder v. Milwaukee &
    Suburban Transp. Corp., 
    39 Wis. 2d 499
    , 
    159 N.W.2d 723
    (1968).
    51
    No.    2012AP2499
    ¶142 Yet the police officer's duty of due regard did not
    simply emerge once the police officer entered the intersection.
    The   duty    to    keep       a   lookout     existed     before     entry     into   the
    intersection.61
    ¶143 A jury could find that the police officer's conduct
    demonstrated a failure of lookout, a failure to reduce speed,
    and a failure of management and control.                          Viewing the credible
    evidence     in    the    light      most    favorable       to    the   plaintiff,     we
    conclude that there is credible evidence to support a jury's
    finding      that        the       officer's       conduct        constituted     causal
    negligence.
    ¶144 The police officer argues that because she had the
    right of way under Wis. Stat. § 346.03(2), which authorizes the
    officer to enter the intersection against a red stop signal, the
    plaintiff     could        not      have    been    only     50      percent    causally
    negligent.
    ¶145 The police officer cites to Sabinasz v. Milwaukee &
    Suburban Transport Co., 
    71 Wis. 2d 218
    , 
    238 N.W.2d 99
    (1976),
    for the proposition that the plaintiff's failure to yield to the
    officer's right of way bars a jury finding that the plaintiff is
    only 50 percent responsible.                 Yet the Sabinasz court noted that
    even when a driver has the right of way and can assume that
    drivers without the right of way will yield, "[T]his does not
    excuse the driver [with the right of way] from maintaining a
    61
    Leckwee v. Gibson, 
    90 Wis. 2d 275
    , 290-91, 
    280 N.W.2d 186
    (1979).
    52
    No.    2012AP2499
    proper lookout or relieve him of liability if the jury finds
    that he failed to do so."           
    Sabinasz, 71 Wis. 2d at 223
    .              This
    principle holds true even when the vehicle with the right of way
    is an authorized emergency vehicle and the other driver was also
    negligent and failed to yield.            See Montalto, 
    272 Wis. 552
    .
    ¶146 The standard of review dictates our result. There was
    "credible evidence" that the officer was negligent and caused
    the injury.        Therefore, the circuit court erred in directing a
    verdict in the instant case.
    * * * *
    ¶147 We conclude that the immunity statute does not apply
    in the present case to the police officer's violation of the
    duty    to    operate     the   vehicle     "with   due   regard     under    the
    circumstances."         A contrary outcome would contravene Wis. Stat.
    § 893.80(4) and § 346.03(5), public policy, rules of statutory
    interpretation, and case law.
    ¶148 We further conclude that there was credible evidence
    to support the jury verdict of causal negligence on the part of
    the police officer.
    ¶149 For the reasons set forth, we reverse the judgment of
    the circuit court dismissing the action and remand the matter to
    the circuit court to reinstate the jury verdict.
    By    the   Court.——The    judgment     of   the   circuit     court    is
    reversed and the cause is remanded.
    53
    No.    2012AP2499.akz
    ¶150 ANNETTE      KINGSLAND       ZIEGLER,      J.         (dissenting).
    Emergency responders are permitted, to some extent, to violate
    the rules of the road when responding to an emergency, and for
    good reason.   See Wis. Stat. § 346.03(2).1      I recognize that this
    privilege is not limitless, see Wis. Stat. § 346.03(3),2 and I
    further recognize that an emergency responder must exercise "due
    regard under the circumstances for the safety of all persons."
    See § 346.03(5).3    Under the facts of this case, however, the
    1
    Wisconsin Stat. § 346.03(2) provides:
    The operator of an authorized emergency vehicle may:
    (a) Stop, stand or park,         irrespective         of   the
    provisions of this chapter;
    (b) Proceed past a red or stop signal or stop
    sign, but only after slowing down as may be necessary
    for safe operation;
    (c) Exceed the speed limit;
    (d) Disregard regulations governing direction of
    movement or turning in specified directions.
    2
    Wisconsin Stat. § 346.03(3) provides:
    The   exemption  granted   the   operator  of  an
    authorized emergency vehicle by sub. (2) (a) applies
    only when the operator of the vehicle is giving visual
    signal by means of at least one flashing, oscillating
    or rotating red light except that the visual signal
    given by a police vehicle may be by means of a blue
    light and a red light which are flashing, oscillating
    or rotating, except as otherwise provided in sub.
    (4m). The exemptions granted by sub. (2) (b), (c) and
    (d) apply only when the operator of the emergency
    vehicle is giving both such visual signal and also an
    audible signal by means of a siren or exhaust whistle,
    except as otherwise provided in sub. (4) or (4m).
    3
    Wisconsin Stat. § 346.03(5) provides:
    1
    No.   2012AP2499.akz
    circuit court correctly concluded that Officer Matsen, as an
    emergency responder, complied with her statutory obligations and
    is entitled to immunity.
    ¶151 The       majority       opinion's      reasoning     leads   it   to    err
    because it disregards the standard set by the legislature in
    Wis. Stat. § 346.03; departs from our jurisprudence in regard to
    ministerial duty and discretionary act; disregards the standard
    we set in Estate of Cavanaugh v. Andrade, 
    202 Wis. 2d 290
    , 
    550 N.W.2d 103
         (1996);     and   ignores      the    circumstances    under     which
    Officer Matsen was acting.           Accordingly, I respectfully dissent.
    ¶152 In the case at issue, Officer Matsen, acting as an
    emergency responder, had activated her lights and siren, thus
    complying with Wis. Stat. § 346.03(3).                    As she approached the
    intersection, Officer Matsen slowed her vehicle to 27 miles per
    hour,   below    the   30    miles   per       hour   posted   speed   limit,    thus
    complying with § 346.03(2)(b).              While it is true that Legue and
    Officer Matsen were not visible to one another because a KFC
    blocked their view of each other, Officer Matsen had engaged
    full emergency response with her squad lights on and emergency
    siren sounding.
    ¶153 Legue was under an absolute obligation to give Officer
    Matsen the right of way.           See Wis. Stat. § 346.19(1).4           Legue had
    The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive or ride
    with due regard under the circumstances for the safety
    of all persons nor do they protect such operator from
    the consequences of his or her reckless disregard for
    the safety of others.
    4
    Wisconsin Stat. § 346.19(1) provides in relevant part:
    2
    No.      2012AP2499.akz
    her radio on, her air conditioning on, and her windows closed.
    Legue   did    not    see     or    hear      Officer       Matsen's       vehicle.           Legue
    entered the intersection traveling at 30 miles per hour and
    broadsided Officer Matsen's squad car.                       The jury found Legue and
    Officer Matsen equally negligent.                         The circuit court, however,
    concluded that Officer Matsen, as an emergency responder, was
    entitled      to    immunity       as    she       was    acting      in    a     discretionary
    capacity with due regard under the circumstances.                               I agree.
    ¶154 The         majority       opinion        fails    to     interpret          Wis.    Stat.
    § 346.03(5) and concludes that Officer Matsen, as an emergency
    responder,     is    not     entitled         to    immunity       because        she    was   not
    acting with discretionary authority, but instead failed in her
    "ministerial         duty"     to       act        with     "due      regard          under    the
    circumstances."            Majority       op.,      ¶¶131-33.          In       so    doing,    the
    majority opinion ignores the plain meaning of                                   § 346.03(5) by
    affording      virtually       no       consideration            to    the        legislature's
    coupling of "due regard" with "under the circumstances."                                        The
    majority opinion confuses discretionary decision-making that the
    legislature        afforded    to       emergency         responders       with       common    law
    negligence principles.
    ¶155 I conclude that Wis. Stat. § 346.03 sets the test we
    are to apply.          The statute illuminates what is meant by "due
    regard"     when      an     authorized            emergency          vehicle         enters     an
    intersection against a red light.                        It provides that an operator
    of an emergency vehicle can proceed past a red light if it
    Upon the approach of any authorized emergency
    vehicle giving audible signal by siren the operator of
    a vehicle shall yield the right-of-way . . . .
    3
    No.     2012AP2499.akz
    "slow[s] down as may be necessary for safe operation" and if it
    gives   a   "visual    signal     by     means    of     at   least    one        flashing,
    oscillating or rotating red light except that the visual signal
    given by a police vehicle may be by means of a blue light and a
    red light which are flashing, oscillating or rotating, . . . and
    also an audible signal by means of a siren or exhaust whistle."
    Wis. Stat. § 346.03(2)(b) and (3).                     These requirements inform
    what regard is due.
    ¶156 Although       the     case     at     issue       involved       an    officer
    traveling    below     the     speed     limit    with    her       lights     and   siren
    engaged,    entering      an   intersection        against      a    red     signal,   the
    circumstances that can attend responding to an emergency are
    incredibly diverse.            For example the area through which the
    emergency responder passes and the time of day are part of the
    circumstances of an emergency response, e.g., is the emergency
    responder    proceeding        through    a     school    district      with       children
    present or is he or she proceeding through a rural area at two
    o'clock in the morning?           The type of emergency is also part of
    the circumstances, e.g., is the call for help a request for help
    for a feared heart attack or a call to stop a vehicle involved
    in a traffic violation?
    ¶157 "Due regard under the circumstances for the safety of
    all   persons"   is    not     fully     described       with   particularity,          nor
    could it be, because the circumstances will generally require
    the exercise of judgment by the emergency responder in ways that
    are   particular     to   the    circumstance       with       which    the       emergency
    responder is confronted.           When the circumstances                  require such
    4
    No.    2012AP2499.akz
    an     exercise   of    judgment,      it       is     the     sine    qua     non    of     a
    discretionary decision.
    ¶158 Wisconsin Stat. § 346.03(6) also shows that exercising
    "due    regard    under      the    circumstances"           often     will     require      a
    judgment call.         This section requires law enforcement agencies
    to provide written guidelines for officers to assist in their
    response to an emergency.              Those guidelines are to consider,
    "road conditions, density of population, severity of crime and
    necessity of pursuit by vehicle."                § 346.03(6).
    ¶159 Of    course,     we     expect      emergency       responders          to    use
    discretion under the circumstances to permit them to respond
    safely and promptly.              Of course, we contemplate that they may
    not follow the rules of the road when so responding.                                 In the
    mind of the responder and in the legislature's own language, the
    response will be balanced and measured in that the responder
    must use "due regard under the circumstances."                          This balancing
    generally    requires       judgment    calls         that     vary    circumstance         by
    circumstance.      Such a balancing of continuingly changing factors
    in an emergency response             then       is not "absolute, certain and
    imperative" decision-making as the legislature would have set
    out if a ministerial duty were fully described.
    ¶160 To explain further, under our precedent, discretionary
    and ministerial duties are very different.                           Ministerial duties
    are     "'absolute,        certain     and       imperative,'           involving          the
    'performance      of   a    specific    task'         that     the    law     imposes      and
    defines the 'time, mode and occasion for its performance with
    such     certainty         that     nothing          remains     for         judgment       or
    5
    No.    2012AP2499.akz
    discretion.'"          Brown    v.    Acuity,        
    2013 WI 60
    ,     ¶43,    
    348 Wis. 2d 603
    , 
    833 N.W.2d 96
    (quoting Lister v. Board of Regents
    of   University   Wisconsin          System,    
    72 Wis. 2d 282
    ,        301,    
    240 N.W.2d 610
    (1976)).
    ¶161 A public officer, such as an emergency responder, is
    immune from suit for acts done in the exercise of legislative,
    quasi-legislative, judicial or quasi-judicial functions.                        Brown,
    
    348 Wis. 2d 603
    , ¶41 (quoting Wis. Stat. § 893.80(4)).                            Acts
    that require the exercise of judgment are "discretionary" under
    the law.   Lister, 
    72 Wis. 2d 282
    .             A public officer discharging
    a "ministerial duty," by contrast, is not entitled to immunity.
    Kimps v. Hill, 
    200 Wis. 2d 1
    , 10, 
    546 N.W.2d 151
    (1996).5
    ¶162 As    this    court   has     consistently        stated,      "[a]   public
    officer's duty is ministerial only when it is 'absolute, certain
    and imperative,' involving the 'performance of a specific task'
    that the law imposes and defines the 'time, mode and occasion
    for its performance with such certainty that nothing remains for
    5
    While the majority opinion criticizes the distinction
    between "discretionary" acts, and "ministerial" duties, see
    majority op. ¶¶48-56, it nonetheless remains the law in
    Wisconsin.   See Brown v. Acuity, 
    2013 WI 60
    , ¶¶42-43, 
    348 Wis. 2d
    603, 
    833 N.W.2d 96
    .
    6
    No.    2012AP2499.akz
    judgment or discretion.'"            Brown, 
    348 Wis. 2d 603
    , ¶43 (quoting
    
    Lister, 72 Wis. 2d at 301
    ).6
    ¶163 The     majority       opinion,      however,    departs     from   these
    longstanding      principles.        The    majority     fails   to     address     how
    Officer Matsen's duty of due regard under the circumstances was
    "'absolute, certain and imperative,'" such that she needed to
    perform    only    a   "'a    specific      task'"     in   order      to   meet    her
    obligation.       Id. (quoting 
    Lister, 72 Wis. 2d at 301
    ).                  Further,
    the   majority     does    not    explain      how   Officer   Matsen's      duty   to
    exercise "due regard under the circumstances" in the case at
    issue imposed or defined the "'time, mode and occasion'" for the
    performance of any such task "'with such certainty that nothing
    remains for judgment or discretion.'"                  Id. (quoting 
    Lister, 72 Wis. 2d at 301
    ).          Instead, the majority opinion concludes that
    an emergency responder is under a ministerial duty not to be
    involved in an accident.             See majority op., ¶¶142-43.               If an
    accident   occurs,        under   the   majority's      standard,       immunity    is
    seemingly precluded.
    6
    The majority opinion claims that some cases, specifically
    Willow Creek Ranch, L.L.C. v. Town of Shelby, 
    2000 WI 56
    , 
    235 Wis. 2d 409
    , 
    611 N.W.2d 693
    , have used a less stringent
    statement of the ministerial duty standard.    See majority op.,
    ¶49. This assertion, however, is incorrect. See Willow Creek,
    
    235 Wis. 2d 409
    , ¶27 (stating that "[a] ministerial act, in
    contrast to an immune discretionary act, involves a duty that
    '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'").
    7
    No.    2012AP2499.akz
    ¶164 Additionally,         the     majority      opinion's       analysis     is
    inconsistent        with   this    court's     prior    decision    in     Estate    of
    Cavanaugh v. Andrade, 
    202 Wis. 2d 290
    , 
    550 N.W.2d 103
    (1996).
    In Cavanaugh we concluded that Wis. Stat. "§ 346.03(5) does not
    preclude the defense of immunity for the discretionary acts of
    initiating or continuing a high-speed pursuit."                    
    Id. at 317.
          In
    so doing, we distinguished between a discretionary decision to
    pursue a suspect, and a ministerial obligation to "physically
    operate" a vehicle with "due regard under the circumstances for
    the safety of all persons."             
    Id. at 316-17.
          We also pointed out
    that a determination that the officer was negligent did not
    preclude      the   conclusion     that   he    or    she   had   acted    with    "due
    regard      under   the    circumstances"      and     thereby    was    immune    from
    liability.       
    Id. at 319.7
    ¶165 In      Cavanaugh     the   officer      initiated    and    continued    a
    high speed pursuit through a residential neighborhood.                         
    Id. at 296.
          The pursuit proceeded through solid red traffic signals at
    between 60 and 80 miles per hour, despite the fact that the
    suspect's illegal conduct merely involved a moving violation.
    
    Id. We nonetheless
    concluded that the officer was entitled to
    immunity, because the decision to engage in such a pursuit was
    discretionary and not ministerial.                
    Id. at 316.
          We noted that
    "[i]nherent in the decision to pursue is the decision to speed."
    7
    In Estate of Cavanaugh v. Andrade, 
    202 Wis. 2d 290
    , 
    550 N.W.2d 103
    (1996), the jury found that the officer failed to
    maintain a proper lookout and this failure was causal in regard
    to Cavanaugh's injuries.   
    Id. at 319.
     In the case before us,
    Officer Matsen was found by the jury to have failed to maintain
    a proper lookout.
    8
    No.    2012AP2499.akz
    
    Id. The court
    applied the "due regard under the circumstances"
    standard and stated that "an officer may be negligent pursuant
    to [Wis. Stat.] § 346.03(5) for failing to physically operate
    his or her vehicle with due regard for the safety of others."
    
    Id. at 317.
         The court, however, concluded that the officer's
    running of red lights, at 60 to 80 mile per hour, did not
    violate the "due regard under the circumstances" standard, and
    concluded that the officer was immune from liability.
    ¶166 It    is    difficult      to     reconcile       the     precedent        of
    Cavanaugh with the majority opinion today.                    As in Cavanaugh,
    Officer     Matsen    was   operating       her    vehicle    in         an   emergency
    response.     In Cavanaugh, the officer ran several red lights at
    between 60 and 80 miles per hour.                 By contrast, Officer Matsen
    entered an intersection against a red traffic signal, but did so
    at only 27 miles per hour.         In Cavanaugh, the officer was acting
    in an effort to issue a traffic ticket.                In the case at issue,
    Officer Matsen was responding to an emergency dispatch calling
    her to the scene of an accident.
    ¶167 As   with    Cavanaugh     and     that    officer's           decision   to
    pursue, Officer Matsen exercised her judgment in deciding to
    proceed through the intersection, in response to an emergency.
    As with Cavanaugh, inherent in Officer Matsen's judgment is the
    exercise of discretion in deciding whether to proceed through
    the intersection with its risk of danger from cross-traffic.                          As
    with Cavanaugh, Officer Matsen did not maintain proper lookout.
    ¶168 Stated differently, the case at issue is controlled by
    Cavanaugh.      If    the   officer   in    Cavanaugh    was       immune      for   his
    9
    No.   2012AP2499.akz
    discretionary decision to run red lights at 60 to 80 miles per
    hour in order to chase a traffic offender, Officer Matsen also
    is    immune    for     her    discretionary        decision     to     enter    an
    intersection against a red signal at 27 miles per hour in order
    to respond to an emergency dispatch calling her to the scene of
    an accident.
    ¶169 The majority opinion dutifully recites the standard
    articulated in        Cavanaugh     but does not apply it, and instead
    opines that Cavanaugh is merely "instructive."                    Majority op.,
    ¶¶100-16.        The     majority       neither     overrules     nor     reverses
    Cavanaugh, but it seriously undermines its value as precedent.8
    ¶170 Under the majority's analysis, I am concerned whether
    a plaintiff who is involved in an automobile accident with an
    emergency responder need plead only that the responder failed to
    exercise "due regard" in order to automatically defeat a claim
    of immunity.      Such a principle is clearly at odds with one of
    the   primary    justifications       for     governmental     immunity:    "[t]he
    danger    of   influencing     public    officers    in   the    performance     of
    their     functions     by    the   threat     of   lawsuit."         Kimps,    
    200 Wis. 2d 1
    , 9.     It is also at odds with the plain meaning of Wis.
    Stat. § 346.03.
    ¶171 For the foregoing reasons, I respectfully dissent.
    8
    The only real difference between the two cases is that, in
    the case at issue, the officer himself was involved in the
    accident, while in Cavanaugh it was the suspect who struck
    another vehicle.    This difference aptly illustrates how the
    majority's holding really works: officers are now under a
    ministerial duty not to be involved in traffic accidents.
    10
    No.     2012AP2499.akz
    ¶172 I   am   authorized   to   state   that   Justices     ANN   WALSH
    BRADLEY and PATIENCE DRAKE ROGGENSACK join this dissent.
    11
    No.   2012AP2499.akz
    1