Eileen W. Legue v. City of Racine , 357 Wis. 2d 250 ( 2014 )

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.
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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)).
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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).
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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
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¶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 76, ¶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.
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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.
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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
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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
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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
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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
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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
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¶172 I am authorized to state that Justices ANN WALSH
BRADLEY and PATIENCE DRAKE ROGGENSACK join this dissent.
11
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