Lodl v. Progressive Northern Ins. Co.

Decision Date20 December 2000
Docket NumberNo. 00-0221.,00-0221.
Citation625 N.W.2d 601,240 Wis.2d 652,2001 WI App 3
PartiesSusan M. LODL, Plaintiff-Co-Appellant, KOHL'S DEPARTMENT STORE, Involuntary-Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Co-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant, WAUSAU UNDERWRITERS INSURANCE COMPANY, Officer Brian M. Fredericks, and Town of Pewaukee, Defendants-Respondents, v. Walker J. YOUNG, Jr., Third-Party Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant and the third-party defendant-appellant, the cause was submitted on the briefs of Thomas A. Cabush of Kasdorf, Lewis & Swietlik, S.C., Milwaukee. On behalf of the plaintiff co-appellant (joined by defendant-third-party plaintiff-co-appellant), the cause was submitted on the briefs of Mark L. Thomsen of Cannon & Dunphy, S.C., Brookfield.

On behalf of the defendants-respondents, the cause was submitted on the brief of Raymond J. Pollen and Michele M. Ford of Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee.

Before Brown, P.J., Nettesheim and Anderson, JJ.

¶ 1. ANDERSON, J.

In this appeal, we conclude that an intersection without operative traffic control signals during an evening storm is a compelling and known danger of such force that it creates a ministerial duty in the performance of traffic control. Therefore, we reverse the circuit court's grant of summary judgment to the Town of Pewaukee and Town of Pewaukee Police Officer Brian M. Fredericks because there is a genuine issue of material fact regarding whether Fredericks failed to act at the intersection.

¶ 2. The evening of June 18, 1998, was stormy, and the intersection of County Highway J and Capitol Drive in the Town of Pewaukee was dark because the traffic control lights were inoperative. Susan M. Lodl was the front seat passenger in a car being driven by Walker J. Young, Jr., that was eastbound on Capitol Drive when it was struck broadside by a vehicle being operated southbound on County Highway J by James R. Radmer. Lodl commenced this action against Fredericks, the Town of Pewaukee and its insurer, Wausau Underwriters Insurance Company (hereinafter Pewaukee). Lodl alleged that Fredericks was negligent in the manner in which he directed traffic at the intersection of County Highway J and Capitol Drive and that Pewaukee was liable for Fredericks's negligence under a respondeat superior theory. Pewaukee filed an answer, including affirmative defenses that Fredericks and Pewaukee were immune from suit under the doctrines of judicial, quasi-judicial, legislative and quasi-legislative immunity and that Lodl's claims were subject to the limitations and immunities in WIS. STAT. § 893.80 (1997-98).3 Young was subsequently added as a third-party defendant by Radmer's insurer. ¶ 3. Pewaukee filed a motion seeking summary judgment on the grounds that Fredericks and Pewaukee were entitled to immunity under WIS. STAT. § 893.80(4) because there was no law or rule regarding the manner in which Fredericks was to direct traffic at the intersection that created a ministerial act. The circuit court granted summary judgment, concluding that although there were material issues of fact as to whether Fredericks and Pewaukee were negligent, they were entitled to immunity under the statute.

¶ 4. Lodl and Young appeal the grant of summary judgment to Fredericks and Pewaukee. Both appellants contend that Fredericks and Pewaukee are not entitled to immunity because either there was a breach of a ministerial duty or a compelling and known danger existed at the intersection.

[1-3]

¶ 5. We review a motion for summary judgment using the same methodology as the trial court. See Ottinger v. Pinel, 215 Wis. 2d 266, 272, 572 N.W.2d 519 (Ct. App. 1997)

. That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id.

The dispute must center on a "genuine issue of material fact." A factual issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A "material fact" is one that impacts the resolution of the controversy. In analyzing whether there are genuine issues of material fact, we draw all reasonable inferences in favor of the nonmoving party.

Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 32, 236 Wis. 2d 435, 613 N.W.2d 142 (citations omitted). Summary judgment presents a question of law that we review de novo. See Ottinger, 215 Wis. 2d at 273

. When reviewing a summary judgment granting immunity to a public officer, we start with the proposition that the doctrine of public immunity assumes that the public officer was negligent. See Kierstyn v. Racine Unified Sch. Dist., 221 Wis. 2d 563, 566, 585 N.W.2d 721 (Ct. App. 1998),

aff'd,

228 Wis. 2d 81, 596 N.W.2d 417 (1999). Therefore, the question before us is whether Fredericks is entitled to immunity. See id.

[4]

¶ 6. Public employees are immune from personal liability for injuries resulting from the negligent performance of a discretionary act within the scope of their public office. See Santiago v. Ware, 205 Wis. 2d 295, 338, 556 N.W.2d 356 (Ct. App. 1996)

. However, this general rule is subject to exceptions, which represent a judicial balance struck between "the need of public officers to perform their functions freely against the right of an aggrieved party to seek redress." Lister v. Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). An exception may exist where

the public officer's or employee's duty is absolute, certain and imperative, involving merely the performance of a specific task and (1) the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment or discretion, or (2) there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion. Additionally, the doctrine of immunity may be inapplicable where a public officer's challenged decision involves the exercise of discretion but the discretion exercised is not governmental, i.e., does not require the application of statutes to facts nor a subjective evaluation of the law.

Kierstyn, 221 Wis. 2d at 569 (citations omitted).

¶ 7. We begin by rejecting Lodl's and Young's argument that the technique Fredericks was to use to direct traffic was so carefully defined that he did not have any discretion in selecting the method of traffic control that he would use. They contend that written policies on traffic direction were so detailed that Fredericks did not have to exercise any judgment or discretion. In other words, Lodl and Young assert that Fredericks's actions fall under the "ministerial act" exception to the general policy granting Fredericks and Pewaukee immunity.

¶ 8. Pewaukee had a written policy manual for police officers that included policies on directing and controlling traffic.

POLICY 4.23 — CONTROL AND DIRECTION OF TRAFFIC
I. PURPOSE — The purpose of controlling and directing traffic is to facilitate the safe and efficient movement of such traffic. It is up to the police to see that traffic moves as safely and as quickly as possible.
II. PROCEDURE — Direction and Control — Officer should first place himself in the center of traffic flow. Using police whistle signals as indicated in State Statutes 346.40, officer should indicate traffic which should stop by holding both arms horizontal, with palms of hands facing traffic. After traffic has stopped, officer should then turn his body to face one lane of traffic which has stopped. In this manner, the officer's body acts as a token barricade to the stopped traffic. To begin movement of a column of vehicles, officer should look directly at the lead driver, point at him, and then indicate with whistle signal and arm motion that he should move. To begin traffic flow from the opposite direction, repeat this procedure with lead driver in that column. After flow has started, intermittent arm signals will keep traffic moving. Arm signals should be intermittent, however, not continuous, and should be crisp. Left turning should be directed to do so in front of the officer, rather than behind. In this manner, the officer can observe the vehicle throughout the turn, thereby lessening the possibility of being struck by the turning vehicle. During hours of darkness, officers should use a flashlight or flares to assist him/her in directing traffic, officers should also wear reflective clothing to enhance his/her safety. (Emphasis added.)

Lodl and Young contend that the policy is mandatory because the foreword to the manual declares that "[t]he language and meaning in this manual are to be construed as general orders."4 Lodl and Young also argue that, coupled with a state traffic regulation on using a whistle while directing traffic, the Pewaukee policy imposed a duty that was "absolute, certain and imperative." Thus, traffic control was a ministerial duty.5

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¶ 9. We disagree with this conclusion. Pewaukee Police Chief Denny Stone, who drafted the policy and procedures manual, testified that "should" was discretionary. Stone testified that the intersections in Pewaukee are growing in size and number and "there are [an] infinite number of circumstances that can occur in each one." Because of these variables, Stone stated that "it is impossible to give a black and white ... rote policy that you must follow." For those reasons, we conclude that the policy is couched in discretionary terms, and a policy drafted in discretionary terms does not create a ministerial duty. See Ottinger, 215 Wis. 2d at 274-75

.

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¶ 10. We now consider whether the...

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