Lodl v. Progressive Northern Ins. Co.
Decision Date | 20 December 2000 |
Docket Number | No. 00-0221.,00-0221. |
Citation | 625 N.W.2d 601,240 Wis.2d 652,2001 WI App 3 |
Parties | Susan 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. |
Court | Wisconsin 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.
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.
228 Wis. 2d 81, 596 N.W.2d 417 (1999). Therefore, the question before us is whether Fredericks is entitled to immunity. See id.
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.
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
[5]
¶ 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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