Bauder v. Delavan-Darien School Dist., DELAVAN-DARIEN
| Decision Date | 27 November 1996 |
| Docket Number | DELAVAN-DARIEN,No. 95-0495,95-0495 |
| Parties | , 115 Ed. Law Rep. 1063 Christopher M. BAUDER, Plaintiff-Appellant, v.SCHOOL DISTRICT and Cincinnati Insurance Company, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of plaintiff-appellant, the cause was submitted on the briefs of Steven R. Wassel of Wassel, Kilkenny, Danz, Mistrioty & Lettenberger of Delavan.
On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas H. Koch and Joseph S. Goode of Kravit, Gass & Weber, S.C. of Milwaukee.
Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.
Christopher M. Bauder was injured when a deflated soccer ball struck him in the eye during gym class. The class had been moved inside to a gym because of inclement weather. Bauder sued the Delavan-Darien School District, but the suit was dismissed by summary judgment on grounds of governmental immunity. We affirm because none of the exceptions to governmental immunity apply here. We also affirm the dismissal of a related nuisance claim.
Wisconsin protects political units of state government from lawsuits sounding in negligence where the alleged act does not arise from a ministerial duty imposed in law. Section 893.80(4), STATS., provides:
No suit may be brought against any ... political corporation, governmental subdivision or any agency thereof ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
Quasi-judicial and quasi-legislative acts are synonymous with discretionary acts and governmental officers are entitled to immunity for such acts. See Scarpaci v. Milwaukee County, 96 Wis.2d 663, 682-83, 292 N.W.2d 816, 825-26 (1980). Ministerial acts, on the other hand, are not generally subject to immunity. C.L. v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d 614, 617 (1988). The first issue is whether the physical education teacher's decision to move the class indoors and play soccer with a deflated ball in a gym was a ministerial or discretionary act.
Bauder argues that because the laws of this state require a school district to provide physical education classes to students, the actions of the physical education teacher in carrying out this duty are ministerial. He observes that in carrying out its duty to provide physical education, the legislature has mandated that each school board "[p]rovide safe and healthful facilities." Section 121.02(1)(i), STATS. Bauder claims that this ministerial duty was violated when the teacher created an unsafe and unhealthy situation by placing too many people without eye protection in too small of an area to play soccer with a deflated ball.
We disagree that the teacher's decision was a breach of a ministerial duty. A duty is ministerial "only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Sheridan v. City of Janesville, 164 Wis.2d 420, 425, 474 N.W.2d 799, 801 (Ct.App.1991) (quoted source omitted). While the obligation to provide physical education classes is mandated, and thus ministerial, the manner in which those classes are conducted is not specified either by state statute or by the school district under the facts of this case. The teacher made a decision to move the class indoors. He also decided to deflate the ball, hoping to reduce the chance of injury. We hold that the teacher's judgmental decision was a discretionary and not a ministerial act.
There is an exception to the governmental immunity law known as the "known present danger exception." Bauder claims that it applies here. He contends that the teacher's activities gave rise to a known present danger so certain that nothing was left for the teacher's discretion. He cites the teacher's own explanation for why he deflated the ball and why he instructed the students not to hit the ball in the air--to keep the game less dangerous--as proof that the teacher knew the activity to be inherently dangerous to the students. Bauder cites an affidavit provided by his own expert that deflating a ball will actually cause more susceptibility to eye injuries, not less, and that playing in a gym that is not designed for soccer is also dangerous in and of itself. Bauder concludes that the "known present danger exception" is appropriate here.
The "known present danger exception" gets its genesis from Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977). There, a park manager had been at the park for a number of years. He knew the park well; he knew the park was open at night; and he knew there was a trail with a sheer drop off which never had a rail and never had a warning sign. The park manager thus was well aware that the trail would be hazardous at night and agreed that he would not want to be on the trail at night. Yet, despite knowing of this dangerous condition, nothing was done to alleviate the danger. The Cords court had a very definite opinion about the park manager's nondecision. It wrote that there can be no "policy" to leave "obviously" dangerous conditions alone. See id. at 538, 259 N.W.2d at 678. It wrote that "the duty to either place warning signs or advise superiors of the conditions is, on the facts here, a duty so clear and so absolute that it falls within the definition of a ministerial duty." Id. at 542, 259 N.W.2d at 680 (emphasis added).
What differentiates the exception carved out in Cords from the facts in this case is that deflating the ball is not an "obvious" danger to students. While Bauder's expert certainly has an opinion that a deflated ball is dangerous, it is not an opinion that is so clear and so absolute that no reasonable person would think to use a deflated ball. And while a gym is not usually used to play soccer,...
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