Dargenio v. Cmty. Ins. Corp.
| Decision Date | 07 July 2016 |
| Docket Number | No. 2015AP809.,2015AP809. |
| Citation | 371 Wis.2d 564,884 N.W.2d 534 (Table) |
| Parties | Logan A. DARGENIO, a Minor, by his Guardian ad Litem, Brandon D. DERRY, David M. Dargenio and Physicians Plus Insurance Company, Plaintiffs–Respondents, v. COMMUNITY INSURANCE CORPORATION and Madison Metropolitan School District, Defendants–Appellants. |
| Court | Wisconsin Court of Appeals |
Logan Dargenio was injured when a portable scorers table in a high school gymnasium fell on top of him. Dargenio sued the Madison Metropolitan School District, alleging negligence and violation of Wisconsin's Safe Place Statute.1 The School District moved for summary judgment, asserting that it is entitled to dismissal of Dargenio's claims based on governmental immunity under Wis. Stat. § 893.80(4) (2013–14).2 The circuit court denied the School District's motion, concluding that the known and compelling danger exception to governmental immunity allows Dargenio's suit to proceed to trial. We granted the School District's petition for leave to appeal the circuit court's non-final order. See Wis. Stat. Rule 809.50(3).
¶ 2 The School District argues on appeal that it is immune from suit under Wis. Stat. § 893.80(4) and that neither the ministerial duty exception nor the known and compelling danger exception applies to abrogate its immunity in this case. Viewing the evidence presented on summary judgment in Dargenio's favor, we conclude that the School District is immune from liability, and, therefore, we reverse.
¶ 3 The following facts are taken from the summary judgment submissions, and are not disputed for purposes of this appeal.
¶ 4 Prior to, during, and since February 2010, La Follette High School has used a portable scorers table for the high school boys' and girls' basketball games in its gymnasium on Thursday and Friday nights. The scorers table is made of wood and consists of a vertical padded board on the front, a counter-like table extending backwards from the front board at the top, and, on the back side, a padded bench fitted below the counter-like table, on which the scorers sit when they are using the scorers table.
¶ 5 When the scorers table is in use, the bench is extended outwards away from the front board, so that the scorers can sit on it. The bench is kept in that position when it is stored, although the bench can be folded in towards the front board. There are also wooden trays, called press tables, which are stored inside the well between the front board and the bench underneath the counter-like table. The height of the front board of the scorers table measures 59.4 inches, and the scorers table weighs 459 pounds itself, and 524 pounds with the press tables stacked in the well.3
¶ 6 The scorers table is on casters, and it is rolled back and forth from its storage location along the wall in the corner of the gymnasium to its use location between the bleachers. Three members of the custodial staff move the scorers table from its storage location to its use location and remove the press tables just before each game, and place the press tables back inside the scorers table and return the scorers table to its storage location by the wall in the corner immediately after each game.
¶ 7 On the evening of February 8, 2010, David brought Logan, who was then four and one-half years old, to watch while David participated in a recreational league basketball game at the La Follette High School gymnasium. During the game, David saw the scorers table a few feet away from its usual storage location by the wall in the corner. David had not seen the scorers table in that location before. As David and Logan were preparing to leave at the end of the game, the scorers table fell onto its front on top of Logan and injured him.
¶ 8 According to Dargenio's expert, it would take “a fairly low force” on the back (the bench side) to push over the scorers table onto its front (the padded board side), and the accident was caused by the scorers table not being restrained or chained to the wall and by that force being applied.
¶ 9 The custodial staff who had worked with the scorers table since 1991 testified that they were not aware of any incidents where the table had fallen over.4
¶ 10 The day after Dargenio's injury, on February 9, 2010, the school custodians installed chains and chained the scorers table to the wall in its storage location in the corner when the scorers table was not in use.
¶ 11 Dargenio sued the School District alleging negligence and violation of Wisconsin's Safe Place Statute. The School District filed its first motion for summary judgment in June 2013, asserting that it is entitled to dismissal of Dargenio's claims based on governmental immunity under Wis. Stat. § 893.80(4), and that neither the ministerial duty exception nor the known and compelling danger exception applies to abrogate the School District's immunity. The circuit court denied the School District's motion, ruling that there was a genuine issue of material fact as to whether the scorers table was a known and compelling danger, and that Dargenio had not been able to undertake “all [his] discovery” to prove that the scorers table was a known and compelling danger. The court indicated that the ministerial duty exception likely does not apply.
¶ 12 Dargenio did not undertake additional discovery, and the School District filed a second motion for summary judgment in October 2014, asserting that it is entitled to governmental immunity and that the known and compelling danger exception does not apply. The circuit court denied the motion, concluding that the known and compelling danger exception to governmental immunity allows Dargenio's suit to proceed to trial. The court explained:
[I]t did tip over. It's a big, big, heavy object; did not require very much force to tip over; it was normally stored with the seating part of it out which would offset, to some extent, the front tippyness; it was now in so it had the greatest tippyness; and it was located in a position where people with kids were likely to come.... That is all the evidence....
¶ 13 We granted the School District's petition for leave to appeal the circuit court's non-final order. See Wis. Stat. Rule 809.50(3).
¶ 14 We review a circuit court's ruling on summary judgment de novo, employing the same methodology as the circuit court. Broome v. DOC, 2010 WI App 176, ¶ 8, 330 Wis.2d 792, 798, 794 N.W.2d 505. Tews v. NHI, LLC, 2010 WI 137, ¶ 4, 330 Wis.2d 389, 793 N.W.2d 860.
¶ 15 “[W]e search the [r]ecord to see if the evidentiary material that the parties set out in support or in opposition to summary judgment supports reasonable inferences that require the grant or denial of summary judgment, giving every reasonable inference to the party opposing summary judgment.” Chapman v. B.C. Ziegler and Co., 2013 WI App 127, ¶ 2, 351 Wis.2d 123, 839 N.W.2d 425. “Whether an inference is reasonable and whether more than one reasonable inference may be drawn are questions of law.” H & R Block E. Enters., Inc. v. Swenson, 2008 WI App 3, ¶ 11, 307 Wis.2d 390, 745 N.W.2d 421 (2007).
¶ 16 The School District's motion for summary judgment is based on its assertion of governmental immunity under Wis. Stat. § 893 .80(4). If the School District is entitled to governmental immunity, then there is nothing to try even though factual disputes may exist regarding the issue of negligence. See Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 16, 253 Wis.2d 323, 646 N.W.2d 314. Indeed, for purposes of immunity analysis, we assume the School District did act negligently, and we focus on whether the School District is entitled to governmental immunity under Wis. Stat. § 893.80(4) and whether any exception applies to abrogate that immunity. Lodl, 253 Wis.2d 323, ¶ 17, 646 N.W.2d 314. “The application of the immunity statute and its exceptions involves the application of legal standards to a set of facts, which is a question of law.” Id.
¶ 17 Consistent with these well-established principles, we review the summary judgment materials submitted by the parties, drawing all reasonable inferences from the evidence in favor of Dargenio as the nonmoving party, and focus on whether the ministerial duty or known and compelling danger exceptions apply to abrogate the School District's immunity. We first briefly review the law relating to governmental immunity. We then review the law relating to each of the exceptions to governmental immunity and apply that law to the undisputed facts. We conclude that neither exception applies to abrogate the School District's immunity, and we address and reject Dargenio's arguments to the contrary.
¶ 18 Wisconsin Stat. § 893.80(4) immunizes units of local government and their officers and employees from 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.”5 Lodl, 253 Wis.2d 323, ¶¶ 20–21, 646 N.W.2d 314. As material to this case, Lodl explains that “[t]here is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; [and] 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees.” Id., ¶ 24. Dargenio does not dispute that if neither of these exceptions to immunity applies, then the School District is entitled to immunity under Wis. Stat. § 893.80(4).
¶ 19 Dargenio argues, without citation to relevant authority, that the...
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Estate of Williams v. City of Milwaukee, Case No. 16–CV–869–JPS
...discretion or judgment and creates an absolute, certain and imperative duty to act." Dargenio v. Comm. Ins. Corp. , No. 2015-AP-809, 371 Wis.2d 564, 2016 WL 3619365, at *7 (Wis. Ct. App. July 7, 2016) (quotation omitted). In other words, a known danger transforms a potential act from discre......