Domino v. Walworth County, 83-1273

• Decision Date: 27 March 1984
• Docket Number: No. 83-1273,83-1273
• Citation: 118 Wis.2d 488,347 N.W.2d 917
• Parties: Susan J. DOMINO, Plaintiff-Appellant and Cross-Respondent, v. WALWORTH COUNTY, a municipal corporation, Defendant-Respondent and Cross-Appellant, Town of Bloomfield, a municipal corporation; Tower Insurance Company, Inc., a Wisconsin corporation; City of Lake Geneva, a municipal corporation; and Lorraine Harper, Defendants and Third-Party Plaintiffs, Rodney Schaal, Third-Party Defendant.
• Court: Wisconsin Court of Appeals

Page 917

347 N.W.2d 917

118 Wis.2d 488

Susan J. DOMINO, Plaintiff-Appellant and Cross-Respondent, v. WALWORTH COUNTY, a municipal corporation,

Defendant-Respondent and Cross-Appellant,

Town of Bloomfield, a municipal corporation; Tower

Insurance Company, Inc., a Wisconsin corporation; City of

Lake Geneva, a municipal corporation; and Lorraine Harper,

Defendants and Third-Party Plaintiffs,

Rodney Schaal, Third-Party Defendant.

No. 83-1273.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 28, 1984.

Opinion Released March 27, 1984.

Opinion Filed March 27, 1984.

Patrick O. Dunphy of Habush, Habush & Davis, S.C., Milwaukee, for plaintiff-appellant and cross-respondent.

Margaret B. Grabowski of Brennan, Steil, Ryan, Basting & MacDougall, S.C., Janesville, for defendant-respondent and cross-appellant.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Susan J. Domino appeals from the order and judgment dismissing her complaint against Walworth county. The issue is whether the actions of certain Walworth County employees fall within the immunity provisions of sec. 893.80(4), Stats., which provides, in part, as follows:

No suit may be brought against any ... political corporation, governmental subdivision ... for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Domino was injured when her motorcycle struck a tree which had fallen across a road in the Town of Bloomfield, Walworth county. The Walworth County Sheriff's Department on-duty dispatcher, Patricia Salimes, was notified of the downed tree on July 30, 1979 at 12:55 a.m. Salimes assigned a squad to investigate the report at 1:15 a.m. While enroute, the squad was diverted by the dispatcher to an accident involving personal injuries. No other squads were reassigned to investigate the downed tree report, nor were any Town of Bloomfield agencies notified. The sheriff's department had contacted the town on other occasions when downed trees blocked town roads. Salimes acknowledged that she could call local town officials to respond to emergency situations. The trial court found the actions of the sheriff's department employees, including Salimes, to be discretionary, as opposed to ministerial, under the language of Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976). Lister defined a ministerial duty as:

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.

Id. at 301, 240 N.W.2d at 622. (Footnote omitted.) The actions under scrutiny in Lister were those of a registrar of the University of Wisconsin in determining who was a resident for tuition purposes. Such activity was determined to be discretionary.

Applying the above language of Lister to a fact situation where a manager of a state park failed to place signs warning the public of dangerous conditions on a nature trail or to advise his superiors of such conditions, the supreme court in Cords v. Anderson, 80 Wis.2d 525, 542, 259 N.W.2d 672, 680 (1977), held such a duty to be so clear and so absolute that it fell within the definition of a ministerial duty. The court in Cords prefaced this holding by stating:

The question here is whether the defendant Anderson had an absolute, certain, or imperative duty to either place the signs warning the public of the dangerous conditions existing on the upper trail or to advise his superiors of the condition with a view toward adequate protection of the public responding to the invitation to use this facility. There comes a time when "the buck stops." Anderson knew the terrain at the glen was dangerous particularly at night; he was in a position as park manager to do something about it; he failed to do anything about it. He is liable for the breach of this duty.

Id. at 541, 259 N.W.2d at 679-80.

We are satisfied that the facts of this case fall within the actions contemplated by Cords rather than Lister. Walworth County argues that Salimes was required to exercise discretion at various points in time with respect to the event in question. We agree. However, simply allowing for the exercise of discretion does not suffice to bring the actions under the blanket of immunity provided by sec. 893.80(4), Stats., when the facts or the allegations reveal a duty so clear and absolute that it falls within the concept of a ministerial duty. Domino appropriately observes that adoption of Walworth County's position in this case would effectively emasculate the holding of the supreme court in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), abolishing municipal immunity ¹ from tort liability because nearly every human action involves the exercise of some discretion.

Although embracing different facts, Foss v. Town of Kronenwetter, 87 Wis.2d 91, 273 N.W.2d 801 (Ct.App.1978), offers insight into the distinction between discretionary and ministerial acts. Foss...