Engelhardt v. City of New Berlin, 2016AP801

Decision Date04 January 2019
Docket NumberNo. 2016AP801,2016AP801
Citation921 N.W.2d 714,385 Wis.2d 86,2019 WI 2
Parties Michael ENGELHARDT, Julieann Engelhardt, Individually and as the Personal Representative of the Estate of Lily Engelhardt, Plaintiffs-Respondents-Petitioners, State of Wisconsin Department of Health Services, Involuntary-Plaintiff, v. CITY OF NEW BERLIN, ABC Insurance Company and New Berlin Parks and Recreation Department, Defendants-Appellants, Wiberg Aquatic Center f/k/a Wirth Aquatic Center and MNO Insurance Company, Defendants.
CourtWisconsin Supreme Court

For the plaintiffs-respondents-petitioners, there were briefs filed by Christopher E. Rogers, Susan R. Tyndall, and Habush Habush & Rottier S.C., Madison. There was an oral argument by Christopher E. Rogers.

For the defendants-appellants, there was a brief filed by Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee. There was an oral argument by Dustin T. Woehl.

An amicus curiae brief was filed on behalf of Wisconsin Association for Justice by William C. Gleisner, III, and Law Offices of William C. Gleisner, III, Brookfield.

An amicus curiae brief was filed on behalf of League of Wisconsin Municipalities, Wisconsin Towns Association, and Wisconsin Counties Association by Ted Waskowski, Kyle W. Engelke, and Stafford Rosenbaum, LLP, Madison. There was an oral argument by Kyle W. Engelke.

SHIRLEY S. ABRAHAMSON, J.

¶1 This is a review of an unpublished decision of the court of appeals reversing the circuit court's denial of summary judgment to the City of New Berlin and the New Berlin Parks and Recreation Department (together, "New Berlin").1

¶2 Eight-year-old Lily Engelhardt attended a field trip to Brookfield's Wiberg Aquatic Center organized and run by the New Berlin Parks and Recreation Department. Lily could not swim. Lily's mother told Stuart Bell, the "Playground Coordinator" in charge of the field trip, that Lily could not swim. She questioned whether Lily should go on the trip at all. Bell responded that Lily would be safe because her swimming ability would be evaluated at the shallow end or zero depth area of the pool. Tragically, Lily drowned while staff and other children were changing in the locker rooms and proceeding to the pool deck.

¶3 Lily's parents filed suit against New Berlin and several other defendants, alleging negligence. New Berlin moved for summary judgment, arguing that it was immune from suit pursuant to the governmental immunity statute, Wis. Stat. § 893.80(4) (2011-12).2 The circuit court denied New Berlin's summary judgment motion, and New Berlin moved for leave to appeal. The court of appeals granted New Berlin's motion and reversed the circuit court's denial of summary judgment to New Berlin.

¶4 We conclude that New Berlin is not entitled to the defense of governmental immunity. The known danger exception to governmental immunity applies in the instant case.

¶5 The known danger exception to governmental immunity, set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), applies when an obviously hazardous situation known to the public officer or employee is of such force that a ministerial duty to correct the situation is created.3 "[A] dangerous situation will be held to give rise to a ministerial duty only when ‘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.' "4

¶6 In the instant case, the danger to which Lily was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident. The obvious dangers involved here resemble other obviously hazardous circumstances presented in Wisconsin cases that applied the known danger exception.5 Drowning was a known danger. Under the circumstances present here, Bell and other camp staff had a ministerial duty to give Lily a swim test before allowing her near the pool. They did not perform this ministerial duty.

¶7 Because New Berlin is not entitled to the defense of governmental immunity, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

I

¶8 The instant case reaches this court on summary judgment. We recite the facts in the light most favorable to the Engelhardts, the parties opposing summary judgment, and draw all reasonable inferences from those facts in their favor.6

¶9 On Monday, July 2, 2012, eight-year-old Lily Engelhardt started her first day at a summer day camp organized and run by the New Berlin Parks and Recreation Department. On her second day of camp, the camp was scheduled to take a field trip to Brookfield's Wiberg Aquatic Center.

¶10 Lily could not swim. Despite having taken three sessions of beginner swimming lessons through the New Berlin Parks and Recreation Department, Lily had not moved on to the next level and was otherwise not making much progress. Other than these three sessions of swimming lessons, Lily had very little experience with swimming or being in or around pools.

¶11 The field trip to the Aquatic Center was optional. When Lily's mother received a permission slip upon picking Lily up after her first day, she questioned whether Lily should go on the field trip given that Lily could not swim.

¶12 Lily's mother communicated her concerns to Stuart Bell, the "Playground Coordinator" in charge of the day camp program. She told Bell that Lily could not swim and asked whether Lily should go on the field trip to the Aquatic Center. Bell responded that it would be all right for Lily to attend the field trip because Lily would be restricted to the splash pad area of the Aquatic Center.

¶13 In his deposition, Bell testified that New Berlin gave swim tests to all new campers in order to test their swimming ability. In fact, when Lily's mother told Bell that her daughter could not swim, Bell told her that Lily would be safe because her swimming ability would be evaluated at the pool. However, Lily was not given a swim test, and Bell told no other staff members that Lily could not swim.

¶14 The Aquatic Center was very busy the day of the field trip. Upon arriving at the Aquatic Center, 77 campers were divided by gender and went into the locker rooms to change. Although new campers who had not been given a swim test were instructed to find a leader before getting into the pool, they were not directed to go to any specific location to find a leader, and no leaders were stationed at the locker room door to direct them.

¶15 At some point when most of the children were in the water but before all staff members were out of the locker room, lifeguards had already discovered a distressed Lily in the pool. Despite the efforts of lifeguards and other medical personnel, Lily died as a result of this incident.

¶16 Lily's parents sued New Berlin and several other defendants, alleging negligence. New Berlin moved for summary judgment, arguing that it was immune from suit pursuant to Wis. Stat. § 893.80(4). The circuit court determined that an issue of fact precluded New Berlin's immunity as a matter of law. New Berlin moved for leave to appeal. The motion was granted by the court of appeals.

¶17 The court of appeals reversed the circuit court, concluding that New Berlin was immune from suit under Wis. Stat. § 893.80(4)7 and was entitled to summary judgment.

¶18 The court of appeals reasoned that none of the camp documents highlighted by the Engelhardts (specifically, the camp's information packet, staff guidelines, and staff handbook) created ministerial duties and that the known danger exception to governmental immunity did not apply.

II

¶19 The issue presented is whether New Berlin is entitled to governmental immunity or whether an exception to governmental immunity applies. "Whether an exception to immunity applies requires us to determine the proper scope of the common law doctrine of governmental immunity; that is a question of law that we review de novo without deference to the circuit court or court of appeals, but benefitting from the analysis of each court."8

III
A

¶20 We begin our analysis with the text of Wis. Stat. § 893.80(4), the governmental immunity statute.9

¶21 In relevant part, Wis. Stat. § 893.80(4) immunizes municipalities from liability arising out of "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."

¶22 For over 40 years, this court has consistently interpreted this particular statutory language to include any acts that involve the exercise of discretion.10 Immunizing government officials from liability arising out of their discretionary acts "is based largely upon public policy considerations that spring from the interest in protecting the public purse and a preference for political rather than judicial redress for the actions of public officers."11 We highlighted these important policy considerations in Lister v. Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976), as follows:

(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office.12

¶23 Despite decades of legislative silence with regard to this court's long-standing interpretation of the governmental immunity statute, the Engelhardts invite this court to reverse course on the past 40 years of Wisconsin jurisprudence interpreting the governmental immunity statute.13 They urge the court to adopt an interpretation of the statute that would have the effect of exposing municipalities to liability in a far greater...

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    ...for rejecting such a dramatic reworking of this area of the law were aptly explained by our opinion mere months ago in Engelhardt v. City of New Berlin, 2019 WI 2, ¶¶ 21-28, 385 Wis. 2d 86, 921 N.W.2d 714.¶35 In Engelhardt, a majority of this court rejected the same invitation the dissent h......
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