Fanello v. Weisenberger, 01-2999

• Decision Date: 18 June 2002
• Docket Number: 01-2999
• Citation: 256 Wis. 2d 1048,650 N.W.2d 322
• Parties: David Fanello, Sr. and Shelly Weeth, Plaintiffs-Appellants, v. Ralph Weisenberger and County of Trempealeau, Defendants-Respondents, ABC Insurance Company, Defendant. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III DATED AND FILED
• Court: Wisconsin Court of Appeals

David Fanello, Sr. and Shelly Weeth, Plaintiffs-Appellants v Ralph Weisenberger and County of Trempealeau, Defendants-Respondents, ABC Insurance Company, Defendant

Appeal No. 01-2999

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

DATED AND FILED June 18, 2002

APPEAL from a judgment of the circuit court for Trempealeau County: JOHN A. DAMON, Judge. Affirmed. Cir. Ct. No. 00-CV-162

Before Cane, C.J, Hoover, P.J., and Peterson, J.

1. PER CURIAM.

David Fanello and Shelly Weeth appeal a summary judgment dismissing their negligence action against Trempealeau County and Sheriff Ralph Weisenberger. The trial court concluded that the County and sheriff are immune from suit under Wis. Stat. 893.80(4). Fanello and Weeth argue that the County coroner's and sheriff's negligent failure to find a portion of their son's skull that was left near the scene of an accident falls within two exceptions to the immunity rule: (1) known and compelling danger and (2)nongovernmental, medical decisions. We reject these arguments and affirm the judgment.

2. Fanello's and Weeth's son died from massive head trauma when he was ejected from a car in a nighttime rollover accident. The coroner removed his body from the scene on the night of the accident. Three days later, Fanello inspected the scene and found what he believed to be a portion of his son's skull in ankle-deep grass two feet off the road surface. It was later given to the funeral director and cremated with his son's body. Fanello and Weeth claim emotional distress from the coroner's and sheriff's failure to find and transport that piece of skull.

3. Wisconsin Stat. 893.08(4) prohibits lawsuits against governmental subdivisions or their officers, agents or employees for discretionary, nonministerial acts. See Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 288, 531 N.W.2d 357 (Ct. App. 1995). A government employee's duty is considered ministerial rather than discretionary 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." See Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 91, 596 N.W.2d 417 (1999).

4. Wisconsin courts have recognized four exceptions to the governmental immunity doctrine, two of which are argued in this case. The County and its employees are not immune if they fail to eliminate or warn of a "compelling and known danger" such as the failure to warn hikers that a trail came within inches of a ninety-foot gorge. See Cords v. Anderson, 80 Wis. 2d 525, 538, 269 N.W.2d 672 (1977). In addition, governmental immunity does not apply to government employees performing medical, nongovernmental functions such as an autopsy. See Scarpaci v. Milwaukee Cty., 96 Wis. 2d 663, 685, 292 N.W.2d 816 (1980).

5. The trial...