Jones v. Wi. County Mutual Ins. Corp.
| Decision Date | 09 April 2002 |
| Docket Number | 01-1946 |
| Parties | This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. Lillie M. Jones and Eugene Jones, Plaintiffs-Respondents, v. Wisconsin County Mutual Insurance Corporation and Shawano County, Defendants-Appellants, AARP Health Care Options, Defendant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III COURT OF APPEALS |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Shawano County: THOMAS G. GROVER, Judge. Reversed and cause remanded with directions.
Cornelia G. Clark Clerk of Court of Appeals
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1.
Shawano County and Wisconsin County Mutual Insurance Corporation petitioned for leave to appeal an order denying their summary judgment motion.1 We granted leave. Lillie Jones brought this action to recover for injuries sustained when she fell down steps at the entrance to Evergreen Group Home, owned by Shawano County. The court determined that the County was not immune from Jones's personal injury suit and accordingly denied its summary judgment motion.
¶2. The County and its insurers argue that the trial court erroneously concluded that Wisconsin's safe-place statute, Wis. Stat. §101.11, creates a ministerial duty to construct and maintain a safe stairway and landing at the group home. They also contend that neither the "known and present danger" rule nor the Wisconsin Administrative Code creates a ministerial duty under the circumstances of this case. We agree. Because the County's duty was discretionary, we conclude that the County is immune from Jones's suit. We therefore reverse the order and remand with directions to grant the County and their insurer their motion for summary judgment of dismissal.
¶3. When the County purchased the group home in 1998, it installed a wheelchair ramp and railing to access the set of front doors. The entranceway originally had two steps leading to a concrete landing. When the County added a ramp on the opposite side of the landing, the contractor who performed the work made it uneven. The side where the ramp ends is two and three-quarter inches higher than the side at the top of the steps. As a result, there is a "tripper" running down the center of the landing, perpendicular to the set of doors.
¶4. In March 1999, Jones visited the group home. When she was standing on the landing, the door to the group home opened. Jones stepped out of the way and tripped over the two-and-three-quarter-inch drop. She fell down the steps and suffered severe head injuries.
¶5. Jones and her husband brought this action claiming that the County was negligent in the construction and maintenance of the premises where she fell. She claimed that the County violated the safe-place statute.
¶6. The County moved for summary judgment on the ground of governmental immunity. It argued that all of its decisions and actions involved in building and maintaining the landing were discretionary. The trial court disagreed and determined that the County was not immune. The court ruled: "[A]s a ministerial duty you, if you build a step, you cannot have a 3 inch rise in it." The court concluded that the County's duty was ministerial under Anderson v. City of Milwaukee, 199 Wis. 2d 479, 544 N.W.2d 630 (Ct. App. 1996) (AndersonI), rev'd, 208 Wis. 2d 18, 559 N.W.2d 563 (1997) (Anderson II), and denied the County's motion. We granted the County's petition for leave to appeal the court's denial of its summary judgment motion.
¶7. When reviewing a summary judgment, we perform the same function as the trial court and our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. See Wis. Stat. §802.08.
¶8. Generally, in Wisconsin a county is immune from liability for injuries resulting from acts "done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." Wis. Stat. §893.80(4).2 Immunity is grounded in the common law and based on public policy considerations. Kimps v. Hill, 200 Wis. 2d 1, 9-11, 546 N.W.2d 151 (1996). These considerations include:
(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.
Id. at 9. It is "the categorization of the specific act upon which negligence is based and not the categorization of the overall general duties of a public officer which will dictate" whether §893.80(4) provides immunity. Coffey v. City of Milwaukee, 74 Wis. 2d 526, 533-34, 247 N.W.2d 132 (1976).
¶9. This immunity doctrine is not without exception, however, and the most common is that a public officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty. Kimps, 200 Wis. 2d at 10.
The test for determining whether a duty is discretionary (and therefore within the scope of immunity) or ministerial (and not so protected) is that the latter is found " 'only when [the duty] 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.' "
Id. at 10-11 (citation omitted).
¶10. In Spencer v. County of Brown, 215 Wis. 2d 641, 651, 573 N.W.2d 222 (Ct. App. 1997), we concluded that the duty imposed by the safe-place statute, Wis. Stat. § 101.11, was discretionary. In that case, a jail inmate slipped on a terrazzo floor in a shower area. We determined that §101.11 "does not impose the duty to perform an act with specificity as to time, mode and occasion `with such certainty that nothing remains for judgment or discretion.'" Id. (citations omitted). Under the terms of the safe-place statute, the defendants were required to use reasonably adequate methods to make facilities safe. Id. The statutory language "implies the exercise of discretion and judgment by government officials in determining what measures are reasonably necessary to make the ... facilities safe." Id.
¶11. In Spencer, we recognized that Anderson I reached an apparently conflicting result. In that case, the plaintiff tripped and fell on a raised line of bricks on a walkway at a farmer's market owned, constructed and operated by the city. Id. at 485. Anderson I held that once the city had exercised its discretion to construct the farmer's market, it had a ministerial duty to comply with the safe-place statute. Id. at 493. It also concluded that the city waived the Wis. Stat. § 893.80(3) damage limitation and, accordingly, was subject to liability under the safe-place statute. Id. at 492.
¶12. The supreme court reversed, holding that the Wis. Stat. § 893.80(3) damage limitation was not impliedly waived. Anderson II, 208 Wis. 2d at 33-34. The court also considered whether the Wis. Stat. § 893.80(4) discretionary immunity defense can be waived by omission, and held that it is an affirmative defense that is deemed waived if not raised. Id. at 34. Because it concluded that the city had waived its statutory immunity defense, the supreme court did not reach the issue whether the city had a ministerial duty to comply with the safe-place statute. Id. at 35-36.
¶13. Ordinarily, "holdings not specifically reversed on appeal retain precedential value." Spencer, 215 Wis. 2d at 650. However, we noted that in Anderson II, our supreme court observed: "Since this determination [that city waived immunity defense] is dispositive, and since, therefore, we do not reach the ministerial duty-safe-place issue, we emphasize that our decision should not be taken as approval of the reasoning of the Court of Appeals on that issue." Spencer, 215 Wis. 2d at 650-51 (quoting Anderson II, 208 Wis. 2d at 37 n.17).
¶14. Based on that cautionary note, we declined to apply the reasoning that has not been approved by our state supreme court, though not specifically overruled. Id. at 651. Therefore, we concluded that the duty imposed by the safe-place statute was discretionary. Id.
¶15. Our result was consistent with prior case law. In Meyer v. Carman, 271 Wis. 329, 73 N.W.2d 514 (1955), the supreme court "reversed the trial court's finding that defendants were not immune because they breached a ministerial duty imposed by a statute requiring defendants to `keep the buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at all times.'" Spencer, 215 Wis. 2d at 651-52 (citation omitted). Hence, we determined that "while the safe-place statute imposes a duty on owners of public buildings to maintain safe premises for employees and frequenters, the duty set forth in §101.11, Stats., does not rise to the level of imposing a ministerial duty for purposes of analysis under § 893.80(4), Stats." Id. at 652.
¶16. Jones argues, nonetheless, that because of the analogous fact situation presented in Anderson I, its outcome must control here. We disagree. For the reasons advanced in Spencer, we decline to characterize the County's duty as ministerial. Also,
[a]t first blush it might appear that the duty to keep the school grounds "safe" is ministerial in character, but it is apparent on closer analysis that a great many circumstances may need to be considered in deciding what action is necessary to do so, and such decisions involve the exercise of...
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