Kimps v. Hill

• Decision Date: 15 September 1994
• Docket Number: No. 92-2736,92-2736
• Citation: 523 N.W.2d 281,187 Wis.2d 508
• Parties: , 95 Ed. Law Rep. 370 Renee KIMPS, Plaintiff-Respondent-Cross Appellant-Cross Respondent, d ]] North Central Health Care Protection Plan, Nominal-Plaintiff, v. Dr. Leonard M. HILL, Defendant-Appellant-Cross Respondent, Jayfro Corporation, a Subsidiary of Verified Sports, Inc., Defendant-Respondent-Cross Respondent-Cross Appellant,d Allen R. Kursevski, Defendant-Cross Respondent, Dr. John Munson, Marty Loy, Sister Rosella Reinwand, Jerry Burling, Milwaukee Sporting Goods, Pacific Employers Insurance Company, Allen R. Kursevski, Donald P. Burling, Gregory Diemer, Valley School Suppliers, a Division of QIII Corporation and INA Insurance Company, Defendants.
• Court: Wisconsin Court of Appeals

Page 281

523 N.W.2d 281

187 Wis.2d 508, 95 Ed. Law Rep. 370

Renee KIMPS, Plaintiff-Respondent-Cross Appellant-Cross Respondent, ^d]] North Central Health Care Protection Plan, Nominal-Plaintiff, v. Dr. Leonard M. HILL, Defendant-Appellant-Cross Respondent Jayfro Corporation, a Subsidiary of Verified Sports, Inc. Defendant-Respondent-Cross Respondent-Cross Appellant,d Allen R. Kursevski, Defendant-Cross Respondent Dr. John Munson, Marty Loy, Sister Rosella Reinwand, Jerry Burling, Milwaukee Sporting Goods, Pacific Employers Insurance Company, Allen R. Kursevski, Donald P. Burling Gregory Diemer, Valley School Suppliers, a Division of QIII Corporation and INA Insurance Company, Defendants.

No. 92-2736.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 6, 1994.

Opinion Released Sept. 15, 1994.

Opinion Filed Sept. 15, 1994.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

This is an appeal and cross-appeal from a judgment against Dr. Leonard M. Hill, a physical education professor at the University

of Wisconsin--Stevens Point. The judgment arose out of a negligence action in which Renee Kimps asserted that her foot was injured when a volleyball standard fell on it. The issue is whether Professor Hill is entitled to the protection of public officer immunity. Kimps and Jayfro Corporation cross-appeal from the trial court's ruling that Allen Kursevski, a former safety officer at the university, was entitled to public officer immunity as to Kimps's claims. We conclude that both Hill and Kursevski are entitled to public officer immunity from Kimps's claims. Accordingly, we affirm in part and reverse in part.

BACKGROUND

Professor Hill taught a class in physical education for future teachers. As part of the class, Kimps and other students taught groups of small children under Professor Hill's supervision. On October 20, 1988, Kimps and other students were preparing to teach the children how to play volleyball. Poles holding the nets were inserted in very heavy metal bases called "standards" which had been purchased from Jayfro in 1969. The poles were secured in the standards with screws, and the standards had wheels on them so they could be moved. Kimps's foot was injured when a standard separated from its pole as the apparatus was being pulled across the floor by another student.

In 1986, a similar accident had occurred when one of the standards separated from its pole, injuring a maintenance worker. The accident was investigated by Alan Kursevski, the university's safety officer at that time. As university procedures required, Kursevski filed an accident report. He also had a discussion with another university employee who suggested that a bolt be placed through both the standard and the pole, so that they would not separate. Kursevski concluded that this would create as much or more of a danger than it would solve, so he did not follow this suggestion.

At the close of Kimps's case, the State moved for dismissal as to Professor Hill and Kursevski because, it argued, both were entitled to public officer immunity. The court took the motion under advisement, and after the jury retired, granted the motion as to Kursevski and denied it as to Professor Hill. The jury allocated negligence as follows: Kimps-ten percent, Jayfro-ten percent, Kursevski-thirty-five percent and Hill-forty-five percent. Professor Hill appeals, Kimps and Jayfro cross-appeal.

STANDARD OF REVIEW

Though we must sustain jury findings if they are supported by any credible evidence, Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984), a determination of what is imposed by a ministerial duty is a question of law which we review de novo. K.L. v. Hinickle, 144 Wis.2d 102, 109, 423 N.W.2d 528, 531 (1988). Whether a duty is ministerial or discretionary determines whether a public officer is entitled to immunity from suit. Id. at 107-08, 423 N.W.2d at 530. Section 893.80(4), STATS., grants immunity to public officers for their discretionary acts. "A public officer's duty is ministerial 'only 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.' " Sheridan v. City of Janesville, 164 Wis.2d 420, 425, 474 N.W.2d 799, 801 (Ct.App.1991) (quoting Lister v. Board of Regents, 72 Wis.2d 282, 301, 240 N.W.2d 610, 622 (1976)).

C.L. v. Olson, 143 Wis.2d 701, 717-18, 422 N.W.2d 614, 620 (1988), describes three exceptions to the rule of public officer immunity: (1) where the officer's duty is ministerial; (2) where "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;" and (3) "where a public officer's challenged decision involves the exercise of discretion but the discretion exercised is not governmental, i.e., does not require the application of statutes to facts nor a subjective evaluation of the law." The parties's arguments as to the issue of public officer immunity differ somewhat as they pertain to Professor Hill and Kursevski. We will therefore examine this issue as to each defendant separately.

PROFESSOR HILL

Kimps and Jayfro argue that Professor Hill failed to provide safe equipment and failed to instruct the students, and that both of these were ministerial duties. While we agree that Professor Hill could be found negligent for these failures, that is not the question before us. The doctrine of public officer immunity assumes that a public officer is negligent. The question before us is whether the officer is entitled to immunity.

After considering the exceptions to public officer immunity noted in C.L., 143 Wis.2d at 717-18, 422 N.W.2d at 620, we conclude that Professor Hill's duty was discretionary. All persons have a duty to conduct themselves in a manner that will not harm or endanger others. Hertelendy v. Agway Ins. Co., 177 Wis.2d 329, 334, 501 N.W.2d 903, 905 (Ct.App.1993). But in public officer immunity cases, the question is whether that duty is ministerial or discretionary. There is no question but that Professor Hill's duty was discretionary. A professor is paid to teach, and should not be forced to spend his or her time checking nuts and bolts on classroom equipment. Professor Hill testified that he positioned himself near the trampoline rather than other sports activities because students had the most risk of injury on the trampoline. He did not inspect the volleyball set screws because he had many things to do on the day of the accident. Tightening bolts and conducting tests on sports equipment is not something that the law "imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment or discretion." C.L., 143 Wis.2d at 717, 422 N.W.2d at 620. Kimps and Jayfro do not cite any statutes, rules, policies or orders requiring that volleyball base set screws be checked by anyone, let alone by Professor Hill.

Furthermore, Kimps and Jayfro do not directly argue that the loose set screws were a known present danger of such force that nothing remained for judgment. And there is no evidence that Professor Hill knew the screws were loose, or that loose set screws created the certainty of injury that would have required Professor Hill to act had he known of them. Thus, the second C.L. exception to the rule of public officer immunity is inapplicable.

Kimps and Jayfro both contend that the third C.L. exception applies here. They argue that the discretion not to check equipment is not governmental, and that under Scarpaci v. Milwaukee County, 96 Wis.2d 663, 292 N.W.2d 816 (1980), Protic v. Castle Co., 132 Wis.2d 364, 392 N.W.2d 119 (Ct.App.1986), and Gordon v. Milwaukee County, 125 Wis.2d 62, 370 N.W.2d 803 (Ct.App.1985), some types of exercises of judgment or discretion are professional, not governmental, and are exceptions to the rule of qualified immunity.

But in Stann v. Waukesha County, 161 Wis.2d 808, 468 N.W.2d 775 (Ct.App.1991), we considered the effect of Scarpaci, Protic and Gordon. We concluded:

First, the authorities upon which the Stanns rely for their "discretion but still not governmental discretion" argument are not applicable to the case at bar. Only three Wisconsin decisions have recognized such a distinction. However, each of these cases involved allegations of negligence regarding medical decisions. These cases are restricted to their facts, as no Wisconsin decision applies this exception in any other setting.

Stann, 161 Wis.2d at 818, 468 N.W.2d at 779 (footnote omitted) (emphasis added).

Kimps and Jayfro recognize this language from Stann, but assert: "There is nothing in those cases [Scarpaci, Protic and Gordon ] which supports [limiting their holding to medical decisions]." Yet this argument leads to the conclusion that we should either ignore Stann or overrule it. Section 752.41(2), STATS., provides: "Officially published opinions of the court of appeals shall have statewide precedential effect." And, in Ranft v. Lyons, 163 Wis.2d 282, 299-300 n. 7, 471 N.W.2d 254, 260-61 n. 7 (Ct.App.1991), we concluded that even though we would decide an issue differently were it a matter of first impression, we would follow our prior published decision to the contrary. While we may withdraw language from a prior opinion, Kimpton v. School Dist., 138 Wis.2d 226, 234 Next, Kimps and Jayfro argue that by referring to C.L., and discussing the analysis employed by the trilogy of medical discretion cases when we decided Sheridan, we held that the logic of those three cases was not limited to medical care cases, thus implicitly overruling our holding to the contrary in Stann. Sheridan, 164 Wis.2d at 424-28, 474 N.W.2d at 801-03. We disagree. C.L. and...