Kimps v. Hill

Decision Date10 April 1996
Docket NumberNo. 92-2736,92-2736
Citation546 N.W.2d 151,200 Wis.2d 1
Parties, 108 Ed. Law Rep. 930 Renee KIMPS, Plaintiff-Respondent-Cross Appellant-Cross Respondent-Petitioner, 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-Petitioner, 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.
CourtWisconsin Supreme Court

Appeal from Circuit Court, Portage County, Frederic Fleishauer, Judge.

For the plaintiff-respondent-cross appellant-cross respondent-petitioner there were briefs by Keith F. Ellison, Paul E. David and Patterson, Richards, Hessert, Wendorff & Ellison, Wausau, and oral argument by Keith F. Ellison.

For the defendant-appellant-cross respondent there were briefs by David A. Ray and Terwilliger, Wakeen, Piehler & Conway, S.C., Stevens Point, and Frank A. Scherkenbach, Susan R. Tyndall and Hinshaw & Culbertson, Milwaukee, of counsel and oral argument by David A. Ray.

For the defendant-appellant-cross respondent the cause was argued by Robert D. Repasky, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

GESKE, Justice.

This is a review of a published decision of the court of appeals, 1 affirming in part and reversing in part the judgment of the Circuit Court for Portage County, Frederic W. Fleishauer, Judge. The case arose as a negligence action brought by Renee Kimps (Kimps), for a foot injury she sustained during a class at the University of Wisconsin-Stevens Point (UW-SP). The central issue is whether public officer immunity bars recovery against either or both named state employee defendants. The circuit court dismissed the claim against Allen Kursevski (Kursevski), a former UW-SP safety officer, on grounds of immunity, but ruled that Leonard Hill (Hill), the instructor of the class in which Kimps was injured, was not entitled to such immunity. The court of appeals reversed in part, concluding that both men were entitled to public officer immunity. We agree.

FACTS

Kimps was enrolled at UW-SP studying to be an elementary teacher. On October 20, 1988, she attended a required laboratory section of Physical Education for the Classroom Teacher in which the student teachers were to instruct young children, who had volunteered for the exercise, in a variety of physical education activities. Kimps and her partner had chosen to present a class on volleyball. As part of the course, Hill instructed his students on general safety matters and the use of some of the more dangerous gymnastics equipment, but did not give any specific warnings as to use of the volleyball equipment. Approximately 60 college students were enrolled in the course and about 100 children between the ages of three and twelve were participating. The class was simultaneously conducted in three adjacent areas of the gymnasium. Hill testified that he had decided to primarily direct his attention on that day to supervision of the trampoline class, as the equipment was the most complicated and its use posed the greatest risk of injury in his opinion.

UW-SP had purchased nine sets of portable volleyball standards (poles to which a volleyball net is attached) from their manufacturer, Jayfro Corporation, between 1969 and 1971. The standards were designed to disassemble for storage and consisted of detachable poles which fit into sleeves or holes in the 150 pound metal bases. The poles were held in place by two set screws which passed through the sleeve and tightened against the outside surface of the pole. The standard is designed to be moved by tipping it onto two wheels permanently mounted on the sides of the circular base and either pulling or pushing on the pole.

In preparation for her class exercise, Kimps and another student were moving a volleyball standard which was kept in a hallway near the gym. Kimps, who was walking behind the standard, was injured when the metal base separated from the pole and fell onto her foot as the student who was pulling it tried to dislodge it from a doorsill on which it had become stuck.

Two years prior to this incident, in October of 1986, a similar accident occurred in which a pole separated from its base which fell onto the foot of a maintenance worker who was helping to move one of the standards. At the time, Kursevski was the safety officer at UW-SP. 2 He investigated the incident, which had been reported under worker's compensation. Another employee 3 suggested to Kursevski the possibility of drilling holes into the standards and inserting a bolt through the sleeve into the interior of the poles. However, Kursevski decided that altering the manufacturer's design potentially posed a greater risk management problem than leaving it as is and rejected the idea.

Kursevski determined that the appropriate response to the accident was that maintenance personnel should check to make sure the set screws were tight before moving the standards. He memorialized this in the required worker's compensation report in the following manner: "supervisors must check equipment and material to insure that it can be safely used and/or handled." Existing UW-SP procedures did not provide for campus-wide distribution of these reports. Neither the administration nor any of the teaching personnel in the physical education department, including Professor Hill, knew of the maintenance worker's accident. Hill testified that, in his twenty-plus years of teaching (eight of them at UW-SP) and using such volleyball standards, he was not aware of any prior occasions on which a pole and base had separated.

Kimps brought a negligence action against Hill, Kursevski and Jayfro, the manufacturer of the volleyball standard. 4 At the close of Kimps' case in the ensuing trial, the State (representing its employees, Hill and Kursevski) moved for dismissal of the claims against both men on the basis of public officer immunity. The circuit court took the motion under advisement and, after the jury had retired for deliberations, granted the motion as to Kursevski but denied it as to Hill. The jury returned a verdict allocating causal negligence in the following manner: Renee Kimps (plaintiff)--10 percent; Jayfro Corp. (defendant)--10 percent; Allen Kursevski (defendant)--35 percent; Dr. Len Hill (defendant)--45 percent. The jury fixed damages at $59,853.

Hill appealed the judgment against him, and Kimps and Jayfro cross-appealed concerning Kimps' rights of recovery against Kursevski. The court of appeals concluded that both Hill and Kursevski were entitled to immunity as public officers and therefore affirmed the circuit court's dismissal of the claim against Kursevski and reversed the order of judgment against Hill. This court granted Kimps' and Jayfro's petitions for review.

ISSUES

(1) Is professor Hill entitled to the protection of public officer immunity?

(2) Is former UW-SP safety officer Kursevski entitled to the protection of public officer immunity?

Both issues require us to determine the proper scope of the common law doctrine of public officer immunity, a question of law which we review de novo without deference to the courts below. K.L. v. Hinickle, 144 Wis.2d 102, 109, 423 N.W.2d 528 (1988).

Although both the petitioners and respondents, in their briefs, and the court of appeals, in its opinion, addressed the arguments concerning immunity as they applied to Hill and then Kursevski sequentially, we will approach them topically. The arguments raised by the petitioners can be generally divided into the categories of: discretionary versus ministerial duties, known and compelling danger, the applicability of the "sign cases" (or the duty to maintain), and finally, an effort to distinguish governmental versus non-governmental and planning versus operational conduct. Following a short introduction, we will address each category in turn in an attempt to clarify overlapping issues and arguments.

PUBLIC OFFICER IMMUNITY

Immunity for public officers does not arise from the state's sovereign immunity (which is constitutional in nature), 5 but rather is grounded in the common law and based on public policy considerations. Lister v. Board of Regents, 72 Wis.2d 282, 299, 240 N.W.2d 610 (1976). 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.

C.L. v. Olson, 143 Wis.2d 701, 709, 422 N.W.2d 614 (1988) (quoting Lister, 72 Wis.2d at 299, 240 N.W.2d 610).

Under the general rule as applied in Wisconsin, state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Lister, 72 Wis.2d at 300, 240 N.W.2d 610. 6 This doctrine of immunity is not without exception, however, the most common of which is that a public officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty. 7 Id. at 300-301, 240 N.W.2d 610. 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...

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