Legue v. City of Racine & Amy L. Matsen

• Decision Date: 25 July 2014
• Docket Number: No. 2012AP2499.,2012AP2499.
• Citation: 849 N.W.2d 837,2014 WI 92
• Parties: Eileen W. LEGUE, Plaintiff–Appellant, Department of Health and Human Services and Farmers Insurance Exchange, Involuntary–Plaintiffs, v. CITY OF RACINE and Amy L. Matsen, Defendants–Respondents.
• Court: Wisconsin Supreme Court

849 N.W.2d 837

2014 WI 92

Eileen W. LEGUE, Plaintiff–Appellant,Department of Health and Human Services and Farmers Insurance Exchange, Involuntary–Plaintiffs,

v.CITY OF RACINE and Amy L. Matsen, Defendants–Respondents.

No. 2012AP2499.

Supreme Court of Wisconsin.

Argued March 14, 2014.

Decided July 25, 2014.

For the plaintiff-appellant, there were briefs by Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee, and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Thomas M. Devine, Anthony P. Hahn, Jennifer O. Hemmer, and Hostak, Henzl & Bichler, S.C., Racine, and oral argument by Thomas M. Devine.

An amicus curiae brief was filed by J. Michael Riley and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Association for Justice.

ON CERTIFICATION FROM THE COURT OF APPEALS

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 This is an appeal from a judgment of the circuit court for Racine County, Charles H. Constantine, Judge, dismissing the action of Eileen W. Legue, the plaintiff,¹ against the City of Racine and Amy L. Matsen, a Racine police officer.² The court of appeals certified the appeal to this court pursuant to Wis. Stat. § (Rule) 809.61.

¶ 2 This appeal originates from a collision at an intersection in the City of Racine between the plaintiff's car and a Racine police car driven by Officer Matsen, the defendant. The police car was responding to an emergency dispatch calling the officer to the scene of an accident.

¶ 3 The collision of the automobiles presents an issue of law at the juncture of Wis. Stat. § 893.80 (2011–12),³ governing the immunity of municipal government and its officers and employees, and Wis. Stat. § 346.03, governing the rules of the road for emergency vehicles.

¶ 4 The immunity statute, Wis. Stat. § 893.80(4), declares that no suit may be brought against any governmental actor for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. “These functions are synonymous with discretionary acts.” ⁴ The law of our state is clear that for municipal government actors “the rule is liability—the exception is immunity.” ⁵

¶ 5 The statute governing the rules of the road applicable to emergency vehicles, Wis. Stat. § 346.03, sets forth statutory privileges of authorized emergency vehicles to exempt their operators from certain rules of the road, but also explicitly states that an operator of an emergency vehicle is not relieved of the “duty to drive or ride with due regard under the circumstances for the safety of all persons....” Wis. Stat. § 346.03(5).

¶ 6 The appeal raises two issues of law. The more difficult one implicates the interplay between Wis. Stat. §§ 893.80(4) and 346.03(5). The appeal raises the question of how to reconcile the statutory dichotomy of discretionary immunity and ministerial liability in § 893.80(4) with the statutory imposition of a duty on officers to operate an authorized emergency vehicle “with due regard under the circumstances for the safety of all persons” in § 346.03(5).

¶ 7 The issue is phrased by the court of appeals in its certification memorandum as a question the case law has left open:

Does governmental immunity apply when someone is injured because an officer proceeds against a traffic signal as authorized by Wis. Stat. § 346.03(2)(b) (2011–12), if the officer slowed the vehicle and activated lights and sirens as required by § 346.03(3) but nonetheless arguably violated the duty to operate the vehicle “with due regard under the circumstances” as required by § 346.03(5)? ... More specifically, ... when, if ever, the “due regard” requirement imposed by § 346.03(5) becomes a “ministerial” obligation, violation of which will create an exception to governmental immunity.⁶

¶ 8 The second issue of law is whether, assuming liability for the police officer's alleged negligence, there was credible evidence to support the jury's verdict that the police officer's negligence caused the plaintiff's injuries.⁷

¶ 9 The first issue requires that we interpret the immunity statute and the rules of the road statute and apply them to the facts presented.

¶ 10 The plaintiff asserts that the immunity statute does not apply to the alleged negligent acts of the police officer in failing to keep a proper lookout and failing to maintain a speed that allowed for a proper lookout. In contrast, the defendant asserts that the police officer's decisions regarding lookout and speed, which the plaintiff alleges are part of the duty of “due regard under the circumstances,” are instead part of the officer's discretionary decision to enter the intersection against the red light. In sum, the officer contends that her decisions regarding lookout and speed, when she proceeded through the red light after slowing down with the squad car's lights and siren engaged in compliance with Wis. Stat. § 346.03(2)(b) and (3), were immune discretionary acts.

¶ 11 Both parties rely on Estate of Cavanaugh v. Andrade, 202 Wis.2d 290, 319, 550 N.W.2d 103 (1996), to support their respective positions.

¶ 12 The plaintiff relies on the following sentence in Cavanaugh:

In sum, despite the general discretionary act immunity set forth in § 893.80(4), a negligence action may be sustained against an officer involved in a high-speed pursuit on the grounds that he or she breached the duty to operate the vehicle with “due regard under the circumstances” under § 346.03(5).

Cavanaugh, 202 Wis.2d at 319, 550 N.W.2d 103.

¶ 13 The defendant relies on the very next sentence in Cavanaugh:

However, the negligent operation under § 346.03(5) does not include the discretionary decisions to initiate or continue a pursuit; such discretionary decisions continue to be afforded immunity under § 893.80(4).

Id.

¶ 14 In its certification memorandum, the court of appeals pointed out that Cavanaugh instructs that “an officer can be liable for negligent driving during an emergency response if damages were caused by the officer's negligent operation of the vehicle beyond the context of the discretionary decision itself.” Yet this leaves us to puzzle: Which decisions go to negligent operation, and which go to the discretionary decision?

¶ 15 The court of appeals explains this gray area left by Cavanaugh as follows:

When, if ever, does a public officer's obligation to operate an emergency vehicle with “due regard under the circumstances” under Wis. Stat. § 346.03(5) create an exception to the governmental immunity provided by Wis. Stat. § 893.80?

When, if ever, does a public officer's decision to violate rules of the road during an emergency trigger potential liability for arguable failure to operate with “due regard under the circumstances” by making that decision?

¶ 16 We conclude that the immunity statute does not apply in the present case to the police officer's violation of the duty to operate the vehicle “with due regard under the circumstances.” A contrary outcome would contravene Wis. Stat. § 893.80(4) and 346.03(5), public policy, the rules of statutory interpretation, and case law.

¶ 17 We further conclude that there was credible evidence to support the jury verdict of causal negligence on the part of the police officer.

¶ 18 For the reasons set forth, we reverse the judgment of the circuit court dismissing the action and remand the matter to the circuit court to reinstate the jury verdict.

¶ 19 We reach this conclusion by reasoning as follows:

I. We state the facts and procedural posture of the appeal.

II. We survey the current state of the doctrine of governmental immunity governed by Wis. Stat. § 893.80(4) to give context for our decision in the instant case.

III. We state and apply the rules of statutory interpretation to Wis. Stat. § 893.80(4) and § 346.03(5).

IV. We scrutinize our case law, especially Estate of Cavanaugh v. Andrade, 202 Wis.2d 290, 550 N.W.2d 103 (1996), for principles guiding our understanding of the interplay of Wis. Stat. §§ 893.80(4) and 346.03(5), the distinction between immune discretionary and non-immune ministerial acts under Wis. Stat. § 893.80(4), and the nature of the duty of “due regard” in Wis. Stat. § 346.03(5).

V. Upon holding that immunity does not apply in the instant case, we search the record for credible evidence to support the jury verdict that the police officer's alleged negligent acts caused the plaintiff's injury.

¶ 20 For the reasons set forth, we reverse the judgment of the circuit court dismissing the action and remand the matter to the circuit court to reinstate the jury verdict.

I

¶ 21 The facts and procedural history of this case are undisputed for purposes of this appeal.

¶ 22 On July 27, 2009, Police Officer Amy Matsen responded to a dispatch calling her to the scene of a motor vehicle accident with unknown injuries. She engaged in a full emergency response, activating her lights and siren in the squad car and exceeded the speed limit.

¶ 23 At around noon, she was proceeding northbound on Douglas Avenue in the City of Racine at a high rate of speed, occasionally using the car's bullhorn.

¶ 24 As she approached the intersection of Douglas Avenue and South Street, she observed the red light and slowed her car to 27 miles per hour. The posted speed limit was 30 miles per hour. Northbound traffic was stopped at the light. The officer maneuvered her car around the traffic stopped at the light and into the southbound lanes of Douglas Avenue to enter the intersection.

¶ 25 Before impact, the officer saw another vehicle turn from the eastbound lane of South Street onto the southbound lane of Douglas Avenue. The officer testified that she had to maneuver her car to avoid the turning car.

¶ 26 When the officer's car entered the intersection, the plaintiff's car was eastbound on South Street at 30 miles per hour. Eastbound traffic, including the plaintiff, had a green light. The plaintiff did not slow down when she entered the intersection. The plaintiff's radio was on; the car's air conditioning was...