Lifer v. Raymond

• Decision Date: 14 November 1977
• Docket Number: No. 75-646,75-646
• Citation: 80 Wis.2d 503,259 N.W.2d 537
• Parties: Jack L. LIFER, by Edward Grutzner, his guardian ad litem, Appellant, v. Charles L. RAYMOND and Hallmark Insurance Company, Inc., Respondents.
• Court: Wisconsin Supreme Court

Page 537

259 N.W.2d 537

80 Wis.2d 503

Jack L. LIFER, by Edward Grutzner, his guardian ad litem, Appellant, v. Charles L. RAYMOND and Hallmark Insurance Company, Inc., Respondents.

No. 75-646.

Supreme Court of Wisconsin.

Argued Oct. 4, 1977.

Decided Nov. 14, 1977.

On July 18, 1974, the plaintiff-appellant, Jack L. Lifer, was injured in a one-car automobile accident. The car in which he was a guest passenger was driven by Jeannine M. Yingling. On February 25, 1975, the plaintiff commenced this action for personal injuries, not against the driver of the automobile, but against defendant-respondent, Charles L. Raymond, a road test examiner employed by the state department of transportation, division of motor vehicles, and defendant-respondent, Hallmark Insurance Company, Inc., the insurer that insured the state of Wisconsin against the liability imposed by sec. 895.46, Stats. 1975, for judgments had against state officers acting in their public capacities in good faith and within the scope of their employment.

The plaintiff's amended complaint alleges the following:

"4. On July 18, 1974, . . . an automobile accident occurred involving an automobile operated by Jeannine M. Yingling, now deceased, in which plaintiff was a guest passenger.

"5. The accident was proximately caused by the negligence of Jeannine M. Yingling, in that she negligently failed to properly manage and control her vehicle.

"6. As the proximate result of such negligence, and of the accident, plaintiff suffered severe personal injuries. . . .

"7. On June 10, 1974, Jeannine Y. Yingling . . . was issued a probationary operator's license . . . by the State of Wisconsin/Department of Transportation/Division of Motor Vehicles, after Charles L. Raymond, examiner, . . . conducted a road test of Jeannine M. Yingling at Beloit, Wisconsin, and passed her in the road test portion of her examination.

"8. At the time of the road test Jeannine M. Yingling was 5 feet 1 inch in height and weighed in excess of 320 pounds.

"9. The gross obesity of Jeannine M. Yingling was the cause of her failing to properly manage and control the vehicle she was driving at the time of the collision.

"10. Wisconsin Statute 343.06 provides in part as follows:

'343.06 Persons not to be licensed. The Division shall not issue a license: . . .

'(7) To any person who is afflicted with or suffering from any mental or physical disability or disease such as to prevent him from exercising reasonable control over a motor vehicle.'

"11. Charles L. Raymond negligently passed Jeanne M. Yingling in the road test portion of her examination because Jeannine M. Yingling was then so grossly obese that she was prevented from exercising reasonable control over a motor vehicle. The accident and the personal injuries of plaintiff were proximately caused by the negligence of defendant, Charles L. Raymond.

"12. The act of passing Jeannine M. Yingling in the road test was performed in the course of the discharge of the duties of Charles L. Raymond for the Division of Motor Vehicles, State of Wisconsin. The act of passing Jeannine M. Yingling in the road test was not an act done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions, but was done in the performance of a ministerial function.

"13. Defendant Raymond acted in good faith in passing Jeannine M. Yingling in the road test portion of her examination."

The defendants demurred to the amended complaint on the ground that it failed to state a cause of action. The trial court sustained the demurrer and entered judgment dismissing the complaint with prejudice. From such judgment the plaintiff appeals.

Edward E. Grutzner, Beloit (argued), for appellant; Grutzner, Byron & Holland, S. C., Beloit, on brief.

Griffin G. Dorschel, Madison (argued), for respondents; Axley, Brynelson, Herrick & Gehl, Madison, on the brief.

ROBERT W. HANSEN, Justice.

How fat is too fat? Who is too fat to be licensed to get behind the wheel and drive an automobile? Plaintiff alleges that the 320- pound driver of the auto in which he was a passenger was so fat that she should not have been granted a probationary license to drive an automobile, even though she passed the road test portion of the examination.

At what point on the scales does an overweight person suffer a physical disability that prevents him or her from exercising reasonable control over a motor vehicle? The plaintiff answers that the duty to determine when corpulency becomes disabling is on the road test examiner at the time a road test is administered. The plaintiff sues the defendant examiner for breaching a duty owed to the plaintiff passenger when he passed Jeannine M. Yingling in the road test portion of her examination.

The complaint does not allege that Jeannine M. Yingling did not successfully complete the written test or the road test as conducted by the defendant. The complaint admits that the defendant, in certifying that Jeannine M. Yingling had passed the test given, acted in good faith. ¹ Sole reliance for the claim of breach of a duty owed by this defendant to this plaintiff is on the statute which provides:

"343.06 Persons not to be licensed. The division shall not issue a license: . .

"(7) To any person who is afflicted with or suffering from any mental or physical disability or disease such as to prevent him from exercising reasonable control over a motor vehicle."

Therefore, the initial inquiry on this appeal must be the nature of the duty delegated to or devolving upon a road test examiner, a state officer, by virtue of the statute.

In sustaining the demurrer, ² the trial court did not consider the issue of the civil immunity of defendant before it on demurrer. However, this court has since held that: "The objection of an officer's civil immunity, affecting as it does his substantive liability for damages, is properly presented by a demurrer on the ground that the complaint fails to state a cause of action." ³ It is true that in some cases the question of whether a particular act of a state officer is protected by civil immunity may require further factual development. ⁴ However, where the issue of civil immunity can be resolved as a matter of law from the face of the complaint, it is properly resolved on demurrer. ⁵

As we stated in Lister, the general rule in this state is that: "(A) public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty." ⁶ In Lister we pointed out that the most generally recognized exception to the rule of immunity is that an officer is liable for damages resulting from his negligent performance of a purely ministerial duty, ⁷ and that 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." ⁸ Thus in Lister where the statute involved, sec. 36.16, Stats., required the registrar of the state university to determine bona fide residence for the purpose of assessing in-state tuition by considering certain listed factors, this court held that the statute "required the exercise of some discretion and judgment in making the determination of who is and who is not entitled to resident status for tuition purposes ⁹ as a matter of law.

The Lister holding, as well as earlier cases in accord with it, ¹⁰ require that for an act to come within the ministerial or nondiscretionary exception to the civil immunity rule, "nothing remains for judgment or discretion." ¹¹ It follows that acts which "involve the exercise of judgment or discretion rather than the mere performance of a prescribed task" do not come within the "ministerial duty" exception to civil immunity rule. ¹² It is crystal clear that any determination by a road test examiner that an applicant for a driver's license was so overweight as to be suffering from a "physical disability or disease such as to prevent him from exercising reasonable control over a motor vehicle" ¹³ involves the exercise of judgment and discretion. The complaint does not allege that the motor vehicle division has promulgated internal rules which establish the maximum pounds permitted per inch of height. Any determination by a road test examiner that by reason of excess poundage a particular applicant was unable to exercise reasonable control over a motor vehicle is entirely an exercise of judgment on his part. Therefore, the performance of the duty delegated to a state road examiner under sec. 343.06(7), Stats., is within the rule of civil immunity as a matter of law.

It is to be noted that the complaint alleges that: "The act of passing Jeannine M. Yingling in the road test . . . was not an act done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions, but was done in the performance of a ministerial function." The reference to legislative or judicial type functions is from the Holytz decision ¹⁴ abrogating the doctrine of governmental immunity in this state, but without "imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." ¹⁵ Plaintiff contends: "If Holytz really means what it says, then there should be no distinction between the liability of the state employee or the private citizen." ¹⁶ That is not what Holytz says or means. Holytz dealt with the doctrine of sovereign immunity in an action against a governmental body, not a public officer. It resulted in sec. 895.43, Stats., which provides a procedure for bringing tort actions against "political corporations, governmental subdivisions or agencies," and their officers, agents or employees. Our court has held that this statute does not apply to the state or a state agency. ¹...