Lodl v. Progressive Northern Ins. Co.

• Decision Date: 25 June 2002
• Docket Number: No. 00-0221.,00-0221.
• Citation: 2002 WI 71,646 N.W.2d 314,253 Wis.2d 323
• Parties: Susan M. LODL, Plaintiff-Co-Appellant, KOHL'S DEPARTMENT STORE, Involuntary-Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Co-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant, WAUSAU UNDERWRITERS INSURANCE COMPANY, Officer Brian M. Fredericks and Town of Pewaukee, Defendants-Respondents-Petitioners, v. Walker J. YOUNG, Jr., Third-Party Defendant-Appellant.
• Court: Wisconsin Supreme Court

253 Wis.2d 323

2002 WI 71

646 N.W.2d 314

Susan M. LODL, Plaintiff-Co-Appellant, KOHL'S DEPARTMENT STORE, Involuntary-Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Co-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant, WAUSAU UNDERWRITERS INSURANCE COMPANY, Officer Brian M. Fredericks and Town of Pewaukee, Defendants-Respondents-Petitioners, v. Walker J. YOUNG, Jr., Third-Party Defendant-Appellant.

No. 00-0221.

Supreme Court of Wisconsin.

Oral argument November 6, 2001.

Decided June 25, 2002.

For the defendants-respondents-petitioners there were briefs by Raymond J. Pollen, Michele M. Ford and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, and oral argument by Michele Ford.

For the defendant-appellant and third-party defendant-appellant there was a brief by Thomas A. Cabush and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Thomas A. Cabush.

For the plaintiff-co-appellant and defendant-third-party plaintiff-co-appellant there was a brief by John D. Surma and Hills & Hicks, S.C., Brookfield, and Mark L. Thomsen, Sarah E. Frink and Cannon & Dunphy, S.C., Brookfield, and oral argument by Mark L. Thomsen.

¶ 1. DIANE S. SYKES, J.

This case concerns the scope and proper application of the judicially-created "known danger" exception to municipal and public officer immunity under Wis. Stat. § 893.80(4) (1997-98).¹

¶ 2. The plaintiff Susan Lodl was injured in an intersection accident in the Town of Pewaukee. The traffic control lights at the intersection were inoperable because of an evening storm, and so the Town of Pewaukee dispatched a police officer to the scene. Lodl sued the officer and the Town, claiming that the officer negligently failed to control traffic at the intersection, and that the Town was liable for the officer's negligence under respondeat superior theory.

¶ 3. The circuit court granted summary judgment in favor of the officer and the Town, concluding that they were immune under Wis. Stat. § 893.80(4). The court of appeals reversed, concluding that the known danger exception to immunity applied, and that material factual issues regarding the adequacy of the officer's response to the known danger precluded summary judgment. We accepted review, and now reverse the court of appeals.

¶ 4. The "known danger" exception to municipal and public officer immunity under Wis. Stat. § 893.80(4) is a narrow, judicially-created exception that arises only when there exists a danger that is known and compelling enough to give rise to a ministerial duty on the part of a municipality or its officers. Here, the plaintiff contends that the danger created by the inoperative stoplights at the intersection gave rise to a ministerial duty on the part of the officer to undertake manual traffic control.

¶ 5. We conclude that the situation at the intersection, while admittedly dangerous, nonetheless allowed for the exercise of officer discretion as to the mode of response, and therefore did not give rise to a ministerial duty to perform manual traffic control. Accordingly, the known danger exception to municipal and public officer immunity does not apply. Summary judgment based upon statutory immunity was properly granted.

I

¶ 6. On the night of July 18, 1998, a storm in Waukesha County caused the power to go out. The power outage affected the traffic control lights at the intersection of Capitol Drive and Highway J in the Town of Pewaukee. The inoperative stoplights turned what is normally a controlled intersection into an uncontrolled one. In addition, the heavy rain decreased visibility at the intersection.

¶ 7. The Town of Pewaukee Police Department dispatched Sergeant Richard Ryman to investigate the blackout at the intersection. Ryman testified in deposition that he "dropped," or opened, the folded stop signs affixed to the poles of the traffic control signals. Ryman then called dispatch to have an officer sent to the intersection, and left the scene.

¶ 8. At approximately 8:49 p.m., Officer Brian Fredericks was dispatched to the intersection, arriving about two minutes later. Fredericks parked his squad car on the south side of Capitol Drive. The parties disagree about what happened next. It is clear at the very least that Fredericks got out of his car, put on an orange or yellow raincoat and grabbed a flashlight. It is also undisputed that he called for backup and requested that portable stop signs be brought to the intersection.

¶ 9. The factual dispute—and the basis for the claim of negligence here—concerns the extent to which Fredericks was actually directing traffic at the time of the accident. Fredericks testified in deposition that he was in the center of the intersection attempting manual traffic control, but that "nobody was yielding to nobody," which prompted his call for assistance and portable signs. Walker J. Young, Jr., the driver of the car Lodl was riding in, testified only that he saw Fredericks standing on the shoulder of the road as he approached the intersection.

¶ 10. The accident occurred within minutes of Fredericks' arrival at the scene, and before the police backup or portable signs arrived. Young and Lodl entered the intersection from the westbound lanes of Capitol Drive. At the same time, a car driven by James R. Radmer entered the intersection from the northbound lane of Highway J, colliding with Young's car and injuring Lodl.

¶ 11. Lodl sued, alleging that Fredericks was negligent in his manner of directing traffic at the intersection, and that the Town of Pewaukee was liable for Fredericks' negligence under respondeat superior theory. The Town and its officer asserted municipal and public officer immunity under Wis. Stat. § 893.80(4).

¶ 12. After extensive discovery, Fredericks and the Town moved for summary judgment on the basis of statutory immunity. The Waukesha County Circuit Court, the Honorable Kathryn W. Foster, granted the motion. Lodl appealed, arguing that the Town and its officer were not immune because the officer had a ministerial duty to manually control traffic at the intersection, by statute and Town policy, and by operation of the known danger exception.

¶ 13. The court of appeals concluded that while no statute, regulation, or policy created a ministerial duty to manually control traffic at the intersection, the known danger exception to immunity applied, because the inoperative traffic lights created a hazardous situation requiring a response. The court of appeals also concluded that the factual dispute regarding the sufficiency of Fredericks' response precluded summary judgment on the issue of the known danger exception.

¶ 14. More specifically, the court of appeals concluded that the known danger exception required that Fredericks "do something about the compelling and known danger at the intersection." Lodl v. Progressive Northern Ins. Co., 2001 WI App 3, ¶ 16, 240 Wis. 2d 652, 625 N.W.2d 601 (Ct. App. 2000). Because there were material issues of fact in dispute about whether Fredericks "nonetheless did nothing," the court of appeals reversed the summary judgment and remanded to the circuit court with these instructions:

The factual issue at trial will be whether the police officer in fact tried to alleviate a dangerous situation or whether he simply sat at the intersection and did nothing. The question of immunity will depend on that factual finding . . . .

If the finder of fact concludes that Fredericks acted, Fredericks and Pewaukee are entitled to governmental immunity even if his direction of traffic was negligent.

Id. at ¶¶ 17-18.

II

[2, 3]

¶ 15. We review an order granting summary judgment de novo, applying the same methodology as the circuit court, benefiting from the lower courts' analyses. See Yahnke v. Carson, 2000 WI 74, ¶ 10, 236 Wis. 2d 257, 613 N.W.2d 102. Summary judgment is granted when the pleadings, depositions, affidavits, and other moving papers establish that no material facts are in dispute and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08. [4]

¶ 16. "The well-established purpose of summary judgment procedure is to determine the existence of genuine factual disputes in order to `avoid trials where there is nothing to try'" Yahnke, 2000 WI 74, ¶ 10 (citing Rollins Burdick Hunter of Wisconsin, Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d 752 (1981)). If Fredericks and the Town are entitled to statutory immunity, then there is nothing to try even though factual disputes may exist on the issue of the officer's negligence.

[5, 6]

¶ 17. The immunity defense assumes negligence, focusing instead on whether the municipal action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies. See Kimps v. Hill, 200 Wis. 2d 1, 11-12, 546 N.W.2d 151 (1996); Ottinger v. Pinel, 215 Wis. 2d 266, 572 N.W.2d 519 (Ct.App. 1997). The application of the immunity statute and its exceptions involves the application of legal standards to a set of facts, which is a question of law. See Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999).

¶ 18. As we have noted, there is a factual dispute in this case about whether Fredericks was in the intersection attempting traffic control or merely standing on the side of the road at the time of the accident. The circuit court considered this to be a factual dispute on the issue of whether the officer was negligent. The court of appeals characterized it instead as a factual dispute on the issue of the known danger exception to statutory immunity. ¶ 19. The circuit court had it right. The dispute about whether Fredericks was actually manually directing traffic at the intersection when the accident occurred goes to the question of whether he was negligent. We assume negligence for purposes of the immunity defense, and apply the test for...