Meyer v. Carman
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | MARTIN |
| Citation | 271 Wis. 329,73 N.W.2d 514 |
| Decision Date | 06 December 1955 |
| Parties | Eugene MEYER, by Patrick T. Sheedy, his guardian ad litem, et al., Respondents, v. Douglas CARMAN et al., Appellants. |
Page 514
et al., Respondents,
v.
Douglas CARMAN et al., Appellants.
Page 515
[271 Wis. 330] Action by plaintiffs Eugene Meyer, by Patrick T. Sheedy, his guardian ad litem, and Alvin C. Meyer, father of the minor, against defendants Douglas Carman, Theodore S. Johnson, Dr. Joseph F. Kindwall, Dr. Irvin W. Leichtfuss, Dr. W. A. McGill, Harley J. Powell, Mrs. Rachel Riley and William J. Trettin, members of the board of education of the city of Wauwatosa, as individuals, for damages arising out of injuries sustained by the minor when he fell from a concrete retaining wall on the premises of a Wauwatosa school. A demurrer to the complaint interposed by defendants was overruled, but no appeal was taken. Defendants answered and moved for summary judgment. From an order denying the motion, defendants appeal.
[271 Wis. 331] Raymond J. Moore, Milwaukee, for appellants.
Jack Harold Lee, Milwaukee, Philip Weinberg, Milwaukee, of counsel, for respondents.
MARTIN, Justice.
On November 5, 1951 Eugene Meyer, then 14 years of age, while on the premises of the Hawthorne Junior High School, fell from a five-foot retaining wall immediately adjacent to the sidewalk of Portland avenue in Wauwatosa and sustained the injuries complained of. Plaintiffs brought this action against the school board members in their individual capacity.
The question presented on this appeal is whether the plaintiffs have the right to recover from the defendants individually for failure to erect and maintain guardrails or other safety devices on the retaining wall. In determining that they have such right, the trial court held that the duty imposed on the defendants under sec. 40.29(2), Stats., to 'keep the buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at all times', is ministerial; and applied the rule of law that a public officer who knowingly or negligently fails to do a ministerial act which the law requires him to do may be compelled to respond in damages to an injured party. 43 Am.Jur., Public Officers, sec. 278, p. 90.
We must disagree with the trial court in two respects: first, as to the character of the duties imposed by the statute, and, second, as to the personal liability of the school board members thereunder.
At first blush it might appear that the duty to keep the school grounds 'safe' is ministerial in character, but it is apparent on closer analysis that a great many circumstances may need to be considered in deciding what action is necessary[271 Wis. 332] to do so, and such decisions involve the exercise of judgment or discretion rather than the mere performance of a prescribed task. As stated in 18 McQuillin, Municipal Corporations, 3rd ed., sec. 53.33, p. 225:
"Official action * * * is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion."
In First Nat. Bank v. Filer, 1933, 107 Fla. 526, 145 So. 204, 207, 87 A.L.R. 267, 272, it is stated thus:
'Official action, the result of performing a certain specific duty arising from designated facts, is a ministerial act. * * * Another way of expressing the same thought is that a duty is to be regarded...
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Bostco LLC v. Milwaukee Metro. Sewerage Dist., Nos. 2007AP221
...tuition. Id. at 301–02, 240 N.W.2d 610. ¶ 107 The ministerial duty concept, though, came directly from our decision in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). See Lister, 72 Wis.2d at 301 n. 18, n. 19, 240 N.W.2d 610 (citing Meyer ). The problem with relying on a test from......
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Engelhardt v. City of New Berlin, No. 2016AP801
...In Wisconsin, the test for determining whether a duty is ministerial or discretionary was articulated in 921 N.W.2d 721 Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). We have described the test for ministerial duties as follows:A public officer's duty is ministerial only when it ......
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Scott v. SAVERS PROPERTY AND CAS. INS. CO.,, No. 01-2953.
...See Wis. Stat. § 121.02(1)(e); Wis. Admin. Code § PI 8.01(2)(e) (Oct., 2001). 15. Lodl, 253 Wis. 2d 323, ¶ 26 (quoting Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting First Nat'l Bank v. Filer, 145 So. 204 (Fla. 16. Lodl, 253 Wis. 2d 323, ¶ 25 (quoting Lister v. Bd. of Reg......
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Pries v. Mcmillon, No. 2008AP89.
...10, 546 N.W.2d 151. The test in Wisconsin for whether a duty is discretionary or ministerial was articulated initially in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). That test, as described by this court, provides:A public officer's duty is ministerial only when it is absolute......
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Scott v. SAVERS PROPERTY AND CAS. INS. CO.,, 01-2953.
...See Wis. Stat. § 121.02(1)(e); Wis. Admin. Code § PI 8.01(2)(e) (Oct., 2001). 15. Lodl, 253 Wis. 2d 323, ¶ 26 (quoting Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting First Nat'l Bank v. Filer, 145 So. 204 (Fla. 16. Lodl, 253 Wis. 2d 323, ¶ 25 (quoting Lister v. Bd. of Reg......
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Engelhardt v. City of New Berlin, 2016AP801
...In Wisconsin, the test for determining whether a duty is ministerial or discretionary was articulated in 921 N.W.2d 721 Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). We have described the test for ministerial duties as follows:A public officer's duty is ministerial only when it ......
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Pries v. Mcmillon, 2008AP89.
...10, 546 N.W.2d 151. The test in Wisconsin for whether a duty is discretionary or ministerial was articulated initially in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). That test, as described by this court, provides:A public officer's duty is ministerial only when it is absolute......
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Willow Creek Ranch v. Town of Shelby, No. 97-2075
...performance with such certainty that nothing remains for judgment or discretion. s 136. The Lister language comes from Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955), in which the court quoted from 18 McQuillin, Municipal Corporations (3d ed.), § 235 Wis.2d 471 Official action...i......