Meyer v. Carman

• Decision Date: 06 December 1955
• Citation: 271 Wis. 329,73 N.W.2d 514
• Parties: Eugene MEYER, by Patrick T. Sheedy, his guardian ad litem, et al., Respondents, v. Douglas CARMAN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 514

73 N.W.2d 514

271 Wis. 329

Eugene MEYER, by Patrick T. Sheedy, his guardian ad litem,

et al., Respondents,

v.

Douglas CARMAN et al., Appellants.

Supreme Court of Wisconsin.

Dec. 6, 1955.

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.

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 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 as ministerial when it is a duty that has been positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated; the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion.'

In Robinson v. Rohr, 1889, 73 Wis. 436, 441, 40 N.W. 668, 670, 2 L.R.A. 366, cited by the trial court, action was brought by a plaintiff injured when a derrick used in the repair of a bridge fell upon her. The individuals sued were all members of the board of street commissioners, and it was held that the plaintiff could recover against them. The distinction between that case and this lies in the facts. Upon determining that repair to the bridge should be done, a resolution had been adopted by the board that the materials be furnished and the work done by themselves, instead of obtaining a contractor therefor. The work was thereafter commenced and carried on by the defendants and others employed by them. This court held them liable on the ground that they had engaged in 'special employment' of a private character, and made the following distinction between their acts in determining upon the work and adopting plans and specifications for it, on the one hand, and their actions in executing the work themselves, on the other:

'* * * when, after adopting the plans and specifications, they undertake to carry them out practically, and do the work themselves, and employ agents and servants to execute the plans and specifications manually, then, if they are acting as officers at all, they are merely ministerial officers, and not judicial or legislative, and, according to the same authorities, are liable to third persons for their negligence or misfeasance, or, as the...