Meyers v. Schultz, 04-0542.

Decision Date24 November 2004
Docket NumberNo. 04-0542.,04-0542.
Citation2004 WI App 234,277 Wis.2d 845,690 N.W.2d 873
PartiesSheri D. MEYERS, Plaintiff-Appellant, v. Patrick SCHULTZ, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C., Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Corey F. Finkelmeyer, asst. attorney general, and Peggy A. Lautenschlager, attorney general.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1. VERGERONT, J.

The issue on this appeal concerns the scope and application of the ministerial duty exception to immunity for state employees. Sheri Meyers was injured when she sat in a chair that had been assembled by Patrick Schultz, an employee of the Department of Workforce Development. The circuit court granted summary judgment, dismissing her negligence claim against Schultz on the ground that he was immune from suit because he was engaged in a discretionary act. Meyers contends that, because of the manufacturer's instructions, Schultz was performing a ministerial act, not a discretionary act, when assembling the chair and therefore he is not immune from suit.

¶ 2. We conclude that a ministerial duty does not arise from the manufacturer's instructions because a ministerial duty must be imposed by law. Because the rule is immunity and because the one exception to the rule that Meyers advances does not apply, we conclude the circuit court properly granted summary judgment in favor of Schultz. We therefore affirm.

BACKGROUND

¶ 3. Schultz is an employee of the Division of Vocational Rehabilitation (DVR) within the department, and Meyers was one of his clients. Pursuant to the individualized employment plan for Meyers that Schultz developed with her, Meyers was receiving training in office and computer skills at New Way Directions. She told Schultz that she needed a better chair than those provided at New Way Directions, and DVR authorized the purchase of a chair. Meyers picked out a chair at Office Depot, it was delivered to New Way Directions, and Schultz assembled the chair.

¶ 4. In his deposition, Schultz testified that he followed the instructions in assembling the chair. Meyers testified that when she was told the chair was ready, she pushed the chair over to her work station, which had a plastic mat over the carpet. As soon as she sat in the chair, it tipped backwards, then rocked wildly, causing her to experience severe pain and causing injuries that required medical treatment.

¶ 5. Meyers filed this action alleging that Schultz committed a "ministerial act of negligence" in two ways: (1) in spite of a warning on the chair, he provided the chair with dual wheel casters for use by Meyers on a plastic floor mat; and (2) he failed to properly insert the caster shafts into their mounting sockets when he assembled the chair.1 Schultz answered, denying negligence. He also moved for summary judgment on the ground that he was entitled to immunity because he was engaged in a discretionary act and did not violate a ministerial duty.

¶ 6. In opposition to the motion, Meyers argued that the act of assembling the chair was "purely ministerial." She submitted the report of a safety engineer who concluded that the accident occurred for the following reasons: the adjustment settings were inappropriate for Meyers's weight and height and were in an unlocked position; four of the five casters were not properly inserted; and the dual casters were intended to be used only on carpeted surfaces. With respect to this last cause, the expert referred to the warning on the underside of the seat cushion that stated that the dual wheel casters "function best on carpeted floors [and] [i]f the chair is to be used on a hard surface, use of [these] casters could result in unexpected rolling and in injury from tipping or collision." Rubber wheel casters, the warning said, for use on "hard surfaces ... and floor mats are available at extra cost from your dealer."

¶ 7. The circuit court granted Schultz's motion. It concluded that a ministerial duty is one prescribed by law, and there was no duty established by law that Schultz was shown to have breached. Therefore, the court decided Schultz was entitled to immunity under WIS. STAT. § 893.80(4).

DISCUSSION

¶ 8. On appeal, Meyers renews her contention that the act of assembling the chair was purely ministerial. Once Schultz decided to assemble the chair, she asserts, he had a ministerial duty to follow the instructions2 of the manufacturer, and he was not engaged in a discretionary act simply because the instructions were not prescribed by law.

[1]

¶ 9. When we review the grant or denial of a summary judgment motion, we apply the same methodology as does the circuit court, and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See WIS. STAT. § 802.08.3

[2, 3]

¶ 10. The defense of discretionary act immunity for public officers and employees assumes negligence and focuses on whether the action or inaction upon which liability is premised is entitled to immunity. Lodl v. Progressive Northern Ins. Co., 2002 WI 71, ¶ 17, 253 Wis. 2d 323, 646 N.W.2d 314. Thus, the factual disputes that may exist on whether Schultz was negligent do not prevent summary judgment in his favor. Id., ¶ 16. The proper scope of the common law doctrine of discretionary act immunity, when there are no disputed facts, is a question of law. Bicknese v. Sutula, 2003 WI 31, ¶ 15, 260 Wis. 2d 713, 660 N.W.2d 289. Because there are no factual disputes material to the application of the immunity doctrine in this case, summary judgment is an appropriate way to resolve the application of the doctrine to the undisputed facts.

[4]

¶ 11. Immunity for public officers and employees is grounded in common law, Kimps v. Hill, 200 Wis. 2d 1, 9, 546 N.W.2d 151 (1996), and is based largely on public policy considerations that spring from an interest in protecting the public purse and a preference for political rather than judicial redress for actions. Lodl, 253 Wis. 2d 323, ¶ 23.4

[5]

¶ 12. The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Kimps, 200 Wis. 2d at 10.5 The rule, however, is subject to exceptions, representing a "judicial balanc[e] [struck between the need] of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress." Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). The exception at issue in this case is that a state officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty. Kimps, 200 Wis. 2d at 10.

¶ 13. As the court in C.L. v. Olson, 143 Wis. 2d 701, 711, 422 N.W.2d 614 (1988), observed, the definition of ministerial duty has remained substantially the same since it was adopted in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955), from E. McQuillin's treatise on Municipal Corporations: "A ... duty [that] 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." 143 Wis. 2d at 711 (citing Lister, 72 Wis. 2d at 301).6

¶ 14. We observe that the court in Meyer referred to another definition of ministerial duty, from a Florida case, apparently viewing it as having essentially the same as meaning as that from McQuillin:

[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.

Meyer, 271 Wis. at 332 (citing First Nat. Bank v. Filer, 145 So. 204, 207 (Fla. 1933)). The supreme court in Lodl, 253 Wis. 2d 323, ¶ 26, referred to this Florida court definition as well as that originating from McQuillan's treatise, again suggesting the two mean essentially the same thing. More recently in Scott v. Savers Property and Cas. Ins. Co., 2003 WI 60, ¶¶ 27-28, 262 Wis. 2d 127, 663 N.W.2d 715, while first quoting the Florida court definition from Meyer, the court made clear that the definition of ministerial duty from Lister, which we have quoted above in paragraph 13, is the formulation courts are to use. The significant point for purposes of this appeal is that both the Lister definition, originating from McQuillin's treatise, and the definition from the Florida court define a ministerial duty as one imposed by law.

¶ 15. Meyers recognizes that the definition of ministerial duty contains the requirement that the duty be one imposed by law, but, she asserts, this requirement "appears to be something that gratuitously crept into the formula [and] has nothing to do with distinguishing the discretionary functions that the doctrine is designed to protect." We disagree.

¶ 16. As the court in C.L. pointed out, the distinction between ministerial and discretionary acts is not of recent origin, but was articulated in Druecker v. Salomon, 21 Wis. 621 (1867), and rooted in concepts initially set forth in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 143 Wis. 2d at 711 n.5. In explaining the distinction, the court in Druecker stated:

where the heads of departments are the political or confidential agents of the executive merely to execute his will, or rather to act in cases in which the executive possesses a constitutional or
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