Nusse v. W. Tech. Coll.
| Decision Date | 18 August 2022 |
| Docket Number | 2022AP74 |
| Parties | Mary Kay Nusse, Plaintiff-Appellant, v. Western Technical College, Defendant-Respondent, Health Tradition Health Plan and Regence Blue Cross Blue Shield of Utah, Involuntary-Plaintiffs, Johnson Controls Inc., R J Jurowski Construction Inc. and Kraus-Anderson, Incorporated, Defendants. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for La Crosse County No 2016CV206: GLORIA L. DOYLE, Judge. Affirmed.
Before Kloppenburg, Fitzpatrick, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Mary Kay Nusse appeals the circuit court's entry of judgment in favor of Western Technical College (WTC). Nusse sued WTC for "negligence" and [1]Nusse alleged that, in August 2015, she tripped on a warped edge of plywood laid over a walkway on the WTC campus in the area of a construction project and sustained significant injuries. The circuit court granted WTC's motion for summary judgment, determining that WTC is immune from liability under WIS. STAT. § 893.80(4) for its discretionary acts to maintain the safety of the construction area and to comply with the safe place statute.[2]
¶2 On appeal, Nusse argues that the ministerial duty exception and the known and compelling danger exception to governmental immunity apply. We conclude, as did the circuit court, that the ministerial duty exception to governmental immunity does not apply because WTC's acts taken in furtherance of its duty to maintain the safety of the construction area and to comply with the safe place statute are discretionary. We reject Nusse's argument that the known and compelling danger exception to governmental immunity applies based on her apparent concession that WTC's arguments against the application of the known and compelling danger exception here are correct. Accordingly, we affirm.
¶3 The following facts are undisputed for purposes of WTC's motion for summary judgment.[3]
¶4 In August 2015, there was an ongoing construction project on WTC's campus. WTC contracted with Johnson Controls, Inc. for "program management, design services, and construction management" regarding the construction project. The scope of services in the contract under "construction management" included "site safety enforcement." WTC relied on Johnson Controls to address safety issues that arose in the construction area.
¶5 In the area of the construction project at issue, WTC was informed by Johnson Controls that plywood panels would be laid over portions of the walkway to protect pedestrians. On August 13 and 14, 2015, WTC contacted the project manager retained by Johnson Controls about a safety concern with the plywood panels that had been placed over the walkway and was informed that the project superintendent retained by Johnson Controls would "follow up."
¶6 On August 26, 2015, while walking through campus in the area near the construction project where the plywood panels covered portions of the walkway, Nusse fell when she tripped on an edge of the plywood and sustained injuries. Nusse filed a complaint in circuit court against WTC, Johnson Controls and others, alleging causes of action for negligence and negligence per se for a violation of Wisconsin's safe place statute, WIS. STAT. § 101.11(1).
¶7 WTC moved for summary judgment, seeking dismissal of all claims on the ground that it is entitled to governmental immunity under WIS. STAT. § 893.80(4). WTC argued that it exercised its discretion both in retaining Johnson Controls to manage the construction project and maintain the safety of the site, and in relying on Johnson Controls to handle the plywood covering the walkway where Nusse was injured so as to comply with any duty arising under the safe place statute. Accordingly, WTC argued, it is immune from liability for the alleged negligent performance of those discretionary acts.
¶8 Nusse opposed WTC's motion for summary judgment, arguing that WTC had a ministerial duty to maintain site safety under Wisconsin's safe place statute. Nusse argued that WTC negligently failed to comply with its ministerial duty because WTC was required, but failed, to remove or replace the warped plywood covering the walkway after WTC noted the warped plywood on August 13 and before Nusse was injured on August 26. Accordingly, Nusse argued, WTC is not entitled to governmental immunity.
¶9 The circuit court granted WTC's motion for summary judgment.
¶10 Nusse appeals.
¶11 "Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo." Schmidt v. Northern States Power Co. 2007 WI 136, ¶24, 305 Wis.2d 538, 742 N.W.2d 294. Summary judgement is appropriate "if the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2).
¶12 WTC's motion for summary judgment is based on its assertion of governmental immunity under WIS. STAT. § 893.80(4). If WTC is entitled to governmental immunity, then there is nothing to try even though factual disputes may exist regarding the issue of negligence. See Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶16, 253 Wis.2d 323, 646 N.W.2d 314. Indeed, for purposes of immunity analysis, we assume that WTC did act negligently, and we focus on whether WTC is entitled to governmental immunity under § 893.80(4) and whether any exception applies to abrogate that immunity. Lodl, 253 Wis.2d 323, ¶17.[4] "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" that we review independently of the legal determinations rendered by the circuit court. Id.; Kierstyn v. Racine Unified Sch. Dist., 228 Wis.2d 81, 88, 596 N.W.2d 417 (1999).
¶13 American Fam. Mut. Ins. Co. v. Outagamie Cnty., 2012 WI.App. 60, ¶9, 341 Wis.2d 413, 816 N.W.2d 340 (quoting Lodl, 253 Wis.2d 323, ¶21). As interpreted by Wisconsin courts, this statute provides no immunity against liability associated with:
1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional.
Lodl, 253 Wis.2d 323, ¶24. In her appellant's brief, Nusse invokes the "ministerial duty" and the "known and compelling danger" exceptions. We address each exception in turn.
¶14 "The ministerial duty exception ... recogni[zes] that immunity law distinguishes between discretionary and ministerial acts, immunizing the performance of the former but not the latter." Id., ¶25. A ministerial duty is one 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." Lister v. Board of Regents, 72 Wis.2d 282, 301, 240 N.W.2d 610 (1976). Immunity will not apply if liability is premised on negligent performance or non-performance of a ministerial duty. Lodl, 253 Wis.2d 323, ¶26.
¶15 "The first step in the ministerial duty analysis is to identify a source of law or policy that imposes the alleged duty." American Fam. Mut. Ins. Co., 341 Wis.2d 413, ¶13 (citing Pries v. McMillon, 2010 WI 63, ¶31, 326 Wis.2d 37, 784 N.W.2d 648). "Where there is a written law or policy defining a duty, we naturally look to the language of the writing to evaluate whether the duty and its parameters are expressed so clearly and precisely, so as to eliminate the official's exercise of discretion." Pries, 326 Wis.2d 37, ¶26.
¶16 Nusse argues that Wisconsin's safe place statute, WIS. STAT. § 101.11, imposes a ministerial duty on WTC to safely maintain its walkways. Section § 101.11 states:
Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.
¶17 However, as this court stated in Spencer v. County of Brown, 215 Wis.2d 641, 573 N.W.2d 222 (Ct. App. 1997) abrogated on other grounds, Blum v. 1st Auto &Cas. Ins. Co., 2010 WI 78, 786 N.W.2d 78, "the duty imposed by the safe-place statute, § 101.11, STATS., is discretionary." Spencer, 215 Wis.2d at 651. Under the safe place statute, WTC is required to use "reasonably adequate" methods and processes to render the walkways safe, and "do every other thing reasonably necessary" to...
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