Pavlik v. Kinsey, 75-658

• Decision Date: 30 November 1977
• Docket Number: No. 75-658,75-658
• Citation: 81 Wis.2d 42,259 N.W.2d 709
• Parties: Rita PAVLIK, Plaintiff-Respondent, v. Thomas R. KINSEY, Robert E. Jack, John A. White, and Donald H. Jorgensen, Defendants-Appellants, City of Port Washington, County of Ozaukee, Proksch Construction Company, General Casualty Company of Wisconsin, and Liberty Mutual Insurance Company, Defendants.
• Court: Wisconsin Supreme Court

Page 709

259 N.W.2d 709

81 Wis.2d 42

Rita PAVLIK, Plaintiff-Respondent, v. Thomas R. KINSEY, Robert E. Jack, John A. White, and Donald

H. Jorgensen, Defendants-Appellants,

City of Port Washington, County of Ozaukee, Proksch

Construction Company, General Casualty Company of

Wisconsin, and Liberty Mutual Insurance

Company, Defendants.

No. 75-658.

Supreme Court of Wisconsin.

Argued Sept. 6, 1977.

Decided Nov. 30, 1977.

Peter S. Nelson (argued) and Fulton, Menn & Nehs, Ltd., Appleton, for defendants-appellants.

Howard A. Davis (argued) Jean Seaburg and Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for plaintiff-respondent.

HEFFERNAN, Justice.

The appeal before this court is from an order overruling the demurrer of the defendants to the plaintiff's complaint. The plaintiff, Rita Pavlik, alleges that she was injured on December 22, 1973, while driving on Temporary Highway 141 near the intersection of Highway 32. Because of reconstruction, Highway 141 had been rerouted. The facts alleged demonstrate that the rerouting resulted in a sharp left turn and that, while attempting to negotiate this turn, Rita Pavlik's vehicle left the road and she was injured. Although a cause of action is alleged against the City of Port Washington, the County of Ozaukee, the Proksch Construction Company, and the insurers, only the individual defendants, who are employees of the Division of Highways of the State Department of Transportation, have appealed.

Thomas R. Kinsey is the District Engineer, Robert E. Jack is the District Chief Construction and Materials Engineer, John A. White is the District Chief Maintenance Engineer, and Donald H. Jorgensen is the District Chief Traffic Engineer.

On the appeal, these employers argue that their demurrer should have been sustained, because the complaint alleges no facts which, if believed, would constitute a negligent act or omission by a state employee.

Basically, the defendants rely upon the contention that the acts alleged here show only that the temporary roadway was constructed in accordance with the decisions of the Department of Transportation and that these decisions were of a legislative nature, which, as this court pointed out in Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), do not give rise to actionable negligence.

On the other hand, the plaintiff argues that we are concerned here not with a legislative-type decision made by the Department of Transportation, but rather with the failure to carry out a ministerial duty in a non-negligent way, and that a breach of a ministerial duty may constitute actionable negligence in respect to the conduct of a public employee.

Principal reliance is placed upon Chart v. Dvorak, 57 Wis.2d 92, 203 N.W.2d 673 (1973). If the complaint only involves an allegation that the legislative-type decision of the department is less than the best that could reasonably have been made or that the acts of the employees were discretionary in nature, the defendants are correct and the demurrer should have been sustained. On the other hand, if, from the face of the complaint, it can be arguably concluded that the defendant state employees negligently performed a ministerial duty, the trial court properly overruled the demurrer.

We conclude that the breach of a ministerial duty is at least minimally stated.

The standards for testing the statement of a cause of action are well understood and have frequently been restated by this court. De Bauche v. Knott, 69 Wis.2d 119, 122, 230 N.W.2d 158, 160 (1975), citing earlier cases, said:

" '(I)n determining whether a complaint is subject to a demurrer, the most liberal interpretation possible must be given to it. If the complaint states any facts on which the plaintiff can recover, it must be held to state a cause of action.' "

A demurrer to a complaint should be overruled if the complaint expressly, or by reasonable inference, states any cause of action. Bembinster v. Aero Auto Parts, Inc., 7 Wis.2d 54, 95 N.W.2d 778 (1959); Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974).

Because this case involves alleged acts of negligence by public employees, whether a cause of action has been stated must be tested by the rules peculiar to the legal liabilities of public employees. The Holytz case, supra, relied upon by the defendants is not particularly relevant to the facts alleged here. Holytz was primarily concerned with the abrogation of governmental immunity. Prior to Holytz, although a governmental employee acted negligently, the usual master and servant rules did not apply and the doctrine of respondeat superior was unavailable to impose liability on a governmental entity.

The question, however, of individual liability of governmental employees had been dealt with by this court long before Holytz. Lowe v. Conroy, 120 Wis. 151, 97 N.W. 942 (1904), acknowledged that, under the then existing law, no liability on the part of a governmental body arose from injuries resulting from the acts or default of its officers or employees while performing a duty imposed upon the governmental body for the benefit of the public at large. It recognized, however, that an individual employee of a governmental body may be liable for injuries to private property or to persons under limited circumstances. Thus, the Holytz case, although stating a new rule of law in respect to governmental immunity, did not restate or attempt to supersede the existing common law in respect to the individual liability of public employees.

The general rule of public officer immunity, as long understood in this state, has recently been restated by this court in Lister v. Board of Regents, 72 Wis.2d 282 300, 240 N.W.2d 610, 621 (1976). We said therein:

"The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty."

The immunity afforded to public officers is, however, not founded upon the principles of sovereign immunity the king can do no wrong but rather upon principles of public policy. These principles were stated in Lister, supra, at 299, 240 N.W.2d at 621:

"(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office."

As a matter of public policy, this court has adopted limited exceptions to the usual immunity. In Lowe v. Conroy, supra, for example, recovery was permitted against a public health officer when he ordered the destruction of cattle which he incorrectly diagnosed as being diseased with anthrax bacilli. Prosser, Law of Torts (Hornbook Series, 4th ed.), sec. 132, p. 991, interprets this case as making a public employee liable even for a discretionary act when he erroneously acts wholly outside of his authority.

However, the most general exception to the rule of immunity is that an officer is liable for the negligent performance of a ministerial act. This exception was recognized prior to Holytz, and representative...