Pries v. Mcmillon

Decision Date02 July 2010
Docket NumberNo. 2008AP89.,2008AP89.
Citation784 N.W.2d 648,2010 WI 63,326 Wis.2d 37
PartiesMichael PRIES, Plaintiff-Respondent-Cross-Appellant,v.Raymond McMILLON, Defendant-Appellant-Cross-Respondent-Petitioner,ABC Insurance Company, Defendant.
CourtWisconsin Supreme Court

For the defendant-appellant-cross-respondent-petitioner the cause was argued by Charlotte Gibson, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the plaintiff-respondent-cross-appellant there was a brief by Merrick R. Domnitz, Anthony J. Skemp, and Domnitz & Skemp, S.C., Milwaukee, and oral argument by Merrick R. Domnitz.

An amicus curiae brief was filed by Robert L. Jaskulski and Habush, Habush & Rottier, S.C., Milwaukee, and William C. Gleisner, III and the Law Offices of William Gleisner, Milwaukee, on behalf of the Wisconsin Association for Justice.


This is a review of a published decision of the court of appeals 1 affirming the circuit court's judgment that the defendant, Raymond McMillon (McMillon), is not entitled to governmental immunity2 as a state employee for negligently causing injuries to the plaintiff, Michael Pries (Pries), when the parties were disassembling horse stalls at the Wisconsin State Fair Park.

¶ 2 The scope of our analysis is limited. The parties do not dispute the circuit court's findings that McMillon was negligent and that his negligence caused injury to Pries. Additionally, there is no dispute that McMillon is a state employee to whom governmental immunity could apply to shield him from liability for his negligent acts. Rather, the issue here is whether under these circumstances either of two exceptions to immunity applies: the ministerial duty exception and the “known danger” exception. Both the circuit court and the court of appeals concluded that an exception applied, and that McMillon was not entitled to the defense of governmental immunity. However, each court reached that conclusion based on a different exception. The circuit court, the Honorable Michael B. Brennan presiding, concluded that McMillon was not protected by governmental immunity under these circumstances because the ministerial duty exception applied; that court also determined that the known danger exception was not applicable. In contrast, the court of appeals held that McMillon was not entitled to governmental immunity because the known danger exception applied, but it declined to address whether the ministerial duty exception was applicable.

¶ 3 We affirm, although on different grounds than the court of appeals. We are satisfied that, under the circumstances presented here, the ministerial duty exception to governmental immunity applies. Specifically State Fair Park instructions to [a]lways have someone holding up the piece that you are taking down” created a ministerial duty that McMillon violated when he failed to ensure that the stall pieces were secured. Hence, McMillon is not protected by a defense of governmental immunity, and is liable for his negligent acts that caused injury to Pries.


¶ 4 In September 2005, through an arrangement between the Milwaukee House of Corrections and the Wisconsin State Fair Park, a group of approximately 12 inmates were brought to the Park to assist in taking down structures. Pries was one of the inmates in that group, which was assigned to dismantle horse stalls. McMillon, a full-time employee with the State Fair Park, supervised the inmates.

¶ 5 The stalls are made up of four steel pieces: a front, back, and two sides. Each piece is solid steel with horizontal bars running across the upper portion. Each piece measures approximately 10 feet high, 10 feet wide, and four inches thick, and each weighs approximately 200 pounds. According to Ross Stein (Stein), the supervising correctional officer who accompanied the inmates, each piece “usually took four individuals to pick [it] ... up.” When assembled, the pieces are secured to each other with pins, and the side and back pieces are secured to a wall with chains. In total, there were 10 to 12 stalls in a row where the inmates were working.

¶ 6 Pries dismantled several stalls with two other inmates. At one point, Pries' crew struggled to dislodge a stall piece that was stuck to another piece. According to Pries, McMillon approached the inmates and told them, [L]et me show you how we do it.” McMillon observed that the chains responsible for securing the pieces had been removed and commented they should not have been. Despite that, according to Pries, McMillon “jumped up” on and straddled a stall next to the piece that the inmates were trying to free and “started jerking it up and down” with his hands. Immediately after, there was a “devastating accident,” according to Stein, in which unchained stall pieces started falling in a “domino effect” on the inmates, striking all three of them. As for Pries, a falling piece struck him in the face, knocked him to the ground, and pinned him underneath it. After several people helped lift the piece to free Pries, he was taken to a hospital and treated for a broken foot, along with other injuries.

¶ 7 Pries sued McMillon and the State Fair Park's insurer on a theory of negligence.3 McMillon filed a motion to dismiss and a motion for summary judgment, asserting that, as a state employee, he was entitled to governmental immunity for negligent acts committed in the scope of his employment and that no exceptions to that rule of immunity applied. The Milwaukee County Circuit Court, the Honorable Francis T. Wasielewski presiding, denied each of McMillon's motions. The case proceeded to a court trial.

¶ 8 At trial, two other witnesses corroborated Pries' description of the accident. However, McMillon denied jumping on or shaking the stall or causing the collapse. Rather, he claimed that he was working about 60 feet away in a different area of the barn. He testified that Pries' crew drew his attention because they were “taking down the chains and there was no one holding up the stalls.” He claimed that he started to approach them to correct the situation, and that the stalls began falling when he was about 30 feet away.

¶ 9 At trial, Pries introduced a two-page written procedure in effect at the time of the accident setting forth the proper method of disassembling the horse stalls. Patricia Hedden (Hedden), the operations director at the State Fair Park, acknowledged that the instructions were a State Fair document in effect before September 2005. Ken Jaeger (Jaeger), McMillon's supervisor, described those instructions as “the procedure that we created for ... putting up and taking down the ... horse stalls.” McMillon testified that he received those instructions years before the accident, and that the procedure had not changed in the years leading up to the accident. Those instructions require a [m]inimum of [four] people to set up the stalls” and explain how to secure the pieces together. Specifically, that document provided procedures for “Take Down” in section six. Part (a) of that section states, Always have someone holding up the piece that you are taking down.” (Emphasis added.) The instructions do not mention the chains or how to proceed if the stall pieces become jammed together.

¶ 10 McMillon acknowledged that the written instructions were in effect at the time of the accident and that he was familiar with them.4 He stated that he did not have the ability to vary from the take-down procedure when taking down or removing the stalls and confirmed that the “same procedure [had] to be followed in the tear-down procedure every single time.” 5

¶ 11 He also stated that he knew that if the stalls were not disassembled in an appropriate manner, they posed a risk of injury. He confirmed that he knew that if the chains had been removed from the back stall pieces, the stalls could fall and injure people standing nearby, particularly if someone jumped up on the stalls. He also confirmed that he knew that the chains in fact had been removed from the stall piece that started the collapse.

¶ 12 Jaeger testified that the written instructions contained the “fundamentals” of taking down the stalls. He said that he exercised discretion and judgment when taking down the pieces, and expected his employees to do so as well. However, when asked whether there was any legitimate reason to stand on or shake unsecured stall pieces, Jaeger noted that although there was no written policy expressly forbidding such behavior, it was “more of a common sense thing, if the chains were removed, then one should not be jumping on stalls.” 6

¶ 13 The circuit court, the Honorable Michael B. Brennan presiding, 7 found that Pries' descriptiOn of the accident was more credible than McMillon's and that McMillon “was jumping on the stalls to loosen them before the stalls toppled and injured ... Pries.” 8 It also found “McMillon's statement regarding the chains, including [his statement in Exhibit 14, a statement in which McMillon reiterated that he noticed, from a distance, that the inmates had created a hazardous situation by removing the chains], to be self-serving and not credible.” Based on those facts, the circuit court concluded that McMillon was negligent and that that negligence was a substantial factor in causing Pries' injuries:

Defendant McMillon had experience, training, and knowledge with regard to the assembly and disassembly of these stalls. In contrast, this was plaintiff Pries' [ ] first time doing so. Defendant McMillon saw the inmates having problems, defendant McMillon was aware the stalls were stuck, he was aware the chains were undone, and was aware that inmates were standing next to the stuck stall. Defendant McMillon was negligent to jump on the stalls, which created danger, the stalls fell, and plaintiff was injured by the falling stalls.

¶ 14 As to whether McMillon was protected by immunity from liability...

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