Decision Date19 June 2003
Docket NumberNo. 01-2953.,01-2953.
Citation2003 WI 60,262 Wis.2d 127,663 N.W.2d 715
PartiesRyan SCOTT, Kathy Scott, and Patrick Scott, Plaintiffs-Appellants-Petitioners, v. SAVERS PROPERTY AND CASUALTY INSURANCE COMPANY, and Stevens Point Area Public School District, Defendants-Respondents, WAUSAU UNDERWRITERS INSURANCE COMPANY, Defendant.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners there were briefs by Russell T. Golla and Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point, and oral argument by Russell T. Golla.

For the defendants-respondents there was a brief by Cari L. Westerhof and Ruder, Ware & Michler, LLSC, Wausau, and oral argument by Cari Lynn Westerhof.

An amicus curiae brief was filed by Michael Riley and Atterbury, Riley & Kammer, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers.


This is a review of an unpublished decision of the court of appeals2 affirming the judgment of the Circuit Court for Portage County, James Mason, Judge. The circuit court dismissed the amended complaint of Ryan Scott and his parents, Kathy and Patrick Scott, against the Stevens Point Area Public School District and its insurer, Savers Property and Casualty Insurance Company. The circuit court concluded that the negligence claim in the amended complaint was barred under Wis. Stat. § 893.80(4) (2001-02)3, Wisconsin's governmental immunity statute, and that the allegations of breach of contract and promissory estoppel failed to state claims upon which relief could be granted.

¶ 2. Ryan Scott and his parents, Kathy and Patrick Scott (the plaintiffs), allege that Dave Johnson, a guidance counselor at Stevens Point Area Senior High School (SPASH) in the Stevens Point Area Public School District, provided them with inaccurate information about National Collegiate Athletic Association (NCAA) student athlete scholarship eligibility requirements, and as a result, Ryan Scott lost a hockey scholarship to the University of Alaska. The plaintiffs brought suit against Stevens Point Area Public School District and its insurer, Savers Property and Casualty Insurance Company (the District), seeking damages for the loss of the scholarship and other expenses incurred. The amended complaint sets forth three claims for relief: negligence, breach of contract, and promissory estoppel. The District responded by filing a motion to dismiss for failure to state a claim upon which relief may be granted.

¶ 3. To determine whether the plaintiffs' amended complaint against the District should be dismissed for failure to state a claim upon which relief can be granted, we must answer three questions: First, does the negligent provision of counseling services, as alleged in the amended complaint, fall under either the ministerial duty or professional discretion exception to Wisconsin's governmental immunity statute, Wis. Stat. § 893.80(4), so that the plaintiffs state a claim against the District? Second, was an enforceable contract created between the District and the plaintiffs when, according to the amended complaint, guidance counselor Johnson agreed to assist Ryan Scott in selecting classes approved by the NCAA, so that the plaintiffs have a claim for breach of contract? Third, does the plaintiffs' amended complaint allege grounds for equitable relief based upon the doctrine of promissory estoppel?

¶ 4. We answer each question in the negative and affirm the court of appeals' decision that the amended complaint should be dismissed. We conclude that none of the allegations in the plaintiffs' amended complaint support a claim for relief under either the ministerial act or professional discretion exception to Wis. Stat. § 893.80(4). We conclude that no contract exists to support a breach of contract claim in the present case because any alleged promise by the District to provide counseling services was a promise to perform a preexisting legal obligation. We also conclude that the promissory estoppel claim fails. Permitting the plaintiffs to obtain damages from an immune public official through the back door opened by a claim of promissory estoppel contravenes the government immunity policy of this State set forth in Wis. Stat. § 893.80(4) and consequently would not serve the ends of justice.


[1, 2]

¶ 5. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint.4 All facts pleaded and all reasonable inferences from those facts are admitted as true, but only for the purpose of testing the legal sufficiency of a claim, not for trial.5 A complaint will be dismissed only if it appears certain that no relief can be granted under any set of facts that the plaintiffs might prove in support of their allegations.6


¶ 6. Whether a complaint states a claim upon which relief may be granted is a question of law that is determined by this court independent of the circuit court and court of appeals, but with the benefit of the analyses of these courts. We test the sufficiency of the plaintiffs' amended complaint by first setting forth the facts asserted in the complaint and then analyzing each of the legal theories upon which the plaintiffs rest their claims for relief.7


¶ 7. The plaintiffs' amended complaint alleges the following facts. Ryan Scott attended Stevens Point Area Senior High School (SPASH), which is part of the Stevens Point Area Public School District. SPASH offered guidance counseling services as required by Wis. Stat. § 121.02(1)(e) and Wis. Admin. Code § PI 8.01(e) (Oct., 2001).8 These services were explained in the school's "Educational Planner," a publication offered to students.9 Dave Johnson was employed by the District as a guidance counselor at SPASH and met the state's licensing requirements. Johnson was Ryan Scott's assigned guidance counselor.

¶ 8. During Ryan Scott's junior year of high school, he and his parents met with Johnson. The plaintiffs explained that Ryan Scott was trying to receive a hockey scholarship to an NCAA Division I school. The plaintiffs knew that the NCAA required students to take courses in certain core subjects in order to be eligible for a student athlete scholarship. The plaintiffs told Johnson that they wanted to make sure Ryan Scott fulfilled the core requirements and needed help in selecting the appropriate courses. Johnson agreed to assist them.

¶ 9. In Ryan Scott's senior year of high school, he and his mother met with Johnson to discuss which classes Ryan Scott should take. They asked Johnson specifically whether "Broadcast Communication" was a course approved by the NCAA as fulfilling a core English requirement. This information was available to Johnson. SPASH had sent its curriculum to the NCAA Initial Eligibility Clearinghouse and received a Form 48-H indicating those courses offered by SPASH that met the NCAA approved core course requirements and those that did not. Johnson had access to 48-H forms covering several years, and each of them explicitly states that "Broadcast Communication" is not an approved course. Johnson, however, erroneously advised Ryan Scott and his mother that "Broadcast Communication" was an approved course. Ryan Scott enrolled in and completed the "Broadcast Communication" course.

¶ 10. After graduating from SPASH, Ryan Scott played junior hockey in Iowa and was offered a full four-year scholarship to the University of Alaska, an NCAA Division I school. The plaintiffs accepted the scholarship offer. The scholarship was contingent upon receipt of an initial eligibility certification from the NCAA. After receipt of Ryan Scott's final transcripts from SPASH, the NCAA determined that Ryan Scott was not eligible for a Division I student athlete scholarship solely because "Broadcast Communication" was not an approved core course in English. The University of Alaska rescinded its scholarship.

¶ 11. The plaintiffs sued the District, seeking recovery in the amount of the rescinded scholarship plus the out-of-pocket expenses they incurred for Ryan Scott's college education, and the District filed a motion to dismiss.

¶ 12. The circuit court granted the District's motion to dismiss the amended complaint, concluding that the plaintiffs' case was governed by Kierstyn v. Racine Unified School District, 228 Wis. 2d 81, 596 N.W.2d 417 (1999). In Kierstyn, the court held that a school district benefits specialist who provided erroneous advice was immune from liability. The circuit court held that the immunity rationale of Kierstyn applied to the plaintiffs' promissory estoppel claim.

¶ 13. The court of appeals affirmed the judgment of the circuit court dismissing the plaintiffs' suit. The court of appeals held that the District was immune from suit under Wis. Stat. § 893.80(4), pursuant to Kierstyn. Moreover, the court of appeals concluded that the alleged contract failed for lack of consideration and that equitable relief under the doctrine of promissory estoppel was not appropriate because the District did not make a promise that reasonably induced reliance, and because injustice would not be avoided or remedied by granting judgment to the plaintiffs.


¶ 14. We begin our analysis of the amended complaint with the plaintiffs' claim for damages on the ground of negligence. The parties agree that the amended complaint properly states all the elements of a negligence claim. The dispute focuses on whether the District is immune from liability for negligence under Wis. Stat. § 893.80(4), Wisconsin's government immunity statute.

¶ 15. The statute provides political subdivisions and public officials with immunity for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. Section 893.80(4) reads as follows:

No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the

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