Spencer v. County of Brown

• Decision Date: 16 December 1997
• Docket Number: No. 97-0267,97-0267
• Citation: 573 N.W.2d 222,215 Wis.2d 641
• Parties: Arthur Louis SPENCER, Plaintiff-Appellant, v. COUNTY OF BROWN, Michael Donart and State of Wisconsin-Department of Health and Social Services, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 222

573 N.W.2d 222

215 Wis.2d 641

Arthur Louis SPENCER, Plaintiff-Appellant, v. COUNTY OF BROWN, Michael Donart and State of

Wisconsin-Department of Health and Social

Services, Defendants-Respondents.

No. 97-0267.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 6, 1997.

Opinion Released Dec. 16, 1997.

Opinion Filed Dec. 16, 1997.

[215 Wis.2d 643] On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William J. Donarski of Parins Law Firm, S.C. of Green Bay.

On behalf of the defendants-respondents, Brown County and Michael Donart, the cause was submitted on the briefs of William J. Ewald and Beth Rahmig Pless of Denissen, Kranzush, Mahoney & Ewald, S.C. of Green Bay.

Before CANE, P.J., and MYSE and HOOVER, JJ.

CANE, Presiding Judge.

Arthur Louis Spencer appeals a summary judgment dismissing his complaint against Brown County and Sheriff Michael Donart. ¹ Spencer, an inmate at the Brown County jail, claimed to have suffered injuries to his head and body when he slipped and fell in the jail shower area while drying himself off after showering. He brought suit against the County and Donart for damages resulting from his fall. The defendants moved for summary judgment, which the trial court granted, finding that there were no genuine issues of material fact present and that the County and Donart were entitled to judgment as a matter of law based on its determination that they are immune from liability for Spencer's claim under § 893.80(4), STATS. ² We agree with the trial court and affirm the judgment.

The facts of the case are undisputed. Spencer was incarcerated in the Brown County jail on November 25, 1994. On December 1, 1994, ³ Spencer fell and suffered injuries when he slipped while in the process of drying himself off after showering. Jail personnel took him to the hospital for examination of a head laceration. He claims he suffers migraine headaches resulting from his injuries, requiring future medical attention, and continues to have pain and suffering, loss of earnings, and other personal injuries.

When Spencer was first admitted to the jail in November, jail personnel filled out a physical screening form. The form indicates there were no observable injuries, but that Spencer said he had right-knee and left-ankle pain. Spencer signed the form, acknowledging the answers as true and correct. He showered in the facility for five days without incident. He did not indicate to jail personnel that he was having difficulty showering or drying himself or that he needed assistance or special accommodations.

Some fourteen years prior to the accident, Spencer suffered a stroke that resulted in permanent right-side paralysis. He cannot use his right arm. He can walk, but does so with what he describes as a noticeable limp.

The defendants maintain the trial court's grant of summary judgment was proper, first, because it is immune from Spencer's suit under § 893.80(4), STATS. Further, even without the benefit of immunity, Spencer's suit must still fail because he cannot establish the causation element of his negligence claim to present a prima facie case. Spencer argues summary judgment is not appropriate because (1) there are genuine issues of material fact; ⁴ (2) defendants are not immune because the safe-place statute imposes a ministerial duty to take reasonable action to make the jail showers safe, and the question of what is "reasonable action" is for the jury to decide; and (3) defendants are not immune because they had a ministerial duty to identify him as a disabled person and make appropriate facilities available to him.

We review an order granting summary judgment using the same methodology as the trial court, as set forth in § 802.08(2), STATS. ⁵ Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). The moving party is entitled to summary judgment when no genuine issue of material fact exists and the movant has established entitlement to judgment as a matter of law. Id.

Spencer characterizes his arguments in terms of disputed facts; the facts surrounding the accident, however, are not in dispute. The legal effect of those facts is at issue, and the dispositive issue is whether any allegedly negligent action or failure to act is ministerial or discretionary in nature.

IMMUNITY

The main issue is whether the County and Donart are immune from liability under § 893.80(4), STATS. No suit may be brought against a political corporation, governmental subdivision, or any agency thereof, or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. Section 893.80(4), STATS. Legislative, quasi-legislative, judicial or quasi-judicial acts are, by definition, nonministerial; in application, they are synonymous with discretionary acts. Lifer v. Raymond, 80 Wis.2d 503, 512, 259 N.W.2d 537, 541-42 (1977).

In sum, immunity exists for acts performed pursuant to a discretionary duty. See C.L. v. Olson, 143 Wis.2d 701, 710-11, 422 N.W.2d 614, 617 (1988). Government entities and officials do not enjoy immunity for the negligent performance or failure to perform ministerial duties, for malicious, willful and intentional conduct. ⁶ Id. at 710-11, 422 N.W.2d at 617. Additionally, even though immunity may exist, it may be destroyed if the injury resulted from a known and present danger.

If defendants' duty to Spencer is discretionary, they have the benefit of immunity. However, if their duty is ministerial, they can be held liable for the negligent performance or failure to perform said duty. The focus of our inquiry is the nature of the duty, if any, owed to Spencer. The duty to perform a ministerial act is one which 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." Stann v. Waukesha County, 161 Wis.2d 808, 816, 468 N.W.2d 775, 779 (Ct.App.1991) (quoting Domino v. Walworth County, 118 Wis.2d 488, 490, 347 N.W.2d 917, 919 (Ct.App.1984)). A discretionary act, on the other hand, is one that "involves the exercise of discretion of judgment in determining the policy to be carried out or the rule to be followed [and] the exercise of discretion and judgment in the application of a rule to specific facts." Lifer, 80 Wis.2d at 511-12, 259 N.W.2d at 541.

The trial court found defendants immune from suit under § 893.80(4), STATS., based on its determination that defendants had no ministerial duty to Spencer either to construct, equip or maintain the jail shower facility in a specific manner to make it safe, or to identify him as a physically disabled inmate in need of special accommodations or facilities. Whether defendants' duties regarding the condition of the jail shower area where Spencer fell are discretionary or ministerial is a question of law we review de novo. See Larsen v. Wisconsin Power & Light Co., 120 Wis.2d 508, 516, 355 N.W.2d 557, 562 (Ct.App.1984).

DISCRETIONARY OR MINISTERIAL DUTY

Spencer claims defendants were negligent with respect to the safety precautions and control of the shower facilities, the training and supervision of the guards, and the inspection, maintenance and repair of the shower facilities. He contends defendants are not immune because (1) the safe place statute, § 101.11, STATS., imposes a ministerial duty on the defendants to adopt and use methods and processes reasonably adequate to make the shower area safe, and to do every other thing reasonably necessary to protect Spencer's safety and welfare, and they negligently failed to perform that duty; and (2) defendants had a ministerial duty to identify Spencer as a disabled individual in need of special accommodations, and they negligently performed that ministerial duty by erroneously filling out the physical screening form.

We first address Spencer's contention that the safe-place statute, § 101.11, STATS., imposes a ministerial duty on defendants to make the jail shower facilities safe. Section 101.11(1) provides in relevant part:

Every employer shall adopt and use methods and processes reasonably adequate to render such places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. every owner of 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. (Emphasis added.)

Spencer relies on Henderson v. Milwaukee County, 198 Wis.2d 747, 543 N.W.2d 544 (Ct.App.1995), for the proposition that the safe-place statute applies to prison facilities. We assume for the sake of examining the immunity issue that it does, without specifically holding that the safe-place statute applies in this situation.

Spencer asserts that Anderson v. City of Milwaukee (Anderson I ), 199 Wis.2d 479 544 N.W.2d 630 (Ct.App.1996), unequivocally states that the safe-place statute imposes a ministerial duty on the defendants. He reasons that use of terrazzo flooring in a shower area is evidence that defendants breached their ministerial duty under § 101.11, STATS., and therefore, defendants have no immunity under § 893.80(4), STATS. We reject Spencer's arguments.

First, Anderson I has been reversed by the Wisconsin Supreme Court in Anderson v. City of Milwaukee, 208 Wis.2d 18, 559 N.W.2d 563 (1997) (Anderson II ). That case involved a shopper who sued the city for damages after she fell at a city-run farmer's market and broke her knee. The city did not raise the damage limitation as an affirmative defense in its answer. At trial, the city moved for a directed verdict, claiming immunity under § 893.80(4), STATS. The trial court denied the motion. Id. at 23, 559 N.W.2d at 565. The city appealed the...