Umansky v. Abc Ins. Co.

Decision Date26 June 2008
Docket NumberNo. 2007AP385.,2007AP385.
Citation756 N.W.2d 601,2008 WI App 101
PartiesHarold UMANSKY, Individually and as Personal Representative of the Estate of Richard Umansky and Thelma Umansky, Plaintiffs-Appellants-Cross-Respondents, v. ABC INSURANCE COMPANY, Defendant, Barry Fox, Defendant-Respondent-Cross-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
CourtWisconsin Court of Appeals

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of J. Michael Riley and Jason J. Knutson of Axley Brynelson, LLP, Madison. There was oral argument by John M. Riley.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of John J. Glinski, assistant attorney general, and J.B. Van Hollen, attorney general. There was oral argument by John J. Glinski.

Before DYKMAN, VERGERONT and BRIDGE, JJ.

¶ 1 VERGERONT, J

This is a wrongful death action in which the plaintiffs claim that Barry Fox, Director of Facilities for Camp Randall Stadium, negligently caused the death of Richard Umansky, who fell from a platform in the stadium while working as a cameraman for ABC Inc. The plaintiffs appeal the order of the circuit court granting summary judgment in favor of Fox after the court concluded he is immune from liability under the common law doctrine of immunity for state employees. The plaintiffs contend Fox is not immune because (1) he had a ministerial duty under 29 C.F.R. § 1910.23(c)(1), incorporated by WIS. ADMIN. CODE §§ Comm 32.15 (Mar.1999) and 32.50 (July 2002),1 to have a rail on the platform from which Umansky fell; (2) the known danger exception to immunity applies; and (3) broad immunity for discretionary acts is inconsistent with earlier Wisconsin case law.

¶ 2 With respect to the ministerial duty exception, we do not conclusively determine whether it applies. However, we make a number of rulings related to the exception. First, the nondelegability to third parties of an employer's duty under the safe place statute does not prevent suit against a state employee for failure to comply with a safety regulation adopted pursuant to Wis. STAT. § 101.055(3) (2001-02).2 Second, the "law" that is the source of a ministerial duty need not specify the employee position responsible for carrying out the duty; it is sufficient if the "law" imposes a duty that is ministerial and other evidence establishes that a particular employee is responsible for carrying out that duty. Third, a regulation that otherwise imposes a ministerial duty is not discretionary simply because the supervisory employee responsible for compliance with the regulation has discretion with respect to assigning tasks to carry out that duty. Fourth, 29 C.F.R. § 1910.23(c)(1), incorporated by WIS. ADMIN. CODE §§ Comm 32.15 and 32.50, imposes a ministerial duty to have a railing meeting the specifications of the regulation on a platform that meets the requirements of the regulation.

¶ 3 Based on the above rulings and the undisputed facts, we conclude Fox was responsible for compliance with state and federal safety regulations and this job responsibility is sufficient to impose on him the duty to comply with 29 C.F.R. § 1910.23(c)(1) insofar as the regulation applies to his employer. We further conclude that, given the height and structure of the platform from which Umansky fell, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the platform, if Fox's employer was required by state law to comply with this regulation as to this platform.3

¶ 4 We also conclude the known danger exception does not apply and that we are bound by the case law on public employee immunity that the plaintiffs challenge.

¶ 5 Accordingly, we reverse the summary judgment granted in Fox's favor and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 6 For purposes of this appeal, the facts in this paragraph are not disputed. Umansky was employed as a cameraman by ABC Inc. On November 21, 2003, he was found lying unconscious beneath a platform from which he had been working at the University of Wisconsin's Camp Randall Stadium. He later died as a result of injuries sustained from falling from the platform to the concrete walkway below.

¶ 7 Umansky's parents and the Estate of Richard Umansky filed this action against Fox, claiming that Umansky's fall was caused by Fox's negligence.4 The amended complaint alleged that Fox was responsible for the safety of Camp Randall Stadium, including compliance with state and federal safety regulations, and that he was negligent in failing to ensure that the platform was reasonably safe and in failing to comply with the applicable regulations, including failing to provide railings on the platform in violation of 29 C.F.R. § 1910.23(c)(1).

¶ 8 Fox moved to dismiss on the ground that the amended complaint did not state a claim for relief because the negligent acts alleged were discretionary, not ministerial, and Fox was therefore entitled to immunity as a public employee. In addition, Fox argued, the amended complaint did not contain allegations that showed an exception to immunity based on a known danger. The circuit court denied the motion.

¶ 9 Fox moved for summary judgment based on discretionary act immunity for public employees.5 He submitted his affidavit in which he averred that the platform from which Umansky fell had been in use by ABC Inc. and other broadcasting companies for several years prior to the accident, and no one had indicated to him that the platform was not safe or did not comply with applicable regulations. Umansky's submissions included Fox's deposition, the Occupational Safety and Health Administration (OSHA) accident investigation report, and a citation and notification of penalty to ABC Inc. for a violation of 29 C.F.R. § 1910.23(c)(1). The regulation provides: "Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder...."

¶ 10 The circuit court concluded that OSHA regulations impose a duty upon employers, but not on employees, and therefore Fox did not have a ministerial duty to comply with 29 C.F.R. § 1910.23(c)(1).6 The court also concluded that the known danger exception to immunity did not apply because a platform without a rail did not rise to the level of imminent danger sufficient to trigger this narrow exception, and because the danger the platform posed did not suggest one specific ministerial act to remedy it. The circuit court therefore granted summary judgment in favor of Fox.

DISCUSSION

¶ 11 On appeal the plaintiffs contend that, based on the undisputed facts, OSHA and Wisconsin law imposed a ministerial duty on Fox to provide a railing on the platform and, alternatively, the known danger exception applies. They also contend that the broad immunity that has developed under the case law for discretionary acts is inconsistent with earlier case law.

¶ 12 Fox's position is that the circuit court should have granted his motion to dismiss the amended complaint for failure to state a claim and, in the alternative, that the court properly granted summary judgment in his favor. Fox asserts that in Wisconsin only the employer, not any employee, has the obligation to comply with this OSHA regulation and the employer may not delegate this duty to an employee. Therefore, Fox argues, he cannot have a duty to comply with it. In the alternative, Fox contends that complying with the regulation involved several discretionary decisions. Fox also contends that neither the allegations in the amended complaint nor the summary judgment submissions show that the known danger exception is applicable. Finally, Fox responds that we are bound by the case law the plaintiffs challenge.

¶ 13 In the first section below, we set forth the applicable law. In the second section, we address the plaintiffs' contention that this law has broadened the immunity doctrine beyond that originally intended. We conclude we are bound to follow the challenged case law. In the third section, we discuss the ministerial duty exception. While we resolve many of the disputed legal issues in the plaintiffs' favor, we do not conclusively determine whether the ministerial duty exception applies. In the fourth section, we take up the known danger exception and conclude it does not apply.

I. Applicable Law

¶ 14 We review an order granting summary judgment de novo, and we apply the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). We first analyze the complaint to determine whether it states a claim for relief. Id. When a complaint alleges a negligence claim against a public employee, it does not state a claim for relief unless it alleges circumstances that warrant an exception to the general rule of immunity. See C.L. v. Olson, 143 Wis.2d 701, 706-07, 725, 422 N.W.2d 614 (1988) (complaint alleging a parole agent was negligent did not allege an exception to the officer's civil immunity and was dismissed for failure to state a claim). In analyzing whether a complaint states a claim for relief, we construe it liberally, and we take as true all allegations and all reasonable inferences from the allegations that favor the plaintiff. Green Spring Farms, 136 Wis.2d at 317, 401 N.W.2d 816.7

¶ 15 If the complaint does state a claim for relief, and if issue is joined, we determine whether there are any genuine issues of material fact. Id. at 320, 401 N.W.2d 816. If there are none, we decide whether the moving party is entitled to judgment as a matter of law. Id.

¶ 16 The defense of discretionary act immunity for public employees assumes negligence and focuses on whether the action or inaction upon which...

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