Umansky v. Abc Ins. Co.

• Decision Date: 17 June 2009
• Docket Number: No. 2007AP385.,2007AP385.
• Citation: 769 N.W.2d 1,2009 WI 82
• Parties: Harold 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-Petitioner.
• Court: Wisconsin Supreme Court

769 N.W.2d 1

2009 WI 82

Harold 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-Petitioner.

No. 2007AP385.

Supreme Court of Wisconsin.

Argued February 4, 2009.

Decided June 17, 2009.

[769 N.W.2d 3]

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

For the plaintiffs-appellants cross-appellants there was a brief filed by J. Michael Riley, Timothy M. Barber, and Axley Brynelson, LLP, Madison, and oral argument by J. Michael Riley.

An amicus curiae brief was filed by James Olson and Lawton & Cates, SC, Madison, on behalf of the Wisconsin Association for Justice.

¶ 1 N. PATRICK CROOKS, J

This is a review of a published court of appeals decision¹ that reversed a grant of summary judgment for the petitioner and remanded the case to the circuit court. This wrongful death case concerns a claim by cross-respondents (the Umanskys) that Barry Fox (Fox), the director of facilities for Camp Randall Stadium, negligently caused the death of Richard Umansky (Umansky) by failing to enforce a specific safety regulation at Camp Randall. Umansky was a television cameraman for ABC, Inc. He fell approximately eight feet to his death from a four-foot by eight-foot platform supplied by the University. There was no railing on Umansky's platform at the time. The Wisconsin legislature has adopted federal safety regulations and made them applicable for all public buildings, and such regulations require that railings be installed on platforms like the one from which Umansky fell.

¶ 2 As a state employee, however, Fox enjoys immunity from liability unless, under the circumstances, at least one of the limited exceptions to immunity applies. We must address whether Fox's obligation pursuant to statute to act to ensure that Camp Randall Stadium complies with the Occupational Safety and Health Administration (OSHA) regulation requiring a railing on certain types of platforms creates a ministerial duty exception to the standard rule of state employee immunity. Specifically, the narrow question we address is whether Fox had a ministerial duty under 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50 (Aug. 2004),² to have a rail on the platform from which Umansky fell. Finding that no exception applied, the Dane County Circuit Court, the Honorable John C. Albert presiding, granted summary judgment for Fox. The Umanskys appealed. The court of appeals reversed, making a number of rulings favorable to the Umanskys related to the issue of whether Fox had a ministerial duty and is thus unable to claim immunity.

¶ 3 However, the court of appeals declined to address one of Fox's arguments newly made on appeal, deeming it waived. Because of the potential impact of the new argument³ on a determination of whether Fox's employer was required by state law to comply with the applicable regulation, the court of appeals stopped short of holding that the regulation applied to Fox's employer, leaving that determination to be made on remand to the circuit court. The court of appeals thus made a number of rulings⁴ with which we agree and which we adopt and ultimately concluded that Fox was not entitled to summary judgment on the ground of immunity:

[W]e 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.

Umansky v. ABC Ins. Co., 2008 WI App 101, ¶ 3, 313 Wis.2d 445, 756 N.W.2d 601. Fox petitioned for review and we granted his petition.

¶ 4 We now adopt and affirm those court of appeals' rulings listed above. We conclude that Fox had a ministerial duty here. His job description provided that he was responsible for compliance with state and federal safety regulations, including 29 C.F.R. § 1910.23(c)(1). "[G]iven 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...." Umansky, 313 Wis.2d 445, ¶ 3, 756 N.W.2d 601. Further, because we reach and ultimately reject the argument that the regulation at issue does not apply to Fox's employer, our holding resolves the remaining question from the court of appeals' rulings. We thus remand to the circuit court, having answered the threshold question concerning Fox's immunity from suit by concluding that Fox had a ministerial duty to perform the act of ensuring that the platform complied with the applicable regulation. The focus of the circuit court must be on breach, causation, comparison of fault, and damages, not on the question of by whom the deceased was employed. We remand for a trial on the Umanskys' negligence claim.

¶ 5 We first set forth the factual background and the applicable legal framework in Parts I and II. In Part III, we address the specific regulation that creates the ministerial duty exception here. In Part IV, we discuss the applicability of the regulation to all public buildings of a public employer. In Part V, we discuss the inapplicability of the Safe Place Statute to this case.

I. BACKGROUND

¶ 6 The court of appeals set forth the facts and procedural history as follows:

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.

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. 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).

....

[After a motion to dismiss was denied,] Fox moved for summary judgment based on discretionary act immunity for public employees. 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...."

Umansky, 313 Wis.2d 445, ¶¶ 6-9, 756 N.W.2d 601.

¶ 7 As noted above, the circuit court granted Fox's motion for summary judgment, reasoning that neither the ministerial duty exception nor the known danger exception applied in this case; because it found no applicable exception, the circuit court found that Fox's immunity as a state employee barred a suit. As noted above, the court of appeals reversed.

II. STANDARD OF REVIEW AND RELEVANT LAW

¶ 8 We review a grant of summary judgment de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2) (2001-02)⁵.

¶ 9 Immunity for public officers and employees is grounded in common law, Kimps v. Hill, 200 Wis.2d 1, 9, 546 N.W.2d 151 (1996), and is based largely on "public policy considerations that spring from an interest in protecting the public purse and a preference for political rather than judicial redress" for actions. Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis.2d 323, ¶ 23, 646 N.W.2d 314.

¶ 10 The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Kimps, 200 Wis.2d at 10, 546 N.W.2d 151. The rule, however, is subject to exceptions, representing a "judicial balanc[e] [struck between] the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress." Lister v. Bd. of Regents, 72 Wis.2d 282, 300, 240 N.W.2d 610 (1976). The exception at issue in this case is that a state employee "is not shielded from liability for the negligent performance of a purely ministerial duty." Kimps, 200 Wis.2d at 10, 546 N.W.2d 151.

¶ 11 The definition of ministerial duty has remained substantially the same since it was adopted in 1955 in Meyer v. Carman, 271 Wis. 329, 73 N.W.2d 514 (1955): "`A ... duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the...