Governmental Immunity

municipality lawyer in milwaukee wisconsinGovernment bodies and municipalities in the state of Wisconsin enjoy various immunities and protections from lawsuits. Wisconsin Statute Section 893.80 governs what must be done in order to pursue a claim against governmental entities or municipalities, and it also outlines certain immunities enjoyed by these entities. In light of the recent Wisconsin Supreme Court decision in Engelhardt, et al. vs. City of New Berlin, et al., this article will specifically focus on “governmental immunity”: what is is, who is protected and what are the exceptions.

In the Engelhardt case, an eight year old girl named Lily went on a field trip with the New Berlin Parks and Recreation Department to an aquatic center. Lily could not swim, and her mother made the playground coordinator aware of that fact prior to the field trip. Lily’s mother even questioned whether Lily should go on the field trip at all, but she was assured by the playground coordinator that Lily would be safe because the camp staff would evaluate her ability to swim in the shallow end. Lily drowned while most of the staff were still in the changing area assisting other campers.

Put simply, governmental immunity is the notion that municipalities (and other government bodies) are immunized from liability for acts that are within their discretion while performing their work-related functions. This is codified in Wis. Stat. § 893.80(4). As long as it can be shown that an employee of a governmental body or municipality was acting within his or her discretion when the claim arose, the individual and municipality is subject to governmental immunity.

As with most rules, there are some exceptions to the rule of governmental immunity. There are multiple sets of acts that would not enjoy immunity pursuant to Wis. Stat. § 893.80(4).

“There is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful and intentional.”

The question in many cases becomes whether the act of the public officer was ministerial, which would create an exception to the general rule of immunity, or whether the act of the public officer was discretionary, thus invoking the protections of governmental immunity. The Court describes a test to determine whether an act constitutes a ministerial duty. “A public officer’s 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 time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.”

Another exception to the rules of governmental immunity, and the exception that was the most prevalent in the Engelhardt case, is the known danger exception. For purposes of the known danger exception, a ministerial duty is said to arise “when an obviously dangerous situation presents itself.” The case that originally established the known danger exception was Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977). The Cords case involved hikers who, while hiking at night, fell deep down into a gorge that was located on a part of a trail that the park manager knew was hazardous. While the park manager would have otherwise been protected from liability by governmental immunity, the Court found that the known danger exception applied because the park manager knew that the area was particularly hazardous, was in a position to do something about it (such as put up a warning sign) and failed to do so. The Court noted that the park manager “had an absolute, certain, or imperative duty to either place the signs warning the public of the dangerous conditions existing on the upper trail or to advise his superiors.” Having failed to do so, the Court determined that the park manager had breached his duty.

In a similar fashion, the Wisconsin Supreme Court noted the same sorts of dangers as were present in the Cords case to be present in the Engelhardt case. The Court noted an apparent danger of bringing a young, eight year old girl, who was unable to swim, to a busy aquatic center with dozens of other children. The Court recognized that serious injury or death can occur very quickly if a young child cannot swim, and that the nature of the dangers were “immediate, compelling, and self-evident.” The Court emphasized that the playground coordinator for New Berlin was aware of the fact that the young girl could not swim yet he did not inform any other staff member of the same nor did he ensure that she received a swim test prior to allowing her to be in the water without direct supervision. As was the park manager in the Cords case, the Wisconsin Supreme Court concluded that the playground coordinator for New Berlin was aware of the danger, in a position to do something about it yet failed to do so. Accordingly, the Court determined that the known danger exception to governmental immunity applies.

In cases involving injuries due to the negligence of a municipality or government body, there are certain things that need to be done in a short amount of time in order to preserve the injured victim’s right to pursue the claim against the municipality. In many cases, arguments will develop, as in the Engelhardt case, that the act fell outside of the realm of immunity for the municipality. If you or someone you know has been injured by this type of negligence, you need a strong team of attorneys on your side with the experience to stand up to and fight the municipalities. The team at Groth Law Firm has that experience and welcomes the opportunity to fight for you. Call us today for a free consultation.