January/February 2019 Issue

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New Supreme Court Case Expands the Known Danger Exception to Governmental Immunity

02.06.19

Wisconsin law shields local governments from personal injury liability for the discretionary acts of its employees. However, Wisconsin courts have carved out a few exceptions to governmental immunity. Recently, the Wisconsin Supreme Court found that the ​“known danger” exception to government immunity could not shield the City of New Berlin from negligence liability when its employees failed to properly supervise a young girl whom they knew could not swim during a field trip to an aquatic center.

In Engelhardt v. City of New Berlin, 2019 WI 2, eight-year-old Lily Engelhardt attended a field trip to Brookfield’s Wiberg Aquatic Center organized and run by the New Berlin Parks and Recreation Department. Lily’s mother told the coordinator in charge of the field trip that Lily could not swim and questioned whether Lily should go on the trip at all. The coordinator responded that Lily would be safe because her swimming ability would be evaluated at the shallow end or zero depth area of the pool and that she would be limited to the ​“splash pad” area. Tragically, Lily drowned while staff and other children were changing in the locker rooms and proceeding to the pool deck.

Lily’s parents sued New Berlin for negligence and New Berlin sought immunity under Wis. Stat. §893.80(4), which provides liability protection to local governments and their employees for acts done in the exercise of ​“legislative, quasi-legislative, judicial or quasi-judicial functions.” The circuit court denied New Berlin’s summary judgment motion, and New Berlin moved for leave to appeal. The court of appeals granted New Berlin’s motion and reversed the circuit court’s decision.

Wisconsin courts have held that the terms ​‘quasi-judicial or quasi-legislative’ mean ​‘discretionary,” and therefore, governments are immune from liability for the discretionary acts of their employees. Lifer v. Raymond, 80 Wis. 2d 503, 508, 259 N.W.2d 537 (1977). Case law distinguishes discretionary acts, which are subject to immunity, and ministerial acts, which are not. A duty is ministerial when the duty is absolute, certain and imperative, involving merely the performance of a specific task and the law specifies the mode of performance with such certainty that nothing remains for judgment or discretion. Kimps v. Hill, 200 Wis. 2d 1, 546 N.W.2d 151 (1996). The ​“law” here implies an act of government, and can include statutes, rules, government contracts, and policies.

In New Berlin, the plaintiffs’ primary argument was that the staff guidelines were policies which created a ministerial duty and the park staffs failure to follow the guidelines were a breach of the ministerial duty. The Court rejected this argument, explaining that such a ruling would significantly expand the liability of municipalities. Instead, a four-justice majority concluded that the ​“known danger” exception to governmental immunity applied to the negligence claim against New Berlin.

Under the known danger exception to governmental immunity, no immunity exists in situations the government employee knows that an imminent danger is present and the danger is so extreme that a required response leaves nothing to the discretion of the employee. C.L. v. Olson, 143 Wis. 2d 701, 422 N.W.2d 614 (1988). The known danger creates a ministerial duty to act. The known danger exception is reserved for conditions that are nearly certain to cause injury if not corrected, or in other words, are ​“accidents waiting to happen.”

The Court in New Berlin reasoned that Lily’s mother communicated her concerns to the coordinator in charge of the day camp program. She told him that Lily could not swim and asked whether Lily should go on the field trip to the Aquatic Center. He responded that it would be all right for Lily to attend the field trip because Lily would be evaluated. However, Lily was not given a swim test, and the coordinator told no other staff members that Lily could not swim. The Court noted that the danger associated with bringing a young child who cannot swim to a busy water park along with 76 other children is apparent. Thus, a ministerial duty was created by the obviously hazardous circumstances presented and New Berlin was not entitled to governmental immunity. 

The known danger exception poses difficulty for courts and litigants because its application has been far from consistent. When considering whether a known danger exists, courts often assess whether the government had knowledge of the danger and whether the options for addressing the danger allowed the government employee to exercise discretion. For example, the exception applied in Baumgardt v. Wausau Sch. Dist. Bd. of Educ., 475 F. Supp. 2d 800 (W.D. Wis. 2007), where officials of a high school had a duty to report to police that a teacher was sexually assaulting a female student, because officials allegedly had actual knowledge of the assaults. Yet, in Recore v. Cnty. of Green Lake, 2016 WI App 33, 368 Wis. 2d 282, 879 N.W.2d 131, the known danger exception did not apply to the police department’s duty to investigate child sexual abuse allegations when no one actually knew that the abuser was in fact abusing the child.

Despite these guiding factors, inconsistency remains. For example, the known danger exception applied in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), where hikers, legally accessing a narrow park hiking trail at night, fell ninety feet into a gorge located on a part of the trail known by the park manager to be particularly hazardous at night. Yet, in Umansky v. ABC Ins. Co., 2009 WI 82, 319 Wis. 2d 622, 769 N.W.2d 1, when a television cameraman was killed at a stadium after falling from a raised platform that had no railings in violation of state regulations, the Court was uncertain that the platform presented the type of ​“compelling danger that warrants” the exception. 

New Berlin likely increases the difficulty in applying the known danger exception. As Justice Dallet notes in her concurring opinion, “[i]n order to apply the known danger exception to the case at hand, the majority opinion must necessarily expand the exception to apply in situations where the danger was not necessarily imminent and where there was discretion in how to respond to the potential danger.”