Torts — governmental immunity — independent contractors

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Wisconsin Court of Appeals

Civil

Torts — governmental immunity — independent contractors

Discretion on the part of an independent contractor does not, in and of itself, destroy governmental immunity.

“Indeed, some flexibility in contract specifications is necessary and even desirable. In construction, for example, not everything can be foreseen and put into a contract that will define exactly how a contractor must respond to every situation. Instead, the owner of the project outlines certain bottom-line expectations that the contractor must make sure to adhere to. Those expectations create a framework through which everyone can operate when unexpected situations—such as the June 12 storm—make following the more detailed plan impossible or impractical. A ‘means and methods’ clause like the one in Musson’s contract gives the contractor the discretion to operate within those expectations as it pleases. But that discretion is of course limited by the contract provisions. In such situations, a contractor working for the government does not lose immunity simply because it has to make some decisions on its own when an unplanned event or emergency situation arises.”

Affirmed.

Recommended for publication in the official reports.

2011AP1158 Showers Appraisals, LLC, v. Musson Bros., Inc.

Dist. II, Winnebago County, Key, J., Brown, J.

Attorneys: For Appellant: Posanski, Daniel J., Oshkosh; For Respondent: Dudas, David G., Appleton; Putzstuck, Joe, Appleton