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Torts; Governmental immunity; contractors

Torts; Governmental immunity; contractors

For a contractor to come within sec. 893.80(4)’s shield of immunity, a contractor must prove it was acting as the governmental entity’s agent in accordance with reasonably precise specifications.

“We conclude that where a third party’s claim against a governmental contractor is based on the allegation that the contractor negligently performed its work under a contract with a governmental entity, the governmental contractor must prove both that the contractor meets the definition of “agent” under Wis. Stat. § 893.80(4), as set forth in Lyons, and that the contractor’s act is one for which immunity is available under § 893.80(4). Specifically, we conclude that for a contractor to come within § 893.80(4)’s shield of immunity, the contractor must prove it was acting as the governmental entity’s agent in accordance with reasonably precise specifications, as set forth in Lyons. In this case, Musson has not shown that it was acting as a governmental entity’s agent for purposes of the alleged injury-causing conduct because Musson was not acting pursuant to ‘reasonably precise specifications.’”

“Moreover, pursuant to the plain language of Wis. Stat. § 893.80(4), we also conclude that a governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial or quasi-judicial function as set out in § 893.80(4). In the context of this case, a governmental contractor would be required to assert that it was implementing a decision of a governmental entity that was made within the scope of the governmental entity’s legislative, quasi-legislative, judicial or quasi-judicial functions. Adherence to these statutory requirements for immunity under § 893.80(4) will avoid extending blanket immunity for claims of negligently performed work against governmental contractors when the sole basis for immunity is that the work was performed pursuant to a contract with a governmental entity. Allowing governmental contractors to claim immunity in such instances would vastly expand the doctrine of governmental immunity. Applying this rationale to this case, we conclude that Musson would not be entitled to immunity for Showers’ claims that Musson negligently performed its work under a government contract, because Musson has not made a showing that Musson was an agent implementing a governmental entity’s decision made within the scope of the entity’s legislative, quasi-legislative, judicial or quasi-judicial functions.”

Reversed and Remanded.

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

Roggensack, J.

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