Torts — governmental immunity

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Wisconsin Supreme Court

Civil

Torts — governmental immunity

Governmental immunity does not apply when someone is injured because an officer proceeds against a traffic signal as authorized by Wis. Stat. § 346.03(2)(b) (2011-12), if the officer slowed the vehicle and activated lights and sirens as required by § 346.03(3) but nonetheless arguably violated the duty to operate the vehicle “with due regard under the circumstances” as required by § 346.03(5).

“Reading compliance with Wis. Stat. § 346.03(2)(b) and § 346.03(3) as meeting the due regard standard, as the defendants urge, ignores the language of § 346.03(5). Subsection (5) explicitly states that the duty of due regard exists notwithstanding the other exemptions or privileges in § 346.03: ‘The exemptions granted . . . by [§ 346.03] do not relieve such operator from the duty to drive or ride with due regard under the circumstances for the safety of all persons . . . .’ The text of § 346.03(5) envisions ‘due regard’ as a standard of care existing independently of the exemptions granted by § 346.03.”

“A holding adopting the police officer’s interpretation that compliance with the exemptions or privileges authorized in § 346.03 meets the duty of ‘due regard’ under § 346.03(5) would treat the language of (5) as surplusage. Such a holding would do exactly what the statute forbids, namely it would relieve the operator of this duty. We decline to do so.”

“To be true to Wis. Stat. § 893.80(4) and (5) and § 346.03(5), and the rules of statutory interpretation, we conclude that the police officer in the instant case who is alleged to have breached the duty of ‘due regard’ under § 346.03(5) is not immune from suit under § 893.80(4).”

Reversed and Remanded.

2012AP2499 Legue v. City of Racine

Abrahamson, C.J.

Attorneys: For Appellant: Knurr, Timothy S., Milwaukee; For Respondent: Devine, Thomas M., Racine