2009AP2297 Bronfeld v. Pember Companies, Inc.

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Torts
Governmental immunity; subcontractors

A subcontractor working on a government project is entitled to immunity where it conformed to the approved specifications.

“Here, the City of River Falls dictated which traffic control devices Pember was required to use and where these devices needed to be placed. It also decided Pember did not need to construct a temporary crosswalk and did not need to use a ‘crosswalk closed’ sign as opposed to a ‘sidewalk closed’ sign. These specifications were reasonably precise and significantly curtailed Pember’s discretion. The specifications therefore meet the first prong of the Lyons test for government contractor immunity.”

“The second prong of the Lyons test requires proof that the contractor conformed to the approved specifications. Lyons, 207 Wis. 2d at 457. As proof of compliance with the specifications, Pember produced pictures of the accident scene. These pictures demonstrate Pember used the barricades and signs mandated by the city and placed these barricades and signs according to the city’s specifications. Pember also presented evidence that Wronski, the city engineer, had ‘no criticism’ of the barricades and signs Pember used.”

“There is no evidence that Pember failed to comply with the barricade and sign specifications in the project manual and traffic control plan. While the Bronfelds insinuate that Pember should have done something different from what the specifications required, they have not presented any evidence that Pember did not comply. Because the undisputed evidence demonstrates that Pember complied with the specifications, Pember has satisfied the second prong of the Lyons test.”

“The final prong of the Lyons test requires a showing that the contractor warned the supervising governmental authority about possible dangers known to the contractor but not to the governmental official. Lyons, 207 Wis. 2d at 458. A contractor can satisfy this prong if it shows it was not aware that the reasonably precise specifications posed any danger. See Brown, 313 Wis. 2d 497, ¶15. Here, there is no evidence that Pember was aware of any dangers associated with the specifications in the project manual and traffic control plan. Consequently, there is no evidence that Pember ‘ignore[d its] duty to the public and [withheld] information about dangers that the government might not know about.’ See Lyons, 207 Wis. 2d at 457. Pember has therefore satisfied the third prong of the Lyons test.”

Affirmed.

Recommended for publication in the official reports.

2009AP2297 Bronfeld v. Pember Companies, Inc.

Dist. III, Pierce County, Wing, J., Peterson, J.

Attorneys: For Appellant: Bye, Charles M., River Falls; Heidt, Martha H., River Falls; Laule, Brian F., River Falls; For Respondent: Smith, Todd A., Rice Lake; Heaney, Patrick G., Rice Lake

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