Wisconsin Court of Appeals
Torts — governmental immunity
A county is entitled to governmental immunity on a claim that a county employee negligently directed traffic.
“[W]e agree with the County that a flagger who is directing traffic must make split-second decisions that require the flagger to use his or her judgment. The exercise of judgment is a hallmark of a discretionary, as opposed to ministerial, act. See Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693. We agree with the County that, while directing traffic on Highway JJ, Harper had discretion to choose the course of action he thought was safest under the circumstances. Here, Harper testified he was focused on stopping the northbound car on Highway N, and did not see Greiner’s southbound vehicle before releasing Socha’s vehicle into the intersection. Harper thus exercised discretion in releasing Socha’s vehicle. Although Harper’s decision may ultimately have been negligent, his negligence is irrelevant to the immunity analysis, which instead focuses on the discretionary nature of his acts. See Lodl, 253 Wis. 2d 323, ¶17.”
Recommended for publication in the official reports.
Dist. III, Outagamie County, Gage, J., Peterson, J.
Attorneys: For Appellant: Shannon, John G., Racine; Lawrynk, Michael D., Appleton; For Respondent: Hall, Samuel C., Jr., Milwaukee; Johnson, Timothy M., Milwaukee