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High court’s decision could reverse precedent

High court’s decision could reverse precedent

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Could the threat of a lawsuit slow down a fireman racing to the scene of a blazing home or discourage a fledgling paramedic from entering his chosen profession?

In a case being considered by the Wisconsin Supreme Court, Marilyn M. Brown v. Acuity Insurance et al., 2011 AP 583, the defendants suggest that a finding for plaintiffs Marilyn Brown and Dolores Schwartz could do just that, by reversing a 50-year trend of greater protections for the discretionary decisions of government employees.

“That precedent,” the defense wrote, “… has defined immunity for public officers and employees, both state and municipal, based largely upon public policy considerations.”

In brief

Case: Marilyn M. Brown v. Acuity Insurance et al.

Attorneys for Brown: Keith Stachowiak and Don Prachthauser, of Murphy & Prachthauser SC, Milwaukee

Attorneys for Burditt/Acuity: Lance Grady and Daniel K. Miller, of Grady, Hayes & Neary LLC, Waukesha

But courts in Wisconsin have found ambulance drivers, volunteer firefighters and others negligent and responsible for tortious conduct in the past. Brown suggests that, in this case, government immunity should not protect a volunteer fireman and the Okauchee Fire Department.

Case history

On the evening of June 8, 2008, Parnell Burditt, a volunteer fireman with the Okauchee Fire Department, was at home when he received an alert to report for emergency assistance.

Burditt got into his Toyota Tacoma, activated three emergency lights and drove toward the firehouse on what was described in court as a dark, stormy evening. Okauchee Fire Department rules require volunteers first go to the firehouse for instructions and assignment, instead of directly going to the emergency scene.

When Burditt was a few blocks from his house, he approached a regulated intersection against the red light. He stopped his truck and then proceeded into the intersection with lights flashing but no audible siren.

A car driven by Frank Brown slammed into the Burditt’s vehicle, causing serious injury to Brown’s wife Marilyn Brown and passenger Dolores Schwartz.

Brown and Schwartz in 2010 sued Burditt, who is covered by Acuity Insurance, and the Okauchee Fire Department.

The defendants filed motions for summary judgment in 2011 and early 2012, saying that with no material facts in dispute, the underlying law was clear and Burditt and the Okauchee Fire Department were protected by government immunity under Wisc. Stat. 893.80.

Waukesha Circuit Judge Donald Hassin Jr. granted summary judgment to the defendants. The Wisconsin Court of Appeals affirmed the trial court’s decision May 30, 2012.

The review

A key component of the appeal to the Wisconsin Supreme Court is that Brown requested the court revisit the 1962 decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, which established four circumstances under which government immunity can apply: for acts done “in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”

Language from that decision, Brown said, suggested that the Holytz court was setting out a course to narrow, not expand, government immunity.

“Hence forward,” the Holytz court wrote, “so far as government responsibility for torts is concerned, the rule is liability, the exception is immunity.”

In the years after Holytz was decided, however, piecemeal state legislation added personal liability protection for public employees, established procedures and set recovery limits, and compelled government entities to indemnify employees against liability.

Later case law, such as Lifer v. Raymond and Lister v. Board of Regents, also helped expand the definition of what is protected discretionary conduct, according to Brown, even though “not every discretionary act of a government employee is made in a quasi-judicial setting.”

No decision has overruled Holytz, however, or offered a rationale for abandoning the rule of liability, the Wisconsin Department of Justice noted in its amicus brief to the court.

“The Wisconsin Supreme Court abrogated government immunity in language which was clear and unequivocal in Holytz,” the DOJ wrote. “The court noted that the doctrine has been roundly criticized by both local courts and commentators as mistaken, unjust and unsupportable by any valid reason.”

In order to revisit the Holytz opinion, however, the state justices would have to disregard a line of cases stringing back almost 50 years, a proposition Acuity claims is in stark contrast to how evolving public policy has provided greater protection to government employees doing their jobs.

“[Brown] would have this court roll back a half century of precedent underpinning a doctrine that this court regards as ‘occupying’ a significant role in our legal system,” Acuity wrote.

Acuity argues that making government employees increasingly liable for their individual decisions could scare away good candidates from the professions, cause employees to lose valuable on-the-job time responding to lawsuits and cause inequities by subjecting supervisors to liability because of the actions of their subordinates.

Going through the red light was a discretionary decision by Burditt, Acuity said.

“Legislative, quasi-legislative, judicial and quasi-judicial acts have been collectively interpreted to include any act that involved the exercise of discretion and judgment,” Acuity noted, quoting Lodl v. Progressive, 2002 WI 71.

But if the court is unwilling to revisit Holytz, Brown suggested that Burditt’s decision to drive through the red light be viewed as a ministerial act, and thus, outside the protection of government immunity.

A ministerial act involves a duty that is “absolute, certain and imperative, involving merely the performance of a specific task … where nothing remains for judgment or discretion,” according to Caraher v. City of Menomonie.

Brown contends that such an absolute obligation clearly is stated in the Wisconsin Rules of the Road and was in place the night of the accident.

Wis. Stat. 346.02 describes that the “provisions [of the traffic code] are applicable to vehicles owned or operated by or for any government agency … subject to exceptions in 346.03.” A narrow exception is provided for “emergency vehicles to proceed past a red light or stop signal or stop sign but only if vehicle has given both a visual and audible signal.”

According to court testimony, Okauchee Fire Department guidelines allowed but did not require flashing lights on volunteers’ emergency vehicles. However, these same guidelines “do not allow the use of audible sirens,” according to Brown.

State law requires all emergency vehicle operators to activate both sirens and lights before entering an intersection against a red light, said Brown. Because Burditt did not have any siren on his vehicle, the traffic code required him to stop at the red light, making his decision ministerial.

Acuity responded that Lodl and Andrade v. Cavanaugh more accurately state what obligation Burditt had when he drove his Tacoma into the intersection. Both cases suggest that decisions made by a public employee that contradict stated manual policy or guidelines still can be discretionary in nature.

The case has been fully briefed and argued. A decision from state justices is expected this term.


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