Negligence – Governmental Immunity

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WI Supreme Court

Case Name: Michael Engelhardt, et al. v. City of New Berlin, et al.

Case No.: 2019 WI 2

Focus: Negligence – Governmental Immunity

This is a review of an unpublished decision of the court of appeals reversing the circuit court’s denial of summary judgment to the City of New Berlin and the New Berlin Parks and Recreation Department (together, “New Berlin”).

Eight-year-old Lily Engelhardt attended a field trip to Brookfield’s Wiberg Aquatic Center organized and run by the New Berlin Parks and Recreation Department. Lily could not swim. Lily’s mother told Stuart Bell, the “Playground Coordinator” in charge of the field trip, that Lily could not swim. She questioned whether Lily should go on the trip at all. Bell responded that Lily would be safe because her swimming ability would be evaluated at the shallow end or zero depth area of the pool. Tragically, Lily drowned while staff and other children were changing in the locker rooms and proceeding to the pool deck.

Lily’s parents filed suit against New Berlin and several other defendants, alleging negligence. New Berlin moved for summary judgment, arguing that it was immune from suit pursuant to the governmental immunity statute, Wis. Stat. § 893.80(4) (2011-12). The circuit court denied New Berlin’s summary judgment motion, and New Berlin moved for leave to appeal. The court of appeals granted New Berlin’s motion and reversed the circuit court’s denial of summary judgment to New Berlin.

We conclude that New Berlin is not entitled to the defense of governmental immunity. The known danger exception to governmental immunity applies in the instant case. In the instant case, the danger to which Lily was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident. The obvious dangers involved here resemble other obviously hazardous circumstances presented in Wisconsin cases that applied the known danger exception.  Drowning was a known danger. Under the circumstances present here, Bell and other camp staff had a ministerial duty to give Lily a swim test before allowing her near the pool. They did not perform this ministerial duty.

Because New Berlin is not entitled to the defense of governmental immunity, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

Reversed and Remanded

Concur: DALLET, J. concurs, joined by R.G. BRADLEY, J. & Kelly, J. (opinion filed).

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.