Showers Appraisals, LLC v. Musson Bros., Inc. ( 2013 )

2013 WI 79SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1158
COMPLETE TITLE: Showers Appraisals, LLC, Real Marketing, LLC and
Mark W. Showers,
Plaintiffs-Appellants-Petitioners,
v.
Musson Bros., Inc. and West Bend Mutual
Insurance Company,
Defendants-Respondents-Cross-
Appellants,
League of Wisconsin Municipalities Mutual
Insurance and City of Oshkosh,
Defendants-Cross-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 343 Wis. 2d 623, 819 N.W.2d 316(Ct. App. 2012 – Published)
PDC No: 2012 WI App 80OPINION FILED: July 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Barbara H. Key
JUSTICES:
CONCURRED: CROOKS, J., ABRAHAMSON, C.J., BRADLEY, J.,
concur. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs by Daniel J. Posanski and Gerardo Medina Jr. and Dempsey
Law Firm LLP, Oshkosh, and oral argument by Daniel J. Posanski.
For defendant-cross-respondents, there was a brief by Bree
A. Madison and Richard J. Carlson, and Silton Seifert Carlson
S.C., Appleton, with oral argument by Bree A. Madison.
For the defendants-respondents-cross-appellants, there was
a brief by David G. Dudas and Joseph P. Putzstuck, and McCanna,
Dudas & Kewley, S.C., Appleton, with oral argument by David G.
Dudas.
An amicus curiae brief was filed by Martha H. Heidt and
Bye, Goff & Rohde, Ltd., River Falls, on behalf of the Wisconsin
Association of Justice.
2
2013 WI 79NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1158
(L.C. No. 2009CV1438)
STATE OF WISCONSIN : IN SUPREME COURT
Showers Appraisals, LLC, Real Marketing, LLC
and Mark W. Showers,
Plaintiffs-Appellants-Petitioners,
v.
FILED
Musson Bros., Inc. and West Bend Mutual
Insurance Company, JUL 18, 2013
Defendants-Respondents-Cross- Diane M. Fremgen
Appellants, Clerk of Supreme Court
League of Wisconsin Municipalities Mutual
Insurance and City of Oshkosh,
Defendants-Cross-Respondents.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a
published decision of the court of appeals1 that affirmed the
Winnebago County Circuit Court's2 grant of summary judgment in
1
Showers Appraisals, LLC v. Musson Bros., Inc., 2012 WI App
80, 343 Wis. 2d 623, 819 N.W.2d 316.
2
The Honorable Barbara H. Key presided.
No. 2011AP1158
favor of Musson Bros., Inc. (Musson). This case arises from
flood damage to Mark Showers' property in the City of Oshkosh,
where Musson was conducting sewer removal and installation as a
contractor for the Wisconsin Department of Transportation (DOT).
In granting and affirming summary judgment, the circuit court
and court of appeals concluded that Musson was a governmental
contractor entitled to immunity under Wis. Stat. § 893.80(4)
(2011–12),3 based on the court of appeals' decision in Estate of
Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658(Ct. App. 1996).
¶2 We conclude that where a third party's claim against a
governmental contractor4 is based on the allegation that the
contractor negligently performed its work under a contract with
a governmental entity, the governmental contractor must prove
both that the contractor meets the definition of "agent" under
Wis. Stat. § 893.80(4), as set forth in Lyons, and that the
contractor's act is one for which immunity is available under
§ 893.80(4). Specifically, we conclude that for a contractor to
come within § 893.80(4)'s shield of immunity, the contractor
3
All subsequent references to the Wisconsin Statutes are to
the 2011–12 version unless otherwise indicated.
4
The court of appeals in Estate of Lyons v. CNA Insurance
Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996), used
the term "governmental contractor" to refer to those independent
private contractors that it concluded may be entitled to
immunity under Wis. Stat. § 893.80(4), based on the nature of
their contractual relationships with governmental entities. We
continue this usage, but emphasize that the contractors involved
are private entities whose affiliation with the government is
through a contractual relationship for a particular project.
2
No. 2011AP1158
must prove it was acting as the governmental entity's agent in
accordance with reasonably precise specifications, as set forth
in Lyons. In this case, Musson has not shown that it was acting
as a governmental entity's agent for purposes of the alleged
injury-causing conduct because Musson was not acting pursuant to
"reasonably precise specifications."
¶3 Moreover, pursuant to the plain language of Wis. Stat.
§ 893.80(4), we also conclude that a governmental contractor
seeking to assert the defense of immunity should clearly allege
in the pleadings why the injury-causing conduct comes within a
legislative, quasi-legislative, judicial or quasi-judicial
function as set out in § 893.80(4). In the context of this
case, a governmental contractor would be required to assert that
it was implementing a decision of a governmental entity that was
made within the scope of the governmental entity's legislative,
quasi-legislative, judicial or quasi-judicial functions.5
Adherence to these statutory requirements for immunity under
§ 893.80(4) will avoid extending blanket immunity for claims of
negligently performed work against governmental contractors when
the sole basis for immunity is that the work was performed
5
In other cases we have used the term "discretionary" to
refer to those acts that are within Wis. Stat. § 893.80(4)'s
"legislative, quasi-legislative, judicial or quasi-judicial
functions." See, e.g., Lifer v. Raymond, 80 Wis. 2d 503, 511–
12, 259 N.W.2d 537 (1977) (citing § 893.80(4)'s predecessor,
Wis. Stat. § 895.43(3)). Our use of the statutory terms in this
case, rather than the designation "discretionary," is not
intended as a change to the immunity analysis, but rather as a
recognition that the applicable standard is based on precise
statutory language. See infra, ¶35.
3
No. 2011AP1158
pursuant to a contract with a governmental entity. Allowing
governmental contractors to claim immunity in such instances
would vastly expand the doctrine of governmental immunity.
¶4 Therefore, based on Musson failing to meet the
standard for a Wis. Stat. § 893.80(4) agent, Musson is not
entitled to immunity under § 893.80(4). Additionally, we
conclude that the facts set out in support of summary judgment
would not support a claim of governmental contractor immunity
because Musson has failed to assert that the acts for which it
claims immunity were "acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions," as
required under § 893.80(4). Accordingly, Showers' claims should
be analyzed no differently than negligence claims against other
contractors.
¶5 Musson may therefore be liable if Showers is able to
show that in performing its work under the government contract,
Musson had a duty of due care to Showers, that Musson breached
that duty, and that such breach was a cause of Showers' damages.
Accordingly, we reverse and remand to the circuit court for
further proceedings on Showers' claims against Musson consistent
with this opinion. Additionally, because Musson's and the
City's cross-claims were not fully litigated in the circuit
court and were not addressed by the court of appeals, those
claims should be addressed on remand.
I. BACKGROUND
¶6 In September 2007, the DOT and the City of Oshkosh
entered into a state–municipal agreement for a sewer improvement
4
No. 2011AP1158
project along a stretch of Ohio Street in Oshkosh, which is also
State Highway 44. Under the agreement, the State (through the
DOT) would provide substantial financing for the project,
although the City was responsible for funding and construction
of sanitary sewers and water mains, as well as the sealing of
concrete joints. The DOT would remain involved in the project,
including overseeing the bidding process and being onsite during
construction.
¶7 The DOT opened the Ohio Street project for bidding,
informing potential bidders that, as contractors, they would be
"responsible for any damages to property or injury to persons
occurring through their own negligence or that of their
employees or agents, incident to the performance of work under
this contract, pursuant to the Standard Specifications for Road
and Bridge Construction applicable to this contract." The
specifications applicable to the project were the State of
Wisconsin Standard Specifications for Highway and Structure
Construction. These Standard Specifications consist of hundreds
of pages of directions and specifications regarding how
governmental contractors are to perform certain aspects of
contracted projects.
¶8 After completion of the bidding process, the DOT
awarded the contract to Musson, and the two entered into the
Contract for Highway Work, which provided that DOT would pay
Musson $4,393,833.15 for its work. Musson began work on the
Ohio Street project in spring 2008.
5
No. 2011AP1158
¶9 Prior to the commencement of the Ohio Street project,
Mark Showers had contracted for the construction of a new
building on the property he owned on the corner of Ohio Street
and Sixth Avenue in Oshkosh. As part of that construction,
Showers was required by city code to connect his downspouts,
sump pump, and parking lot drainage to the municipal storm
sewer. The construction of Showers' building was completed on
or about November 30, 2007, and Real Marketing, LLC and Showers
Appraisals, LLC,6 began conducting their business at that
location.
¶10 When the Ohio Street sewer project commenced in spring
2008, the City, the DOT, and Musson discussed certain aspects of
how the project would proceed, one of which was whether the
roadway was to be removed all at once, or whether it should be
removed and repaired on a block-by-block basis. The parties
purportedly agreed that the block-by-block approach would be
best; however, there is no formal documentation of the parties'
alleged agreement on this aspect of the project, and indeed,
Musson has at times disputed whether there was such an
agreement.
¶11 Whatever the parties did or did not agree to, Musson
removed the entire roadway along Ohio Street, from the storm
sewer's outlet at the Fox River to the end of the project,
6
Mark Showers is the majority owner of Showers Appraisals,
LLC, and Real Marketing, LLC. These entities collectively will
be referred to throughout the opinion as "Showers" unless
otherwise indicated.
6
No. 2011AP1158
around Ninth Street; disconnected the storm sewers in that
reach; and placed a bladder at the discharge at the Fox River so
that water would not flow from the river into the non-
operational sewer system. Musson's decision to proceed in this
manner caused some disputes between City officials and Musson,
based on the City's concern that by removing the entire storm
sewer, Musson would compromise the City's ability to manage
storm water.
¶12 The DOT concluded that Musson's decision to remove the
storm sewer along the project's reach, rather than on a block-
by-block basis, was allowed under a provision in the Standard
Specifications, referred to as the "means and methods"
provision.7 That provision states, in pertinent part, that the
contractor "is solely responsible for the means, methods,
techniques, sequences, and procedures of construction. The
contractor is not responsible for the negligence of others in
the design or specification of specific means, methods,
techniques, sequences, or procedures of construction described
in and expressly required by the contract."
¶13 On June 8, 2008, rain storms inundated the Ohio Street
project site, dropping approximately 4.25 inches of rain in the
area of the project site. The storm left water standing in the
exposed roadbed outside Showers' property, and a manager with
7
When Musson sought approval to remove the pavement and
leave the roadbed exposed, Ryan Schanhofer of DOT informed
Musson that there was nothing in the contract explicitly
prohibiting that approach.
7
No. 2011AP1158
Musson reported that Musson's pumps were unable to maintain
drainage for the amount of rain that had fallen. After viewing
the project site outside his property, Showers noted multiple
conditions that potentially impeded drainage (as well as other
conditions that he alleged were contrary to the Standard
Specifications), including mounds of soil in the roadbed and
drainage inlets clogged with soil and debris. When Showers
spoke with employees from the City and Musson regarding the
standing water and the potential for damage from another large
storm that was predicted, Showers was told that there was
nothing that either entity could do to remedy the situation.
¶14 Following the substantial rain event of June 8, the
City and Musson began to prepare a contingency pumping plan for
the next rain storm that was forecast for June 12. On the
evening of June 11, a Musson employee allegedly was placing
pumps according to the plan; however, Showers and other
neighbors in the area averred that the pumps either were not
present or were not operating during the June 12 storm event.
Marc Miller, a water maintenance officer with the City, could
not confirm the exact number of pumps that he recalled seeing at
the Ohio Street project site, nor could he confirm how many
pumps were running at the relevant times.8
¶15 By 5:30 p.m. on June 12, water was overflowing from
the storm sewers in Showers' parking lot, and the Ohio Street
8
Schanhofer also stated that by the morning of June 13,
there were no pumps present at or near Showers' property at the
intersection of Ohio Street and Sixth Avenue.
8
No. 2011AP1158
roadbed was entirely flooded. Additionally, water had begun to
overflow from another drainage basin into the stretch of Ohio
Street near Showers' property. The June 12 storm was estimated
to have dropped approximately 4.36 inches of rain on the area
within 5.5 hours during the evening, in addition to near-
continuous, but less intense rain throughout the entire day.
¶16 Following the June 12 rains, the basement at Showers'
property flooded with more than seven feet of water. Showers
retained an engineer who concluded that approximately 117,500
gallons of water had been trapped in the roadbed outside
Showers' property for 15 to 18 hours, and that the hydrostatic
pressure caused by that water eventually caused Showers'
basement floor to rupture, thereby allowing the water to seep up
into the basement. Showers' sump pump ran continuously
following the storm, but because the pump was connected with the
storm sewers, the discharge of the sump pump merely recycled
water out into the roadbed, which then seeped back into Showers'
basement. Neither the City nor Musson had informed Showers that
the storm sewers had been disconnected. Because of the
flooding, Showers incurred at least $140,000 in damages to his
business and personal property, and was forced to relocate his
businesses for four months while the Ohio Street property could
be cleaned, repaired, and restored.9
9
Notwithstanding these damages, experts averred that Musson
complied with the Standard Specifications regarding maintenance
of drainage during all phases of the Ohio Street construction
project.
9
No. 2011AP1158
¶17 Showers commenced the present action by serving Musson
and the City with a summons and complaint on July 23, 2009.10 In
pertinent part, Showers alleged that "improper drainage, design,
maintenance, excavation, construction procedures, and failure to
take corrective measures" caused flooding in Showers' basement
following the June 8 and 12 storms. Accordingly, Showers sought
relief from the City and Musson on the grounds that those
entities were "jointly and severally liable to [Showers] for
negligent acts or omissions which caused [Showers'] building to
flood, resulting in damage to the building and personal
property, including losses for repairs, replacements, clean up,
diminished value, and loss of use and related damages and
losses."
¶18 The City and Musson moved for summary judgment, each
arguing that it was entitled to immunity for its acts relating
to the Ohio Street sewer project; additionally, the City and
Musson brought cross-claims against one another for
indemnification. After considering affidavits and arguments by
the parties, the circuit court granted summary judgment for the
City and Musson on the basis that both entities were entitled to
governmental immunity under Wis. Stat. § 893.80(4). Showers
appealed the grant of summary judgment as to Musson, but not the
grant of summary judgment dismissing his claims against the
City. Therefore, Showers' claims against the City are no longer
10
Prior to commencing this action, on October 3, 2008,
Showers served the City with a notice of claim as required under
Wis. Stat. § 893.80(1) (2007–08).
10
No. 2011AP1158
a part of this case. However, Musson did cross-appeal the
dismissal of its indemnification claim against the City.
¶19 The court of appeals affirmed the grant of summary
judgment for Musson. Showers Appraisals, LLC v. Musson Bros.,
Inc., 2012 WI App 80, ¶1, 343 Wis. 2d 623, 819 N.W.2d 316. The
court concluded that under the test set forth in Lyons, Musson
was entitled to governmental contractor immunity as a statutory
"agent" under Wis. Stat. § 893.80(4). Id. Additionally,
because the court concluded that Musson was entitled to
immunity, it did not address Musson's or the City's cross-
appeals. Id.¶20 Showers filed a petition for review, which we
granted.11
II. DISCUSSION
A. Standard of Review
¶21 The circuit court granted summary judgment for the
City and Musson on the basis of governmental immunity and
governmental contractor immunity under Wis. Stat. § 893.80(4).
The interpretation of a statute is a question of law that we
review independently of the circuit court and the court of
appeals, although we benefit from those courts' analyses.
11
Following summary judgment, the City has appeared in this
action in response to Musson's cross-appeal against the City for
indemnification. The City appeared in the court of appeals, was
included as a party in Showers' petition for review, and has
submitted briefs and argument before this court in favor of its
position that both the City and Musson are entitled to immunity
in this case.
11
No. 2011AP1158
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d
541, 749 N.W.2d 581. In addition, determining whether
governmental immunity exists for particular conduct requires the
application of legal standards to the facts found, which is also
a question of law for our independent review. Estate of Brown
v. Mathy Constr. Co., 2008 WI App 114, ¶6, 313 Wis. 2d 497, 756
N.W.2d 417. Also, when we review a grant of summary judgment,
we will affirm it if no genuine issue of material facts exists
and "the moving party is entitled to judgment as a matter of
law." Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342
Wis. 2d 311, 818 N.W.2d 819.
B. Governmental Contractor Immunity
¶22 The City and Musson assert that, under Wis. Stat.
§ 893.80(4),12 Musson is entitled to immunity from liability for
Showers' claims. In order to address that claim, we must
interpret § 893.80(4). We therefore begin with the language of
12
The statutory immunity afforded under Wis. Stat.
§ 893.80(4) has been referred to as "municipal" or
"governmental" immunity, and is distinct from the sovereign
immunity that the Wisconsin Constitution grants the State. See
Anderson v. City of Milwaukee, 208 Wis. 2d 18, 28 n.11, 559
N.W.2d 563 (1997). Nonetheless, we have acknowledged that there
is overlap in the principles governing whether a governmental
entity or officer is entitled to immunity. See C.L. v. Olson,
143 Wis. 2d 701, 716 n.9, 422 N.W.2d 614 (1988). Therefore,
although the immunity that Musson claims in this case could be
the sovereign immunity conferred upon the DOT as a state agency
(because of Musson's contract with the DOT), principles of
governmental contractor immunity under § 893.80(4) have been
raised as being applicable here. Neither the State nor the DOT
was sued, so the right of a sovereign to consent to suit was
never at issue. See Holytz v. City of Milwaukee, 17 Wis. 2d 26,
41, 115 N.W.2d 618 (1962).
12
No. 2011AP1158
that statute. Section 893.80(4) provides, in pertinent part,
that "[n]o suit may be brought against any [governmental entity]
. . . or against its officers, officials, agents or employees
for acts done in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions."
¶23 Our task when interpreting a statute is to discern the
statute's meaning, which we presume is expressed in the language
chosen by the legislature. Richards, 309 Wis. 2d 541, ¶20. If
the meaning of the language is plain, we apply that meaning.
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." Id. Our analysis
of statutory language also may be aided by considering prior
decisions examining the relevant statutory provisions. See
DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15, 302 Wis. 2d 564,
734 N.W.2d 394.
¶24 Wisconsin Stat. § 893.80(4) was enacted in response to
our decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39,
115 N.W.2d 618 (1962). See Coffey v. City of Milwaukee, 74
Wis. 2d 526, 532, 247 N.W.2d 132 (1976) (recognizing that what
is now § 893.80(4) is the codification of Holytz). In Holytz,
17 Wis. 2d at 39, we abrogated the common law rule of
governmental immunity for governmental entities, and stated that
"henceforward, so far as governmental responsibility for torts
13
No. 2011AP1158
is concerned, the rule is liability [and] the exception is
immunity."
¶25 Holytz excepted from that abrogation the acts of a
governmental entity exercising its legislative, quasi-
legislative, judicial or quasi-judicial functions. See id. at
40. That language carving out an exception to governmental
liability now appears in Wis. Stat. § 893.80(4), with the
addition of immunity for governmental officers, agents and
employees, thereby including those individuals for whose acts
the governmental entity would be liable under the doctrine of
respondeat superior. See id.; see also Kettner v. Wausau Ins.
Cos., 191 Wis. 2d 723, 729-30, 530 N.W.2d 399 (Ct. App. 1995)
(limiting the type of agents for which § 893.80 may provide
immunity).
¶26 When analyzing and applying Wis. Stat. § 893.80(4), we
often have used the term "discretionary" as a shorthand to refer
to decisions of a governmental entity that are legislative,
quasi-legislative, judicial or quasi-judicial. See, e.g., Willow
Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235
Wis. 2d 409, 611 N.W.2d 693; C.L. v. Olson, 143 Wis. 2d 701, 710
n.5, 422 N.W.2d 614 (1988); Lifer v. Raymond, 80 Wis. 2d 503,
511–12, 259 N.W.2d 537 (1977); see also Lyons, 207 Wis. 2d at
453–54. Legislative and quasi-legislative functions generally
refer to those policy choices made in an official capacity,
e.g., when a governmental entity chooses one project design over
another. See Lyons, 207 Wis. 2d at 453. Quasi-judicial
functions generally refer to those acts that involve the
14
No. 2011AP1158
exercise of discretion in coming to a judgment; the availability
of a public hearing on the judgment before a specialized board;
and the imposition by a board of an appropriate final decision.
See Coffey, 74 Wis. 2d at 534-35.
¶27 In the present case, the parties' arguments center on
the application of Wis. Stat. § 893.80(4) in regard to a
governmental contractor who claims immunity derived from the
governmental entity with which the contractor has a contractual
relationship.13 The court of appeals addressed a similar
situation in Lyons. There, the court examined whether a
governmental contractor was entitled to immunity under
§ 893.80(4) when the contractor implemented a bridge design that
had been selected by the contracting governmental entity.
Because the court of appeals' decision in Lyons was grounded in
the United States Supreme Court's decision in Boyle v. United
Technologies Corp., 487 U.S. 500, 510–13 (1988), it is necessary
to understand Boyle to place Lyons in proper perspective.
¶28 In Boyle, a governmental contractor was sued based on
its sale of a helicopter to the United States Marine Corps. Id.
at 502. The helicopter was alleged to have a design defect in
the co-pilot's escape system, which prevented the opening of the
13
Musson does not specify whether the immunity it seeks is
legislative, quasi-legislative, judicial or quasi-judicial in
nature. We need not make that determination because we conclude
that Showers' allegation that Musson negligently performed its
construction responsibilities does not implicate any of the
governmental entity functions excepted from liability pursuant
to Wis. Stat. § 893.80(4).
15
No. 2011AP1158
escape hatch when the helicopter was submerged. Id. at 503.
The alleged design defect resulted in the death of a pilot who
survived a crash into water, but drowned because he could not
escape from the helicopter. Id. at 502.
¶29 In analyzing whether the contractor's governmental-
contractor defense had merit, the Supreme Court focused on
whether the government contract required the contractor to
"deliver helicopters with the sort of escape-hatch mechanism
shown by the specifications" of the helicopter that the Marine
Corps had chosen. Id. at 509. The Supreme Court reasoned that
"the selection of the appropriate design for military equipment
to be used by our Armed Forces is assuredly a discretionary
function." Id. at 511. The Court then concluded by setting out
a three-part test to determine whether the relationship between
the governmental contractor and the governmental entity was such
that the contractor should be immune from liability for design
defects in military equipment chosen by the Armed Forces: "(1)
the United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use
of the equipment that were known to the supplier but not to the
United States." Id. at 512.
¶30 In explaining its test, the Supreme Court said, "[t]he
first two of these conditions assure that the suit is within the
area where the policy of the 'discretionary function' would be
frustrated——i.e., they assure that the design feature in
question was considered by a Government officer, and not merely
16
No. 2011AP1158
by the contractor itself." Id. (emphasis added). In so
explaining, the Supreme Court made clear that a discretionary
act of a governmental officer is a necessary component to
potential immunity for the governmental contractor.
Accordingly, a governmental contractor's own "discretionary
actions" would not have sufficed to afford the contractor
immunity for its actions in Boyle.
¶31 In Lyons, the court of appeals also focused on a
design defect that allegedly was a cause of an accident. Lyons,
207 Wis. 2d at 449. It is important to note that, as was the
case in Boyle, it was the governmental entity in Lyons that made
the choice of design that allegedly was a cause of the accident.
Id. This design choice was made in the exercise of a
legislative or quasi-legislative function of the governmental
entity. Id. at 453. Because the governmental contractor
performed its contractual tasks under reasonably precise
specifications pursuant to the governmental entity's quasi-
legislative design decision, the contractor functioned as a Wis.
Stat. § 893.80(4) agent of the governmental entity when carrying
out the entity's design decision. See id. at 457–58, 461.
Therefore, the governmental contractor was entitled to the same
level of immunity as would be accorded to the governmental
entity had it been sued directly for its design choice. Id. at
454 (explaining the court's reliance on the rationale of Boyle
where the governmental contractor defense precluded suit "if the
challenged design choice was made by military officials").
17
No. 2011AP1158
¶32 Lyons adopted Boyle's three-part test. Id. at 457-58.
The court of appeals explained that a governmental contractor
that follows governmental specifications is an "agent" within
the meaning of Wis. Stat. § 893.80(4) when the contractor meets
the three-part test of Boyle. Id. "This three-part test will
ensure that state and municipal government, and the public at
large, is able to make the best use of professional design
assistance, but that professional contractors are not unfairly
burdened by lawsuits when they follow governmental directives."
Id. at 458.
¶33 Subsequent court of appeals decisions have affirmed
the Lyons court's rationale regarding contractor immunity,
stating, for example, that "[i]n Lyons, we expressly held that
an independent contractor meeting the three-part test was an
agent within the meaning of § 893.80(4)." Jankee v. Clark
Cnty., 222 Wis. 2d 151, 165, 585 N.W.2d 913 (Ct. App. 1998),
rev'd on other grounds, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d
297. The language of some of these cases may be read to suggest
that the relevant question is merely whether a contractor
satisfies the three-part test and is therefore an "agent"
entitled to immunity. See id.; see also Woychik v. Ruzic
Constr. Co., 2001 WI App 280, ¶8, 248 Wis. 2d 983, 638 N.W.2d
18No. 2011AP1158
394 (unpublished decision).14 Indeed, the court of appeals'
decision in the case at hand suggests that satisfaction of the
elements of the Lyons test will be sufficient to immunize
governmental contractors' conduct. See Showers Appraisals, 343
Wis. 2d 623, ¶22; see also Bronfeld v. Pember Cos., 2010 WI App
150, ¶12, 330 Wis. 2d 123, 792 N.W.2d 222.
¶34 However, analyzing whether the conduct of a
governmental contractor was undertaken as a statutory "agent"
within the scope of the immunity accorded by Wis. Stat.
§ 893.80(4) solely by reference to the three-part Lyons test may
lead a court to err. Rather, an equally dispositive question in
the § 893.80(4) immunity analysis is whether the relevant
decision of the governmental entity that the governmental
contractor implements is, itself, entitled to immunity under
§ 893.80(4) because it was made through the exercise of a
legislative, quasi-legislative, judicial or quasi-judicial
function of the governmental entity. Stated otherwise, only
certain types of acts fall within the immunity shield of
§ 893.80(4). It was on such a foundation that both the Lyons
and Boyle decisions stand because the governmental decision in
14
Wisconsin Stat. § 809.23(3) does not prohibit this
court's discussion of unpublished decisions when such discussion
relies on the opinion solely to demonstrate that courts have
used particular language from other cases, and does not rely on
the decision for authoritative or persuasive value. See State
v. Higginbotham, 162 Wis. 2d 978, 996–97, 471 N.W.2d 24 (1991).
Moreover, because such use of unpublished decisions has such
longstanding acceptance, see id., we need not decide now whether
§ 809.23(3) imposes any other limitations on this court's use of
unpublished decisions in its opinions.
19
No. 2011AP1158
each case, i.e., the choice of design, was made by a
governmental entity in the exercise of its legislative or quasi-
legislative function.
¶35 Immunity is available to a governmental entity only
for those governmental decisions that are made as an exercise of
"legislative, quasi-legislative, judicial or quasi-judicial
functions" as set out in Wis. Stat. § 893.80(4). Any statutory
immunity to which an agent of the governmental entity may be
entitled is dependent upon the immunity of the governmental act
or decision that the agent was implementing when it caused an
injury. This immunity inquiry under § 893.80(4)——examining
whether a governmental entity's conduct was an exercise of a
"legislative, quasi-legislative, judicial or quasi-judicial
function"——gives effect to the legislature's prerogative
regarding the circumstances in which immunity may be available
under § 893.80(4). Although some of our cases have equated
§ 893.80(4)'s "legislative, quasi-legislative, judicial or
quasi-judicial" standard with the term "discretionary," see,
e.g., Olson, 143 Wis. 2d at 710 n.5; Lifer, 80 Wis. 2d at 511–
12, and although our decision is not intended in any way to
alter that standard, we do emphasize that the legislatively
selected policy decision regarding immunity under § 893.80(4) is
best honored by applying the legislature's chosen plain
language, rather than a judicial distillation thereof. This
approach comports with fundamental principles of statutory
interpretation, under which the plain language of a statute is
20
No. 2011AP1158
presumed to most directly convey what the legislature means.
See Kalal, 271 Wis. 2d 633, ¶44.
¶36 From the foregoing, when a governmental contractor
seeks immunity under Wis. Stat. § 893.80(4), the contractor must
show both that the contractor was an agent as that term is used
in § 893.80(4), i.e., as is expressed in the Lyons test, and
that the allegedly injurious conduct was caused by the
implementation of a decision for which immunity is available for
governmental entities under § 893.80(4). As discussed below,
Musson has failed to show that it is an agent in accordance with
Lyons. Nonetheless, because the plain language of § 893.80(4)
demonstrates that the immunity analysis requires an element in
addition to what is required by Lyons' agency test (namely,
allegations that the injury-causing act was legislative, quasi-
legislative, judicial or quasi-judicial in character), we set
forth the applicable standard so that litigants and courts may
engage in a complete analysis of whether immunity may be
available in future cases.
¶37 The first and second requirements of the Lyons test,
i.e., whether the governmental entity approved reasonably
precise specifications that the governmental contractor adhered
to when engaging in the conduct that caused the injury, limit
when a governmental contractor is a statutory agent under Wis.
21
No. 2011AP1158
Stat. § 893.80(4).15 Stated otherwise, the governmental entity
must have had the right to control the tasks performed by the
contractor with "reasonably precise specifications" and the
contractor must have followed those specifications. When these
facts are proved, the contractor is a § 893.80(4) agent of the
governmental entity. See, e.g., Kettner, 191 Wis. 2d at 733–37
(explaining that not all conduct of agents comes within the
scope of § 893.80; rather, only that conduct that may be imputed
to a governmental entity as the act of the entity's servant
comes within § 893.80).16
¶38 The principles of immunity for particular types of
agents under Wis. Stat. § 893.80, as discussed in Kettner,
should be read in harmony with the Lyons test and with the
principles of governmental immunity enunciated in § 893.80(4).
For example, the allegation in Lyons that the bridge was
improperly designed by the governmental contractor, who
undertook the design at the direction of the governmental
entity, was the act of a § 893.80(4)–type agent because the
15
We note that the third criterion for statutory agency set
out in Lyons, that the contractor warned the governmental entity
about dangers known to the contractor but unknown to the
governmental entity, does not bear on whether statutory agency
is present. Rather, it is grounded in a concern that the
immunity accorded does not cut off information highly relevant
to governmental decisions. Boyle v. United Techs. Corp., 487
U.S. 500, 512-13 (1988).
16
The primary consideration in determining whether an act
was undertaken by one who acts in the capacity of a servant is
whether the principal had the right to control the conduct of
the agent. Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188,
198-99, 423 N.W.2d 848 (1988).
22
No. 2011AP1158
governmental entity controlled the design choice and design
choices are legislative or quasi-legislative functions. See
Lyons, 207 Wis. 2d at 452–58; see also Chart v. Dvorak, 57
Wis. 2d 92, 100–01, 203 N.W.2d 673 (1973) (recognizing that the
decision to undertake a project, or how to design the project,
may be immunized as the exercise of a legislative or quasi-
legislative function).
¶39 However, if the allegation in Lyons were not that the
design was a cause of the accident, and were instead that the
contractor did not construct the bridge in a workman-like manner
and thereby caused injury, such an allegation would not
implicate a legislative, quasi-legislative, judicial or quasi-
judicial function under Wis. Stat. § 893.80(4). Accordingly, an
allegation of negligent workmanship would not have the potential
for immunity under § 893.80(4) for that specific injury-causing
conduct, and no Lyons inquiry (to determine whether the
contractor was a § 893.80(4)-type agent) would be necessary.
This conclusion is based on the scope of immunity contemplated
by this court in Holytz, and by the legislature's codification
of Holytz in what is now § 893.80(4).
¶40 Some cases applying Kettner's agency principles in the
context of immunity inquiries could be read to suggest that
"agent" may be interpreted broadly to afford immunity to all
governmental contractors' conduct. However, in light of Wis.
Stat. § 893.80(4)'s explicit language limiting the scope of
governmental immunity, immunity will be extended to governmental
contractors only where the contractor acted as a "servant" for
23
No. 2011AP1158
the purposes of the challenged conduct. See Kettner, 191
Wis. 2d at 734–36. Indeed, as we explained above, this
definition of "agent" is manifest in the Lyons test, which
requires that a governmental contractor adhere to "reasonably
precise specifications." Cf. Arsand v. City of Franklin, 83
Wis. 2d 40, 45–46, 264 N.W.2d 579 (1978) (defining servant as
"one employed to perform service for another in his affairs and
who, with respect to his physical conduct in the performance of
the service, is subject to the other's control or right to
control").
¶41 Other cases following Lyons also illustrate that care
in analysis is needed when a claim of governmental contractor
immunity is made. For example, in Bronfeld, the court of
appeals addressed an allegation that a subcontractor negligently
erected barricades and failed to maintain the construction site
so as to protect public safety. The plaintiff claimed that the
contractor was therefore liable for the plaintiff's injuries,
which occurred when she tripped over a barricade that the
contractor had placed at the site. See Bronfeld, 330 Wis. 2d
123, ¶¶10, 12.
¶42 In Bronfeld, the government's general contractor had
provided a detailed traffic control plan that the City of River
Falls approved, and the subcontractor followed that plan. Id.,
¶6. The court of appeals began by noting that placement of
barricades is a discretionary duty, and therefore, if the City
had placed the barricades itself, it would have been immune from
suit pursuant to Wis. Stat. § 893.80(4). Id., ¶19. This
24
No. 2011AP1158
cursory determination of whether the governmental entity would
have been entitled to immunity under the language of § 893.80(4)
highlights the need for a more thorough immunity analysis for
claims of governmental immunity.
¶43 After making this primary determination, the court in
Bronfeld applied the Lyons test to determine whether the
contractor was an agent. The court concluded that the test was
satisfied, and that the contractor was entitled to immunity,
because (1) the City had provided reasonably precise
specifications regarding traffic control and barricade placement
by requiring and approving the traffic control plan the general
contractor submitted; (2) the subcontractor complied with the
those specifications; and (3) the subcontractor had not been
aware of any dangers posed by the reasonably precise
specifications. See id., ¶¶24–33.
¶44 Bronfeld's cursory analysis of governmental contractor
immunity under Wis. Stat. § 893.80(4) may be attributable to
Brown, where the language used to apply Lyons' reasoning could
be construed to afford immunity to governmental contractors'
actions where the alleged injury did not arise from the
contractor's implementing a governmental entity's decision that
was made pursuant to a "legislative, quasi-legislative, [etc.]
function," such as the adoption of a design or plan. In Brown,
the court seemed to emphasize the importance of whether there
existed "reasonably precise specifications," without
acknowledging that, for such specifications to afford immunity
to a governmental contractor, the contractor's alleged injury-
25
No. 2011AP1158
causing actions must have been due to its implementation of a
governmental entity's exercise of one of the functions for which
immunity is accorded under § 893.80(4). See Brown, 313 Wis. 2d
497, ¶11 (stating that "[t]he question is not what other safety
precautions might have been taken, but whether the safety
requirements provided by DOT were reasonably precise
specifications," without analysis of whether the allegedly
injurious conduct had been undertaken pursuant to a legislative
or quasi-legislative function of the governmental entity).
¶45 In sum, in addition to satisfying the Lyons test for
governmental contractor immunity, a contractor asserting
immunity must be able to demonstrate that the conduct for which
immunity is sought was the implementing of a governmental
entity's decision made during the exercise of the entity's
legislative, quasi-legislative, judicial or quasi-judicial
functions. To apply Lyons without analyzing the applicability
of immunity under Wis. Stat. § 893.80(4) to the particular act
for which liability is alleged could grant a governmental
contractor broader immunity than the governmental entity itself
would be entitled to under the statute. Accordingly, in the
future, when a governmental contractor asserts that it is
entitled to immunity under § 893.80(4), we encourage litigants
and courts to adhere to the statutory standard to determine
whether the alleged immunity-supporting functions are
legislative, quasi-legislative, judicial or quasi-judicial.
¶46 Our conclusion regarding the intersection of the
agency principles embodied in the Lyons test and the type of
26
No. 2011AP1158
acts for which governmental immunity may be afforded under Wis.
Stat. § 893.80(4) is well-supported nationwide. For example,
other jurisdictions have concluded that while governmental
contractors will not be liable for injuries alleged to have
arisen from defects in a design the government chose, "it is
well settled that this rule of non-liability does not exempt a
contractor from liability where the injury arises from the
contractor's negligent performance of the work." Gaunt &
Haynes, Inc. v. Moritz Corp., 485 N.E.2d 1123, 1126 (Ill. App.
Ct. 1985); Rodriguez v. New Jersey Sports & Exposition Auth.,
472 A.2d 146, 149 (N.J. App. Div. 1983) ("A public contractor
may . . . be held liable when negligent in the execution of the
contract."). Furthermore, a legal encyclopedia notes that "the
courts are practically unanimous" in support of the proposition
that a governmental contractor is not entitled to governmental
immunity for injuries arising from negligent performance of the
contract work. A.E. Korpela, Annotation, Right of contractor
with federal, state, or local public body to latter's immunity
from tort liability, 9 A.L.R. 3d 382 §§ 2(a), 5 (1966); see also
64 Am. Jur. 2d, Public Works and Contracts § 109 (2013 update)
(discussing contractors' negligence in performing work; neglect
or failure to comply with contract). This understanding of the
doctrine of governmental contractor immunity has been echoed by
legal commentators. See, e.g., Richard Ausness, Surrogate
Immunity: The Government Contract Defense and Products
Liability, 47 Ohio St. L.J. 985, 995 (1986).
27
No. 2011AP1158
C. Application
¶47 With the above principles in mind, we turn to the
present case. Although the parties have framed their arguments
solely in terms of the Lyons test, we analyze Musson's claim for
immunity under both requirements of Wis. Stat. § 893.80(4).
This includes whether Musson is an agent under § 893.80(4), as
determined by the Lyons test, as well as whether the conduct
that is alleged to be a cause of injury is entitled to immunity
under § 893.80(4) as the implementation of a legislative, quasi-
legislative, etc. decision. We conclude first that, under the
Lyons tests, Musson has failed to demonstrate that it is an
agent entitled to governmental contractor immunity.
Furthermore, as guidance to future litigants, we examine why
Musson's allegations in support of summary judgment fail to
demonstrate that Musson was entitled to immunity as an agent
implementing a legislative, quasi-legislative, judicial or
quasi-judicial function of a governmental entity.
¶48 Under the Lyons test as applied to Wis. Stat.
§ 893.80(4), Musson was not an agent for which immunity was
available. The relevant contractual language (the Standard
Specifications) demonstrates that Musson was not subject to
"reasonably precise specifications" as is necessary to invoke
28
No. 2011AP1158
contractor immunity as an agent of a governmental entity.17 The
primary provision upon which the parties focus their arguments
and upon which we rely in concluding that the Lyons test is not
satisfied is the "means and methods" provision in the Standard
Specifications.18 The conduct for which Musson was responsible
under the means and methods provision are, by definition,
distinguishable from conduct for which immunity may be available
for agents under § 893.80(4), as set forth in Lyons.
17
As our discussion below should make clear, our reference
to the Specifications as support for our conclusion that
immunity is not available should not be read to suggest that the
terms of a government contract may create immunity where none
would otherwise exist by virtue of the legislative, quasi-
legislative, judicial or quasi-judicial nature of the activities
at issue. Our reference to the Standard Specifications merely
demonstrates that the parties apparently contemplated that
Musson's performance of its construction responsibilities would
not entitle Musson to the immunity that may be afforded to
agents under Wis. Stat. § 893.80(4).
18
Other sections in the Standard Specifications also
support the contention that the parties contemplated that Musson
was not subject to reasonably precise specifications under Lyons
and could be held liable for any negligence in the performance
of the construction. For example:
- § 107.1(2), requiring the contractor to "[p]rovide
all necessary safeguards, safety devices, and
protective equipment. Take all other actions that
are reasonably necessary to protect the life and
health of employees on the project and the safety of
the public."
- § 107.11.1(3), requiring the contractor to "[a]ssume
liability for all damage to public or private
property resulting from contractor operations,
defective work or materials, or non-execution of the
contract."
29
No. 2011AP1158
¶49 The means and methods provision states, in relevant
part, that Musson "is solely responsible for the means, methods,
techniques, sequences, and procedures of construction."
(Emphasis added.) In this context, being "responsible" for the
"means, methods, [etc.]" involves both powers and duties. That
is, Musson was not only empowered to take actions involving how
the construction process was to proceed, Musson also had the
responsibility for the actions it took, including incurring
liability if its actions caused injury. See Black's Law
Dictionary 1427 (9th ed. 2009) (defining "responsibility" as
"liability"); see id. (noting that "responsible . . . simply
means liable to be made to account or pay") (quoting H.L.A.
Hart, "Changing Conceptions of Responsibility," in Punishment
and Responsibility 186, 196–97 (1968)).
¶50 Many of Musson's day-to-day actions at the Ohio Street
project site are chronicled in the daily logs of onsite activity
kept by one of the DOT's engineers, Ryan Schanhofer. These logs
note numerous instances of Musson taking actions without DOT or
City approval, pursuant to Musson's independent responsibility
under the means and methods provision. Throughout the course of
the project, there were multiple occasions on which Schanhofer
had to inform City officials that he could not stop Musson from
proceeding on a certain course because Musson's action was
within the "means and methods" provision. One of these actions
was the removal of the entire roadbed of Ohio Street, rather
than removing portions on a block-by-block basis. Other such
actions included whatever steps Musson would take to ensure
30
No. 2011AP1158
proper drainage, as demonstrated by Schanhofer's note that
Musson's cleaning silt screens in drainage areas was "up to the
contractor."19
¶51 As discussed above, the nature of Musson's actions,
taken pursuant to the means and methods provision, demonstrates
that Musson had substantial independent decision-making
authority in performing its tasks, such that Musson's
relationship with the DOT for the conduct that is alleged to
have resulted in harm cannot be characterized as that of a
servant. See Arsand, 83 Wis. 2d at 45–46 (defining servant as
one subject to the master's control or right of control). Such
independent discretion is also contrary to Lyons' "reasonably
precise specifications" requirement, in that a contractor may
not possess such control over the alleged injury-causing action
19
Moreover, the mere fact that DOT personnel were onsite
during Musson's performance of the Ohio Street sewer work does
not transform Musson's contractual performance into the
implementation of legislative, quasi-legislative, judicial or
quasi-judicial actions that are entitled to immunity.
Tellingly, § 105.2(4) of the Standard Specifications provides
that "[t]he department's review does not relieve the contractor
of the responsibility for obtaining satisfactory results."
Similarly, where the Standard Specifications are silent on
the safety measures or performance standards applicable in a
given scenario, a contractor may not rely on that silence as a
license to undertake whatever measures the contractor selects
without threat of liability. Governmental contractor immunity
must be based on the prior exercise of legislative, quasi-
legislative, judicial or quasi-judicial functions by a
governmental entity under Wis. Stat. § 893.80(4), which the
governmental contractor implements as a statutory agent.
Silence, without more, does not demonstrate the exercise of
necessary governmental decision-making.
31
No. 2011AP1158
and still be considered an agent for purposes of governmental
contractor immunity under Wis. Stat. § 893.80(4). Musson thus
fails to satisfy the Lyons test and is not an agent under
§ 893.80(4).20
¶52 Next, having concluded that Musson is not entitled to
immunity as an agent under the Lyons test, we also examine
Musson's claim for immunity in light of the injury alleged and
the plain language of Wis. Stat. § 893.80(4), which limits
immunity to "acts done in the exercise of legislative, quasi-
legislative, judicial or quasi-judicial functions." Beginning
with the injury that Showers has alleged, we note that Showers'
allegations are different in kind from the allegations
underlying the Lyons test for governmental contractor immunity.
The substance of Showers' claim is not that Musson was negligent
in its implementation of a decision made in the exercise of a
governmental entity's legislative, quasi-legislative, judicial
or quasi-judicial function, as was the case in Lyons. Rather,
Showers alleges that Musson negligently performed its
excavation, construction, and drainage responsibilities under
the contract. Specifically, Showers' complaint alleges that
20
Because Musson has failed to demonstrate that there were
reasonably precise specifications that controlled any alleged
injury-causing decision or conduct, we have no need to examine
the second and third requirements of the Lyons test (i.e.,
whether the contractor followed such reasonably precise
specifications and whether the contractor warned the
governmental entity of any dangers associated with the
specifications that were known by the contractor, but not by the
governmental entity).
32
No. 2011AP1158
Musson is liable for "improper drainage, . . . maintenance,
excavation, construction procedures, and failure to take
corrective measures."
¶53 These assertions are fundamentally different from the
assertion that a governmental entity negligently selected a
design that a contractor implemented for a government project.
Design selection is a type of governmental entity decision that
we have determined is within the legislative or quasi-
legislative function immunized under Wis. Stat. § 893.80(4).
See, e.g., Chart, 57 Wis. 2d at 100–01 (recognizing legislative
or quasi-legislative nature of design decision); Lange v. Town
of Norway, 77 Wis. 2d 313, 318–20, 253 N.W.2d 240 (1977) (same).
¶54 In contrast, Showers alleges that Musson's performance
of its construction duties, such as maintaining drainage at the
worksite, did not meet the standard of due care for construction
work. Cf. Brooks v. Hayes, 133 Wis. 2d 228, 234–35, 395 N.W.2d
167 (1986) (recognizing that a construction contract implicitly
imposes a duty on contractors to perform work according to the
standard of due care). An allegation such as Showers makes does
not implicate the types of acts for which Wis. Stat. § 893.80(4)
affords immunity to a governmental entity. Therefore, they
cannot form the basis for immunity for a contractor. For a
governmental entity to be accorded immunity under § 893.80(4),
the entity must be able to show that the allegedly injurious act
was done in the exercise of a legislative, quasi-legislative,
judicial or quasi-judicial function. Musson has not shown that
the acts that Showers asserts were a cause of injury——Musson's
33
No. 2011AP1158
alleged improper drainage, maintenance, excavation, and
construction at the Ohio Street project——were the implementation
of a governmental entity's exercise of legislative, quasi-
legislative, judicial or quasi-judicial functions. Therefore,
immunity under § 893.80(4) is not available for those acts.
¶55 In future cases, governmental contractors seeking
immunity should include in their pleadings sufficient facts to
demonstrate that the governmental entity from which the
contractor would derive immunity was engaged in one of the
functions for which immunity is available under Wis. Stat.
§ 893.80(4), and that the contractor was an agent with respect
to injury-causing conduct.
¶56 Accordingly, Showers' claims, that Musson negligently
performed the work required by the government contract, should
be analyzed under standard negligence principles. See Coffey,
74 Wis. 2d at 531, 535–40 (setting forth elements of standard
negligence analysis and applying those elements after
determining that municipal officer was not entitled to
immunity). Although ultimately Musson may be found not to have
been negligent in its performance of its construction
activities, summary judgment was inappropriate based on the
substance of Showers' complaint.
III. CONCLUSION
¶57 We conclude that where a third party's claim against a
governmental contractor is based on the allegation that the
contractor negligently performed its work under a contract with
a governmental entity, the governmental contractor must prove
34
No. 2011AP1158
both that the contractor meets the definition of "agent" under
Wis. Stat. § 893.80(4), as set forth in Lyons, and that the
contractor's act is one for which immunity is available under
§ 893.80(4). Specifically, we conclude that for a contractor to
come within § 893.80(4)'s shield of immunity, the contractor
must prove it was acting as the governmental entity's agent in
accordance with reasonably precise specifications, as set forth
in Lyons. In this case, Musson has not shown that it was acting
as a governmental entity's agent for purposes of the alleged
injury-causing conduct because Musson was not acting pursuant to
"reasonably precise specifications."
¶58 Moreover, pursuant to the plain language of Wis. Stat.
§ 893.80(4), we also conclude that a governmental contractor
seeking to assert the defense of immunity should clearly allege
in the pleadings why the injury-causing conduct comes within a
legislative, quasi-legislative, judicial or quasi-judicial
function as set out in § 893.80(4). In the context of this
case, a governmental contractor would be required to assert that
it was implementing a decision of a governmental entity that was
made within the scope of the governmental entity's legislative,
quasi-legislative, judicial or quasi-judicial functions.
Adherence to these statutory requirements for immunity under
§ 893.80(4) will avoid extending blanket immunity for claims of
negligently performed work against governmental contractors when
the sole basis for immunity is that the work was performed
pursuant to a contract with a governmental entity. Allowing
governmental contractors to claim immunity in such instances
35
No. 2011AP1158
would vastly expand the doctrine of governmental immunity.
Applying this rationale to this case, we conclude that Musson
would not be entitled to immunity for Showers' claims that
Musson negligently performed its work under a government
contract, because Musson has not made a showing that Musson was
an agent implementing a governmental entity's decision made
within the scope of the entity's legislative, quasi-legislative,
judicial or quasi-judicial functions.
¶59 Therefore, based on Musson failing to meet the
standard for a Wis. Stat. § 893.80(4) agent, Musson is not
entitled to immunity under § 893.80(4). Additionally, we
conclude that the facts set out in support of summary judgment
would not support a claim of governmental contractor immunity
because Musson has failed to assert that the acts for which it
claims immunity were "acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions," as
required under § 893.80(4). Accordingly, Showers' claims should
be analyzed no differently than negligence claims against other
contractors.
¶60 Musson may therefore be liable if Showers is able to
show that in performing its work under the government contract,
Musson had a duty of due care to Showers, that Musson breached
that duty, and that such breach was a cause of Showers' damages.
Accordingly, we reverse and remand to the circuit court for
further proceedings on Showers' claims against Musson consistent
with this opinion. Additionally, because Musson's and the
City's cross-claims were not fully litigated in the circuit
36
No. 2011AP1158
court and were not addressed by the court of appeals, those
claims should be addressed on remand.
By the Court.—The decision of the court of appeals is
reversed and the cause remanded to the circuit court.
37
No. 2011AP1158.npc
¶61 N. PATRICK CROOKS, J. (concurring). This case is
about whether Musson Bros., Inc. (Musson) is an agent of a
governmental entity under the test established in the Lyons
case. See Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446,
558 N.W.2d 658 (Ct. App. 1996). I agree with the majority's
conclusion that under the Lyons test, Musson is not an agent
because Musson has not shown that it was acting pursuant to
"reasonably precise specifications" as the first prong of the
Lyons test requires. Musson is therefore not entitled to
immunity. The grant of summary judgment should therefore be
reversed. Although I do not join the majority opinion, I
respectfully concur for reasons stated herein.
I.
¶62 In past cases, we have not focused on whether the
governmental entity's decisions were legislative, quasi-
legislative, judicial, or quasi-judicial as a first step in
answering the Lyons question. Even if the court chooses to
adopt that framework for the Lyons test, I am concerned that the
majority may have taken an approach to the Lyons immunity
analysis itself that could be read as changing the law on
governmental contractor immunity. If that is the majority's
intent, the best way to do so is to acknowledge that, and to
offer more guidance to litigants, lawyers, and courts.
¶63 While the majority opinion (at ¶2 n.5) says that there
is no intention to adopt a fundamental change in our immunity
jurisprudence, I am also concerned that, due to some notable
similarities, the majority opinion could be read as endorsing
1
No. 2011AP1158.npc
the type of fundamental change that Justice Gableman advocates
in a concurrence in an unrelated governmental immunity case.1
While I share Justice Gableman's dismay with some aspects of
this court's immunity jurisprudence, I favor an incremental
approach to correcting the problems. A good place to start
would be to recognize that our prior cases have construed the
ministerial duty exception to immunity too narrowly.2
¶64 The majority's approach provides little guidance as to
how the showing it requires could be met. The majority
concludes that "[T]he facts set out in support of summary
judgment would not support a claim of governmental contractor
immunity because Musson has failed to assert that the acts for
which it claims immunity were 'acts done in the exercise of
1
See Bostco, LLC v. Milwaukee Metro. Sewerage Dist., 2013
WI 78, ¶103, ___ Wis. 2d ___, ___ N.W.2d ___ (Gableman, J.,
concurring):
I would . . . do away with the ministerial duty and
known danger exceptions and restore our immunity
jurisprudence to conform with § 893.80(4) and Holytz.
That is, governmental entities, officials, and
employees should be entitled to immunity only for
"acts done in the exercise of legislative, quasi-
legislative, judicial, or quasi-judicial functions."
Wis. Stat. § 893.80(4); see also [Holytz v. City of
Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962)].
2
A brief definition of a "ministerial duty" is something
that is "absolute, certain and imperative, involving merely the
execution of a set task, and when the law which imposes it
prescribes and defines the time, mode and occasion for its
performance with such certainty that nothing remains for
judgment or discretion." This definition is cited in Lister v.
Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976),
which takes language from Meyer v. Carman, 271 Wis. 329, 332, 73
N.W.2d 514 (1955) (quoting 18 Eugene McQuillin, Municipal
Corporations § 53.33, at 225 (3d ed.)).
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legislative, quasi-legislative, judicial or quasi-judicial
functions.'" Majority op., ¶4.
¶65 In cases involving immunity, the analysis has usually
focused on whether the alleged negligent acts were discretionary
or non-discretionary, and immunity determinations often turned
on such analysis. Here, the majority holds that Musson must
make an initial showing before application of the three prongs
of the Lyons test for governmental contractors claiming
immunity. Specifically, the majority faults Musson for failing
to "assert that the acts for which it claims immunity were 'acts
done in the exercise of legislative, quasi-legislative, judicial
or quasi-judicial functions' . . . ." See majority op., ¶59.
Litigants may be unable to discern from this opinion what sort
of facts they must allege in order to establish that immunity
applies. When this court crafts a somewhat different analytical
framework, the best practice is to clearly lay out the reasons
for the change, and articulate what litigants must show to
satisfy the standard.
¶66 There are striking similarities between the language
of the majority and the language of Justice Gableman's Bostco
concurrence. Both opinions read the statute as requiring
parties who would claim immunity to show that the alleged
negligent act was related to the exercise of "legislative,
quasi-legislative, judicial, or quasi-judicial functions." In
Justice Gableman's Bostco concurrence, he advocates "restor[ing]
Holytz by placing the burden on the government to show that it
is entitled to immunity, as opposed to the status quo in
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Wisconsin, where it is now the plaintiff's responsibility to
prove that immunity was pierced." Bostco, LLC v. Milwaukee
Metro. Sewerage Dist., 2013 WI 78, ¶113, ___ Wis. 2d ___, ___
N.W.2d ___ (Gableman, J., concurring). The Bostco concurrence
endorses a test under which "[t]he governmental entity seeking
to establish immunity bears the burden of proving" certain
facts. Id. Similarly, under the majority's holding in this
case, a governmental contractor who seeks to invoke statutory
immunity bears at least the initial burden of establishing that
the government entity's decisions were legislative, quasi-
legislative, judicial, or quasi-judicial. Majority op., ¶2.
Compare Bostco, ___ Wis. 2d ____, ¶103 (Gableman, J.,
concurring) ("governmental entities, officials, and employees
should be entitled to immunity only for 'acts done in the
exercise of legislative, quasi-legislative, judicial, or quasi-
judicial functions'"), with majority op., ¶27 n.13 ("Musson does
not specify whether the immunity it seeks is legislative, quasi-
legislative, judicial or quasi-judicial in nature.").
¶67 Further, in this case, there was extensive briefing on
the potential application of the ministerial duty exception to
immunity, and yet the majority does not address the arguments or
acknowledge its potential application. This might be viewed by
some as consistent with Justice Gableman's suggestion that in
immunity cases analysis of ministerial duty should be "do[ne]
away with." Bostco, ___ Wis. 2d ___, ¶103 (Gableman, J.,
concurring).
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¶68 An incremental approach that would be more consistent
with our jurisprudence would be one that addresses the problem
of this court's overly narrow interpretation of ministerial
duty. Our ministerial duty analysis at times turns into a
search to find any discretion that could have been exercised,
and then declaring immunity is required. Ruling out liability
wherever any discretion is exercised essentially creates
immunity for almost all actions. As an influential treatise
noted:
Stating the reasons for the discretionary-ministerial
distinction is much easier than stating the rule....
[T]he difference between "discretionary" and
"ministerial" is artificial. An act is said to be
discretionary when the officer must exercise some
judgment in determining whether and how to perform an
act. The problem is that "[i]t would be difficult to
conceive of any official act, no matter how directly
ministerial, that did not admit of some discretion in
the manner of its performance, even if it involved
only the driving of a nail."
McQuillin, Municipal Corporations § 53.04.10 (3d ed.) (quoted in
Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶136,
235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting)).
¶69 The fact that even a "directly ministerial" act
involves "some discretion in the manner of its performance" can
make it easy for courts to decline to find a ministerial duty
where one in fact exists. Like Justice Gableman, I believe our
cases have sometimes failed to recognize this and have employed
too restrictive an interpretation of ministerial duty. (See
Bostco, ¶109 (Gableman, J., concurring). While I do not favor a
fundamental shift in our jurisprudence, we should be mindful of
the fact that declining to determine that a ministerial duty
5
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exists where any exercise of discretion can be detected leads to
immunizing too much government conduct. We should apply the
test concerning ministerial duty in a way that serves the
important public policy objectives that underlie the reasons for
permitting liability where a ministerial duty exists. We must
do a better job of striking the balance between too much
immunity, which creates a heavy burden for those who suffer harm
from negligent government acts, and too much liability, which
creates a heavy burden for taxpayers.
II.
¶70 This case concerns only one small subset of potential
government agents——private governmental contractors.
¶71 Yet, the majority has serially cited public employee
and other public official immunity cases. See, e.g., majority
op., ¶¶22 n.12, 24, 26. Those cases are not relevant to the
Lyons analysis and are advanced despite the presence of a line
of private governmental contractor immunity cases that apply the
Lyons test and private governmental contractor immunity
principles in their proper contexts.3 See, e.g., Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d
3An additional concern is the majority's apparent criticism
of two private governmental contractor immunity cases. Majority
op., ¶¶40-44. In a few cursory sentences, it calls into
question the analyses of the court of appeals in Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d
222 and Estate of Brown v. Mathy Const. Co., 2008 WI App 114,
313 Wis. 2d 497, 756 N.W.2d 417. Majority op., ¶¶41, 44. Is
the majority sub silencio overruling Bronfeld and Estate of
Brown?
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222; Estate of Brown v. Mathy Const. Co., 2008 WI App 114, 313
Wis. 2d 497, 756 N.W.2d 417.4
¶72 Here, the Lyons test determines which private
governmental contractors are considered "agents" under Wis.
Stat. § 893.80(4) such that they may be shielded by immunity.5
4
In its analysis, the majority characterizes as
precedential the court of appeals decision in Jankee v. Clark
Cnty., 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), rev'd by
Jankee v. Clark Cnty., 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d
297. See majority op., ¶33. This court has not decided whether
a court of appeals decision that has been reviewed by this court
has precedential value.
In my view, when this court reviews a decision of the court
of appeals, the court of appeals opinion no longer has
precedential value. As this court stated in Blum v. 1st Auto &
Cas. Ins. Co., 2010 WI 78, ¶54, 326 Wis. 2d 729, 786 N.W.2d 78,
"[c]ircuit courts should not be forced to engage in a legal
analysis as to precisely which holdings in court of appeals
decisions are still good law, or whether, based on some
particular language in the supreme court decision, the general
rule should not be applied." Such a rule would prevent that
kind of confusion.
5
This court has never addressed the propriety of the Lyons
test, which appears inconsistent with the analysis of the court
of appeals in Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 530
N.W.2d 399 (Ct. App. 1995). The Kettner court determined that
Wis. Stat. § 893.80(3), which sets forth a damage cap, applies
only to "agents" who are subject to a master-servant
relationship. 191 Wis. 2d at 734. The requirement of a master-
servant relationship might not be established solely by
establishing the three elements of the Lyons test, which
determines if a private governmental contractor is an "agent"
under Wis. Stat. § 893.80(4). Compare id. at 737 (discussing
indicia of a right to control required in a master-servant
relationship) with Lyons, 207 Wis. 2d at 457-58 (discussing the
requirement of reasonably precise specifications).
Thus, Wis. Stat. § 893.80(3) and Wis. Stat. § 893.80(4)
appear to set forth different standards for the same statutory
term, "agent." However, because no one in this case asks this
court to revisit Lyons or Kettner or to resolve that apparent
discrepancy, I employ the Lyons test assuming its propriety.
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In order to be deemed a Wis. Stat. § 893.80(4) "agent," Musson
must show that:
(1) the governmental authority approved reasonably
precise specifications;
(2) the contractor's actions conformed to those
specifications; and
(3) the contractor warned the supervising governmental
authority about the possible dangers associated with
those specifications that were known to the contractor
but not to the governmental officials.
207 Wis. 2d at 457-58.
¶73 In this case, the parties dispute whether the first
requirement of the Lyons test is met. Thus, the relevant
inquiry is whether a governmental authority approved reasonably
precise specifications addressing Musson's negligent conduct.
¶74 To determine whether a governmental authority approved
reasonably precise specifications, I look to Musson's contract,
which sets forth its obligations regarding the road construction
project at issue. Musson's ability to independently choose the
methods of construction on the project is governed by a "means
and methods" clause in the contract, which provides:
[The contractor] is solely responsible for the means,
methods, techniques, sequences, or procedures of
construction described in and expressly required by
the contract.
¶75 Under the "means and methods" clause, Musson was left
with near-absolute freedom to choose the means and methods by
which it constructed the street——irrespective of the means and
methods actually preferred by the governmental authorities
overseeing the project. The Department of Transportation
supported that interpretation when it concluded that the "means
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and methods" clause meant that Musson could choose its own
method of construction relating to the storm sewers at issue.
See majority op., ¶¶11-12.
¶76 Ultimately, Musson's substantial freedom under the
"means and methods" clause dooms its argument that the
government approved reasonably precise specifications addressing
its alleged negligent conduct. To establish that a
specification is reasonably precise, Musson must have had its
discretion significantly curtailed in some way. Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, ¶¶29-30, 330 Wis. 2d 123,
792 N.W.2d 222 (requiring a showing by a governmental contractor
that the specifications "significantly curtailed" the
contractor's discretion in order to establish that
specifications are reasonably precise under Lyons). The "means
and methods" clause fails to clear that hurdle under these
facts.
¶77 Because there was no government-approved reasonably
precise specification that addresses Musson's negligent conduct,
I conclude that Musson failed to establish that it is an "agent"
under Wis. Stat. § 893.80(4) pursuant to Lyons. Therefore,
Musson is not shielded by the grant of immunity set forth in
Wis. Stat. § 893.80(4). Accordingly, I respectfully concur.
¶78 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.
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1