The governmental immunity statute grants immunity to governments and their officers from certain lawsuits related to intentional wrongful and discretionary acts. Governmental immunity laws trace their origins back to British common law and the idea that the King could do no wrong. Section 893.80 of the Wisconsin Statutes sets forth the general principles of governmental immunity in Wisconsin, including notice requirements, immunity for intentional and discretionary acts, and limits on damages. This article briefly describes governmental immunity and discusses a recent Wisconsin Supreme Court case that applies one of the exceptions to governmental immunity.
Wisconsin courts have described the purpose of the governmental immunity statute in the following terms: “the purpose of immunity provisions is to ensure that courts are not called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political, or economic decisions.”[1] More simply put, governmental immunity is embodied in the doctrine of separation of powers which divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.
There are four narrow exceptions to governmental immunity that have been established in Wisconsin case law. These exceptions allow units of government, or their officers or employees, to be held liable for an action or inaction undertaken in the scope of employment. The exceptions are intended to balance “the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.”
One these exemptions is referred to as the “known danger” exception. It applies in situations in which dangerous circumstances give rise to a ministerial duty to act. Meaning there is no governmental immunity for negligently responding to known dangers that create absolute, certain, and imperative duties.
In January 2019, the Wisconsin Supreme Court reviewed a tragic case where a young girl drowned at a summer camp while under the supervision of the City of New Berlin. The young girl’s parents filed the lawsuit claiming that New Berlin’s camp staff were negligent because the girl did not receive a swim test and was allowed to enter the pool anyway. Specifically, the girl’s parents alerted camp staff to the fact that the girl could not swim, and the camp staff told them that all campers would be provided with a swim test and limited to appropriate areas of the aquatic area accordingly. The camp staff did not provide a swim test and allowed the girl to enter the pool rather than restricting the girl to the splash pad area. New Berlin argued that governmental immunity barred the lawsuit. The Wisconsin Supreme Court determined that New Berlin was not entitled to immunity because the “known danger” exception applied. Writing for the Court, Justice Shirley Abrahamson explained that “the danger to which [the young girl] was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident.”
Despite their best efforts to serve and protect the public, at times, some governmental entities have been proven to be negligent in their duties. If you believe you have a claim against a governmental entity, you must act quickly. Wisconsin requires that the governmental entity being sued be provided with notice of the claim or injury within 120 days after the happening of the event giving rise to the claim.[2] The purpose of this notice is to afford governmental authorities an opportunity to investigate a claim promptly.[3] If you are considering making a claim against a governmental entity or one of its officers, you should contact an attorney right away.
[1] Kara B. v. Dane Cnty., 198 Wis. 2d 24, 55 , 542 N.W.2d 777 (Ct. App. 1995) , aff’d, 205 Wis. 2d 140 , 555 N.W.2d 630 (1996) (quoting Gordon v. Milwaukee Cnty., 125 Wis. 2d 62, 66 , 370 N.W.2d 803 (Ct. App. 1985)
[2] Wis. Stat. § 893.80(1d)(a).
[3] Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 327 N.W.2d 206 (Ct. App. 1982).