PUBLISHED OPINION
Case No.: 95-0495
Complete Title
of Case:
CHRISTOPHER M. BAUDER,
Plaintiff-Appellant,
v.
DELAVAN-DARIEN SCHOOL
DISTRICT and CINCINNATI
INSURANCE COMPANY,
Defendants-Respondents.
Submitted on Briefs: October 31, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 27, 1996
Opinion Filed: November
27, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If
"Special", JUDGE: John R. Race
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of plaintiff-appellant, the cause was
submitted on the briefs of Steven R. Wassel of Wassel, Kilkenny,
Danz, Mistrioty & Lettenberger of Delavan.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of Thomas H. Koch and Joseph S. Goode of Kravit,
Gass & Weber, S.C. of Milwaukee.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0495
STATE OF WISCONSIN IN
COURT OF APPEALS
CHRISTOPHER
M. BAUDER,
Plaintiff-Appellant,
v.
DELAVAN-DARIEN
SCHOOL
DISTRICT
and CINCINNATI
INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Walworth County: JOHN R. RACE, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
BROWN,
J. Christopher M. Bauder
was injured when a deflated soccer ball struck him in the eye during gym
class. The class had been moved inside
to a gym because of inclement weather.
Bauder sued the Delavan-Darien School District, but the suit was
dismissed by summary judgment on grounds of governmental immunity. We affirm because none of the exceptions to
governmental immunity apply here. We
also affirm the dismissal of a related nuisance claim.
Wisconsin
protects political units of state government from lawsuits sounding in
negligence where the alleged act does not arise from a ministerial duty imposed
in law. Section 893.80(4), Stats., provides:
No
suit may be brought against any ... political corporation, governmental
subdivision or any agency thereof ... or against its officers, officials,
agents or employes for acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions.
Quasi-judicial and quasi-legislative acts are synonymous
with discretionary acts and governmental officers are entitled to immunity for
such acts. See Scarpaci v.
Milwaukee County, 96 Wis.2d 663, 682-83, 292 N.W.2d 816, 825-26
(1980). Ministerial acts, on the other
hand, are not generally subject to immunity.
C.L. v. Olson, 143 Wis.2d 701, 710, 422 N.W.2d 614, 617
(1988). The first issue is whether the
physical education teacher's decision to move the class indoors and play soccer
with a deflated ball in a gym was a ministerial or discretionary act.
Bauder
argues that because the laws of this state require a school district to provide
physical education classes to students, the actions of the physical education
teacher in carrying out this duty are ministerial. He observes that in carrying out its duty to provide physical
education, the legislature has mandated that each school board “[p]rovide safe
and healthful facilities.” Section
121.02(1)(i), Stats. Bauder claims that this ministerial duty was
violated when the teacher created an unsafe and unhealthy situation by placing
too many people without eye protection in too small of an area to play soccer
with a deflated ball.
We
disagree that the teacher's decision was a breach of a ministerial duty. A duty is ministerial “only when it is
absolute, certain and imperative, involving merely the performance of a
specific task when the law imposes, prescribes and defines the time, mode and
occasion for its performance with such certainty that nothing remains for
judgment or discretion.” Sheridan
v. City of Janesville, 164 Wis.2d 420, 425, 474 N.W.2d 799, 801 (Ct.
App. 1991) (quoted source omitted).
While the obligation to provide physical education classes is mandated,
and thus ministerial, the manner in which those classes are conducted is not
specified either by state statute or by the school district under the facts of
this case. The teacher made a decision
to move the class indoors. He also
decided to deflate the ball, hoping to reduce the chance of injury. We hold that the teacher's judgmental decision
was a discretionary and not a ministerial act.
There
is an exception to the governmental immunity law known as the “known present
danger exception.” Bauder claims that
it applies here. He contends that the
teacher's activities gave rise to a known present danger so certain that
nothing was left for the teacher's discretion.
He cites the teacher's own explanation for why he deflated the ball and
why he instructed the students not to hit the ball in the air—to keep the game
less dangerous—as proof that the teacher knew the activity to be inherently
dangerous to the students. Bauder cites
an affidavit provided by his own expert that deflating a ball will actually
cause more susceptibility to eye injuries, not less, and that playing in a gym
that is not designed for soccer is also dangerous in and of itself. Bauder concludes that the “known present
danger exception” is appropriate here.
The
“known present danger exception” gets its genesis from Cords v. Anderson,
80 Wis.2d 525, 259 N.W.2d 672 (1977).
There, a park manager had been at the park for a number of years. He knew the park well; he knew the park was
open at night; and he knew there was a trail with a sheer drop off which never
had a rail and never had a warning sign.
The park manager thus was well aware that the trail would be hazardous
at night and agreed that he would not want to be on the trail at night. Yet, despite knowing of this dangerous
condition, nothing was done to alleviate the danger. The Cords court had a very definite opinion about
the park manager's nondecision. It
wrote that there can be no “policy” to leave “obviously” dangerous conditions
alone. See id. at
538, 259 N.W.2d at 678. It wrote that
“the duty to either place warning signs or advise superiors of the conditions
is, on the facts here, a duty so clear and so absolute that it falls
within the definition of a ministerial duty.”
Id. at 542, 259 N.W.2d at 680 (emphasis added).
What
differentiates the exception carved out in Cords from the facts
in this case is that deflating the ball is not an “obvious” danger to
students. While Bauder's expert
certainly has an opinion that a deflated ball is dangerous, it is not an
opinion that is so clear and so absolute that no reasonable person would think
to use a deflated ball. And while a gym
is not usually used to play soccer, it is not so clear and absolute, as Bauder
claims it to be, that school gyms should be used only for basketball and
nothing else. This is not the same kind
of case as Cords. The
“known present danger exception” does not apply.
Bauder
contends that one other exception to the immunity doctrine is present. He notes cases holding that even though a
governmental officer may have made a discretionary decision, if that discretionary
decision is not made in the context of governmental activity, the officer will
not be immune from suit.
This
exception comes from Scarpaci.
There, a medical examiner who was employed by Milwaukee county made a
discretionary choice to conduct an autopsy of a deceased child, and the parents
claimed that he made that decision without authorization from them as required
by law. Because he was a county
employee at the time of his decision, the doctor claimed that his discretionary
choice to conduct the autopsy was protected under governmental immunity. See Scarpaci, 96 Wis.2d
at 680, 292 N.W.2d at 824.
But
the supreme court disagreed. It held
that while the decision to conduct an autopsy is a governmentally-related
discretionary decision, the actual performance of the autopsy is a medical
procedure, not a governmental choice.
Thus, the court held that a doctor employed by an arm of government may
not use governmental immunity as a tool to prevent a claim of negligence
resulting from the exercise of medical discretion. Id. at 686-87, 292 N.W.2d at 827.
Bauder
argues that this exception should apply here because even though the teacher
may have had governmental discretion concerning how to provide physical
education to the students, his actual decision to have his students play soccer
indoors with a deflated ball was not an exercise of governmentally-related
choice. We could discuss this issue at
length, but all we need to say here is that this court has limited the Scarpaci
exception to cases involving medical discretion. Stann v. Waukesha County, 161 Wis.2d 808, 818, 818
n.3, 468 N.W.2d 775, 779 (Ct. App. 1991).
While Bauder believes this court to be wrong and asks us to overrule our
case law, this is not the appropriate forum.
He may request the supreme court to overrule us.
Bauder
finally argues that he has a nuisance claim.
He correctly asserts that the immunity statute does not apply to
nuisance claims. He incorrectly asserts
that he has such a claim. His claim is
grounded on the theory that the gymnasium was designed for a ten-person
basketball game. Since the gym was not
being used for its intended purpose, Bauder contends that the gym was a
nuisance at the time of the injury.
A
nuisance is a “wrong which may arise from the unreasonable or unlawful use by a
person of his own property. [It is] an
unreasonable activity or use of property that interferes substantially with the
comfortable enjoyment of life, health, safety of another or others.” State v. Quality Egg Farm, Inc.,
104 Wis.2d 506, 517, 311 N.W.2d 650, 656 (1981) (quoted source omitted).
Bauder
asserts that a question of fact exists as to whether the use of the gym for
indoor soccer was unreasonable. But we
do not agree that a question of fact exists.
The question is not whether a reasonable person in a plaintiff's or a
defendant's position would regard the use of property to be unreasonable, but
whether reasonable persons generally, looking at the whole situation
impartially and objectively, would consider it unreasonable; and regard must be
had, not just for the interests of the person harmed, but also for the actor
and for the interests of the community as a whole. Soukoup v. Republic Steel Corp., 66 N.E.2d 334, 341
(Ohio Ct. App. 1946); see also Abdella v. Smith, 34 Wis.2d
393, 398-99, 149 N.W.2d 537, 539-40 (1967).
Looking
at the question in this light, the trial court gave the succinct answer. The court wrote that “[the facility] is a
gym and physical education classes were being conducted in it. This is hardly a nuisance.” We could not agree more. It is not unreasonable for the school
district and indeed for the community to view a gym as a multipurpose facility
for varying sports and aerobic activities.
Reasonable persons generally would not seriously debate whether what
happened in this case is a “nuisance.”
As
well, while Bauder's expert opined that the gym was not intended for soccer,
the district points out that the expert had no personal knowledge of this. We agree that this is another reason why the
nuisance claim fails. We affirm the
dismissal of the negligence and nuisance claims.
By
the Court.—Judgment affirmed.