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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER
21, 1995 |
NOTICE |
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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. 95-1090-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
TODD
MC GRECK and
BETH
MC GRECK,
Plaintiffs-Appellants,
v.
COUNTY
OF MARATHON, a
municipal
corporation,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Marathon County: ANN WALSH BRADLEY, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Todd McGreck and his juvenile
daughter, Beth, appeal a summary judgment that dismissed their lawsuit against
Marathon County. Beth and eleven other
juvenile girls broke out of the County's juvenile shelter home, with
temperatures hovering around -40 degrees Fahrenheit. The McGrecks' lawsuit sought damages for the injuries Beth
incurred from the cold. Their complaint
alleged that the facility employees negligently (1) controlled and supervised
Beth, (2) deactivated an alarm on the facility door, (3) failed to detect
the breakout, and (4) failed to notify police of the breakout. The trial court ruled that the employees had
no ministerial duties regarding the breakout and that the County therefore
enjoyed immunity from the McGrecks' lawsuit.
The trial court correctly granted summary judgment if the County showed
the nonexistence of material factual disputes and a right to judgment as a
matter of law. Powalka v. State
Mut. Life Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854
(1972). On appeal, the McGrecks argue
that the trial court misanalyzed the ministerial duty issue. We reject their arguments and affirm the
summary judgment.[1]
In
general, public officers enjoy immunity from personal liability for injuries
that result from acts performed within the scope of their employment. C.L. v. Olson, 143 Wis.2d 701,
710, 422 N.W.2d 614, 617 (1988). Public
officers have no immunity, however, for their negligent performance of
ministerial duties. Id. Ministerial duties arise under either of two
conditions: (1) the law imposes, prescribes, and defines the time, mode, and
occasion for the duty's performance with such certainty that nothing remains
for the exercise of the officer's judgment and discretion; or (2) a "known
present danger" of such force exists that the danger itself defines the
time, mode, and occasion for the duty's performance with such certainty that
nothing remains for the exercise of the officer's judgment and discretion. Id. at 717, 422 N.W.2d at
620. If public officers' acts meet
neither the "comprehensively defined duty" exception nor "known
present danger" exception, then the officials have no ministerial duties
and their employer has no vicarious liability for their actions.
Here,
the County employees, and thus the County, had immunity. First, no law comprehensively defined the
employees' duties concerning the specific acts and omissions the McGrecks
allege constitute negligence. Neither
the state nor the County has specifically mandated by statute, rule or
ordinance how County employees must use door alarms, supervise detainees, take
inventory of detainees, or notify law enforcement of breakouts. The facility's own AWOL rules create no
ministerial duties; such rules do not have the force of law, and at any rate,
they do not specifically prescribe employees' duties in the event of a multiple
detainee breakout. Second, the County
employees encountered no "known present danger" that would have
compelled them to take further precautions against the breakout. The event was sudden and unexpected; County
employees had no prior knowledge and no reason to anticipate it, especially in
light of the -40 degrees temperature.
Further, we note that at least one of the McGrecks' negligence claims
was irrelevant; County employees saw the breakout, rendering the alarm
deactivation immaterial. In sum, County
employees acted within their discretion, and no ministerial duties arose from
the facts shown on summary judgment.
This
case is unlike Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672
(1977), which the McGrecks cite. In Cords,
three coeds sustained injuries when they fell into a deep gorge at Parfrey's
Glen. The Cords court
held that the hazardous conditions at Parfrey's Glen posed a "known
present danger" and that the manager of Parfrey's Glen should have posted
warning signs or closed hazardous trails.
Id. at 541-42, 259 N.W.2d at 679-80. Parfrey's Glen posed uniquely dangerous
terrain to unwary visitors, fully appreciated only by the custodial state
officials. Here, the danger was not
comparable. The knowledge of ambient
outside temperatures was available to anyone.
Further, the unknown threat in Cords presented
irreversible consequences; someone who fell into the gorge would sustain
injuries precipitously. Here, however,
the detainees retained control over their health; they could always return to
the facility and avoid the cold temperatures.
The fact that injuries ultimately occurred does not mean that County
employees failed to heed a "known present danger." Finally, the McGrecks have not challenged
the trial court's refusal to pierce the employees' immunity under cases
involving municipal medical personnel.
We thus will not review them. See,
e.g., Scarpaci v. Milwaukee County, 96 Wis.2d 663, 686-87,
292 N.W.2d 816, 827 (1980). In sum, the
trial court correctly granted the County summary judgment.
By
the Court.—Judgment
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.