Dr. Randall Melchert v. Pro Electric Contractors

2017 WI 30

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2882
COMPLETE TITLE: Dr. Randall Melchert, Happy Hobby, Inc. and The
Warren V. Jones and Joyce M. Jones Revocable
Living Trust,
Plaintiffs-Appellants-Petitioners,
v.
Pro Electric Contractors and Secura Insurance, A
Mutual Company,
Defendants-Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 363 Wis. 2d 654, 862 N.W.2d 902
(Ct. App. 2016 – Unpublished)

OPINION FILED: April 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 9, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: James R. Kieffer

JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed).
DISSENTED: BRADLEY, R. G., J. joined by KELLY, J. dissents
(opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellants-petitioners, there was a brief
by Rudolph J. Kuss, and Stevens & Kuss, S.C., Brookfield, and
oral argument by Rudolph J. Kuss.

For the defendants-respondents, there was a brief by Amy M.
Freiman, Rick E. Hills and Hills Legal Group, LTD, Waukesha, and
oral argument by Amy M. Freiman.
 2017 WI 30
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2882
(L.C. No. 2013CV535)

STATE OF WISCONSIN : IN SUPREME COURT

Dr. Randall Melchert, Happy Hobby, Inc. and The
Warren V. Jones and Joyce M. Jones Revocable
Living Trust,

Plaintiffs-Appellants-Petitioners,
FILED
v. APR 7, 2017

Pro Electric Contractors and Secura Insurance, Diane M. Fremgen
Clerk of Supreme Court
A Mutual Company,

Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 MICHAEL J. GABLEMAN, J. We review an unpublished

decision of the court of appeals that affirmed the Waukesha

County circuit court's1 grant of summary judgment in favor of Pro

Electric Contractors ("Pro Electric"), after Pro Electric was

sued for negligence in connection with its work as a contractor

on a government construction project. Melchert v. Pro Electric

Contractors, No. 2013AP2882, unpublished slip op. (Wis. Ct. App.

Mar. 11, 2015).
1
The Honorable James R. Kieffer presiding.
 No. 2013AP2882

¶2 Dr. Randall Melchert, Happy Hobby, Inc., and The

Warren V. Jones and Joyce M. Jones Revocable Living Trust

("Petitioners") brought suit after Pro Electric severed a sewer

lateral2 during an excavation, because the broken lateral caused

flooding damage to property that Petitioners owned and occupied.

Pro Electric moved for summary judgment, asserting immunity as a

governmental contractor pursuant to Wis. Stat. § 893.80(4).3

While Pro Electric admitted to severing the sewer lateral, it

argued that the damage occurred because of construction design

decisions made by the Wisconsin Department of Transportation

("DOT"), and that Pro Electric was merely implementing DOT's

decisions. Following a hearing, the circuit court granted the

motion and dismissed the case. The court of appeals affirmed.

2
A "sewer lateral" is an underground pipe that connects a
property to the sewer system. See Wis. Stat. § 182.0175(2m)(b)
(2011-12) (requiring local government units to "mark the
locations within the public right-of-way of all laterals
connected to the sewer or water facilities . . . ."). All
subsequent references to the Wisconsin Statutes are to the 2011-
12 version unless otherwise indicated.
3
Wis. Stat. § 893.80(4) provides:

No suit may be brought against any volunteer fire
company organized under ch. 213, political corporation,
governmental subdivision or any agency thereof for the
intentional torts of its officers, officials, agents or
employees nor may any suit be brought against such
corporation, subdivision or agency or volunteer fire
company or against its officers, officials, agents or
employees for acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions.

2
 No. 2013AP2882

¶3 This case requires us to address the extent to which

governmental immunity protects a private contractor implementing

a construction design chosen by a governmental entity. We hold

that Pro Electric is immune from liability for severing the

sewer lateral because it acted in accordance with reasonably

precise design specifications adopted by a governmental entity

in the exercise of its legislative, quasi-legislative, judicial,

or quasi-judicial functions.

¶4 This case also requires us to interpret and apply

certain provisions of the Digger's Hotline statute, codified at

Wis. Stat. § 182.0175. Petitioners allege that Pro Electric

caused their damages not only by severing the sewer lateral, but

also by backfilling the excavation without inspecting the sewer

lateral for damage and allowing repairs to be made, as required

by § 182.0175(2)(am)6.-6m.4 Pro Electric is not immune from

liability as to this second allegation, because DOT did not

provide Pro Electric with reasonably precise specifications for

inspecting sewer laterals for damage before backfilling pursuant
to § 182.0175(2)(am)6.-6m. Ultimately, however, we affirm the

4
Among other duties, Wis. Stat. § 182.0175(2)(am) requires
an excavator to "do all of the following":

6. Before backfilling, inspect all transmission
facilities exposed during excavation to ascertain if
the transmission facilities have been or may have been
struck, damaged, dislocated or disrupted.

6m. Refrain from backfilling an excavation until an
inspection is conducted and any necessary repairs have
been made by the owner of the transmission facility.

3
 No. 2013AP2882

circuit court's grant of summary judgment on the factual record

before us. We do so because the undisputed material facts do

not support a reasonable inference that Pro Electric failed to

comply with its duties under § 182.0175(2)(am).

¶5 We begin with a brief factual background and

description of the procedural history, and we next set forth the

applicable principles of governmental contractor immunity. We

apply these principles respectively to the two aspects of Pro

Electric's conduct that allegedly caused Petitioners' damages:

(1) Pro Electric's conduct in severing the sewer lateral, and

(2) Pro Electric's conduct in backfilling the excavation without

inspecting the sewer lateral for damage and allowing repairs to

be made, pursuant to Wis. Stat. § 182.0175(2)(am). Finally, we

perform the necessary analysis to determine whether Pro Electric

is entitled to summary judgment.

I. FACTUAL BACKGROUND

¶6 We have set forth the facts that appear in the record

and which the parties do not dispute. On July 25, 2011, DOT
approved a plan for the improvement of a five-mile stretch of

State Highway 190, also known as Capitol Drive, in Brookfield

("Project Plan"). The Project Plan spanned over 1,000 pages and

contained specifications and detailed diagrams for the

installation of new asphalt pavement, curbs, gutters, sidewalks,

and traffic signals. Additionally, the DOT Highway Work

Proposal for the project included over 100 pages of "Special

Provisions" covering the various aspects of the project,

4
 No. 2013AP2882

including a section on requirements regarding underground

utilities.5

¶7 Following the bidding process, DOT awarded the project

to Payne & Dolan as the general contractor. On January 5, 2012,

Payne & Dolan entered into a subcontractor agreement6 with Pro

Electric to perform work on certain parts of the project,

including the installation of traffic signals. For some of the

traffic signals, the Project Plan directed Pro Electric to

install new concrete bases to support the traffic signal poles.

¶8 This case concerns only the installation of the

concrete base identified in the Project Plan as "SB2," located

at the northeast corner of Capitol Drive and 128th Street and

5
Article 6 of the Special Provisions in the Highway Work
Proposal was entitled "Utilities," and among its other
provisions it directed contractors to "[c]oordinate construction
activities with a call to Diggers Hotline or a direct call to
the utilities that have facilities in the area as required per
statutes. Use caution to ensure the integrity of underground
facilities and maintain code clearances from overhead facilities
at all times."
6
Although Pro Electric was a subcontractor, we use the term
"contractor" throughout our opinion because "immunity extends to
a subcontractor even though it has a contract with a general
contractor rather than with a governmental authority." Bronfeld
v. Pember Cos., 2010 WI App 150, ¶20 n.3, 330 Wis. 2d 123, 792
N.W.2d 222. The "reasoning for adopting the defense for
contractors also applies to subcontractors," because "it is just
as unfair for a subcontractor to be subjected to suit for
carrying out a governmental directive as it is for the party
directly contracting with the government." Jankee v. Clark
Cty., 222 Wis. 2d 151, 165-66, 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.

5
 No. 2013AP2882

identified by specific coordinates in the Project Plan.7 The

Project Plan directed Pro Electric to install a "Type 10"

concrete base to support the traffic signal pole for SB2 and to

use a circular auger to drill the hole in the ground for the

base. The Project Plan specified that a Type 10 base required a

hole that was 14 feet deep and 30 inches wide.

¶9 At least three days before Pro Electric started the

excavation for SB2, Pro Electric contacted Digger's Hotline.

The statute requires an excavator to contact Digger's Hotline at

least three days before beginning any excavation.8 Wis. Stat.

§ 182.0175(2)(am)1. Under the statute, Digger's Hotline is then

responsible for contacting the owners of transmission facilities9

in the area, and the owners are responsible for ensuring that

7
The Project Plan provided for SB2 to be located at Station
499+66.8 and at Location 86.8 LT. These coordinates were
measured in feet and identified the location to within a tenth
of a foot.
8
As defined in Wis. Stat. § 182.0175(1)(b), "excavation"
means "any operation in which earth, rock or other material in
or on the ground is moved, removed or otherwise displaced by
means of any tools, equipment or explosives and
includes . . . augering . . . ." An "excavator" is "a person
who engages in excavation." § 182.0175(1)(bm).
9
As defined in Wis. Stat. § 182.0175(1)(c), "transmission
facilities" includes "all lines, pipelines, wires, cables,
ducts, wirelines and associated facilities, whether underground
or aboveground, . . . utility facilities, government-owned
facilities, facilities transporting hazardous materials,
communications and data facilities, drainage and water
facilities and sewer systems."

6
 No. 2013AP2882

such facilities are marked. § 182.0175(1)(d)6., (2m)(a)2.10 Pro

Electric instructs its employees to inspect the area visually

for these markings before beginning excavation.

¶10 Pro Electric's employees augered the hole for SB2 on

August 22, 2012. Pro Electric used a circular auger attached to

a truck at the end of a boom. Two of Pro Electric's employees

performed the work: one was assigned to operate the auger from

the truck and the other to monitor the auger and periodically

clean it with a shovel. As Craig Clements, president of Pro

Electric, stated in his affidavit, drilling a hole with a

circular auger "creates a situation where the technician

operating the auger has no ability to see into the hole which is

being augered."

¶11 DOT retained an engineering firm, HNTB, to ensure Pro

Electric's compliance with the Project Plan, and an HNTB

engineer, Julie Keller, was onsite to supervise the augering

work. The DOT Project Plan warned that "there may be other

utility installations within the project which are not shown" on
the diagram, but in anticipation of a contractor encountering

10
Wis. Stat. § 182.0175(1m) requires owners of transmission
facilities to be members of the Digger's Hotline organization
and requires Digger's Hotline to "[a]ccept notices of intended
excavation activity" and "[p]romptly transmit notice information
to affected-member transmission facilities owners."
§ 182.0175(1m)(a), (d)3., (d)6. Subsection (2m) makes it the
owner's duty to "[r]espond to an excavation notice within 3
working days by marking the location of transmission facilities
and, if applicable, laterals as provided under par. (b) in the
area described in the excavation notice." § 182.0175(2m)(a)2.

7
 No. 2013AP2882

such unexpected utility installations, it further provided that

"the engineer may adjust the locations of items under this

contract to avoid conflict with existing utility facilities."

Keller neither instructed nor authorized Pro Electric to change

the location of SB2.11 Nothing in the record suggests that

either Pro Electric or Keller was aware, or had any reason to be

aware, of any utility facilities in the way of the excavation

for SB2. Pro Electric proceeded to complete the Type 10

concrete base in accordance with the specifications set forth

in the DOT Project Plan.

¶12 At some point after the project was completed, sewage

backed up into an adjoining commercial property. The property

was owned by The Warren V. Jones and Joyce M. Jones Revocable

Living Trust and occupied by Dr. Randall Melchert and Happy

Hobby, Inc., as tenants. It was subsequently discovered that

the sewer backup occurred because an underground sewer lateral

serving Petitioners' property ran directly through the location

of SB2, such that Pro Electric had severed that lateral while
constructing SB2. Nothing in the record suggests that either

Pro Electric or HNTB was aware at the time of construction that

Pro Electric had severed anything. The sewer lateral had been

11
Clements testified that, during an earlier augering
excavation on the same DOT project, Pro Electric's employees
noticed pieces of green PVC material coming up with the dirt.
Keller determined that it was a damaged sewer lateral, and she
instructed Pro Electric to move the excavation to a different
location in order to allow a sewer contractor to make repairs.

8
 No. 2013AP2882

made of clay, and the surrounding soil was also clay, thus

making it unlikely that indicia of the damage would have been

apparent among the material the auger was bringing up.12

Clements stated in his affidavit that "[n]o employee of Pro

Electric ever reported to me, HNTB, or the general contractor

that any sewer lateral was struck during the installation of

SB2. All Pro Electric employees were instructed that any such

incident would need to be reported immediately."

II. PROCEDURAL HISTORY

¶13 On March 1, 2013, Petitioners sued Pro Electric in the

Waukesha County circuit court. Their complaint alleged that Pro

Electric negligently severed the sewer lateral and then

completed the project without repairing it. The complaint

further alleged that, by doing so, Pro Electric thereby caused

flooding and water damage to Petitioners' property, along with

monetary losses, inconvenience, and other damages. In its

answer, Pro Electric asserted immunity from suit as a

12
Clements explained that the similarity of the materials
is significant because of how augering works. An auger, he
testified,

grinds and pulverizes the ground and slowly starts
bringing dirt to the surface. If the sewer line would
have been PVC we would have immediately saw that there
was something there. As an auger augers it's pushing
everything up, and it will push everything into any
voids in the hole, so as you look in a hole you will
not see a pipe or anything because it gets packed with
dirt. They had no way of knowing. If it would have
been a newer one, yes, we would have known right away.

9
 No. 2013AP2882

governmental contractor. The court held a summary judgment

hearing on Pro Electric's motion on November 18, 2013.

¶14 In an oral ruling following the hearing, the circuit

court granted summary judgment in favor of Pro Electric, ruling

that it was immune from liability. The court concluded that,

"under any reasonable view of the evidence, DOT design choices

regarding the location and the depth of the traffic light caused

this accident here. Those relevant design choices were made by

the government." The court did not consider whether the

Digger's Hotline statute, Wis. Stat. § 182.0175, imposed

additional duties on Pro Electric, because the court determined

that the statute did not apply. Therefore, the circuit court

granted summary judgment to Pro Electric and dismissed

Petitioners' case.

¶15 The court of appeals affirmed, concluding that Pro

Electric was immune from liability for any damages that resulted

from severing the sewer lateral. The court of appeals

determined that the "project design decision [of] where and how
to install the traffic light, as implemented by Pro Electric, is

entitled to immunity under Wis. Stat. § 893.80(4) 'because it

was made through the exercise of a legislative, quasi-

legislative, judicial, or quasi-judicial function of the

governmental entity.'" Melchert, unpublished slip op., ¶11

(quoting Showers Appraisals, LLC v. Musson Bros., 2013 WI 79,

¶34, 350 Wis. 2d 509, 835 N.W.2d 226). The court also examined

Petitioners' allegation that Pro Electric was negligent in
"backfilling the hole without repairing the severed sewer
10
 No. 2013AP2882

lateral," concluding that the record "does not support a causal

connection between [Petitioners'] specific allegations of

negligence . . . and the alleged injury." Id., ¶¶12-13.

III. STANDARD OF REVIEW

¶16 We review a grant of summary judgment independently,

using the same methodology as the circuit court. Oneida Cty.

Dep't of Soc. Servs. v. Nicole W., 2007 WI 30, ¶8, 299

Wis. 2d 637, 728 N.W.2d 652. "The judgment sought shall be

rendered if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Wis. Stat. § 802.08(2).

¶17 "We review questions of statutory interpretation and

application independently, but benefiting from the discussions

of the circuit court and the court of appeals." State v.

Grunke, 2008 WI 82, ¶10, 311 Wis. 2d 439, 752 N.W.2d 769.

"[D]etermining 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." Showers, 350 Wis. 2d 509, ¶21.

IV. DISCUSSION

A. General Principles of Governmental Contractor Immunity

¶18 Our discussion begins with the longstanding principle

that a governmental entity is immune from liability for acts

done "in the exercise of its legislative or judicial or quasi-
legislative or quasi-judicial functions." Holytz v. City of
11
 No. 2013AP2882

Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962). The

legislature has codified this principle in Wis. Stat.

§ 893.80(4). Showers, 350 Wis. 2d 509, ¶24 (citing Coffey v.

City of Milwaukee, 74 Wis. 2d 526, 532, 247 N.W.2d 132 (1976)).

As we have recognized, immunity under § 893.80(4) "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.'" Showers, 350

Wis. 2d 509, ¶35.13 "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." Id., ¶26 (citing Estate of Lyons v. CNA

Ins., 207 Wis. 2d 446, 453, 558 N.W.2d 658 (Ct. App. 1996)).

¶19 It is also well established that a governmental

entity's immunity may extend to private contractors acting as

agents of the governmental entity. Lyons, 207 Wis. 2d at 457-

58. A contractor asserting governmental immunity must prove two

elements. First, the contractor must show that it was an
"agent" of the governmental entity under "the Lyons test, i.e.,

whether the governmental entity approved reasonably precise

13
As we emphasized in Showers Appraisals, LLC v. Musson
Bros., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226, "[a]lthough
some of our cases have equated § 893.80(4)'s 'legislative,
quasi-legislative, judicial or quasi-judicial' standard with the
term 'discretionary,' and although our decision is not intended
in any way to alter that standard," the statute is best
interpreted "by applying the legislature's chosen plain
language, rather than a judicial distillation thereof." Id.,
¶35 (citations omitted).

12
 No. 2013AP2882

specifications that the governmental contractor adhered to when

engaging in the conduct that caused the injury." Showers, 350

Wis. 2d 509, ¶37.14

¶20 Second, "in addition to satisfying the Lyons

test . . . 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." Id., ¶45. This is so

because the contractor's immunity "is dependent upon the

immunity of the governmental act or decision that the agent was

implementing when it caused an injury." Id., ¶35. If that act

or decision was made during the exercise of the governmental

entity's legislative, quasi-legislative, judicial, or quasi-

judicial functions, the governmental entity's immunity may

extend to an agent implementing that act or decision. Id., ¶34.

¶21 For a private entity such as Pro Electric that is

contracting with a governmental entity, this is where immunity
ends. A contractor is not immune from liability if the

governmental entity did not direct the injury-causing conduct

14
The decision in Estate of Lyons v. CNA Insurance, 207
Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), also considered a
contractor's independent "duty to the public [not to] withhold
information about dangers that the government might not know
about." Id. at 457 (citing Boyle v. United Techs. Corp., 487
U.S. 500, 512-13 (1988)). However, Showers clarified that this
part of Lyons "does not bear on whether statutory agency is
present." Showers, 350 Wis. 2d 509, ¶37 n.15.

13
 No. 2013AP2882

with reasonable precision in the exercise of its legislative,

quasi-legislative, judicial, or quasi-judicial functions. As we

explained in Showers, the DOT contractor in that case was not

immune from allegations of negligent construction work, in part

because the contractor had not demonstrated that the allegedly

negligent acts "were the implementation of a governmental

entity's exercise of legislative, quasi-legislative, judicial,

or quasi-judicial functions." Id., ¶54. The overarching

principle is that a "governmental contractor [is] entitled to

the same level of immunity as would be accorded to the

governmental entity had it been sued directly . . . ." Id., ¶31

(citing Lyons, 207 Wis. 2d at 454).

B. The Legislative or Quasi-Legislative Nature of Construction

Design Decisions

¶22 Decisions regarding the design and placement of

individual elements incorporated into larger government

construction projects have been held to be legislative or quasi-

legislative decisions. For example, in Allstate Insurance v.
Metropolitan Sewerage Commission of County of Milwaukee, 80

Wis. 2d 10, 258 N.W.2d 148 (1977), a driver was injured in an

accident with a truck which was servicing a manhole located in

the middle of the street. The plaintiffs claimed that the

relevant governmental entity was negligent for placing the

manhole in that particular location, id. at 14, but the court

held that governmental immunity applied. "[T]he decisions of

the [governmental entity] in planning and designing the system
in question, including the placement of the manhole, were
14
 No. 2013AP2882

legislative acts performed in response to its authority to plan

and construct sewer systems . . . ." Id. at 15-16 (footnote

omitted). Similarly, "decisions concerning the adoption of a

waterworks system, the selection of the specific type of pipe,

the placement of the pipe in the ground, and the continued

existence of such pipe" are entitled to immunity. Milwaukee

Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶60, 277

Wis. 2d 635, 691 N.W.2d 658. It is, indeed, well settled that

"acts of designing, planning, and implementing are legislative

or quasi-legislative acts subject to immunity under [Wis. Stat.]

§ 893.80(4)." Bostco LLC v. Milwaukee Metro. Sewerage Dist.,

2013 WI 78, ¶41 n.21, 350 Wis. 2d 554, 835 N.W.2d 160.

C. Pro Electric's Immunity

¶23 We now apply the foregoing principles to the two

aspects of Pro Electric's conduct that allegedly caused

Petitioners' damages: (1) Pro Electric's conduct in severing

the sewer lateral, and (2) Pro Electric's conduct in backfilling

the excavation without inspecting the sewer lateral for damage
and allowing repairs to be made, pursuant to Wis. Stat.

§ 182.0175(2)(am). We address each allegation in turn.

1. Pro Electric is Immune From Liability For Severing the Sewer

Lateral

¶24 Pro Electric is immune from liability for severing the

sewer lateral, because the DOT Project Plan provided reasonably

precise specifications for Pro Electric's augering, Pro Electric

severed the sewer lateral by adhering to those specifications,
and DOT adopted the specifications in the exercise of its
15
 No. 2013AP2882

legislative, quasi-legislative, judicial, or quasi-judicial

functions.

¶25 Petitioners conceded at oral argument that the

specifications in DOT's Project Plan for Pro Electric's augering

were reasonably precise and that Pro Electric complied with

those specifications exactly. While we are not bound by the

concessions of the parties, see State v. Hunt, 2014 WI 102, ¶42

n.11, 360 Wis. 2d 576, 851 N.W.2d 434, we agree that a factual

basis exists for Petitioners' concessions.

¶26 As for reasonable specificity, DOT directed the exact

location for the augering using measured coordinates and

specified the dimensions of the augering by directing that SB2

was to be constructed with a Type 10 base. A Type 10 base

required a hole with particular dimensions: 30 inches in

diameter and 14 feet deep, with between 2 and 4 inches of

concrete exposed above ground. These dimensions gave Pro

Electric discretion of no more than two inches as to the depth

of the hole. DOT also specified the method of excavation:
"Bases shall be excavated by use of a circular auger." Clements

testified that this was a precise instruction, because

variations among types of augers concern only the size, type of

teeth, or the kind of truck on which the auger is mounted;

otherwise, "[a]n auger's an auger." Given these facts and the

fact that Petitioners do not contest this point, we have no

difficulty concluding that DOT's specifications for the augering

were reasonably precise.

16
 No. 2013AP2882

¶27 Petitioners have also conceded that, when Pro Electric

augered the hole for the concrete base for SB2, Pro Electric

followed DOT's reasonably precise specifications as to the

location and dimensions of the hole and the method of augering.

Although Keller, the DOT-retained engineer, had authority to

change the location of SB2, Pro Electric did not. As the

circuit court concluded, Pro Electric "did what they were told

to do by the DOT. In my opinion, there is no genuine issue of

material fact as it relates to that." We agree, and we

therefore conclude that Pro Electric complied with DOT's

reasonably precise specifications as to the specific augering

activities that severed the sewer lateral.

¶28 Finally, DOT adopted the specifications for Pro

Electric's augering in the exercise of its legislative or quasi-

legislative functions. The project at issue was governed by the

DOT Project Plan, which was prepared at DOT's direction and

approved by DOT prior to the start of the project. By providing

the final approval to the entire Project Plan, DOT thereby made
all the relevant decisions about which traffic signals to

replace, where to put them, and even the precise size of

concrete bases to use.

¶29 In Allstate, we concluded that "the decisions of the

[governmental entity] in planning and designing the system in

question, including the placement of the manhole, were

legislative acts performed in response to its authority to plan

and construct sewer systems . . . ." Allstate, 80 Wis. 2d at
15-16 (footnote omitted). Similarly, in choosing to approve the
17
 No. 2013AP2882

Project Plan in this case, DOT was exercising its legislatively

delegated authority to "direct, undertake and expend state and

federal aid for planning, promotion and protection activities in

the areas of highways, motor vehicles, [and] traffic law

enforcement . . . ." Wis. Stat. § 85.02(1). The placement of a

traffic signal in a highway project is akin to the placement of

a manhole in a sewer system, and "[i]t is not for the court to

be judge or jury to 'second guess' [governmental entities] in

these determinations nor to find they are liable for

negligence." Allstate, 80 Wis. 2d at 16.15

¶30 In light of the foregoing, we agree with the circuit

court and court of appeals and hold that Pro Electric severed

the sewer lateral as an agent implementing a legislative or

quasi-legislative DOT design decision. DOT——not Pro Electric——

made the decision to auger that particular hole in that

particular place, and all of the evidence suggests that Pro

15
Petitioners argue that "DOT's directive was not the
injury-causing act; the injury-causing act was Pro Electric's
negligent severing of the sewer lateral through its performance
of construction work." However, Petitioners have failed to
demonstrate a meaningful distinction between the two in this
case. Petitioners concede that the DOT designs directed Pro
Electric to excavate using a circular auger to a precise depth
in a precise location, and neither side disputes the fact that
this is the conduct that severed the sewer lateral. In this
situation, immunity depends not on the character of the
contractor's acts but "upon the immunity of the governmental act
or decision that the agent was implementing when it caused an
injury." Showers, 350 Wis. 2d 509, ¶35 (emphasis added).
Therefore, our focus is properly on DOT's decision to adopt the
specifications that caused Pro Electric to sever the sewer
lateral.

18
 No. 2013AP2882

Electric severed the sewer lateral not because of the manner in

which Pro Electric chose to do the augering, but simply because

the Project Plan directed Pro Electric as to exactly where and

how to auger.

2. Pro Electric Is Not Immune From Liability For Backfilling

the Excavation Without Inspecting the Sewer Lateral

¶31 Petitioners' second allegation is that Pro Electric

negligently backfilled its excavation without inspecting the

sewer lateral for damage and allowing repairs to be made,

despite having a statutory duty to do so. Petitioners argue

that, pursuant to Wis. Stat. § 182.0175(2)(am), Pro Electric had

an "independent statutory duty to inspect its excavation, to

ascertain if the sewer lateral had been or may have been severed

or damaged, and to refrain from backfilling its excavation until

an inspection was conducted and all necessary repairs were

completed."

¶32 Petitioners make two arguments as to why Pro Electric

may not enjoy immunity from liability for this allegation.
First, Petitioners argue that Pro Electric was not acting as

DOT's agent in regard to its compliance with Wis. Stat.

§ 182.0175(2)(am) and instead was "solely responsible for the

means and methods of inspecting its excavation, ascertaining if

there was any damage, and refraining from backfilling until all

necessary repairs were completed." Second, Petitioners argue

that the duties imposed by § 182.0175(2)(am) do not implicate

legislative, quasi-legislative, judicial, or quasi-judicial
functions under our case law.
19
 No. 2013AP2882

¶33 Pro Electric does not rebut these arguments. The DOT

Highway Work Proposal assigned responsibility to Pro Electric to

"[c]oordinate construction activities with a call to Digger's

Hotline or a direct call to the utilities that have facilities

in the area as required per statutes" and to "[u]se caution to

ensure the integrity of underground facilities." The Project

Plan did not provide reasonably precise specifications for how

to fulfill these responsibilities, and there would have been

ample room for Pro Electric's discretion if, for instance, it

had discovered a damaged sewer lateral during excavation. A

"contractor may not possess such control over the alleged

injury-causing action and still be considered an agent for

purposes of governmental contractor immunity under Wis. Stat.

§ 893.80(4)." Showers, 350 Wis. 2d 509, ¶51.

¶34 Therefore, Pro Electric was not acting as DOT’s agent

in this regard, and immunity would not shield Pro Electric from

liability. Given this conclusion, there is no need to proceed

to the next step in the analysis and determine whether the
duties imposed by Wis. Stat. § 182.0175(2)(am) implicate

legislative, quasi-legislative, judicial, or quasi-judicial

functions. We therefore do not decide that question.

¶35 For these reasons, Pro Electric does not enjoy

governmental immunity for a failure to inspect the excavation to

look for the severed sewer lateral and to refrain from

backfilling until repairs were made. But our discussion does

not end here. Rather, we must now apply the traditional summary
judgment standards to the facts of the case.
20
 No. 2013AP2882

D. Summary Judgment

¶36 Summary judgment is appropriate if "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Wis. Stat.

§ 802.08(2). "[A]ny doubts as to the existence of a genuine

issue of material fact are resolved against the moving party.

However, evidentiary facts set forth in the affidavits or other

proof are taken as true by a court if not contradicted by

opposing affidavits or other proof." L.L.N. v. Clauder, 209

Wis. 2d 674, 684, 563 N.W.2d 434 (1997) (citations omitted).

¶37 In order for Petitioners to have a viable common-law

negligence claim against Pro Electric for backfilling the

excavation without inspecting the sewer lateral for damage and

allowing repairs to be made, Petitioners must

plead facts, which if proved true, would establish the
following four elements: (1) the existence of a duty
of care on the part of the defendant, (2) a breach of
that duty of care, (3) a causal connection between the
defendant's breach of the duty of care and the
plaintiff's injury, and (4) actual loss or damage
resulting from the [breach].
Brandenburg v. Briarwood Forestry Servs., LLC, 2014 WI 37, ¶6,

354 Wis. 2d 413, 847 N.W.2d 395 (quoting Hoida, Inc. v. M&I

Midstate Bank, 2006 WI 69, ¶23, 291 Wis. 2d 283, 717 N.W.2d 17).

1. Pro Electric's Duties under Wis. Stat. § 182.0175(2)(am)

¶38 As to the element of duty, generally "every person is
subject to a duty to exercise ordinary care in all of his or her

21
 No. 2013AP2882

activities." Id., ¶7 (quoting Behrendt v. Gulf Underwriters

Ins., 2009 WI 71, ¶3, 318 Wis. 2d 622, 768 N.W.2d 568). In this

case, we asked the parties to brief the relevance of the

Digger's Hotline statute, in particular Wis. Stat.

§ 182.0175(2), including a discussion of whether the facts in

the record demonstrate compliance with the statute. Although

the parties disagree as to whether Pro Electric complied with

§ 182.0175(2)(am), neither has disputed the notion that

demonstrating noncompliance with § 182.0175(2)(am) is essential

to Petitioners' claim that Pro Electric was negligent in

backfilling the excavation without inspecting the sewer lateral

for damage and allowing repairs to be made. Pro Electric

conceded at oral argument that noncompliance with

§ 182.0175(2)(am) would support a negligence claim, and

Petitioners have not presented any argument as to how the duty

of ordinary care in regard to the specifically alleged negligent

conduct would differ from the duties imposed by

§ 182.0175(2)(am).16 Therefore, we assume for purposes of

16
Petitioners allege in their Second Amended Complaint that
"it was obvious to [Pro Electric's] workers at the time that
they were drilling through a sewer lateral," and that Pro
Electric was therefore negligent when it "proceeded with the
installation of the light pole without warning any of the
occupants of the building that the sewer lateral was severed nor
did they take remedial action to repair or reroute the sewer
lateral around the pole." In their briefs before this court,
Petitioners characterize these allegations solely in terms of
the duties imposed by Wis. Stat. § 182.0175(2)(am), arguing that
Pro Electric had an "independent statutory duty to inspect its
excavation, to ascertain if the sewer lateral had been or may
have been severed or damaged, and to refrain from backfilling
(continued)
22
 No. 2013AP2882

deciding this case that Pro Electric's duty of care under the

circumstances here is coextensive with the requirements of

§ 182.0175(2)(am).

¶39 Subsection (2)(am) is titled "Excavation notice" and

begins by providing that an excavator shall "[p]rovide advance

notice [to Digger's Hotline] not less than 3 working days before

the start of nonemergency excavation." Wis. Stat.

§ 182.0175(2)(am)1. Subsection (2)(am) also requires that,

while excavating, the excavator must maintain minimum clearances

around any "marking for an unexposed transmission facility that

is marked under sub. (2m)," though it may reduce that clearance

"[w]hen the underground transmission facility becomes exposed or

if the transmission facility is already exposed."

§ 182.0175(2)(am)3. Additionally, after the excavation is

complete, the excavator must, "[b]efore backfilling, inspect all

transmission facilities exposed during excavation to ascertain

if the transmission facilities have been or may have been

struck, damaged, dislocated or disrupted," and shall "[r]efrain
from backfilling an excavation until an inspection is conducted

and any necessary repairs have been made by the owner of the

transmission facility." § 182.0175(2)(am)6.-6m.

2. There Is No Issue of Material Fact As To Whether Pro

Electric Complied With Its Duties Under Wis. Stat.

§ 182.0175(2)(am)

its excavation until an inspection was conducted and all
necessary repairs were completed" (emphasis added).

23
 No. 2013AP2882

¶40 The undisputed facts in the record establish that Pro

Electric complied with its duties under Wis. Stat.

§ 182.0175(2)(am). There is no dispute that Pro Electric

contacted Digger's Hotline at least three days before beginning

excavation. Nor is there any evidence to indicate the presence

of any markings indicating that the sewer lateral was in the way

of the excavation. The statutes clearly impose the duty to mark

buried transmission facilities——including sewer laterals——on

their owners, not on an excavator. § 182.0175(2m)(a)(2).

Nothing in the record permits a reasonable inference that the

presence of the sewer lateral was anything other than a surprise

to all involved.

¶41 Further, there are no facts from which it could be

inferred that the sewer lateral was a "transmission facilit[y]

exposed during excavation," triggering Pro Electric's duty to

inspect it for damage and refrain from backfilling until repairs

could be made. Wis. Stat. § 182.0175(2)(am)6.-6m. Clements

explained in his deposition that augering generally pulverizes
and grinds the material together, making it highly unlikely that

pieces of a clay pipe would be identifiable in clay soil. He

testified that when Pro Electric hit a different sewer lateral

on a previous excavation, Pro Electric noticed it because pieces

of green PVC material were visible amid the soil that was coming

up. But here, both the buried sewer lateral and the surrounding

soil consisted of clay-colored material. Furthermore, the hole

was relatively narrow, being 14 feet deep while only 30 inches
wide. Augering in this situation, Clements stated, generally
24
 No. 2013AP2882

"creates a situation where the technician operating the auger

has no ability to see into the hole which is being augered."

The lateral here could not have been open to view, because of

the way that an auger typically "will push everything into any

voids in the hole, so as you look in a hole you will not see a

pipe or anything because [the hole] gets packed with dirt."

Clements further stated that, although Keller was supervising

Pro Electric's work and one of Pro Electric's employees was

assigned to monitor the auger and periodically clean it with a

shovel, no one reported seeing any indication that they had hit

a sewer lateral.

¶42 Petitioners do not dispute these facts except to argue

that, because Clements was not present at the job site, his

deposition cannot "conclusively establish[] that Pro Electric

inspected its excavation, ascertained if the sewer lateral had

been or may have been severed or damaged, and refrained from

backfilling its excavation . . . as required by Wis. Stat.

§ 182.0175(2)(am)." However, the statute does not require Pro
Electric to inspect its excavation; rather, it requires

inspection of transmission facilities exposed during the

excavation. Wis. Stat. § 182.0175(2)(am)6.-6m. The only

evidence Petitioners produced in this regard was a photograph

taken after the fact, which depicted wider excavations done

later to repair the sewer lateral and in no way represented that

the sewer lateral would have been exposed to Pro Electric at the

time of augering. A party opposing summary judgment "must show,
by affidavit or other proof, the existence of disputed material
25
 No. 2013AP2882

facts or undisputed material facts from which reasonable

alternative inferences may be drawn that are sufficient to

entitle the opposing party to a trial." Clauder, 209 Wis. 2d at

683. Petitioners have not met this burden, because the

undisputed material facts they have presented do not support a

reasonable inference that Pro Electric violated

§ 182.0175(2)(am).

¶43 Therefore, we hold that Petitioner has not identified

any material fact supporting a reasonable inference that Pro

Electric failed to comply with its duties under Wis. Stat.

§ 182.0175(2)(am). Pro Electric did what it was required to do

under the statute, and based on the record before us,

Petitioners' attempts to suggest that the sewer lateral was

exposed to Pro Electric during the excavation amount to mere

speculation. Pro Electric is therefore entitled to summary

judgment.

V. CONCLUSION

¶44 We hold that Pro Electric is immune from liability for
Petitioners' allegations that it was negligent in severing the

sewer lateral, and we hold that Pro Electric is entitled to

summary judgment on Petitioners' allegation that it was

negligent in backfilling the excavation without inspecting the

sewer lateral for damage and allowing repairs to be made

pursuant to Wis. Stat. § 182.0175(2)(am).

¶45 Pro Electric is immune from liability for severing the

sewer lateral, because it acted in accordance with reasonably
precise design specifications adopted by a governmental entity
26
 No. 2013AP2882

in the exercise of its legislative, quasi-legislative, judicial,

or quasi-judicial functions. At the same time, Pro Electric is

not immune from liability for backfilling without inspecting the

sewer lateral pursuant to Wis. Stat. § 182.0175(2)(am), because

DOT did not provide Pro Electric with precise specifications for

inspecting damaged utilities before backfilling pursuant to

§ 182.0175(2)(am), so Pro Electric was not DOT's agent with

regard to these duties. Ultimately, however we affirm the

circuit court's grant of summary judgment on the factual record

before us. We do so because the undisputed material facts do

not support a reasonable inference that Pro Electric failed to

comply with its duties in § 182.0175(2)(am). For these reasons,

we affirm the decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

27
 No. 2013AP2882.ssa

¶46 SHIRLEY S. ABRAHAMSON, J. (concurring). I agree

that the decision of the court of appeals should be affirmed. I

would affirm the decision, however, by dismissing the petition

for review as having been improvidently granted.

¶47 The court should dismiss the petition as improvidently

granted because, as the majority opinion explains at length, the

two issues the parties raised were decided by the court of

appeals consistently with Showers Appraisals, LLC v. Musson

Bros., Inc., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226, and

Estate of Lyons v. CNA Insurance Companies, 207 Wis. 2d 446, 558

N.W.2d 658 (Ct. App. 1996).1 The majority opinion should not be

read as deviating from Showers and Lyons or changing our

governmental contractor immunity law in any way.

¶48 A third issue was directed to the parties in the

court's order granting the petition for review. The parties

were directed to address whether the Diggers Hotline statute,

Wis. Stat. § 182.0175(2), creates a ministerial duty, and to

discuss the relevance of the statute to the case, whether the
facts in the record demonstrate compliance with the statute, and

if so, how. Justices Ann Walsh Bradley and Annette K. Ziegler

concurred in this order, expressing their concern that this

1
The parties raised two issues for this court to address:

Was Pro Electric Contractors acting as a governmental
agent as that term is used in Wis. Stat. § 893.80(4)?

Was the alleged injurious conduct caused by the
implementation of a government decision for which
immunity is available under Wis. Stat. § 893.80(4)?

1
 No. 2013AP2882.ssa

third issue "could place this court in the role of fact-finder."

Their concern proved prescient.

¶49 With regard to this third issue, the majority opinion

recites and applies well-established principles of summary

judgment law, and then declares that no issue of material fact

exists regarding whether Pro Electric complied with its duties

under Wis. Stat. § 182.0175(2).

¶50 My final comment on dismissal regards issues that

members of the court have raised previously in government

immunity cases, but that are not raised or answered by the

parties or the court in the instant case: Should the court

revisit the interpretation of Wis. Stat. § 893.80? Revisit

Wisconsin case law defining legislative, quasi-legislative,

judicial, and quasi-judicial functions? And revisit Holytz v.

City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962)?2 These

issues are not before the court and should not be decided in the

instant case. We should not bypass the adversary process.3

2
See Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI
78, ¶¶131-138, 350 Wis. 2d 554, 835 N.W.2d 160 (Abrahamson,
C.J., dissenting); Nicholas J. Bullard, Comment, Pushing the
Reset Button on Wisconsin's Governmental Immunity Doctrine, 2014
Wis. L. Rev. 801.
3
"As various members of this court have said, we should not
'reach out and decide issues' that were not presented to the
court by the parties." Dairyland Greyhound Park, Inc., v.
Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408
(Roggensack, J., concurring in part and dissenting in part)
(quoting Town of Beloit v. Cty. of Rock, 2003 WI 8, ¶72, 259
Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)). See
also State v. Thompson, 2012 WI 90, ¶¶9, 57, 342 Wis. 2d 674,
680, 695, 818 N.W.2d 904 (declaring that the court should not
decide issues that are not briefed).

(continued)
2
 No. 2013AP2882.ssa

¶51 Because the majority opinion does not in any way

develop the law of the state, which is the function of this

court,4 the petition for review should be dismissed as

improvidently granted.

The United States Supreme Court has often explained the
fundamental importance of the adversarial presentation of
issues. See, e.g., Penson v. Ohio, 488 U.S. 75, 84 (1988); Polk
Cty. v. Dodson, 454 U.S. 312, 318 (1981); Mackey v. Montrym, 443
U.S. 1, 13 (1979).
4
Wis. Stat. § (Rule) 809.62(1r); State v. Moeck, 2005 WI
57, ¶94, 280 Wis. 2d 277, 314, 695 N.W.2d 783, 802 (Prosser, J.,
dissenting) ("The [Wisconsin] supreme court is a law-defining,
law-developing court.") (citing Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997)).

3
 No. 2013AP2882.rgb

¶52 REBECCA GRASSL BRADLEY, J. (dissenting). When this

court abrogated the common law doctrine of sweeping governmental

immunity in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115

N.W.2d 618 (1962), it lamented that "[t]he rules surrounding

municipal tort immunity have resulted in . . . highly artificial

judicial distinctions." Id. at 32. More than a half century

later, "artificial judicial distinctions" once again pervade our

governmental immunity cases, and the majority overlooks an

opportunity to fix this creeping error. Although the

legislature grants immunity to certain governmental entities and

their agents only "for acts done in the exercise of legislative,

quasi-legislative, judicial, or quasi-judicial functions," Wis.

Stat. § 893.80(4) (2015-16),1 the majority opinion leaves in

place a judicial distortion of this statutory language that

instead ties immunity to a "discretionary" versus "ministerial

duty" test invented by the judiciary. The court supplants the

legislature's textually limited immunity in favor of an

expansive interpretation of a doctrine long ago abolished but
nevertheless repeatedly resurrected by this court's problematic

case law. Because the majority opinion perpetuates a non-

textual interpretation of § 893.80(4), I respectfully dissent.

Further, because a genuine issue of material fact exists as to

whether Pro Electric inspected the hole before filling it, I

would reverse the court of appeals' decision and remand for

further proceedings.

1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

1
 No. 2013AP2882.rgb

I

¶53 The Holytz court unsparingly criticized governmental

immunity, explaining that the doctrine's "origin seems to be

found in the ancient and fallacious notion that the king can do

no wrong." 17 Wis. 2d at 33 (internal quotation mark omitted)

(quoting Britten v. City of Eau Claire, 260 Wis. 382, 386, 51

N.W.2d 30 (1952)). For decades before Holytz, multiple courts

and scholars foreshadowed the Holytz court's critique. Almost a

century ago, Justice Wanamaker of the Ohio Supreme Court

observed that governmental immunity "has been shot to death on

so many different battlefields that it would seem utter folly

now to resurrect it." Fowler v. City of Cleveland, 126 N.E. 72,

77 (Ohio 1919) (Wanamaker, J., concurring). More than 70 years

ago, the New Mexico Supreme Court exclaimed:

It is almost incredible that in this modern age of
comparative sociological enlightenment, and in a
republic, the medieval absolutism supposed to be
implicit in the maxim, "the King can do no wrong",
should exempt the various branches of the government
from liability for their torts, and that the entire
burden of damage resulting from the wrongful acts of
the government should be imposed upon the single
individual who suffers the injury, rather than
distributed among the entire community constituting
the government, where it could be borne without
hardship upon any individual, and where it justly
belongs.
Barker v. City of Santa Fe, 1943-NMSC-012, ¶11, 136 P.2d 480

(internal quotation mark omitted) (quoting Annotation, 75 A.L.R.

1196 (1931)). Later, the Florida Supreme Court determined:

"[T]he time has arrived to declare this doctrine [anachronistic]
not only to our system of justice but to our traditional

2
 No. 2013AP2882.rgb

concepts of democratic government." Hargrove v. Town of Cocoa

Beach, 96 So. 2d 130, 132 (Fla. 1957). Joining other courts in

retracting an antiquated common law doctrine, this court

unequivocally held, "[H]enceforward, so far as governmental

responsibility for torts is concerned, the rule is liability——

the exception is immunity." Holytz, 17 Wis. 2d at 39.

¶54 Mindful of its role under Wisconsin's constitutional

structure, this court acknowledged that, "[i]f the legislature

deems it better public policy, it is, of course, free to

reinstate immunity." Id. at 40. This court also explained the

scope of its abrogation: "Our decision does not broaden the

government's obligation so as to make it responsible for all

harms to others; it is only as to those harms which are torts

that governmental bodies are to be liable by reason of this

decision." Id. at 39-40 (emphasis added). Specifically, this

court added that its decision should not "be interpreted as

imposing liability on a governmental body in the exercise of its

legislative or judicial or quasi-legislative or quasi-judicial
functions." Id. at 40 (citing Hargrove, 96 So. 2d at 133).

¶55 A year later, the legislature responded by enacting an

exception to liability echoing the language in Holytz, granting

immunity only "for acts done in the exercise of legislative,

quasi-legislative, judicial or quasi-judicial functions." Laws

of 1963, ch. 198, § 331.43(3). As amended, the current

statutory language remains substantially similar:

No suit may be brought against any volunteer fire
company organized under ch. 213, political
corporation, governmental subdivision or any agency
thereof for the intentional torts of its officers,
3
 No. 2013AP2882.rgb

officials, agents or employees nor may any suit be
brought against such corporation, subdivision or
agency or volunteer fire company or against its
officers, officials, agents or employees for acts done
in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions.
Wis. Stat. § 893.80(4) (emphasis added).

¶56 Over time, however, this court's decisions in

governmental immunity cases have enlarged the limited exception

to liability first articulated in Holytz and, importantly, later

adopted by the legislature. Recently, the court described the

current state of Wisconsin law:

The court has interpreted the words "legislative,
quasi-legislative, judicial or quasi-judicial
functions" in Wis. Stat. § 893.80(4) to be synonymous
with the word "discretionary." If an act is
discretionary, then governmental immunity provided by
Wis. Stat. § 893.80(4) applies. There is no immunity,
however, for liability associated with "the
performance of ministerial duties imposed by law."
Legue v. City of Racine, 2014 WI 92, ¶42, 357 Wis. 2d 250, 849

N.W.2d 837 (footnote omitted) (first citing Lister v. Bd. of

Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976); then

quoting Brown v. Acuity, 2013 WI 60, ¶42, 348 Wis. 2d 603, 833

N.W.2d 96).2 The majority does not disturb that interpretation,
explaining that, although Wis. Stat. § 893.80(4) "is best

2
For in-depth discussion of the governmental immunity
doctrine's evolution since Holytz, see generally Legue v. City
of Racine, 2014 WI 92, ¶¶35-43, 357 Wis. 2d 250, 849 N.W.2d 837;
Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, 350
Wis. 2d 554, 835 N.W.2d 160 (Gableman, J., concurring); Umansky
v. ABC Ins. Co., 2009 WI 82, 319 Wis. 2d 622, 769 N.W.2d 1
(Prosser, J., concurring); Willow Creek Ranch, L.L.C. v. Town of
Shelby, 2000 WI 56, ¶¶60-99, 235 Wis. 2d 409, 611 N.W.2d 693
(Prosser, J., dissenting).

4
 No. 2013AP2882.rgb

interpreted 'by applying the legislature's chosen plain

language, rather than a judicial distillation thereof,'" the

court's "decision is not intended in any way to alter [the

'discretionary'] standard." Majority op., ¶19 n.13 (internal

quotation mark omitted) (quoting Showers Appraisals, LLC v.

Musson Bros., 2013 WI 79, ¶35, 350 Wis. 2d 509, 835 N.W.2d 226).

¶57 Criticism of this court's interpretation of Wis. Stat.

§ 893.80(4) is well-documented in recent cases and need not be

repeated at length. See, e.g., Legue, 357 Wis. 2d 250, ¶43

("The court's explication and application of the doctrine of

governmental immunity under Wis. Stat. § 893.80(4) has come

under increasing criticism by members of the court."); Bostco

LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶103, 350

Wis. 2d 554, 835 N.W.2d 160 (Gableman, J., concurring) ("[T]his

court continues to apply a series of doctrines that have no

connection to the text of the municipal immunity

statute . . . or our decision to abrogate all governmental

immunity in Holytz . . . ."); Umansky v. ABC Ins. Co., 2009 WI
82, ¶78, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring)

("So far as government responsibility for torts is concerned,

immunity has become the rule and liability has become the rare

exception. Justice has been confined to a crawl space too

narrow for most tort victims to fit."); Scott v. Savers Prop. &

Cas. Ins. Co., 2003 WI 60, ¶79, 262 Wis. 2d 127, 663 N.W.2d 715

(Prosser, J., dissenting) ("In effect, this methodology has made

the rule become immunity——the exception, liability.").

5
 No. 2013AP2882.rgb

¶58 Justice Gableman's concurrence in Bostco LLC v.

Milwaukee Metropolitan Sewerage District, 2013 WI 78, 350

Wis. 2d 554, 835 N.W.2d 160, stands out among the critiques

because it offers an alternative interpretation of Wis. Stat.

§ 893.80(4). The Bostco concurrence advocates "adopt[ing] the

'planning-operational distinction' to determine whether

governmental action is 'legislative, quasi-legislative,

judicial, or quasi-judicial.'" 350 Wis. 2d 554, ¶103. That

approach "grants immunity only to upper-level legislative,

judicial, executive and administrative policy and planning

decisions rather than to any decision that might be made." Id.

(emphasis added) (quoting 18 Eugene McQuillin, The Law of

Municipal Corporations § 53:16, at 236 (3d ed. 2013)

[hereinafter McQuillin]). Compared to the prevailing

interpretation of Wis. Stat. § 893.80(4) as granting immunity to

"discretionary" acts, the planning-operational distinction comes

closer to narrowing the field of what this court deems

"legislative, quasi-legislative, judicial or quasi-judicial
functions."3 Using the planning-operational distinction as a

definition of the statutory phrase, however, suffers from the

same shortcoming that afflicts the court's current approach: it

replaces the legislature's chosen language with a judicially

manufactured standard.

3
For further discussion of the planning-operational
distinction in the context of Wisconsin law, see also Nicholas
J. Bullard, Comment, Pushing the Reset Button on Wisconsin's
Governmental Immunity Doctrine, 2014 Wis. L. Rev. 801, 824-28.

6
 No. 2013AP2882.rgb

¶59 Rather than layering the court's favored standard over

the statutory text——or simply asserting that a particular action

is "legislative or quasi-legislative," as the majority does

here——the appropriate interpretive tool is to critically assess

the original meaning of "legislative, quasi-legislative,

judicial or quasi-judicial functions."4 The specific language

chosen by the legislature in Wis. Stat. § 893.80(4) parallels

the exception to liability crafted by this court's Holytz

opinion, which cited Hargrove v. Cocoa Beach, 96 So. 2d 130

(Fla. 1957), when introducing into Wisconsin law an exception

for acts pursuant to "legislative or judicial or quasi-

legislative or quasi judicial functions." Holytz, 17 Wis. 2d at

40. In Hargrove, the Florida Supreme Court also stopped short

of absolutely abrogating common law immunity:

We think it advisable to protect our conclusion
against any interpretation that would impose liability
on the municipality in the exercise of legislative or
judicial, or quasi-legislative or quasi-judicial,
functions as illustrated in such cases as Elrod v.
City of Daytona Beach, 180 So. 378; and Akin v. City
of Miami, Fla.1953, 65 So.2d 54.
Hargrove, 96 So. 2d at 133 (citations omitted).

¶60 Careful review of the two cases cited in Hargrove

clarifies that the Florida Supreme Court sought to preserve

immunity for a narrowly tailored set of governmental functions

bearing a particular legislative or judicial character. In

Elrod v. City of Daytona Beach, 180 So. 378 (Fla. 1938), the

4
State ex rel. Kalal v. Circuit Court for Dane County, 2004
WI 58, ¶¶44-52, 271 Wis. 2d 633, 681 N.W.2d 110, outlines the
principles of statutory interpretation.

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Florida Supreme Court upheld a city's immunity in a suit by a

traveling salesman who sought damages resulting from his arrest

for violating an allegedly unconstitutional ordinance. Id. at

378-79. The court explained that "the action of the city in

adopting the ordinance in question was . . . a legislative

act . . . . For errors of judgment in the exercise of such

powers the cities are not liable . . . ." Id. at 379 (quoting

Trescott v. City of Waterloo, 26 F. 592, 594 (C.C.N.D. Iowa

1885), which cited Fowle v. Common Council of Alexandria, 28

U.S. (3 Pet.) 398 (1830)).

¶61 Likewise, in Akin v. City of Miami, 65 So. 2d 54 (Fla.

1953), the Florida Supreme Court upheld a city's immunity in a

suit seeking damages resulting from its denial of a building

permit, explaining that, "inasmuch as the granting or

withholding of a building permit by a municipality was the

exercise of a purely governmental function, the city could not

be held liable in a tort action for damages for the wrongful

refusal to issue such a permit." Id. at 55. Immunity for
enactment of an ordinance, as in Elrod, implicates actions with

uniquely legislative character, while immunity for a decision to

deny a permit after applying law to facts, as in Akin,

implicates action of a more judicial nature.

¶62 The legislative and judicial actions immunized in

Elrod and Akin align well with the ordinary meaning of the words

found in Wis. Stat. § 893.80(4). A "function" refers to an

"[a]ctivity that is appropriate to a particular business or
profession." Function, Black's Law Dictionary 787 (10th ed.

8
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2014) [hereinafter Black's]; see also The American Heritage

Dictionary of the English Language 710 (5th ed. 2011)

[hereinafter American Heritage] (defining "function" as "[t]he

action or purpose for which a person or thing is suited or

employed"). "Legislative" means "[o]f, relating to, or

involving lawmaking or the power to enact laws; concerned with

making laws." Legislative, Black's, supra, at 1039.

"Judicial," in turn, means "[o]f, relating to, or involving a

judgment." Judicial, id. at 974. The prefix "quasi" means

"[s]eemingly but not actually; in some sense or degree;

resembling; nearly." Quasi, id. at 1439.5

¶63 Taken together, these definitions suggest that the

phrase "legislative, quasi-legislative, judicial or quasi-

judicial functions" grants immunity to the entities listed in

Wis. Stat. § 893.80(4) only for actions pertaining to making or

enacting laws, actions involving an exercise of judgment in an

adjudicative sense, or actions otherwise resembling lawmaking or

adjudication. Essentially, the statutory text contemplates
immunity for the enumerated entities and their agents within the

limited sphere of authority by which government makes and

adjudicates law. Toward that end, this court properly

recognizes that "[t]he purpose of [governmental] immunity is to

ensure that courts refuse to pass judgment on policy decisions

5
See also Quasi-legislative, Black's Law Dictionary 1440
(10th ed. 2014) ("(Of an act, function, etc.) not purely
legislative in nature . . . ."); Quasi-judicial, id. ("Of,
relating to, or involving an executive or administrative
official's adjudicative acts.").

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in the province of coordinate branches of government, if such a

policy decision, consciously balancing risks and advantages,

took place." Legue, 357 Wis. 2d 250, ¶40 (second alteration in

original) (quoting Scarpaci v. Milwaukee Cty., 96 Wis. 2d 663,

687, 292 N.W.2d 816 (1980)).6 Returning to an interpretation

tethered to the text of Wis. Stat. § 893.80(4) would safeguard

the separation of powers among the branches of government

without shifting to innocent victims the burden of losses caused

by government actors and agents.

¶64 The planning-operational distinction, suggested by

Justice Gableman in Bostco, seeks to restore some limitations on

immunity, inching closer to the actual text Wis. Stat.

§ 893.80(4): "[A] decision to adopt (or not adopt) a certain

policy would be shielded by immunity, but the implementation of

the policy would be subject to traditional tort standards."

Bostco, 350 Wis. 2d 554, ¶112 (Gableman, J., concurring).

Although the discretionary-ministerial distinction purportedly

arose out of similar "concerns over courts interfering with
other branches of government," 18 McQuillin, supra, § 53:4, at

168-69, it inevitably regressed from protecting political

decisions to immunizing the destruction of private property.

6
One commentator similarly described immunity's purpose:
"[P]ublic policy justifies applying immunity where the
challenged government action is of a policymaking character——
involving social, economic, or political judgments——and where
the government action is best monitored through the political
process rather than through tort actions." Linda M. Annoye,
Comment, Revising Wisconsin's Government Immunity Doctrine, 88
Marq. L. Rev. 971, 981 (2005).

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Because both tests substitute, by judicial fiat, a grossly

circumscribed limit on government immunity undetectable in the

language actually chosen by the legislature, neither is

compatible with the comparatively narrow governmental immunity

actually found in the text of Wis. Stat. § 893.80(4).7

¶65 Restoring an interpretation of Wis. Stat. § 893.80(4)

properly grounded in that section's text would bring coherence

and predictability to our governmental immunity jurisprudence.

If a municipality acts in a formal capacity pursuant to its

powers derived from the State, it might reasonably be immune

from liability caused by, for example, an ordinance declared

unconstitutional or a decision to deny a permit. Critically,

immunity would no longer attach to negligent actions by a

7
The "guided balancing test" proposed by Andrea Dudding,
Comment, Reining in Municipalities: How to Tame the Municipal
Immunity Monster in Wisconsin, 2004 Wis. L. Rev. 1741, would
similarly depart inappropriately from the text of Wis. Stat.
§ 893.80(4). Engineering a balancing test risks replacing
predictable rules of law with the will or whim of the court:

[A]t the point where an appellate judge says that the
remaining issue must be decided on the basis of the
totality of the circumstances, or by a balancing of
all the factors involved, he begins to resemble a
finder of fact more than a determiner of law. To
reach such a stage is, in a way, a regrettable
concession of defeat——an acknowledgment that we have
passed the point where "law," properly speaking, has
any further application. . . . [E]quality of
treatment is difficult to demonstrate and, in a multi-
tiered judicial system, impossible to achieve;
predictability is destroyed; judicial arbitrariness is
facilitated . . . .

Antonin Scalia, Essay, The Rule of Law as a Law of Rules, 56 U.
Chi. L. Rev. 1175, 1175-82 (1989).

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government actor (or agent) disconnected from the government's

truly legislative, quasi-legislative, judicial, or quasi-

judicial functions. Characterizing the installation of a

traffic light pole as a legislative or quasi-legislative act is

the latest absurdity generated by the misapplication of the

governmental immunity doctrine.8 See Scott, 262 Wis. 2d 127, ¶82

8
Because it conflates legislative and quasi-legislative
decision-making with execution of a construction project plan,
the majority mistakenly concludes that Pro Electric can be
immune from liability for severing the sewer lateral. Majority
op., ¶¶28-30. The majority reaches this conclusion based on
Allstate Insurance Co. v. Metropolitan Sewerage Commission of
Milwaukee County, 80 Wis. 2d 10, 258 N.W.2d 148 (1977), which
concluded that the Commission was immune from liability for
placement of a manhole: "Where, when and how to build sewer
systems are legislative determinations imposed upon a
governmental body. It is not for the court to be judge or jury
to 'second guess' them in these determinations nor to find they
are liable for negligence." Id. at 15-16 (footnote omitted).
The Allstate court's immunity analysis properly asked whether
governmental conduct was legislative or quasi-legislative in
nature. At the time, the court still seemed to recognize the
distinction between immunity for policy determinations pursuant
to lawmaking authority and liability for implementation of those
decisions. Compare Dusek v. Pierce Cty., 42 Wis. 2d 498, 506,
167 N.W.2d 246 (1969) ("[W]hether or not to place a stop sign, a
warning sign, or a yield sign at the approach to a county trunk
highway is a legislative decision that must be undertaken by the
county board and not by the courts."), with Chart v. Dvorak, 57
Wis. 2d 92, 100-01, 203 N.W.2d 673 (1973) ("[O]nce appellants
made the legislative or quasi-legislative decision to place the
highway warning sign, they had a duty to place it and maintain
it without negligence." (emphasis added)).

Even if immunity's tendrils reached all the way to DOT's
planning decisions here, immunity would not extend to negligent
implementation of DOT's plan. The majority grants Pro Electric
immunity because the majority concludes there is no evidence Pro
Electric deviated from DOT's plan. See majority op., ¶30. A
lack of proof of negligence may absolve Pro Electric of
liability, but whether Pro Electric acted negligently presents a
different question than whether Pro Electric was immune from
(continued)
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(Prosser, J., dissenting) ("In determining today that a school

counselor is immune from liability for advising a student that

[a course was] an acceptable NCAA-approved course when the

counselor had access to a . . . document listing [the course] as

[not acceptable], this court has . . . [reached a] result [that]

is profoundly wrong and unjust."). This court should not

persist with an interpretation of Wis. Stat. § 893.80(4) that

artificially prohibits redress for wrongs committed by the

government. The government can do wrong, and when it does, it

should be held accountable to those damaged by its

transgressions.

II

¶66 The majority opinion appropriately applies the two-

part framework for analyzing government contractor immunity,

determining first whether the contractor was an agent and second

whether the action was one for which immunity is available

Majority op., ¶¶19-20 (citing Showers, 350 Wis. 2d 509). Using

this framework, I agree with the majority's determination that
"Pro Electric does not enjoy governmental immunity for a failure

to inspect the excavation to look for the severed sewer lateral

and to refrain from backfilling until repairs were made."

Majority op., ¶35. A contractor's alleged negligent failure to

inspect an excavation before backfilling clearly bears no

liability. Here, the manner in which Pro Electric augured the
hole and severed the sewer lateral bears no resemblance to
lawmaking or adjudication; consequently, Pro Electric cannot be
immune from liability for any negligence in performing these
services.

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resemblance to lawmaking or adjudication and therefore does not

constitute a "legislative, quasi-legislative, judicial or quasi-

judicial function[]" for immunity purposes under Wis. Stat.

§ 893.80(4).

¶67 I disagree, however, with the majority's conclusion

that Petitioners have "not identified any material fact

supporting a reasonable inference that Pro Electric failed to

comply with its duties under Wis. Stat. § 182.0175(2)(am)."

Majority op., ¶43. A court may grant a motion for summary

judgment "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Wis. Stat. § 802.08(2). "'Any

reasonable doubt as to the existence of a genuine issue of

material fact must be resolved against the moving party' for

summary judgment." Schmidt v. N. States Power Co., 2007 WI 136,

¶24, 305 Wis. 2d 538, 742 N.W.2d 294 (quoting Heck & Paetow
Claim Serv., Inc. v. Heck, 93 Wis. 2d 349, 356, 286 N.W.2d 831

(1980)).

¶68 Wisconsin Stat. § 182.0175(2)(am) establishes several

duties for excavators, two of which are relevant here:9

(am) Excavation notice. An excavator shall do all
of the following:

. . . .

9
"Excavator" is a defined term under Wis. Stat.
§ 182.0175(1)(bm).

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6. Before backfilling, inspect all transmission
facilities exposed during excavation to ascertain if
the transmission facilities have been or may have been
struck, damaged, dislocated or disrupted.

6m. Refrain from backfilling an excavation until an
inspection is conducted and any necessary repairs have
been made by the owner of the transmission facility.
"Transmission facilities" is a defined term in the statute and

includes all underground pipes, as well as "drainage and water

facilities and sewer systems." § 182.0175(1)(c).

¶69 The majority identifies a subtle aspect of Wis. Stat.

§ 182.0175(2)(am)6: "[T]he statute does not require Pro

Electric to inspect its excavation; rather, it requires

inspection of transmission facilities exposed during the

excavation." Majority op., ¶42. Recognizing that subdivision 6

creates a duty to inspect exposed transmission facilities rather

than a duty to inspect the excavation itself properly focuses

interpretation of the subdivision on the word "exposed." To

"expose" something is "to make [it] visible." American

Heritage, supra, at 625; see also Webster's Third New

International Dictionary 802 (1986) [hereinafter Webster's]
(defining "expose" as "lay open to view: lay bare: make known:

set forth"). Here, Pro Electric did not see or know about the

severed clay sewer lateral because it blended in with the

surrounding soil, and after-the-fact pictures of the trenched

lateral do not establish that it was exposed during excavation.

¶70 But our analysis does not end there. Wisconsin Stat.

§ 182.0175(2)(am)6m also imposes a duty to refrain from

backfilling "until an inspection is conducted." One reasonable
reading of the statute might be to assume the inspection
15
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mentioned in subdivision 6m is the same "inspect[ion of] all

transmission facilities exposed during excavation" required by

subdivision 6. The scope-of-subparts canon of statutory

construction, however, counsels against reading such independent

subdivisions together in that manner. See Antonin Scalia &

Bryan A. Garner, Reading Law 156-60 (2012) ("Material within an

indented subpart relates only to that subpart; material

contained in unindented text relates to all the following or

preceding indented subparts."). Subdivision 6m is not a subpart

of subdivision 6 and speaks in much broader terms. To "inspect"

something is "to view closely and critically (as in order to

ascertain quality or state, detect errors, or otherwise

appraise)" or to "examine with care." Webster's, supra, 1170;

see also American Heritage, supra, at 908 ("To examine carefully

and critically, especially for flaws."). A duty to inspect

suggests excavators must conduct a careful, critical examination

of the excavation overall to determine whether it created any

problems, not limited to exposed transmission facilities, which
in this case were obliterated and therefore incapable of

exposure.

¶71 Considering the evidence in a light most favorable to

Petitioners, I conclude Pro Electric has not demonstrated it is

entitled to judgment as a matter of law. The record establishes

that people were "looking at" the hole while auguring was

ongoing, that lighting would not have revealed the severed

lateral during auguring, and that dirt pushed into the sewer
lateral would have made it difficult to identify. Those facts

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do not demonstrate that Pro Electric conducted an inspection of

the completed excavation; accordingly, whether an inspection

occurred before backfilling presents a genuine issue of material

fact.

III

¶72 When abrogating common law doctrine in Holytz, this

court showed appropriate attention to its constitutional role by

recognizing the legislature's ultimate authority to decide the

scope of immunity as a matter of policy. The legislature

responded by enacting a statute that now allows immunity only

"for acts done in the exercise of legislative, quasi-

legislative, judicial or quasi-judicial functions." By

continuing to immunize acts bearing no resemblance to

legislative or judicial functions, this court once again

abandons the plain language of the governmental immunity statute

in favor of an archaic judicial doctrine rooted in shielding the

government from answering for its tortious wrongs against the

people. Because this artificial judicial invention strays from
the legislature's formulation, and because Pro Electric has not

met the standard for summary judgment, I would reverse the

decision of the court of appeals; therefore, I respectfully

dissent.

¶73 I am authorized to state that Justice DANIEL KELLY

joins this dissent.

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