Michael Engelhardt v. City of New Berlin

2019 WI 2

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP801
COMPLETE TITLE: Michael Engelhardt, Julieann Engelhardt,
individually and as the Personal Representative
of the Estate of Lily Engelhardt,
Plaintiffs-Respondents-Petitioners,
State of Wisconsin Department of Health
Services,
Involuntary-Plaintiff,
v.
City of New Berlin, ABC Insurance Company and
New Berlin Parks and Recreation Department,
Defendants-Appellants,
Wiberg Aquatic Center f/k/a Wirth Aquatic Center
and MNO Insurance Company,
Defendants.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 740, 905 N.W.2d 843
(2017 – unpublished)

OPINION FILED: January 4, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 24, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: J. Mac Davis

JUSTICES:
CONCURRED: DALLET, J. concurs, joined by R.G. BRADLEY, J. &
Kelly, J. (opinion filed)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-respondents-petitioners, there were
briefs filed by Christopher E. Rogers, Susan R. Tyndall, and
Habush Habush & Rottier S.C., Madison. There was an oral
argument by Christopher E. Rogers.
 For the defendants-appellants, there was a brief filed by
Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee.
There was an oral argument by Dustin T. Woehl.

An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by William C. Gleisner, III, and Law
Offices of William C. Gleisner, III, Brookfield.

An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities, Wisconsin Towns Association, and
Wisconsin Counties Association by Ted Waskowski, Kyle W.
Engelke, and Stafford Rosenbaum, LLP, Madison. There was an oral
argument by Kyle W. Engelke.

2
 2019 WI 2
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP801
(L.C. No. 2014CV1085)

STATE OF WISCONSIN : IN SUPREME COURT

Michael Engelhardt, Julieann Engelhardt,
individually and as the Personal Representative
of the Estate of Lily Engelhardt,

Plaintiffs-Respondents-Petitioners,

State of Wisconsin Department of Health
Services,

Involuntary-Plaintiff, FILED
v.
JAN 4, 2019
City of New Berlin, ABC Insurance Company and
New Berlin Parks and Recreation Department, Sheila T. Reiff
Clerk of Supreme Court

Defendants-Appellants,

Wiberg Aquatic Center f/k/a Wirth Aquatic
Center and MNO Insurance Company,

Defendants.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.
 No. 2016AP801

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an

unpublished decision of the court of appeals reversing the

circuit court's denial of summary judgment to the City of New

Berlin and the New Berlin Parks and Recreation Department

(together, "New Berlin").1

¶2 Eight-year-old Lily Engelhardt attended a field trip

to Brookfield's Wiberg Aquatic Center organized and run by the

New Berlin Parks and Recreation Department. Lily could not

swim. Lily's mother told Stuart Bell, the "Playground

Coordinator" in charge of the field trip, that Lily could not

swim. She questioned whether Lily should go on the trip at all.

Bell responded that Lily would be safe because her swimming

ability would be evaluated at the shallow end or zero depth area

of the pool. Tragically, Lily drowned while staff and other

children were changing in the locker rooms and proceeding to the

pool deck.

¶3 Lily's parents filed suit against New Berlin and

several other defendants, alleging negligence. New Berlin moved
for summary judgment, arguing that it was immune from suit

pursuant to the governmental immunity statute, Wis. Stat.

§ 893.80(4) (2011-12).2 The circuit court denied New Berlin's

summary judgment motion, and New Berlin moved for leave to

1
Engelhardt v. City of New Berlin, No. 2016AP801,
unpublished slip op. (Wis. Ct. App. Oct. 4, 2017).
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

2
 No. 2016AP801

appeal. The court of appeals granted New Berlin's motion and

reversed the circuit court's denial of summary judgment to New

Berlin.

¶4 We conclude that New Berlin is not entitled to the

defense of governmental immunity. The known danger exception to

governmental immunity applies in the instant case.

¶5 The known danger exception to governmental immunity,

set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672

(1977), applies when an obviously hazardous situation known to

the public officer or employee is of such force that a

ministerial duty to correct the situation is created.3 "[A]

dangerous situation will be held to give rise to a ministerial

duty only when 'there exists a known present danger of such

force that the time, mode and occasion for performance is

evident with such certainty that nothing remains for the

exercise of judgment and discretion."4

¶6 In the instant case, the danger to which Lily was

exposed at the Aquatic Center as an eight-year-old non-swimmer
was compelling and self-evident. The obvious dangers involved

3
Pries v. McMillon, 2010 WI 63, ¶23-24, 326 Wis. 2d 37, 784
N.W.2d 648; Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶32-40,
253 Wis. 2d 323, 646 N.W.2d 314; C.L. v. Olson, 143 Wis. 2d 701,
715, 422 N.W.2d 614 (1988); Voss ex rel. Harrison v. Elkhorn
Area Sch. Dist., 2006 WI App 234, ¶¶14-18, 297 Wis. 2d 389, 724
N.W.2d 420.
4
Lodl, 253 Wis. 2d 323, ¶38 (quoting C.L., 143 Wis. 2d at
717); see also Pries, 326 Wis. 2d 37, ¶24 (quoting C.L., 143
Wis. 2d at 715).

3
 No. 2016AP801

here resemble other obviously hazardous circumstances presented

in Wisconsin cases that applied the known danger exception.5

Drowning was a known danger. Under the circumstances present

here, Bell and other camp staff had a ministerial duty to give

Lily a swim test before allowing her near the pool. They did

not perform this ministerial duty.

¶7 Because New Berlin is not entitled to the defense of

governmental immunity, we reverse the decision of the court of

appeals and remand the cause to the circuit court for further

proceedings consistent with this opinion.

I

¶8 The instant case reaches this court on summary

judgment. We recite the facts in the light most favorable to

5
See, e.g., Cords v. Anderson, 80 Wis. 2d 525, 541, 259
N.W.2d 672 (1977) (park manager who knew that a trail was
particularly dangerous at night had ministerial duty to "either
place the signs warning the public of the dangerous conditions
existing on the upper trail or to advise his superiors" of the
hazardous condition); Voss, 297 Wis. 2d 389, ¶¶19-20 (teacher
who witnessed students stumbling and falling while wearing
"fatal vision goggles" in classroom full of desks and hard tile
floor had ministerial duty to "stop the activity the way it was
presently conceived"); Pries, 326 Wis. 2d 37, ¶¶43-47
(Abrahamson, C.J., concurring) (applying known danger exception
where supervisor, aware of the dangers associated with heavy
pieces of solid steel horse stalls that are unchained during the
process of disassembly, "was in a position as supervisor to do
something about the danger[,] and he failed to do anything about
it——worse, he jumped onto the stalls").

4
 No. 2016AP801

the Engelhardts, the parties opposing summary judgment, and draw

all reasonable inferences from those facts in their favor.6

¶9 On Monday, July 2, 2012, eight-year-old Lily

Engelhardt started her first day at a summer day camp organized

and run by the New Berlin Parks and Recreation Department. On

her second day of camp, the camp was scheduled to take a field

trip to Brookfield's Wiberg Aquatic Center.

¶10 Lily could not swim. Despite having taken three

sessions of beginner swimming lessons through the New Berlin

Parks and Recreation Department, Lily had not moved on to the

next level and was otherwise not making much progress. Other

than these three sessions of swimming lessons, Lily had very

little experience with swimming or being in or around pools.

¶11 The field trip to the Aquatic Center was optional.

When Lily's mother received a permission slip upon picking Lily

up after her first day, she questioned whether Lily should go on

the field trip given that Lily could not swim.

¶12 Lily's mother communicated her concerns to Stuart
Bell, the "Playground Coordinator" in charge of the day camp

program. She told Bell that Lily could not swim and asked

whether Lily should go on the field trip to the Aquatic Center.

Bell responded that it would be all right for Lily to attend the

6
Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2006
WI 67, ¶19, 291 Wis. 2d 259, 715 N.W.2d 620; Kraemer Bros., Inc.
v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857
(1979).

5
 No. 2016AP801

field trip because Lily would be restricted to the splash pad

area of the Aquatic Center.

¶13 In his deposition, Bell testified that New Berlin gave

swim tests to all new campers in order to test their swimming

ability. In fact, when Lily's mother told Bell that her

daughter could not swim, Bell told her that Lily would be safe

because her swimming ability would be evaluated at the pool.

However, Lily was not given a swim test, and Bell told no other

staff members that Lily could not swim.

¶14 The Aquatic Center was very busy the day of the field

trip. Upon arriving at the Aquatic Center, 77 campers were

divided by gender and went into the locker rooms to change.

Although new campers who had not been given a swim test were

instructed to find a leader before getting into the pool, they

were not directed to go to any specific location to find a

leader, and no leaders were stationed at the locker room door to

direct them.

¶15 At some point when most of the children were in the
water but before all staff members were out of the locker room,

lifeguards had already discovered a distressed Lily in the pool.

Despite the efforts of lifeguards and other medical personnel,

Lily died as a result of this incident.

¶16 Lily's parents sued New Berlin and several other

defendants, alleging negligence. New Berlin moved for summary

judgment, arguing that it was immune from suit pursuant to Wis.

Stat. § 893.80(4). The circuit court determined that an issue
of fact precluded New Berlin's immunity as a matter of law. New
6
 No. 2016AP801

Berlin moved for leave to appeal. The motion was granted by the

court of appeals.

¶17 The court of appeals reversed the circuit court,

concluding that New Berlin was immune from suit under Wis. Stat.

§ 893.80(4)7 and was entitled to summary judgment.

¶18 The court of appeals reasoned that none of the camp

documents highlighted by the Engelhardts (specifically, the

camp's information packet, staff guidelines, and staff handbook)

created ministerial duties and that the known danger exception

to governmental immunity did not apply.

II

¶19 The issue presented is whether New Berlin is entitled

to governmental immunity or whether an exception to governmental

immunity applies. "Whether an exception to immunity applies

requires us to determine the proper scope of the common law

doctrine of governmental immunity; that is a question of law

that we review de novo without deference to the circuit court or

7
Wisconsin 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.

7
 No. 2016AP801

court of appeals, but benefitting from the analysis of each

court."8

III

A

¶20 We begin our analysis with the text of Wis. Stat.

§ 893.80(4), the governmental immunity statute.9

¶21 In relevant part, Wis. Stat. § 893.80(4) immunizes

municipalities from liability arising out of "acts done in the

exercise of legislative, quasi-legislative, judicial or quasi-

judicial functions."

¶22 For over 40 years, this court has consistently

interpreted this particular statutory language to include any

acts that involve the exercise of discretion.10 Immunizing

government officials from liability arising out of their

discretionary acts "is based largely upon public policy

considerations that spring from the interest in protecting the

public purse and a preference for political rather than judicial

8
Pries, 326 Wis. 2d 37, ¶19 (citing Kimps v. Hill, 200
Wis. 2d 1, 8, 546 N.W.2d 151 (1996)); see also Lodl, 253
Wis. 2d 323, ¶17 (citing Kierstyn v. Racine Unified Sch. Dist.,
228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999)).
9
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
10
Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537
(1977); see also Willow Creek Ranch, L.L.C. v. Town of Shelby,
2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693 (concluding
that this particular statutory language is "synonymous with
discretionary acts").

8
 No. 2016AP801

redress for the actions of public officers."11 We highlighted

these important policy considerations in Lister v. Board of

Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976), as follows:

(1) The danger of influencing public officers in the
performance of their functions by the threat of
lawsuit; (2) the deterrent effect which the threat of
personal liability might have on those who are
considering entering public service; (3) the drain on
valuable time caused by such actions; (4) the
unfairness of subjecting officials to personal
liability for the acts of their subordinates; and (5)
the feeling that the ballot and removal procedures are
more appropriate methods of dealing with misconduct in
public office.12
¶23 Despite decades of legislative silence with regard to

this court's long-standing interpretation of the governmental

immunity statute, the Engelhardts invite this court to reverse

course on the past 40 years of Wisconsin jurisprudence

interpreting the governmental immunity statute.13 They urge the

court to adopt an interpretation of the statute that would have

the effect of exposing municipalities to liability in a far

greater number of circumstances.

11
Lodl, 253 Wis. 2d 323, ¶23 (citing Kierstyn, 228
Wis. 2d at 89-90).
12
See also Lodl, 253 Wis. 2d 323, ¶23 (quoting Lister v.
Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).
13
Our interpretation of the particular statutory language
at issue has stood undisturbed for over 40 years. The
distinction between discretionary and ministerial acts is over
60 years old. See Meyer v. Carman, 271 Wis. 329, 331-33, 73
N.W.2d 514 (1955).

9
 No. 2016AP801

¶24 We decline the Engelhardts' invitation. Decades of

jurisprudence cannot, and should not, be discarded casually.

"'This court follows the doctrine of stare decisis scrupulously

because of our abiding respect for the rule of law.'"14 The

doctrine of stare decisis is vital to "the evenhanded,

predictable, and consistent development of legal principles[.]"15

It "fosters reliance on judicial decisions[] and contributes to

the actual and perceived integrity of the judicial process."16

¶25 The doctrine of stare decisis is a particularly

important concern "where a court has authoritatively interpreted

a statute[.]"17 This is because "the legislature remains free to

alter its construction" if it believes we interpreted the

statute incorrectly or in a way that results in unintended or

undesirable consequences.18

¶26 The legislature has not overturned our interpretation

of the statute. Although it is not conclusive of legislative

14
Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶41,
281 Wis. 2d 300, 697 N.W.2d 417 (quoting Johnson Controls v.
Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257).
15
Payne v. Tennessee, 501 U.S. 808, 827 (1991); Romanshek,
281 Wis. 2d 300, ¶43; Johnson Controls, 264 Wis. 2d 60, ¶95.
16
Payne, 501 U.S. at 827; Romanshek, 281 Wis. 2d 300, ¶43;
Johnson Controls, 264 Wis. 2d 60, ¶95.
17
Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton v. S.C.
Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)).
18
Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton, 502 U.S.
at 202).

10
 No. 2016AP801

intent, we note that the legislature has on numerous occasions

revised and recreated Wis. Stat. § 893.80 without altering the

statutory language in response to this court's interpretation of

the statute.19 Indeed, the legislature repealed and recreated

the governmental immunity statute in 1977,20 but it did not see

fit to "correct" the court's understanding of governmental

immunity for discretionary acts as discussed in Lister, a case

decided just one year earlier.21

¶27 If we adopt the interpretation of Wis. Stat.

§ 893.80(4) urged by the Engelhardts, we would effectively pull

the rug out from under municipalities and other governmental

entities that have managed their affairs relying upon our

decades-old interpretation of the governmental immunity statute.

Such a result would be especially jarring to the public and

legal community given that just two years ago, we rejected the

specific interpretation of the statute that the Engelhardts urge

us to adopt today.22

19
Romanshek, 281 Wis. 2d 300, ¶52 ("Legislative inaction
following judicial construction of a statute, while not
conclusive, evinces legislative approval of the
interpretation.") (quoted source omitted).
20
See 1977 Wis. Act 285, § 11.
21
Lister, 72 Wis. 2d at 300-02.
22
See generally Melchert v. Pro Elec. Contractors, 2017 WI
30, ¶¶53-65, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J.,
dissenting).

11
 No. 2016AP801

¶28 It is unwise for a court to frequently call into

question existing and long-standing law. Doing so gives the

impression that the decision to overturn prior cases is

"undertaken merely because the composition of the court has

changed."23 "When existing law is open to revision in every

case, deciding cases becomes a mere exercise of judicial will,

with arbitrary and unpredictable results."24

B

¶29 Wisconsin Stat. § 893.80(4) provides no immunity

against liability associated with several categories of acts:

There is no immunity against liability associated
with: 1) the performance of ministerial duties
imposed by law; 2) known and compelling dangers that
give rise to ministerial duties on the part of public
officers or employees; 3) acts involving medical
discretion; and 4) acts that are malicious, willful
and intentional.25
¶30 These exceptions "represent[] a judicial balance

struck between 'the need of public officers to perform their

functions freely [and] the right of an aggrieved party to seek

redress.'"26
23
Johnson Controls, 264 Wis. 2d 60, ¶95.
24
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (internal quotation marks omitted) (quoting State v.
Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶29, 244
Wis. 2d 613, 628 N.W.2d 376); see also Romanshek, 281
Wis. 2d 300, ¶42; Johnson Controls, 264 Wis. 2d 60, ¶95.
25
Lodl, 253 Wis. 2d 323, ¶24 (citing Willow Creek Ranch,
235 Wis. 2d 409, ¶25).
26
C.L., 143 Wis. 2d at 710 (quoting Lister, 72 Wis. 2d at
300).

12
 No. 2016AP801

¶31 In the instant case, the Engelhardts invoke the

"ministerial duty" and "known danger" exceptions to governmental

immunity. These two exceptions are related——they "overlap to an

extent, inasmuch as they both require the identification of a

ministerial duty."27 Thus, a brief discussion of ministerial

duties is relevant to the application of both exceptions.

¶32 In Wisconsin, the test for determining whether a duty

is ministerial or discretionary was articulated in Meyer v.

Carman, 271 Wis. 2d 329, 332, 73 N.W.2d 514 (1955). We have

described the test for ministerial duties as follows:

A public officer's 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.28

27
Pries, 326 Wis. 2d 37, ¶24.
28
Lister, 72 Wis. 2d at 301; see also Pries, 326
Wis. 2d 37, ¶22.

The difference between a ministerial duty for purposes of
the "ministerial duty" exception to governmental immunity and a
ministerial duty for purposes of the "known danger" exception
has been described as follows:

[A] ministerial duty for purposes of the ministerial
duty exception is imposed by law or policy and
performance is required in a time, manner, and under
conditions where the officer does not exercise
discretion or judgment. In contrast, the ministerial
duty for purposes of the known danger exception arises
not from a written law or policy, but when an
obviously dangerous situation presents itself.

Pries, 326 Wis. 2d 37, ¶24.

13
 No. 2016AP801

¶33 We have explained that "circumstances may give rise to

such a certain duty, where . . . the nature of the danger is

compelling and known to the officer and is of such force that

the public officer has no discretion not to act."29

¶34 If either the "ministerial duty" exception or the

"known danger" exception applies, New Berlin is not entitled to

governmental immunity pursuant to Wis. Stat. § 893.80(4).

IV

¶35 Having established the proper legal framework, we now

apply that framework to the facts of the case. We conclude that

the known danger exception applies, and therefore, New Berlin is

not entitled to governmental immunity.

¶36 The known danger exception was first established by

this court in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672

(1977). The Cords case involved an accident where hikers,

legally accessing a park hiking trail at night, fell into a deep

gorge located on a part of the trail known by the park manager

to be particularly hazardous at night.30

29
C.L., 143 Wis. 2d at 715 (citing Domino v. Walworth Cty.,
118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984)); see also
Pries, 326 Wis. 2d 37, ¶24.
30
Cords, 80 Wis. 2d at 532-35.

In Cords, we described the topography of the trail in great
detail, and we do not repeat that description here. We note,
however, that the hazardous condition on the trail was a cutback
"where one misstep of a foot in a southerly direction would
cause an uninterrupted twenty foot slide down a sharp incline to
a direct dropoff of approximately eighty feet to the rock bottom
of the gorge." Cords, 80 Wis. 2d at 532.

14
 No. 2016AP801

¶37 The issue was whether the park manager was entitled to

immunity from the hikers' negligence suit.

¶38 We concluded that the park manager "had an absolute,

certain, or imperative duty to either place the signs warning

the public of the dangerous conditions existing on the upper

trail or to advise his superiors" of the hazardous conditions.31

¶39 We explained: "[The park manager] knew the terrain at

the glen was dangerous particularly at night; he was in a

position as park manager to do something about it; he failed to

do anything about it. He is liable for the breach of this

duty."32 Based on the facts presented in Cords, the court held

"that the duty to either place warning signs or advise superiors

of the conditions is . . . a duty so clear and so absolute that

it falls within the definition of a ministerial duty."33

¶40 The court of appeals applied the known danger

exception in Voss ex rel. Harrison v. Elkhorn Area School

District, 2006 WI App 234, 297 Wis. 2d 389, 724 N.W.2d 420. In

Voss, a teacher was instructing the class regarding the dangers
of driving after having consumed alcohol.34 The teacher had the

students wear "fatal vision goggles" which, when worn,

replicated a .10 blood alcohol concentration.35 The teacher
31
Id. at 541.
32
Id.
33
Id. at 542.
34
Voss, 297 Wis. 2d 389, ¶2.
35
Id.

15
 No. 2016AP801

arranged the desks in the classroom into three straight rows and

instructed three students wearing goggles to walk in between the

rows and go after a tennis ball thrown by the teacher.36 "[T]he

purpose of this particular exercise was to divert the student's

attention away from an otherwise simple task (walking down an

aisle of desks) and then show how the addition of another simple

task (going after a ball) makes the performance of both tasks

difficult when a person is under the influence of alcohol."37

¶41 The teacher was aware of the risks inherent in the

exercise. Although the potential for danger was obvious, the

teacher had also witnessed first-hand a student who bumped into

a desk and hit her knees against the floor while performing this

exercise.38 The incident giving rise to the lawsuit in Voss

occurred when a student caught her foot on the leg of a desk,

tripped, and hit her mouth on the top of the desk, causing

severe injuries to her teeth.39

¶42 The student's parents sued the school district

claiming negligence, and the school district argued that it was
entitled to governmental immunity pursuant to Wis. Stat.

§ 893.80(4).40

36
Id., ¶4.
37
Id., ¶5.
38
Id., ¶¶5-6.
39
Id., ¶¶6-9.
40
Id., ¶10.

16
 No. 2016AP801

¶43 The court of appeals determined that the school

district was not entitled to governmental immunity because the

known danger exception applied to the facts of the case.41

¶44 The court of appeals stated that, like the facts

presented in Cords, the facts presented in Voss represented an

"example[] of conditions that are nearly certain to cause injury

if not corrected, or in other words, are 'accidents waiting to

happen.'"42 The court of appeals explained:

The teacher knew of the perils of conducting the
exercise. The fatal vision goggles distort vision and
impair depth perception and sense of balance. The
teacher testified that students using the goggles
would lose their balance and slip or stumble while
doing the simple tasks he had them perform. In fact,
that was the entire purpose of the exercise——to show
students how difficult a simple task becomes when
alcohol is consumed. The teacher, however, chose to
conduct the exercise within the confines of a
classroom with a hard tile floor and in between aisles
of desks made of steel or aluminum and wood. Despite
these obvious hazards, the teacher took no precautions
to minimize the risk of injury.

. . . .

[T]he circumstances presented on the day of Voss'
injury admitted of only one response on behalf of the
teacher——stop the activity the way it was presently
conceived. Before Voss tripped and fell, some of the
male students had collided with each other and slid on
the floor and one other student had stumbled and
fallen to her knees. At that point, given the
physical layout of the room and the desks made of
steel or aluminum and wood, the manner in which the
students were stumbling and falling and the very
41
Id., ¶23.
42
Id., ¶19.

17
 No. 2016AP801

nature of the effects of the goggles themselves, it
should have been self-evident to the teacher that the
activity was hazardous and the only option was to put
an end to it. Accordingly, the known and present
danger exception to immunity applies.43
¶45 Though not decided on the basis of the known danger

exception, Pries v. McMillon, 2010 WI 63, 326 Wis. 2d 37, 784

N.W.2d 648, is also instructive.

¶46 In Pries, a group of workers were disassembling a

steel horse stall at the state fair.44 The stalls were made up

of four steel pieces: a front, back, and two sides.45 Each
piece measured approximately 10 feet high, 10 feet wide, and

four inches thick, and weighed approximately 200 pounds.46 When

assembled, the pieces were secured to each other with pins, and

the side and back pieces were secured to a wall with chains.47

¶47 At the time of the accident giving rise to the

lawsuit, a two-page written procedure was in effect setting

forth the proper method of disassembling horse stalls. The

supervisor who was in charge of the workers was aware of the

written instructions and that they stated, in relevant part:

"Always have someone holding up the piece that you are taking

down."48 The supervisor also knew that if the stalls were not
43
Id., ¶¶19-20.
44
Pries, 326 Wis. 2d 37, ¶4.
45
Id., ¶5.
46
Id.
47
Id.
48
Id., ¶9.

18
 No. 2016AP801

disassembled in an appropriate manner, they posed a risk of

injury.49 "[The supervisor] confirmed that he knew that if the

chains had been removed from the back stall pieces, the stalls

could fall and injure people standing nearby, particularly if

someone jumped up on the stalls."50

¶48 At one point while disassembling a stall, the

plaintiff and two other workers struggled to dislodge a stall

piece that was stuck to another piece.51 The supervisor, a full-

time employee of the Wisconsin State Fair Park, observed that

the chains responsible for securing the pieces had been removed

and commented that they should not have been.52 Despite that,

the supervisor jumped up on and straddled the stall next to the

piece that the workers were trying to free and started jerking

it up and down with his hands.53 Immediately after, there was a

devastating accident in which unchained stall pieces started

falling in a domino effect on the workers, striking all three of

them.54

¶49 The plaintiff sued the supervisor and State Fair Park
claiming negligence, and the supervisor argued that he was

49
Id., ¶11.
50
Id.
51
Id., ¶6.
52
Id.
53
Id.
54
Id.

19
 No. 2016AP801

entitled to governmental immunity pursuant to Wis. Stat.

§ 893.80(4).55

¶50 The Pries court held that the ministerial duty

exception to governmental immunity applied because the written

instructions "establish[ed] a ministerial duty that [the

supervisor] then violated when he jumped on and shook the stuck

stall knowing that 'the chains were undone' and knowing of the

instructions to '[a]lways have someone holding up the piece that

you are taking down.'"56

¶51 Although the parties in Pries briefed the application

of the known danger exception, the Pries court concluded that

"[b]ecause . . . the ministerial duty exception applies here, it

is not necessary for us to determine whether the known danger

exception also applies."57

¶52 Writing separately, one justice analyzed the known

danger exception and concluded that it applied to the facts of

the case:

The pieces of solid steel horse stalls weigh[ed] 200
pounds, [were] typically handled by no less than four
workers, and need[ed] to be constantly supported
during disassembly. Disassembly here [was] an
"accident waiting to happen" and gives rise to an
absolute duty to take steps to prevent the steel horse
stall pieces from falling. [The supervisor] knew the
unchained steel stall pieces were dangerous; he was in
a position as supervisor to do something about the
55
Id., ¶¶7, 14-16.
56
Id., ¶33.
57
Id., ¶41.

20
 No. 2016AP801

danger; and he failed to do anything about it——worse,
he jumped onto the stalls. In my view, he thereby
breached a duty that was "absolute, certain, and
imperative" following the analysis of the known danger
cases.58
¶53 Our review of Cords, Voss, and Pries leads us to the

conclusion that the known danger exception applies in the

instant case, and as a consequence, New Berlin is not entitled

to governmental immunity pursuant to Wis. Stat. § 893.80(4).

¶54 As the facts somberly illustrate, the danger

associated with bringing a young child who cannot swim to a busy
water park along with 76 other children is apparent. A young

child can quickly become distressed in deep water if he or she

cannot swim. Serious injury or death can occur very suddenly,

so it is paramount that precautions be taken to lessen those

risks. The nature of the danger here was immediate, compelling,

and self-evident. The danger was like hiking a trail with a

treacherous cutback along a steep gorge at night, attempting to

go after a tennis ball in a classroom full of desks while

wearing goggles that simulate a .10 BAC, and jumping on an

unchained 200-pound solid steel piece of a horse stall. The

danger was "of such force" that Bell had no discretion not to

act——the circumstances of the situation imposed upon him a

ministerial duty to test Lily's swimming ability before she got

into the water.59

58
Id., ¶46 (Abrahamson, C.J., concurring).
59
See C.L., 143 Wis. 2d at 715.

21
 No. 2016AP801

¶55 Bell was aware that Lily could not swim. Lily's

mother told him that Lily could not swim before the field trip

to the Aquatic Center, but Bell did nothing with this

information. He did not tell any other staff member that Lily

could not swim. He did nothing to ensure that Lily's swimming

ability would be tested before allowing her to be without direct

supervision. In short, Bell was aware of the danger, he was in

a position as the Playground Coordinator to do something about

it, and he failed to do anything about it.60

¶56 The parties spend a great deal of effort questioning

whether Bell and other camp staff had a ministerial duty to

directly supervise Lily and keep an eye on her at all times

before administering a swim test.

¶57 Properly framed, the issue in the instant case is

whether the circumstances of the situation created a ministerial

duty to test Lily's swimming ability before she got into the

pool. We conclude that they did. The Engelhardts' theory of

liability is that New Berlin's procedure for making sure that
new campers like Lily did not get into the water without first

having a swim test was ineffective and constitutes negligence.

New Berlin negligently performed (or, as a result of its

negligence, did not perform) its ministerial duty to administer

a swim test before Lily got into the water, and governmental

60
Cords, 80 Wis. 2d at 541.

22
 No. 2016AP801

immunity is not available "for the negligent performance of a

purely ministerial duty."61

¶58 Before ending, we note that there might have been a

number of ways in which New Berlin could have discharged its

ministerial duty to test Lily's swimming ability before she got

in the water. For example, new campers who had not yet taken a

swim test, including Lily, could have been grouped together by

gender and assigned a specific counselor to supervise them until

a swim test was performed. Alternatively, camp staff could have

been stationed at the exit of each locker room to fit each new

camper who had not yet taken a swim test, including Lily, with a

life jacket.

¶59 In Cords, we specifically enumerated two different

ways in which the park manager could have fulfilled the

ministerial duty arising out of the circumstances of that

particular case.62 That there were at least two possible ways

for the park manager to fulfill his ministerial duty did not

affect the resolution of the case. "[S]imply allowing for the
exercise of discretion does not suffice to bring the actions

under the blanket of immunity provided by sec. 893.80(4),

Stats., when the facts or the allegations reveal a duty so clear

61
Pries, 326 Wis. 2d 37, ¶22 (quoting Kimps, 200 Wis. 2d at
10).
62
See Cords, 80 Wis. 2d at 541 (concluding that the park
manager had a duty to either place signs warning the public of
the dangerous condition or advise his superiors of the dangerous
condition).

23
 No. 2016AP801

and absolute that it falls within the concept of a ministerial

duty."63

¶60 Similarly, that there may have been several possible

ways in which New Berlin could have fulfilled its ministerial

duty does not affect the resolution of the instant case.

Rather, it is sufficient for us to conclude that a ministerial

duty was created by the obviously hazardous circumstances

presented in the instant case, and as a result, New Berlin is

not entitled to governmental immunity from the Engelhardts'

negligence suit.

¶61 Accordingly, we conclude that the known danger

exception applies.

¶62 Because we conclude that the known danger exception to

governmental immunity applies, we need not and do not address

whether any of the written documents highlighted by the

Engelhardts created a ministerial duty for purposes of the

ministerial duty exception.

V
¶63 We conclude that the known danger exception applies in

the instant case, and as a result, New Berlin is not entitled to

governmental immunity pursuant to Wis. Stat. § 893.80(4).

63
C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d
at 491-93); see also Pries, 326 Wis. 2d 37, ¶45 n.4 (Abrahamson,
C.J., concurring) (quoting Domino, 118 Wis. 2d at 491).

24
 No. 2016AP801

¶64 Accordingly, we reverse the decision of the court of

appeals and remand the cause to the circuit court for further

proceedings consistent with this opinion.

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

reversed and the cause remanded.

25
 No. 2016AP801.rfd

¶65 REBECCA FRANK DALLET, J. (concurring). This case is

about whether the City of New Berlin and the New Berlin Parks

and Recreation Department (together, "New Berlin") are entitled

to immunity for the negligent acts of their camp staff which

resulted in the drowning of eight-year-old Lily. While the

majority opinion chooses to expand the narrow exception to

immunity carved out for a "known danger," I apply the plain

language set forth in Wis. Stat. § 893.80(4) to reach the same

result.

¶66 After adopting and applying governmental immunity in

Wisconsin for almost a century, in 1962 this court boldly

abrogated governmental immunity, declaring it "ancient and

fallacious," "archaic," and "unjust, inequitable, and patently

unfair." Holytz v. City of Milwaukee, 17 Wis. 2d 26, 33-35, 115

N.W.2d 618 (1962). In the landmark Holytz decision, this court

provided clarity in its statement that "henceforward, so far as

governmental responsibility for torts is concerned, the rule is

liability——the exception is immunity." Id. at 39. An exception
to immunity was carved out for a governmental body in the

exercise of its "legislative or judicial or quasi-legislative or

quasi-judicial functions." Id. at 40.

¶67 The following year, the legislature signaled its

approval of the Holytz decision with the enactment of Wis. Stat.

§ 893.80(4) which provides, in pertinent part, that "[n]o suit

may be brought against any . . . governmental subdivision or any

agency thereof . . . or against its officers, officials, agents
or employees for acts done in the exercise of legislative,

1
 No. 2016AP801.rfd

quasi-legislative, judicial, or quasi-judicial functions."1 The

language of Holytz and § 893.80(4) advance the original purpose

of governmental immunity, which is "to ensure that courts refuse

to pass judgment on policy decisions in the province of

coordinate branches of government, if such a policy decision,

consciously balancing risks and advantages, took place." Legue

v. City of Racine, 2014 WI 92, ¶40, 357 Wis. 2d 250, 849

N.W.2d 837.

¶68 Although governmental immunity was intended to be

reserved only for government agents or employees in the exercise

of their legislative, quasi-legislative, judicial, or quasi-

judicial functions, this court soon revived the pre-Holytz

distinction between "ministerial duties" and "discretionary

acts." See Cords v. Ehly, 62 Wis. 2d 31, 39-41, 214 N.W.2d 432

(1974). The exercise of a "discretionary act," subject to

immunity, is now synonymous with the exercise of a legislative,

quasi-legislative, judicial, and quasi-judicial function.

Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25,
235 Wis. 2d 409, 611 N.W.2d 693.

¶69 The artificial distinction between a ministerial duty

and discretionary act is impracticable and the resulting

decisions regarding the limits of governmental immunity have

been labeled "jurisprudential chaos." Scott v. Savers Property

1
The legislature enacted Wis. Stat. § 331.43, which later
became Wis. Stat. § 895.43, which is now Wis. Stat. § 893.80.
See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005
WI 8, ¶¶53-54 & n.13, 277 Wis. 2d 635, 691 N.W.2d 658. However,
the pertinent language of the statute has remained unchanged.

2
 No. 2016AP801.rfd

and Cas. Ins. Co., 2003 WI 60, ¶58, 262 Wis. 2d 127, 663

N.W.2d 715 (Abrahamson, C.J., concurring).2 Every act has a

discretionary component, such that "[i]t would be difficult to

conceive of any official act, no matter how directly

ministerial, that did not admit of some discretion in the manner

of its performance, even if it involved only the driving of a

nail." Id., ¶136 (Prosser, J., dissenting)(citations omitted).

¶70 Far from creating an "evenhanded, predictable, and

consistent development of legal principles,"3 the basis for

adherence to stare decisis, the determination that an act is

sufficiently discretionary so as to invoke immunity has appeared

almost random at times. See, e.g., Lodl v. Progressive N. Ins.

Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314 (holding that

although the statute at issue described the procedures the

officer should use in deciding to manually control traffic, the

2
While the majority opinion paints a picture of the
jurisprudence surrounding governmental immunity as being clear
and consistent, quite the contrary is true. See Bostco LLC
v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶135,
350 Wis. 2d 554, 835 N.W.2d 160 (Abrahamson, C.J., dissenting)
("Government immunity and liability is a complicated area of
jurisprudence with 50 years of Wisconsin case law precedent that
is not always easy to explain or justify."). Criticism of this
court's interpretation of Wis. Stat. § 893.80(4) is well
documented. See, e.g., Melchert v. Pro Electric Contractors,
2017 WI 30, ¶57, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley,
J., dissenting); see also Nicholas J. Bullard, Comment, Pushing
the Reset Button on Wisconsin's Governmental Immunity Doctrine,
2014 Wis. L. Rev. 801.
3
Payne v. Tennessee, 501 U.S. 808, 827 (1991); Progressive
N. Ins. Co. v. Romanshek, 2005 WI 67, ¶43, 281 Wis. 2d 300, 697
N.W.2d 417; Johnson Controls, Inc. v. Employers Ins. of Wausau,
2003 WI 108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257.

3
 No. 2016AP801.rfd

officer had discretion as to when to perform manual traffic

control); Scott, 262 Wis. 2d 127 (holding that a guidance

counselor's act of wrongly advising a student that his classes

were approved by the NCAA was discretionary, despite the

guidance counselor's receipt of clear and unambiguous forms

detailing approved and unapproved NCAA courses); Brown v.

Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96 (holding that

a firefighter was liable for running through a red stop signal

with his emergency lights activated, but without an audible

signal, because he violated a clear ministerial duty). The

result of this court's adoption of the pre-Holytz, pre-Wis.

Stat. § 893.80(4) language conditioning immunity on the

performance of discretionary acts has been a return to

governmental immunity as the rule and liability as the

exception.

I. THE NARROW KNOWN DANGER EXCEPTION DOES NOT APPLY

¶71 In this case, instead of analyzing whether New Berlin

camp staff had a ministerial duty by operation of law,
regulation, or governmental policy, the majority opinion

concludes that a ministerial duty arose by virtue of a "known

danger." To date, the known danger exception has been limited

to situations where "there exists a known present danger of such

force that the time, mode and occasion for performance is

evident with such certainty that nothing remains for the

exercise of judgment and discretion." C.L. v. Olson, 143

Wis. 2d 701, 717, 422 N.W.2d 614 (1988). "[T]he danger must be
compelling enough that a self-evident, particularized, and non-

4
 No. 2016AP801.rfd

discretionary municipal action is required. The focus is on the

specific act the public officer or official is alleged to have

negligently performed or omitted." Lodl, 253 Wis. 2d 323, ¶40.

The known danger exception has been applied in cases where the

potential of danger was high and the act required to prevent the

danger was clear. See, e.g., Voss ex rel. Harrison v. Elkhorn

Area School Dist., 2006 WI App 234, 297 Wis. 2d 389, 724

N.W.2d 420 (known danger exception applied where the hazards of

conducting an exercise within the confines of a classroom with a

hard tile floor and full of desks was apparent after other

students had previously collided with each other and fallen);

but cf. C.L., 143 Wis. 2d at 723 (known danger exception did not

apply because the potential danger of a parolee attacking a

victim did not rise to "such a degree of probability" that the

parole agent was deprived of the discretion regarding the manner

and level of parole supervision required).

¶72 In order to apply the known danger exception to the

case at hand, the majority opinion must necessarily expand the
exception to apply in situations where the danger was not

necessarily imminent and where there was discretion in how to

respond to the potential danger. The majority opinion concludes

that the known, compelling danger to Lily as a non-swimmer was

that she would drown and that the ministerial duty that arose

from the compelling danger was the administration of a swim

test. Majority op., ¶6. The known danger exception as

previously defined does not apply to the facts of this case.

5
 No. 2016AP801.rfd

¶73 First, the danger involved was not compelling and of

such force to give rise to a duty to act. Lily's presence at

the Wiberg Aquatic Center alone did not present a compelling

danger. Stuart Bell, the Playground Coordinator, had taken

campers to the Aquatic Center every Tuesday in the summer for

twelve years. During that time there were only two incidents in

which participants needed lifeguard assistance, with neither

incident resulting in injury. On the date of the incident,

Aquatic Center lifeguards were on duty, New Berlin camp staff

was present, and procedures were in place to allow non-swimmers

like Lily to safely enjoy the trip to the Aquatic Center. No

one saw Lily near the pool which could have created a compelling

danger. As noted by the court of appeals, "[a]ware that Lily

could not swim, if Bell had seen her walking right along the

edge of a deep area of the pool, this case would be akin to Voss

in that a situation would exist that required Bell to take

immediate action to stop an 'accident waiting to happen.'"

Engelhardt v. City of New Berlin, No. 2016AP801, unpublished
slip op., ¶33 (Wis. Ct. App. Oct. 4, 2017). While in hindsight

Lily's drowning can be said to be an "accident waiting to

happen," most cases alleging negligence fit that broad

definition.

¶74 Second, there was discretion as to the mode of

response. The majority opinion defines the immediate action

required to prevent the danger of Lily drowning as a swim test.

A swim test would have revealed that Lily could not swim, a fact
already known by Bell based on a conversation that he had with

6
 No. 2016AP801.rfd

Lily's mother the day before the incident. Lily's mother

testified at her deposition that after she informed Bell that

Lily could not swim, Bell's response was: "That's okay. She can

stay in the splash pad area." There were multiple ways that the

New Berlin camp staff could have kept Lily safe at the Aquatic

Center, such as keeping her at the shallow end of the pool or in

the splash pad area, alerting the lifeguards and other camp

staff of her inability to swim, having her wear a lifejacket

and, most importantly, supervising Lily. There was no one time,

mode or occasion for performance to alleviate the risk of Lily

drowning. The facts of this case did not present a known,

present and compelling danger and there was no "self-evident,

particularized, and nondiscretionary" response. Lodl, 253

Wis. 2d 323, ¶40. The known danger exception does not apply.

II. APPLICATION OF WIS. STAT. § 893.80(4)

¶75 Instead of expanding the known danger exception to fit

the facts of this case, allowing for broader future use of what

was intended to be a "narrow, judicially-created exception,"
this court should return to an interpretation that is tethered

to the text of Wis. Stat. § 893.80(4). Lodl, 253 Wis. 2d 323,

¶4. Returning to the text of § 893.80(4) would not only result

in coherency in our jurisprudence, it would also allow redress

7
 No. 2016AP801.rfd

to innocent victims for wrongs committed by the government.4 See

Melchert v. Pro Electric Contractors, 2017 WI 30, ¶¶63-65, 374

Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J., dissenting).

¶76 This court recently acknowledged that Wis. Stat.

§ 893.80(4) "is best honored by applying the legislature's

chosen plain language, rather than a judicial distillation

thereof." Showers Appraisals, LLC v. Musson Bros., 2013 WI 79,

¶35, 350 Wis. 2d 509, 835 N.W.2d 226. This court has been

called upon in the past to revisit § 893.80, yet we have been

reluctant to do so. See Melchert, 374 Wis. 2d 439, ¶¶52-65

(R.G. Bradley, J., dissenting); Bostco LLC v. Milwaukee Metro.

Sewerage Dist., 2013 WI 78, ¶136, 350 Wis. 2d 554, 835

N.W.2d 160 (Abrahamson, C.J., dissenting); Scott, 262 Wis. 2d

127, ¶33. The argument for revisiting the standard of

governmental immunity has been made and, through amicus briefs,

the court has heard from governmental entities and

representatives of tort victims. There is no time like the

present.
¶77 It is a fundamental principle of statutory

construction to presume that the legislature's intent is

expressed in the statutory language. State ex rel. Kalal v.

Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633,

4
As Justice N. Patrick Crooks noted in his concurrence in
Showers, the court "must do a better job of striking the balance
between too much immunity, which creates a heavy burden for
those who suffer harm from negligent government acts, and too
much liability, which creates a heavy burden for taxpayers."
Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶69, 350
Wis. 2d 509, 835 N.W.2d 226 (Crooks, J., concurring).

8
 No. 2016AP801.rfd

681 N.W.2d 110. Statutory interpretation begins with the

language of the statute. Id., ¶45. "Statutory language is

given its common, ordinary, and accepted meaning . . . ." Id.

Where the "meaning of the statute is plain, we ordinarily stop

the inquiry," and decline to consult extrinsic sources of

interpretation. Id. (citations omitted).

¶78 We look then to the common, ordinary and accepted

meaning of the words in Wis. Stat. § 893.80(4). The word

"legislative" means "[o]f, relating to, or involving lawmaking

or the power to enact laws; concerned with making laws."

Legislative, Black's Law Dictionary 1039 (10th ed. 2014). The

word "judicial" means "[o]f, relating to, or involving a

judgment." Judicial, Black's Law Dictionary 974. The word

"quasi" means "[s]eemingly but not actually; in some sense

or degree; resembling; nearly." Quasi, Black's Law Dictionary

1439. A "function" refers to an "[a]ctivity that is

appropriate to a particular business or profession." Function,

Black's Law Dictionary 787. Taken together, § 893.80(4)
provides governmental immunity only for agents or employees of a

governmental entity who are engaged in an act that, in some

sense or degree, resembles making laws or exercising judgments

related to government business.

¶79 Applying the plain language of Wis. Stat. § 893.80(4)

to the facts in this case, the New Berlin camp staff was

provided with "Staff Guidelines" which set forth the relevant

expectations of camp staff as follows: "[i]t is your
responsibility to supervise the kids at all times. For example,

9
 No. 2016AP801.rfd

during weekly swimming field trips you are to actually watch the

kids in the water by being in the water with them, or by sitting

on the edge of the pool." The guidelines further provided:

"[m]ake sure you know where the kids in your care are at all

times," and, underlined for emphasis, that "[u]nder no

circumstances should kids be left alone."

¶80 While the promulgation of these guidelines would

qualify as a "quasi-legislative" activity of New Berlin, and

thus New Berlin would receive immunity for legal challenges

involving the content of those guidelines, New Berlin is not

immune from suit for its camp staff negligently failing to

supervise Lily in accordance with the guidelines. The

guidelines provided clear instructions to camp staff to "know

where the kids in your care are at all times" and "[u]nder no

circumstances should kids be left alone." When the New Berlin

camp staff failed to supervise Lily as required by the

guidelines, they were not making any laws or exercising any

judgments related to government business. They cannot be said
to have acted in a quasi-legislative or quasi-judicial manner

and therefore governmental immunity does not apply.

III. CONCLUSION

¶81 In sum, although I agree with the majority opinion's

conclusion that New Berlin is not immune from suit for the

negligence of its camp staff, I cannot join the majority opinion

because it expands the known danger exception beyond the

"narrow, judicially-created exception" to confer immunity in
this case. Instead, I return to the plain language of Wis.

10
 No. 2016AP801.rfd

Stat. § 893.80(4) and conclude that New Berlin is liable for

Lily's drowning because the negligent supervision of Lily at the

Aquatic Center on July 3, 2012 was not an act done in the

exercise of a quasi-legislative or quasi-judicial function.

¶82 For the foregoing reasons, I concur.

¶83 I am authorized to state that Justices REBECCA GRASSL

BRADLEY and DANIEL KELLY join this concurrence.

11
 No. 2016AP801.rfd

1