Scott v. Savers Property & Casualty Insurance

DAVID T. PROSSER, J.

¶ 75. (dissenting). Four decades have passed since this court issued its landmark decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962). Many have now forgotten the zeal with which a unanimous court attacked and belittled the doctrine of governmental immunity, quoting judicial and legal writers to the effect that governmental immunity was "ancient and fallacious," "archaic," "mistaken and unjust," "unsupported by any valid reason," "unjust, inequitable, and patently unfair," and an "absurdity." Id. at 33-35.

¶ 76. In a bold stroke, the court disavowed its past decisions and abrogated the principle of governmental immunity. It declared that "so far as governmental responsibility for torts is concerned, the rule is liability —the exception is immunity." Id. at 39.

¶ 77. The court stopped short of imposing "liability on a government body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." Id. at 40 (citing Hargrove v. Cocoa Beach, 96 So. 2d 130, 133 (Fla. 1957)). It recognized that government should not be liable for all harms to which it is connected, including honest errors in the exercise of discretion.

¶ 78. The Wisconsin legislature did not back away from reform. It promptly enacted a progressive tort claims act which followed the suggestions in the Holytz opinion. See ch. 198, Laws of 1963. The legislature *165specifically adopted the court's articulated exception to tort liability, which is now set out in Wis. Stat. § 893.80(4). This statute provides that "No suit may be brought against any ... [political] corporation, [governmental] subdivision or agency [thereof] ... 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." (Emphasis added.)

¶ 79. In logic, a government agency seeking to rely on this statute as a defense against the negligence of its employee should be required to establish that the employee's negligence occurred in the exercise of some legislative, quasi-legislative, judicial, or quasi-judicial function. Yet, this is not the focus of our current jurisprudence. Instead, when the government claims immunity for negligence from an alleged "discretionary" act, an injured party is forced to try to shoehorn the negligent employee's conduct into one of the four narrow exceptions to governmental immunity, such as "ministerial duty," that have been grafted onto § 893.80(4). Willow Creek Ranch v. Town of Shelby, 2000 WI 56, ¶ 26, 235 Wis. 2d 409, 611 N.W.2d 693; Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 90-97, 596 N.W.2d 417 (1999). In effect, this methodology has made the rule become immunity — the exception, liability.

¶ 80. The legislature is not responsible for the reenactment of governmental immunity. This court is responsible for several decades of backsliding that has produced today's opinion.

¶ 81. The majority opinion faithfully describes the salient facts of this case. Majority op., ¶¶ 8-9. The Stevens Point Area Senior High School submitted its curriculum to the NCAA Initial-Eligibility Clearing*166house and received back four reports listing, individually, both the approved and disapproved courses. These reports were dated April 4,1996, January 30,1997, July 31, 1997, and April 21, 1998. All four reports list BROADCAST COMMUNICATION as the first course under the heading NOT ACCEPTABLE.

¶ 82. In determining today that a school counselor is immune from liability for advising a student that BROADCAST COMMUNICATION is an acceptable NCAA-approved course when the counselor had access to a two-page, clearly organized NCAA document listing BROADCAST COMMUNICATION as NOT ACCEPTABLE, this court has come virtually full circle on governmental immunity. The result is profoundly wrong and unjust. It is also contrary to legislative intent. For the reasons indicated, I respectfully dissent.