¶ 82. (dissenting). The issue before the court is whether Barry Fox, an individual employee of the state of Wisconsin, is immune from liability for an accident to an ABC, Inc. *667employee who was working at Camp Randall Stadium. I must dissent from the majority opinion because the majority ignores the plain language of the Wisconsin statutes and administrative code and instead improperly relies on OSHA provisions to create a ministerial duty where none exists.
¶ 83. As a result of the majority decision, a windfall recovery is potentially created for any non-state employee who can obtain both worker's compensation and a recovery against the state employee, while an injured state employee under the same circumstances would be limited to a worker's compensation recovery. The majority opinion also opens the door to allow any injured frequenter recovery against the state or a state employee. Until today, the state was treated by the legislature differently than a private employer in order to protect the public fisc. Accordingly, I respectfully dissent.
I. MINISTERIAL DUTY IMPOSED BY LAW
¶ 84. "Under the general rule as applied in Wisconsin, state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties." Kimps v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996) (citing Lister v. Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976)). For public officers, immunity is the rule and liability is the exception, unlike municipalities, where liability is the rule and immunity is the exception. Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 22, 253 Wis. 2d 323, 646 N.W.2d 314. Immunity for public officers and employees of the state "is based largely upon public policy considerations that spring from the interest in protecting the public purse and a preference *668for political rather than judicial redress for the actions of public officers." Id., ¶ 23 (setting forth a number of policy considerations).
¶ 85. This doctrine of immunity, however, is not without exceptions. Id., ¶ 24. 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." Id.
¶ 86. "The ministerial duty exception is not so much an exception as a recognition that immunity law distinguishes between discretionary and ministerial acts, immunizing the performance of the former but not the latter." Id., ¶ 25. "A ministerial duty is one that '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.'" Id. (citing Lister, 72 Wis. 2d at 301).
¶ 87. To assist in determining whether an act is discretionary or ministerial, this court has traditionally examined such things as a statute, the administrative code, or other materials that are unique to a specific case, such as job descriptions or policy manuals.
¶ 88. For example, in Lister, the court was asked to decide if the registrar's classification of students for tuition purposes was ministerial in nature. Id. at 300. The plaintiffs argued that when the registrar determines a student's residency status, which could entitle the student to lower tuition costs, the determination was ministerial. Id. The relevant statute provided in part,
*669(l)(a) Any adult student who has been a bona fide resident of the state for one year next preceding the beginning of any semester for which such student registers at the university ... shall while he continues a resident of the state be entitled to exemption from nonresident tuition....
(3) In determining bona fide residence, filing of state income tax returns in Wisconsin, eligibility for voting in this state, motor vehicle registration in Wisconsin, and employment in Wisconsin shall be considered. ...
Wis. Stat. § 36.16 (1969-70).
¶ 89. The court concluded that "[t]he statute did not prescribe the classification process with such certainty that nothing remained for the administrative officer's judgment and discretion." Lister, 72 Wis. 2d at 301. The court stated that "[i]t must be conceded that an officer charged with the administration and application of the standards set forth in [§] 36.16 [] could make mistakes in judgment which would result in an erroneous classification." Id. at 302. As a result, the court concluded that "the policy considerations underlying the immunity principle require that the officer be free from the threat of personal liability for damages resulting from mistakes of judgment." Id.
¶ 90. In Kimps, the plaintiff was injured at the University of Wisconsin-Stevens Point while moving a "volleyball standard." Kimps, 200 Wis. 2d at 6. As she was moving the "standard," "the metal base separated from the pole and fell onto her foot." Id. The plaintiff asserted that the safety director was liable because he breached a ministerial duty set forth in the safety director's job description. Id. at 14. The job description *670provided in relevant part: "Investigate all incidents and take action to correct the condition or procedure that caused the accident." Id. The plaintiff argued that because a maintenance worker was similarly injured two years earlier, the safety director should have personally tightened the set screws or directed someone to tighten the set screws in order to prevent another accident. Id. The court concluded that the safety director's job description did not create a ministerial duty because the " 'time, mode and occasion' for performing an investigation of the maintenance worker's accident and determination of the appropriate corrective action to be taken remained totally within [the safety director's] judgment and discretion." Id. at 15.
¶ 91. In Lodl, the plaintiff asserted that the police officer had a ministerial duty to manually control traffic at an intersection where traffic control lights were no longer working. Lodl, 253 Wis. 2d 323, ¶¶ 6-8, 27. This court concluded that the applicable statute and the police department's policy did not confer a ministerial duty on the police officer to manually direct traffic. Id., ¶¶ 27-28. The statute at issue did not direct the officer to perform manual traffic control in any specific situation, and the policy described manual traffic control procedures only if the officer decided to manually control traffic. Id. Neither the statute nor the policy eliminated the officer's discretion as to when or where to undertake manual traffic control. Id., ¶¶ 28-31.
¶ 92. In Noffke v. Bakke, a plaintiff asserted that cheerleading spirit rules established a ministerial duty that required the coach to provide a spotter and mats for a cheerleading stunt. 2009 WI 10, ¶ 45, 315 Wis. 2d 350, 760 N.W.2d 156. We concluded that the spirit rules were more appropriately characterized as "guidelines" and did not include mandatory language dictating a *671specific action. Id., ¶ 45-47. For example, the spirit rules provided in part that "[a]ll spirit activities should be held in a location suitable for spirit activities with the use of mats, free of obstructions, and away from excessive noise or distractions." Id., ¶ 46. As a result, we determined that the spirit rules did not set forth a ministerial duty, but rather, they provided the cheer-leading coach with significant discretion. Id., ¶ 51.
¶ 93. In the case at hand, the majority concludes that a ministerial duty imposed by law precludes immunity in this case. I, however, disagree that Fox has a ministerial duty imposed by law under the facts of this case. The Umanskys and the majority focus their attention on the federal OSHA regulations that have been incorporated into the Wisconsin Administrative Code. They argue that Fox individually had a ministerial duty to ensure that the platform's front side had a railing. A proper analysis, however, begins with a plain reading of Wis. Stat. § 101.055 and then the Wisconsin Administrative Code, rather than beginning with the language of the federal regulations.
A. Wisconsin statutes and administrative code
¶ 94. In order to determine if Fox had a ministerial duty in the case at hand, it is necessary to review the Wisconsin statutes as well as the administrative code, which has incorporated by reference a portion of the federal regulations.
¶ 95. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. This court begins statutory interpretation with the language of the *672statute. Id., ¶ 45. If the meaning of the statute is plain, we ordinarily stop the inquiry and give the language its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id.
¶ 96. Context and structure of a statute are important to the meaning of the statute. Id., ¶ 46. "Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. Moreover, the "[statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id. "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes — that is, from its context or the structure of the statute as a coherent whole." Id., ¶ 49. " 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Id., ¶ 46 (citation omitted). If statutory language is unambiguous, we do not need to consult extrinsic sources of interpretation. Id.
¶ 97. Wisconsin Stat. § 101.055 (2001-02)1 provides in relevant part:
(1) INTENT. It is the intent of this section to give employees of the state, of any agency and of any political subdivision of this state rights and protections relating to occupational safety and health equivalent to those granted to employees in the private sector under *673the occupational safety and health act of 1970 (5 USC 5108, 5314, 5315 and 7902; 15 USC 633 and 636; 18 USC 1114; 29 USC 553 and 651 to 678; 42 USC 3142-1 and 49 USC 1421).
(3) STANDARDS, (a) The department shall adopt, by administrative rule, standards to protect the safety and health of public employees. The standards shall provide protection at least equal to that provided to private sector employees under standards promulgated by the federal occupational safety and health administration ....
¶ 98. Pursuant to Wis. Stat. § 101.055, the Wisconsin Administrative Code, Ch. Comm 32, Public Employee Safety and Health, provides in relevant part:
Comm 32.001 Purpose. This chapter establishes minimum occupational safety and health standards for public employees.
Comm 32.002 Scope. The provisions of this chapter apply to all places of employment and public buildings of a public employer.
Comm 32.01 Definitions....
(5) "Public employee" or "employee", as defined in s. 101.055(2)(b), Stats., means any employee of the state, of any state agency or of any political subdivision of the state.
*674Comm 32.15 OSHA Safety and health standards. Except as provided in s. Comm 32.16 and subch. IV¡ all places of employment and public buildings of a public employer shall comply with the federal Occupational Safety and Health Administration (OSHA) requirements adopted under s. Comm 32.50.
¶ 99. Wisconsin Admin. Code § Comm 32.50 incorporates by reference 29 C.F.R. Part 1910, which provides in relevant part at 29 C.F.R. § 1910.23(c)(1):
Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder....
¶ 100. When reading the text of the relevant Wisconsin statute and administrative code provision, it becomes clear that Fox did not have a ministerial duty to install a railing in this case for the following four reasons.
¶ 101. First, both Wis. Stat. § 101.055 and Wis. Admin. Code § Comm 32.001 plainly state that the standards adopted pursuant to these provisions are meant to protect the safety and health of public employees. "Public employee or employee" "means any employee of the state, or any state agency or of any political subdivision of the state." Wis. Admin. Code § Comm 32.01(5). Thus, to the extent that a ministerial duty may arise out of these provisions, that ministerial duty is owed to public employees. Umansky, however, was a private employee of ABC, Inc. Because the relevant provisions address only a duty to public employees, any action Fox could have taken that would *675have benefitted Umansky was discretionary rather than ministerial.
¶ 102. Second, the legislature's decision to reference public employees only and thus limit the provision's applicability must be respected because the provisions could have been drafted more broadly. See C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶ 24 n.10, 310 Wis. 2d 456, 750 N.W.2d 900 (stating that courts must presume that the legislature says what it means in a statute; the legislature's omissions must be respected; and it is generally not acceptable for courts to insert words into the statute). If the legislature meant for this statute to apply to more than just public employees, it could have included other verbiage, such as the word "frequenters." For example, Wis. Stat. § 101.11(1), Employer's duty to furnish safe employment and place, provides that "[e]very employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards . . . (Emphasis added.) In contrast, the legislature used no such language to expand coverage beyond public employees in the provisions now at issue. The majority opinion today, however, makes the state a deep pocket for any frequenter of a state building despite the fact that the term "frequenter" is absent from the relevant statutes and codes.
¶ 103. Third, unlike in Lister, Kimps, Lodl, and Noffke where the controlling documents contained no restrictions as to whom a ministerial duty could be owed, the statute and code in this case do contain a restriction as to whom a ministerial duty may be owed — a public employee. We must respect the legislature's decision. When the legislature enacted *676protective provisions, it limited that protection to public employees. This, however, does not provide a public employee with more protection than a private employee because 29 C.F.R. §§ 1910.2 and 1910.23 on their face protect private employees. Therefore, private employees are not without protection; they are protected by the OSHA provisions and the duty that their employer owes them.
¶ 104. Fourth, the foregoing interpretation is consistent with the principle that an administrative rule may not be read so as to provide protection broader than that contemplated by its authorizing statute. Josam Mfg. Co. v. State Bd. of Health, 26 Wis. 2d 587, 600-01, 133 N.W.2d 301 (1965). The authorizing statute, Wis. Stat. § 101.055, clearly sets forth that the protections belong specifically to public employees. If we conclude that the provisions at issue here could establish that Fox had a ministerial duty to Umansky, we would be reading the provisions well beyond the stated purpose of protecting public employees.
¶ 105. While I conclude there is no ministerial duty in this case, I further note that the majority does not completely address Fox's argument with regard to whether public employees worked on the platform in question. Majority op., ¶ 22 & n.16. Though it is true that Fox argues that Umansky needed to prove that a public employee was working on the platform at the time Umansky fell, an argument which the majority does address, id., Fox argues in the alternative that it was at least necessary to show that public employees in the course of their employment had worked on the platform in question at some point in time. If no public employees ever worked on the platform, then it would not have been a regulated "platform" under 29 C.F.R. § 1910.21(a)(4) from the state's perspective, and Fox *677could have been under no obligation to have a railing in place. The court of appeals discussed this argument as follows, and expressly left the question open on remand for Fox to present evidence:
Fox asserts that the regulation did not apply because there is no evidence this platform was ever used by a public employee as a workspace.... Fox points out that the definition of "platform" in 29 C.F.R. § 1910.21(a)(4) is "A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment." As we understand Fox's position, because the purpose of Wis. Admin. Code ch. Comm 32 is to establish "minimum occupational safety and health standards for public employes," Wis. Admin. Code § Comm 32.001 (Mar. 1999), 29 C.F.R. § 1910.23(c)(1) does not apply to the platform from which Umansky fell unless it was the work space of a public employee. Apparently in Fox's view, ABC Inc. (and perhaps other commercial stations as well) was responsible for complying with the federal regulation regarding this particular platform and the University had no obligation to do so under Wis. Admin. Code ch. Comm 32....
. . . [T]he factual record is not fully developed, as it likely would have been had Fox raised this argument in the circuit court. That is, while the evidence at present indicates no state employees used this platform, we do not know what the evidence would show had there been further exploration of the use of the platform....
Although we apply the waiver rule on this appeal, nothing in our opinion prevents the circuit court from permitting Fox to raise this argument on remand to the circuit court. So as not to suggest we are resolving this issue on this appeal, we phrase our rulings in the following paragraph with italicized caveats.
Based on the undisputed facts and the developed arguments presented to us, we conclude: (1) Fox was *678responsible for compliance with state and federal safety regulations and this job responsibility is sufficient to impose on him the duty to comply with 29 C.F.R. § 1910.23(c)(1) insofar as the regulation applies to his employer. (2) Given the height and structure of the platform (including the upper and lower platforms) and at least one open side, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the upper platform, if Fox's employer was required by state law to comply with this regulation as to this platform.
Umansky v. ABC Ins. Co., 2008 WI App 101, ¶¶ 63-66, 313 Wis. 2d 445, 756 N.W.2d 601 (footnotes omitted; emphasis in original). The majority makes short shrift of this argument by conflating it with Fox's argument that a public employee needed to be on the platform at the same time Umansky fell, majority op., ¶ 22 & n.16; however, it is an analytically distinct argument and necessitates that this factual question be left open on remand.
¶ 106. Under 29 C.F.R. § 1910.21(a)(4), a regulated "platform" is defined as "[a] working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment." Wisconsin Admin. Code Ch. Comm 32 establishes "minimum occupational safety and health standards for public employees." Wis. Admin. Code § Comm 32.001 (emphasis added). If no public employees ever worked on the platform in question, then it was not a regulated "platform" under § 1910.21(a)(4) from the perspective of the state administrative code, and therefore Fox was under no obligation to maintain a railing. Were that found to be the case, the only employer who would have had an obligation to maintain a railing would be ABC, Inc., *679Umansky's actual employer — the only employer from whose perspective this platform was in fact a "platform" under OSHA.
¶ 107. However, as the court of appeals noted, "the factual record is not fully developed" with respect to this issue. Umansky, 313 Wis. 2d 445, ¶ 64. At the very least, this court should follow the court of appeals' lead and leave this question open for further fact-finding on remand before concluding as a matter of law that Fox was required to maintain a railing on the platform in question. If no public employees ever worked on the platform, it was beyond the scope of Fox's obligations.
¶ 108. The problem with a contrary holding is obvious. The majority cannot seriously intend to suggest that the burden of maintaining a railing around every single architectural structure which might be used by third parties as a platform at Camp Randall Stadium should be placed on Fox. Certainly, there must be a limit on the scope of his duties, even under the majority's view. That limit is apparent from the language of Wis. Admin. Code § Comm 32.001, which requires state employers to conform to "minimum occupational safety and health standards for public employees" (emphasis added). Private employers are responsible for their employees' safety under OSHA. Contrary to the majority's conclusions, Fox should not be expected to be everybody's keeper.
¶ 109. The Umanskys and the majority argue that the ministerial nature of Fox's duty cannot depend on the status of the person who is injured by Fox's negligence. The Umanskys assert that such a distinction is contrary to the text of the .relevant provisions. Injury at a public place of employment, the Umanskys argue, is the determining factor in this case and, thus, the *680distinction between public and private employees is irrelevant under their theory. For the following three reasons, I disagree with the reliance on where the injury takes place and disregard for the employee's status as a public or private employee.
¶ 110. First, this argument ignores the full text of the Wisconsin Administrative Code. While Wis. Admin. Code § Comm 32.002 states that "[t]he provisions of this chapter apply to all places of employment and public buildings of a public employer," the administrative code also states in § Comm 32.001 that "[t]his chapter establishes minimum occupational safety and health standards for public employees." As a result, when read together, these provisions protect public employees in public places. The Umanskys1 argument ignores the text of the relevant administrative code provisions.
¶ 111. Second, such an interpretation does not, as the Umanskys argue, lead to more protection for public employees than for private employees. Both private and public employees are equally protected when working on the platform at issue in this case. On their face, the OSHA regulations apply to protect a private employee. See 29 C.F.R. §§ 1910.1, 1910.2, 1910.5. In this case, ABC, Inc. was fined $7,000 for failing to ensure that a railing guarded the front side of this platform.2 The administrative code protects public employees through the incorporation by reference of OSHA provisions. See Wis. Admin. Code §§ Comm 32.15 and 32.50. Both the private employee and the public employee are protected under Wisconsin's Worker's Compensation provisions. *681See generally Wis. Stat. ch. 102; see Wis. Stat. § 102.03(2) (stating that the right to recovery under this chapter is "the exclusive remedy against the employer").
¶ 112. Third, it is not that the ABC employee is without recourse, but rather, the proper recourse is not against Fox individually. A private employee has recourse against his employer. Under the Umanskys' logic, Umansky, unlike a state employee, is entitled to a windfall. Unlike a state employee, the ABC employee can obtain one recovery against his employer and one recovery against a public employee. However, a public employee would be limited to just one recovery. Wis. Stat. § 102.04(1) (The state is subject to worker's compensation.).
¶ 113. I conclude that a reading of the relevant authorities consistent with their plain language provides that Fox did not have a ministerial duty to install a railing for the benefit of Umansky. Accordingly, I would hold that Fox did not violate any ministerial duty imposed by law.
B. OSHA
¶ 114. The majority's use of the OSHA provisions to create a ministerial duty is improper. The Umanskys are suing Fox, an employee of the state, rather than Fox's employer. The reasons for this are obvious. Were the Umanskys to sue the state directly, the state would be shielded from liability under the doctrine of sovereign immunity. German v. DOT, 2000 WI 62, ¶ 17, 235 Wis. 2d 576, 612 N.W.2d 50 ("It is axiomatic that the state cannot be sued without the express consent of the legislature.") (citing Lister, 72 Wis. 2d at 291; Chicago, M. & St. P. R. Co. v. State, 53 Wis. 509, 512-13, 10 N.W. *682560 (1881); Bahr v. State Inv. Bd., 186 Wis. 2d 379, 521 N.W.2d 152 (Ct. App. 1994)).
¶ 115. It is also telling that the Umanskys have gone out of their way to avoid having the claim characterized as being brought under Wisconsin's Safe Place Statute, despite the fact that many of their allegations, at first glance, would seem to state the type of claim that should be brought under that statute. See Wis. Stat. § 101.11 (requiring every employer to "furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters"). The majority opinion follows the Umanskys' lead. Majority op., ¶ 26.
¶ 116. The reasons for the majority opinion's avoidance of the safe place statute are obvious. First, the duty imposed under the safe place statute is discretionary and cannot form the basis for a ministerial duty. Spencer v. County of Brown, 215 Wis. 2d 641, 651, 573 N.W.2d 222 (Ct. App. 1997). Therefore, Fox, who is a state employee, is shielded from liability for a violation of the safe place statute by public officer immunity, which precludes liability against state employees for discretionary acts negligently undertaken. Id.
¶ 117. Second, the duty imposed by the safe place statute is a duty imposed on the employer or owner of the facility in question, not the employees. Employees cannot be sued for a violation of the safe place statute, nor can the duty imposed under that statute be delegated by the employer or owner to the employees in a manner allowing the employer or owner to avoid liabil*683ity. Pitrowski v. Taylor, 55 Wis. 2d 615, 624, 201 N.W.2d 52 (1972) ("[A] safe-place action can be brought only against an employer corporation and not against an employee of the corporation.... [A]s to the safe-place statute,'... it is the employer who is liable, rather than an agent of the employer....'" (quoting Wasley v. Kosmatka, 50 Wis. 2d 738, 744, 184 N.W.2d 821 (1971)); see also Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 130, 301 N.W.2d 201 (1981) ("It is, of course, clear that the duty of an owner or employer under the safe place statute is nondelegable."). Accordingly, even if the safe place statute imposed a ministerial duty, which it does not, Fox, an employee, could not be sued for a violation of its provisions. See Pitrowski, 55 Wis. 2d at 624.
¶ 118. Although Fox cannot be sued for a violation of the safe place statute, significant contrasts can be drawn between the safe place statute and the OSHA regulations the majority uses to manufacture a ministerial duty for Fox.
¶ 119. First, although the duty imposed by OSHA regulations is a duty imposed not just on employers, but on employees as well, 29 U.S.C.A. § 654(b), sanctions for noncompliance with OSHA regulations by either an employer or employee rest solely on the shoulders of the employer; employees cannot be sanctioned for OSHA violations. See United States v. Doig, 950 F.2d 411, 413 (7th Cir. 1991) (concluding that, despite § 654(b)'s directive, OSHA does not permit sanctioning of employees for their own violations of OSHA; only employers can be sanctioned); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553 (3d Cir. 1976) (same); see also Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 (6th Cir. 1985) ("OSHA regulations pertain only to employers' conduct.") (citing 29 U.S.C. § 654; McKinnon v. Skil *684Corp., 638 F.2d 270, 275 (1st Cir. 1981)). As a result, the duty to comply with OSHA regulations is, in a manner of speaking, nondelegable, because employers cannot avoid sanctions for noncompliance by arguing that it was the employee's, not the employer's, responsibility to comply with the duty imposed.
¶ 120. Second, under 29 U.S.C.A. § 653(b)(4), violations of OSHA. cannot be used as a basis for expanding or diminishing common law civil liability; that is, OSHA does not create a private right of action that did not already exist at common law. Minichello, 756 F.2d at 29; see also Russell v. Bartley, 494 F.2d 334, 336 (6th Cir. 1974) ("[T]here is no legislative history or case law to support [the] proposition that OSHA created a private civil remedy and the clear language of [29 U.S.C.A.] § 653(b)(4). . . specifically evidences a congressional intention to the contrary").
¶ 121. Having set forth these principles, the flaw in the majority opinion's analysis becomes apparent. The majority is using OSHA regulations, which do not impose a sanctionable duty on employees, Doig, 950 F.2d at 413, and which do not create a private civil remedy, Russell, 494 F.2d at 335, to create a civil claim against an employee where there would not otherwise be a claim because it would be precluded by public officer immunity. That is, by using OSHA regulations as the basis for creating a ministerial duty, OSHA is being used to expand liability where it would not otherwise exist. This is directly contrary to one of OSHA's express congressional directives:
Nothing in this chapter shall be construed to ... enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to *685injuries, diseases or death of employees arising out of, or in the course of, employment.
29 U.S.C.A. § 653(b)(4).
¶ 122. The majority opinion is improperly using OSHA to create a new civil claim. Although one could use OSHA regulations as evidence that the duty to exercise ordinary care has been breached, see, e.g., Elliott v. S.D. Warren Co., 134 F.3d 1, 5 (1st Cir. 1998), the majority opinion goes further, using OSHA regulations to establish a ministerial duty for Fox, a state employee. The problem with this is demonstrated by the following discussion.
¶ 123. The distinction between the duty of ordinary care and a ministerial duty is critical to understand. A ministerial duty requires something more than the exercise of ordinary care. See Kimps, 200 Wis. 2d at 11 ("Just because a jury can find that certain conduct was negligent does not transform that conduct into a breach of a ministerial duty."); id. at 12 n.8 ("The existence of a duty of care to another does not necessarily imply that the duty was ministerial."). Accordingly, when public officer immunity is asserted as a defense, and a ministerial duty is asserted as an exception to that defense, negligence is assumed. Noffke, 315 Wis. 2d 350, ¶ 57 ("The immunity defense assumes negligence." (citing Lodl, 253 Wis. 2d 323, ¶ 17)). Therefore, if it can be shown that Fox had a ministerial duty that he failed to perform, which the majority concludes is presented here, the sole question will be whether Fox's failure to perform that ministerial duty was a cause of Umansky's injuries. Id.
¶ 124. In creating a ministerial duty for Fox based on OSHA regulations, the majority eviscerates the express directive of 29 U.S.C.A. § 653(b)(4). Stated *686otherwise, the majority uses OSHA regulations to create a cause of action where no cause of action would otherwise exist. Furthermore, this cause of action will now be even easier to prove than ordinary negligence.
¶ 125. The effect of the majority's analysis is not just to disregard 29 U.S.C.A. § 653(b)(4), however. By giving the Umanskys a cause of action on these facts and based on the allegations they have set forth, the majority is permitting the Umanskys to pursue what is essentially an action under the safe place statute, while allowing them to avoid the inconvenient case law stating that (1) the duty imposed by the safe place statute is discretionary, not ministerial, and therefore cannot create an exception to public officer immunity, Spencer, 215 Wis. 2d at 651; and (2) only an employer or owner can be sued for a violation of the safe place statute, Pitrowski, 55 Wis. 2d at 624; Wasley, 50 Wis. 2d at 744. The majority has allowed the Umanskys' creative lawyering to result in the manufacture of a new cause of action heretofore unheard of under Wisconsin law. It has abandoned all protections of the public fisc that governmental immunity is intended to provide.
II. CONCLUSION
¶ 126. This case requires a straightforward analysis of the Wisconsin statutes and administrative code in order to determine whether Fox was immune from liability arising out of an incident that occurred at Camp Randall Stadium. The majority disposes of this case by ignoring the plain language of the Wisconsin statutes and administrative code and instead improperly relies on OSHA provisions to create a ministerial duty where none exists. Because Fox had no ministerial duty in this case, there is no exception to the rule of *687immunity. As a result, I would conclude that Fox is immune from liability, and therefore, I respectfully dissent.
¶ 127. I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.
In fact, in 1999, it was ABC, Inc. and a camera technician for ABC, Inc. that requested the railing be removed because the camera technician stated he could not "pan the camera" when the railing was in place.