Pries v. McMillon

SHIRLEY S. ABRAHAMSON, C.J.

¶ 43. {concurring). I agree with the majority opinion that Raymond McMillon is not immune from liability. Although I go along with the majority's ministerial duty analysis, I write separately because I conclude that the known *65danger analysis upon which the Court of Appeals resolved this case provides a simpler, and to me, a more persuasive means of resolving this case.1

¶ 44. The known danger reasoning in our precedent establishes that 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," a ministerial duty arises.2

¶ 45. The seminal case explaining the known danger rationale is Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), in which the court concluded that a park trail's obvious drop-offs and location within a foot of the edge of a high bluff were sufficiently dangerous to give rise to the park manager's "absolute, certain, and imperative duty" to close the trail, place warning signs, notify his superiors, or otherwise ensure adequate protection of the public who had been invited to use the park. 80 Wis. 2d at 532, 539, 541.3 The court held that the manager was liable for breach of that absolute duty, *66saying "There comes a time when 'the buck stops,'" and set aside immunity where the manager "knew the terrain . . . was dangerous particularly at night; . . . was in a position as park manager to do something about it; . . . [and] failed to do anything about it." 80 Wis. 2d at 541.4

¶ 46. The Cords analysis is fully applicable in the present case. The pieces of solid steel horse stalls weigh 200 pounds, are typically handled by no less than four workers, and need to be constantly supported during disassembly. Disassembly here is an "accident waiting to happen"5 and gives rise to an absolute duty to take steps to prevent the steel horse stall pieces from falling. McMillon knew the unchained steel stall pieces were dangerous; he 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.6 In *67my view, he thereby breached a duty that was "absolute, certain, and imperative" following the analysis of the known danger cases. Accordingly, an immunity defense is not available to him.

¶ 47. For the foregoing reasons, I concur.

The circuit court, like the majority, concluded that the "ministerial duty" analysis applied.

C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988).

See also Domino v. Walworth County, 118 Wis. 2d 488, 490-91, 347 N.W.2d 917 (Ct. App. 1984) (holding the known danger analysis from Cords applied where the sherriffs dispatcher knew of a downed tree across a road at night but failed to reassign a squad car to the scene after the first response was diverted); Voss ex rel. Harrison v. Elkhorn Area Sch. Dist., 2006 WI App 234, ¶¶ 19-22, 297 Wis. 2d 389, 724 N.W.2d 420 (holding that "the known and present danger exception applies" where a teacher had students wear "fatal vision goggles" that distort vision and sense of balance in a classroom filled with metal desks created an immediate risk of injury; "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.").

The availability of several possible ways to fulfill an absolute duty arising from a known danger does not bring a defendant within the scope of governmental immunity. See Domino v. Walworth County, 118 Wis. 2d 488, 491, 347 N.W.2d 917 (Ct. App. 1984) ("[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 and absolute that it falls within the concept of a ministerial duty.").

For a discussion of the known danger exception, see also Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶ 32-48, 253 Wis. 2d 323, 646 N.W.2d 314; id. at ¶¶ 53-60 (Bradley, J., dissenting).

See Voss, 297 Wis. 2d at 398.

The circuit court found that McMillon "was aware the chains were undone,... was aware that inmates were standing next to the stuck stall," and "knew that if the chains holding those back stalls to the wall had been removed, they could fall." Pries v. McMillon, 2008 WI App 167, ¶¶ 23-24, 314 Wis. 2d 706, 760 N.W.2d 174.