Harold Umansky v. ABC Insurance Co.

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2009 WI 82 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP385 Harold Umansky, Individually and as Personal Representative of the Estate of Richard Umansky and Thelma Umansky, Plaintiffs-Appellants-CrossRespondents, v. ABC Insurance Company, Defendant, Barry Fox, Defendant-Respondent-Cross-AppellantPetitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2008 WI App 101 Reported at: 313 Wis. 2d 445, 756 N.W.2d 601 (Ct. App. 2008-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 17, 2009 February 4, 2009 Circuit Dane John C. Albert CROOKS, J., concurs (opinion filed). PROSSER, J., joins concurrence. PROSSER, J., concurs (opinion filed). CROOKS, J., joins concurrence. ZIEGLER, J., dissents (opinion filed). ROGGENSACK and GABLEMAN, JJ., join the dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-cross-appellant-petitioner the cause was argued by John J. Glinski, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the plaintiffs-appellants cross-appellants there was a brief filed by J. Michael Riley, Timothy M. Barber, and Axley Brynelson, LLP, Madison, and oral argument by J. Michael Riley. An amicus curiae brief was filed by James Olson and Lawton & Cates, SC, Madison, on behalf of the Wisconsin Association for Justice. 2 2009 WI 82 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP385 (L.C. No. 2005CV864) STATE OF WISCONSIN : IN SUPREME COURT Harold Umansky, Individually and as Personal Representative of the Estate of Richard Umansky, and Thelma Umansky, Plaintiffs-Appellants-Cross-Respondents, FILED v. JUL 17, 2009 ABC Insurance Company, David R. Schanker Clerk of Supreme Court Defendant, Barry Fox, Defendant-Respondent-Cross-AppellantPetitioner. REVIEW of a decision of the Court of Appeals. Affirmed and remanded. ¶1 N. PATRICK CROOKS, J. This is a review of a published court of appeals decision1 that reversed a grant of summary judgment for the petitioner and remanded the case to the circuit court. 1 This wrongful death case concerns a claim by Umansky v. ABC Ins. Co., 2008 WI App 101, 313 Wis. 2d 445, 756 N.W.2d 601. No. cross-respondents director of (the facilities Umanskys) that for Randall Camp caused the death of Richard Umansky Barry Fox Stadium, (Umansky) by 2007AP385 (Fox), negligently failing enforce a specific safety regulation at Camp Randall. was a television cameraman for ABC, Inc. the to Umansky He fell approximately eight feet to his death from a four-foot by eight-foot platform supplied by the University. platform at the time. federal safety There was no railing on Umansky's The Wisconsin legislature has adopted regulations and made them applicable for all public buildings, and such regulations require that railings be installed on platforms like the one from which Umansky fell. ¶2 As a state employee, however, Fox enjoys immunity from liability unless, under the circumstances, at least one of the limited exceptions to immunity applies. We must address whether Fox's obligation pursuant to statute to act to ensure that Camp Randall Stadium complies with the Occupational Safety and Health Administration (OSHA) regulation requiring a railing on certain types of platforms creates a ministerial duty exception to the standard rule of state employee immunity. Specifically, the narrow question we address is whether Fox had a ministerial duty under 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50 (Aug. 2004),2 to have a rail on the platform from which Umansky fell. 2 Finding that no exception All subsequent references to the Wisconsin Administrative Code are to the August 2004 version unless otherwise indicated. The relevant language in the sections cited herein has remained unchanged since it took effect on March 1, 1999. 2 No. 2007AP385 applied, the Dane County Circuit Court, the Honorable John C. Albert presiding, Umanskys granted appealed. The summary court of judgment appeals for Fox. reversed, The making a number of rulings favorable to the Umanskys related to the issue of whether Fox had a ministerial duty and is thus unable to claim immunity. ¶3 However, the court of appeals declined to address one of Fox's arguments, newly made on appeal, deeming it waived. Because of the potential impact of the new argument3 on a determination of whether Fox's employer was required by state law to comply with the applicable regulation, the court of appeals stopped short of holding that the regulation applied to Fox's employer, leaving that determination to be made on remand to the circuit court. The court of appeals thus made a number of rulings4 with which we agree and which we adopt and ultimately 3 The new argument was that Fox was entitled to summary judgment because the plaintiff had not alleged facts showing that the platform was a workspace for public employees, and thus had made no showing that Fox's employer had a duty of any sort with respect to the platform. In other words, the argument was that any duty to ensure the safety of the platform would have belonged to the employer of the private employee who used it. Here the argument by the petitioner has brought into sharp focus the issue as to whether the regulations apply to public buildings of a public employer such as Fox's employer. 4 The court of appeals stated: [W]e make a number of rulings related to the exception. First, the nondelegability to third parties of an employer's duty under the safe place statute does not prevent suit against a state employee for failure to comply with a safety regulation adopted pursuant to Wis. Stat. § 101.055(3) (2001-02). Second, the "law" that is the source of the 3 No. 2007AP385 concluded that Fox was not entitled to summary judgment on the ground of immunity: [W]e conclude Fox was responsible 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. We further conclude that, given the height and structure of the platform from which Umansky fell, 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 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, ¶3, 313 Wis. 2d 445, 756 N.W.2d 601. Fox petitioned for review and we granted his petition. ¶4 We now adopt rulings listed above. duty here. for and affirm those court of appeals' We conclude that Fox had a ministerial His job description provided that he was responsible compliance with state and federal safety regulations, ministerial duty need not specify the employee position responsible for carrying out the duty; it is sufficient if the "law" imposes a duty that is ministerial and other evidence establishes that a particular employee is responsible for carrying out that duty. Third, a regulation that otherwise imposes a ministerial duty is not discretionary simply because the supervisory employee responsible for compliance with the regulation has discretion with respect to assigning tasks to carry out that duty. Fourth, 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50, imposes a ministerial duty to have a railing meeting the specifications of the regulation on a platform that meets the requirements of the regulation. Umansky, 313 Wis. 2d 445, ¶2. 4 No. including 29 C.F.R. § 1910.23(c)(1). "[G]iven the 2007AP385 height and structure of the platform from which Umansky fell, 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 platform . . . ." Umansky, 313 Wis. 2d 445, ¶3. Further, because we reach and ultimately reject the argument that the regulation at issue does not apply to Fox's employer, our holding resolves the remaining question from the court of appeals' rulings. We thus remand to the circuit court, having answered the threshold question concerning Fox's immunity from suit by concluding that Fox had a ministerial duty to perform the act of ensuring that applicable regulation. the platform complied with the The focus of the circuit court must be on breach, causation, comparison of fault, and damages, not on the question of by whom the deceased was employed. We remand for a trial on the Umanskys' negligence claim. ¶5 We first set forth the factual background and the applicable legal framework in Parts I and II. In Part III, we address the the specific duty exception here. regulation that creates ministerial In Part IV, we discuss the applicability of the regulation to all public buildings of a public employer. In Part V, we discuss the inapplicability of the Safe Place Statute to this case. I. ¶6 The court of BACKGROUND appeals procedural history as follows: 5 set forth the facts and No. 2007AP385 Umansky was employed as a cameraman by ABC Inc. On November 21, 2003, he was found lying unconscious beneath a platform from which he had been working at the University of Wisconsin's Camp Randall Stadium. He later died as a result of injuries sustained from falling from the platform to the concrete walkway below. Umansky's parents and the Estate of Richard Umansky filed this action against Fox, claiming that Umansky's fall was caused by Fox's negligence. The amended complaint alleged that Fox was responsible for the safety of Camp Randall Stadium, including compliance with state and federal safety regulations, and that he was negligent in failing to ensure that the platform was reasonably safe and in failing to comply with the applicable regulations, including failing to provide railings on the platform in violation of 29 C.F.R. § 1910.23(c)(1). . . . . [After a motion to dismiss was denied,] Fox moved for summary judgment based on discretionary act immunity for public employees. He submitted his affidavit in which he averred that the platform from which Umansky fell had been in use by ABC Inc. and other broadcasting companies for several years prior to the accident, and no one had indicated to him that the platform was not safe or did not comply with applicable regulations. Umansky's submissions included Fox's deposition, the Occupational Safety and Health Administration (OSHA) accident investigation report, and a citation and notification of penalty to ABC Inc. for a violation of 29 C.F.R. § 1910.23(c)(1). The regulation provides: "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. . . ." Umansky, 313 Wis. 2d 445, ¶¶6-9. ¶7 for As noted above, the circuit court granted Fox's motion summary judgment, reasoning 6 that neither the ministerial No. 2007AP385 duty exception nor the known danger exception applied in this case; because it found no applicable exception, the circuit court found that Fox's immunity as a state employee barred a suit. As noted above, the court of appeals reversed. II. ¶8 STANDARD OF REVIEW AND RELEVANT LAW We review a grant of summary judgment de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2) (2001-02)5. ¶9 Immunity for public officers and employees is grounded in common law, Kimps v. Hill, 200 Wis. 2d 1, 9, 546 N.W.2d 151 (1996), and is based largely on "public policy considerations that spring from an interest in protecting the public purse and a preference for political rather than judicial redress" for actions. Lodl v. Progressive N. Ins. Co., 2002 WI 71, 253 Wis. 2d 323, ¶23, 646 N.W.2d 314. ¶10 The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the Kimps, 200 Wis. 2d at 10. scope of their official duties. The rule, however, is subject to exceptions, representing a "judicial balanc[e] [struck between] the need of public officers to perform their functions freely 5 All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 7 No. 2007AP385 [and] the right of an aggrieved party to seek redress." Lister v. Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). The exception at issue in this case is that a state employee "is not shielded from liability for the negligent performance of a purely ministerial duty." ¶11 The definition Kimps, 200 Wis. 2d at 10. of ministerial duty has remained substantially the same since it was adopted in 1955 in Meyer v. Carman, 271 Wis. 329, 73 N.W.2d 514 (1955): "'A . . . 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.'" C.L. v. Olson, 143 Wis. 2d 701, 711- 12, 422 N.W.2d 614 (1988) (quoting Lister, 72 Wis. 2d at 301). ¶12 The defense of discretionary act immunity for public officers and employees assumes negligence and focuses on whether the action or inaction entitled to immunity. upon which liability is Lodl, 253 Wis. 2d 323, ¶17. premised is The proper scope of the common law doctrine of discretionary act immunity, when there are no disputed facts, is a question of law. Bicknese v. Sutula, 2003 WI 31, ¶15, 260 Wis. 2d 713, 660 N.W.2d 289. III. THE MINISTERIAL DUTY EXCEPTION ¶13 We begin by setting the question we are to answer into context. The Umanskys' claim is that Fox negligently caused the death of Umansky. The amended complaint alleges: 8 No. 2007AP385 At all times pertinent to this action [Fox] was responsible for the condition of the Camp Randall Stadium where Richard Umansky was killed, and was specifically responsible for the safety of the facility, including compliance with the state and federal regulations. . . . . On information and belief, the incident was caused by the negligence of Barry Fox . . . in failing to ensure the platform from which Richard Umansky fell was reasonably safe, failing to comply with OSHA regulations, failing to comply with Wisconsin safety regulations for similar structures, failing to establish appropriate guidelines and practices to ensure compliance with OSHA and State safety regulations, failing to provide and maintain a safe environment within Camp Randall Stadium, failing to provide railings on the platform from which Richard Umansky fell in violation of 29 CFR 1910.23(c)(1). . . . ¶14 Of course, before the Umanskys can proceed to attempt to prove their negligence case, they must first defeat Fox's defense of immunity, to which he is entitled as a state employee unless an exception applies.6 The 6 Umanskys argue that the The Umanskys suggest that this court should use this case to state a new rule limiting the discretionary immunity doctrine to those state employees involved in legislative or judicial policymaking. Under such an approach, they argue, Fox would have no immunity. We decline to do so. 9 No. 2007AP385 ministerial duty exception applies to defeat Fox's immunity.7 As discussed above, "a public officer or employee is not shielded from liability for ministerial duty." the negligent performance Kimps, 200 Wis. 2d at 10. this preliminary question. of a purely We turn, then, to To answer it, we will consider the relevance of safety regulations applicable to the platform under state law for the limited purpose of establishing whether the regulations satisfy the definition of a ministerial duty and therefore constitute an exception to the rule giving Fox immunity from liability. ¶15 If Fox was subject to a "purely ministerial duty" to have a railing installed on the platform, he is not immune from liability. As we noted previously, a duty is a "purely ministerial duty" if 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 7 The Umanskys argue that another exception, the "known danger" exception, applies as well. That exception, set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), is present 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." C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988). In regard to that exception, we agree with the court of appeals that it is not clear from the amended complaint that "the platform presents the type of compelling danger that warrants an exception to immunity." Umansky, 313 Wis. 2d 445, ¶69. The known danger exception "has been reserved for situations that are more than unsafe, where the danger is so severe and so immediate" that a response is demanded. Id., ¶70. There is no need for us to address that exception any further here. 10 No. judgment or discretion." C.L., 143 Wis. 2d at 711 2007AP385 (citing Lister, 72 Wis. 2d at 301). ¶16 We first need to determine whether a source of law "imposes, prescribes and defines the time, mode and occasion for [the] performance [of a specific task]." 711. C.L., 143 Wis. 2d at At the beginning of its analysis, the court of appeals identified the specific act at issue and the law which requires it: [T]he allegation of a failure to provide railings in violation of 29 C.F.R. § 1910.23(c)(1) does allege a specific act Fox failed to perform, and this, the plaintiffs assert, is the source of his ministerial duty. 29 C.F.R. § 1910.23(c)(1) provides: (c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing [defined in paragraph (e)(1)8] (or the equivalent as specified in paragraph (e)(3)9 of this section)[.] 8 29 C.F.R. § 1910.23(e)(1) provides: A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be approximately halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. 9 29 C.F.R. § 1910.23(e)(3)(v) provides: Other types, sizes, and arrangements of railing construction are acceptable provided they meet the following conditions: (a) A smooth-surfaced top rail 11 No. 2007AP385 . . . . OSHA regulations in general, and this one in particular, do not apply directly to the University of Wisconsin because a state and its subdivisions are excluded from the definition of "employer." WilliamsSteiger Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, § 3(5), 84 Stat. 1590, 1591 (1970); 29 C.F.R. § 1910.2(c). However, Wis. Admin. Code § Comm 32.15 provides, with certain exceptions not applicable here, that "all places of employment and public buildings of a public employer shall comply with the federal [OSHA] requirements adopted under s. Comm 32.50." Wisconsin Admin. Code § Comm 32.50(2) adopts 29 C.F.R. pt. 1910, thus making § 1910.23 applicable to places of public employment and to public buildings. Umansky, 313 Wis. 2d 445, ¶¶25-27. ¶17 The court of appeals examined 29 C.F.R. § 1910.23(c)(1) and observed, "The regulation does not allow for the option of no in law, it what is type of railing the The duty to have a railing meeting the regulation's by to and required. imposed as circumstances is is specific these regulation requirements very railing absolute, certain is and imperative, and it requires performance in a specified manner and upon specified conditions that are not dependent upon the exercise of judgment or discretion." the court of appeals noted that Id., ¶48. Fox, in In addition, his deposition at a height above floor, platform, runway, or ramp level of 42 inches nominal; (b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure; (c) Protection between top rail and floor, platform, runway, ramp, or stair treads, equivalent at least to that afforded by a standard intermediate rail . . . . 12 No. testimony, had stated that regarding oversight 2007AP385 of facility safety, the "day-to-day single responsibility does lie with me" and that the platform's compliance with OSHA "ultimately . . . would have been my decision." ¶18 requirements Id., ¶50. That determination by the court of appeals that the highly specific safety regulation in force under Wisconsin law for railings on platforms created a ministerial duty such that there is an exception to the ordinary rule of immunity was the basis for the court of appeals' reversal of the grant of summary judgment. C.F.R. We agree with the court of appeals that because 29 § 1910.23(c)(1) "imposes, prescribes and defines the time, mode and occasion . . . with such certainty that nothing remains for judgment or discretion" and because Wis. Admin. Code § Comm 32.50(2) makes it applicable to public buildings of a public employer, Fox was under a ministerial duty to act to ensure a railing was on the platform. IV. ¶19 FOX ARGUES THAT ANY DUTY RUNS ONLY TO PUBLIC EMPLOYEES OR ONLY TO A PLATFORM ON WHICH PUBLIC EMPLOYEES WORK First, Fox contends that the duty created by the OSHA regulation pursuant to administrative code provisions, which in turn are pursuant employees. argues, Because the duty argument is to that statute,10 Umansky does not the is run relevant duty not was a a public to him. only to public employee, Fox The basis for this administrative code provision notes that its purpose is to create work safety standards for 10 Wis. Stat. § 101.055(3)(a). 13 See infra, ¶26 n.18 No. 2007AP385 public employees,11 and the underlying statute has the stated purpose of giving public employees workplace safety protections equivalent to those afforded to private employees under OSHA.12 We therefore turn our attention from the specific regulation that creates a ministerial duty here to the administrative code sections that authorized it. purpose of the statute safety protections. reading that is to offer equivalent statute and The stated occupational That purpose is turned on its head by Fox's argues for a divided, haphazardly applicable ministerial duty to comply with the explicit OSHA regulation requiring a railing on a platform. unworkable is readily apparent That such an approach is given the ministerial duty created by this regulation. C.F.R. § 1910.23(c)(1), incorporated by nature of the The regulation, 29 Wis. Admin. §§ Comm 32.15 and 32.50, created a ministerial duty to comply with the safety regulation requiring railings on platforms such as the one involved here. Fox urges the peculiar conclusion that even 11 Wis. Admin. Code § Comm 32.001: "Purpose. This chapter establishes minimum occupational safety and health standards for public employees." 12 Wis. Stat. § 101.055(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 the 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). 14 No. 2007AP385 though the administrative code adopted pursuant to Wis. Stat. § 101.055 admittedly requires the necessary safety provisions in "all places of employment and public buildings,"13 the statute's stated purpose of protecting public employees somehow justifies allowing the breach of a ministerial duty with impunity, so long as the person injured or killed happens not to be a public employee. ¶20 There is nothing in the statute or in the administrative code provisions which says that compliance with 29 C.F.R. § 1910.23(c)(1) is intended, and is relevant, only when a public employee is injured or killed. Since OSHA does not apply to public employees,14 there was a need to adopt a Wisconsin OSHA to include those employees. indicate that the legislature intended There is nothing to to create different safety standards for public and private employers and employees; rather, as we noted previously, the intent was to create identical safety standards.15 ¶21 There is no dispute that the legislature required all public buildings to be brought into compliance with OSHA minimum standards. There is no dispute that Camp Randall Stadium is a public building, and there is no dispute that the University of 13 Wis. Admin. Code § Comm 32.002. 14 29 U.S.C.A. § 652(5) (defining an employer governed by the regulations as "not includ[ing] the United States (not including the United States Postal Service) or any State or political subdivision of a State"). 15 See Wis. Stat. § 101.055(1), supra, ¶19 n.12 15 No. Wisconsin is a public employer. 2007AP385 It was Fox's responsibility, as director of facilities for Camp Randall Stadium, to be sure that the Stadium complied with OSHA regulations. Period. The OSHA regulation at issue in this case created a ministerial duty, and nothing in our case law on ministerial duty supports the proposition that such a duty can be limited by reference to whether only a particular person is owed that duty. ¶22 As we noted earlier in this opinion, the court of appeals deemed a new argument Fox raised at oral argument before it waived and declined to address it though the court left open the possibility that the argument could be pursued on remand to the circuit argument. court. Before this court, Fox made a similar The argument overlaps considerably with the argument just discussed; Fox contends that the question is not whether the platform was generally required to have a railing, but whether the platform was required to have a railing at the time Umansky fell. Fox submits that because there has been no evidence submitted that a public employee was using the platform at the time Umansky fell,16 the Umanskys have failed to allege 16 At the court of appeals, the argument was presented slightly differently: "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." Umansky, 313 Wis. 2d 445, ¶63. However, Fox abandoned that version of the argument before this court. In his brief, he instead stated a more limited argument: The question is not whether 29 C.F.R. § 1910.23(c)(1) required the platform to have a railing at all times but whether Wis. Admin. Code §§ Comm 32.15 and 32.50 required the platform to have a railing at the time decedent fell. And the answer is no because there is 16 No. 2007AP385 facts that would establish a ministerial duty and that summary judgment should therefore be granted in his favor. variation on his earlier argument. turns on the identity of the This is a The first, addressed above, person injured (i.e., if two persons were on the platform and both fell, no ministerial duty exception could apply as to the private employee, and a claim by that person's representative would be barred by immunity). This argument focuses on the platform itself, and the use of the platform by a public employee at the relevant time (i.e., only if it were alleged that a public employee was occupying the platform at the moment the private employee fell, the ministerial duty exception would apparently apply, and a claim by the private employee's representative would not be barred by immunity). no evidence that any public employees were using the platform at that time." (Emphasis added.) At oral argument, Fox argued, somewhat inconsistently with the brief, that such facts would not make any difference as a practical matter because even if public employees had been using the platform at the time Mr. Umansky fell, there would still be no duty on the part of the State that could be delegated to Fox that would run to Mr. Umansky [because] he was a private employee. Contrary to the dissent's assertion, before this court, Fox sought only to reverse the court of appeals and made no request in the alternative for a remand for additional fact-finding related to the question of the platform's use by public employees. Justice Ziegler's dissent, ¶¶105-07 17 No. ¶23 2007AP385 As noted previously, the court of appeals deemed this argument waived but noted that this argument could be developed further at the circuit court. raised again here, we exercise rather than deem it waived.17 that the We disagree. material facts that our Since the issue was discretion to reach it, Fox's argument to this court was no public employee was on the platform at the time Umansky fell and that Umansky himself was not a public employee were undisputed. Because Fox argues that at least one of those conditions would have to be met in order to establish a ministerial duty, he contends that absent such evidence, summary judgment in his favor is appropriate. ¶24 Since we have established that a ministerial duty exception arises from 29 C.F.R. § 1910.23(c)(1), incorporated by Wis. Admin. Code §§ Comm 32.15 and 32.50, and Fox's role as the person responsible comply with the for acting regulations, to and ensure that because the we facilities have already rejected Fox's argument that the statute's purpose limits the applicability of the other duty argument as to platform as not material to people and public employees, occupying or therefore not not we view any occupying the necessary to our holding as set forth herein. 17 State v. Caban, 210 Wis. 2d 597, 609, 563 N.W.2d 501 (1997) ("The rule of waiver is one of judicial administration and does not limit the power of an appellate court in a proper case to address issues not raised in the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). This court has the power in the exercise of its discretion, to consider issues raised for the first time on appeal.") 18 No. ¶25 We therefore answer in the affirmative the 2007AP385 narrow question presented and conclude that the Umanskys can proceed to trial in the circuit court on their claim of negligence. The questions of breach, causation, comparison of fault, and damages will of course need to be addressed by the trier of fact. V. ¶26 THE SAFE PLACE STATUTE In addition, Fox argues that the OSHA regulations in force pursuant to Wis. Admin. Code §§ Comm 32.15 and 32.50 and pursuant to Wis. Stat. § 101.055(3)(a)18 articulate the standard under the safe place statute, Wis. Stat. § 101.11.19 18 Wis. Stat. § 101.055(3) Public employee The statute safety and health: (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[] . . . . 19 Wis. Stat. § 101.11 employment and place: Employer's duty to furnish (1) Every 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, 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. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe. 19 safe No. adopting OSHA standards properly read, Fox statute. Fox then for public asserts, points in to employees tandem case law is 2007AP385 therefore with the safe that holds place that the obligations the safe place law imposes on employers cannot be delegated. See, e.g., Dykstra v. Arthur G. McKee & Co., 100 Wis. 2d 120, 132, 301 N.W.2d 201 (1981) ("[T]he person who has that duty cannot assert that another to whom he has allegedly delegated the duty is to be substituted as the primary defendant in his stead for a violation of safe place provisions."); Pitrowski v. Taylor, 55 Wis. 2d 615, 627, 201 N.W.2d 52 (1972) ("[T]he duty of complying with [the safe place statute] is on the employer[.] . . . It cannot be delegated to or placed upon . . . officers or employees."). ¶27 We are, of course, not dealing here with a claimed violation of the safe place statute at all. the Umanskys makes it clear that the The complaint of claim underlying the questions we address here as to immunity is one of common law negligence. We agree with the court of appeals that there is "no logical connection between an employer's inability to shift its liability for a safe place violation to a third party and its ability to delegate to an employee the duty to comply with applicable safety regulations." Umansky, 313 Wis. 2d 445, ¶31. This is not a safe-place statute case, and the rules concerning such claims do not govern here. VI. ¶28 We now adopt rulings listed above. and CONCLUSION affirm those court of appeals' We conclude that Fox had a ministerial 20 No. duty here. for His job description provided that he was responsible compliance including 2007AP385 29 with C.F.R. state and federal § 1910.23(c)(1). safety "[G]iven regulations, the height and structure of the platform from which Umansky fell, 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 platform . . . ." Umansky, 313 Wis. 2d 445, ¶3. Further, because we reach and ultimately reject the argument that the regulation at issue does not apply to Fox's employer, our holding resolves the remaining question from the court of appeals' rulings. We thus remand to the circuit court, having answered the threshold question concerning Fox's immunity from suit by concluding that Fox had a ministerial duty to perform the act of ensuring applicable regulation. that the platform complied with the The focus of the circuit court must be on breach, causation, comparison of fault, and damages, not on the question of by whom the deceased was employed. We remand for a trial on the Umanskys' negligence claim. By the Court. The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for a trial on the claim of negligence. 21 No. ¶29 N. PATRICK CROOKS, J. (concurring). 2007AP385.npc I join the majority opinion, but I write separately to highlight the fact that courts in other jurisdictions have taken positions similar to the reasoning of the majority in this case. ¶30 The approach that is most logical and remains true to the intent of the statute and the administrative code, is one that applies the safety regulation to the workplace, irrespective of whose employees are working there. ¶31 As noted, courts from other jurisdictions have consistently endorsed the idea that state statutes incorporating federal safety regulations apply to places, not people. Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799, 805 (6th Cir. 1984) ("[O]nce an employer is deemed responsible for complying with OSHA regulations, it is obligated to protect every employee who works at its workplace."); Hargis v. Baize, 168 S.W.3d 36, 44 (Ky. 2005) (where defendant's violation of specific OSHA-derived regulation caused death, the deceased plaintiff was "no less entitled to [state safety regulations'] protections" based on the fact that he was not the defendant's employee); Goucher v. J.R. Simplot regulations Co., 709 should be P.2d 774, construed 780 to (Wash. protect 1985) not ("WISHA only an employer's own employees, but all employees who may be harmed by the employer's violation of the regulations."). One court stated the rationale for refusing to quibble, where OSHA safety regulations are concerned, about whether the worker injured or killed was owed a particular duty at the site involved: [T]he point of this "multi-employer" gloss is that since the contractor is subject to OSHA's regulations 1 No. 2007AP385.npc of safety in construction by virtue of being engaged in the construction business, and has to comply with those regulations in order to protect his own workers at the site, it is sensible to think of him as assuming the same duty to the other workers at the site who might be injured or killed if he violated the regulations. United States v. MYR Group, Inc., 361 F.3d 364, 366 (7th Cir. 2004) (internal citations omitted) (emphasis added). ¶32 Rulings based on the idea that safety regulations are promulgated to apply to a place, not a person, are eminently sensible. Here, the relevant with protections concerning federal OSHA requirements public buildings[.]" regulations occupational for "all mandate safety places of compliance equivalent to employment and Once it has been determined that a statute or regulation imposes a ministerial duty, as we determine here in agreement with the court of appeals, the inquiry should be at an end. The employment status (public or private) of the person injured or killed as a result of a failure to comply with that duty is simply irrelevant to the analysis. ¶33 We find in Wis. Stat. § 101.055 and Wis. Admin. Code §§ Comm 32.001, 32.002, 32.15 and 32.50 no indication that the legislature intended any limitation when it adopted the measure extending OSHA safety regulations to "all public buildings"; a holding to the contrary would result in unwarranted disparate treatment for similarly situated injured or deceased persons and would simply be unfair. ¶34 A public building that is safe for public employees must be safe for everyone, firm. Indeed, the including statute 2 also employees provides of a private that "[t]he No. 2007AP385.npc department . . . shall plan and conduct comprehensive safety and health loss facilities." prevention Wis. Stat. programs for § 101.055(9) state employees (emphasis added). and It would seem to go without saying that the legislature intended for public buildings and facilities to be safe for the public, including public employees and employees of a private employer as well. To say otherwise flies in the face of common sense. ¶35 For the foregoing reasons, I respectfully concur. ¶36 I am authorized to state that Justice DAVID T. PROSSER joins this concurrence. 3 No. ¶37 DAVID T. PROSSER, J. (concurring). 2007AP385.dtp The overarching issue in this case is whether an employee of the University of Wisconsin-Madison who was responsible for safety at Camp Randall Stadium, including compliance with applicable state and federal safety regulations, is immune from tort liability for the death of a privately stadium, after employed the television University cameraman employee working knowingly at failed the to comply with an applicable state and federal safety regulation and his non-compliance was a substantial factor in causing the cameraman's death. ¶38 The issue is stated bluntly so that there can be no mistake about the challenge that confronted this court. The majority concludes that the University employee is not immune in the narrow circumstances of this case. In my view, the decision represents a small but very welcome correction in the course this court has followed for many years, and I join the majority opinion in full. ¶39 I write separately because I believe more change is necessary. This concurrence will attempt to explain how Wisconsin law on government responsibility for torts has come to be what it is. I ¶40 It has not been easy to sue state government in tort. Since 1848, the Wisconsin Constitution has erected procedural barriers to direct action against the state without legislative consent. Article IV, Section 27 of the constitution provides, 1 No. 2007AP385.dtp "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." ¶41 Immunity from substantive liability is different from the procedural immunity embodied in Article IV, Section 27 of the constitution. City of Milwaukee v. Firemen Relief Ass'n of Milwaukee, 42 Wis. 2d 23, 34, 165 N.W.2d 384 (1969). As this court observed in 1915, "nonliability for torts arising out of the prosecution of governmental functions is based upon grounds of public policy distinct from the immunity of the sovereign from suit . . . . No doubt such policy may originally have sprung in a large measure from the conception that the sovereign can do no wrong." Apfelbacher v. State, 160 Wis. 565, 575, 152 N.W. 144 (1915). ¶42 Over the years, the intellectual underpinnings of the court-created doctrine of substantive governmental immunity from tort liability were severely criticized. In 1962, this court reacted to that criticism in a landmark decision. In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), the court unanimously "disavowed its past decisions and abrogated the principle of governmental immunity." Scott v. Savers Prop. & 262 Cas. Ins. N.W.2d 715 clearest Co., (Prosser, possible 2003 J., terms WI 60, ¶76, dissenting). that It Wis. 2d 127, 663 declared in the far as "henceforward, so governmental responsibility for torts is concerned, the rule is liability the exception is immunity." (emphasis added). 2 Holytz, 17 Wis. 2d at 39 No. ¶43 The court went on: "This is decision 2007AP385.dtp not to be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." Id. at 40. For this proposition, the court cited Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 133 (Fla. 1957).1 ¶44 deems it reinstate The court better also explained public policy, Holytz, immunity." it 17 that if "the is, of course, Wis. 2d at legislature 40. free to "The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort." Id. ¶45 public The policy immunity. entitled Wisconsin to go Legislature back to did nineteenth not deem century it better theories of In 1963, it enacted Wis. Stat. § 331.43 (1963-64), "Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employes; notice of claim; limitation of damages and suits." 1 In Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 131 (Fla. 1957), a widow sued a municipality for damages for the alleged wrongful death of her husband who died of smoke suffocation after being locked in a jail that was left unattended by a municipal jailer. The Florida Supreme Court held that the widow could maintain an action against Cocoa Beach for the alleged negligence of its police officer acting in the course of his employment. Id. at 133-34. The court said the issue was "whether a municipal corporation should continue to enjoy immunity from liability for the wrongful acts of police officers." Id. at 131. 3 No. 2007AP385.dtp This statute is now Wis. Stat. § 893.80 (2007-08),2 and it must be put in context. ¶46 The Holytz facts involved the governmental immunity of a municipality, the City of Milwaukee. 28-29. Holytz, 17 Wis. 2d at That is why 1963 Senate Bill 283, the bill that created Wis. Stat. § 331.43 (1963-64), was requested by the Wisconsin County Boards Association, the Wisconsin Town Boards Association, and the League of Wisconsin Municipalities. the Holytz decision was not municipal government immunity. confined to the abrogation But of Again, the court was clear: [W]e consider that abrogation of the doctrine [of governmental immunity] applies to all public bodies within the state: The state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state whether they be incorporated or not. By reason of the rule of respondeat superior a public body shall be liable for damages for the torts of its officers, agents, and employees occurring in the course of the business of such public body. So far as the state of Wisconsin and its various arms is concerned, a careful distinction must be made between the abrogation of the immunity doctrine and the right of a private party to sue the state. The difference between governmental immunity from torts and the sovereign immunity of the state from suit was recognized in Apfelbacher. . . . Henceforward, there will be substantive liability on the part of the state, but the right to sue the state is subject to [Section] 27, [Article] IV of the Wisconsin [C]onstitution . . . . The decision in the case at bar removes the state's defense of nonliability for torts, but it has no effect upon the 2 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 4 No. 2007AP385.dtp state's sovereign right under the constitution to be sued only upon its consent. Holytz, 17 Wis. 2d at 40-41 (emphasis added) (internal citations omitted). ¶47 When Holytz abrogated governmental immunity, municipal governments acted quickly to enact some limitations on their new liability in tort. The Wisconsin statute that is now § 893.80 was their answer. However, this statute was not intended to apply to the state.3 legislation or to Thus, the state was required to enact other look elsewhere for limits on liability or barriers to suit. ¶48 The court discussed these principles Sweet, 38 Wis. 2d 676, 158 N.W.2d 370 (1968). in Forseth v. In Forseth, the court explained the meaning of Holytz: Since Holytz, it said, "there is substantive liability imposed upon the state when its agents, in Id. at 679. the course It of added their that, employment, prior to commit Holytz, two a tort." reasons supported the state's immunity from suit: (1) The sovereign immunity [or governmental immunity] of the king can do no wrong, implemented by denying the doctrine of respondeat superior where an agent of the state was guilty of tortious conduct, and (2) the lack of the procedural implementation of Article IV, Section 27. Holytz removed only the first barrier. Id. at 684. ¶49 The issue in Forseth was whether the victim of a state employee's negligence could bring a direct action against the state. Id. at 679-81. The answer was no. 3 See id. at 681. But Townsend v. Wis. Desert Horse Ass'n, 42 Wis. 2d 414, 423, 167 N.W.2d 425 (1969). 5 No. 2007AP385.dtp there was no dispute that the state would be responsible for a damage judgment against a state employee if the state employee's negligence, in the course of his employment, caused injury to Forseth. Id. at 679, 681. The court pointed to then-Wis. Stat. § 270.58 (1965-66),4 which is now Wis. Stat. § 895.46.5 4 Id. at Wisconsin Stat. § 270.58(1) (1965-66) reads as follows: State and political subdivisions thereof to pay judgments taken against officers. (1) Where the defendant in any action or special proceeding is a public officer or employe and is proceeded against in his official capacity or is proceeded against as an individual because of acts committed while carrying out his duties as an officer or employe and the jury or the court finds that he acted in good faith the judgment as to damages and costs entered against the officer or employe shall be paid by the state or political subdivision of which he is an officer or employe. Regardless of the results of the litigation the governmental unit shall pay reasonable attorney's fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act in good faith, when it does not provide legal counsel to the defendant officer or employe. Deputy sheriffs in those counties where they serve not at the will of the sheriff but on civil service basis shall be covered by this subsection, except that the provision relating to payment of the judgment shall be discretionary and not mandatory. In such counties the judgment as to damages and costs may be paid by the county if approved by the county board. (Emphasis added.) 5 Wisconsin Stat. § 895.46(1) reads, in part, as follows: State and political subdivisions thereof to pay judgments taken against officers. (1)(a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within 6 No. 681. 2007AP385.dtp This statute directs governmental bodies, including the state, to pay judgments against public officers and employees in most situations. ¶50 See Wis. Stat. § 895.46(1). The Forseth court was unusually candid in summing up the situation: This court has made the public policy decision in Holytz that it is in the interest of justice to abolish the court-made rule of sovereign immunity[, i.e., governmental immunity]. . . . It is apparent that the present statutory structure gives the state scant protection, for by sec. 270.58 [(1965-66)], Stats., it has made itself fully liable for a judgment when it has no right to control the litigation leading to the judgment. The present system imposes great handicaps upon the legal officers of the state in defending the treasury, while leaving the treasury exposed to liability. Forseth, 38 Wis. 2d at 690. there was a failure [in The court speculated that "possibly the legislature] to appreciate the potential exposure to liability that was to flow from the 1965 amendment that included the state in sec. 270.58 [(1965-66)] as the scope of employment, the judgment as to damages and costs entered against the officer or employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employee did not act within the scope of employment. (Emphasis added.) 7 No. 2007AP385.dtp a backstop for any judgment that might be taken against its tortiously culpable employees." ¶51 permit The legislature the attorney Id. at 681. later general amended to § 270.58 defend state (1965-66) officers to and employees in tort suits (such as the present case). ¶52 This was Wisconsin law in the late 1960s. In his Handbook of the Law of Torts, Professor William L. Prosser cited Florida's decision in Hargrove and observed the following: [The rationale of Hargrove] was followed two years later by Illinois, holding a school district liable when a child was injured by the negligent operation of a school bus. These examples have touched off, during the succeeding four years, a minor avalanche of decisions repudiating municipal immunity, in California, Michigan, Wisconsin, Arizona, Minnesota, and Alaska . . . . The decisions in Arizona, California and Wisconsin also abolished the immunity of the state . . . . William L. Prosser, Handbook of the Law of Torts 1012 (3d ed. 1964) (emphasis added) (internal footnotes omitted). ¶53 Against this background, we read in the majority opinion the following statement: "The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties." ¶54 Majority op., ¶10. How does this square with the decision in Holytz? II ¶55 240 In Lister v. Board of Regents, 72 Wis. 2d 282, 300, N.W.2d 610 (1976), this court stated as follows: "The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope 8 No. 2007AP385.dtp of his official authority and in the line of his official duty." The court did statement. not cite any Wisconsin precedent for this Instead, it cited 63 Am. Jur. 2d, Public Officers and Employees, Section 288 (1972).6 Id. at 300 n.17. The principle stated in Am. Jur. 2d was indisputably intended to apply to both state and municipal public officers. ¶56 546 Twenty years later, Kimps v. Hill, 200 Wis. 2d 1, 10, N.W.2d 281 (1996) (citing Lister 72 Wis. 2d at 300), expanded the rule announced in Lister: "Under the general rule as applied in Wisconsin, state officers and employees are immune from personal liability for injuries resulting performed within the scope of their official duties." added.) cover from acts (Emphasis This sweeping statement was and is broad enough to all state employees. In a footnote, however, Kimps narrowed the Lister rule with respect to municipalities: "The general rule of immunity for state public officers stands in contrast to that for municipalities liability the exception is immunity.'" where, for municipalities Holytz . . . ." was rule is Id. at 10 n.6 (quoting Holytz, 17 Wis. 2d at 39) (emphasis added). immunity 'the abrogated "The common law by this court in Id. (emphasis added). 6 "As a rule, a public officer, whether judicial, quasijudicial, or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in the line of his official duty." 63 Am. Jur. 2d, Public Officers and Employees, § 288, at 798 (1972). 9 No. ¶57 2007AP385.dtp These passages are not an accurate statement of the holding in Holytz, and they did not anticipate the immunity that courts would continue to bestow upon municipal employees. ¶58 immunity, employee The Kimps also is not court, after an exception: stated shielded from establishing "a liability performance of a purely ministerial duty." public for the broad officer the or negligent Id. at 10 (citing Lister, 72 Wis. 2d at 300-01). ¶59 Today, Lister and Kimps provide the framework for analyzing government torts in Wisconsin. Actions by government employees official within the scope of their generally seen as immune from liability. only in narrow exceptions to duties are Liability may be found general immunity. Thus, governmental immunity has been supplanted by an extremely broad public employee immunity created by the Wisconsin Supreme Court. III ¶60 Public officer immunity goes back a long way, and to some extent, it is separate from governmental immunity. We all understand the principle that a public officer should not be held liable for doing her job in a proper manner, because we know that even perfect performance, fully authorized by law, may generate litigation from those who are hurt or disadvantaged by public action or policy. ¶61 Professor Prosser explained public officer immunity in 1964 in his Handbook of the Law of Torts: The complex process of legal administration requires that officers shall be charged with the duty of making decisions, either of law or of fact, and acting in accordance with their determinations. 10 No. 2007AP385.dtp Public servants would be unduly hampered and intimidated in the discharge of their duties, and an impossible burden would fall upon all our agencies of government, if the immunity to private liability were not extended, in some reasonable degree, to those who act improperly, or exceed the authority given. Prosser, supra, at 1013-14. ¶62 Public The key words in this passage are "private liability." officer immunity made great sense when state and municipal governments had governmental immunity and were able to disavow any employees. liability for the torts of their officers and Public officer immunity still makes good sense when public officers and employees are acting in a legislative or judicial or quasi-legislative or quasi-judicial capacity, where the exercise of discretion is essential. ¶63 Public employee immunity does not make good sense under the following circumstances: (1) substantive governmental immunity has been abrogated; (2) governments have accepted a respondeat superior relationship with their employees; and (3) public employee immunity is being used to evade liability for a public employee's obvious breach of a known standard of care. ¶64 The current "ministerial duty." problem is bound up in the term Wisconsin courts have taken the principle of "ministerial duty" from a context in which it was valuable and necessary and employed it in a context in which it is unfair and absurd. IV ¶65 In 1951, Eugene Meyer, 14, a student at Hawthorne Junior High School in Wauwatosa, fell from a five-foot retaining wall on school grounds and sustained injuries. 11 Meyer v. Carman, No. 271 Wis. 329, 331, 73 N.W.2d 514 (1955). 2007AP385.dtp His guardian ad litem, Patrick T. Sheedy, and his father, Alvin Meyer, filed a tort action in Eugene's behalf against the eight Wauwatosa board of education individually. members of Id. at 330-31. the When the case came to the supreme court, the issue was whether Eugene could recover from the school board members individually for "failure to erect and maintain devices on the retaining wall." had concluded that recovery guardrails Id. at 331. was possible or other safety The circuit court because the school board members had a ministerial duty under Wis. Stat. § 40.29(2) (1953-54) to "keep the buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at times." Id. (quoting Wis. Stat. § 40.29(2) (1953-54)). all The circuit court "applied the rule of law that a public officer who knowingly or negligently fails to do a ministerial act which the law requires him to do may be compelled to respond in damages to an injured party." Id. (citing 43 Am. Jur. Public Officers § 278, at 90 (1942)). ¶66 The supreme court reversed, rejecting Eugene's claim for two reasons. First, the court determined the cited statute imposed duties on the board. Id. at 333-34. "Any action taken under the statute must of necessity be an official action of the board. . . . [A]ny failure to take action is the neglect of the board, no and responsibility individual members." Id. therefor devolves upon the Second, and more important for our purposes, the court stated that the "duty" to act, upon either 12 No. the board or its members, was not "ministerial." 2007AP385.dtp Id. at 331-32. The court stated as follows: At first blush it might appear that the duty to keep the school grounds "safe" is ministerial in character, but it is apparent on closer analysis that a great many circumstances may need to be considered in deciding what action is necessary to do so, and such decisions involve the exercise of judgment or discretion rather than the mere performance of a prescribed task. As stated in 18 McQuillin, Mun. Corp. (3d ed.), p. 225, sec. 53.33: "Official action . . . is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion." Id. (ellipsis in original). ¶67 The court also quoted a Florida case, First National Bank v. Filer, 145 So. 204, 207 (Fla. 1933), which stated that: [A] duty is to be regarded as ministerial, when it is a duty that has been positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated the duty to perform under the conditions specified, not being dependent upon the officer's judgment or discretion. Meyer, 271 Wis. at 332. ¶68 In examining the Meyer case in retrospect, it should be remembered that both governmental immunity and public officer immunity were still in full flower. The court was disturbed that a plaintiff, however sympathetic, was attempting to extract money damages from individual members of the Wauwatosa school board. Because existing governmental immunity rejected the principle of respondeat superior, the court knew that school 13 No. 2007AP385.dtp board members found liable individually in tort had no assurance that the judgment against them would be covered by the school district. liability The opinion recognized the possibility of personal in extreme cases, but it limited those cases to violations of a narrowly defined "ministerial duty" exception. V ¶69 Meyer reappeared in the case of Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673 (1973). Chart is instructive in showing how we have retreated from state liability in tort. ¶70 Penelope Chart was a passenger in a car that failed to negotiate a sharp curve at an intersection on a state highway in Vilas County. Id. at 94. The car crashed into a power pole, and Chart was severely injured. Id. chief District maintenance engineer of She sued Carl Dvorak, the Seven of the State Highway Commission, and Martin Varekois, the district traffic supervisor for that district. Id. at 95. She claimed that the two defendants were causally negligent in: (a) failing to place critical highway intersection to warning signs provide an far enough adequate in advance warning to of the approaching traffic; and (b) "placing the warning sign[s] at a distance from the intersection traveling at safely." Id. a so as legal to rate make of it speed impossible to for negotiate a driver the corner There was no dispute that the two defendants had no role in the actual placement of the warning signs and did not supervise their placement. ¶71 The court Id. at 96. rejected the defendants' arguments. court's opinion included the following statements: 14 The No. 2007AP385.dtp The alleged wrongful act . . . is an insufficient warning of a known highway hazard. As both Dvorak and Varekois had official, nondelegable authority and responsibility for the placement of such highway warning signs, they are the proper parties defendant.[7] . . . . Appellants' second argument is that the placement of a highway warning sign is a legislative or quasilegislative decision and . . . cannot predicate liability for an accident resulting from its location. In this respect we think the trial court correctly . . . conclu[ded] that once appellants made the legislative or quasi-legislative decision to place the highway warning sign, they had a duty to place it and maintain it without negligence. . . . . Appellants' final contention is that the trial court ought to have granted their motion for summary judgment because they cannot be individually liable in tort even if they did not place the highway warning signs in conformity with the state highway commission's legislative directive. Here again appellants advance two arguments . . . . The first is that since the appellants were agents of the state highway commission . . . their acts were the acts of such commission and, therefore, they are entitled to partake of the governmental immunity enjoyed by the commission. Appellants cite no authority for this proposition. There is none. It is obvious that the state is immobile absent employees or agents to carry on its functions. All state employees are, therefore, agents of the state when performing those tasks entrusted to them. [To agree with appellants' position that they, as agents of the highway commission, ought to be allowed to partake of the governmental immunity enjoyed by that commission, this 7 Accord Seward v. Town of Milford, 21 Wis. 491 (*485), 494 (*488) (1867) (affirming judgment of negligence against the town for its failure to make a damaged roadway safe for travel by either "repair[ing the roadway] at once, or at least . . . keep[ing] up some suitable guards to prevent travelers from going over the dangerous track"). 15 No. 2007AP385.dtp court would have to overlook the long settled law of this state, embodied in sec. 270.58 [(1965-66)], that public officers or employees may be proceeded against in their official capacities.] We conclude, therefore, that appellants, as public officials, may be proceeded against for dereliction of their duties resulting in injury to another. . . . . . . . Here, the appellants were responsible for the proper sign placement and, therefore, are the proper parties defendant. Id. at 98, 100-01, 102-04, 105 (emphasis added) (internal footnotes omitted and outer brackets in original). ¶72 This ruling spooked the Wisconsin Department of Justice, which moved for reconsideration and caused the court to clarify the bracketed sentence from page 103 of the opinion. The court's clarification stated the following: The opinion refers to sec. 270.58, Stats. [(196566)], as embodying "the long settled law . . . that public officers or employees may be proceeded against in their official capacities." On rehearing, it has been called to our attention that the quoted portion of the statement could be construed as a rule of liability. It was not so intended; and were it given that blanket interpretation, it would be incorrect. Sec[tion] 270.58 [(1965-66)] imposes an obligation on the state or municipality only if a judgment has been secured against the officer or employee. As stated in the opinion, the duty of the defendants herein was of a nondelegable, ministerial nature. These facts, if proved on trial, would impose liability not on the basis of sec. 270.58, but rather on the rationale of Meyer v. Carman. Id. at 105 (emphasis added). ¶73 The court turned to Meyer again in Cords v. Ehly, 62 Wis. 2d 31, 214 N.W.2d 432 (1974). In this case, three young women fell into a gorge at a state park in Sauk County. 33. Id. at The plaintiffs sued seven state employees for negligence 16 No. 2007AP385.dtp "in allowing the park to be open during hours of darkness, in failing to guard the trails which run along the very edge of the cliffs above the gorge, and in failing to give any warning of the naturally hazardous nature of the terrain." Id. The supreme court rejected the state's contention that the employees were immune from suit: [T]he defendant employees are sued as private individuals for damages alleged to have resulted from their negligent conduct. The alleged conduct occurred within the scope of their employment by the state . . . . . . . . The individual state employee defendants in this case contend that sec. 270.58, Stats. [(1965-66)], automatically transforms any suit against a state employee into a suit against the state because the state is potentially liable on the judgment. However, if sec. 270.58 [(1965-66)] is read to provide that suits in tort against state employees are to be treated as suits in tort against the state, and if the legislature has not by that statute consented to suits in tort against the state, then no damage judgments could be obtained in suits against state employees, and the provision in sec. 270.58 [(1965-66)] for the payment of such damages out of state funds would be meaningless. Quite the contrary, it is clear that in enacting sec. 270.58 [(1965-66)], Stats., the legislature contemplated that state employees were subject to suit in tort under the law of Wisconsin and wished gratuitously to shield them from monetary loss in such suits. . . . . In Forseth v. Sweet, this court said that "[n]o new exposure to substantive liability was contemplated by this statute." The most recent case to discuss sec. 270.58 [(1965-66)], Stats., was Chart v. Dvorak. . . . 17 No. 2007AP385.dtp . . . . . . . Any liability of state employees is governed by the common law as adopted in this state by the supreme court. If the defendants are liable under the applicable doctrines, then sec. 270.58 [(1965-66)] provides that the state will pay the judgment if the action or inaction giving rise to the liability was done in good faith within the scope of state employment. Sec[tion] 270.58 [(1965-66) does not become applicable until after a judgment of liability is entered. . . . . The defendants call this court's attention to the case of Meyer v. Carman. . . . The cases of Meyer v. Carman and Chart v. Dvorak are distinguishable and not contradictory. The Meyer [c]ase, confined to its facts, concerns the absence of personal liability of school board members, where they are considered to be performing discretionary duties. Chart involves the alleged performance of ministerial, nondiscretionary duties. . . . . The Meyer [c]ase reiterates the general rule that "a public officer who knowingly or negligently fails to do a ministerial act which the law requires him to do may be compelled to respond in damages to an injured party." In Chart v. Dvorak the court, applying the ministerial/discretionary distinction, held that highway commission engineers could not be held liable for the decision as to whether or not to locate a traffic sign at a particular place, but that once the decision was made, the signs were to be placed in accord with standards developed by the highway commission. Therefore, the actual placement of the signs was ministerial. This court held that a question of fact was presented as to whether the signs in question had been properly placed. The court also concluded that the named defendants had the nondelegable duty to see that the signs were properly placed. to A different question of fact is presented here as whether the alleged negligence is in the 18 No. 2007AP385.dtp performance of ministerial duties by the individual defendants. It cannot be said on the basis of the complaint that the plaintiffs will be unable to prove any set of facts in support of their claim which would entitle them to relief. Cords, 62 Wis. 2d at 35-41 (emphasis added) (footnotes omitted). ¶74 This brings us back to Lister, where the court stated as follows: The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty. The various exceptions to this rule are determined by a judicial balancing of the need of public officers to perform their functions freely against the right of an aggrieved party to seek redress. The most generally recognized exception to the rule of immunity is that an officer is liable for damages resulting from his negligent performance of a purely ministerial duty. 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. Lister, 72 Wis. 2d at 300-01 (emphasis added) (citations omitted). ¶75 Lister shifted the focus from liability to immunity, and it severely limited the exception to immunity by defining ministerial duty with imperative" that had words been like used "absolute, many years certain before and when governmental immunity, including municipal immunity, was still in full force. inconsistent with This cases rigid, like inflexible Chart 19 and formulation Cords. Lister was never No. mentioned Holytz. 2007AP385.dtp None of the Lister justices had participated in the Holytz decision. ¶76 In N.W.2d 537 1977, (1977), in the Lifer v. supreme Raymond, court 80 Wis. 2d 503, rewrote history as 259 it firmed up the effective restoration of governmental immunity. Rebutting an accident victim's exaggerated argument that under Holytz there should be no distinction between the liability of a state employee and the liability of a private citizen, the court stated as follows: That is not what Holytz says or means. Holytz dealt with the doctrine of sovereign immunity in an action against a governmental body, not a public officer. . . . . Although the plaintiff contends that the defendant is immune from suit only for acts which are legislative, judicial, quasi-legislative or quasijudicial, we base our contrary conclusion on the principles of official immunity set out in Lister that the defendant is not liable for his discretionary acts. To so hold is not to imply that the test for the immunity of a state officer set out in Lister is different from the test for the immunity of a municipal officer under sec. 895.43(3), Stats. A quasi-legislative act involves the exercise of discretion or judgment in determining the policy to be carried out or the rule to be followed. A quasijudicial act involves the exercise of discretion and judgment in the application of a rule to specific facts. Acts that are "legislative, quasi-legislative, judicial or quasi-judicial functions," are, by definition, nonministerial acts. As applied, the terms "quasi-judicial or quasi-legislative" and "discretionary" are synonymous . . . . Lifer, 80 Wis. 2d at 510-12 (citations omitted). ¶77 This pronouncement, unsupported by authority, changed the course of Wisconsin tort law. 20 For, as Professor Prosser No. 2007AP385.dtp noted in his treatise, "It 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." Prosser, supra, at 1017 (quoting Ham v. Los Angeles County, 189 P. 462, 468 (Cal. App. 1920)). ¶78 decisions Lister, that Wisconsin law. Lifer, define and the Kimps have militantly become the unprogressive hallmark state of So far as government responsibility for torts is concerned, immunity has become the rule and liability has become the rare exception. Justice has been confined to a crawl space too narrow for most tort victims to fit. VI ¶79 In the case at hand, the court of appeals was forced to deal with these decisions. Umansky v. ABC Ins. Co., 2008 WI App 101, 313 Wis. 2d 445, 756 N.W.2d 601. Vergeront is scholarly, well-reasoned, The opinion of Judge and highly persuasive. Fortunately, it is being adopted by the majority in an excellent opinion by Justice Crooks. Sooner or later this court will realize that accountability is the price of justice. ¶80 For the reasons stated, I respectfully concur. ¶81 I am authorized to state CROOKS joins this concurrence. 21 that JUSTICE N. PATRICK No. ¶82 2007AP385.akz ANNETTE KINGSLAND ZIEGLER, J. (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. Stadium. employee who was working at Camp Randall 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 recovery. injured would be limited to a worker's compensation The majority opinion also opens the door to allow any frequenter employee. recovery against the state or a state Until today, the state was treated by the legislature differently public fisc. than a private employer in order to protect the 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. 1 Lodl No. 2007AP385.akz 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 for political rather than judicial redress for the actions of public officers." Id., ¶23 (setting forth a number of policy considerations). ¶85 This exceptions. doctrine Id., ¶24. associated with: "1) of immunity, however, is not without There is no immunity against liability 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." ¶86 exception between "The as ministerial a duty recognition discretionary and exception that immunity ministerial Id. is not law acts, so much an distinguishes 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 discretionary assist or in determining ministerial, this whether court has an act is traditionally examined such things as a statute, the administrative code, or 2 No. 2007AP385.akz other materials that are unique to a specific case, such as job descriptions or policy manuals. ¶88 if the For example, in Lister, the court was asked to decide registrar's classification purposes was ministerial in nature. of students Id. at 300. for tuition 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, (1)(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." "[i]t must Lister, 72 Wis. 2d at 301. be conceded that an The court stated that 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 3 No. 2007AP385.akz immunity principle require that the officer be free from the threat of personal liability for damages resulting from mistakes of judgment." ¶90 Id. 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." The plaintiff asserted that the safety director was Id. liable because he breached a ministerial duty set forth in the safety director's job description. Id. at 14. The job description provided in relevant part: "Investigate all incidents and take action to correct the condition or procedure that caused the accident." Id. worker similarly was director The plaintiff argued that because a maintenance should have injured two personally years earlier, tightened the the set safety 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, investigation of mode the and occasion' maintenance for worker's performing accident an and determination of the appropriate corrective action to be taken remained totally discretion." ¶91 In within [the safety director's] judgment and Id. at 15. Lodl, the plaintiff asserted that the police officer had a ministerial duty to manually control traffic at an intersection working. where Lodl, traffic 253 control Wis. 2d 323, 4 lights were ¶¶6-8, 27. no longer This court No. concluded that the applicable statute and 2007AP385.akz 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. ¶92 In Noffke v. Bakke, a Id., ¶¶28-31. plaintiff asserted that cheerleading spirit rules established a ministerial duty that required the cheerleading coach to stunt. N.W.2d 156. We provide 2009 concluded WI a 10, that spotter ¶45, the and 315 mats for Wis. 2d 350, spirit rules were a 760 more appropriately characterized as "guidelines" and did not include mandatory language dictating a specific action. For example, the spirit rules spirit activities should be provided held in a in Id., ¶45-47. part location that "[a]ll 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 coach with significant discretion. ¶93 provided the cheerleading Id., ¶51. 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. 5 The Umanskys and the majority No. 2007AP385.akz 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 the case statutes In order to determine if Fox had a ministerial duty in at hand, it is necessary as well as the to review administrative the code, Wisconsin 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 statute. 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." ¶96 Id. 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 6 No. avoid absurd or unreasonable results." Id. 2007AP385.akz Moreover, the "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." statute's purpose or scope may be readily apparent Id. "A from its plain language or its relationship to surrounding or closelyrelated 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. ¶97 Wisconsin Stat. § 101.055 Id. (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 the 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 . . . . 1 All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 7 No. ¶98 Pursuant to Wis. Stat. § 101.055, the 2007AP385.akz 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. . . . . Comm 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 8 No. 2007AP385.akz 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, employees. Inc. that ministerial duty is owed to public Umansky, however, was a private employee of ABC, Because the relevant provisions address only a duty to public employees, any action Fox could have taken that would have 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 respected; a and statute; it is the legislature's generally not insert words into the statute). omissions acceptable for must be courts to If the legislature meant for this statute to apply to more than just public employees, it could have "frequenters." included other verbiage, such as the word For example, Wis. Stat. § 101.11(1), Employer's 9 No. duty to furnish safe employment and place, 2007AP385.akz 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 . . . ." legislature used (Emphasis no such added.) language to In expand contrast, coverage public employees in the provisions now at issue. the beyond 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. decision. We must respect the legislature's When the legislature enacted protective provisions, it limited that protection to public employees. This, however, does not provide a public employee with more protection than a private their employee face because protect 29 private C.F.R. §§ 1910.2 employees. and 1910.23 Therefore, on 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, 10 No. 2007AP385.akz 26 Wis. 2d 587, 600-01, 133 N.W.2d 301 (1965). The authorizing statute, forth Wis. protections Stat. belong § 101.055, specifically clearly to sets public that employees. If the 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 could have been under no obligation to have a railing in place. discussed this argument as follows, and The court of appeals expressly left 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 11 the No. 2007AP385.akz 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 responsible 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 12 No. 2007AP385.akz 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 "platform" elevated above balcony or as the "[a] for Wisconsin occupational employees." § 1910.21(a)(4), surrounding platform equipment." "minimum C.F.R. defined is 29 floor the Admin. safety working space or and Ch. of for persons, such as machinery Comm health regulated ground; operation Code a 32 a and establishes standards for public 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 Umansky's actual to maintain a railing employer the only would be employer ABC, Inc., 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" Umansky, 313 Wis. 2d 445, ¶64. with respect to this issue. 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. 13 No. 2007AP385.akz ¶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 distinction 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 Wisconsin Administrative Code. the full text of the While Wis. Admin. Code § Comm 32.002 states that "[t]he provisions of this chapter apply to 14 No. all places of employment and public buildings 2007AP385.akz 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 Umanskys' 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 the code protects public employees incorporation by reference of OSHA provisions. Code §§ Comm 32.15 and 32.50. public employee are Compensation provisions. through See Wis. Admin. Both the private employee and the protected under Wisconsin's Worker's See 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 2 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. 15 No. individually. employer. A private employee has recourse 2007AP385.akz against his 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. for this are obvious. Were the Umanskys to The reasons 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. 560 (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 16 No. 2007AP385.akz that many of their allegations, at first glance, would seem to state the statute. type of claim that should be brought under that 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"). opinion follows the Umanskys' lead. The majority 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. 215 Wis. 2d Therefore, 641, Fox, 651, who is 573 a Spencer v. County of Brown, N.W.2d state 222 employee, (Ct. App. 1997). is shielded from liability for a violation of the safe place statute by public officer immunity, which precludes liability against employees for discretionary acts negligently undertaken. state 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 liability. Pitrowski v. Taylor, 55 Wis. 2d 615, 624, 201 N.W.2d 17 No. 2007AP385.akz 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 is employer who 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. 413 (7th Cir. 1991) See United States v. Doig, 950 F.2d 411, (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 18 No. 2007AP385.akz F.2d 26, 29 (6th Cir. 1985) ("OSHA regulations pertain only to employers' conduct.") (citing 29 U.S.C. § 654; McKinnon v. Skil Corp., 638 F.2d 270, 275 (1st Cir. 1981)). As a result, the duty in to comply with OSHA regulations is, 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 immunity. creating because it would be precluded by public officer That is, by using OSHA regulations as the basis for a ministerial duty, OSHA 19 is being used to expand No. liability where it would not otherwise exist. 2007AP385.akz 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 injuries, diseases or death of employees arising out of, or in the course of, employment. 29 U.S.C.A. § 653(b)(4). ¶122 The create a majority new civil opinion claim. is improperly Although one using could OSHA use to 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 public that the officer duty was immunity ministerial."). is asserted as Accordingly, a defense, when 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 20 No. 323, ¶17)). Therefore, if it can be shown that 2007AP385.akz 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 otherwise, 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 governmental immunity is intended to provide. 21 public fisc that No. 2007AP385.akz 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. this case by ignoring the plain The majority disposes of language of the Wisconsin statutes and administrative code and instead improperly relies on OSHA exists. provisions to create a ministerial duty where none Because Fox had no ministerial duty in this case, there is no exception to the rule of immunity. 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. 22 No. 1 2007AP385.akz

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