Melchert v. Pro Electric Contractors

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Justia Opinion Summary

Petitioners brought suit against Pro Electric Contractors for negligence in connection with Pro Electric’s work as a contractor on a government construction project. Pro Electric argued that the damage at issue occurred because of construction design decisions made by the Wisconsin Department of Transportation (DOT) and that Pro Electric was simply implementing DOT’s decisions. The district court granted summary judgment for Pro Electric. The court of appeals affirmed. The Supreme Court affirmed, holding that the undisputed facts do not support a reasonable inference that Pro Electric failed to comply with its duties in Wis. Stat. 182.0175(2)(am).

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2017 WI 30 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP2882 Dr. Randall Melchert, Happy Hobby, Inc. and The Warren V. Jones and Joyce M. Jones Revocable Living Trust, Plaintiffs-Appellants-Petitioners, v. Pro Electric Contractors and Secura Insurance, A Mutual Company, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 363 Wis. 2d 654, 862 N.W.2d 902 (Ct. App. 2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: April 7, 2017 November 9, 2016 Circuit Waukesha James R. Kieffer ABRAHAMSON, J. concurs (opinion filed). BRADLEY, R. G., J. joined by KELLY, J. dissents (opinion filed). NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellants-petitioners, there was a brief by Rudolph J. Kuss, and Stevens & Kuss, S.C., Brookfield, and oral argument by Rudolph J. Kuss. For the defendants-respondents, there was a brief by Amy M. Freiman, Rick E. Hills and Hills Legal Group, LTD, Waukesha, and oral argument by Amy M. Freiman. 2017 WI 30 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP2882 (L.C. No. 2013CV535) STATE OF WISCONSIN : IN SUPREME COURT Dr. Randall Melchert, Happy Hobby, Inc. and The Warren V. Jones and Joyce M. Jones Revocable Living Trust, FILED Plaintiffs-Appellants-Petitioners, APR 7, 2017 v. Pro Electric Contractors and Secura Insurance, A Mutual Company, Diane M. Fremgen Clerk of Supreme Court Defendants-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. We review Affirmed. an unpublished decision of the court of appeals that affirmed the Waukesha County circuit court's1 grant of summary judgment in favor of Pro Electric Contractors ("Pro Electric"), after Pro Electric was sued for negligence in connection with its work as a contractor on a government construction project. Melchert v. Pro Electric Contractors, No. 2013AP2882, unpublished slip op. (Wis. Ct. App. Mar. 11, 2015). 1 The Honorable James R. Kieffer presiding. No. ¶2 Warren Dr. V. Randall Jones and Melchert, Joyce M. Happy Jones Hobby, Inc., Revocable 2013AP2882 and Living The Trust ("Petitioners") brought suit after Pro Electric severed a sewer lateral2 during an excavation, because the broken lateral caused flooding damage to property that Petitioners owned and occupied. Pro Electric moved for summary judgment, asserting immunity as a governmental contractor pursuant to Wis. Stat. § 893.80(4).3 While Pro Electric admitted to severing the sewer lateral, it argued that the damage occurred because of construction design decisions made by the Wisconsin Department of Transportation ("DOT"), and that Pro Electric was merely implementing DOT's decisions. Following a hearing, the circuit court granted the motion and dismissed the case. The court of appeals affirmed. 2 A "sewer lateral" is an underground pipe that connects a property to the sewer system. See Wis. Stat. § 182.0175(2m)(b) (2011-12) (requiring local government units to "mark the locations within the public right-of-way of all laterals connected to the sewer or water facilities . . . ."). All subsequent references to the Wisconsin Statutes are to the 201112 version unless otherwise indicated. 3 Wis. Stat. § 893.80(4) provides: No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. 2 No. ¶3 2013AP2882 This case requires us to address the extent to which governmental immunity protects a private contractor implementing a construction design chosen by a governmental entity. We hold that Pro Electric is immune from liability for severing the sewer lateral because it acted in accordance with reasonably precise design specifications adopted by a governmental entity in the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions. ¶4 This case also requires us to interpret and apply certain provisions of the Digger's Hotline statute, codified at Wis. Stat. § 182.0175. Petitioners allege that Pro Electric caused their damages not only by severing the sewer lateral, but also by backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs to be made, as required by § 182.0175(2)(am)6.-6m.4 Pro Electric is not immune from liability as to this second allegation, because DOT did not provide Pro Electric with reasonably precise specifications for inspecting sewer laterals for damage before backfilling pursuant to § 182.0175(2)(am)6.-6m. Ultimately, however, we affirm the 4 Among other duties, Wis. Stat. § 182.0175(2)(am) requires an excavator to "do all of the following": 6. Before backfilling, inspect all transmission facilities exposed during excavation to ascertain if the transmission facilities have been or may have been struck, damaged, dislocated or disrupted. 6m. Refrain from backfilling an excavation until an inspection is conducted and any necessary repairs have been made by the owner of the transmission facility. 3 No. 2013AP2882 circuit court's grant of summary judgment on the factual record before us. We do so because the undisputed material facts do not support a reasonable inference that Pro Electric failed to comply with its duties under § 182.0175(2)(am). ¶5 We begin with a brief factual background and description of the procedural history, and we next set forth the applicable principles of governmental contractor immunity. We apply these principles respectively to the two aspects of Pro Electric's conduct that allegedly caused Petitioners' damages: (1) Pro Electric's conduct in severing the sewer lateral, and (2) Pro Electric's conduct in backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs to be made, pursuant to Wis. Stat. § 182.0175(2)(am). Finally, we perform the necessary analysis to determine whether Pro Electric is entitled to summary judgment. I. ¶6 FACTUAL BACKGROUND We have set forth the facts that appear in the record and which the parties do not dispute. On July 25, 2011, DOT approved a plan for the improvement of a five-mile stretch of State Highway 190, also known as Capitol Drive, in Brookfield ("Project Plan"). contained The Project Plan spanned over 1,000 pages and specifications and detailed diagrams for the installation of new asphalt pavement, curbs, gutters, sidewalks, and traffic signals. Additionally, the DOT Highway Work Proposal for the project included over 100 pages of "Special Provisions" covering the various 4 aspects of the project, No. including a section on requirements regarding 2013AP2882 underground utilities.5 ¶7 Following the bidding process, DOT awarded the project to Payne & Dolan as the general contractor. On January 5, 2012, Payne & Dolan entered into a subcontractor agreement6 with Pro Electric to perform work on certain parts including the installation of traffic signals. traffic signals, the Project Plan directed of the project, For some of the Pro Electric to install new concrete bases to support the traffic signal poles. ¶8 This case concerns only the installation of the concrete base identified in the Project Plan as "SB2," located at the northeast corner of Capitol Drive and 128th Street and 5 Article 6 of the Special Provisions in the Highway Work Proposal was entitled "Utilities," and among its other provisions it directed contractors to "[c]oordinate construction activities with a call to Diggers Hotline or a direct call to the utilities that have facilities in the area as required per statutes. Use caution to ensure the integrity of underground facilities and maintain code clearances from overhead facilities at all times." 6 Although Pro Electric was a subcontractor, we use the term "contractor" throughout our opinion because "immunity extends to a subcontractor even though it has a contract with a general contractor rather than with a governmental authority." Bronfeld v. Pember Cos., 2010 WI App 150, ¶20 n.3, 330 Wis. 2d 123, 792 N.W.2d 222. The "reasoning for adopting the defense for contractors also applies to subcontractors," because "it is just as unfair for a subcontractor to be subjected to suit for carrying out a governmental directive as it is for the party directly contracting with the government." Jankee v. Clark Cty., 222 Wis. 2d 151, 165-66, 585 N.W.2d 913 (Ct. App. 1998), rev'd on other grounds, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297. 5 No. 2013AP2882 identified by specific coordinates in the Project Plan.7 The Project 10" Plan directed Pro Electric to install a "Type concrete base to support the traffic signal pole for SB2 and to use a circular auger to drill the hole in the ground for the base. The Project Plan specified that a Type 10 base required a hole that was 14 feet deep and 30 inches wide. ¶9 At least three days before Pro Electric started the excavation for SB2, Pro Electric contacted Digger's Hotline. The statute requires an excavator to contact Digger's Hotline at least three days before beginning any excavation.8 § 182.0175(2)(am)1. Wis. Stat. Under the statute, Digger's Hotline is then responsible for contacting the owners of transmission facilities9 in the area, and the owners are responsible for ensuring that 7 The Project Plan provided for SB2 to be located at Station 499+66.8 and at Location 86.8 LT. These coordinates were measured in feet and identified the location to within a tenth of a foot. 8 As defined in Wis. Stat. § 182.0175(1)(b), "excavation" means "any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes . . . augering . . . ." An "excavator" is "a person who engages in excavation." § 182.0175(1)(bm). 9 As defined in Wis. Stat. § 182.0175(1)(c), "transmission facilities" includes "all lines, pipelines, wires, cables, ducts, wirelines and associated facilities, whether underground or aboveground, . . . utility facilities, government-owned facilities, facilities transporting hazardous materials, communications and data facilities, drainage and water facilities and sewer systems." 6 No. 2013AP2882 § 182.0175(1)(d)6., (2m)(a)2.10 such facilities are marked. Pro Electric instructs its employees to inspect the area visually for these markings before beginning excavation. ¶10 Pro Electric's employees augered the hole for SB2 on August 22, 2012. Pro Electric used a circular auger attached to a truck at the end of a boom. performed the work: Two of Pro Electric's employees one was assigned to operate the auger from the truck and the other to monitor the auger and periodically clean it with a shovel. As Craig Clements, president of Pro Electric, affidavit, stated circular auger in his "creates a drilling situation a where hole the with a technician operating the auger has no ability to see into the hole which is being augered." ¶11 DOT retained an engineering firm, HNTB, to ensure Pro Electric's compliance with the Project Plan, and an HNTB engineer, Julie Keller, was onsite to supervise the augering work. The DOT Project Plan warned that "there may be other utility installations within the project which are not shown" on the diagram, but in anticipation of a contractor encountering 10 Wis. Stat. § 182.0175(1m) requires owners of transmission facilities to be members of the Digger's Hotline organization and requires Digger's Hotline to "[a]ccept notices of intended excavation activity" and "[p]romptly transmit notice information to affected-member transmission facilities owners." § 182.0175(1m)(a), (d)3., (d)6. Subsection (2m) makes it the owner's duty to "[r]espond to an excavation notice within 3 working days by marking the location of transmission facilities and, if applicable, laterals as provided under par. (b) in the area described in the excavation notice." § 182.0175(2m)(a)2. 7 No. 2013AP2882 such unexpected utility installations, it further provided that "the engineer may adjust the locations of items under this contract to avoid conflict with existing utility facilities." Keller neither instructed nor authorized Pro Electric to change the location of SB2.11 Nothing in the record suggests that either Pro Electric or Keller was aware, or had any reason to be aware, of any utility facilities in the way of the excavation for SB2. Pro Electric proceeded to complete the Type 10 concrete base in accordance with the specifications set forth in the DOT Project Plan. ¶12 At some point after the project was completed, sewage backed up into an adjoining commercial property. The property was owned by The Warren V. Jones and Joyce M. Jones Revocable Living Trust and occupied by Dr. Randall Melchert and Happy Hobby, Inc., as tenants. It was subsequently discovered that the sewer backup occurred because an underground sewer lateral serving Petitioners' property ran directly through the location of SB2, such that Pro Electric had severed that lateral while constructing SB2. Nothing in the record suggests that either Pro Electric or HNTB was aware at the time of construction that Pro Electric had severed anything. 11 The sewer lateral had been Clements testified that, during an earlier augering excavation on the same DOT project, Pro Electric's employees noticed pieces of green PVC material coming up with the dirt. Keller determined that it was a damaged sewer lateral, and she instructed Pro Electric to move the excavation to a different location in order to allow a sewer contractor to make repairs. 8 No. made of clay, and the surrounding soil was also 2013AP2882 clay, thus making it unlikely that indicia of the damage would have been apparent among the material the auger was up.12 bringing Clements stated in his affidavit that "[n]o employee of Pro Electric ever reported to me, HNTB, or the general contractor that any sewer lateral was struck during the installation of SB2. All Pro Electric employees were instructed that any such incident would need to be reported immediately." II. ¶13 PROCEDURAL HISTORY On March 1, 2013, Petitioners sued Pro Electric in the Waukesha County circuit court. Electric negligently completed the project Their complaint alleged that Pro severed the without sewer repairing lateral it. The and then complaint further alleged that, by doing so, Pro Electric thereby caused flooding and water damage to Petitioners' property, along with monetary losses, answer, Pro inconvenience, Electric asserted and other immunity damages. from suit In as 12 its a Clements explained that the similarity of the materials is significant because of how augering works. An auger, he testified, grinds and pulverizes the ground and slowly starts bringing dirt to the surface. If the sewer line would have been PVC we would have immediately saw that there was something there. As an auger augers it's pushing everything up, and it will push everything into any voids in the hole, so as you look in a hole you will not see a pipe or anything because it gets packed with dirt. They had no way of knowing. If it would have been a newer one, yes, we would have known right away. 9 No. governmental contractor. The court held a 2013AP2882 summary judgment hearing on Pro Electric's motion on November 18, 2013. ¶14 In an oral ruling following the hearing, the circuit court granted summary judgment in favor of Pro Electric, ruling that it was immune from liability. The court concluded that, "under any reasonable view of the evidence, DOT design choices regarding the location and the depth of the traffic light caused this accident here. the government." Digger's Those relevant design choices were made by The Hotline court statute, did not Wis. consider Stat. whether § 182.0175, the imposed additional duties on Pro Electric, because the court determined that the statute did not apply. granted summary judgment to Therefore, the circuit court Pro Electric and dismissed Petitioners' case. ¶15 The court of appeals affirmed, concluding that Pro Electric was immune from liability for any damages that resulted from severing the sewer lateral. The court of appeals determined that the "project design decision [of] where and how to install the traffic light, as implemented by Pro Electric, is entitled to immunity under Wis. Stat. § 893.80(4) 'because it was made through legislative, governmental the judicial, entity.'" exercise or of a legislative, quasi-judicial Melchert, function unpublished slip quasiof the op., ¶11 (quoting Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶34, 350 Wis. 2d 509, 835 N.W.2d 226). Petitioners' allegation "backfilling the hole that Pro without 10 The court also examined Electric repairing was the negligent severed in sewer No. 2013AP2882 lateral," concluding that the record "does not support a causal connection between [Petitioners'] specific negligence . . . and the alleged injury." III. ¶16 allegations Id., ¶¶12-13. STANDARD OF REVIEW We review a grant of summary judgment independently, using the same methodology as the circuit court. Dep't of Soc. Wis. 2d 637, rendered of 728 if Servs. Nicole N.W.2d 652. the interrogatories, v. W., "The pleadings, and admissions 2007 WI judgment Oneida Cty. 30, sought depositions, on file, ¶8, 299 shall be answers together with to the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ¶17 Wis. Stat. § 802.08(2). "We review questions of statutory interpretation and application independently, but benefiting from the discussions of the circuit Grunke, 2008 "[D]etermining WI court and 82, the ¶10, whether court 311 of appeals." Wis. 2d 439, governmental 752 immunity State v. N.W.2d 769. exists for particular conduct requires the application of legal standards to the facts found, which is also a question of law for our independent review." Showers, 350 Wis. 2d 509, ¶21. IV. A. DISCUSSION General Principles of Governmental Contractor Immunity ¶18 Our discussion begins with the longstanding principle that a governmental entity is immune from liability for acts done "in the exercise of its legislative or judicial or quasilegislative or quasi-judicial functions." 11 Holytz v. City of No. Milwaukee, 17 legislature Wis. 2d 26, has § 893.80(4). 40, codified 115 this N.W.2d 618 principle 2013AP2882 (1962). in The Wis. Stat. Showers, 350 Wis. 2d 509, ¶24 (citing Coffey v. City of Milwaukee, 74 Wis. 2d 526, 532, 247 N.W.2d 132 (1976)). As we have recognized, immunity under § 893.80(4) "is available to a governmental entity only for those governmental decisions that are made as an exercise of 'legislative, quasi-legislative, judicial or quasi-judicial Wis. 2d 509, ¶35.13 functions.'" Showers, 350 "Legislative and quasi-legislative functions generally refer to those policy choices made in an official capacity, e.g., when a governmental entity chooses one project design over another." Id., ¶26 (citing Estate of Lyons v. CNA Ins., 207 Wis. 2d 446, 453, 558 N.W.2d 658 (Ct. App. 1996)). ¶19 It is also well established that a governmental entity's immunity may extend to private contractors acting as agents of the governmental entity. 58. Lyons, 207 Wis. 2d at 457- A contractor asserting governmental immunity must prove two elements. First, the contractor must show that it was an "agent" of the governmental entity under "the Lyons test, i.e., whether the governmental entity 13 approved reasonably precise As we emphasized in Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226, "[a]lthough some of our cases have equated § 893.80(4)'s 'legislative, quasi-legislative, judicial or quasi-judicial' standard with the term 'discretionary,' and although our decision is not intended in any way to alter that standard," the statute is best interpreted "by applying the legislature's chosen plain language, rather than a judicial distillation thereof." Id., ¶35 (citations omitted). 12 No. 2013AP2882 specifications that the governmental contractor adhered to when engaging in the conduct that caused the injury." Showers, 350 Wis. 2d 509, ¶37.14 ¶20 Second, test . . . a "in addition asserting contractor to satisfying immunity must the be Lyons able to demonstrate that the conduct for which immunity is sought was the implementing of a governmental entity's decision made during the exercise of the entity's legislative, judicial, or quasi-judicial functions." because the contractor's immunity quasi-legislative, Id., ¶45. "is This is so dependent upon the immunity of the governmental act or decision that the agent was implementing when it caused an injury." Id., ¶35. If that act or decision was made during the exercise of the governmental entity's legislative, judicial functions, quasi-legislative, the governmental judicial, entity's For a quasi- immunity extend to an agent implementing that act or decision. ¶21 or may Id., ¶34. private entity such as Pro Electric that is contracting with a governmental entity, this is where immunity ends. A contractor is not immune from liability if the governmental entity did not direct the injury-causing conduct 14 The decision in Estate of Lyons v. CNA Insurance, 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), also considered a contractor's independent "duty to the public [not to] withhold information about dangers that the government might not know about." Id. at 457 (citing Boyle v. United Techs. Corp., 487 U.S. 500, 512-13 (1988)). However, Showers clarified that this part of Lyons "does not bear on whether statutory agency is present." Showers, 350 Wis. 2d 509, ¶37 n.15. 13 No. 2013AP2882 with reasonable precision in the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions. As we explained in Showers, the DOT contractor in that case was not immune from allegations of negligent construction work, in part because the contractor had not demonstrated that the allegedly negligent acts "were the implementation of a governmental entity's exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions." Id., ¶54. The overarching principle is that a "governmental contractor [is] entitled to the same level of immunity as would be accorded governmental entity had it been sued directly . . . ." to the Id., ¶31 (citing Lyons, 207 Wis. 2d at 454). B. The Legislative or Quasi-Legislative Nature of Construction Design Decisions ¶22 Decisions individual regarding elements the design incorporated and into placement larger of government construction projects have been held to be legislative or quasilegislative decisions. Metropolitan Sewerage For example, in Allstate Insurance v. Commission of County of Milwaukee, 80 Wis. 2d 10, 258 N.W.2d 148 (1977), a driver was injured in an accident with a truck which was servicing a manhole located in the middle relevant of the street. governmental entity The was plaintiffs claimed negligent for that the placing the manhole in that particular location, id. at 14, but the court held that governmental immunity applied. "[T]he decisions of the [governmental entity] in planning and designing the system in question, including the placement 14 of the manhole, were No. 2013AP2882 legislative acts performed in response to its authority to plan and construct sewer systems . . . ." omitted). Id. at 15-16 (footnote Similarly, "decisions concerning the adoption of a waterworks system, the selection of the specific type of pipe, the placement of the pipe in the ground, and the existence of such pipe" are entitled to immunity. continued Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶60, 277 Wis. 2d 635, 691 N.W.2d 658. It is, indeed, well settled that "acts of designing, planning, and implementing are legislative or quasi-legislative acts subject to immunity under [Wis. Stat.] § 893.80(4)." Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶41 n.21, 350 Wis. 2d 554, 835 N.W.2d 160. C. ¶23 aspects We of now Pro Pro Electric's Immunity apply the foregoing Electric's Petitioners' damages: conduct principles that to the allegedly two caused (1) Pro Electric's conduct in severing the sewer lateral, and (2) Pro Electric's conduct in backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs § 182.0175(2)(am). 1. to be made, pursuant to Wis. Stat. We address each allegation in turn. Pro Electric is Immune From Liability For Severing the Sewer Lateral ¶24 Pro Electric is immune from liability for severing the sewer lateral, because the DOT Project Plan provided reasonably precise specifications for Pro Electric's augering, Pro Electric severed the sewer lateral by adhering to those specifications, and DOT adopted the specifications 15 in the exercise of its No. legislative, quasi-legislative, judicial, or 2013AP2882 quasi-judicial functions. ¶25 Petitioners conceded at oral argument that the specifications in DOT's Project Plan for Pro Electric's augering were reasonably precise and that those specifications exactly. Pro Electric complied with While we are not bound by the concessions of the parties, see State v. Hunt, 2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851 N.W.2d 434, we agree that a factual basis exists for Petitioners' concessions. ¶26 As for reasonable specificity, DOT directed the exact location for the augering using measured coordinates and specified the dimensions of the augering by directing that SB2 was to be constructed with a Type 10 base. required a hole with diameter and 14 feet concrete exposed particular deep, above with ground. A Type 10 base dimensions: between These 2 30 inches in 4 inches of and dimensions gave Pro Electric discretion of no more than two inches as to the depth of the hole. DOT also specified the method of excavation: "Bases shall be excavated by use of a circular auger." testified that this was a precise instruction, Clements because variations among types of augers concern only the size, type of teeth, or the kind of truck on which the auger is mounted; otherwise, "[a]n auger's an auger." Given these facts and the fact that Petitioners do not contest this point, we have no difficulty concluding that DOT's specifications for the augering were reasonably precise. 16 No. ¶27 2013AP2882 Petitioners have also conceded that, when Pro Electric augered the hole for the concrete base for SB2, Pro Electric followed DOT's reasonably precise specifications as to the location and dimensions of the hole and the method of augering. Although change Keller, the the DOT-retained location of SB2, Pro engineer, Electric had did authority not. As to the circuit court concluded, Pro Electric "did what they were told to do by the DOT. material therefore fact as In my opinion, there is no genuine issue of it conclude relates that to Pro that." Electric We agree, complied and with we DOT's reasonably precise specifications as to the specific augering activities that severed the sewer lateral. ¶28 Finally, DOT adopted the specifications for Pro Electric's augering in the exercise of its legislative or quasilegislative functions. The project at issue was governed by the DOT Project Plan, which was prepared at DOT's direction and approved by DOT prior to the start of the project. By providing the final approval to the entire Project Plan, DOT thereby made all the replace, relevant where decisions to put them, about and which even traffic the signals precise size to of concrete bases to use. ¶29 In Allstate, we concluded that "the decisions of the [governmental entity] in planning and designing the system in question, including the placement of the manhole, were legislative acts performed in response to its authority to plan and construct sewer systems . . . ." 15-16 (footnote omitted). Allstate, 80 Wis. 2d at Similarly, in choosing to approve the 17 No. 2013AP2882 Project Plan in this case, DOT was exercising its legislatively delegated authority to "direct, undertake and expend state and federal aid for planning, promotion and protection activities in the areas of highways, enforcement . . . ." motor vehicles, Wis. Stat. § 85.02(1). [and] traffic law The placement of a traffic signal in a highway project is akin to the placement of a manhole in a sewer system, and "[i]t is not for the court to be judge or jury to 'second guess' [governmental entities] in these determinations negligence." ¶30 nor to find they are liable for Allstate, 80 Wis. 2d at 16.15 In light of the foregoing, we agree with the circuit court and court of appeals and hold that Pro Electric severed the sewer lateral as an agent implementing a legislative or quasi-legislative DOT design decision. made the decision to auger that DOT——not Pro Electric—— particular hole in that particular place, and all of the evidence suggests that Pro 15 Petitioners argue that "DOT's directive was not the injury-causing act; the injury-causing act was Pro Electric's negligent severing of the sewer lateral through its performance of construction work." However, Petitioners have failed to demonstrate a meaningful distinction between the two in this case. Petitioners concede that the DOT designs directed Pro Electric to excavate using a circular auger to a precise depth in a precise location, and neither side disputes the fact that this is the conduct that severed the sewer lateral. In this situation, immunity depends not on the character of the contractor's acts but "upon the immunity of the governmental act or decision that the agent was implementing when it caused an injury." Showers, 350 Wis. 2d 509, ¶35 (emphasis added). Therefore, our focus is properly on DOT's decision to adopt the specifications that caused Pro Electric to sever the sewer lateral. 18 No. 2013AP2882 Electric severed the sewer lateral not because of the manner in which Pro Electric chose to do the augering, but simply because the Project Plan directed Pro Electric as to exactly where and how to auger. 2. Pro Electric Is Not Immune From Liability For Backfilling the Excavation Without Inspecting the Sewer Lateral ¶31 Petitioners' second allegation is that Pro Electric negligently sewer backfilled lateral for its damage excavation and without allowing inspecting repairs despite having a statutory duty to do so. to be the made, Petitioners argue that, pursuant to Wis. Stat. § 182.0175(2)(am), Pro Electric had an "independent statutory duty to inspect its excavation, to ascertain if the sewer lateral had been or may have been severed or damaged, and to refrain from backfilling its excavation until an inspection was conducted and all necessary repairs were completed." ¶32 may Petitioners make two arguments as to why Pro Electric not enjoy immunity from liability for this allegation. First, Petitioners argue that Pro Electric was not acting as DOT's agent in regard to its compliance with Wis. Stat. § 182.0175(2)(am) and instead was "solely responsible for the means and methods of inspecting its excavation, ascertaining if there was any damage, and refraining from backfilling until all necessary repairs were completed." Second, Petitioners argue that the duties imposed by § 182.0175(2)(am) do not implicate legislative, quasi-legislative, functions under our case law. 19 judicial, or quasi-judicial No. ¶33 2013AP2882 Pro Electric does not rebut these arguments. The DOT Highway Work Proposal assigned responsibility to Pro Electric to "[c]oordinate construction activities with a call to Digger's Hotline or a direct call to the utilities that have facilities in the area as required per statutes" and to "[u]se caution to ensure the integrity of underground facilities." The Project Plan did not provide reasonably precise specifications for how to fulfill these responsibilities, and there would have been ample room for Pro Electric's discretion if, for instance, it had discovered a damaged sewer lateral during excavation. "contractor may injury-causing not possess action and such still control be over considered the an A alleged agent for purposes of governmental contractor immunity under Wis. Stat. § 893.80(4)." ¶34 Showers, 350 Wis. 2d 509, ¶51. Therefore, Pro Electric was not acting as DOT’s agent in this regard, and immunity would not shield Pro Electric from liability. to the duties Given this conclusion, there is no need to proceed next step imposed legislative, functions. ¶35 in by the Wis. analysis Stat. quasi-legislative, and determine whether § 182.0175(2)(am) judicial, or the implicate quasi-judicial We therefore do not decide that question. For these reasons, Pro Electric does not enjoy governmental immunity for a failure to inspect the excavation to look for the severed sewer lateral backfilling until repairs were made. not end here. and to refrain from But our discussion does Rather, we must now apply the traditional summary judgment standards to the facts of the case. 20 No. D. ¶36 Summary 2013AP2882 Summary Judgment judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." § 802.08(2). Wis. Stat. "[A]ny doubts as to the existence of a genuine issue of material fact are resolved against the moving party. However, evidentiary facts set forth in the affidavits or other proof are taken as true by a court opposing affidavits or other proof." if not contradicted by L.L.N. v. Clauder, 209 Wis. 2d 674, 684, 563 N.W.2d 434 (1997) (citations omitted). ¶37 In order for Petitioners to have a viable common-law negligence claim against Pro Electric for backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs to be made, Petitioners must plead facts, which if proved true, would establish the following four elements: (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the [breach]. Brandenburg v. Briarwood Forestry Servs., LLC, 2014 WI 37, ¶6, 354 Wis. 2d 413, 847 N.W.2d 395 (quoting Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶23, 291 Wis. 2d 283, 717 N.W.2d 17). 1. Pro Electric's Duties under Wis. Stat. § 182.0175(2)(am) ¶38 As to the element of duty, generally "every person is subject to a duty to exercise ordinary care in all of his or her 21 No. activities." 2013AP2882 Id., ¶7 (quoting Behrendt v. Gulf Underwriters Ins., 2009 WI 71, ¶3, 318 Wis. 2d 622, 768 N.W.2d 568). In this case, of we asked Digger's the Hotline parties to statute, brief in the relevance particular Wis. the Stat. § 182.0175(2), including a discussion of whether the facts in the record demonstrate compliance with the statute. Although the parties disagree as to whether Pro Electric complied with § 182.0175(2)(am), neither has disputed the notion that demonstrating noncompliance with § 182.0175(2)(am) is essential to Petitioners' claim that Pro Electric was negligent in backfilling the excavation without inspecting the sewer lateral for damage conceded and at allowing oral § 182.0175(2)(am) repairs argument would support to be that a made. Pro Electric noncompliance negligence claim, with and Petitioners have not presented any argument as to how the duty of ordinary care in regard to the specifically alleged negligent conduct would differ § 182.0175(2)(am).16 from Therefore, 16 the we duties assume for imposed by purposes of Petitioners allege in their Second Amended Complaint that "it was obvious to [Pro Electric's] workers at the time that they were drilling through a sewer lateral," and that Pro Electric was therefore negligent when it "proceeded with the installation of the light pole without warning any of the occupants of the building that the sewer lateral was severed nor did they take remedial action to repair or reroute the sewer lateral around the pole." In their briefs before this court, Petitioners characterize these allegations solely in terms of the duties imposed by Wis. Stat. § 182.0175(2)(am), arguing that Pro Electric had an "independent statutory duty to inspect its excavation, to ascertain if the sewer lateral had been or may have been severed or damaged, and to refrain from backfilling (continued) 22 No. 2013AP2882 deciding this case that Pro Electric's duty of care under the circumstances here is coextensive with the requirements of § 182.0175(2)(am). ¶39 Subsection (2)(am) is titled "Excavation notice" and begins by providing that an excavator shall "[p]rovide advance notice [to Digger's Hotline] not less than 3 working days before the start of nonemergency § 182.0175(2)(am)1. excavation." Subsection (2)(am) also Wis. requires Stat. that, while excavating, the excavator must maintain minimum clearances around any "marking for an unexposed transmission facility that is marked under sub. (2m)," though it may reduce that clearance "[w]hen the underground transmission facility becomes exposed or if the transmission § 182.0175(2)(am)3. facility Additionally, is after already the exposed." excavation is complete, the excavator must, "[b]efore backfilling, inspect all transmission facilities exposed during excavation to ascertain if the transmission facilities have been or may have been struck, damaged, dislocated or disrupted," and shall "[r]efrain from backfilling an excavation until an inspection is conducted and any necessary repairs have been made by the owner of the transmission facility." 2. § 182.0175(2)(am)6.-6m. There Is No Issue of Material Fact As To Whether Pro Electric Complied With Its Duties Under Wis. Stat. § 182.0175(2)(am) its excavation until an inspection was conducted necessary repairs were completed" (emphasis added). 23 and all No. ¶40 2013AP2882 The undisputed facts in the record establish that Pro Electric complied its There § 182.0175(2)(am). with is duties no under dispute that Wis. Pro Stat. Electric contacted Digger's Hotline at least three days before beginning excavation. Nor is there any evidence to indicate the presence of any markings indicating that the sewer lateral was in the way of the excavation. buried their The statutes clearly impose the duty to mark transmission owners, not facilities——including on an excavator. sewer laterals——on § 182.0175(2m)(a)(2). Nothing in the record permits a reasonable inference that the presence of the sewer lateral was anything other than a surprise to all involved. ¶41 Further, there are no facts from which it could be inferred that the sewer lateral was a "transmission facilit[y] exposed during excavation," triggering Pro Electric's duty to inspect it for damage and refrain from backfilling until repairs could be made. Wis. Stat. § 182.0175(2)(am)6.-6m. Clements explained in his deposition that augering generally pulverizes and grinds the material together, making it highly unlikely that pieces of a clay pipe would be identifiable in clay soil. He testified that when Pro Electric hit a different sewer lateral on a previous excavation, Pro Electric noticed it because pieces of green PVC material were visible amid the soil that was coming up. But here, both the buried sewer lateral and the surrounding soil consisted of clay-colored material. Furthermore, the hole was relatively narrow, being 14 feet deep while only 30 inches wide. Augering in this situation, Clements stated, generally 24 No. 2013AP2882 "creates a situation where the technician operating the auger has no ability to see into the hole which is being augered." The lateral here could not have been open to view, because of the way that an auger typically "will push everything into any voids in the hole, so as you look in a hole you will not see a pipe or anything because [the hole] gets packed with dirt." Clements further stated that, although Keller was supervising Pro Electric's work and one of Pro Electric's employees was assigned to monitor the auger and periodically clean it with a shovel, no one reported seeing any indication that they had hit a sewer lateral. ¶42 Petitioners do not dispute these facts except to argue that, because Clements was not present at the job site, his deposition cannot "conclusively establish[] that Pro Electric inspected its excavation, ascertained if the sewer lateral had been or may have been severed or damaged, and refrained from backfilling its excavation . . . as § 182.0175(2)(am)." Electric to inspection excavation. its excavation; transmission Wis. by Wis. Stat. However, the statute does not require Pro inspect of required Stat. rather, facilities exposed § 182.0175(2)(am)6.-6m. it requires during The the only evidence Petitioners produced in this regard was a photograph taken after the fact, which depicted wider excavations done later to repair the sewer lateral and in no way represented that the sewer lateral would have been exposed to Pro Electric at the time of augering. A party opposing summary judgment "must show, by affidavit or other proof, the existence of disputed material 25 No. facts or undisputed alternative material inferences may facts be from drawn that entitle the opposing party to a trial." 683. Petitioners have not met which are 2013AP2882 reasonable sufficient to Clauder, 209 Wis. 2d at this burden, because the undisputed material facts they have presented do not support a reasonable inference that Pro Electric violated § 182.0175(2)(am). ¶43 Therefore, we hold that Petitioner has not identified any material fact supporting a reasonable inference that Pro Electric failed to § 182.0175(2)(am). under the Petitioners' comply with its duties under Wis. Stat. Pro Electric did what it was required to do statute, and attempts based on to suggest the that record the sewer before us, lateral was exposed to Pro Electric during the excavation amount to mere speculation. Pro Electric is therefore entitled to summary judgment. V. ¶44 CONCLUSION We hold that Pro Electric is immune from liability for Petitioners' allegations that it was negligent in severing the sewer lateral, and we hold that Pro Electric is entitled to summary judgment on Petitioners' allegation that it was negligent in backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs to be made pursuant to Wis. Stat. § 182.0175(2)(am). ¶45 Pro Electric is immune from liability for severing the sewer lateral, because it acted in accordance with reasonably precise design specifications adopted by a governmental entity 26 No. 2013AP2882 in the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions. At the same time, Pro Electric is not immune from liability for backfilling without inspecting the sewer lateral pursuant to Wis. Stat. § 182.0175(2)(am), because DOT did not provide Pro Electric with precise specifications for inspecting damaged § 182.0175(2)(am), regard to these utilities so Pro duties. before Electric backfilling was Ultimately, not DOT's however we pursuant agent to with affirm the circuit court's grant of summary judgment on the factual record before us. We do so because the undisputed material facts do not support a reasonable inference that Pro Electric failed to comply with its duties in § 182.0175(2)(am). For these reasons, we affirm the decision of the court of appeals. By the Court.—The decision affirmed. 27 of the court of appeals is No. ¶46 SHIRLEY S. ABRAHAMSON, J. 2013AP2882.ssa (concurring). I agree that the decision of the court of appeals should be affirmed. I would affirm the decision, however, by dismissing the petition for review as having been improvidently granted. ¶47 The court should dismiss the petition as improvidently granted because, as the majority opinion explains at length, the two issues appeals the parties consistently raised with were Showers decided by Appraisals, the LLC court v. of Musson Bros., Inc., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226, and Estate of Lyons v. CNA Insurance Companies, 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996).1 read as deviating from The majority opinion should not be Showers and Lyons or changing our governmental contractor immunity law in any way. ¶48 A third issue was directed to the parties court's order granting the petition for review. in the The parties were directed to address whether the Diggers Hotline statute, Wis. Stat. § 182.0175(2), creates a ministerial duty, and to discuss the relevance of the statute to the case, whether the facts in the record demonstrate compliance with the statute, and if so, how. Justices Ann Walsh Bradley and Annette K. Ziegler concurred this 1 in order, expressing their concern that this The parties raised two issues for this court to address: Was Pro Electric Contractors acting as a governmental agent as that term is used in Wis. Stat. § 893.80(4)? Was the alleged injurious conduct caused by the implementation of a government decision for which immunity is available under Wis. Stat. § 893.80(4)? 1 No. 2013AP2882.ssa third issue "could place this court in the role of fact-finder." Their concern proved prescient. ¶49 With regard to this third issue, the majority opinion recites and applies well-established principles of summary judgment law, and then declares that no issue of material fact exists regarding whether Pro Electric complied with its duties under Wis. Stat. § 182.0175(2). ¶50 members My of immunity final the cases, comment court but on have that dismissal raised are not regards previously raised parties or the court in the instant case: revisit the Wisconsin interpretation case law of defining Wis. Stat. legislative, judicial, and quasi-judicial functions? or issues in that government answered by the Should the court § 893.80? Revisit quasi-legislative, And revisit Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962)?2 These issues are not before the court and should not be decided in the instant case. We should not bypass the adversary process.3 2 See Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78, ¶¶131-138, 350 Wis. 2d 554, 835 N.W.2d 160 (Abrahamson, C.J., dissenting); Nicholas J. Bullard, Comment, Pushing the Reset Button on Wisconsin's Governmental Immunity Doctrine, 2014 Wis. L. Rev. 801. 3 "As various members of this court have said, we should not 'reach out and decide issues' that were not presented to the court by the parties." Dairyland Greyhound Park, Inc., v. Doyle, 2006 WI 107, ¶335, 295 Wis. 2d 1, 719 N.W.2d 408 (Roggensack, J., concurring in part and dissenting in part) (quoting Town of Beloit v. Cty. of Rock, 2003 WI 8, ¶72, 259 Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)). See also State v. Thompson, 2012 WI 90, ¶¶9, 57, 342 Wis. 2d 674, 680, 695, 818 N.W.2d 904 (declaring that the court should not decide issues that are not briefed). (continued) 2 No. ¶51 Because the majority opinion does not 2013AP2882.ssa in any way develop the law of the state, which is the function of this court,4 the petition for review should be dismissed as improvidently granted. The United States Supreme Court has often explained the fundamental importance of the adversarial presentation of issues. See, e.g., Penson v. Ohio, 488 U.S. 75, 84 (1988); Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981); Mackey v. Montrym, 443 U.S. 1, 13 (1979). 4 Wis. Stat. § (Rule) 809.62(1r); State v. Moeck, 2005 WI 57, ¶94, 280 Wis. 2d 277, 314, 695 N.W.2d 783, 802 (Prosser, J., dissenting) ("The [Wisconsin] supreme court is a law-defining, law-developing court.") (citing Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997)). 3 No. ¶52 REBECCA GRASSL BRADLEY, J. 2013AP2882.rgb (dissenting). When this court abrogated the common law doctrine of sweeping governmental immunity in N.W.2d 618 Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 (1962), it lamented that "[t]he rules surrounding municipal tort immunity have resulted in . . . highly artificial judicial distinctions." Id. at 32. More than a half century later, "artificial judicial distinctions" once again pervade our governmental immunity opportunity to fix cases, this and the creeping majority error. overlooks an Although the legislature grants immunity to certain governmental entities and their agents only "for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions," Wis. Stat. § 893.80(4) (2015-16),1 place a distortion judicial the of majority this opinion statutory leaves language in that instead ties immunity to a "discretionary" versus "ministerial duty" test invented by the judiciary. legislature's textually limited The court supplants the immunity in favor of an expansive interpretation of a doctrine long ago abolished but nevertheless repeatedly resurrected by this court's problematic case law. Because the majority opinion perpetuates a non- textual interpretation of § 893.80(4), I respectfully dissent. Further, because a genuine issue of material fact exists as to whether Pro Electric inspected the hole before filling it, I would reverse the court of appeals' decision and remand for further proceedings. 1 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 1 No. 2013AP2882.rgb I ¶53 The Holytz court unsparingly criticized governmental immunity, explaining that the doctrine's "origin seems to be found in the ancient and fallacious notion that the king can do no wrong." 17 Wis. 2d at 33 (internal quotation mark omitted) (quoting Britten v. City of Eau Claire, 260 Wis. 382, 386, 51 N.W.2d 30 (1952)). For decades before Holytz, multiple courts and scholars foreshadowed the Holytz court's critique. century ago, Justice Wanamaker of the Ohio Almost a Supreme Court observed that governmental immunity "has been shot to death on so many different battlefields that it would seem utter folly now to resurrect it." Fowler v. City of Cleveland, 126 N.E. 72, 77 (Ohio 1919) (Wanamaker, J., concurring). More than 70 years ago, the New Mexico Supreme Court exclaimed: It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, "the King can do no wrong", should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs. Barker v. City of Santa Fe, 1943-NMSC-012, ¶11, 136 P.2d 480 (internal quotation mark omitted) (quoting Annotation, 75 A.L.R. 1196 (1931)). Later, the Florida Supreme Court determined: "[T]he time has arrived to declare this doctrine [anachronistic] not only to our system of justice 2 but to our traditional No. concepts of democratic government." Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 132 (Fla. 1957). retracting an unequivocally antiquated held, common 2013AP2882.rgb Joining other courts in law "[H]enceforward, so doctrine, far as this court governmental responsibility for torts is concerned, the rule is liability—— the exception is immunity." ¶54 Holytz, 17 Wis. 2d at 39. Mindful of its role under Wisconsin's constitutional structure, this court acknowledged that, "[i]f the legislature deems it better public reinstate immunity." policy, Id. at 40. scope of its abrogation: it is, of course, free to This court also explained the "Our decision does not broaden the government's obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision." Id. at 39-40 (emphasis added). Specifically, this court added that its decision should not "be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions." ¶55 Id. at 40 (citing Hargrove, 96 So. 2d at 133). A year later, the legislature responded by enacting an exception to liability echoing the language in Holytz, granting immunity only "for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." of 1963, ch. 198, § 331.43(3). As amended, the Laws current statutory language remains substantially similar: No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, 3 No. 2013AP2882.rgb officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. Wis. Stat. § 893.80(4) (emphasis added). ¶56 Over time, however, this court's decisions in governmental immunity cases have enlarged the limited exception to liability first articulated in Holytz and, importantly, later adopted by the legislature. Recently, the court described the current state of Wisconsin law: The court has interpreted the words "legislative, quasi-legislative, judicial or quasi-judicial functions" in Wis. Stat. § 893.80(4) to be synonymous with the word "discretionary." If an act is discretionary, then governmental immunity provided by Wis. Stat. § 893.80(4) applies. There is no immunity, however, for liability associated with "the performance of ministerial duties imposed by law." Legue v. City of Racine, 2014 WI 92, ¶42, 357 Wis. 2d 250, 849 N.W.2d 837 (footnote omitted) (first citing Lister v. Bd. of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976); then quoting Brown v. Acuity, 2013 WI 60, ¶42, 348 Wis. 2d 603, 833 N.W.2d 96).2 explaining The majority does not disturb that interpretation, that, although Wis. 2 Stat. § 893.80(4) "is best For in-depth discussion of the governmental immunity doctrine's evolution since Holytz, see generally Legue v. City of Racine, 2014 WI 92, ¶¶35-43, 357 Wis. 2d 250, 849 N.W.2d 837; Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160 (Gableman, J., concurring); Umansky v. ABC Ins. Co., 2009 WI 82, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring); Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶60-99, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting). 4 No. interpreted language, court's 'by applying rather "decision than a is not the judicial intended 'discretionary'] standard." quotation mark omitted) legislature's distillation in any 2013AP2882.rgb chosen plain thereof,'" way to alter the [the Majority op., ¶19 n.13 (internal (quoting Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶35, 350 Wis. 2d 509, 835 N.W.2d 226). ¶57 Criticism of this court's interpretation of Wis. Stat. § 893.80(4) is well-documented in recent cases and need not be repeated at length. See, e.g., Legue, 357 Wis. 2d 250, ¶43 ("The court's explication and application of the doctrine of governmental immunity under Wis. Stat. § 893.80(4) has come under increasing criticism by members of the court."); Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶103, 350 Wis. 2d 554, 835 N.W.2d 160 (Gableman, J., concurring) ("[T]his court continues to apply a series of doctrines that have no connection to statute . . . or the our text of decision to the municipal abrogate all immunity governmental immunity in Holytz . . . ."); Umansky v. ABC Ins. Co., 2009 WI 82, ¶78, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring) ("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."); Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶79, 262 Wis. 2d 127, 663 N.W.2d 715 (Prosser, J., dissenting) ("In effect, this methodology has made the rule become immunity——the exception, liability."). 5 No. ¶58 Justice Milwaukee Gableman's Metropolitan Wis. 2d 554, 835 concurrence Sewerage N.W.2d 160, in District, stands out 2013AP2882.rgb Bostco 2013 among LLC WI the v. 78, 350 critiques because it offers an alternative interpretation of Wis. Stat. § 893.80(4). The Bostco concurrence advocates "adopt[ing] the 'planning-operational distinction' governmental is action "grants judicial, immunity executive and determine 'legislative, judicial, or quasi-judicial.'" approach to whether quasi-legislative, 350 Wis. 2d 554, ¶103. only to upper-level administrative That legislative, policy and planning decisions rather than to any decision that might be made." (emphasis added) Municipal (quoting Corporations [hereinafter 18 Eugene § 53:16, McQuillin]). McQuillin, at 236 Compared The (3d to ed. the Id. Law of 2013) prevailing interpretation of Wis. Stat. § 893.80(4) as granting immunity to "discretionary" acts, the planning-operational distinction comes closer to narrowing "legislative, functions."3 the field quasi-legislative, of what judicial this or court deems quasi-judicial Using the planning-operational distinction as a definition of the statutory phrase, however, suffers from the same shortcoming that afflicts the court's current approach: replaces the legislature's chosen language with a it judicially manufactured standard. 3 For further discussion of the planning-operational distinction in the context of Wisconsin law, see also Nicholas J. Bullard, Comment, Pushing the Reset Button on Wisconsin's Governmental Immunity Doctrine, 2014 Wis. L. Rev. 801, 824-28. 6 No. ¶59 2013AP2882.rgb Rather than layering the court's favored standard over the statutory text——or simply asserting that a particular action is "legislative or quasi-legislative," as the majority does here——the appropriate interpretive tool is to critically assess the original meaning of "legislative, judicial or quasi-judicial functions."4 quasi-legislative, The specific language chosen by the legislature in Wis. Stat. § 893.80(4) parallels the exception opinion, which to liability cited crafted Hargrove v. by Cocoa this court's Beach, 96 Holytz So. 2d 130 (Fla. 1957), when introducing into Wisconsin law an exception for acts pursuant to "legislative or legislative or quasi judicial functions." 40. judicial or quasi- Holytz, 17 Wis. 2d at In Hargrove, the Florida Supreme Court also stopped short of absolutely abrogating common law immunity: We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 180 So. 378; and Akin v. City of Miami, Fla.1953, 65 So.2d 54. Hargrove, 96 So. 2d at 133 (citations omitted). ¶60 Careful clarifies that review the of Florida the two Supreme cases Court cited in Hargrove sought to preserve immunity for a narrowly tailored set of governmental functions bearing a particular legislative or judicial character. In Elrod v. City of Daytona Beach, 180 So. 378 (Fla. 1938), the 4 State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44-52, 271 Wis. 2d 633, 681 N.W.2d 110, outlines the principles of statutory interpretation. 7 No. 2013AP2882.rgb Florida Supreme Court upheld a city's immunity in a suit by a traveling salesman who sought damages resulting from his arrest for violating an allegedly unconstitutional ordinance. Id. at 378-79. The court explained that "the action of the city in adopting the act . . . . ordinance For errors in of question was . . . a judgment in the powers the cities are not liable . . . ." legislative exercise of such Id. at 379 (quoting Trescott v. City of Waterloo, 26 F. 592, 594 (C.C.N.D. Iowa 1885), which cited Fowle v. Common Council of Alexandria, 28 U.S. (3 Pet.) 398 (1830)). ¶61 Likewise, in Akin v. City of Miami, 65 So. 2d 54 (Fla. 1953), the Florida Supreme Court upheld a city's immunity in a suit seeking damages resulting from its denial of a building permit, explaining withholding of a that, building "inasmuch permit as by a the granting municipality was or the exercise of a purely governmental function, the city could not be held liable in a tort action for damages for the wrongful refusal to issue such a permit." Id. at 55. Immunity for enactment of an ordinance, as in Elrod, implicates actions with uniquely legislative character, while immunity for a decision to deny a permit after applying law to facts, as in Akin, implicates action of a more judicial nature. ¶62 The legislative and judicial actions immunized in Elrod and Akin align well with the ordinary meaning of the words found in Wis. Stat. § 893.80(4). "[a]ctivity profession." that is appropriate A "function" refers to an to a particular business or Function, Black's Law Dictionary 787 (10th ed. 8 No. 2014) [hereinafter Dictionary of Black's]; the English see also The Language 710 2013AP2882.rgb American (5th Heritage ed. 2011) [hereinafter American Heritage] (defining "function" as "[t]he action or purpose for which a person or thing is suited or employed"). "Legislative" means "[o]f, relating to, or involving lawmaking or the power to enact laws; concerned with making laws." Legislative, Black's, supra, at 1039. "Judicial," in turn, means "[o]f, relating to, or involving a judgment." "[s]eemingly Judicial, id. at 974. but not phrase Taken in some sense or degree; Quasi, id. at 1439.5 resembling; nearly." ¶63 actually; The prefix "quasi" means together, "legislative, these definitions quasi-legislative, suggest judicial that or the quasi- judicial functions" grants immunity to the entities listed in Wis. Stat. § 893.80(4) only for actions pertaining to making or enacting laws, actions involving an exercise of judgment in an adjudicative sense, or actions otherwise resembling lawmaking or adjudication. Essentially, the statutory text contemplates immunity for the enumerated entities and their agents within the limited sphere adjudicates of law. authority Toward by which that end, government this court makes and properly recognizes that "[t]he purpose of [governmental] immunity is to ensure that courts refuse to pass judgment on policy decisions 5 See also Quasi-legislative, Black's Law Dictionary 1440 (10th ed. 2014) ("(Of an act, function, etc.) not purely legislative in nature . . . ."); Quasi-judicial, id. ("Of, relating to, or involving an executive or administrative official's adjudicative acts."). 9 No. 2013AP2882.rgb in the province of coordinate branches of government, if such a policy decision, took place." consciously balancing risks and advantages, Legue, 357 Wis. 2d 250, ¶40 (second alteration in original) (quoting Scarpaci v. Milwaukee Cty., 96 Wis. 2d 663, 687, 292 N.W.2d 816 (1980)).6 Returning to an interpretation tethered to the text of Wis. Stat. § 893.80(4) would safeguard the separation of powers among the branches of government without shifting to innocent victims the burden of losses caused by government actors and agents. ¶64 The planning-operational distinction, suggested by Justice Gableman in Bostco, seeks to restore some limitations on immunity, inching closer to the actual text Wis. Stat. § 893.80(4): "[A] decision to adopt (or not adopt) a certain policy would be shielded by immunity, but the implementation of the policy would be subject to traditional Bostco, 350 Wis. 2d 554, Although the discretionary-ministerial arose out of similar ¶112 "concerns (Gableman, over tort J., standards." concurring). distinction courts purportedly interfering with other branches of government," 18 McQuillin, supra, § 53:4, at 168-69, decisions it to inevitably immunizing regressed the from destruction 6 protecting political of property. private One commentator similarly described immunity's purpose: "[P]ublic policy justifies applying immunity where the challenged government action is of a policymaking character—— involving social, economic, or political judgments——and where the government action is best monitored through the political process rather than through tort actions." Linda M. Annoye, Comment, Revising Wisconsin's Government Immunity Doctrine, 88 Marq. L. Rev. 971, 981 (2005). 10 No. Because both tests substitute, by judicial 2013AP2882.rgb fiat, a grossly circumscribed limit on government immunity undetectable in the language actually chosen by the legislature, neither is compatible with the comparatively narrow governmental immunity actually found in the text of Wis. Stat. § 893.80(4).7 ¶65 Restoring an interpretation of Wis. Stat. § 893.80(4) properly grounded in that section's text would bring coherence and predictability to our governmental immunity jurisprudence. If a municipality acts in a formal capacity pursuant to its powers derived from the State, it might reasonably be immune from liability caused by, for example, an ordinance declared unconstitutional or a decision to deny a permit. immunity would no longer attach to negligent Critically, actions by a 7 The "guided balancing test" proposed by Andrea Dudding, Comment, Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin, 2004 Wis. L. Rev. 1741, would similarly depart inappropriately from the text of Wis. Stat. § 893.80(4). Engineering a balancing test risks replacing predictable rules of law with the will or whim of the court: [A]t the point where an appellate judge says that the remaining issue must be decided on the basis of the totality of the circumstances, or by a balancing of all the factors involved, he begins to resemble a finder of fact more than a determiner of law. To reach such a stage is, in a way, a regrettable concession of defeat——an acknowledgment that we have passed the point where "law," properly speaking, has any further application. . . . [E]quality of treatment is difficult to demonstrate and, in a multitiered judicial system, impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated . . . . Antonin Scalia, Essay, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1175-82 (1989). 11 No. 2013AP2882.rgb government actor (or agent) disconnected from the government's truly legislative, judicial functions. quasi-legislative, Characterizing judicial, the or installation quasiof a traffic light pole as a legislative or quasi-legislative act is the latest absurdity generated governmental immunity doctrine.8 by the misapplication of the See Scott, 262 Wis. 2d 127, ¶82 8 Because it conflates legislative and quasi-legislative decision-making with execution of a construction project plan, the majority mistakenly concludes that Pro Electric can be immune from liability for severing the sewer lateral. Majority op., ¶¶28-30. The majority reaches this conclusion based on Allstate Insurance Co. v. Metropolitan Sewerage Commission of Milwaukee County, 80 Wis. 2d 10, 258 N.W.2d 148 (1977), which concluded that the Commission was immune from liability for placement of a manhole: "Where, when and how to build sewer systems are legislative determinations imposed upon a governmental body. It is not for the court to be judge or jury to 'second guess' them in these determinations nor to find they are liable for negligence." Id. at 15-16 (footnote omitted). The Allstate court's immunity analysis properly asked whether governmental conduct was legislative or quasi-legislative in nature. At the time, the court still seemed to recognize the distinction between immunity for policy determinations pursuant to lawmaking authority and liability for implementation of those decisions. Compare Dusek v. Pierce Cty., 42 Wis. 2d 498, 506, 167 N.W.2d 246 (1969) ("[W]hether or not to place a stop sign, a warning sign, or a yield sign at the approach to a county trunk highway is a legislative decision that must be undertaken by the county board and not by the courts."), with Chart v. Dvorak, 57 Wis. 2d 92, 100-01, 203 N.W.2d 673 (1973) ("[O]nce 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." (emphasis added)). Even if immunity's tendrils reached all the way to DOT's planning decisions here, immunity would not extend to negligent implementation of DOT's plan. The majority grants Pro Electric immunity because the majority concludes there is no evidence Pro Electric deviated from DOT's plan. See majority op., ¶30. A lack of proof of negligence may absolve Pro Electric of liability, but whether Pro Electric acted negligently presents a different question than whether Pro Electric was immune from (continued) 12 No. 2013AP2882.rgb (Prosser, J., dissenting) ("In determining today that a school counselor is immune from liability for advising a student that [a course was] an acceptable NCAA-approved course when the counselor had access to a . . . document listing [the course] as [not acceptable], this court has . . . [reached a] result [that] is profoundly wrong and unjust."). This court should not persist with an interpretation of Wis. Stat. § 893.80(4) that artificially prohibits government. The government can do wrong, and when it does, it should held be redress for accountable to wrongs those committed damaged by the by its transgressions. II ¶66 part The majority opinion appropriately applies the two- framework for analyzing government contractor immunity, determining first whether the contractor was an agent and second whether the action was one for which immunity is available Majority op., ¶¶19-20 (citing Showers, 350 Wis. 2d 509). Using this framework, I agree with the majority's determination that "Pro Electric does not enjoy governmental immunity for a failure to inspect the excavation to look for the severed sewer lateral and to refrain from Majority op., ¶35. inspect an backfilling until repairs were made." A contractor's alleged negligent failure to excavation before backfilling clearly bears no liability. Here, the manner in which Pro Electric augured the hole and severed the sewer lateral bears no resemblance to lawmaking or adjudication; consequently, Pro Electric cannot be immune from liability for any negligence in performing these services. 13 No. 2013AP2882.rgb resemblance to lawmaking or adjudication and therefore does not constitute a "legislative, quasi-legislative, judicial or quasijudicial function[]" for immunity purposes under Wis. Stat. § 893.80(4). ¶67 that I disagree, however, with the majority's conclusion Petitioners have "not identified any material fact supporting a reasonable inference that Pro Electric failed to comply with its duties Majority op., ¶43. judgment "if interrogatories, under Wis. Stat. § 182.0175(2)(am)." A court may grant a motion for summary the pleadings, and admissions depositions, on file, answers together to with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." reasonable doubt as to the Wis. Stat. § 802.08(2). existence of a genuine "'Any issue of material fact must be resolved against the moving party' for summary judgment." ¶24, 305 Schmidt v. N. States Power Co., 2007 WI 136, Wis. 2d 538, 742 N.W.2d 294 (quoting Heck & Paetow Claim Serv., Inc. v. Heck, 93 Wis. 2d 349, 356, 286 N.W.2d 831 (1980)). ¶68 Wisconsin Stat. § 182.0175(2)(am) establishes several duties for excavators, two of which are relevant here:9 (am) Excavation notice. of the following: An excavator shall do all . . . . 9 "Excavator" § 182.0175(1)(bm). is a defined 14 term under Wis. Stat. No. 2013AP2882.rgb 6. Before backfilling, inspect all transmission facilities exposed during excavation to ascertain if the transmission facilities have been or may have been struck, damaged, dislocated or disrupted. 6m. Refrain from backfilling an excavation until an inspection is conducted and any necessary repairs have been made by the owner of the transmission facility. "Transmission facilities" is a defined term in the statute and includes all underground pipes, as well as "drainage and water facilities and sewer systems." ¶69 § 182.0175(1)(c). The majority identifies a subtle aspect of Wis. Stat. § 182.0175(2)(am)6: Electric to inspection "[T]he inspect of excavation." its statute does excavation; transmission require rather, facilities Majority op., ¶42. not it exposed Pro requires during the Recognizing that subdivision 6 creates a duty to inspect exposed transmission facilities rather than a duty to inspect the excavation itself properly focuses interpretation of the subdivision on the word "exposed." "expose" something Heritage, supra, International is at "to 625; Dictionary make see 802 [it] also (1986) visible." Webster's American Third [hereinafter To New Webster's] (defining "expose" as "lay open to view: lay bare: make known: set forth"). Here, Pro Electric did not see or know about the severed sewer clay lateral because it blended in with the surrounding soil, and after-the-fact pictures of the trenched lateral do not establish that it was exposed during excavation. ¶70 But our analysis does not end there. § 182.0175(2)(am)6m also imposes a duty to backfilling "until an inspection is conducted." reading of the statute might 15 be to assume Wisconsin Stat. refrain from One reasonable the inspection No. 2013AP2882.rgb mentioned in subdivision 6m is the same "inspect[ion of] all transmission facilities exposed during excavation" required by subdivision 6. The scope-of-subparts canon of statutory construction, however, counsels against reading such independent subdivisions together in that manner. See Antonin Scalia & Bryan A. Garner, Reading Law 156-60 (2012) ("Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts."). Subdivision 6m is not a subpart of subdivision 6 and speaks in much broader terms. To "inspect" something is "to view closely and critically (as in order to ascertain quality or state, detect appraise)" or to "examine with care." errors, or otherwise Webster's, supra, 1170; see also American Heritage, supra, at 908 ("To examine carefully and critically, especially for flaws."). A duty to inspect suggests excavators must conduct a careful, critical examination of the excavation overall to determine whether it created any problems, not limited to exposed transmission facilities, which in this case were obliterated and therefore incapable of exposure. ¶71 Considering the evidence in a light most favorable to Petitioners, I conclude Pro Electric has not demonstrated it is entitled to judgment as a matter of law. that people ongoing, were that "looking lighting at" would the not The record establishes hole have while revealed auguring the was severed lateral during auguring, and that dirt pushed into the sewer lateral would have made it difficult to identify. 16 Those facts No. 2013AP2882.rgb do not demonstrate that Pro Electric conducted an inspection of the completed excavation; accordingly, whether an inspection occurred before backfilling presents a genuine issue of material fact. III ¶72 When abrogating common law doctrine in Holytz, this court showed appropriate attention to its constitutional role by recognizing the legislature's ultimate authority to decide the scope of immunity as a matter of policy. The legislature responded by enacting a statute that now allows immunity only "for acts legislative, continuing legislative done in judicial to the or exercise legislative, quasi-judicial immunize acts judicial functions, or of bearing quasi- functions." no this By resemblance court once to again abandons the plain language of the governmental immunity statute in favor of an archaic judicial doctrine rooted in shielding the government from answering for its tortious wrongs against the people. Because this artificial judicial invention strays from the legislature's formulation, and because Pro Electric has not met the decision standard of the for court summary of judgment, appeals; I would therefore, I reverse the respectfully dissent. ¶73 I am authorized to state that Justice DANIEL KELLY joins this dissent. 17 No. 1 2013AP2882.rgb