Showers Appraisals, LLC v. Musson Bros., Inc.

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Justia Opinion Summary

Musson Brothers, Inc. was conducting sewer removal and installation as a contractor for the Wisconsin Department of Transportation (DOT) when Mark Showers' property was flooded. Showers filed a complaint against Musson and the City alleging that the two entities were jointly and severally liable for the negligent acts or omissions that caused Showers' building to flood. The circuit court granted summary judgment for the City and Musson, finding that the entities were entitled to governmental immunity. The court of appeals affirmed the summary judgment for Musson, finding that Musson was entitled to governmental contractor immunity as a statutory "agent" under Wis. Stat. 893.80(4). The Supreme Court reversed, holding (1) Musson failed to show it was acting as a governmental entity's agent for purposes of the alleged injury-causing conduct because it was not acting pursuant to "reasonably precise specifications" as required under section 893.80(4); and (2) in asserting the defense of immunity Musson failed to assert that the acts for which it claimed immunity were "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions" as required under section 893.80(4). Remanded.

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2013 WI 79 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP1158 Showers Appraisals, LLC, Real Marketing, LLC and Mark W. Showers, Plaintiffs-Appellants-Petitioners, v. Musson Bros., Inc. and West Bend Mutual Insurance Company, Defendants-Respondents-CrossAppellants, League of Wisconsin Municipalities Mutual Insurance and City of Oshkosh, Defendants-Cross-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 343 Wis. 2d 623, 819 N.W.2d 316 (Ct. App. 2012 Published) PDC No: 2012 WI App 80 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 18, 2013 March 13, 2013 Circuit Winnebago Barbara H. Key CROOKS, J., ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion filed.) DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs by Daniel J. Posanski and Gerardo Medina Jr. and Dempsey Law Firm LLP, Oshkosh, and oral argument by Daniel J. Posanski. For defendant-cross-respondents, there was a brief by Bree A. Madison and Richard J. Carlson, and Silton Seifert Carlson S.C., Appleton, with oral argument by Bree A. Madison. For the defendants-respondents-cross-appellants, there was a brief by David G. Dudas and Joseph P. Putzstuck, and McCanna, Dudas & Kewley, S.C., Appleton, with oral argument by David G. Dudas. An amicus curiae brief was filed by Martha H. Heidt and Bye, Goff & Rohde, Ltd., River Falls, on behalf of the Wisconsin Association of Justice. 2 2013 WI 79 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP1158 (L.C. No. 2009CV1438) STATE OF WISCONSIN : IN SUPREME COURT Showers Appraisals, LLC, Real Marketing, LLC and Mark W. Showers, Plaintiffs-Appellants-Petitioners, v. FILED Musson Bros., Inc. and West Bend Mutual Insurance Company, JUL 18, 2013 Defendants-Respondents-CrossAppellants, Diane M. Fremgen Clerk of Supreme Court League of Wisconsin Municipalities Mutual Insurance and City of Oshkosh, Defendants-Cross-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and remanded. ¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a published decision of the court of appeals1 that affirmed the Winnebago County Circuit Court's2 grant of summary judgment in 1 Showers Appraisals, LLC v. Musson Bros., Inc., 2012 WI App 80, 343 Wis. 2d 623, 819 N.W.2d 316. 2 The Honorable Barbara H. Key presided. No. favor of Musson Bros., Inc. (Musson). 2011AP1158 This case arises from flood damage to Mark Showers' property in the City of Oshkosh, where Musson was conducting sewer removal and installation as a contractor for the Wisconsin Department of Transportation (DOT). In granting and affirming summary judgment, the circuit court and court of appeals concluded that Musson was a governmental contractor entitled to immunity under Wis. Stat. § 893.80(4) (2011 12),3 based on the court of appeals' decision in Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996). ¶2 We conclude that where a third party's claim against a governmental contractor4 is based on the allegation that the contractor negligently performed its work under a contract with a governmental entity, the governmental contractor must prove both that the contractor meets the definition of "agent" under Wis. Stat. § 893.80(4), as set forth in Lyons, and that the contractor's act is one for which immunity is available under § 893.80(4). come within Specifically, we conclude that for a contractor to § 893.80(4)'s shield of immunity, the contractor 3 All subsequent references to the Wisconsin Statutes are to the 2011 12 version unless otherwise indicated. 4 The court of appeals in Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996), used the term "governmental contractor" to refer to those independent private contractors that it concluded may be entitled to immunity under Wis. Stat. § 893.80(4), based on the nature of their contractual relationships with governmental entities. We continue this usage, but emphasize that the contractors involved are private entities whose affiliation with the government is through a contractual relationship for a particular project. 2 No. 2011AP1158 must prove it was acting as the governmental entity's agent in accordance with reasonably precise specifications, as set forth in Lyons. In this case, Musson has not shown that it was acting as a governmental entity's agent for purposes of the alleged injury-causing conduct because Musson was not acting pursuant to "reasonably precise specifications." ¶3 Moreover, pursuant to the plain language of Wis. Stat. § 893.80(4), we also conclude that a governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial function as set out in § 893.80(4). or quasi-judicial In the context of this case, a governmental contractor would be required to assert that it was implementing a decision of a governmental entity that was made within the scope of the governmental entity's legislative, quasi-legislative, judicial or Adherence statutory requirements to these functions.5 quasi-judicial for immunity under § 893.80(4) will avoid extending blanket immunity for claims of negligently performed work against governmental contractors when the sole basis for immunity is 5 that the work was performed In other cases we have used the term "discretionary" to refer to those acts that are within Wis. Stat. § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial functions." See, e.g., Lifer v. Raymond, 80 Wis. 2d 503, 511 12, 259 N.W.2d 537 (1977) (citing § 893.80(4)'s predecessor, Wis. Stat. § 895.43(3)). Our use of the statutory terms in this case, rather than the designation "discretionary," is not intended as a change to the immunity analysis, but rather as a recognition that the applicable standard is based on precise statutory language. See infra, ¶35. 3 No. 2011AP1158 pursuant to a contract with a governmental entity. Allowing governmental contractors to claim immunity in such instances would vastly expand the doctrine of governmental immunity. ¶4 Therefore, based standard for a Wis. Stat. entitled to immunity on Musson § 893.80(4) under failing agent, § 893.80(4). to meet Musson is Additionally, the not we conclude that the facts set out in support of summary judgment would not support a claim of governmental contractor immunity because Musson has failed to assert that the acts for which it claims immunity were "acts done in the exercise of legislative, quasi-legislative, judicial required under § 893.80(4). or quasi-judicial functions," as Accordingly, Showers' claims should be analyzed no differently than negligence claims against other contractors. ¶5 Musson may therefore be liable if Showers is able to show that in performing its work under the government contract, Musson had a duty of due care to Showers, that Musson breached that duty, and that such breach was a cause of Showers' damages. Accordingly, we reverse and remand to the circuit court for further proceedings on Showers' claims against Musson consistent with this City's opinion. cross-claims Additionally, were not fully because Musson's litigated in the and the circuit court and were not addressed by the court of appeals, those claims should be addressed on remand. I. ¶6 BACKGROUND In September 2007, the DOT and the City of Oshkosh entered into a state municipal agreement for a sewer improvement 4 No. 2011AP1158 project along a stretch of Ohio Street in Oshkosh, which is also State Highway 44. DOT) would Under the agreement, the State (through the provide substantial financing for the project, although the City was responsible for funding and construction of sanitary sewers and water mains, as well as the sealing of concrete joints. The DOT would remain involved in the project, including overseeing the bidding process and being onsite during construction. ¶7 The DOT opened the Ohio Street project for bidding, informing potential bidders that, as contractors, they would be "responsible for any damages to property or injury to persons occurring through their own negligence or that of their employees or agents, incident to the performance of work under this contract, pursuant to the Standard Specifications for Road and Bridge Construction specifications Wisconsin of pages applicable Standard Construction. to the Specifications to this project for contract." The were the State of Highway and Structure These Standard Specifications consist of hundreds of governmental applicable directions contractors and are specifications to perform regarding certain aspects how of contracted projects. ¶8 After completion of the bidding process, the DOT awarded the contract to Musson, and the two entered into the Contract for Highway Work, which provided that DOT would pay Musson $4,393,833.15 for its work. Ohio Street project in spring 2008. 5 Musson began work on the No. ¶9 Mark 2011AP1158 Prior to the commencement of the Ohio Street project, Showers had contracted for the construction of a new building on the property he owned on the corner of Ohio Street and Sixth Avenue in Oshkosh. As part of that construction, Showers was required by city code to connect his downspouts, sump pump, sewer. and parking lot drainage to the municipal storm The construction of Showers' building was completed on or about November 30, 2007, and Real Marketing, LLC and Showers Appraisals, LLC,6 began conducting their business at that location. ¶10 When the Ohio Street sewer project commenced in spring 2008, the City, the DOT, and Musson discussed certain aspects of how the project would proceed, one of which was whether the roadway was to be removed all at once, or whether it should be removed and repaired on a block-by-block basis. purportedly agreed that the block-by-block The parties approach would be best; however, there is no formal documentation of the parties' alleged agreement on this aspect of the project, and indeed, Musson has at times disputed whether there was such an agreement. ¶11 Whatever the parties did or did not agree to, Musson removed the entire roadway along Ohio Street, from the storm sewer's outlet at the Fox River to the end of the project, 6 Mark Showers is the majority owner of Showers Appraisals, LLC, and Real Marketing, LLC. These entities collectively will be referred to throughout the opinion as "Showers" unless otherwise indicated. 6 No. around Ninth Street; disconnected the storm 2011AP1158 sewers in that reach; and placed a bladder at the discharge at the Fox River so that water would not flow operational sewer system. from the river into the non- Musson's decision to proceed in this manner caused some disputes between City officials and Musson, based on the City's concern that by removing the entire storm sewer, Musson would compromise the City's ability to manage storm water. ¶12 The DOT concluded that Musson's decision to remove the storm sewer along the project's reach, rather than on a blockby-block basis, was allowed under a provision in the Standard Specifications, provision.7 contractor techniques, referred to as the "means and methods" That provision states, in pertinent part, that the "is solely sequences, responsible and for procedures of the means, methods, construction. The contractor is not responsible for the negligence of others in the design or specification of specific means, methods, techniques, sequences, or procedures of construction described in and expressly required by the contract." ¶13 On June 8, 2008, rain storms inundated the Ohio Street project site, dropping approximately 4.25 inches of rain in the area of the project site. The storm left water standing in the exposed roadbed outside Showers' property, and a manager with 7 When Musson sought approval to remove the pavement and leave the roadbed exposed, Ryan Schanhofer of DOT informed Musson that there was nothing in the contract explicitly prohibiting that approach. 7 No. Musson reported that Musson's pumps were unable drainage for the amount of rain that had fallen. 2011AP1158 to maintain After viewing the project site outside his property, Showers noted multiple conditions that potentially impeded drainage (as well as other conditions that he alleged were contrary to the Standard Specifications), including mounds of soil in the roadbed and drainage inlets clogged with spoke with employees from soil the City and debris. and When Musson Showers regarding the standing water and the potential for damage from another large storm that was predicted, Showers was told that there was nothing that either entity could do to remedy the situation. ¶14 Following the substantial rain event of June 8, the City and Musson began to prepare a contingency pumping plan for the next rain storm that was forecast for June 12. On the evening placing pumps of June 11, according to a Musson the employee plan; allegedly however, Showers was and other neighbors in the area averred that the pumps either were not present or were not operating during the June 12 storm event. Marc Miller, a water maintenance officer with the City, could not confirm the exact number of pumps that he recalled seeing at the Ohio Street project site, nor could he confirm how many pumps were running at the relevant times.8 ¶15 By 5:30 p.m. on June 12, water was overflowing from the storm sewers in Showers' parking lot, and the Ohio Street 8 Schanhofer also stated that by the morning of June 13, there were no pumps present at or near Showers' property at the intersection of Ohio Street and Sixth Avenue. 8 No. roadbed was entirely flooded. 2011AP1158 Additionally, water had begun to overflow from another drainage basin into the stretch of Ohio Street near Showers' property. The June 12 storm was estimated to have dropped approximately 4.36 inches of rain on the area within 5.5 hours during the evening, in addition to near- continuous, but less intense rain throughout the entire day. ¶16 Following the June 12 rains, the basement at Showers' property flooded with more than seven feet of water. Showers retained an engineer who concluded that approximately 117,500 gallons of water had been trapped in the roadbed outside Showers' property for 15 to 18 hours, and that the hydrostatic pressure caused by that water eventually caused Showers' basement floor to rupture, thereby allowing the water to seep up into the basement. Showers' sump pump ran continuously following the storm, but because the pump was connected with the storm sewers, the discharge of the sump pump merely recycled water out into the roadbed, which then seeped back into Showers' basement. the storm Neither the City nor Musson had informed Showers that sewers had been disconnected. Because of the flooding, Showers incurred at least $140,000 in damages to his business and personal property, and was forced to relocate his businesses for four months while the Ohio Street property could be cleaned, repaired, and restored.9 9 Notwithstanding these damages, experts averred that Musson complied with the Standard Specifications regarding maintenance of drainage during all phases of the Ohio Street construction project. 9 No. ¶17 2011AP1158 Showers commenced the present action by serving Musson and the City with a summons and complaint on July 23, 2009.10 In pertinent part, Showers alleged that "improper drainage, design, maintenance, excavation, construction procedures, and failure to take corrective measures" caused flooding in Showers' basement following the June 8 and 12 storms. relief from the City and Musson Accordingly, Showers sought on the grounds that those entities were "jointly and severally liable to [Showers] for negligent acts or omissions which caused [Showers'] building to flood, resulting in damage to the building and personal property, including losses for repairs, replacements, clean up, diminished value, and loss of use and related damages and losses." ¶18 The City and Musson moved for summary judgment, each arguing that it was entitled to immunity for its acts relating to the Ohio Street sewer project; additionally, the City and Musson brought indemnification. cross-claims against one another for After considering affidavits and arguments by the parties, the circuit court granted summary judgment for the City and Musson on the basis that both entities were entitled to governmental immunity under Wis. Stat. § 893.80(4). Showers appealed the grant of summary judgment as to Musson, but not the grant of summary judgment dismissing City. Therefore, Showers' claims against the City are no longer 10 his claims against the Prior to commencing this action, on October 3, 2008, Showers served the City with a notice of claim as required under Wis. Stat. § 893.80(1) (2007 08). 10 No. a part of this case. However, Musson did 2011AP1158 cross-appeal the dismissal of its indemnification claim against the City. ¶19 The court of appeals affirmed the grant of summary judgment for Musson. Showers Appraisals, LLC v. Musson Bros., Inc., 2012 WI App 80, ¶1, 343 Wis. 2d 623, 819 N.W.2d 316. The court concluded that under the test set forth in Lyons, Musson was entitled to governmental contractor immunity as a statutory "agent" under because the immunity, it appeals. Wis. Stat. court concluded Showers not that address Id. Musson filed a Musson's petition or was for the Additionally, entitled City's to Id. ¶20 did § 893.80(4). review, cross- which we for the immunity and granted.11 II. A. ¶21 City and The circuit Musson on DISCUSSION Standard of Review court the granted basis of summary judgment governmental governmental contractor immunity under Wis. Stat. § 893.80(4). The interpretation of a statute is a question of law that we review independently appeals, although we of the circuit benefit from 11 court and the those courts' court of analyses. Following summary judgment, the City has appeared in this action in response to Musson's cross-appeal against the City for indemnification. The City appeared in the court of appeals, was included as a party in Showers' petition for review, and has submitted briefs and argument before this court in favor of its position that both the City and Musson are entitled to immunity in this case. 11 No. 2011AP1158 Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. In addition, determining whether governmental immunity 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. Estate of Brown v. Mathy Constr. Co., 2008 WI App 114, ¶6, 313 Wis. 2d 497, 756 N.W.2d 417. Also, when we review a grant of summary judgment, we will affirm it if no genuine issue of material facts exists and "the moving party is entitled to judgment as a matter of law." Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342 Wis. 2d 311, 818 N.W.2d 819. B. ¶22 The Governmental Contractor Immunity City and Musson assert that, under Wis. Stat. § 893.80(4),12 Musson is entitled to immunity from liability for Showers' claims. In interpret § 893.80(4). order to address that claim, we must We therefore begin with the language of 12 The statutory immunity afforded under Wis. Stat. § 893.80(4) has been referred to as "municipal" or "governmental" immunity, and is distinct from the sovereign immunity that the Wisconsin Constitution grants the State. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 28 n.11, 559 N.W.2d 563 (1997). Nonetheless, we have acknowledged that there is overlap in the principles governing whether a governmental entity or officer is entitled to immunity. See C.L. v. Olson, 143 Wis. 2d 701, 716 n.9, 422 N.W.2d 614 (1988). Therefore, although the immunity that Musson claims in this case could be the sovereign immunity conferred upon the DOT as a state agency (because of Musson's contract with the DOT), principles of governmental contractor immunity under § 893.80(4) have been raised as being applicable here. Neither the State nor the DOT was sued, so the right of a sovereign to consent to suit was never at issue. See Holytz v. City of Milwaukee, 17 Wis. 2d 26, 41, 115 N.W.2d 618 (1962). 12 No. that statute. 2011AP1158 Section 893.80(4) provides, in pertinent part, that "[n]o suit may be brought against any [governmental entity] . . . or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." ¶23 Our task when interpreting a statute is to discern the statute's meaning, which we presume is expressed in the language chosen by the legislature. Richards, 309 Wis. 2d 541, ¶20. If the meaning of the language is plain, we apply that meaning. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. Our analysis of statutory language also may be aided by considering prior decisions examining the relevant statutory provisions. See DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15, 302 Wis. 2d 564, 734 N.W.2d 394. ¶24 Wisconsin Stat. § 893.80(4) was enacted in response to our decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39, 115 N.W.2d 618 (1962). See Coffey v. City of Milwaukee, 74 Wis. 2d 526, 532, 247 N.W.2d 132 (1976) (recognizing that what is now § 893.80(4) is the codification of Holytz). 17 Wis. 2d at 39, we abrogated the common law In Holytz, rule of governmental immunity for governmental entities, and stated that "henceforward, so far as governmental responsibility for torts 13 No. is concerned, the rule is liability [and] the 2011AP1158 exception is immunity." ¶25 Holytz excepted from that abrogation the acts of a governmental entity exercising its legislative, legislative, judicial or quasi-judicial functions. 40. That liability addition language carving now of appears immunity in for out an Wis. exception Stat. to See id. at governmental § 893.80(4), governmental officers, quasi- with the agents and employees, thereby including those individuals for whose acts the governmental entity would be liable under the doctrine of respondeat superior. See id.; see also Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 729-30, 530 N.W.2d 399 (Ct. App. 1995) (limiting the type of agents for which § 893.80 may provide immunity). ¶26 When analyzing and applying Wis. Stat. § 893.80(4), we often have used the term "discretionary" as a shorthand to refer to decisions of a governmental entity that are legislative, quasi-legislative, judicial or quasi-judicial. See, e.g., Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693; C.L. v. Olson, 143 Wis. 2d 701, 710 n.5, 422 N.W.2d 614 (1988); Lifer v. Raymond, 80 Wis. 2d 503, 511 12, 259 N.W.2d 537 (1977); see also Lyons, 207 Wis. 2d at 453 54. Legislative and quasi-legislative functions generally refer those to policy choices made in an official capacity, e.g., when a governmental entity chooses one project design over another. functions See Lyons, generally 207 refer Wis. 2d to those 14 at 453. acts that Quasi-judicial involve the No. 2011AP1158 exercise of discretion in coming to a judgment; the availability of a public hearing on the judgment before a specialized board; and the imposition by a board of an appropriate final decision. See Coffey, 74 Wis. 2d at 534-35. ¶27 the In the present case, the parties' arguments center on application governmental of Wis. contractor Stat. who § 893.80(4) claims immunity in regard derived to from a the governmental entity with which the contractor has a contractual relationship.13 situation in governmental The court Lyons. of There, contractor was appeals the court entitled addressed examined to a similar whether immunity a under § 893.80(4) when the contractor implemented a bridge design that had been selected by the contracting governmental entity. Because the court of appeals' decision in Lyons was grounded in the United States Supreme Court's decision in Boyle v. United Technologies Corp., 487 U.S. 500, 510 13 (1988), it is necessary to understand Boyle to place Lyons in proper perspective. ¶28 In Boyle, a governmental contractor was sued based on its sale of a helicopter to the United States Marine Corps. at 502. Id. The helicopter was alleged to have a design defect in the co-pilot's escape system, which prevented the opening of the 13 Musson does not specify whether the immunity it seeks is legislative, quasi-legislative, judicial or quasi-judicial in nature. We need not make that determination because we conclude that Showers' allegation that Musson negligently performed its construction responsibilities does not implicate any of the governmental entity functions excepted from liability pursuant to Wis. Stat. § 893.80(4). 15 No. escape hatch when the helicopter was submerged. 2011AP1158 Id. at 503. The alleged design defect resulted in the death of a pilot who survived a crash into water, but drowned because he could not escape from the helicopter. ¶29 In contractor whether "deliver analyzing defense the had government helicopters Id. at 502. whether the contractor's merit, the Supreme contract with the required sort of governmental- Court the focused on contractor to escape-hatch mechanism shown by the specifications" of the helicopter that the Marine Corps had chosen. Id. at 509. The Supreme Court reasoned that "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function." Id. at 511. The Court then concluded by setting out a three-part test to determine whether the relationship between the governmental contractor and the governmental entity was such that the contractor should be immune from liability for design defects in military equipment chosen by the Armed Forces: the United States approved reasonably precise "(1) specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." ¶30 Id. at 512. In explaining its test, the Supreme Court said, "[t]he first two of these conditions assure that the suit is within the area where the policy of the 'discretionary function' would be frustrated i.e., they assure that the design feature in question was considered by a Government officer, and not merely 16 No. by the contractor itself." Id. (emphasis 2011AP1158 added). In so explaining, the Supreme Court made clear that a discretionary act of a governmental potential immunity Accordingly, actions" officer a would for the governmental not have is a necessary component governmental contractor's sufficed to own to contractor. "discretionary afford the contractor immunity for its actions in Boyle. ¶31 In Lyons, the court of appeals also focused design defect that allegedly was a cause of an accident. 207 Wis. 2d at 449. on a Lyons, It is important to note that, as was the case in Boyle, it was the governmental entity in Lyons that made the choice of design that allegedly was a cause of the accident. Id. This legislative entity. performed design choice was or quasi-legislative Id. its specifications at 453. made function Because contractual pursuant to the tasks the in the of exercise the contractor reasonably governmental a governmental governmental under of entity's precise quasi- legislative design decision, the contractor functioned as a Wis. Stat. § 893.80(4) agent of the governmental entity when carrying out the entity's design decision. See id. at 457 58, 461. Therefore, the governmental contractor was entitled to the same level of immunity as would be accorded to the governmental entity had it been sued directly for its design choice. Id. at 454 (explaining the court's reliance on the rationale of Boyle where the governmental contractor defense precluded suit "if the challenged design choice was made by military officials"). 17 No. ¶32 Lyons adopted Boyle's three-part test. 2011AP1158 Id. at 457-58. The court of appeals explained that a governmental contractor that follows governmental specifications is an "agent" within the meaning of Wis. Stat. § 893.80(4) when the contractor meets the three-part test of Boyle. Id. "This three-part test will ensure that state and municipal government, and the public at large, is able to make the best use of professional design assistance, but that professional contractors are not unfairly burdened by lawsuits when they follow governmental directives." Id. at 458. ¶33 the Subsequent Lyons court's court of appeals rationale decisions regarding have contractor affirmed immunity, stating, for example, that "[i]n Lyons, we expressly held that an independent contractor meeting the three-part test was an agent within the meaning of § 893.80(4)." Jankee v. Clark Cnty., 222 Wis. 2d 151, 165, 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. The language of some of these cases may be read to suggest that the satisfies entitled relevant the to question three-part immunity. is test See merely and id.; is see whether therefore also a contractor an Woychik "agent" v. Ruzic Constr. Co., 2001 WI App 280, ¶8, 248 Wis. 2d 983, 638 N.W.2d 18 No. 394 (unpublished decision).14 Indeed, the court 2011AP1158 of appeals' decision in the case at hand suggests that satisfaction of the elements of the Lyons test will be governmental contractors' conduct. sufficient to immunize See Showers Appraisals, 343 Wis. 2d 623, ¶22; see also Bronfeld v. Pember Cos., 2010 WI App 150, ¶12, 330 Wis. 2d 123, 792 N.W.2d 222. ¶34 However, analyzing whether the conduct of a governmental contractor was undertaken as a statutory "agent" within the scope of the immunity accorded by Wis. Stat. § 893.80(4) solely by reference to the three-part Lyons test may lead a court to err. the § 893.80(4) decision of the immunity analysis governmental contractor implements § 893.80(4) because legislative, Rather, an equally dispositive question in is, it entity itself, was is made quasi-legislative, types § 893.80(4). of acts fall that entitled the the relevant governmental to immunity under through the exercise of judicial or function of the governmental entity. certain whether within a quasi-judicial Stated otherwise, only the immunity shield of It was on such a foundation that both the Lyons and Boyle decisions stand because the governmental decision in 14 Wisconsin Stat. § 809.23(3) does not prohibit this court's discussion of unpublished decisions when such discussion relies on the opinion solely to demonstrate that courts have used particular language from other cases, and does not rely on the decision for authoritative or persuasive value. See State v. Higginbotham, 162 Wis. 2d 978, 996 97, 471 N.W.2d 24 (1991). Moreover, because such use of unpublished decisions has such longstanding acceptance, see id., we need not decide now whether § 809.23(3) imposes any other limitations on this court's use of unpublished decisions in its opinions. 19 No. each case, i.e., the choice of design, was 2011AP1158 made by a governmental entity in the exercise of its legislative or quasilegislative function. ¶35 Immunity 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 functions" as set out in Wis. Stat. § 893.80(4). Any statutory immunity to which an agent of the governmental entity may be entitled is dependent upon the immunity of the governmental act or decision that the agent was implementing when it caused an injury. This immunity inquiry under § 893.80(4) examining whether a governmental entity's conduct was an exercise of a "legislative, quasi-legislative, function" gives effect to judicial the or quasi-judicial legislature's prerogative regarding the circumstances in which immunity may be available under § 893.80(4). § 893.80(4)'s quasi-judicial" Although "legislative, standard with some of our cases quasi-legislative, the term have equated judicial "discretionary," or see, e.g., Olson, 143 Wis. 2d at 710 n.5; Lifer, 80 Wis. 2d at 511 12, and although our decision is not intended in any way to alter that standard, we do emphasize that the legislatively selected policy decision regarding immunity under § 893.80(4) is best honored chosen plain language, rather than a judicial distillation thereof. This approach by comports applying with the legislature's fundamental principles of statutory interpretation, under which the plain language of a statute is 20 No. 2011AP1158 presumed to most directly convey what the legislature means. See Kalal, 271 Wis. 2d 633, ¶44. ¶36 From the foregoing, when a governmental contractor seeks immunity under Wis. Stat. § 893.80(4), the contractor must show both that the contractor was an agent as that term is used in § 893.80(4), i.e., as is expressed in the Lyons test, and that the allegedly injurious conduct was caused by the implementation of a decision for which immunity is available for governmental entities under § 893.80(4). As discussed below, Musson has failed to show that it is an agent in accordance with Lyons. Nonetheless, because the plain language of § 893.80(4) demonstrates that the immunity analysis requires an element in addition to what is required by Lyons' agency test (namely, allegations that the injury-causing act was legislative, quasilegislative, judicial or quasi-judicial in character), we set forth the applicable standard so that litigants and courts may engage in a complete analysis of whether immunity may be available in future cases. ¶37 i.e., The first and second requirements of the Lyons test, whether the governmental entity approved reasonably precise specifications that the governmental contractor adhered to when engaging in the conduct that caused the injury, limit when a governmental contractor is a statutory agent under Wis. 21 No. Stat. § 893.80(4).15 2011AP1158 Stated otherwise, the governmental entity must have had the right to control the tasks performed by the contractor with "reasonably precise specifications" contractor must have followed those specifications. and the When these facts are proved, the contractor is a § 893.80(4) agent of the governmental entity. See, e.g., Kettner, 191 Wis. 2d at 733 37 (explaining all conduct that not of agents comes within the scope of § 893.80; rather, only that conduct that may be imputed to a governmental entity as the act of the entity's servant comes within § 893.80).16 ¶38 agents The principles under Wis. of Stat. immunity § 893.80, for as particular discussed in types of Kettner, should be read in harmony with the Lyons test and with the principles of governmental immunity enunciated in § 893.80(4). For example, improperly undertook entity, the allegation designed the was design the by the at act of in the a Lyons that governmental direction of § 893.80(4) type the bridge contractor, the agent was who governmental because the 15 We note that the third criterion for statutory agency set out in Lyons, that the contractor warned the governmental entity about dangers known to the contractor but unknown to the governmental entity, does not bear on whether statutory agency is present. Rather, it is grounded in a concern that the immunity accorded does not cut off information highly relevant to governmental decisions. Boyle v. United Techs. Corp., 487 U.S. 500, 512-13 (1988). 16 The primary consideration in determining whether an act was undertaken by one who acts in the capacity of a servant is whether the principal had the right to control the conduct of the agent. Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 198-99, 423 N.W.2d 848 (1988). 22 No. governmental entity choices legislative Lyons, are 207 Wis. 2d controlled at or the design choice quasi-legislative 452 58; see also 2011AP1158 and design functions. Chart v. See Dvorak, 57 Wis. 2d 92, 100 01, 203 N.W.2d 673 (1973) (recognizing that the decision to undertake a project, or how to design the project, may be immunized as the exercise of a legislative or quasilegislative function). ¶39 However, if the allegation in Lyons were not that the design was a cause of the accident, and were instead that the contractor did not construct the bridge in a workman-like manner and thereby caused injury, such an allegation would not implicate a legislative, quasi-legislative, judicial or quasijudicial function under Wis. Stat. § 893.80(4). Accordingly, an allegation of negligent workmanship would not have the potential for immunity under § 893.80(4) for that specific injury-causing conduct, and contractor was no a Lyons inquiry § 893.80(4)-type (to determine agent) would whether be the necessary. This conclusion is based on the scope of immunity contemplated by this court in Holytz, and by the legislature's codification of Holytz in what is now § 893.80(4). ¶40 context Some cases applying Kettner's agency principles in the of immunity inquiries could be read to suggest that "agent" may be interpreted broadly to afford immunity to all governmental contractors' conduct. Stat. § 893.80(4)'s explicit However, in light of Wis. language limiting the scope of governmental immunity, immunity will be extended to governmental contractors only where the contractor acted as a "servant" for 23 No. the purposes Wis. 2d at definition of the challenged 734 36. of Indeed, "agent" is conduct. See 2011AP1158 Kettner, 191 as we explained above, this manifest in the test, which Lyons requires that a governmental contractor adhere to "reasonably precise specifications." Cf. Arsand v. City of Franklin, 83 Wis. 2d 40, 45 46, 264 N.W.2d 579 (1978) (defining servant as "one employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control"). ¶41 Other cases following Lyons also illustrate that care in analysis is needed when a claim of governmental contractor immunity is made. For example, in Bronfeld, the court of appeals addressed an allegation that a subcontractor negligently erected barricades and failed to maintain the construction site so as to protect public safety. The plaintiff claimed that the contractor was therefore liable for the plaintiff's injuries, which occurred when she tripped contractor had placed at the site. over a barricade that the See Bronfeld, 330 Wis. 2d 123, ¶¶10, 12. ¶42 In Bronfeld, the government's general contractor had provided a detailed traffic control plan that the City of River Falls approved, and the subcontractor followed that plan. ¶6. Id., The court of appeals began by noting that placement of barricades is a discretionary duty, and therefore, if the City had placed the barricades itself, it would have been immune from suit pursuant to Wis. Stat. § 893.80(4). 24 Id., ¶19. This No. 2011AP1158 cursory determination of whether the governmental entity would have been entitled to immunity under the language of § 893.80(4) highlights the need for a more thorough immunity analysis for claims of governmental immunity. ¶43 After making this primary determination, the court in Bronfeld applied the Lyons contractor was an agent. test to determine whether the The court concluded that the test was satisfied, and that the contractor was entitled to immunity, because (1) the City had provided reasonably precise specifications regarding traffic control and barricade placement by requiring and approving the traffic control plan the general contractor submitted; (2) the subcontractor complied with the those specifications; and (3) the subcontractor had not been aware of any dangers specifications. ¶44 posed by the reasonably precise See id., ¶¶24 33. Bronfeld's cursory analysis of governmental contractor immunity under Wis. Stat. § 893.80(4) may be attributable to Brown, where the language used to apply Lyons' reasoning could be construed actions where to afford the immunity alleged to injury governmental did not contractors' arise from the contractor's implementing a governmental entity's decision that was made pursuant to a "legislative, quasi-legislative, [etc.] function," such as the adoption of a design or plan. In Brown, the court seemed to emphasize the importance of whether there existed "reasonably precise specifications," without acknowledging that, for such specifications to afford immunity to a governmental contractor, the contractor's alleged injury25 No. 2011AP1158 causing actions must have been due to its implementation of a governmental entity's exercise of one of the functions for which immunity is accorded under § 893.80(4). See Brown, 313 Wis. 2d 497, ¶11 (stating that "[t]he question is not what other safety precautions might requirements have been by provided specifications," without taken, DOT but whether were analysis of the safety reasonably whether the precise allegedly injurious conduct had been undertaken pursuant to a legislative or quasi-legislative function of the governmental entity). ¶45 In sum, in addition to satisfying the Lyons test for governmental contractor immunity, a contractor asserting immunity must be able to demonstrate that the conduct for which immunity is sought entity's decision legislative, functions. was made the implementing during the quasi-legislative, of exercise judicial a of or governmental the entity's quasi-judicial To apply Lyons without analyzing the applicability of immunity under Wis. Stat. § 893.80(4) to the particular act for which liability is alleged could grant a governmental contractor broader immunity than the governmental entity itself would be entitled to under the statute. future, when a governmental contractor Accordingly, in the asserts that it is entitled to immunity under § 893.80(4), we encourage litigants and courts whether to the adhere to alleged the statutory standard immunity-supporting to determine functions are legislative, quasi-legislative, judicial or quasi-judicial. ¶46 Our conclusion regarding the intersection of the agency principles embodied in the Lyons test and the type of 26 No. 2011AP1158 acts for which governmental immunity may be afforded under Wis. Stat. § 893.80(4) is well-supported nationwide. other jurisdictions contractors will have concluded not be liable that for For example, while injuries governmental alleged to have arisen from defects in a design the government chose, "it is well settled that this rule of non-liability does not exempt a contractor from contractor's liability negligent where the performance injury of the arises work." from Gaunt the & Haynes, Inc. v. Moritz Corp., 485 N.E.2d 1123, 1126 (Ill. App. Ct. 1985); Rodriguez v. New Jersey Sports & Exposition Auth., 472 A.2d 146, 149 (N.J. App. Div. 1983) ("A public contractor may . . . be held liable when negligent in the execution of the contract."). Furthermore, a legal encyclopedia notes that "the courts are practically unanimous" in support of the proposition that a governmental contractor is not entitled to governmental immunity for injuries arising from negligent performance of the contract work. A.E. Korpela, Annotation, Right of contractor with federal, state, or local public body to latter's immunity from tort liability, 9 A.L.R. 3d 382 §§ 2(a), 5 (1966); see also 64 Am. Jur. 2d, Public Works and Contracts § 109 (2013 update) (discussing contractors' negligence in performing work; neglect or failure to comply with contract). This understanding of the doctrine of governmental contractor immunity has been echoed by legal commentators. Immunity: The See, Government e.g., Richard Contract Defense Liability, 47 Ohio St. L.J. 985, 995 (1986). 27 Ausness, and Surrogate Products No. C. ¶47 With the above present case. 2011AP1158 Application principles in mind, we turn to the Although the parties have framed their arguments solely in terms of the Lyons test, we analyze Musson's claim for immunity under both requirements of Wis. Stat. § 893.80(4). This includes whether Musson is an agent under § 893.80(4), as determined by the Lyons test, as well as whether the conduct that is alleged to be a cause of injury is entitled to immunity under § 893.80(4) as the implementation of a legislative, quasilegislative, etc. decision. We conclude first that, under the Lyons tests, Musson has failed to demonstrate that it is an agent entitled to governmental contractor immunity. Furthermore, as guidance to future litigants, we examine why Musson's allegations in support of summary judgment fail to demonstrate that Musson was entitled to immunity as an agent implementing a legislative, quasi-legislative, judicial or quasi-judicial function of a governmental entity. ¶48 Under the Lyons § 893.80(4), Musson was available. The Specifications) test not relevant as an agent contractual demonstrates that applied for to which language Musson was Wis. Stat. immunity (the not was Standard subject to "reasonably precise specifications" as is necessary to invoke 28 No. 2011AP1158 contractor immunity as an agent of a governmental entity.17 The primary provision upon which the parties focus their arguments and upon which we rely in concluding that the Lyons test is not satisfied is the "means and methods" provision in the Standard Specifications.18 The conduct for which Musson was responsible under and the means methods provision are, by definition, distinguishable from conduct for which immunity may be available for agents under § 893.80(4), as set forth in Lyons. 17 As our discussion below should make clear, our reference to the Specifications as support for our conclusion that immunity is not available should not be read to suggest that the terms of a government contract may create immunity where none would otherwise exist by virtue of the legislative, quasilegislative, judicial or quasi-judicial nature of the activities at issue. Our reference to the Standard Specifications merely demonstrates that the parties apparently contemplated that Musson's performance of its construction responsibilities would not entitle Musson to the immunity that may be afforded to agents under Wis. Stat. § 893.80(4). 18 Other sections in the Standard Specifications also support the contention that the parties contemplated that Musson was not subject to reasonably precise specifications under Lyons and could be held liable for any negligence in the performance of the construction. For example: - § 107.1(2), requiring the contractor to "[p]rovide all necessary safeguards, safety devices, and protective equipment. Take all other actions that are reasonably necessary to protect the life and health of employees on the project and the safety of the public." - § 107.11.1(3), requiring the liability for all damage property resulting from defective work or materials, contract." 29 contractor to "[a]ssume to public or private contractor operations, or non-execution of the No. ¶49 2011AP1158 The means and methods provision states, in relevant part, that Musson "is solely responsible for the means, methods, techniques, sequences, (Emphasis added.) and procedures of construction." In this context, being "responsible" for the "means, methods, [etc.]" involves both powers and duties. That is, Musson was not only empowered to take actions involving how the construction process was to proceed, Musson also had the responsibility liability if Dictionary for its 1427 "liability"); the actions (9th see actions id. ed. it 2009) (noting including injury. caused took, See (defining that incurring Black's "responsibility" "responsible . . . Law as simply means liable to be made to account or pay") (quoting H.L.A. Hart, "Changing Conceptions and Responsibility ¶50 of Responsibility," in Punishment 186, 196 97 (1968)). Many of Musson's day-to-day actions at the Ohio Street project site are chronicled in the daily logs of onsite activity kept by one of the DOT's engineers, Ryan Schanhofer. These logs note numerous instances of Musson taking actions without DOT or City approval, pursuant to Musson's independent responsibility under the means and methods provision. Throughout the course of the project, there were multiple occasions on which Schanhofer had to inform City officials that he could not stop Musson from proceeding on a certain course because within the "means and methods" provision. Musson's action was One of these actions was the removal of the entire roadbed of Ohio Street, rather than removing portions on a block-by-block basis. actions included whatever steps 30 Musson would take Other such to ensure No. proper drainage, as demonstrated by Schanhofer's 2011AP1158 note that Musson's cleaning silt screens in drainage areas was "up to the contractor."19 ¶51 As discussed above, the nature of Musson's actions, taken pursuant to the means and methods provision, demonstrates that Musson authority in had substantial performing its independent tasks, such decision-making that Musson's relationship with the DOT for the conduct that is alleged to have resulted servant. in harm cannot be characterized as that of a See Arsand, 83 Wis. 2d at 45 46 (defining servant as one subject to the master's control or right of control). Such independent discretion is also contrary to Lyons' "reasonably precise specifications" requirement, in that a contractor may not possess such control over the alleged injury-causing action 19 Moreover, the mere fact that DOT personnel were onsite during Musson's performance of the Ohio Street sewer work does not transform Musson's contractual performance into the implementation of legislative, quasi-legislative, judicial or quasi-judicial actions that are entitled to immunity. Tellingly, § 105.2(4) of the Standard Specifications provides that "[t]he department's review does not relieve the contractor of the responsibility for obtaining satisfactory results." Similarly, where the Standard Specifications are silent on the safety measures or performance standards applicable in a given scenario, a contractor may not rely on that silence as a license to undertake whatever measures the contractor selects without threat of liability. Governmental contractor immunity must be based on the prior exercise of legislative, quasilegislative, judicial or quasi-judicial functions by a governmental entity under Wis. Stat. § 893.80(4), which the governmental contractor implements as a statutory agent. Silence, without more, does not demonstrate the exercise of necessary governmental decision-making. 31 No. 2011AP1158 and still be considered an agent for purposes of governmental contractor immunity under Wis. Stat. § 893.80(4). Musson thus fails agent to satisfy the Lyons test and is not an under § 893.80(4).20 ¶52 immunity Next, having concluded that Musson is not entitled to as an agent under the Lyons test, we also examine Musson's claim for immunity in light of the injury alleged and the plain language of Wis. Stat. § 893.80(4), which limits immunity to "acts done in the exercise of legislative, quasilegislative, judicial or quasi-judicial functions." Beginning with the injury that Showers has alleged, we note that Showers' allegations are different in kind from the allegations underlying the Lyons test for governmental contractor immunity. The substance of Showers' claim is not that Musson was negligent in its implementation of a decision made in the exercise of a governmental quasi-legislative, judicial or quasi-judicial function, as was the case in Lyons. Rather, Showers alleges excavation, the entity's legislative, that construction, contract. Musson negligently and drainage Specifically, Showers' 20 performed responsibilities complaint alleges its under that Because Musson has failed to demonstrate that there were reasonably precise specifications that controlled any alleged injury-causing decision or conduct, we have no need to examine the second and third requirements of the Lyons test (i.e., whether the contractor followed such reasonably precise specifications and whether the contractor warned the governmental entity of any dangers associated with the specifications that were known by the contractor, but not by the governmental entity). 32 No. Musson is liable excavation, for "improper construction drainage, procedures, and . . . 2011AP1158 maintenance, failure to take corrective measures." ¶53 These assertions are fundamentally different from the assertion that a governmental entity negligently selected a design that a contractor implemented for a government project. Design selection is a type of governmental entity decision that we have determined legislative is function within immunized the under legislative Wis. Stat. or quasi- § 893.80(4). See, e.g., Chart, 57 Wis. 2d at 100 01 (recognizing legislative or quasi-legislative nature of design decision); Lange v. Town of Norway, 77 Wis. 2d 313, 318 20, 253 N.W.2d 240 (1977) (same). ¶54 In contrast, Showers alleges that Musson's performance of its construction duties, such as maintaining drainage at the worksite, did not meet the standard of due care for construction work. Cf. Brooks v. Hayes, 133 Wis. 2d 228, 234 35, 395 N.W.2d 167 (1986) (recognizing that a construction contract implicitly imposes a duty on contractors to perform work according to the standard of due care). An allegation such as Showers makes does not implicate the types of acts for which Wis. Stat. § 893.80(4) affords immunity to a governmental entity. Therefore, cannot form the basis for immunity for a contractor. they For a governmental entity to be accorded immunity under § 893.80(4), the entity must be able to show that the allegedly injurious act was done in the exercise of a legislative, quasi-legislative, judicial or quasi-judicial function. Musson has not shown that the acts that Showers asserts were a cause of injury Musson's 33 No. alleged improper drainage, maintenance, 2011AP1158 excavation, and construction at the Ohio Street project were the implementation of a governmental entity's exercise of legislative, legislative, judicial or quasi-judicial functions. quasi- Therefore, immunity under § 893.80(4) is not available for those acts. ¶55 In future cases, governmental contractors seeking immunity should include in their pleadings sufficient facts to demonstrate contractor that would functions for the governmental derive which immunity immunity is entity was from engaged available in under which one Wis. the of the Stat. § 893.80(4), and that the contractor was an agent with respect to injury-causing conduct. ¶56 Accordingly, Showers' claims, that Musson negligently performed the work required by the government contract, should be analyzed under standard negligence principles. See Coffey, 74 Wis. 2d at 531, 535 40 (setting forth elements of standard negligence determining immunity). been analysis that applying municipal those officer was elements not after entitled to Although ultimately Musson may be found not to have negligent activities, and in summary its performance judgment was of its inappropriate construction based on the substance of Showers' complaint. III. ¶57 CONCLUSION We conclude that where a third party's claim against a governmental contractor is based on the allegation that the contractor negligently performed its work under a contract with a governmental entity, the governmental contractor must prove 34 No. 2011AP1158 both that the contractor meets the definition of "agent" under Wis. Stat. § 893.80(4), as set forth in Lyons, and that the contractor's act is one for which immunity is available under § 893.80(4). come within Specifically, we conclude that for a contractor to § 893.80(4)'s shield of immunity, the contractor must prove it was acting as the governmental entity's agent in accordance with reasonably precise specifications, as set forth in Lyons. In this case, Musson has not shown that it was acting as a governmental entity's agent for purposes of the alleged injury-causing conduct because Musson was not acting pursuant to "reasonably precise specifications." ¶58 Moreover, pursuant to the plain language of Wis. Stat. § 893.80(4), we also conclude that a governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial function as set out in § 893.80(4). or quasi-judicial In the context of this case, a governmental contractor would be required to assert that it was implementing a decision of a governmental entity that was made within the scope of the governmental entity's legislative, quasi-legislative, judicial Adherence statutory to these or quasi-judicial requirements for functions. immunity under § 893.80(4) will avoid extending blanket immunity for claims of negligently performed work against governmental contractors when the sole basis was performed pursuant to a contract with a governmental entity. Allowing governmental for immunity contractors to is claim 35 that the immunity work in such instances No. would vastly expand the doctrine governmental of 2011AP1158 immunity. Applying this rationale to this case, we conclude that Musson would not Musson be entitled negligently to immunity performed its for Showers' work under claims a that government contract, because Musson has not made a showing that Musson was an agent implementing a governmental entity's decision made within the scope of the entity's legislative, quasi-legislative, judicial or quasi-judicial functions. ¶59 Therefore, based standard for a Wis. Stat. entitled to immunity on Musson § 893.80(4) under failing agent, § 893.80(4). to meet Musson is Additionally, the not we conclude that the facts set out in support of summary judgment would not support a claim of governmental contractor immunity because Musson has failed to assert that the acts for which it claims immunity were "acts done in the exercise of legislative, quasi-legislative, judicial required under § 893.80(4). or quasi-judicial functions," as Accordingly, Showers' claims should be analyzed no differently than negligence claims against other contractors. ¶60 Musson may therefore be liable if Showers is able to show that in performing its work under the government contract, Musson had a duty of due care to Showers, that Musson breached that duty, and that such breach was a cause of Showers' damages. Accordingly, we reverse and remand to the circuit court for further proceedings on Showers' claims against Musson consistent with this City's opinion. cross-claims Additionally, were not fully 36 because Musson's litigated in the and the circuit No. 2011AP1158 court and were not addressed by the court of appeals, those claims should be addressed on remand. By the Court. The decision of the court of reversed and the cause remanded to the circuit court. 37 appeals is No. ¶61 about N. whether governmental case. PATRICK CROOKS, Musson entity J. (concurring). Bros., under Inc. the (Musson) test 2011AP1158.npc This is an established case agent in the is of a Lyons See Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996). I agree with the majority that under the Lyons test, Musson is not an agent because Musson has not shown that it was acting pursuant to "reasonably precise specifications" as the first prong of the Lyons test requires. Musson is therefore not entitled to immunity. The grant of summary judgment should therefore be reversed. Although I do not join the majority opinion, I respectfully concur for reasons stated herein. ¶62 In past cases, governmental entity's legislative, judicial, we have decisions or not focused were quasi-judicial answering the Lyons question. on whether legislative, as a first the quasistep in Even if the court chooses to adopt that framework for the Lyons test, I am concerned that the majority may have analysis itself taken that an could approach be read governmental contractor immunity. to as the Lyons changing the immunity law on If that is the majority's intent, the best way to do so is to acknowledge that, and to offer more guidance to litigants, lawyers, and courts. ¶63 While the majority opinion (at ¶2 n.5) says that there is no intention to adopt a fundamental change in our immunity jurisprudence, I am also concerned that, due to some notable similarities, the majority opinion could be read as endorsing the type of fundamental change that Justice Gableman advocates 1 No. 2011AP1158.npc in a concurrence in an unrelated governmental immunity case.1 While I share Justice Gableman's dismay with some aspects of this court's immunity jurisprudence, approach to correcting the problems. I favor an incremental A good place to start would be to recognize that our prior cases have construed the ministerial duty exception to immunity too narrowly.2 ¶64 how The majority's approach provides little guidance as to the showing concludes that it requires "[T]he facts could set out be in met. The support of majority summary judgment would not support a claim of governmental contractor immunity because Musson has failed to assert that the acts for which it claims immunity were 'acts done in the exercise of 1 See Bostco, LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶103, ___ Wis. 2d ___, ___ N.W.2d ___ (Gableman, J., concurring): I would . . . do away with the ministerial duty and known danger exceptions and restore our immunity jurisprudence to conform with § 893.80(4) and Holytz. That is, governmental entities, officials, and employees should be entitled to immunity only for "acts done in the exercise of legislative, quasilegislative, judicial, or quasi-judicial functions." Wis. Stat. § 893.80(4); see also [Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962)]. 2 A brief definition of a "ministerial duty" is something that 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." This definition is cited in Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976), which takes language from Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting 18 Eugene McQuillin, Municipal Corporations § 53.33, at 225 (3d ed.)). 2 No. legislative, quasi-legislative, functions.'" ¶65 judicial or 2011AP1158.npc quasi-judicial Majority op., ¶4. In cases involving immunity, the analysis has usually focused on whether the alleged negligent acts were discretionary or non-discretionary, and immunity determinations often turned on such analysis. Here, the majority holds that Musson must make an initial showing before application of the three prongs of the Lyons immunity. test for governmental contractors claiming Specifically, the majority faults Musson for failing to "assert that the acts for which it claims immunity were 'acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions' . . . ." See majority op., ¶59. Litigants may be unable to discern from this opinion what sort of facts they must allege in order to establish that immunity applies. When this court crafts a somewhat different analytical framework, the best practice is to clearly lay out the reasons for the change, and articulate what litigants must show to satisfy the standard. ¶66 There are striking similarities between the language of the majority and the language of Justice Gableman's Bostco concurrence. parties who negligent Both would act was opinions claim read immunity related to the the to statute show exercise as that of requiring the alleged "legislative, quasi-legislative, judicial, or quasi-judicial functions." In Justice Gableman's Bostco concurrence, he advocates "restor[ing] Holytz by placing the burden on the government to show that it is entitled to immunity, as opposed 3 to the status quo in No. 2011AP1158.npc Wisconsin, where it is now the plaintiff's responsibility to prove that immunity was pierced." Bostco, LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶113, ___ Wis. 2d ___, ___ N.W.2d ___ (Gableman, J., concurring). The Bostco concurrence endorses a test under which "[t]he governmental entity seeking to establish facts. Id. immunity bears the burden of proving" certain Similarly, under the majority's holding in this case, a governmental contractor who seeks to invoke statutory immunity bears at least the initial burden of establishing that the government legislative, Compare judicial, Bostco, concurring) should entity's be ___ or to were legislative, quasi-judicial. Wis. ("governmental entitled decisions 2d ____, entities, immunity Majority ¶103 for op., (Gableman, officials, only quasi- and 'acts ¶2. J., employees done in the exercise of legislative, quasi-legislative, judicial, or quasijudicial functions'"), with majority op., ¶27 n.13 ("Musson does not specify whether the immunity it seeks is legislative, quasilegislative, judicial or quasi-judicial in nature."). ¶67 Further, in this case, there was extensive briefing on the potential application of the ministerial duty exception to immunity, and yet the majority does not address the arguments or acknowledge its potential application. This might be viewed by some as consistent with Justice Gableman's suggestion that in immunity cases analysis of ministerial duty should be "do[ne] away with." Bostco, ___ Wis. concurring). 4 2d ___, ¶103 (Gableman, J., No. ¶68 2011AP1158.npc An incremental approach that would be more consistent with our jurisprudence would be one that addresses the problem of this duty. court's Our overly ministerial narrow duty interpretation analysis at times of ministerial turns into a search to find any discretion that could have been exercised, and then declaring immunity is required. Ruling out liability wherever essentially any discretion is exercised immunity for almost all actions. creates As an influential treatise noted: Stating the reasons for the discretionary-ministerial distinction is much easier than stating the rule.... [T]he difference between "discretionary" and "ministerial" is artificial. An act is said to be discretionary when the officer must exercise some judgment in determining whether and how to perform an act. The problem is that "[i]t 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." McQuillin, Municipal Corporations § 53.04.10 (3d ed.) (quoted in Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶136, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting)). ¶69 The fact that even a "directly ministerial" act involves "some discretion in the manner of its performance" can make it easy for courts to decline to find a ministerial duty where one in fact exists. Like Justice Gableman, I believe our cases have sometimes failed to recognize this and have employed too restrictive an interpretation of ministerial duty. Bostco, ¶109 (Gableman, J., concurring). (See While I do not favor a fundamental shift in our jurisprudence, we should be mindful of the fact that declining to determine that a ministerial duty 5 No. 2011AP1158.npc exists where any exercise of discretion can be detected leads to immunizing too much government conduct. test concerning ministerial duty in a We should apply the way that serves the important public policy objectives that underlie the reasons for permitting liability where a ministerial duty exists. do a better job of striking the balance between We must too much immunity, which creates a heavy burden for those who suffer harm from negligent government acts, and too much liability, which creates a heavy burden for taxpayers. ¶70 For the reasons stated, I respectfully concur. ¶71 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion. 6 No. 1 2011AP1158.npc