Preview:

2001  WI  App  53
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                              99-1913
Complete Title
of Case:
CLARA M. ROLLAND,
PLAINTIFF-RESPONDENT,
MILWAUKEE COUNTY DEPT. OF HUMAN SERVICES,
PLAINTIFF,
V.
COUNTY OF MILWAUKEE, MILWAUKEE TRANSPORT SERVICES,
INC. AND JOHN DOE,
DEFENDANTS-APPELLANTS,
DONNA SHALALA,
DEFENDANT.
Opinion Filed:                                         December 5, 2000
Submitted on Briefs:                                   May 9, 2000
Oral Argument:                                         ---
JUDGES:                                                Fine, Schudson and Curley, JJ.
Concurred:                                             ---
Dissented:                                             ---
Appellant
ATTORNEYS:                                             On behalf of the defendants-appellants, the cause was submitted on the
                                                       briefs of Thomas A. Cabush of Kasdorf, Lewis & Swietlik, S.C. of
                                                       Milwaukee, Wisconsin.
Respondent
ATTORNEYS:                                             On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Daniel J. Finerty and David J. Bischmann of
Hausmann-McNally, S.C. of Milwaukee, Wisconsin.




COURT OF APPEALS                2001  WI  App  53
DECISION
                                DATED AND FILED           NOTICE
                                                          This  opinion  is  subject  to  further  editing.  If
                                December 5, 2000          published, the official version will appear in the
                                                          bound volume of the Official Reports.
                                Cornelia G. Clark
                                                          A  party  may  file  with  the  Supreme  Court  a
                                Clerk, Court of Appeals
                                                          petition  to  review  an  adverse  decision  by  the
                                of Wisconsin
                                                          Court of Appeals.   See WIS. STAT. § 808.10 and
                                                          RULE 809.62.
No.                             99-1913
                                STATE OF WISCONSIN        IN COURT OF APPEALS
CLARA M. ROLLAND,
PLAINTIFF-RESPONDENT,
MILWAUKEE COUNTY DEPT. OF
HUMAN SERVICES,
PLAINTIFF,
V.
COUNTY OF MILWAUKEE,
MILWAUKEE TRANSPORT SERVICES,
INC. AND JOHN DOE,
DEFENDANTS-APPELLANTS,
DONNA SHALALA,
DEFENDANT.




No. 99-1913
APPEAL from an order of the circuit court for Milwaukee County:
MICHAEL G. MALMSTADT, Judge.    Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1                                                                                       FINE, J.     Milwaukee County and Milwaukee Transport Services,
Inc., appeal from the trial court’s denial of their motion for summary judgment,
which asserted that they were immune from liability as a result of WIS. STAT.
§ 893.80(4).   We granted their petition to appeal from a non-final order.      We
affirm.
I.
¶2                                                                                       Milwaukee Transport Services operates public transit bus services
for Milwaukee County, as the County’s agent.   Clara M. Rolland claims that she
was injured when she was a passenger on one of Milwaukee Transport’s buses.
She was on the bus in her motorized handicapped scooter when, as alleged in her
complaint, the bus turned, causing her scooter to suddenly roll and tip over.   She
claims  that  the  bus  driver  negligently  secured  her  scooter,  in  violation  of
guidelines for drivers issued by Milwaukee Transport.   The guidelines applicable
to this case were in a series of bulletins, the material parts of which we quote.
¶3                                                                                       One   bulletin,   headed                                            “wheelchair   securement”   (uppercasing,
bolding, and underlining omitted), directed:
The use of restraining straps is mandatory for all
wheelchairs on  [Milwaukee Transport] buses.    Customer
refusal to have their wheelchair strapped to the floor of the
bus will result in transportation denial.
Operators should explain that this is being done for
their safety and is according to company procedure.    If
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No. 99-1913
problems   exist,   contact   the   Dispatcher   for   further
instructions.
Another bulletin emphasized that passengers in motorized wheelchairs had the
same right to use public transportation as others, and that the use of straps was
mandatory.   It advised bus drivers to “explain that the use of restraining strips is to
be enforced for their safety.”   The bulletin also instructed how the wheelchairs
were to be secured:
SECURING A WHEELCHAIR
Whenever  possible,  attach  restraints  to  the  frame  of  a
wheelchair instead of through spokes in the wheels.    In
some   instances,   damage   has   been   reported   to   the
surrounding spokes of restraining belts that were attached
to wheels.
The frame on most wheelchairs can be found on the metal
bars that are found closes [sic] to the wheels.   As a general
rule, attach restraining belts towards the lower portions
of wheelchairs, and as close to the wheels as possible.
Three wheel “scooters”, for example, have little support on
the  extension  directly under  the  seat.    Again, THINK
“LOW”  AND  “CLOSE  TO  THE  WHEELS”  before
beginning securement.
(All emphasis in the original.)   It also noted that after unsecuring the wheelchair,
the driver should “[r]eturn all movable belts to their designated compartments.”
¶4                                                                                         In  support  of  their  motion  for  summary  judgment,  Milwaukee
Transport  and  the  County  submitted  an  affidavit  executed  by  the  driver  of
Rolland’s bus.    In that affidavit, he averred that he tried to secure Rolland’s
scooter with more than one strap:
I then attempted to place one of the safety straps
around Ms. Rolland’s body which is my normal practice.
However, her body was too big for the strap to go around
her.   I then took several moments to think about how to
secure her on the bus.   I decided to place one strap through
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No. 99-1913
the left arm of the scooter and a second available strap
through the right arm of the scooter.   I then tightened the
straps and secured the strap ends into the proper fasteners.
In my judgment, this was the best means available to secure
Ms. Rolland and her scooter on the bus.
The driver’s affidavit indicated that it took him “approximately five to ten minutes
to get Ms. Rolland on the bus and to secure the scooter.”
¶5                                                                                         Rolland had a different recollection of the attempted securing of her
scooter.   In her affidavit, she averred that the driver was wholly uncooperative,
used only one strap, and told her that he “did not really know how to secure the
scooter.”   When, according to her affidavit, she attempted to tell him that he had to
use two straps—“that he had to fasten the front of the scooter with another belt,
like the other bus drivers had done on my prior bus rides[,] ... he was not interested
in listening to my suggestion[,]” but, rather, told her “‘you ain’t going nowhere,’
and went back to his seat.”   She also denied that the driver tried to place a belt
around her body.
¶6                                                                                         The trial court rejected the defendants’ contention that WIS. STAT.
§ 893.80(4) was a bar of immunity between them and Rolland’s claim, holding
that Milwaukee Transport had a ministerial duty to make certain that passengers in
scooters could safely ride the buses, and that, in its view,  “the act of securing
[Rolland’s scooter] on the bus is a ministerial act and therefore there is liability for
not doing it safely.”   Although we affirm the trial court’s denial of the defendants’
motion for summary judgment, we do so for a different reason.   See State v.   Holt,
128 Wis. 2d 110, 124-125, 382 N.W.2d 679, 687 (Ct. App. 1985) (an appellate
court may affirm a trial court’s correct ruling irrespective of  the trial court’s
rationale).
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No. 99-1913
II.
¶7                                                                                               Summary  judgment  is  used  to  determine  whether  there  are  any
disputed  facts  that  require  a  trial,  and,  if  not,  whether  a  party  is  entitled  to
judgment as a matter of law.   See WIS. STAT. RULE 802.08(2); U.S. Oil Co. v.
Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct.
App. 1989).   Of course, “summary judgment is a drastic remedy and should not be
granted unless the material facts are not in dispute, no competing inferences can
arise, and the law that resolves the issue is clear.” Lecus v. American Mut. Ins.
Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977).   Our review of
a trial court’s grant of summary judgment is de novo.   See Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987).
WISCONSIN STAT. § 893.80(4), as material here, provides:
No suit may be brought against any ... political corporation,
governmental  subdivision  or  any  agency  thereof                                              ...  or
against its officers, officials, agents or employes for acts
done in the exercise of legislative, quasi-legislative, judicial
or quasi-judicial functions.
Under this provision, “[p]ublic officers or employees” as well as their employing
entities “enjoy immunity from liability for injuries resulting from the performance
of any discretionary act within the scope of their governmental employment.”
Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417,
421 (1999).   Immunity does not apply if the act or omission on which a claim for
liability is predicated is ministerial rather than discretionary.    See Ottinger v.
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No. 99-1913
Pinel,                                                                                                 215  Wis.                                                            2d   266,   273,   572  N.W.2d   519,   521   (Ct.  App.   1997).1
Additionally, “it is the nature of the specific act upon which liability is based, as
opposed to the categorization of the general duties of a public officer, which is
determinative of whether an officer is immune from liability.” C.L.   v.   Olson, 143
Wis. 2d 701, 716, 422 N.W.2d 614, 619 (1988).
¶8                                                                                                     A governmental employee’s duty must have certain attributes before
that duty will be considered to be ministerial rather than discretionary:
“A  public  officer’s  duty  is  ministerial  only  when  it  is
absolute,  certain  and  imperative,  involving  merely  the
performance  of  a  specific  task  when  the  law  imposes,
prescribes and defines the time, mode and occasion for its
performance with such certainty that nothing remains for
judgment or discretion.”
Kierstyn, 228 Wis. 2d at 91, 596 N.W.2d at 422 (quoted source omitted).   Stated
another  way,  “[a]  discretionary  act  involves  the  exercise  of  judgment  in  the
application of a rule to specific facts.”   Willow Creek Ranch, L.L.C. v. Town of
Shelby, 2000 WI 56, ¶ 25, 235 Wis. 2d 409, 425, 611 N.W.2d 693, 700.
¶9                                                                                                     Rolland  argues  that  there  are  three  reasons  why  Milwaukee
Transport’s obligations to ensure her safety were ministerial and not discretionary.
1   There are three other, closely related exceptions to governmental immunity: 1) when
there is a danger that is so “‘compelling and known to the officer and is of such force that the
public officer has no discretion not to act.’” Kierstyn v. Racine Unified School Dist., 228 Wis. 2d
81,  95-96,  596 N.W.2d  417,  425  (1999)  (quoted source omitted);  2) where, in a  “medical
context,” the act or omission by the governmental employee is “‘professional’ in nature” rather
than “governmental.” Id., 228 Wis. 2d at 97, 596 N.W.2d at 425; and 3) where “a public officer
engages in negligent conduct that is “malicious, willful and intentional.’” Id., 228 Wis. 2d 90 n.8,
596 N.W.2d at 422 n.8 (quoted source omitted). None of the parties asserts that any of these
exceptions is material here.
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No. 99-1913
She claims that drivers had a non-discretionary duty to use more than one belt; that
drivers had a non-discretionary duty to know how to properly and safely secure
motorized wheelchairs or scooters; and that if there was a problem with properly
securing a wheelchair or scooter, drivers had a non-discretionary duty to call their
dispatcher for help.   We disagree.
¶10    Each of the bases on which Rolland relies requires “the exercise of
judgment or discretion rather than the mere performance of a prescribed task.” See
Spencer v. County of Brown, 215 Wis. 2d 641, 652, 573 N.W.2d 222, 226-227
(Ct. App.  1997)  (how  to comply with mandatory duty to  keep premises safe
imposed by the safe-place statute is discretionary, WIS. STAT. § 101.11); see also
Kierstyn, 228 Wis. 2d at 93, 596 N.W.2d at 423 (act is ministerial if circumscribed
by specific obligations); Kimps v. Hill, 200 Wis. 2d 1, 14-15, 546 N.W.2d 151,
157-158 (1996) (professor’s duty to provide safe equipment, and safety officer’s
duty to investigate accidents did not impose ministerial duty on either in the way
to carry out their responsibilities); Ottinger, 215 Wis. 2d at 276, 572 N.W.2d at
522 (guards have duty to prevent escape by prisoners; method of prevention is
discretionary: “Despite the general duty to prevent an escape, correctional officers
are given wide latitude in determining how to handle an escape, how much force,
if permitted, is necessary to prevent an escape and at what point to stop the
pursuit.”).   Indeed, the Milwaukee Transport bulletins that Rolland argues impose
a ministerial duty recognize, by use of such terms as  “whenever possible” and
“[a]s a general rule,” that it is not possible to distill the method of ensuring the
safety of wheelchair passengers into a series of recipe-like steps—nothing in the
bulletins attempts to mandate specific steps so that “nothing remains for judgment
or discretion.”   See Kimps, 200 Wis. 2d at 15, 546 N.W.2d at 158.   The mere fact
that the driver might have been negligent in the way he secured Rolland and her
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No. 99-1913
scooter does not abrogate the governmental immunity conferred on Milwaukee
Transport and the County by WIS. STAT. § 893.80(4).   See id., 200 Wis. 2d at 11,
546  N.W.2d  at  156  (“Just  because  a  jury  can  find  that  certain  conduct  was
negligent does not transform that conduct into a breach of a ministerial duty.”).
¶11    Our conclusion that how a driver secures a passenger, or when the
driver  should  seek  assistance  from  a  dispatcher,  is  discretionary  and  not
ministerial—requiring, as those decisions do, the exercise of judgment—does not
end the matter.   Rather, giving Rolland the benefit of the doubt, as we must where
summary judgment is sought, see Lecus, 81 Wis. 2d at 189-190, 260 N.W.2d at
243-244,  her  version  of  the  incident raises an issue  of  material  fact: namely
whether  the  driver  ignored  his  mandatory  duty  not  to  drive  the  bus  with  a
wheelchair or scooter passenger aboard unless the passenger was secured.   See
Cavanaugh v. Andrade, 202 Wis. 2d 290, 301-305, 550 N.W.2d 103, 108-110
(1996)  (city violated ministerial duty by not drafting written policy governing
police  pursuit  of  fleeing  suspects  that  contained  all  the  elements  required  by
statute, even though the weight to be given to each element in the overall policy
would be discretionary). By  “ignored,” we do not mean to imply that a total
disregard  must  be  shown;  proving  a  cavalier,  mere  lip-service  payment  or
perfunctory nod to a mandatory duty that the law either imposes or recognizes
would be sufficient to show that the duty was ignored.   Stated another way, the
driver had a mandatory, ministerial duty to ensure, to the best of his ability and
judgment, that Rolland was safely secured on his bus; how he fulfilled that duty
required the exercise of his judgment and was therefore discretionary.   See C.L.,
143 Wis. 2d at 716, 422 N.W.2d at 619 (“[I]t is the nature of the specific act upon
which liability is based, as opposed to the categorization of the general duties of a
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No. 99-1913
public  officer,  which  is  determinative  of  whether  an  officer  is  immune  from
liability.”).
¶12    We  affirm the  trial  court’s  denial  of  the  defendants’  motion  for
summary judgment, and remand the matter for trial.   At the trial, the factfinder
should determine whether the driver ignored his duty to assure, to the best of his
ability and judgment, that Rolland was secured before he drove his bus.   As we
have seen, however, the mere fact that the driver might have been negligent in
carrying out that duty is not material to the issue of whether he ignored it.
By the Court.—Order affirmed and cause remanded.
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