immunity defense in Wisconsin

1999On the other hand, if the law was clearly established, then the immunity defense should fail because a reasonably competent public official should have known that the conduct was or was not lawful. *386 Id,.; Harlow, 457 U.S. at 818-819 .

1996As the Supreme Court stated in Harlow , "[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19 .

2003Co., No. 01-2953, unpublished slip op., ¶ 10 (Wis. Ct. App. July 18, 2002). [18] Kierstyn, 228 Wis. 2d at 94 ; see also Lodl, 253 Wis. 2d 323, ¶ 17 ("The immunity defense assumes negligence, focusing instead on whether the municipal action or inaction upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies."). [19] Kierstyn, 228 Wis. 2d at 97-98 . [20] Scarpaci, 96 Wis. 2d at 686 . [21] See Protic v. Castle Co., 132 Wis. 2d 364, 369-70 , 392 N.W.2d 119 (Ct. App. 1986); Gordon v. Milwaukee County

2003Co., No. 01-2953, unpublished slip op., ¶ 10 (Wis. Ct. App. July 18, 2002). [18] Kierstyn, 228 Wis. 2d at 94 ; see also Lodl, 253 Wis. 2d 323, ¶ 17 ("The immunity defense assumes negligence, focusing instead on whether the municipal action or inaction upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies."). [19] Kierstyn, 228 Wis. 2d at 97-98 . [20] Scarpaci, 96 Wis. 2d at 686 . [21] See Protic v. Castle Co., 132 Wis. 2d 364, 369-70 , 392 N.W.2d 119 (Ct. App. 1986); Gordon v. Milwaukee County

1983But in Kojis v. Doctors Hospital (1961), 12 Wis. 2d 367, 373 , 107 N.W.2d 131 , 107 N.W.2d 292 , this court changed its position and abolished the doctrine of immunity.” 57 Wis. 2d at 16 .

1983But in Kojis v. Doctors Hospital (1961), 12 Wis. 2d 367, 373 , 107 N.W.2d 131 , 107 N.W.2d 292 , this court changed its position and abolished the doctrine of immunity.” 57 Wis. 2d at 16 .

2013Although some of our cases have equated § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial" standard with the term "discretionary," 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 by applying the legislature's chosen plain language, rather than a judicial distillation thereof.

2013Although some of our cases have equated § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial" standard with the term "discretionary," 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 by applying the legislature's chosen plain language, rather than a judicial distillation thereof.

2013Although some of our cases have equated § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial" standard with the term "discretionary," 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 by applying the legislature's chosen plain language, rather than a judicial distillation thereof.

2013Although some of our cases have equated § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial" standard with the term "discretionary," 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 by applying the legislature's chosen plain language, rather than a judicial distillation thereof.

1984(Emphasis added.) Still, the Court upheld a California statute giving immunity to parole officials and held: “But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.” Id. at 282 .

1984(Emphasis added.) Still, the Court upheld a California statute giving immunity to parole officials and held: "But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Id. at 282 .

1962Surely it cannot be urged successfully that an outmoded, inequitable, and artificial curtailment of a general rule of action created by the judicial branch of the government cannot or should not be removed by its creator." As the supreme court of Washington observed in Pierce v. Yakima Valley Memorial Hospital Asso. (1953), 43 Wash. (2d) 162, 178, 260 Pac. (2d) 765, 774 , "We closed our courtroom doors without legislative help, and we can likewise open them." It is also urged that the immunity rule is a part of the common law which has been adopted by this state and can only be changed by the

1962Surely it cannot be urged successfully that an outmoded, inequitable, and artificial curtailment of a general rule of action created by the judicial branch of the government cannot or should not be removed by its creator.” As the supreme court of Washington observed in Pierce v. Yakima Valley Memorial Hospital Asso. (1953), 43 Wash. (2d) 162, 178, 260 Pac. (2d) 765, 774 , “We closed our courtroom doors without legislative help, and we can likewise open them.” It is also urged that the immunity rule is a part of the common law which has been adopted by this state and can only be changed by the

2020Sewerage Dist. v. City of Milwaukee, 2005 WI 8 , ¶59 n.17, 277 Wis. 2d 635 , 691 N.W.2d 658 (stating the immunity analysis for a nuisance claim depends on the “character of the tortious acts underlying the nuisance,” and stating that Hillcrest’s apparent conclusion to the contrary was the result of erroneous reliance on “immunity jurisprudence that predated Holytz and [WIS.

2020Sewerage Dist. v. City of Milwaukee, 2005 WI 8 , ¶59 n.17, 277 Wis. 2d 635 , 691 N.W.2d 658 (stating the immunity analysis for a nuisance claim depends on the “character of the tortious acts underlying the nuisance,” and stating that Hillcrest’s apparent conclusion to the contrary was the result of erroneous reliance on “immunity jurisprudence that predated Holytz and [WIS.

2018In other words, the existence of an express federal preemption provision (as reflected in the immunity clause here) "does not immediately end the inquiry because the question of the substance and scope of Congress'[s] displacement of state law still remains." Altria Grp., Inc. v. Good , 555 U.S. 70 , 76, 129 S.Ct. 538 , 172 L.Ed.2d 398 (2008).

2018In other words, the existence of an express federal preemption provision (as reflected in the immunity clause here) "does not immediately end the inquiry because the question of the substance and scope of Congress'[s] displacement of state law still remains." Altria Grp., Inc. v. Good , 555 U.S. 70 , 76, 129 S.Ct. 538 , 172 L.Ed.2d 398 (2008).

2013Richards, 309 Wis. 2d 541, ¶20 .

2010"The immunity defense assumes negligence, focusing instead on whether the municipal action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies." Lodl, 253 Wis. 2d 323, ¶ 17 . ¶ 64. "[0]ne has a duty to exercise ordinary care under the circumstances." Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 30 , 291 Wis. 2d 283 , 717 N.W.2d 17 .

2010"The immunity defense assumes negligence, focusing instead on whether the municipal action (or inaction) upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies." Lodl, 253 Wis. 2d 323, ¶ 17 . ¶ 64. "[0]ne has a duty to exercise ordinary care under the circumstances." Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 30 , 291 Wis. 2d 283 , 717 N.W.2d 17 .

2010Imposing liability in this case would therefore not serve the policy underlying the doctrine of immunity." [3] Id. ¶ 82 Over the years, we have adhered to a consistent approach to governmental immunity.

2003By the Court. — The decision of the court of appeals is affirmed. 1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. 2 The circuit court's summary judgment orders in favor of Gregory and American Family are not before this court. 3 In Miller v. Thomack, 210 Wis. 2d 650 , 660 n.11, 563 N.W.2d 891 (1997), we specifically declined to address the issue presented here — whether an underage consumer of alcohol can be a third party for purposes of the immunity exception in Wis. Stat. § 125.035 (4) (b) — as it was not fully argued by the parties.

2003By the Court. — The decision of the court of appeals is affirmed. 1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. 2 The circuit court's summary judgment orders in favor of Gregory and American Family are not before this court. 3 In Miller v. Thomack, 210 Wis. 2d 650 , 660 n.11, 563 N.W.2d 891 (1997), we specifically declined to address the issue presented here — whether an underage consumer of alcohol can be a third party for purposes of the immunity exception in Wis. Stat. § 125.035 (4) (b) — as it was not fully argued by the parties.

2003Co., No. 01-2953, unpublished slip op., ¶ 10 (Wis. Ct. App. July 18, 2002). [18] Kierstyn, 228 Wis. 2d at 94 ; see also Lodl, 253 Wis. 2d 323, ¶ 17 ("The immunity defense assumes negligence, focusing instead on whether the municipal action or inaction upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies."). [19] Kierstyn, 228 Wis. 2d at 97-98 . [20] Scarpaci, 96 Wis. 2d at 686 . [21] See Protic v. Castle Co., 132 Wis. 2d 364, 369-70 , 392 N.W.2d 119 (Ct. App. 1986); Gordon v. Milwaukee County

2003Co., No. 01-2953, unpublished slip op., ¶ 10 (Wis. Ct. App. July 18, 2002). [18] Kierstyn, 228 Wis. 2d at 94 ; see also Lodl, 253 Wis. 2d 323, ¶ 17 ("The immunity defense assumes negligence, focusing instead on whether the municipal action or inaction upon which liability is premised is entitled to immunity under the statute, and if so, whether one of the judicially-created exceptions to immunity applies."). [19] Kierstyn, 228 Wis. 2d at 97-98 . [20] Scarpaci, 96 Wis. 2d at 686 . [21] See Protic v. Castle Co., 132 Wis. 2d 364, 369-70 , 392 N.W.2d 119 (Ct. App. 1986); Gordon v. Milwaukee County

2002See Kimps v. Hill, 200 Wis. 2d 1, 11-12 , 546 N.W.2d 151 (1996); Ottinger v. Pinel, 215 Wis. 2d 266 , 572 N.W.2d 519 (Ct. App. 1997).

2002See Kimps v. Hill, 200 Wis. 2d 1, 11-12 , 546 N.W.2d 151 (1996); Ottinger v. Pinel, 215 Wis. 2d 266 , 572 N.W.2d 519 (Ct. App. 1997).

2002Evans, 77 Wis. 2d at 235-36 .

1998Similarly, the one-on-one professional-client relationship requiring the exercise of expertise, personal care and advice was missing in Bauder v. Delavan-Darien School District, 207 Wis. 2d 310 , 558 N.W.2d 881 (Ct. App. 1996), where the decision at issue was to move a soccer class inside due to inclement weather.

1998Similarly, the one-on-one professional-client relationship requiring the exercise of expertise, personal care and advice was missing in Bauder v. Delavan-Darien School District, 207 Wis. 2d 310 , 558 N.W.2d 881 (Ct. App. 1996), where the decision at issue was to move a soccer class inside due to inclement weather.

1994The court went on to hold, however, that Lindas's Title VII claim was not barred by state sovereign immunity because "congress, in enacting Title VII... intended to override . . . the immunity that states would claim in actions against them in their own courts." Id. at 430 , 441 N.W.2d at 709 .

1994The court went on to hold, however, that Lindas's Title VII claim was not barred by state sovereign immunity because "congress, in enacting Title VII... intended to override . . . the immunity that states would claim in actions against them in their own courts." Id. at 430 , 441 N.W.2d at 709 .