section 893.80(4) immunity in Wisconsin

2025STAT. § 893.80(4) language conditioning immunity on the performance of discretionary acts has been a return to governmental immunity as the rule and liability as the exception.”). 17 (two blocks away), and pets”; and “contaminated sewer water carries illicit discharges and deposits toxic debris onto Goeben’s property and in[to] their home—seeping into the walls, insulation, framing, and sheetrock.” He states that “[t]he danger persists, as it recurs with each flooding event.” Finally, he concludes that “[i]t’s not a matter of ‘if,’ but rather ‘when’ someone—whether it’s Goeben, a neighbor, or

2014See Lodl, 253 Wis. 2d 323, ¶25 . 16 No. 2012AP2499 ¶43 The court's explication and application of the doctrine of governmental immunity under Wis. Stat. § 893.80 (4) has come under increasing criticism by members of the court.16 ¶44 The criticism came clearly and forcefully to the fore in Scott v. Savers Property & Casualty Insurance Co., 2003 WI 60 , 262 Wis. 2d 127 , 663 N.W.2d 715 . ¶45 In Scott, a school guidance counselor gave incorrect information to a student regarding appropriate classes.

2013For comments indicating that provisions and limits in Wis. Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235 Wis. 2d 409, ¶ 36 (government immunity provisions in Wis. Stat. § 893.80 (4) govern suit founded on tort against a town for money damages and injunctive relief; "Although immunity serves as a bar to both money damages and injunctive relief based in tort, municipalities do not benefit from the shield of immunity in actions seeking declaratory relief (emphasis added)).

2013For comments indicating that provisions and limits in Wis. Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235 Wis. 2d 409, ¶36 (government immunity provisions in Wis. Stat. § 893.80 (4) govern suit founded on tort against a town for money damages and injunctive relief; "Although immunity serves as a bar to both money damages and injunctive relief based in tort, municipalities do not benefit from the shield of immunity in actions seeking declaratory relief" (emphasis added)).

2013After reviewing the Harkness and DNR cases, the court of appeals concluded, as limited by Willow Creek, "that the official immunity provisions of § 893.80(4), Stats., . . . are not limited to . . . money- damage actions [founded on tort], but are equally applicable to [tort] actions which . . . seek injunctive relief . . . ."88 87 DNR v. City of Waukesha, 184 Wis. 2d 178, 191 , 515 N.W.2d 888 (1994), overruled the following language in prior cases: Kaiser v. City of Mauston, 99 Wis. 2d 345, 356 , 299 N.W.2d 259 (Ct. App. 1980) ("[t]his statute applies to claims for money damages.

2013After reviewing the Harkness and DNR cases, the court of appeals concluded, as limited by Willow Creek, "that the official immunity provisions of § 893.80(4), Stats., . . . are not limited to . . . money- damage actions [founded on tort], but are equally applicable to [tort] actions which . . . seek injunctive relief . . . ."88 87 DNR v. City of Waukesha, 184 Wis. 2d 178, 191 , 515 N.W.2d 888 (1994), overruled the following language in prior cases: Kaiser v. City of Mauston, 99 Wis. 2d 345, 356 , 299 N.W.2d 259 (Ct. App. 1980) ("[t]his statute applies to claims for money damages.

2013It does not apply to a claim for equitable relief"); Harkness v. Palmyra–Eagle School Dist., 157 Wis. 2d 567, 579 , 460 N.W.2d 769 (Ct. App. 1990) ("[w]e have found no authority indicating that it applies to equitable or injunctive relief"); Nicolet v. Village of Fox Point, 177 Wis. 2d 80, 86 , 501 N.W.2d 842 (Ct. App. 1993) ("[t]he full legislative history clarifies that sec. 893.80 never was intended to apply to equitable actions"). 88 Johnson v. City of Edgerton, 207 Wis. 2d 343, 352 , 558 N.W.2d 653 (Ct. App. 1996).

2013It does not apply to a claim for equitable relief"); Harkness v. Palmyra–Eagle School Dist., 157 Wis. 2d 567, 579 , 460 N.W.2d 769 (Ct. App. 1990) ("[w]e have found no authority indicating that it applies to equitable or injunctive relief"); Nicolet v. Village of Fox Point, 177 Wis. 2d 80, 86 , 501 N.W.2d 842 (Ct. App. 1993) ("[t]he full legislative history clarifies that sec. 893.80 never was intended to apply to equitable actions"). 88 Johnson v. City of Edgerton, 207 Wis. 2d 343, 352 , 558 N.W.2d 653 (Ct. App. 1996).

2017As we have recognized, immunity under § 893.80(4) "is available to a governmental entity only for those governmental decisions that are made as an exercise of 'legislative, quasi-legislative, judicial or quasi-judicial functions.'" Showers, 350 Wis. 2d 509, ¶ 35 . 13 "Legislative and quasi-legislative functions generally refer to those policy choices made in an official capacity, e.g., when a governmental entity chooses one project design over another." Id., ¶ 26 (citing Estate of Lyons v. CNA Ins., 207 Wis. 2d 446, 453 , 558 N.W.2d 658 (Ct. App. 1996)). ¶ 19.

2017As we have recognized, immunity under § 893.80(4) "is available to a governmental entity only for those governmental decisions that are made as an exercise of 'legislative, quasi-legislative, judicial or quasi-judicial functions.'" Showers, 350 Wis. 2d 509, ¶ 35 . 13 "Legislative and quasi-legislative functions generally refer to those policy choices made in an official capacity, e.g., when a governmental entity chooses one project design over another." Id., ¶ 26 (citing Estate of Lyons v. CNA Ins., 207 Wis. 2d 446, 453 , 558 N.W.2d 658 (Ct. App. 1996)). ¶ 19.

2013For example, other jurisdictions have concluded that while governmental contractors will not be liable for injuries 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 liability where the injury arises from the contractor's negligent performance of the work." Gaunt & Haynes, Inc. v. Moritz Corp., 485 N.E.2d 1123, 1126 (Ill.

2013For example, other jurisdictions have concluded that while governmental contractors will not be liable for injuries 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 liability where the injury arises from the contractor's negligent performance of the work." Gaunt & Haynes, Inc. v. Moritz Corp., 485 N.E.2d 1123, 1126 (Ill.

2013See Coffey, 74 Wis. 2d at 531 , 535–40 (setting forth elements of standard negligence analysis and applying those elements after determining that municipal officer was not entitled to immunity).

2013See Coffey, 74 Wis. 2d at 531 , 535–40 (setting forth elements of standard negligence analysis and applying those elements after determining that municipal officer was not entitled to immunity).

2013See 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).

2013See 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).

1996They are designed to "protect public officers from being unduly hampered or intimidated in the discharge of their functions by threat of lawsuit or personal liability," Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682 , 292 N.W.2d 816, 825 (1980), and, more generally, to " 'ensure that courts will refuse to pass judgment on the policy decisions made by coordinate branches of government.'" Hillman v. Columbia County, 164 Wis. 2d 376, 397 , 474 N.W.2d 913, 921 (Ct. App. 1991) (quoted source omitted).

1996They are designed to "protect public officers from being unduly hampered or intimidated in the discharge of their functions by threat of lawsuit or personal liability," Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682 , 292 N.W.2d 816, 825 (1980), and, more generally, to " 'ensure that courts will refuse to pass judgment on the policy decisions made by coordinate branches of government.'" Hillman v. Columbia County, 164 Wis. 2d 376, 397 , 474 N.W.2d 913, 921 (Ct. App. 1991) (quoted source omitted).

2019V ¶63 We conclude that the known danger exception applies in the instant case, and as a result, New Berlin is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80 (4). 63 C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d at 491-93 ); see also Pries, 326 Wis. 2d 37 , ¶45 n.4 (Abrahamson, C.J., concurring) (quoting Domino, 118 Wis. 2d at 491 ). 24 No. 2016AP801 ¶64 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

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.

2014A closer inspection reveals that it is not. ¶95 The Cavanaugh court declared, as we noted previously, that "despite the general discretionary act immunity set forth in § 893.80(4), a negligence action may be sustained against an officer involved in a high-speed pursuit on the grounds that he or she breached the duty to operate the vehicle with 'due regard under the circumstances' under § 346.03(5)." Cavanaugh, 202 Wis. 2d at 319 . ¶96 The dilemma presented by the Cavanaugh opinion is that it distinguishes the discretionary decision to pursue (entitled to immunity under Wis. Stat. § 893.80 (4))

2014Cavanaugh, 202 Wis. 2d at 319 . ¶13 The defendant relies on the very next sentence in Cavanaugh: However, the negligent operation under § 346.03(5) does not include the discretionary decisions to initiate or continue a pursuit; such discretionary decisions continue to be afforded immunity under § 893.80(4).

2017See, e.g., Legue, 357 Wis. 2d 250, ¶ 43 ("The court's explication and application of the doctrine of governmental immunity under Wis. Stat. § 893.80 (4) has come under increasing criticism by members of the court."); Bostco LLC v. Milwaukee Metro.

2017See, e.g., Legue, 357 Wis. 2d 250, ¶43 ("The court's explication and application of the doctrine of governmental immunity under Wis. Stat. § 893.80 (4) has come under increasing criticism by members of the court."); Bostco LLC v. Milwaukee Metro.

2019V ¶63 We conclude that the known danger exception applies in the instant case, and as a result, New Berlin is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80 (4). 63 C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d at 491-93 ); see also Pries, 326 Wis. 2d 37 , ¶45 n.4 (Abrahamson, C.J., concurring) (quoting Domino, 118 Wis. 2d at 491 ). 24 No. 2016AP801 ¶64 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

2019V ¶63 We conclude that the known danger exception applies in the instant case, and as a result, New Berlin is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80 (4). 63 C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d at 491-93 ); see also Pries, 326 Wis. 2d 37 , ¶45 n.4 (Abrahamson, C.J., concurring) (quoting Domino, 118 Wis. 2d at 491 ). 24 No. 2016AP801 ¶64 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

2017Rather than layering the court's favored standard over the statutory text—or simply asserting that a particular action is "legislative or quasi-legislative," as the majority does here—the appropriate interpretive tool is to critically assess the original meaning of "legislative, quasi-legislative, judicial or quasi-judicial functions." 4 The specific language chosen by the legislature in Wis. Stat. § 893.80 (4) parallels the exception to liability crafted by this court's Holytz opinion, which cited Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957), when introducing into Wisconsin law

1996See infra discussion. 4 The statute was created as § 331.43, Stats., 1963, by Laws of 1963, ch. 198. 5 In so deciding, we are aware that we based our holdings in Nicolet and Harkness largely on the fact that § 893.80, STATS., was created in response to the supreme court's decision in Holytz v. Milwaukee, 17 Wis. 2d 26 , 115 N.W.2d 618 (1962), abolishing the doctrine of municipal tort immunity in Wisconsin, and suggesting that the legislature could, if it desired, regulate the form and manner in which such suits could *353 be brought.

2013Because 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.

2013Because 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.

2000In this respect, our rationale is consistent with Energy Complexes v. Eau Claire County, 152 Wis. 2d 453, 466 , 449 N.W.2d 35 (1989), which held that Wis. Stat. § 893.80 (4) does not grant immunity to actions based in contract. 11 Here, as in Johnson , Willow Creek's claim for injunctive relief is based in tort.

2000In this respect, our rationale is consistent with Energy Complexes v. Eau Claire County, 152 Wis. 2d 453, 466 , 449 N.W.2d 35 (1989), which held that Wis. Stat. § 893.80 (4) does not grant immunity to actions based in contract. 11 Here, as in Johnson , Willow Creek's claim for injunctive relief is based in tort.

2019Bd. of Adjustment, 2001 WI 78, ¶29 , 244 Wis. 2d 613 , 628 N.W.2d 376 ); see also Romanshek, 281 Wis. 2d 300, ¶42 ; Johnson Controls, 264 Wis. 2d 60, ¶95 . 25 Lodl, 253 Wis. 2d 323, ¶24 (citing Willow Creek Ranch, 235 Wis. 2d 409, ¶25 ). 26 C.L., 143 Wis. 2d at 710 (quoting Lister, 72 Wis. 2d at 300 ). 12 No. 2016AP801 ¶31 In the instant case, the Engelhardts invoke the "ministerial duty" and "known danger" exceptions to governmental immunity.

2019Doing so gives the impression that the decision to overturn prior cases is "undertaken merely because the composition of the court has changed."23 "When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results."24 B ¶29 Wisconsin Stat. § 893.80(4) provides no immunity against liability associated with several categories of acts: There is no immunity against liability associated with: 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial dutie

2019V ¶63 We conclude that the known danger exception applies in the instant case, and as a result, New Berlin is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80 (4). 63 C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d at 491-93 ); see also Pries, 326 Wis. 2d 37 , ¶45 n.4 (Abrahamson, C.J., concurring) (quoting Domino, 118 Wis. 2d at 491 ). 24 No. 2016AP801 ¶64 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

2019Pries, 326 Wis. 2d 37, ¶24 . 13 No. 2016AP801 ¶33 We have explained that "circumstances may give rise to such a certain duty, where . . . the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act."29 ¶34 If either the "ministerial duty" exception or the "known danger" exception applies, New Berlin is not entitled to governmental immunity pursuant to Wis. Stat. § 893.80 (4).

2019Bd. of Adjustment, 2001 WI 78, ¶29 , 244 Wis. 2d 613 , 628 N.W.2d 376 ); see also Romanshek, 281 Wis. 2d 300, ¶42 ; Johnson Controls, 264 Wis. 2d 60, ¶95 . 25 Lodl, 253 Wis. 2d 323, ¶24 (citing Willow Creek Ranch, 235 Wis. 2d 409, ¶25 ). 26 C.L., 143 Wis. 2d at 710 (quoting Lister, 72 Wis. 2d at 300 ). 12 No. 2016AP801 ¶31 In the instant case, the Engelhardts invoke the "ministerial duty" and "known danger" exceptions to governmental immunity.