known danger exception in Wisconsin

2021Courts have described these dangerous situations as circumstances “where injury is almost certain to occur,” American Family, 341 Wis. 2d 413, ¶26 , or as “accidents waiting to happen,” Voss v. Elkhorn Area School District, 2006 WI App 234, ¶19 , 297 Wis. 2d 389 , 724 N.W.2d 420 . 9 No. 2020AP482 ¶21 When applying the known danger exception, courts follow a three- step test that analyzes the factual components.

2021Courts have described these dangerous situations as circumstances “where injury is almost certain to occur,” American Family, 341 Wis. 2d 413, ¶26 , or as “accidents waiting to happen,” Voss v. Elkhorn Area School District, 2006 WI App 234, ¶19 , 297 Wis. 2d 389 , 724 N.W.2d 420 . 9 No. 2020AP482 ¶21 When applying the known danger exception, courts follow a three- step test that analyzes the factual components.

2021That is, no immunity exists where the duty “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.” Id. (citing Lister v. Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301 , 240 N.W.2d 610 (1976)). “‘Law’ in this context means, at a minimum, an act of 4 No. 2020AP937 government,” and “includes statutes, administrative rules, policies or orders.” Meyers v. Schultz, 2004 WI App 234, ¶19 , 277

2021That is, no immunity exists where the duty “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.” Id. (citing Lister v. Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301 , 240 N.W.2d 610 (1976)). “‘Law’ in this context means, at a minimum, an act of 4 No. 2020AP937 government,” and “includes statutes, administrative rules, policies or orders.” Meyers v. Schultz, 2004 WI App 234, ¶19 , 277

2024Indeed, there are no published or citable judicial decisions applying constructive notice in the known and compelling danger context.15 Ellenbecker acknowledges this fact, yet it asks this court to fundamentally alter the accepted analysis anyway, stating that “there is no compelling reason why constructive notice does not apply to the known danger exception to immunity.” Notwithstanding the fact that Ellenbecker fails to develop a persuasive argument as to why constructive notice should apply to the known and compelling danger exception, beyond stating that a “municipality could simply stick

2024Indeed, there are no published or citable judicial decisions applying constructive notice in the known and compelling danger context.15 Ellenbecker acknowledges this fact, yet it asks this court to fundamentally alter the accepted analysis anyway, stating that “there is no compelling reason why constructive notice does not apply to the known danger exception to immunity.” Notwithstanding the fact that Ellenbecker fails to develop a persuasive argument as to why constructive notice should apply to the known and compelling danger exception, beyond stating that a “municipality could simply stick

2009The regulation provides: "Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder...." Umansky, 313 Wis.2d 445, ¶¶ 6-9 , 756 N.W.2d 601 . ¶ 7 As noted above, the circuit court granted Fox's motion for summary judgment, reasoning that neither the ministerial duty exception nor the known danger exception applied in this case; because it found no applicable exception, the cir

2009The regulation provides: "Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder...." Umansky, 313 Wis.2d 445, ¶¶ 6-9 , 756 N.W.2d 601 . ¶ 7 As noted above, the circuit court granted Fox's motion for summary judgment, reasoning that neither the ministerial duty exception nor the known danger exception applied in this case; because it found no applicable exception, the cir

2008In contrast to the above cases, the known danger exception was held inapplicable in these cases, among a number of others: Lodl, 253 Wis. 2d 323 (police officer negligently failed to control traffic at an intersection where the traffic lights were inoperable); Hoskins v. Dodge County, 2002 WI App 40 , 251 Wis. 2d 276 , 642 N.W.2d 213 (sheriffs department received a report of a boat in trouble on a stormy night and sent a deputy to investigate but did not dispatch a rescue boat). ¶ 69.

2008In contrast to the above cases, the known danger exception was held inapplicable in these cases, among a number of others: Lodl, 253 Wis. 2d 323 (police officer negligently failed to control traffic at an intersection where the traffic lights were inoperable); Hoskins v. Dodge County, 2002 WI App 40 , 251 Wis. 2d 276 , 642 N.W.2d 213 (sheriffs department received a report of a boat in trouble on a stormy night and sent a deputy to investigate but did not dispatch a rescue boat). ¶ 69.

2002In contrast, in Linville v. City of Janesville, 174 Wis. 2d 571 , 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705 , 516 N.W.2d 427 (1994), the known danger exception applied to pierce immunity for negligent failure to attempt an immediate rescue of occupants of a van submerged in a park pond.

2002In contrast, in Linville v. City of Janesville, 174 Wis. 2d 571 , 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705 , 516 N.W.2d 427 (1994), the known danger exception applied to pierce immunity for negligent failure to attempt an immediate rescue of occupants of a van submerged in a park pond.

2024Indeed, there are no published or citable judicial decisions applying constructive notice in the known and compelling danger context.15 Ellenbecker acknowledges this fact, yet it asks this court to fundamentally alter the accepted analysis anyway, stating that “there is no compelling reason why constructive notice does not apply to the known danger exception to immunity.” Notwithstanding the fact that Ellenbecker fails to develop a persuasive argument as to why constructive notice should apply to the known and compelling danger exception, beyond stating that a “municipality could simply stick

2024Indeed, there are no published or citable judicial decisions applying constructive notice in the known and compelling danger context.15 Ellenbecker acknowledges this fact, yet it asks this court to fundamentally alter the accepted analysis anyway, stating that “there is no compelling reason why constructive notice does not apply to the known danger exception to immunity.” Notwithstanding the fact that Ellenbecker fails to develop a persuasive argument as to why constructive notice should apply to the known and compelling danger exception, beyond stating that a “municipality could simply stick

2021Co., 2009 WI 82, ¶14 , 319 Wis. 2d 622 , 769 N.W.2d 1 (“[B]efore the [plaintiffs] [could] proceed to attempt to prove their negligence case, they must first defeat [the defendant’s] defense of immunity, to which he [was] entitled as a state employee unless an exception applies.”). ¶22 A dispute as to whether there is a ministerial duty based on the known danger exception can be decided on summary judgment.

2021Co., 2009 WI 82, ¶14 , 319 Wis. 2d 622 , 769 N.W.2d 1 (“[B]efore the [plaintiffs] [could] proceed to attempt to prove their negligence case, they must first defeat [the defendant’s] defense of immunity, to which he [was] entitled as a state employee unless an exception applies.”). ¶22 A dispute as to whether there is a ministerial duty based on the known danger exception can be decided on summary judgment.

2021That is, no immunity exists where the duty “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.” Id. (citing Lister v. Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301 , 240 N.W.2d 610 (1976)). “‘Law’ in this context means, at a minimum, an act of 4 No. 2020AP937 government,” and “includes statutes, administrative rules, policies or orders.” Meyers v. Schultz, 2004 WI App 234, ¶19 , 277

2021That is, no immunity exists where the duty “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.” Id. (citing Lister v. Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301 , 240 N.W.2d 610 (1976)). “‘Law’ in this context means, at a minimum, an act of 4 No. 2020AP937 government,” and “includes statutes, administrative rules, policies or orders.” Meyers v. Schultz, 2004 WI App 234, ¶19 , 277

2010Indeed, the court of appeals in this case concluded that the known danger exception applied because "it should have been self-evident to Mc-Millon that once he saw the chains had been removed, he had a ministerial duty based on the known danger to stop the disassembly until the chains were reattached and to not jump on the unchained stall." Pries, 314 Wis. 2d 706, ¶ 25 .

2010Indeed, the court of appeals in this case concluded that the known danger exception applied because "it should have been self-evident to McMillon that once he saw the chains had been removed, he had a ministerial duty based on the known danger to stop the disassembly until the chains were reattached and to not jump on the unchained stall." Pries, 314 Wis.2d 706, ¶ 25 , 760 N.W.2d 174 .

2002In contrast, in Linville v. City of Janesville, 174 Wis. 2d 571 , 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705 , 516 N.W.2d 427 (1994), the known danger exception applied to pierce immunity for negligent failure to attempt an immediate rescue of occupants of a van submerged in a park pond.

2002In contrast, in Linville v. City of Janesville, 174 Wis. 2d 571 , 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705 , 516 N.W.2d 427 (1994), the known danger exception applied to pierce immunity for negligent failure to attempt an immediate rescue of occupants of a van submerged in a park pond.

2002Co., 2001 WI App 3, ¶ 16 , 240 Wis. 2d 652 , 625 N.W.2d 601 (Ct. App. 2000).

2002Co., 2001 WI App 3, ¶ 16 , 240 Wis. 2d 652 , 625 N.W.2d 601 (Ct. App. 2000).

2002Most recently, this court confirmed the known danger exception as distinct in Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56 , 235 Wis. 2d 409 , 611 N.W.2d 693 .

2002Most recently, this court confirmed the known danger exception as distinct in Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56 , 235 Wis. 2d 409 , 611 N.W.2d 693 .

2002Similarly, in Barillari v. City of Milwaukee, 194 Wis. 2d 247 , 533 N.W.2d 759 (1995), we held that the known danger exception did not apply to a claim that the City of Milwaukee Police Department was negligent in failing to fulfill a promise to arrest a sex offender.

2002Similarly, in Barillari v. City of Milwaukee, 194 Wis. 2d 247 , 533 N.W.2d 759 (1995), we held that the known danger exception did not apply to a claim that the City of Milwaukee Police Department was negligent in failing to fulfill a promise to arrest a sex offender.

2002Dist., 207 Wis. 2d 310, 315 , 558 N.W.2d 881 (Ct.App. 1996)(use of partially-deflated soccer ball in indoor gym class at public school not a known and compelling danger). [6] The dissent views this opinion as collapsing the known danger exception into the ministerial duty exception.

2002Dist., 207 Wis. 2d 310, 315 , 558 N.W.2d 881 (Ct.App. 1996)(use of partially-deflated soccer ball in indoor gym class at public school not a known and compelling danger). [6] The dissent views this opinion as collapsing the known danger exception into the ministerial duty exception.

2002Similarly, in Kimps v. Hill, 200 Wis. 2d 1 , 546 N.W.2d 151 (1996), the court related the two exceptions, but characterized the known danger exception as involving the failure to act: "a public officer's duty becomes ministerial only 'where, as in Cords , 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.'" Id. at 15 (emphasis added).

2002Similarly, in Kimps v. Hill, 200 Wis. 2d 1 , 546 N.W.2d 151 (1996), the court related the two exceptions, but characterized the known danger exception as involving the failure to act: "a public officer's duty becomes ministerial only 'where, as in Cords , 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.'" Id. at 15 (emphasis added).