Eileen W. Legue v. City of Racine

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Appeal No. 2012AP2499 Cir. Ct. No. 2011CV2090

WISCONSIN COURT OF APPEALS

DISTRICT I
EILEEN W. LEGUE,
PLAINTIFF-APPELLANT,
DEPARTMENT OF HEALTH AND HUMAN SERVICES FILED

AND FARMERS INSURANCE EXCHANGE,

INVOLUNTARY-PLAINTIFFS, Oct 02, 2013

Diane M. Fremgen
Vv. Clerk of Supreme Court

CITY OF RACINE AND AMY L. MATSEN,

DEFENDANTS-RESPONDENTS.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C.J., Reilly and Gundrum, JJ.

Pursuant to WIS. STAT. RULE 809.61, this appeal is certified to the
Wisconsin Supreme Court for review and determination. We respectfully request

that the Wisconsin Supreme Court be the body to determine the following issue.
ISSUE

This is another in a series of cases in which the court must reconcile
statutory governmental immunity with the public officers’ statutory privilege to
violate rules of the road during emergencies. The outcome depends on a question

that the case law leaves open: does governmental immunity apply when someone

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is injured because an officer proceeds against a traffic signal as authorized by WIS.
STAT. § 346.03(2)(b) (2011-12),1 if the officer slowed the vehicle and activated
lights and sirens as required by § 346.03(3) but nonetheless arguably violated the
duty to operate the vehicle “with due regard under the circumstances” as required
by § 346.03(5)?
Resolving this question requires interpretation of WIS. STAT.
§ 893.80, which creates governmental immunity, along with multiple provisions of
WIS. STAT. § 346.03, which creates public officers’ privilege to violate rules of the
road in emergencies. More specifically, the case asks when, if ever, the “due
regard” requirement imposed by § 346.03(5) becomes a “ministerial” obligation,
violation of which will create an exception to governmental immunity.
Because the accident at issue occurred during the common situation
of an emergency vehicle proceeding against a stop sign or signal, the answer to
this question will have broad statewide impact. The case also requires the
weighing of important statewide public policy interests: on the one hand,
protecting the efficient and effective performance of emergency functions from the
drain of tort lawsuits, and, on the other hand, compensating innocent persons
injured by alleged negligence during emergency efforts.
We certify the case so that our supreme court can resolve these
important open issues of statutory interpretation and public policy.
1 All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise
noted.

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Facts
The facts relevant to the legal question of whether Officer Amy
Matsen2 was entitled to governmental liability are simple, and we state them in the
light most favorable to the jury verdict. In July 2009, Matsen received a dispatch
calling her to the scene of a motor vehicle accident. She headed north on Douglas
Avenue at a high rate of speed with lights and sirens engaged, periodically
sounding her horn. As she neared the intersection of Douglas Avenue and South
Street, Matsen saw that the light was red and slowed down.
A KFC restaurant on the southwest corner of the intersection
blocked the view between the western portion of South Street and the southern
portion of Douglas Avenue. Matsen, her speed reduced to twenty-seven miles per
hour (below the posted speed limit of thirty-miles per hour), nonetheless
proceeded through the intersection.
At that moment, Eileen Legue was traveling eastbound on South
Street at thirty-miles per hour and was just about to enter the intersection with
Douglas Avenue. She had her windows up and music playing in her vehicle, and
she did not hear Matsen’s sirens or horn. The front end of Legue’s vehicle struck
the driver’s side of Matsen’s vehicle almost immediately as Legue and Matsen
entered the intersection. Both were injured in the collision.
2 The defendants are Matsen and the City of Racine. However, as the certified issue
concerns Matsen’s governmental immunity, we refer solely to Matsen throughout this
certification, for the sake of convenience.

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Legue3 later sued, seeking compensation for damages she sustained
as a result of Matsen’s alleged negligence. Matsen’s answer included the defense
of governmental immunity and the public officer’s privilege to violate traffic laws
in an emergency under WIS. STAT. § 346.03. A jury trial was held on the issues of
whether “upon entering the intersection, [Matsen drove] with due regard under the
circumstances for the safety of all persons”; if not, whether her negligence was a
cause of the accident; and whether Legue was contributorily negligent. In its
verdict, the jury found that both parties were negligent and that each was equally
at fault.
Matsen filed motions challenging the jury verdict on the grounds
that, as a matter of law, the evidence established that she could not have prevented
the accident except by deciding not to enter the intersection, a decision for which,
she argued, she is immune from liability.4 Legue responded that though Matsen’s
decision to enter the intersection was discretionary, her duty to operate the vehicle
with “due regard under the circumstances for the safety of all persons” under WIS.
STAT. § 346.03 was ministerial. Due to the KFC building blocking the view
between eastbound South Street and northbound Douglas Avenue, Legue argued,
Matsen had a ministerial duty to greatly reduce her speed, or even stop, before
entering this particular intersection.
3 The plaintiffs are not only Legue but also the federal Department of Health and Human
Services and Farmers Insurance Exchange. Throughout the certification we refer only to Legue,
for convenience.
4 The motion was made on a number of different procedural grounds and attacked the
verdict in different ways, but as the circuit court pointed out, the issue raised boiled down to
whether, as a matter of law, Matsen is immune from liability for her alleged failure to operate the
vehicle with “due regard for the safety of others” by entering the intersection at twenty-seven
miles per hour.

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The circuit court granted Matsen’s motions, holding that Matsen was
immune from liability for damages resulting from her discretionary decision to
enter the intersection. Legue appeals.
Discussion
Wisconsin law immunizes public officers against liability for
damages caused by “acts done in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions.” WIS. STAT. § 893.80(4). Governing case law
interprets this statute to mean that public employees are generally immune for
damages caused by their acts in the scope of their employment, subject to four
exceptions: (1) performance of ministerial duties, (2) known dangers giving rise
to ministerial duties, (3) exercise of medical discretion, and (4) intentional, willful,
and malicious actions. Brown v. Acuity, 2013 WI 60, ¶42, 348 Wis. 2d 603, 833
N.W.2d 96.
Additionally, the traffic code privileges public officers operating
authorized emergency vehicles to violate rules of the road during emergencies.
WIS. STAT. § 346.03. Most pertinent in Legue’s case, emergency vehicle
operators may proceed past a stop sign or signal “after slowing down … for safe
operation,” § 346.03(2)(b), and giving a visual and audible warning signal,
§ 346.03(3). Section 346.03 further provides that the emergency responders’
privilege to violate rules of the road “do[es] not relieve [responders] from the duty
to drive … with due regard under the circumstances for the safety of all persons
nor … protect [responders] from the consequences of … reckless disregard for the
safety of others.” Sec. 346.03(5).
In the case of traffic accidents that happen when an emergency
responder fails to yield at a stop light or sign, these statutes must be interpreted

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together. From recent case law, we know that, generally speaking, the
discretionary decision to violate the rules of the road during an emergency
response is immune from suit. Estate of Cavanaugh v. Andrade, 202 Wis. 2d
290, 315, 550 N.W.2d 103 (1996) (“a municipal officer is immune under [WIS.
STAT.] § 893.80(4) for the performance of discretionary acts”). Hence, in Estate
of Cavanaugh, an officer was immune from liability for his discretionary decision
to engage in a high-speed pursuit, and that immunity extended to his speed of
travel because “[i]nherent in the decision to pursue is the decision to speed.”
Estate of Cavanaugh, 202 Wis. 2d at 316.
At the same time, however, we are informed that the officer’s
manner of operating the vehicle outside the context of the discretionary decision
does not qualify for immunity. Liability applies if an officer causes injury by
failing to operate the vehicle “with due regard under the circumstances for the
safety of all persons” as required by WIS. STAT. § 346.03(5), outside of the
discretionary decision to violate the rules of the road. Estate of Cavanaugh, 202
Wis. 2d at 318. In other words, an officer can be liable for negligent driving
during an emergency response if damages were caused by the officer’s negligent
operation of the vehicle beyond the context of the discretionary decision itself.
Under this rule, there was no liability at all for the officer in Estate
of Cavanaugh, because “there [was] no credible evidence ... that any alleged
negligence ... with respect to physical operation of [the] vehicle was a substantial
factor in causing the accident.” Id. at 322. The only credible evidence to support
a finding of causal negligence was the evidence of the speeding, which was part
and parcel of the discretionary decision to conduct a high-speed chase. Id. at 316.
In contrast, in Brown, an officer was liable for negligence for proceeding against a
traffic signal during an emergency response without activating the lights and

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sirens required by WIS. STAT. § 346.03(3). Brown, 833 N.W.2d 96, ¶54.
Although the decision to proceed against the traffic signal as permitted by
§ 346.03(2)(b) is discretionary, the supreme court explained, failing to have the
required lights and sirens violates a ministerial duty, so no immunity attached.
Brown, 833 N.W.2d 96, ¶54.
Turning to the case at hand, all parties agree that Matsen’s decision
to enter the intersection was discretionary and that liability cannot be premised on
that decision, in and of itself. However, liability depends upon a question left
open by Brown: does immunity apply if an officer’s manner of proceeding
against a traffic signal fulfills the ministerial duties of WIS. STAT. § 346.03(2)(b)
and (3) (that is, the officer slows the vehicle and activates lights and sirens) but
arguably violates the duty to operate the vehicle “with due regard under the
circumstances” as required by § 346.03(5)?
Under one interpretation of the law, promoted by Legue, and
possibly by extension, the plaintiffs’ bar, despite the fact that immunity extended
to the officer’s speeding as in Estate of Cavanaugh, immunity does not extend to
an officer’s manner of entering an intersection against a traffic signal. Instead, an
officer is liable for violating the WIS. STAT. § 346.03(5) duty to operate the
vehicle “with due regard under the circumstances” while proceeding against a
traffic signal as authorized by § 346.03(2)(b) and (3). Given that “due regard” is
the epitome of a question of fact, under this interpretation of the law, as a practical
matter, there would be no governmental immunity for an accident arguably caused
by an emergency responder’s proceeding against a stop sign or signal. Any
question about the responder’s duty of ordinary care would trigger a jury trial. See
Br. and App. of Pl.-Appellant at 28 (asserting that Cavanaugh “stand[s] for the
proposition that in order to fulfill this due regard under the circumstances standard

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you essentially have to look at the ordinary common duties of care attributable to
all operators of motor vehicles”).
Racine, and, we presume, the municipalities and their responder
personnel, favor a different interpretation. In their view, not only is the decision to
enter the intersection immune, but the manner of entering the intersection is part
and parcel of that decision, analogous to the way that immunity for speeding was
inherent to immunity for engaging in a high-speed pursuit in Estate of
Cavanaugh. See, e.g., Br. of Defs.-Resp’ts at 8 (“[Legue’s] argument ignores that
these [due care] factors, except for the lookout, form the basis of [the officer’s]
discretionary decision to enter the intersection.... [and] the balancing of the factors
makes the decision immune.”). This interpretation is akin to the reasoning
articulated in the court of appeals decision in Brown v. Acuity, 2012 WI App 66,
342 Wis. 2d 236, 815 N.W.2d 719. But that case ultimately concerned the
application of the more precisely-prescribed duties of slowing down and engaging
lights and sirens. Thus, though the supreme court reversed the result in Brown, its
analysis was limited to the fact that the vehicle in that case lacked any audible
signal, which, it held, violated a clear ministerial duty imposed by WIS. STAT.
§ 346.03(3) and vitiated immunity. Brown, 833 N.W.2d 96, ¶¶53, 55. The court
explained that “unlike the decisions to initiate and continue a high-speed chase in
Cavanaugh ... WIS. STAT. § 346.03(3) directly govern[ed the officer’s] acts in
proceeding through a red stop signal without an audible signal and satisfies all
elements of a ministerial duty.” Brown, 833 N.W.2d 96, ¶53. Therefore, although
the supreme court’s decision in Brown made clear that the obligation to activate
lights and sirens as required by § 346.03(2)(b) and (3) was ministerial, it had no
opportunity to articulate whether the “due regard” obligation imposed by
§ 346.03(5) could also support liability.

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Legue’s case squarely presents the questions left open by Brown and
Estate of Cavanaugh. When, if ever, does a public officer’s obligation to operate
an emergency vehicle with “due regard under the circumstances” under WIS.
STAT. § 346.03(5) create an exception to the governmental immunity provided by
WIS. STAT. § 893.80? When, if ever, does a public officer’s decision to violate
rules of the road during an emergency trigger potential liability for arguable failure
to operate with “due regard under the circumstances” by making that decision? In
particular, in the situation of a responder deciding whether to proceed against a
stop sign or signal (a situation much more common than a high-speed chase),
assuming that the responder has slowed and engaged the required warning lights
and sirens, may the responder nonetheless be liable for failing to stop? If the
decision to speed is considered part and parcel of the discretionary decision to
engage in a high-speed chase, is the failure to stop before crossing an intersection
during an emergency part and parcel of the decision to proceed against the stop
light or signal?
The ramifications of this decision are huge. If the answer is that
immunity for the manner of entering the intersection is subject to the “due regard”
condition, then immunity is, we submit, just an empty shell if an accident results.
This is because there will always be exposure to a lawsuit in the case of an
accident, the very thing that immunity is designed to prevent, according to the line
of authority that states the policy justifications underlying governmental
immunity:
[Governmental immunity] is based largely upon public
policy considerations that spring from the interest in
protecting the public purse and a preference for political
rather than judicial redress for the actions of public officers.
The policy considerations include:

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( 1) The danger of influencing public officers in the
performance of their functions by the threat of a
lawsuit; (2) the deterrent effect which the threat of
personal liability might have on those who are
considering entering public service; (3) the drain on
valuable time caused by such actions … [and other
considerations].
Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶23, 253 Wis. 2d 323, 646 N.W.2d
314 (citations omitted). At the same time, as our supreme court quoting federal
authority has observed, the policy of granting immunity to governmental officials
necessarily impinges on the ability of innocent injured parties to recover damages:
The provision of immunity rests on the view that the threat
of liability will make [public] officials unduly timid in
carrying out their official duties, and that effective
Government will be promoted if officials are freed of the
costs of vexatious and often frivolous damages suits….
[H]owever … official immunity comes at a great cost. An
injured party with an otherwise meritorious tort claim is
denied compensation simply because he had the misfortune
to be injured by a [public] official.
C.L. v. Olson, 143 Wis. 2d 701, 708-09, 422 N.W.2d 614 (1988) (citations
omitted).
In the face of the important, recurring questions of statutory
interpretation and public policy underlying the issue of governmental immunity in
this case, we respectfully request that our supreme court be the body to decide it in
the first instance.

No. 12AP2499