Showers Appraisals, LLC v. Musson Bros., Inc.

• Court: Wisconsin Supreme Court
• Decided: July 18, 2013
• Docket: 2011AP001158
• Status: Published

Opinion

2013 WI 79

SUPREME COURT OF WISCONSIN CASE NO.: 2011AP1158 COMPLETE TITLE: Showers Appraisals, LLC, Real Marketing, LLC and Mark W. Showers, Plaintiffs-Appellants-Petitioners, v. Musson Bros., Inc. and West Bend Mutual Insurance Company, Defendants-Respondents-Cross- Appellants, League of Wisconsin Municipalities Mutual Insurance and City of Oshkosh, Defendants-Cross-Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 343 Wis. 2d 623, 819 N.W.2d 316 (Ct. App. 2012 – Published) PDC No: 2012 WI App 80

OPINION FILED: July 18, 2013 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 13, 2013

SOURCE OF APPEAL: COURT: Circuit COUNTY: Winnebago JUDGE: Barbara H. Key

JUSTICES: CONCURRED: CROOKS, J., ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion filed.) DISSENTED: NOT PARTICIPATING:

ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs by Daniel J. Posanski and Gerardo Medina Jr. and Dempsey Law Firm LLP, Oshkosh, and oral argument by Daniel J. Posanski.

For defendant-cross-respondents, there was a brief by Bree A. Madison and Richard J. Carlson, and Silton Seifert Carlson S.C., Appleton, with oral argument by Bree A. Madison. For the defendants-respondents-cross-appellants, there was a brief by David G. Dudas and Joseph P. Putzstuck, and McCanna, Dudas & Kewley, S.C., Appleton, with oral argument by David G. Dudas.

An amicus curiae brief was filed by Martha H. Heidt and Bye, Goff & Rohde, Ltd., River Falls, on behalf of the Wisconsin Association of Justice.

2 2013 WI 79 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP1158 (L.C. No. 2009CV1438)

STATE OF WISCONSIN : IN SUPREME COURT

Showers Appraisals, LLC, Real Marketing, LLC and Mark W. Showers,

Plaintiffs-Appellants-Petitioners,

v. FILED Musson Bros., Inc. and West Bend Mutual Insurance Company, JUL 18, 2013 Defendants-Respondents-Cross- Diane M. Fremgen Appellants, Clerk of Supreme Court

League of Wisconsin Municipalities Mutual Insurance and City of Oshkosh,

Defendants-Cross-Respondents.

REVIEW of a decision of the Court of Appeals. Reversed and

remanded.

¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a

published decision of the court of appeals1 that affirmed the

Winnebago County Circuit Court's2 grant of summary judgment in 1 Showers Appraisals, LLC v. Musson Bros., Inc., 2012 WI App 80, 343 Wis. 2d 623, 819 N.W.2d 316. 2 The Honorable Barbara H. Key presided. No. 2011AP1158

favor of Musson Bros., Inc. (Musson). This case arises from

flood damage to Mark Showers' property in the City of Oshkosh,

where Musson was conducting sewer removal and installation as a

contractor for the Wisconsin Department of Transportation (DOT).

In granting and affirming summary judgment, the circuit court

and court of appeals concluded that Musson was a governmental

contractor entitled to immunity under Wis. Stat. § 893.80(4)

(2011–12),3 based on the court of appeals' decision in Estate of

Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658

(Ct. App. 1996).

¶2 We conclude that where a third party's claim against a

governmental contractor4 is based on the allegation that the

contractor negligently performed its work under a contract with

a governmental entity, the governmental contractor must prove

both that the contractor meets the definition of "agent" under

Wis. Stat. § 893.80(4), as set forth in Lyons, and that the

contractor's act is one for which immunity is available under

§ 893.80(4). Specifically, we conclude that for a contractor to

come within § 893.80(4)'s shield of immunity, the contractor

3 All subsequent references to the Wisconsin Statutes are to the 2011–12 version unless otherwise indicated. 4 The court of appeals in Estate of Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996), used the term "governmental contractor" to refer to those independent private contractors that it concluded may be entitled to immunity under Wis. Stat. § 893.80(4), based on the nature of their contractual relationships with governmental entities. We continue this usage, but emphasize that the contractors involved are private entities whose affiliation with the government is through a contractual relationship for a particular project.

2 No. 2011AP1158

must prove it was acting as the governmental entity's agent in

accordance with reasonably precise specifications, as set forth

in Lyons. In this case, Musson has not shown that it was acting

as a governmental entity's agent for purposes of the alleged

injury-causing conduct because Musson was not acting pursuant to

"reasonably precise specifications."

¶3 Moreover, pursuant to the plain language of Wis. Stat.

§ 893.80(4), we also conclude that a governmental contractor

seeking to assert the defense of immunity should clearly allege

in the pleadings why the injury-causing conduct comes within a

legislative, quasi-legislative, judicial or quasi-judicial

function as set out in § 893.80(4). In the context of this

case, a governmental contractor would be required to assert that

it was implementing a decision of a governmental entity that was

made within the scope of the governmental entity's legislative,

quasi-legislative, judicial or quasi-judicial functions.5

Adherence to these statutory requirements for immunity under

§ 893.80(4) will avoid extending blanket immunity for claims of

negligently performed work against governmental contractors when the sole basis for immunity is that the work was performed

5 In other cases we have used the term "discretionary" to refer to those acts that are within Wis. Stat. § 893.80(4)'s "legislative, quasi-legislative, judicial or quasi-judicial functions." See, e.g., Lifer v. Raymond, 80 Wis. 2d 503, 511– 12, 259 N.W.2d 537 (1977) (citing § 893.80(4)'s predecessor, Wis. Stat. § 895.43(3)). Our use of the statutory terms in this case, rather than the designation "discretionary," is not intended as a change to the immunity analysis, but rather as a recognition that the applicable standard is based on precise statutory language. See infra, ¶35.

3 No. 2011AP1158

pursuant to a contract with a governmental entity. Allowing

governmental contractors to claim immunity in such instances

would vastly expand the doctrine of governmental immunity.

¶4 Therefore, based on Musson failing to meet the

standard for a Wis. Stat. § 893.80(4) agent, Musson is not

entitled to immunity under § 893.80(4). Additionally, we

conclude that the facts set out in support of summary judgment

would not support a claim of governmental contractor immunity

because Musson has failed to assert that the acts for which it

claims immunity were "acts done in the exercise of legislative,

quasi-legislative, judicial or quasi-judicial functions," as

required under § 893.80(4). Accordingly, Showers' claims should

be analyzed no differently than negligence claims against other

contractors.

¶5 Musson may therefore be liable if Showers is able to

show that in performing its work under the government contract,

Musson had a duty of due care to Showers, that Musson breached

that duty, and that such breach was a cause of Showers' damages.

Accordingly, we reverse and remand to the circuit court for further proceedings on Showers' claims against Musson consistent

with this opinion. Additionally, because Musson's and the City's cross-claims were not fully litigated in the circuit

court and were not addressed by the court of appeals, those claims should be addressed on remand.

I. BACKGROUND

¶6 In September 2007, the DOT and the City of Oshkosh

entered into a state–municipal agreement for a sewer improvement 4 No. 2011AP1158

project along a stretch of Ohio Street in Oshkosh, which is also

State Highway 44. Under the agreement, the State (through the

DOT) would provide substantial financing for the project,

although the City was responsible for funding and construction

of sanitary sewers and water mains, as well as the sealing of

concrete joints. The DOT would remain involved in the project,

including overseeing the bidding process and being onsite during

construction.

¶7 The DOT opened the Ohio Street project for bidding,

informing potential bidders that, as contractors, they would be

"responsible for any damages to property or injury to persons

occurring through their own negligence or that of their

employees or agents, incident to the performance of work under

this contract, pursuant to the Standard Specifications for Road

and Bridge Construction applicable to this contract." The

specifications applicable to the project were the State of

Wisconsin Standard Specifications for Highway and Structure

Construction. These Standard Specifications consist of hundreds

of pages of directions and specifications regarding how governmental contractors are to perform certain aspects of

contracted projects. ¶8 After completion of the bidding process, the DOT

awarded the contract to Musson, and the two entered into the Contract for Highway Work, which provided that DOT would pay

Musson $4,393,833.15 for its work. Musson began work on the

Ohio Street project in spring 2008.

5 No. 2011AP1158

¶9 Prior to the commencement of the Ohio Street project,

Mark Showers had contracted for the construction of a new

building on the property he owned on the corner of Ohio Street

and Sixth Avenue in Oshkosh. As part of that construction,

Showers was required by city code to connect his downspouts,

sump pump, and parking lot drainage to the municipal storm

sewer. The construction of Showers' building was completed on

or about November 30, 2007, and Real Marketing, LLC and Showers

Appraisals, LLC,6 began conducting their business at that

location.

¶10 When the Ohio Street sewer project commenced in spring

2008, the City, the DOT, and Musson discussed certain aspects of

how the project would proceed, one of which was whether the

roadway was to be removed all at once, or whether it should be

removed and repaired on a block-by-block basis. The parties

purportedly agreed that the block-by-block approach would be

best; however, there is no formal documentation of the parties'

alleged agreement on this aspect of the project, and indeed,

Musson has at times disputed whether there was such an agreement.

¶11 Whatever the parties did or did not agree to, Musson removed the entire roadway along Ohio Street, from the storm

sewer's outlet at the Fox River to the end of the project,

6 Mark Showers is the majority owner of Showers Appraisals, LLC, and Real Marketing, LLC. These entities collectively will be referred to throughout the opinion as "Showers" unless otherwise indicated.

6 No. 2011AP1158

around Ninth Street; disconnected the storm sewers in that

reach; and placed a bladder at the discharge at the Fox River so

that water would not flow from the river into the non-

operational sewer system. Musson's decision to proceed in this

manner caused some disputes between City officials and Musson,

based on the City's concern that by removing the entire storm

sewer, Musson would compromise the City's ability to manage

storm water.

¶12 The DOT concluded that Musson's decision to remove the

storm sewer along the project's reach, rather than on a block-

by-block basis, was allowed under a provision in the Standard

Specifications, referred to as the "means and methods"

provision.7 That provision states, in pertinent part, that the

contractor "is solely responsible for the means, methods,

techniques, sequences, and procedures of construction. The

contractor is not responsible for the negligence of others in

the design or specification of specific means, methods,

techniques, sequences, or procedures of construction described

in and expressly required by the contract." ¶13 On June 8, 2008, rain storms inundated the Ohio Street

project site, dropping approximately 4.25 inches of rain in the area of the project site. The storm left water standing in the

exposed roadbed outside Showers' property, and a manager with

7 When Musson sought approval to remove the pavement and leave the roadbed exposed, Ryan Schanhofer of DOT informed Musson that there was nothing in the contract explicitly prohibiting that approach.

7 No. 2011AP1158

Musson reported that Musson's pumps were unable to maintain

drainage for the amount of rain that had fallen. After viewing

the project site outside his property, Showers noted multiple

conditions that potentially impeded drainage (as well as other

conditions that he alleged were contrary to the Standard

Specifications), including mounds of soil in the roadbed and

drainage inlets clogged with soil and debris. When Showers

spoke with employees from the City and Musson regarding the

standing water and the potential for damage from another large

storm that was predicted, Showers was told that there was

nothing that either entity could do to remedy the situation.

¶14 Following the substantial rain event of June 8, the

City and Musson began to prepare a contingency pumping plan for

the next rain storm that was forecast for June 12. On the

evening of June 11, a Musson employee allegedly was placing

pumps according to the plan; however, Showers and other

neighbors in the area averred that the pumps either were not

present or were not operating during the June 12 storm event.

Marc Miller, a water maintenance officer with the City, could not confirm the exact number of pumps that he recalled seeing at

the Ohio Street project site, nor could he confirm how many pumps were running at the relevant times.8

¶15 By 5:30 p.m. on June 12, water was overflowing from the storm sewers in Showers' parking lot, and the Ohio Street

8 Schanhofer also stated that by the morning of June 13, there were no pumps present at or near Showers' property at the intersection of Ohio Street and Sixth Avenue.

8 No. 2011AP1158

roadbed was entirely flooded. Additionally, water had begun to

overflow from another drainage basin into the stretch of Ohio

Street near Showers' property. The June 12 storm was estimated

to have dropped approximately 4.36 inches of rain on the area

within 5.5 hours during the evening, in addition to near-

continuous, but less intense rain throughout the entire day.

¶16 Following the June 12 rains, the basement at Showers'

property flooded with more than seven feet of water. Showers

retained an engineer who concluded that approximately 117,500

gallons of water had been trapped in the roadbed outside

Showers' property for 15 to 18 hours, and that the hydrostatic

pressure caused by that water eventually caused Showers'

basement floor to rupture, thereby allowing the water to seep up

into the basement. Showers' sump pump ran continuously

following the storm, but because the pump was connected with the

storm sewers, the discharge of the sump pump merely recycled

water out into the roadbed, which then seeped back into Showers'

basement. Neither the City nor Musson had informed Showers that

the storm sewers had been disconnected. Because of the flooding, Showers incurred at least $140,000 in damages to his

business and personal property, and was forced to relocate his businesses for four months while the Ohio Street property could

be cleaned, repaired, and restored.9

9 Notwithstanding these damages, experts averred that Musson complied with the Standard Specifications regarding maintenance of drainage during all phases of the Ohio Street construction project.

9 No. 2011AP1158

¶17 Showers commenced the present action by serving Musson

and the City with a summons and complaint on July 23, 2009.10 In

pertinent part, Showers alleged that "improper drainage, design,

maintenance, excavation, construction procedures, and failure to

take corrective measures" caused flooding in Showers' basement

following the June 8 and 12 storms. Accordingly, Showers sought

relief from the City and Musson on the grounds that those

entities were "jointly and severally liable to [Showers] for

negligent acts or omissions which caused [Showers'] building to

flood, resulting in damage to the building and personal

property, including losses for repairs, replacements, clean up,

diminished value, and loss of use and related damages and

losses."

¶18 The City and Musson moved for summary judgment, each

arguing that it was entitled to immunity for its acts relating

to the Ohio Street sewer project; additionally, the City and

Musson brought cross-claims against one another for

indemnification. After considering affidavits and arguments by

the parties, the circuit court granted summary judgment for the City and Musson on the basis that both entities were entitled to

governmental immunity under Wis. Stat. § 893.80(4). Showers appealed the grant of summary judgment as to Musson, but not the

grant of summary judgment dismissing his claims against the City. Therefore, Showers' claims against the City are no longer

10 Prior to commencing this action, on October 3, 2008, Showers served the City with a notice of claim as required under Wis. Stat. § 893.80(1) (2007–08).

10 No. 2011AP1158

a part of this case. However, Musson did cross-appeal the

dismissal of its indemnification claim against the City.

¶19 The court of appeals affirmed the grant of summary

judgment for Musson. Showers Appraisals, LLC v. Musson Bros.,

Inc., 2012 WI App 80, ¶1, 343 Wis. 2d 623, 819 N.W.2d 316. The

court concluded that under the test set forth in Lyons, Musson

was entitled to governmental contractor immunity as a statutory

"agent" under Wis. Stat. § 893.80(4). Id. Additionally,

because the court concluded that Musson was entitled to

immunity, it did not address Musson's or the City's cross-

appeals. Id.

¶20 Showers filed a petition for review, which we

granted.11

II. DISCUSSION

A. Standard of Review

¶21 The circuit court granted summary judgment for the

City and Musson on the basis of governmental immunity and

governmental contractor immunity under Wis. Stat. § 893.80(4).

The interpretation of a statute is a question of law that we

review independently of the circuit court and the court of

appeals, although we benefit from those courts' analyses.

11 Following summary judgment, the City has appeared in this action in response to Musson's cross-appeal against the City for indemnification. The City appeared in the court of appeals, was included as a party in Showers' petition for review, and has submitted briefs and argument before this court in favor of its position that both the City and Musson are entitled to immunity in this case.

11 No. 2011AP1158

Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d

541, 749 N.W.2d 581. In addition, determining whether

governmental immunity exists for particular conduct requires the

application of legal standards to the facts found, which is also

a question of law for our independent review. Estate of Brown

v. Mathy Constr. Co., 2008 WI App 114, ¶6, 313 Wis. 2d 497, 756

N.W.2d 417. Also, when we review a grant of summary judgment,

we will affirm it if no genuine issue of material facts exists

and "the moving party is entitled to judgment as a matter of

law." Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342 Wis. 2d 311, 818 N.W.2d 819.

B. Governmental Contractor Immunity

¶22 The City and Musson assert that, under Wis. Stat.

§ 893.80(4),12 Musson is entitled to immunity from liability for

Showers' claims. In order to address that claim, we must

interpret § 893.80(4). We therefore begin with the language of

12 The statutory immunity afforded under Wis. Stat. § 893.80(4) has been referred to as "municipal" or "governmental" immunity, and is distinct from the sovereign immunity that the Wisconsin Constitution grants the State. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 28 n.11, 559 N.W.2d 563 (1997). Nonetheless, we have acknowledged that there is overlap in the principles governing whether a governmental entity or officer is entitled to immunity. See C.L. v. Olson, 143 Wis. 2d 701, 716 n.9, 422 N.W.2d 614 (1988). Therefore, although the immunity that Musson claims in this case could be the sovereign immunity conferred upon the DOT as a state agency (because of Musson's contract with the DOT), principles of governmental contractor immunity under § 893.80(4) have been raised as being applicable here. Neither the State nor the DOT was sued, so the right of a sovereign to consent to suit was never at issue. See Holytz v. City of Milwaukee, 17 Wis. 2d 26, 41, 115 N.W.2d 618 (1962).

12 No. 2011AP1158

that statute. Section 893.80(4) provides, in pertinent part,

that "[n]o suit may be brought against any [governmental entity]

. . . or against its officers, officials, agents or employees

for acts done in the exercise of legislative, quasi-legislative,

judicial or quasi-judicial functions."

¶23 Our task when interpreting a statute is to discern the

statute's meaning, which we presume is expressed in the language

chosen by the legislature. Richards, 309 Wis. 2d 541, ¶20. If

the meaning of the language is plain, we apply that meaning.

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "Statutory language is

given its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical or special definitional meaning." Id. Our analysis

of statutory language also may be aided by considering prior

decisions examining the relevant statutory provisions. See

DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15, 302 Wis. 2d 564,

734 N.W.2d 394.

¶24 Wisconsin Stat. § 893.80(4) was enacted in response to

our decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39,

115 N.W.2d 618 (1962). See Coffey v. City of Milwaukee, 74

Wis. 2d 526, 532, 247 N.W.2d 132 (1976) (recognizing that what

is now § 893.80(4) is the codification of Holytz). In Holytz,

17 Wis. 2d at 39, we abrogated the common law rule of

governmental immunity for governmental entities, and stated that

"henceforward, so far as governmental responsibility for torts

13 No. 2011AP1158

is concerned, the rule is liability [and] the exception is

immunity."

¶25 Holytz excepted from that abrogation the acts of a

governmental entity exercising its legislative, quasi-

legislative, judicial or quasi-judicial functions. See id. at

40. That language carving out an exception to governmental

liability now appears in Wis. Stat. § 893.80(4), with the

addition of immunity for governmental officers, agents and

employees, thereby including those individuals for whose acts

the governmental entity would be liable under the doctrine of

respondeat superior. See id.; see also Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 729-30, 530 N.W.2d 399 (Ct. App. 1995)

(limiting the type of agents for which § 893.80 may provide

immunity).

¶26 When analyzing and applying Wis. Stat. § 893.80(4), we

often have used the term "discretionary" as a shorthand to refer

to decisions of a governmental entity that are legislative,

quasi-legislative, judicial or quasi-judicial. See, e.g., Willow

Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235

Wis. 2d 409, 611 N.W.2d 693; C.L. v. Olson, 143 Wis. 2d 701, 710

n.5, 422 N.W.2d 614 (1988); Lifer v. Raymond, 80 Wis. 2d 503,

511–12, 259 N.W.2d 537 (1977); see also Lyons, 207 Wis. 2d at

453–54. 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. See Lyons, 207 Wis. 2d at 453. Quasi-judicial

functions generally refer to those acts that involve the 14 No. 2011AP1158

exercise of discretion in coming to a judgment; the availability

of a public hearing on the judgment before a specialized board;

and the imposition by a board of an appropriate final decision.

See Coffey, 74 Wis. 2d at 534-35.

¶27 In the present case, the parties' arguments center on

the application of Wis. Stat. § 893.80(4) in regard to a

governmental contractor who claims immunity derived from the

governmental entity with which the contractor has a contractual

relationship.13 The court of appeals addressed a similar

situation in Lyons. There, the court examined whether a governmental contractor was entitled to immunity under

§ 893.80(4) when the contractor implemented a bridge design that

had been selected by the contracting governmental entity.

Because 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. Id.

at 502. The helicopter was alleged to have a design defect in

the co-pilot's escape system, which prevented the opening of the

13 Musson does not specify whether the immunity it seeks is legislative, quasi-legislative, judicial or quasi-judicial in nature. We need not make that determination because we conclude that Showers' allegation that Musson negligently performed its construction responsibilities does not implicate any of the governmental entity functions excepted from liability pursuant to Wis. Stat. § 893.80(4).

15 No. 2011AP1158

escape hatch when the helicopter was submerged. Id. at 503.

The alleged design defect resulted in the death of a pilot who

survived a crash into water, but drowned because he could not

escape from the helicopter. Id. at 502.

¶29 In analyzing whether the contractor's governmental-

contractor defense had merit, the Supreme Court focused on

whether the government contract required the contractor to

"deliver helicopters with the sort of escape-hatch mechanism

shown by the specifications" of the helicopter that the Marine

Corps had chosen. Id. at 509. The Supreme Court reasoned that "the selection of the appropriate design for military equipment

to be used by our Armed Forces is assuredly a discretionary

function." Id. at 511. The Court then concluded by setting out

a three-part test to determine whether the relationship between

the governmental contractor and the governmental entity was such

that the contractor should be immune from liability for design

defects in military equipment chosen by the Armed Forces: "(1)

the United States approved reasonably precise specifications;

(2) the equipment conformed to those specifications; and (3) the

supplier warned the United States about the dangers in the use

of the equipment that were known to the supplier but not to the

United States." Id. at 512.

¶30 In explaining its test, the Supreme Court said, "[t]he

first two of these conditions assure that the suit is within the

area where the policy of the 'discretionary function' would be

frustrated——i.e., they assure that the design feature in

question was considered by a Government officer, and not merely 16 No. 2011AP1158

by the contractor itself." Id. (emphasis added). In so

explaining, the Supreme Court made clear that a discretionary

act of a governmental officer is a necessary component to

potential immunity for the governmental contractor.

Accordingly, a governmental contractor's own "discretionary

actions" would not have sufficed to afford the contractor

immunity for its actions in Boyle.

¶31 In Lyons, the court of appeals also focused on a

design defect that allegedly was a cause of an accident. Lyons,

207 Wis. 2d at 449. It is important to note that, as was the

case in Boyle, it was the governmental entity in Lyons that made

the choice of design that allegedly was a cause of the accident.

Id. This design choice was made in the exercise of a

legislative or quasi-legislative function of the governmental

entity. Id. at 453. Because the governmental contractor

performed its contractual tasks under reasonably precise

specifications pursuant to the governmental entity's quasi-

legislative design decision, the contractor functioned as a Wis.

Stat. § 893.80(4) agent of the governmental entity when carrying

out the entity's design decision. See id. at 457–58, 461.

Therefore, the governmental contractor was entitled to the same

level of immunity as would be accorded to the governmental

entity had it been sued directly for its design choice. Id. at

454 (explaining the court's reliance on the rationale of Boyle

where the governmental contractor defense precluded suit "if the

challenged design choice was made by military officials").

17 No. 2011AP1158

¶32 Lyons adopted Boyle's three-part test. Id. at 457-58.

The court of appeals explained that a governmental contractor

that follows governmental specifications is an "agent" within

the meaning of Wis. Stat. § 893.80(4) when the contractor meets

the three-part test of Boyle. Id. "This three-part test will

ensure that state and municipal government, and the public at

large, is able to make the best use of professional design

assistance, but that professional contractors are not unfairly

burdened by lawsuits when they follow governmental directives."

Id. at 458. ¶33 Subsequent court of appeals decisions have affirmed

the Lyons court's rationale regarding contractor immunity,

stating, for example, that "[i]n Lyons, we expressly held that

an independent contractor meeting the three-part test was an

agent within the meaning of § 893.80(4)." Jankee v. Clark

Cnty., 222 Wis. 2d 151, 165, 585 N.W.2d 913 (Ct. App. 1998),

rev'd on other grounds, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d

297. The language of some of these cases may be read to suggest

that the relevant question is merely whether a contractor

satisfies the three-part test and is therefore an "agent"

entitled to immunity. See id.; see also Woychik v. Ruzic

Constr. Co., 2001 WI App 280, ¶8, 248 Wis. 2d 983, 638 N.W.2d

18 No. 2011AP1158

394 (unpublished decision).14 Indeed, the court of appeals'

decision in the case at hand suggests that satisfaction of the

elements of the Lyons test will be sufficient to immunize

governmental contractors' conduct. See Showers Appraisals, 343

Wis. 2d 623, ¶22; see also Bronfeld v. Pember Cos., 2010 WI App

150, ¶12, 330 Wis. 2d 123, 792 N.W.2d 222.

¶34 However, analyzing whether the conduct of a

governmental contractor was undertaken as a statutory "agent"

within the scope of the immunity accorded by Wis. Stat.

§ 893.80(4) solely by reference to the three-part Lyons test may lead a court to err. Rather, an equally dispositive question in

the § 893.80(4) immunity analysis is whether the relevant

decision of the governmental entity that the governmental

contractor implements is, itself, entitled to immunity under

§ 893.80(4) because it was made through the exercise of a

function of the governmental entity. Stated otherwise, only

certain types of acts fall within the immunity shield of

§ 893.80(4). It was on such a foundation that both the Lyons

and Boyle decisions stand because the governmental decision in

14 Wisconsin Stat. § 809.23(3) does not prohibit this court's discussion of unpublished decisions when such discussion relies on the opinion solely to demonstrate that courts have used particular language from other cases, and does not rely on the decision for authoritative or persuasive value. See State v. Higginbotham, 162 Wis. 2d 978, 996–97, 471 N.W.2d 24 (1991). Moreover, because such use of unpublished decisions has such longstanding acceptance, see id., we need not decide now whether § 809.23(3) imposes any other limitations on this court's use of unpublished decisions in its opinions.

19 No. 2011AP1158

each case, i.e., the choice of design, was made by a

governmental entity in the exercise of its legislative or quasi-

legislative function.

¶35 Immunity 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" as set out in Wis. Stat. § 893.80(4). Any statutory

immunity to which an agent of the governmental entity may be

entitled is dependent upon the immunity of the governmental act

or decision that the agent was implementing when it caused an

injury. This immunity inquiry under § 893.80(4)——examining

whether a governmental entity's conduct was an exercise of a

function"——gives effect to the legislature's prerogative

regarding the circumstances in which immunity may be available

under § 893.80(4). Although 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. This

approach comports with fundamental principles of statutory

interpretation, under which the plain language of a statute is

20 No. 2011AP1158

presumed to most directly convey what the legislature means.

See 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). As discussed below,

Musson has failed to show that it is an agent in accordance with

Lyons. Nonetheless, because the plain language of § 893.80(4) demonstrates that the immunity analysis requires an element in

addition to what is required by Lyons' agency test (namely,

allegations that the injury-causing act was legislative, quasi-

legislative, judicial or quasi-judicial in character), we set

forth the applicable standard so that litigants and courts may

engage in a complete analysis of whether immunity may be

available in future cases.

¶37 The first and second requirements of the Lyons test,

i.e., whether the governmental entity approved reasonably

precise specifications that the governmental contractor adhered

to when engaging in the conduct that caused the injury, limit

when a governmental contractor is a statutory agent under Wis.

21 No. 2011AP1158

Stat. § 893.80(4).15 Stated otherwise, the governmental entity

must have had the right to control the tasks performed by the

contractor with "reasonably precise specifications" and the

contractor must have followed those specifications. When these

facts are proved, the contractor is a § 893.80(4) agent of the

governmental entity. See, e.g., Kettner, 191 Wis. 2d at 733–37

(explaining that not all conduct of agents comes within the

scope of § 893.80; rather, only that conduct that may be imputed

to a governmental entity as the act of the entity's servant

comes within § 893.80).16

¶38 The principles of immunity for particular types of

agents under Wis. Stat. § 893.80, as discussed in Kettner, should be read in harmony with the Lyons test and with the

principles of governmental immunity enunciated in § 893.80(4).

For example, the allegation in Lyons that the bridge was

improperly designed by the governmental contractor, who

undertook the design at the direction of the governmental

entity, was the act of a § 893.80(4)–type agent because the

15 We note that the third criterion for statutory agency set out in Lyons, that the contractor warned the governmental entity about dangers known to the contractor but unknown to the governmental entity, does not bear on whether statutory agency is present. Rather, it is grounded in a concern that the immunity accorded does not cut off information highly relevant to governmental decisions. Boyle v. United Techs. Corp., 487 U.S. 500, 512-13 (1988). 16 The primary consideration in determining whether an act was undertaken by one who acts in the capacity of a servant is whether the principal had the right to control the conduct of the agent. Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 198-99, 423 N.W.2d 848 (1988).

22 No. 2011AP1158

governmental entity controlled the design choice and design

choices are legislative or quasi-legislative functions. See

Lyons, 207 Wis. 2d at 452–58; see also Chart v. Dvorak, 57

Wis. 2d 92, 100–01, 203 N.W.2d 673 (1973) (recognizing that the

decision to undertake a project, or how to design the project,

may be immunized as the exercise of a legislative or quasi-

legislative function).

¶39 However, if the allegation in Lyons were not that the

design was a cause of the accident, and were instead that the

contractor did not construct the bridge in a workman-like manner

and thereby caused injury, such an allegation would not

implicate a legislative, quasi-legislative, judicial or quasi-

judicial function under Wis. Stat. § 893.80(4). Accordingly, an

allegation of negligent workmanship would not have the potential

for immunity under § 893.80(4) for that specific injury-causing

conduct, and no Lyons inquiry (to determine whether the

contractor was a § 893.80(4)-type agent) would be necessary.

This conclusion is based on the scope of immunity contemplated

by this court in Holytz, and by the legislature's codification

of Holytz in what is now § 893.80(4).

¶40 Some cases applying Kettner's agency principles in the

context of immunity inquiries could be read to suggest that

"agent" may be interpreted broadly to afford immunity to all

governmental contractors' conduct. However, in light of Wis.

Stat. § 893.80(4)'s explicit language limiting the scope of

governmental immunity, immunity will be extended to governmental

contractors only where the contractor acted as a "servant" for 23 No. 2011AP1158

the purposes of the challenged conduct. See Kettner, 191

Wis. 2d at 734–36. Indeed, as we explained above, this

definition of "agent" is manifest in the Lyons test, which

requires that a governmental contractor adhere to "reasonably

precise specifications." Cf. Arsand v. City of Franklin, 83

Wis. 2d 40, 45–46, 264 N.W.2d 579 (1978) (defining servant as

"one employed to perform service for another in his affairs and

who, with respect to his physical conduct in the performance of

the service, is subject to the other's control or right to

control").

¶41 Other cases following Lyons also illustrate that care in analysis is needed when a claim of governmental contractor

immunity is made. For example, in Bronfeld, the court of

appeals addressed an allegation that a subcontractor negligently

erected barricades and failed to maintain the construction site

so as to protect public safety. The plaintiff claimed that the

contractor was therefore liable for the plaintiff's injuries,

which occurred when she tripped over a barricade that the

contractor had placed at the site. See Bronfeld, 330 Wis. 2d

123, ¶¶10, 12.

¶42 In Bronfeld, the government's general contractor had

provided a detailed traffic control plan that the City of River

Falls approved, and the subcontractor followed that plan. Id.,

¶6. The court of appeals began by noting that placement of

barricades is a discretionary duty, and therefore, if the City

had placed the barricades itself, it would have been immune from

suit pursuant to Wis. Stat. § 893.80(4). Id., ¶19. This 24 No. 2011AP1158

cursory determination of whether the governmental entity would

have been entitled to immunity under the language of § 893.80(4)

highlights the need for a more thorough immunity analysis for

claims of governmental immunity.

¶43 After making this primary determination, the court in

Bronfeld applied the Lyons test to determine whether the

contractor was an agent. The court concluded that the test was

satisfied, and that the contractor was entitled to immunity,

because (1) the City had provided reasonably precise

specifications regarding traffic control and barricade placement

by requiring and approving the traffic control plan the general

contractor submitted; (2) the subcontractor complied with the

those specifications; and (3) the subcontractor had not been

aware of any dangers posed by the reasonably precise

specifications. See id., ¶¶24–33. ¶44 Bronfeld's cursory analysis of governmental contractor

immunity under Wis. Stat. § 893.80(4) may be attributable to

Brown, where the language used to apply Lyons' reasoning could

be construed to afford immunity to governmental contractors'

actions where the alleged injury did not arise from the

contractor's implementing a governmental entity's decision that

was made pursuant to a "legislative, quasi-legislative, [etc.]

function," such as the adoption of a design or plan. In Brown,

the court seemed to emphasize the importance of whether there

existed "reasonably precise specifications," without

acknowledging that, for such specifications to afford immunity

to a governmental contractor, the contractor's alleged injury- 25 No. 2011AP1158

causing actions must have been due to its implementation of a

governmental entity's exercise of one of the functions for which

immunity is accorded under § 893.80(4). See Brown, 313 Wis. 2d

497, ¶11 (stating that "[t]he question is not what other safety

precautions might have been taken, but whether the safety

requirements provided by DOT were reasonably precise

specifications," without analysis of whether the allegedly

injurious conduct had been undertaken pursuant to a legislative

or quasi-legislative function of the governmental entity).

¶45 In sum, in addition to satisfying the Lyons test for governmental contractor immunity, a contractor asserting

immunity must be able to demonstrate that the conduct for which

immunity is sought was the implementing of a governmental

entity's decision made during the exercise of the entity's

functions. To apply Lyons without analyzing the applicability

of immunity under Wis. Stat. § 893.80(4) to the particular act

for which liability is alleged could grant a governmental

contractor broader immunity than the governmental entity itself

would be entitled to under the statute. Accordingly, in the

future, when a governmental contractor asserts that it is

entitled to immunity under § 893.80(4), we encourage litigants

and courts to adhere to the statutory standard to determine

whether the alleged immunity-supporting functions are

legislative, quasi-legislative, judicial or quasi-judicial.

¶46 Our conclusion regarding the intersection of the

agency principles embodied in the Lyons test and the type of 26 No. 2011AP1158

acts for which governmental immunity may be afforded under Wis.

Stat. § 893.80(4) is well-supported nationwide. For 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. App.

Ct. 1985); Rodriguez v. New Jersey Sports & Exposition Auth.,

472 A.2d 146, 149 (N.J. App. Div. 1983) ("A public contractor

may . . . be held liable when negligent in the execution of the

contract."). Furthermore, a legal encyclopedia notes that "the

courts are practically unanimous" in support of the proposition

that a governmental contractor is not entitled to governmental

immunity for injuries arising from negligent performance of the

contract work. A.E. Korpela, Annotation, Right of contractor

with federal, state, or local public body to latter's immunity

from tort liability, 9 A.L.R. 3d 382 §§ 2(a), 5 (1966); see also

64 Am. Jur. 2d, Public Works and Contracts § 109 (2013 update)

(discussing contractors' negligence in performing work; neglect

or failure to comply with contract). This understanding of the

doctrine of governmental contractor immunity has been echoed by

legal commentators. See, e.g., Richard Ausness, Surrogate

Immunity: The Government Contract Defense and Products

Liability, 47 Ohio St. L.J. 985, 995 (1986).

27 No. 2011AP1158

C. Application

¶47 With the above principles in mind, we turn to the

present case. Although the parties have framed their arguments

solely in terms of the Lyons test, we analyze Musson's claim for

immunity under both requirements of Wis. Stat. § 893.80(4).

This includes whether Musson is an agent under § 893.80(4), as

determined by the Lyons test, as well as whether the conduct

that is alleged to be a cause of injury is entitled to immunity

under § 893.80(4) as the implementation of a legislative, quasi-

legislative, etc. decision. We conclude first that, under the

Lyons tests, Musson has failed to demonstrate that it is an agent entitled to governmental contractor immunity.

Furthermore, as guidance to future litigants, we examine why

Musson's allegations in support of summary judgment fail to

demonstrate that Musson was entitled to immunity as an agent

implementing a legislative, quasi-legislative, judicial or

quasi-judicial function of a governmental entity.

¶48 Under the Lyons test as applied to Wis. Stat.

§ 893.80(4), Musson was not an agent for which immunity was

available. The relevant contractual language (the Standard

Specifications) demonstrates that Musson was not subject to

"reasonably precise specifications" as is necessary to invoke

28 No. 2011AP1158

contractor immunity as an agent of a governmental entity.17 The

primary provision upon which the parties focus their arguments

and upon which we rely in concluding that the Lyons test is not

satisfied is the "means and methods" provision in the Standard

Specifications.18 The conduct for which Musson was responsible

under the means and methods provision are, by definition,

distinguishable from conduct for which immunity may be available

for agents under § 893.80(4), as set forth in Lyons.

17 As our discussion below should make clear, our reference to the Specifications as support for our conclusion that immunity is not available should not be read to suggest that the terms of a government contract may create immunity where none would otherwise exist by virtue of the legislative, quasi- legislative, judicial or quasi-judicial nature of the activities at issue. Our reference to the Standard Specifications merely demonstrates that the parties apparently contemplated that Musson's performance of its construction responsibilities would not entitle Musson to the immunity that may be afforded to agents under Wis. Stat. § 893.80(4). 18 Other sections in the Standard Specifications also support the contention that the parties contemplated that Musson was not subject to reasonably precise specifications under Lyons and could be held liable for any negligence in the performance of the construction. For example:

- § 107.1(2), requiring the contractor to "[p]rovide all necessary safeguards, safety devices, and protective equipment. Take all other actions that are reasonably necessary to protect the life and health of employees on the project and the safety of the public."

- § 107.11.1(3), requiring the contractor to "[a]ssume liability for all damage to public or private property resulting from contractor operations, defective work or materials, or non-execution of the contract."

29 No. 2011AP1158

¶49 The means and methods provision states, in relevant

part, that Musson "is solely responsible for the means, methods,

techniques, sequences, and procedures of construction."

(Emphasis added.) In this context, being "responsible" for the

"means, methods, [etc.]" involves both powers and duties. That

is, Musson was not only empowered to take actions involving how

the construction process was to proceed, Musson also had the

responsibility for the actions it took, including incurring

liability if its actions caused injury. See Black's Law Dictionary 1427 (9th ed. 2009) (defining "responsibility" as

"liability"); see id. (noting that "responsible . . . simply

means liable to be made to account or pay") (quoting H.L.A.

Hart, "Changing Conceptions of Responsibility," in Punishment

and Responsibility 186, 196–97 (1968)).

¶50 Many of Musson's day-to-day actions at the Ohio Street

project site are chronicled in the daily logs of onsite activity

kept by one of the DOT's engineers, Ryan Schanhofer. These logs

note numerous instances of Musson taking actions without DOT or

City approval, pursuant to Musson's independent responsibility

under the means and methods provision. Throughout the course of

the project, there were multiple occasions on which Schanhofer

had to inform City officials that he could not stop Musson from

proceeding on a certain course because Musson's action was

within the "means and methods" provision. One of these actions

was the removal of the entire roadbed of Ohio Street, rather

than removing portions on a block-by-block basis. Other such

actions included whatever steps Musson would take to ensure 30 No. 2011AP1158

proper drainage, as demonstrated by Schanhofer's note that

Musson's cleaning silt screens in drainage areas was "up to the

contractor."19

¶51 As discussed above, the nature of Musson's actions,

taken pursuant to the means and methods provision, demonstrates

that Musson had substantial independent decision-making

authority in performing its tasks, such that Musson's

relationship with the DOT for the conduct that is alleged to

have resulted in harm cannot be characterized as that of a

servant. See Arsand, 83 Wis. 2d at 45–46 (defining servant as one subject to the master's control or right of control). Such

independent discretion is also contrary to Lyons' "reasonably

precise specifications" requirement, in that a contractor may

not possess such control over the alleged injury-causing action

19 Moreover, the mere fact that DOT personnel were onsite during Musson's performance of the Ohio Street sewer work does not transform Musson's contractual performance into the implementation of legislative, quasi-legislative, judicial or quasi-judicial actions that are entitled to immunity. Tellingly, § 105.2(4) of the Standard Specifications provides that "[t]he department's review does not relieve the contractor of the responsibility for obtaining satisfactory results."

Similarly, where the Standard Specifications are silent on the safety measures or performance standards applicable in a given scenario, a contractor may not rely on that silence as a license to undertake whatever measures the contractor selects without threat of liability. Governmental contractor immunity must be based on the prior exercise of legislative, quasi- legislative, judicial or quasi-judicial functions by a governmental entity under Wis. Stat. § 893.80(4), which the governmental contractor implements as a statutory agent. Silence, without more, does not demonstrate the exercise of necessary governmental decision-making.

31 No. 2011AP1158

and still be considered an agent for purposes of governmental

contractor immunity under Wis. Stat. § 893.80(4). Musson thus

fails to satisfy the Lyons test and is not an agent under

§ 893.80(4).20

¶52 Next, having concluded that Musson is not entitled to

immunity as an agent under the Lyons test, we also examine

Musson's claim for immunity in light of the injury alleged and

the plain language of Wis. Stat. § 893.80(4), which limits

immunity to "acts done in the exercise of legislative, quasi-

legislative, judicial or quasi-judicial functions." Beginning

with the injury that Showers has alleged, we note that Showers'

allegations are different in kind from the allegations

underlying the Lyons test for governmental contractor immunity. The substance of Showers' claim is not that Musson was negligent

in its implementation of a decision made in the exercise of a

governmental entity's legislative, quasi-legislative, judicial

or quasi-judicial function, as was the case in Lyons. Rather,

Showers alleges that Musson negligently performed its

excavation, construction, and drainage responsibilities under

the contract. Specifically, Showers' complaint alleges that

20 Because Musson has failed to demonstrate that there were reasonably precise specifications that controlled any alleged injury-causing decision or conduct, we have no need to examine the second and third requirements of the Lyons test (i.e., whether the contractor followed such reasonably precise specifications and whether the contractor warned the governmental entity of any dangers associated with the specifications that were known by the contractor, but not by the governmental entity).

32 No. 2011AP1158

Musson is liable for "improper drainage, . . . maintenance,

excavation, construction procedures, and failure to take

corrective measures."

¶53 These assertions are fundamentally different from the

assertion that a governmental entity negligently selected a

design that a contractor implemented for a government project.

Design selection is a type of governmental entity decision that

we have determined is within the legislative or quasi-

legislative function immunized under Wis. Stat. § 893.80(4).

See, e.g., Chart, 57 Wis. 2d at 100–01 (recognizing legislative or quasi-legislative nature of design decision); Lange v. Town

of Norway, 77 Wis. 2d 313, 318–20, 253 N.W.2d 240 (1977) (same).

¶54 In contrast, Showers alleges that Musson's performance

of its construction duties, such as maintaining drainage at the

worksite, did not meet the standard of due care for construction

work. Cf. Brooks v. Hayes, 133 Wis. 2d 228, 234–35, 395 N.W.2d

167 (1986) (recognizing that a construction contract implicitly

imposes a duty on contractors to perform work according to the

standard of due care). An allegation such as Showers makes does

not implicate the types of acts for which Wis. Stat. § 893.80(4)

affords immunity to a governmental entity. Therefore, they

cannot form the basis for immunity for a contractor. For a

governmental entity to be accorded immunity under § 893.80(4),

the entity must be able to show that the allegedly injurious act

was done in the exercise of a legislative, quasi-legislative,

judicial or quasi-judicial function. Musson has not shown that

the acts that Showers asserts were a cause of injury——Musson's 33 No. 2011AP1158

alleged improper drainage, maintenance, excavation, and

construction at the Ohio Street project——were the implementation

of a governmental entity's exercise of legislative, quasi-

legislative, judicial or quasi-judicial functions. Therefore,

immunity under § 893.80(4) is not available for those acts.

¶55 In future cases, governmental contractors seeking

immunity should include in their pleadings sufficient facts to

demonstrate that the governmental entity from which the

contractor would derive immunity was engaged in one of the

functions for which immunity is available under Wis. Stat.

§ 893.80(4), and that the contractor was an agent with respect

to injury-causing conduct.

¶56 Accordingly, Showers' claims, that Musson negligently

performed the work required by the government contract, should

be analyzed under standard negligence principles. See 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). Although ultimately Musson may be found not to have

been negligent in its performance of its construction

activities, summary judgment was inappropriate based on the

substance of Showers' complaint.

III. CONCLUSION

¶57 We conclude that where a third party's claim against a

governmental contractor is based on the allegation that the

contractor negligently performed its work under a contract with

a governmental entity, the governmental contractor must prove 34 No. 2011AP1158

both that the contractor meets the definition of "agent" under

contractor's act is one for which immunity is available under

§ 893.80(4). Specifically, we conclude that for a contractor to

come within § 893.80(4)'s shield of immunity, the contractor

must prove it was acting as the governmental entity's agent in

accordance with reasonably precise specifications, as set forth

in Lyons. In this case, Musson has not shown that it was acting

as a governmental entity's agent for purposes of the alleged

injury-causing conduct because Musson was not acting pursuant to

¶58 Moreover, pursuant to the plain language of Wis. Stat.

seeking to assert the defense of immunity should clearly allege

in the pleadings why the injury-causing conduct comes within a

case, a governmental contractor would be required to assert that

it was implementing a decision of a governmental entity that was

made within the scope of the governmental entity's legislative,

quasi-legislative, judicial or quasi-judicial functions.

§ 893.80(4) will avoid extending blanket immunity for claims of

negligently performed work against governmental contractors when

the sole basis for immunity is that the work was performed

governmental contractors to claim immunity in such instances 35 No. 2011AP1158

Applying this rationale to this case, we conclude that Musson

would not be entitled to immunity for Showers' claims that

Musson negligently performed its work under a government

contract, because Musson has not made a showing that Musson was

an agent implementing a governmental entity's decision made

within the scope of the entity's legislative, quasi-legislative,

judicial or quasi-judicial functions.

¶59 Therefore, based on Musson failing to meet the

conclude that the facts set out in support of summary judgment

would not support a claim of governmental contractor immunity

because Musson has failed to assert that the acts for which it

claims immunity were "acts done in the exercise of legislative,

required under § 893.80(4). Accordingly, Showers' claims should

be analyzed no differently than negligence claims against other

contractors. ¶60 Musson may therefore be liable if Showers is able to

show that in performing its work under the government contract, Musson had a duty of due care to Showers, that Musson breached

that duty, and that such breach was a cause of Showers' damages. Accordingly, we reverse and remand to the circuit court for

further proceedings on Showers' claims against Musson consistent

with this opinion. Additionally, because Musson's and the

City's cross-claims were not fully litigated in the circuit 36 No. 2011AP1158

court and were not addressed by the court of appeals, those

claims should be addressed on remand.

By the Court.—The decision of the court of appeals is

reversed and the cause remanded to the circuit court.

37 No. 2011AP1158.npc

¶61 N. PATRICK CROOKS, J. (concurring). This case is

about whether Musson Bros., Inc. (Musson) is an agent of a

governmental entity under the test established in the Lyons

case. See Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446,

558 N.W.2d 658 (Ct. App. 1996). I agree with the majority's

conclusion that under the Lyons test, Musson is not an agent

because Musson has not shown that it was acting pursuant to

"reasonably precise specifications" as the first prong of the

Lyons test requires. Musson is therefore not entitled to immunity. The grant of summary judgment should therefore be

reversed. Although I do not join the majority opinion, I

respectfully concur for reasons stated herein.

I.

¶62 In past cases, we have not focused on whether the

governmental entity's decisions were legislative, quasi-

legislative, judicial, or quasi-judicial as a first step in

answering the Lyons question. Even if the court chooses to

adopt that framework for the Lyons test, I am concerned that the

majority may have taken an approach to the Lyons immunity analysis itself that could be read as changing the law on

governmental contractor immunity. If that is the majority's intent, the best way to do so is to acknowledge that, and to

offer more guidance to litigants, lawyers, and courts. ¶63 While the majority opinion (at ¶2 n.5) says that there

is no intention to adopt a fundamental change in our immunity

jurisprudence, I am also concerned that, due to some notable

similarities, the majority opinion could be read as endorsing

1 No. 2011AP1158.npc

the type of fundamental change that Justice Gableman advocates

in a concurrence in an unrelated governmental immunity case.1

While I share Justice Gableman's dismay with some aspects of

this court's immunity jurisprudence, I favor an incremental

approach to correcting the problems. A good place to start

would be to recognize that our prior cases have construed the

ministerial duty exception to immunity too narrowly.2

¶64 The majority's approach provides little guidance as to

how the showing it requires could be met. The majority

concludes that "[T]he facts set out in support of summary

judgment would not support a claim of governmental contractor

immunity because Musson has failed to assert that the acts for

which it claims immunity were 'acts done in the exercise of

1 See Bostco, LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶103, ___ Wis. 2d ___, ___ N.W.2d ___ (Gableman, J., concurring):

I would . . . do away with the ministerial duty and known danger exceptions and restore our immunity jurisprudence to conform with § 893.80(4) and Holytz. That is, governmental entities, officials, and employees should be entitled to immunity only for "acts done in the exercise of legislative, quasi- legislative, judicial, or quasi-judicial functions." Wis. Stat. § 893.80(4); see also [Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962)]. 2 A brief definition of a "ministerial duty" is something that is "absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." This definition is cited in Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976), which takes language from Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting 18 Eugene McQuillin, Municipal Corporations § 53.33, at 225 (3d ed.)).

2 No. 2011AP1158.npc

functions.'" Majority op., ¶4.

¶65 In cases involving immunity, the analysis has usually

focused on whether the alleged negligent acts were discretionary

or non-discretionary, and immunity determinations often turned

on such analysis. Here, the majority holds that Musson must

make an initial showing before application of the three prongs

of the Lyons test for governmental contractors claiming

immunity. Specifically, the majority faults Musson for failing

to "assert that the acts for which it claims immunity were 'acts

done in the exercise of legislative, quasi-legislative, judicial

or quasi-judicial functions' . . . ." See majority op., ¶59. Litigants may be unable to discern from this opinion what sort

of facts they must allege in order to establish that immunity

applies. When this court crafts a somewhat different analytical

framework, the best practice is to clearly lay out the reasons

for the change, and articulate what litigants must show to

satisfy the standard.

¶66 There are striking similarities between the language of the majority and the language of Justice Gableman's Bostco

concurrence. Both opinions read the statute as requiring parties who would claim immunity to show that the alleged

negligent act was related to the exercise of "legislative, quasi-legislative, judicial, or quasi-judicial functions." In

Justice Gableman's Bostco concurrence, he advocates "restor[ing]

Holytz by placing the burden on the government to show that it

is entitled to immunity, as opposed to the status quo in

3 No. 2011AP1158.npc

Wisconsin, where it is now the plaintiff's responsibility to

prove that immunity was pierced." Bostco, LLC v. Milwaukee

Metro. Sewerage Dist., 2013 WI 78, ¶113, ___ Wis. 2d ___, ___

N.W.2d ___ (Gableman, J., concurring). The Bostco concurrence

endorses a test under which "[t]he governmental entity seeking

to establish immunity bears the burden of proving" certain

facts. Id. Similarly, under the majority's holding in this

case, a governmental contractor who seeks to invoke statutory

immunity bears at least the initial burden of establishing that

the government entity's decisions were legislative, quasi-

legislative, judicial, or quasi-judicial. Majority op., ¶2.

Compare Bostco, ___ Wis. 2d ____, ¶103 (Gableman, J., concurring) ("governmental entities, officials, and employees

should be entitled to immunity only for 'acts done in the

exercise of legislative, quasi-legislative, judicial, or quasi-

judicial functions'"), with majority op., ¶27 n.13 ("Musson does

not specify whether the immunity it seeks is legislative, quasi-

legislative, judicial or quasi-judicial in nature.").

¶67 Further, in this case, there was extensive briefing on the potential application of the ministerial duty exception to

immunity, and yet the majority does not address the arguments or

acknowledge its potential application. This might be viewed by

some as consistent with Justice Gableman's suggestion that in

immunity cases analysis of ministerial duty should be "do[ne]

away with." Bostco, ___ Wis. 2d ___, ¶103 (Gableman, J.,

concurring).

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¶68 An incremental approach that would be more consistent

with our jurisprudence would be one that addresses the problem

of this court's overly narrow interpretation of ministerial

duty. Our ministerial duty analysis at times turns into a

search to find any discretion that could have been exercised,

and then declaring immunity is required. Ruling out liability

wherever any discretion is exercised essentially creates

immunity for almost all actions. As an influential treatise

noted:

Stating the reasons for the discretionary-ministerial distinction is much easier than stating the rule.... [T]he difference between "discretionary" and "ministerial" is artificial. An act is said to be discretionary when the officer must exercise some judgment in determining whether and how to perform an act. The problem is that "[i]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail." McQuillin, Municipal Corporations § 53.04.10 (3d ed.) (quoted in Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶136,

235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting)).

¶69 The fact that even a "directly ministerial" act

involves "some discretion in the manner of its performance" can

make it easy for courts to decline to find a ministerial duty

where one in fact exists. Like Justice Gableman, I believe our

cases have sometimes failed to recognize this and have employed

too restrictive an interpretation of ministerial duty. (See

Bostco, ¶109 (Gableman, J., concurring). While I do not favor a

fundamental shift in our jurisprudence, we should be mindful of

the fact that declining to determine that a ministerial duty 5 No. 2011AP1158.npc

exists where any exercise of discretion can be detected leads to

immunizing too much government conduct. We should apply the

test concerning ministerial duty in a way that serves the

important public policy objectives that underlie the reasons for

permitting liability where a ministerial duty exists. We must

do a better job of striking the balance between too much

immunity, which creates a heavy burden for those who suffer harm

from negligent government acts, and too much liability, which

creates a heavy burden for taxpayers.

II.

¶70 This case concerns only one small subset of potential

government agents——private governmental contractors.

¶71 Yet, the majority has serially cited public employee

and other public official immunity cases. See, e.g., majority op., ¶¶22 n.12, 24, 26. Those cases are not relevant to the

Lyons analysis and are advanced despite the presence of a line

of private governmental contractor immunity cases that apply the

Lyons test and private governmental contractor immunity

principles in their proper contexts.3 See, e.g., Bronfeld v. Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d

3 An additional concern is the majority's apparent criticism of two private governmental contractor immunity cases. Majority op., ¶¶40-44. In a few cursory sentences, it calls into question the analyses of the court of appeals in Bronfeld v. Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d 222 and Estate of Brown v. Mathy Const. Co., 2008 WI App 114, 313 Wis. 2d 497, 756 N.W.2d 417. Majority op., ¶¶41, 44. Is the majority sub silencio overruling Bronfeld and Estate of Brown? 6 No. 2011AP1158.npc

222; Estate of Brown v. Mathy Const. Co., 2008 WI App 114, 313

Wis. 2d 497, 756 N.W.2d 417.4

¶72 Here, the Lyons test determines which private

governmental contractors are considered "agents" under Wis.

Stat. § 893.80(4) such that they may be shielded by immunity.5 4 In its analysis, the majority characterizes as precedential the court of appeals decision in Jankee v. Clark Cnty., 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), rev'd by Jankee v. Clark Cnty., 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d 297. See majority op., ¶33. This court has not decided whether a court of appeals decision that has been reviewed by this court has precedential value.

In my view, when this court reviews a decision of the court of appeals, the court of appeals opinion no longer has precedential value. As this court stated in Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶54, 326 Wis. 2d 729, 786 N.W.2d 78, "[c]ircuit courts should not be forced to engage in a legal analysis as to precisely which holdings in court of appeals decisions are still good law, or whether, based on some particular language in the supreme court decision, the general rule should not be applied." Such a rule would prevent that kind of confusion. 5 This court has never addressed the propriety of the Lyons test, which appears inconsistent with the analysis of the court of appeals in Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 530 N.W.2d 399 (Ct. App. 1995). The Kettner court determined that Wis. Stat. § 893.80(3), which sets forth a damage cap, applies only to "agents" who are subject to a master-servant relationship. 191 Wis. 2d at 734. The requirement of a master- servant relationship might not be established solely by establishing the three elements of the Lyons test, which determines if a private governmental contractor is an "agent" under Wis. Stat. § 893.80(4). Compare id. at 737 (discussing indicia of a right to control required in a master-servant relationship) with Lyons, 207 Wis. 2d at 457-58 (discussing the requirement of reasonably precise specifications).

Thus, Wis. Stat. § 893.80(3) and Wis. Stat. § 893.80(4) appear to set forth different standards for the same statutory term, "agent." However, because no one in this case asks this court to revisit Lyons or Kettner or to resolve that apparent discrepancy, I employ the Lyons test assuming its propriety. 7 No. 2011AP1158.npc

In order to be deemed a Wis. Stat. § 893.80(4) "agent," Musson

must show that:

(1) the governmental authority approved reasonably precise specifications;

(2) the contractor's actions conformed to those specifications; and

(3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials. 207 Wis. 2d at 457-58.

¶73 In this case, the parties dispute whether the first

requirement of the Lyons test is met. Thus, the relevant

inquiry is whether a governmental authority approved reasonably

precise specifications addressing Musson's negligent conduct.

¶74 To determine whether a governmental authority approved

reasonably precise specifications, I look to Musson's contract,

which sets forth its obligations regarding the road construction

project at issue. Musson's ability to independently choose the

methods of construction on the project is governed by a "means and methods" clause in the contract, which provides:

[The contractor] is solely responsible for the means, methods, techniques, sequences, or procedures of construction described in and expressly required by the contract. ¶75 Under the "means and methods" clause, Musson was left with near-absolute freedom to choose the means and methods by

which it constructed the street——irrespective of the means and methods actually preferred by the governmental authorities

overseeing the project. The Department of Transportation

supported that interpretation when it concluded that the "means 8 No. 2011AP1158.npc

and methods" clause meant that Musson could choose its own

method of construction relating to the storm sewers at issue.

See majority op., ¶¶11-12.

¶76 Ultimately, Musson's substantial freedom under the

"means and methods" clause dooms its argument that the

government approved reasonably precise specifications addressing

its alleged negligent conduct. To establish that a

specification is reasonably precise, Musson must have had its

discretion significantly curtailed in some way. Bronfeld v. Pember Cos., Inc., 2010 WI App 150, ¶¶29-30, 330 Wis. 2d 123,

792 N.W.2d 222 (requiring a showing by a governmental contractor

that the specifications "significantly curtailed" the

contractor's discretion in order to establish that

specifications are reasonably precise under Lyons). The "means

and methods" clause fails to clear that hurdle under these

facts.

¶77 Because there was no government-approved reasonably

precise specification that addresses Musson's negligent conduct,

I conclude that Musson failed to establish that it is an "agent" under Wis. Stat. § 893.80(4) pursuant to Lyons. Therefore,

Musson is not shielded by the grant of immunity set forth in Wis. Stat. § 893.80(4). Accordingly, I respectfully concur.

¶78 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.

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