finding governmental immunity inapplicable to a negligence claim based upon a psychiatrist’s examination and diagnosis of the plaintiff prisoner because these actions required the use of medical, not governmental discretion
How later courts described this case
- finding governmental immunity inapplicable to a negligence claim based upon a psychiatrist’s examination and diagnosis of the plaintiff prisoner because these actions required the use of medical, not governmental discretion
- Rejecting the proposition that "The distinction generally made in the application of the discretionary function exemption is between those decisions which are made on a policy or planning level, as opposed to those made on an operational level."
- noting the limited reach of the medical discretion exception and declining to extend its reasoning to another setting
Written by the judges who cited it.
The opinion
SUNDBY, J.
0dissenting). "The King can do no wrong, but his ministers may." Hugh Douglas Price and J. Allen Smith, Municipal Tort Liability: A Continuing Enigma, 6 U. Fla. L. rev. 330, 334 (1953) (quoting Ballard v. Tampa, 168 So. 654, 657 (1936)). In our decision today, we hold that the King's ministers may do no wrong. By the majority's definition of what constitutes a "discretionary" act, it has effectively made the test for liability the defendant's status as a public officer and not whether his or her act was "discretionary."
The majority assumes that Professor Hill and the University Safety Officer, Allen Kursevski, were negligent in failing to provide the students with safe equipment. Maj. Op. at 513, 516-17. The jury found that they were negligent. The majority concludes, however, that both of these employees are immune from *525 liability because their failure to provide safe equipment resulted from discretionary decisions.
Professor Hill taught a class in physical education for future teachers. Under his supervision, students taught groups of small children. Renee Kimps, a student enrolled in one of Professor Hill's classes, was injured when a volleyball standard fell on her because the set screws gave way as the standard was being put in place. The majority concedes that Professor Hill had a "duty" but it does not tell us what that duty was. It says that his duty was "discretionary." Plainly, that means, at least in this case, that whatever Professor Hill's duty, he was free to exercise his discretion not to perform that duty. The majority concludes that: "A professor is paid to teach, and should not be forced to spend his or her time checking nuts and bolts on classroom equipment." Maj. Op. at 513. The majority further asserts that Professor Hill had no duty of care with respect to the volleyball class because he had positioned himself near the trampoline where the students had the greatest risk of injury. Id. The majority does not explain why Professor Hill, at some time, could not have made certain thht all of the sports equipment used in his teaching was safe.
Hill's duty to protect students on the trampoline apparently arose at the same time Kimps was teaching children how to ¿)lay volleyball. Professor Hill could not be in two places at one time. If one of the volleyball students had been struck by a volleyball and injured, Professor Hill could rightly defend on the grounds that his decision to teach other students how to use a trampoline was a discretionary act. However, that would not excuse him from performing his duty to see that the volleyball standards were secure. Kimps does not claim that Professor Hill should have been instructing the *526 class on how to play volleyball rather than on how to use a trampoline. She simply claims that he had a duty to see that the equipment used in all of his classes was safe for the students' use.
The defendants do not argue that Kimps's complaint failed to state a cause of action based on Professor Hill's negligence. In order to constitute a cause of action for negligence there must exist: "(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531 , 247 N.W.2d 132, 135 (1976).
Coffey is a valuable precedent in this case because the court discussed the question of duty in relation to a public officer's claim of immunity. In Coffey , the plaintiff alleged that the building inspector was negligent in performing building inspections. The court said that the building inspector and the city owed a duty to the plaintiffs to properly conduct the inspection of a building. Id. at 539-40 , 247 N.W.2d at 139 . The defendants argued that the city and the building inspector did not owe a duty to the individual plaintiff but to the public. The court said, however, "[a]ny duty owed to the public generally is a duty owed to individual members of the public." Id. at 540 , 247 N.W.2d at 139 . The majority concedes that Professor Hill owed a duty to see that the sports equipment used in teaching his students was safe for their use. That duty was not an abstract duty owed generally to a group of students but, under Coffey , was a duty owed to Kimps.
The Coffey court addressed whether governmental immunity prevented a judgment for damages against the city and the building inspector. The city and the building inspector argued that enforcement of the *527 building code was quasi-judicial in nature, and therefore they were immune from liability. The court said: "However, it is the categorization of the specific act upon which negligence is based and not the categorization of the overall general duties of a public officer which will dictate whether or not the provisions of sec. 895.43(3), Stats., [now § 893.80(4), STATS.] [provide immunity]-." Coffey, 74 Wis. 2d at 533-34 , 247 N.W.2d at 136 . The majority's analysis is therefore flawed when it concentrates on Professor Hill's duty to teach rather than on his duty to make sure that the sports equipment used in his teaching was safe for the students' use. The latter duty was ministerial. Professor Hill's duty to insure that the sports equipment used in his classes was safe was imposed on him by his teaching obligation. I agree with the majority that Professor Hill was paid to teach, but he was paid to teach physical education. Plainly, that duty included insuring that the equipment provided to the students was safe for their use. He did not have to satisfy that duty by personal inspection of every piece of physical equipment; that was Kursevski's job. However, Professor Hill had a duty to see that the safety officer at the university had inspected and prepared the sports equipment for the students' use.
As to Kursevski's liability, his duty is even clearer than Professor Hill's. Kursevski's job description required him to establish and administer a risk management program. That duty is similar to the duty of the building inspector in Coffey . "Violations exist or do not exist according to the dictates of the regulations governing the inspection, and not according to the discretion of the inspector." Id. at 534 , 247 N.W.2d at 136-37 . Similarly, the University's risk management program required periodic inspection of equipment used in *528 teaching; that could not be performed at the whim of the risk manager.
The majority would find Kursevski subject to liability only if his job description had included: "Tighten screws on volleyball standards every Tuesday at 8:30 a.m." Maj. Op. at 519. If Kursevski's job description had read" [t]ighten screws on volleyball standards," the majority would find that his duty was not ministerial because it didn't specify the day and hour at which he was to perform that duty. The day and the hour are not relevant to Kursevski's performance of duties.
For the foregoing reasons, I respectfully dissent.