Opinion

Pries v. McMillon

  • 314 Wis. 2d 706
  • 760 N.W.2d 174
  • 2008 WI App 167
  • 2008 Wisc. App. LEXIS 839
Court
Court of Appeals of Wisconsin
Filed
Oct 28, 2008
Status
Published
Author
Fine
On the bench
Fine, Kessler, Brennan
Cited by
4 cases
Authority
More cited than 7.8%

The opinion

FINE, J.

¶ 27. (dissenting). In my view, the Majority expands the exceptions to the rule of governmental immunity in tort actions so that the exceptions have smothered the rule. Accordingly, I respectfully dissent.

¶ 28. The trial court found that Raymond McMillon "negligently jumped on the stalls, causing their collapse and subsequently plaintiff Pries's injury." The Majority holds that this simple act of negligence violated a "ministerial duty" because "[t]he removal of the chains had created a 'dangerous situation.'" Majority, ¶ 25. This expands the "known danger" exception beyond all recognition and will make governmental entities and persons liable for any negligent act because negligence is only actionable at all if the actor does something that "create[s] an unreasonable risk of dan *723 ger." Johnson v. Misericordia Cmty. Hosp., 99 Wis. 2d 708, 723 , 301 N.W.2d 156, 164 (1981). On the other hand, "[t]he known danger exception as applied in the case law has been reserved for situations that are more than unsafe, where the danger is so severe and so immediate that a specific and immediate response is demanded." Umansky v. ABC Ins. Co., 2008 WI App 101, ¶ 70 , 313 Wis. 2d 445, 488 , 756 N.W.2d 601, 623 . I respectfully submit that the facts of this case — a run-of-the-mill negligence action — fall far short of that standard.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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