THE GOVERNMENTAL CONTRACTOR IMMUNITY DEFENSE
By Attorney Robert A. Mich, Jr.
March, 2012
By Attorney Robert A. Mich, Jr.
March, 2012
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
The Wisconsin legislature has bestowed significant protection to municipal governments and their agents under Wisconsin Statutes §893.80. This statute prohibits suits against governmental subdivisions for the intentional torts of their officers, officials, agents, or employees. Wis. Stat. §893.80(4). In addition, the government and its officers, officials, agents, and employees are immune from suit “for acts done in the exercise of legislative, quasilegislative, judicial or quasi-judicial functions.” Id. This has generally been interpreted over the years as granting immunity to the government and their representatives for discretionary acts (although liability remains for “ministerial” acts, which are clear, express obligations that do not involve any exercise of discretion).
Municipal governments frequently contract with engineers and other construction professionals to provide specialized services. When an engineering firm provides those services, it may be acting as an arm of the government. Consequently, Wisconsin courts began considering whether the scope of immunity granted under Wis. Stats. §893.80(4) also covers the work of governmental contractors. The courts eventually concluded it did, provided certain criteria are met.
The governmental contractor immunity doctrine was first recognized in Estate of Lyons v. CNA Insurance Companies, 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996). In that case, the Court determined that engineering firm Strand Associates, Inc. was entitled to immunity from claims arising from a fatal car accident, where the Department of Transportation had directed Strand to implement the allegedly faulty aspects of the design of the bridge where the accident occurred. The Court of Appeals concluded that an independent professional contractor that follows official directives is an agent for purposes of Wis. Stat. §893.80(4) or is entitled to common law immunity when: (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. Id, at 457-458, 558 N.W.2d at 663. “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. Subsequent Wisconsin court cases have continued to apply these three tests.
While this standard appears to provide significant protection to engineering firms, when it will apply is not always clear. For example, it is often difficult to determine whether the particular scope of work delegated to the contractor on a given project constituted “reasonably precise specifications.” There is also a recurring question as to what constitutes a “possible danger” associated with the underlying specifications.
The lesson to be taken from this doctrine is that engineers should strive to implement the specifications provided by a governmental directive in performing their work. However, any concerns from an engineering standpoint should be immediately brought to the attention of the governmental body to take appropriate corrective action, if necessary. If the government chooses to ignore the engineer’s warnings, the engineer should be insulated from liability for third-party claims. While assessment of an engineer’s work will be focused on whether it met the appropriate standard of care, the extension of governmental immunity to independent contractors provides a secondary line of defense to potential malpractice claims.
Municipal governments frequently contract with engineers and other construction professionals to provide specialized services. When an engineering firm provides those services, it may be acting as an arm of the government. Consequently, Wisconsin courts began considering whether the scope of immunity granted under Wis. Stats. §893.80(4) also covers the work of governmental contractors. The courts eventually concluded it did, provided certain criteria are met.
The governmental contractor immunity doctrine was first recognized in Estate of Lyons v. CNA Insurance Companies, 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996). In that case, the Court determined that engineering firm Strand Associates, Inc. was entitled to immunity from claims arising from a fatal car accident, where the Department of Transportation had directed Strand to implement the allegedly faulty aspects of the design of the bridge where the accident occurred. The Court of Appeals concluded that an independent professional contractor that follows official directives is an agent for purposes of Wis. Stat. §893.80(4) or is entitled to common law immunity when: (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. Id, at 457-458, 558 N.W.2d at 663. “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. Subsequent Wisconsin court cases have continued to apply these three tests.
While this standard appears to provide significant protection to engineering firms, when it will apply is not always clear. For example, it is often difficult to determine whether the particular scope of work delegated to the contractor on a given project constituted “reasonably precise specifications.” There is also a recurring question as to what constitutes a “possible danger” associated with the underlying specifications.
The lesson to be taken from this doctrine is that engineers should strive to implement the specifications provided by a governmental directive in performing their work. However, any concerns from an engineering standpoint should be immediately brought to the attention of the governmental body to take appropriate corrective action, if necessary. If the government chooses to ignore the engineer’s warnings, the engineer should be insulated from liability for third-party claims. While assessment of an engineer’s work will be focused on whether it met the appropriate standard of care, the extension of governmental immunity to independent contractors provides a secondary line of defense to potential malpractice claims.