LAW NOTES from the Law Offices of
Kay & Andersen, LLC

September, 2013
What Every Insurer Should Know . . . . . . . . . . . . . . . 
                                              ABOUT MINISTERIAL DUTIES AND IMMUNITY ​

​​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.

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Although governmental representatives are bestowed general immunity from liability in Wisconsin, there are exceptions to this general rule. The ministerial duty exception was at issue in a recent Wisconsin Supreme Court Case, Brown v. Acuity, a Mutual Insurance Company, 2013 WI 60 (July 9, 2013). In that case, Parnell Burditt was driving his truck on route to the Okauchee fire station. Burditt was a volunteer firefighter and emergency medical service director who was responding to an emergency call. His truck had three flashing lights activated but no audible signal. After reaching an intersection where he encountered a red stop signal, Burditt paused for an oncoming vehicle and then proceeded through the intersection, where Burditt’s vehicle was struck by another vehicle, causing injuries to passengers in that vehicle. Burditt acknowledged that he had no authority to proceed against the red stop signal. When the injured passengers filed suit alleging negligence by Burditt, Burditt moved for summary judgment, arguing that he was acting within the scope of his employment with the Okauchee fire department when he was responding to the call and traveling to the fire station, and therefore he was shielded by public officer immunity. The circuit court granted Burditt’s motion, which was affirmed by the Court of Appeals, leading to this Supreme Court review. The Supreme Court first concluded that Burditt was acting within the scope of his employment as a volunteer firefighter when he responded to the call. Burditt’s purpose in traveling to the fire station was to respond to an emergency call, and since he was acting within his scope of employment, he may be shielded by public officer immunity under Wis. Stat. §893.80(4). Id, ¶¶37-39. The plaintiffs argued that Burditt acted contrary to a ministerial duty in failing to follow the rules of the road codified in Chapter 346 of the Wisconsin Statutes. Because Burditt’s actions clearly violated the rules of the road, the only question was whether his action was ministerial in nature. Id, ¶48. That question considers whether there are absolute, certain and imperative requirements concerning the performance of a specific task and it imposes and defines the time, mode and occasion with such certainty that nothing remains for judgment or discretion. Id, ¶54. Because the traffic rules authorized Burditt to proceed through the red stop signal only if his vehicle gave a visual and an audible signal, this imposed a ministerial duty upon Burditt to stop. Because he failed to comply with that ministerial duty and now faced allegations of negligence premised on his failure to comply, Burditt fell within the ministerial duty exception to public officer immunity. Id, ¶¶54-55. Consequently, the lower courts’ granting of summary judgment was not appropriate and the case was remanded for further proceedings. Id, ¶59. This case continues the extensive body of law involving exceptions to governmental immunity. The merits of an immunity defense must be evaluated on a case by case basis in Wisconsin.

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