Dayce Woodard v. Trooper Bahling

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 29, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP2315 Cir. Ct. No. 2022CV5827

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

DAYCE WOODARD AND JADAN MACK,

PLAINTIFFS-APPELLANTS,

HMS WISCONSIN CASUALTY RECOVERY, DEAN HEALTH PLAN, INC. AND
PAYNE & DOLAN, INC. GROUP BENEFIT PLAN,

INVOLUNTARY-PLAINTIFFS,

V.

TROOPER BAHLING,

DEFENDANT-RESPONDENT,

PERRYAHNA JACKSON, ABC INSURANCE COMPANY AND JOHN DOES 1-10,

DEFENDANTS.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed.
No. 2023AP2315

Before Donald, P.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Dayce Woodard and Jadan Mack (together,
“Plaintiffs”) appeal from a circuit court order granting summary judgment to Colton
Bahling, a trooper with the Wisconsin State Patrol.1 The circuit court concluded
that public officer immunity shielded Trooper Bahling from liability. We affirm.

BACKGROUND

¶2 On August 7, 2020, Mack got a flat tire while traveling on
Interstate 94 through Brookfield. Mack pulled his vehicle into the median, called
AAA for a tow truck, and then called his friend, Woodard, to help him change the
tire. When Woodard arrived, he parked directly behind Mack’s vehicle in the
median and engaged his hazard lights. The tow truck had not yet arrived, and
Woodard tried to change the tire but lacked the proper tire iron. Woodard called his
mother and asked her to bring a different tool. She brought the requested tool, but
Plaintiffs were still unable to remove the flat tire. Soon after Woodard’s mother
arrived, at around 9:43 p.m., Trooper Bahling pulled behind their vehicles with his
emergency lights activated.

¶3 Trooper Bahling first spoke with Woodard’s mother, took her phone
number, and then spoke with Plaintiffs. Trooper Bahling observed that the cars
were in a safe place in a wide median with a lot of room, on a straightaway part of

1
Colton Bahling is identified in the case caption as “Trooper” Bahling because Plaintiffs
did not know his first name when they filed this action, but did know that he was employed as a
trooper with the Wisconsin State Patrol.

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No. 2023AP2315

the interstate with plenty of visibility, and had their hazard lights on. The median
was wide enough that at least two cars could be parked side-by-side without crossing
into the lanes of traffic. Traffic was fairly light and without backups, normal for
that time of day.

¶4 When Woodard informed Trooper Bahling that they were struggling
to change Mack’s tire, Trooper Bahling retrieved his four-sided tire iron and
attempted to assist, but he, too, could not remove the flat tire. Plaintiffs informed
Trooper Bahling that a tow truck was already on its way.

¶5 Trooper Bahling checked to see if there was anything else the group
needed, but Plaintiffs did not request further assistance from him. Trooper Bahling
told the group to stop trying to change the tire and to wait in their vehicles for the
tow truck to arrive. He also suggested that Woodard and his mother leave the scene
rather than stay in the median to await the tow truck. Trooper Bahling then placed
a courtesy-check sticker on Mack’s vehicle and left the scene to continue his patrol.2
Woodard’s mother left shortly after Trooper Bahling.

¶6 Woodard and Mack waited in Woodard’s vehicle for the tow truck.
Mack called AAA again to check on the tow truck, and AAA told him that the truck
would arrive shortly. The Plaintiffs exited the vehicle, and Woodard began
collecting his tools, preparing to leave the scene.

¶7 At that moment, and just as the tow truck was arriving, Mack saw an
out-of-control vehicle hurtling toward them. Witnesses reported that the vehicle

2
A courtesy-check sticker is a bright orange sticker placed in a visible location on the
window of a disabled vehicle on a highway that indicates to other law enforcement that law
enforcement performed a courtesy check, indicates that the vehicle operator was informed that the
vehicle must be removed from the roadway within two hours, and specifies the time by which the
vehicle must be removed from the roadway.

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No. 2023AP2315

was traveling “visibly fast” in the middle lane, swerved through the left traffic lane,
crashed into Woodard and his vehicle in the median, and then swerved back into the
left traffic lane, striking another vehicle. The driver of the vehicle, later identified
as Perryahna Jackson, fled the scene. She was eventually arrested and convicted of
felony hit-and-run involving great bodily harm, for which she pleaded no-contest
and is currently serving a seven-year sentence.

¶8 Plaintiffs sued Jackson, Trooper Bahling, another state trooper who
was involved in the accident response, multiple John Doe law enforcement officers,
and multiple insurance companies.3 Following some discovery and dismissal of the
other named trooper, Trooper Bahling moved for summary judgment based on
public officer immunity for discretionary acts. Trooper Bahling argued that his
decision to continue on patrol was within his discretion, and that no exception to
immunity applied. Relevant here, Trooper Bahling argued that the “known and
compelling danger” exception did not apply because the circumstances indicated no
specific, compelling danger, and instead left room for Trooper Bahling to determine
where his efforts would be most useful (i.e., parked and waiting with Plaintiffs for
the tow truck or continuing on patrol). In response, Plaintiffs argued that Trooper
Bahling was liable because: (1) he had a “ministerial duty” to remain in the median
with Plaintiffs; or (2) being in the median presented a “known and compelling
danger” which required Trooper Bahling to remain with Plaintiffs while they waited
for a tow truck.

¶9 The circuit court concluded that neither exception applied and that
Trooper Bahling was entitled to immunity for his decision to leave the scene after

3
Multiple insurance companies were also impleaded as involuntary plaintiffs.

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No. 2023AP2315

he confirmed that Plaintiffs had a tow truck on the way and needed no further
assistance. Plaintiffs appeal.

DISCUSSION

¶10 We review the circuit court’s grant of summary judgment de novo,
using the same methodology as the circuit court. Lodl v. Progressive N. Ins. Co.,
2002 WI 71, ¶15, 253 Wis. 2d 323, 646 N.W.2d 314. Likewise, whether a party is
entitled to immunity and whether any exceptions apply are questions of law that we
review de novo. Id., ¶17. Summary judgment is proper if there is no genuine issue
of material fact and a party is entitled to judgment as a matter of law. WIS. STAT.
§ 802.08(2) (2023-24).4 “The well-established purpose of summary judgment
procedure is to determine the existence of genuine factual disputes in order to ‘avoid
trials where there is nothing to try.’” Yahnke v. Carson, 2000 WI 74, ¶10, 236
Wis. 2d 257, 613 N.W.2d 102 (quoting Rollins Burdick Hunter of Wis., Inc. v.
Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d 752 (1981)).

¶11 The issue in this case is the application of discretionary act immunity
to a state employee. When a defendant asserts an immunity defense, negligence is
presumed for the purpose of resolving summary judgment motions because disputes
over negligence are not relevant if the defendant is entitled to immunity. Lodl, 253
Wis. 2d 323, ¶¶16-17. As a result, the summary judgment analysis “focus[es]
instead on whether the [governmental] action (or inaction) upon which liability is
premised is entitled to immunity under the statute, and if so, whether one of the

4
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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No. 2023AP2315

judicially-created exceptions to immunity applies.”5 Id. “Under the general rule as
applied in Wisconsin, state officers and employees are immune from personal
liability for injuries resulting from acts performed within the scope of their official
duties.” Kimps v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996) (citing Lister v.
Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976)). However, the
immunity is not absolute. Among other exceptions, there is no immunity against
liability associated with “known and compelling dangers that give rise to ministerial
duties on the part of public officers or employees[.]”6 Lodl, 253 Wis. 2d 323, ¶24.

¶12 Because the “known and compelling danger” exception to immunity
requires that the party claiming the exception identify a ministerial duty that the
public officer or employee was obligated to undertake, we briefly describe the
difference between a discretionary act, to which immunity applies, and a ministerial
act, to which immunity does not apply. Engelhardt v. City of New Berlin, 2019 WI
2, ¶31, 385 Wis. 2d 86, 921 N.W.2d 714. “A public officer’s duty is ministerial
only when it is absolute, certain and imperative, involving merely the performance
of a specific task when the law imposes, prescribes and defines the time, mode and
occasion for its performance with such certainty that nothing remains for judgment
or discretion.” Id., ¶32 (citations omitted). “For a duty to be ministerial, ‘a public
officer must be not only bound to act, but also bound by law to act in a very
particular way[.]’” Pinter v. Village of Stetsonville, 2019 WI 74, ¶45, 387 Wis. 2d
475, 929 N.W.2d 547 (quoting Yao v. Chapman, 2005 WI App 200, ¶29, 287

5
Although the cases cited in the parties’ briefs and in this opinion often discuss municipal
liability under WIS. STAT. § 893.80(4), where liability is the rule and immunity is the exception,
the concepts, theories, and tests applying immunity for state and municipal actors are similar.
Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996).
6
On appeal, Plaintiffs raise only the “known and compelling danger” exception. We
therefore discuss no others.

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No. 2023AP2315

Wis. 2d 445, 705 N.W.2d 272)). “In contrast, a discretionary act ‘involves the
exercise of judgment in the application of a rule to specific facts.’” Pinter, 387 Wis.
2d 475, ¶41 (quoting Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56,
¶25, 235 Wis. 2d 409, 611 N.W.2d 693)). Described more simply, the difference
between a discretionary act and a ministerial act depends on whether the
circumstances are such that the public officer has the discretion to choose to act or
not to act, or if the public officer is duty-bound to act in a particular manner.

¶13 The “known and compelling danger” exception reflects the fact that
“circumstances may give rise to such a certain duty, where … the nature of the
danger is compelling and known to the officer and is of such force that the public
officer has no discretion not to act.” C.L. v. Olson, 143 Wis. 2d 701, 715, 422
N.W.2d 614 (1988). Prior cases applying this exception described the
circumstances presented in those cases as examples of conditions “that are nearly
certain to cause injury if not corrected, or in other words, are ‘accidents waiting to
happen.’”7 Voss ex rel. Harrison v. Elkhorn Area Sch. Dist., 2006 WI App 234,
¶19, 297 Wis. 2d 389, 724 N.W.2d 420.

7
Examples of these circumstances include: (1) an accident where hikers, legally accessing
a park hiking trail at night, fell into a deep gorge located on a part of the trail known by the park
manager to be particularly hazardous at night, Cords v. Anderson, 80 Wis. 2d 525, 532-37, 259
N.W.2d 672 (1977); (2) an accident where a student, while wearing “fatal vision goggles” at the
direction of the teacher during a lesson on the dangers of driving after having consumed alcohol,
caught her foot on the leg of a desk, tripped, and hit her mouth on the top of the desk, Voss ex rel.
Harrison v. Elkhorn Area School District, 2006 WI App 234, ¶¶2-9, 297 Wis. 2d 389, 724 N.W.2d
420; and (3) an accident where a young child drowned during a field trip with 76 other children at
a water park despite the fact that the child’s mother told staff that organized the field trip that the
child could not swim, and was assured by staff that the child’s swimming ability would be evaluated
at the shallow or zero-depth area of the pool, Engelhardt v. City of New Berlin, 2019 WI 2, ¶¶13-
15, 53-58, 385 Wis. 2d 86, 921 N.W.2d 714.

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No. 2023AP2315

¶14 Plaintiffs make several arguments, most of which collapse into a
single claim: that the hazards associated with a disabled vehicle in the median of
Interstate 94 were of such a nature as to create a ministerial duty for Trooper Bahling
to remain at the scene with his emergency lights engaged and/or order (not simply
request) Woodard to move his vehicle so that it was not blocking Mack’s disabled
vehicle.8 We disagree with Plaintiffs and instead conclude that the known and
compelling danger exception does not apply in this case. Therefore, Trooper
Bahling is immune from liability.

¶15 First, Plaintiffs fail to identify any specific danger arising from the
circumstances other than what would appear to be the general danger that any
disabled vehicle on an interstate median would face. As Trooper Bahling explained,
there was nothing especially dangerous about the location of the disabled vehicle or
the surrounding circumstances (e.g., visibility, traffic, weather). Second, there is no
evidence Trooper Bahling knew anything about Jackson driving recklessly on the
highway any time before the accident. Whatever danger Jackson posed cannot be
fairly characterized as a “known” danger.

8
For example, Plaintiffs say that although Trooper Bahling had discretion with respect to
whether to stop and help Plaintiffs in the first place, his discretion was eliminated after he engaged
the scene, and the circumstances required him to stay at the scene. However, like their other
arguments, this argument is defeated if the circumstances of the scene did not present a known and
compelling danger regardless of the discretionary nature of Trooper Bahling’s decision to stop and
help Plaintiffs.

Additionally, Plaintiffs argue that a reasonable jury could conclude that the circumstances
were sufficiently dangerous such that Trooper Bahling would have known about them, triggering
a ministerial duty to stay on the scene. This is, in our view, an attempt to manufacture a question
of fact out of a question of law. Even if Trooper Bahling’s subjective assessment of the
dangerousness of the circumstances is a question of fact, whether the circumstances objectively
presented a known and compelling danger triggering a ministerial duty to act is a question of law
that would not be resolved by a fact finder. Voss, 297 Wis. 2d 389, ¶12.

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No. 2023AP2315

¶16 Plaintiffs rely on Barillari v. City of Milwaukee, 194 Wis. 2d 247,
533 N.W.2d 759 (1995), for the proposition that Trooper Bahling was required to
do something to help abate the danger of the circumstances, and because he did not
do so, he is not entitled to immunity. Plaintiffs misread Barillari. In that case,
police promised a domestic violence victim that they would arrest her ex-boyfriend,
only for the ex-boyfriend to not be arrested and later murder the victim.9 Id. at 250.
The victim’s family and estate brought a wrongful death action against the City of
Milwaukee, claiming that the police’s promise to arrest the ex-boyfriend created a
ministerial duty to protect the victim. Id. The supreme court held that the known
and compelling danger exception did not defeat immunity in that case because the
police “could not look at this situation and see a homicide just waiting to happen.”
Id. at 261 (citation omitted).

¶17 Plaintiffs say that because the police in Barillari continued efforts to
protect the victim despite not following through on the promise to arrest, the police
were entitled to immunity. However, the supreme court said no such thing. Instead,
it explained that police could not have predicted that the victim would be killed by
her ex-boyfriend when she was, and police possess significant discretion to
determine how best to allocate law enforcement resources:

[W]e conclude that the nature of law enforcement requires
moment-to-moment decision making and crisis management
which, in turn, requires that the police department have the
latitude to decide how to best utilize law enforcement
resources. Unlike those professionals who have a set daily
calendar they follow, police officers have no such luxury.
For these reasons, it is clear that law enforcement officials

9
Rather than immediately seek an arrest warrant, law enforcement decided to give the ex-
boyfriend a few days to voluntarily turn himself in, but instead, the ex-boyfriend acquired a gun,
killed the victim, and then himself. Barillari v. City of Milwaukee, 194 Wis. 2d 247, 253, 533
N.W.2d 759 (1995).

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No. 2023AP2315

must retain the discretion to determine, at all times, how best
to carry out their responsibilities.

Id. at 260.

¶18 Here, the evidence in the summary judgment record reflects that the
vehicles were in a safe place on a wide median with a lot of room, on a straightaway
part of the interstate with plenty of visibility, and had their hazard lights on. The
median was wide enough that at least two cars could be parked side-by-side without
crossing over into the lane of traffic. The circumstances do not present a situation
that was “nearly certain to cause injury if not corrected[.]” Voss, 297 Wis. 2d 389,
¶19. Trooper Bahling “could not look at this situation and see a [car crash] just
waiting to happen.” Barillari, 194 Wis. 2d at 261 (citation omitted). Trooper
Bahling’s decision to continue his patrol, rather than remaining parked behind
Plaintiffs while they waited for the tow truck, was a discretionary decision protected
by immunity, and no known and compelling danger existed to defeat it.

CONCLUSION

¶19 We conclude that Trooper Bahling is entitled to immunity, and the
known and compelling danger exception does not apply. Accordingly, the circuit
court correctly granted Trooper Bahling’s motion for summary judgment.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

10