Mary Kay Nusse v. Western Technical College

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.
August 18, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP74 Cir. Ct. No. 2016CV206

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

MARY KAY NUSSE,

PLAINTIFF-APPELLANT,

HEALTH TRADITION HEALTH PLAN AND
REGENCE BLUE CROSS BLUE SHIELD OF UTAH,

INVOLUNTARY-PLAINTIFFS,

V.

WESTERN TECHNICAL COLLEGE,

DEFENDANT-RESPONDENT,

JOHNSON CONTROLS INC.,
R J JUROWSKI CONSTRUCTION INC. AND
KRAUS-ANDERSON, INCORPORATED,

DEFENDANTS.
No. 2022AP74

APPEAL from a judgment of the circuit court for La Crosse County:
GLORIA L. DOYLE, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, 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. Mary Kay Nusse appeals the circuit court’s entry
of judgment in favor of Western Technical College (WTC). Nusse sued WTC for
“negligence” and “negligence per se for violation of WIS. STAT. § 101.11(1).”1
Nusse alleged that, in August 2015, she tripped on a warped edge of plywood laid
over a walkway on the WTC campus in the area of a construction project and
sustained significant injuries. The circuit court granted WTC’s motion for
summary judgment, determining that WTC is immune from liability under WIS.
STAT. § 893.80(4) for its discretionary acts to maintain the safety of the
construction area and to comply with the safe place statute.2

¶2 On appeal, Nusse argues that the ministerial duty exception and the
known and compelling danger exception to governmental immunity apply. We

1
WISCONSIN STAT. § 101.11 (2019-20), referred to as the “safe place statute,” imposes
an obligation on an “employer [to] furnish ... a place of employment which shall be safe for
employees ... and for frequenters ....” Umansky v. ABC Ins. Co., 2009 WI 82, ¶26, n.19, 319
Wis. 2d 622, 769 N.W.2d 1.

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
As discussed in more detail below, WIS. STAT. § 893.80(4) provides governmental
immunity for acts “done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial
functions,” unless certain exceptions apply. See Lodl v. Progressive N. Ins. Co., 2002 WI 71,
¶¶21, 24, 253 Wis. 2d 323, 646 N.W.2d 314.

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No. 2022AP74

conclude, as did the circuit court, that the ministerial duty exception to
governmental immunity does not apply because WTC’s acts taken in furtherance
of its duty to maintain the safety of the construction area and to comply with the
safe place statute are discretionary. We reject Nusse’s argument that the known
and compelling danger exception to governmental immunity applies based on her
apparent concession that WTC’s arguments against the application of the known
and compelling danger exception here are correct. Accordingly, we affirm.

BACKGROUND

¶3 The following facts are undisputed for purposes of WTC’s motion
for summary judgment.3

¶4 In August 2015, there was an ongoing construction project on
WTC’s campus. WTC contracted with Johnson Controls, Inc. for “program
management, design services, and construction management” regarding the
construction project. The scope of services in the contract under “construction
management” included “site safety enforcement.” WTC relied on Johnson
Controls to address safety issues that arose in the construction area.

¶5 In the area of the construction project at issue, WTC was informed
by Johnson Controls that plywood panels would be laid over portions of the
walkway to protect pedestrians. On August 13 and 14, 2015, WTC contacted the
project manager retained by Johnson Controls about a safety concern with the

3
The undisputed facts in this opinion are taken from affidavits and deposition testimony
submitted with respect to WTC’s motion for summary judgment. This opinion takes no position
on the facts presented in the circuit court in submissions relating to motions to dismiss by
Johnson Controls and other defendants, which motions are not at issue in this appeal.

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No. 2022AP74

plywood panels that had been placed over the walkway and was informed that the
project superintendent retained by Johnson Controls would “follow up.”

¶6 On August 26, 2015, while walking through campus in the area near
the construction project where the plywood panels covered portions of the
walkway, Nusse fell when she tripped on an edge of the plywood and sustained
injuries. Nusse filed a complaint in circuit court against WTC, Johnson Controls,
and others, alleging causes of action for negligence and negligence per se for a
violation of Wisconsin’s safe place statute, WIS. STAT. § 101.11(1).

¶7 WTC moved for summary judgment, seeking dismissal of all claims
on the ground that it is entitled to governmental immunity under WIS. STAT.
§ 893.80(4). WTC argued that it exercised its discretion both in retaining Johnson
Controls to manage the construction project and maintain the safety of the site, and
in relying on Johnson Controls to handle the plywood covering the walkway
where Nusse was injured so as to comply with any duty arising under the safe
place statute. Accordingly, WTC argued, it is immune from liability for the
alleged negligent performance of those discretionary acts.

¶8 Nusse opposed WTC’s motion for summary judgment, arguing that
WTC had a ministerial duty to maintain site safety under Wisconsin’s safe place
statute. Nusse argued that WTC negligently failed to comply with its ministerial
duty because WTC was required, but failed, to remove or replace the warped
plywood covering the walkway after WTC noted the warped plywood on August
13 and before Nusse was injured on August 26. Accordingly, Nusse argued, WTC
is not entitled to governmental immunity.

¶9 The circuit court granted WTC’s motion for summary judgment.

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No. 2022AP74

¶10 Nusse appeals.

DISCUSSION

¶11 “Whether the circuit court properly granted summary judgment is a
question of law that this court reviews de novo.” Schmidt v. Northern States
Power Co., 2007 WI 136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. Summary
judgement is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶12 WTC’s motion for summary judgment is based on its assertion of
governmental immunity under WIS. STAT. § 893.80(4). If WTC is entitled to
governmental immunity, then there is nothing to try even though factual disputes
may exist regarding the issue of negligence. See Lodl v. Progressive N. Ins. Co.,
2002 WI 71, ¶16, 253 Wis. 2d 323, 646 N.W.2d 314. Indeed, for purposes of
immunity analysis, we assume that WTC did act negligently, and we focus on
whether WTC is entitled to governmental immunity under § 893.80(4) and
whether any exception applies to abrogate that immunity. Lodl, 253 Wis. 2d 323,
¶17.4 “The application of the immunity statute and its exceptions involves the
application of legal standards to a set of facts, which is a question of law” that we
review independently of the legal determinations rendered by the circuit court.

4
Nusse argues that the circuit court applied the wrong legal standard in granting WTC’s
motion for summary judgment because “[t]he [circuit] court did not start from the premise that
WTC was negligent.” However, the circuit court stated while making its decision that “the Court
should presume that negligence existed.” Moreover, Nusse’s argument ignores the standard of
review that we apply on appeal, which, as stated in the text, is de novo.

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Id.; Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417
(1999).

¶13 “The governmental immunity statute, WIS. STAT. § 893.80(4),
provides that governmental subdivisions are immunized from liability for their
employees’ ‘acts done in the exercise of legislative, quasi-legislative, judicial or
quasi-judicial functions.’” American Fam. Mut. Ins. Co. v. Outagamie Cnty.,
2012 WI App 60, ¶9, 341 Wis. 2d 413, 816 N.W.2d 340 (quoting Lodl, 253
Wis. 2d 323, ¶21). As interpreted by Wisconsin courts, this statute provides no
immunity against liability associated with:

1) the performance of ministerial duties imposed by law;
2) known and compelling dangers that give rise to
ministerial duties on the part of public officers or
employees; 3) acts involving medical discretion; and 4) acts
that are malicious, willful, and intentional.

Lodl, 253 Wis. 2d 323, ¶24. In her appellant’s brief, Nusse invokes the
“ministerial duty” and the “known and compelling danger” exceptions. We
address each exception in turn.

I. Ministerial duty exception

¶14 “The ministerial duty exception … recogni[zes] that immunity law
distinguishes between discretionary and ministerial acts, immunizing the
performance of the former but not the latter.” Id., ¶25. A ministerial duty is one
that “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.” Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610

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No. 2022AP74

(1976). Immunity will not apply if liability is premised on negligent performance
or non-performance of a ministerial duty. Lodl, 253 Wis. 2d 323, ¶26.

¶15 “The first step in the ministerial duty analysis is to identify a source
of law or policy that imposes the alleged duty.” American Fam. Mut. Ins. Co.,
341 Wis. 2d 413, ¶13 (citing Pries v. McMillon, 2010 WI 63, ¶31, 326 Wis. 2d 37,
784 N.W.2d 648). “Where there is a written law or policy defining a duty, we
naturally look to the language of the writing to evaluate whether the duty and its
parameters are expressed so clearly and precisely, so as to eliminate the official's
exercise of discretion.” Pries, 326 Wis. 2d 37, ¶26.

¶16 Nusse argues that Wisconsin’s safe place statute, WIS. STAT.
§ 101.11, imposes a ministerial duty on WTC to safely maintain its walkways.
Section § 101.11 states:

Every employer shall furnish employment which
shall be safe for the employees therein and shall furnish a
place of employment which shall be safe for employees
therein and for frequenters thereof and shall furnish and use
safety devices and safeguards, and shall adopt and use
methods and processes reasonably adequate to render such
employment and places of employment safe, and shall do
every other thing reasonably necessary to protect the life,
health, safety, and welfare of such employees and
frequenters. Every employer and every owner of a place of
employment or a public building now or hereafter
constructed shall so construct, repair or maintain such place
of employment or public building as to render the same
safe.

¶17 However, as this court stated in Spencer v. County of Brown, 215
Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997), abrogated on other grounds, Blum
v. 1st Auto & Cas. Ins. Co., 2010 WI 78, 786 N.W.2d 78, “the duty imposed by
the safe-place statute, § 101.11, STATS., is discretionary.” Spencer, 215 Wis. 2d
at 651. Under the safe place statute, WTC is required to use “reasonably

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No. 2022AP74

adequate” methods and processes to render the walkways safe, and “do every
other thing reasonably necessary” to protect the safety of individuals frequenting
its campus. WIS. STAT. § 101.11 (emphasis added); see also Spencer, 215 Wis. 2d
at 651. “This [“reasonably adequate” and “reasonably necessary”] language
implies the exercise of discretion and judgment … in determining what measures
are reasonably necessary” to ensure the safety of any place. Id. at 651. “Section
101.11 does not impose the duty to perform an act with specificity as to time,
mode and occasion ‘with such certainty that nothing remains for judgment or
discretion.’” Id. “[W]hile the safe-place statute imposes a duty on owners of
public buildings to maintain safe premises for employees and frequenters, the duty
set forth in § 101.11, STATS., does not rise to the level of imposing a ministerial
duty for purposes of analysis under § 893.80(4), STATS.” Id. at 652.

¶18 Here, the pertinent acts by WTC were its retention of the general
contractor to manage site safety in the area of the construction project and its
reliance on that contractor to address the safety concern it had identified to the
contractor regarding the plywood panels. Pursuant to the law set out above,
WTC’s acts to comply with its duty under the safe place statute were discretionary
and WTC is entitled to immunity from liability for the negligent performance of
those acts under WIS. STAT. § 893.80(4).

¶19 Nusse does not develop any argument against the language in
Spencer that the safe place statute imposes a discretionary duty (rather than a
ministerial duty). Rather, Nusse asserts, in one conclusory sentence, that Spencer
does not apply because “WTC was doing exactly the opposite of what occurred in
Spencer by choosing not to exercise its duties under the Safe Place Statute.” We
understand Nusse to be suggesting that Spencer does not apply because it is
distinguishable. As we explain, that argument fails.

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No. 2022AP74

¶20 In Spencer, the plaintiff fell in the shower in the county jail and sued
the County for negligently maintaining the shower area. Spencer, 215 Wis. 2d at
644. This court determined that the County’s duty to maintain the shower area
under the safe place statute was discretionary, not ministerial, and therefore the
County was immune for any negligent acts taken in the course of fulfilling that
discretionary duty. Id. at 651, 654. Nusse appears to argue that retaining a
contractor to maintain a safe place is not the performance of a discretionary duty,
as this court determined occurred in Spencer, but rather the failure to perform the
duty at all. We are not persuaded that WTC failed to perform its discretionary safe
place act duty when it retained a general contractor to manage a construction
project and to maintain the safety of the construction project area, and to rely on
that contractor to address a safety concern that it had brought to the contractor’s
attention, as the contractor indicated it would do. That is, WTC’s having taken
these acts to maintain the area near the construction project under the safe place
statute here is no different from whatever acts the County took to maintain the
shower area under the safe place statute in Spencer. However, even if it could be
said that WTC failed to act, the immunity defense assumes negligence in both
action and inaction, and focuses instead on whether the action or inaction is
entitled to immunity. See Lodl, 253 Wis. 2d 323, ¶17. Because WTC’s duty
under the safe place statute is discretionary, WTC is immune for any action or
inaction taken in furtherance of fulfilling that duty.

¶21 Nusse also argues that WTC’s duty under the safe place statute is
“non-delegable,” that delegating a “non-delegable” duty is “unlawful,” and that
“there is no immunity offered to governmental entities for unlawful acts.” Nusse
bases her “non-delegable” argument on the statement in Dhein v. Frankenmuth
Mut. Ins. Co., 2020 WI App 62, 394 Wis. 2d 470, 950 N.W.2d 861, that “[t]he

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No. 2022AP74

duties imposed on employers and property owners under the safe place statute are
non-delegable.” Id., ¶24 n.7. However, reading this statement in context
establishes that Dhein provides no support for Nusse’s argument that WTC acted
unlawfully.

¶22 As this court went on to explain in Dhein, that the duty under the
safe place statute is “non-delegable” means that “the person who has that duty
[under the safe place statute] cannot assert that another to whom he [or she] has
allegedly delegated the duty is to be substituted as the primary defendant in his [or
her] stead for a violation of safe place provisions.” Id. In other words, that WTC
retained a contractor to maintain the safety of the area around the construction
project does not relieve WTC from its duty under the safe place statute. See
Bunce v. Grand & Sixth Bldg. Inc., 206 Wis. 100, 103, 238 N.W. 867 (1931)
(“[T]he duty of rendering the place safe is primarily and positively placed on the
owner, and that he [or she] procures an architect does not relieve him [or her] from
his obligation in that regard.”).

¶23 WTC does not assert that it does not have a duty under the safe place
statute. Nor does WTC assert that it is immune from liability because it delegated
its duty, and thus shifted its liability, to the third-party general contractor. Rather,
WTC asserts that it is immune from liability because it had only a discretionary
duty under the safe place statute, which it fulfilled by exercising its discretion in
retaining the contractor to comply with the safe place statute. Nusse points to no
authority that connects a party’s non-delegable duty under the safe place statute
with the party’s statutory immunity from liability for the discretionary exercise of
that duty.

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¶24 Finally, Nusse argues that WTC’s duty under WIS. STAT. § 101.11
was “specific, absolute, certain, and imperative,” i.e., ministerial, regarding the
plywood panels because “[t]here was no cause for debate or discretion needed to
determine the solution to abate the danger or to implement the solution.” See
Lister, 72 Wis. 2d at 301 (stating that a ministerial duty is “absolute, certain and
imperative.”). Nusse asserts that the only solution to the alleged plywood panel
hazard was either to “remove the plywood [panels] or [to] prevent the public from
entering the construction zone,” and that the failure of WTC to take either of these
acts “fall[s] within the definition of a ministerial task.”5 However, that Nusse
proposes two specific alternative solutions to the alleged plywood panel hazard
does not make the duty to comply with § 101.11 ministerial. A duty is ministerial
“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.”
Lister, 72 Wis. 2d at 301 (emphasis added). As explained above, § 101.11 does
not provide for such a specific duty.

II. Known and compelling danger exception

¶25 The known and compelling danger exception arises when “there
exists a known present danger of such force that the time, mode and occasion for
performance [are] evident with such certainty that nothing remains for the exercise
of judgment and discretion.” Lodl, 253 Wis. 2d 323, ¶38 (quoted source omitted).
“The theory of this exception is that when a danger known to a public officer or

5
Nusse cites the “accident waiting to happen” language in Voss v. Elkhorn Area Sch.
Dist., 2006 WI App 234, ¶19, 398, 297 Wis. 2d 389, 724 N.W.2d 420. However, that language
appears in this court’s discussion of the known and compelling danger exception, not the
ministerial duty exception, and is therefore inapt.

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employee is of such a compelling force, it strips that person of discretion or
judgment and creates an absolute, certain and imperative duty to act.” Heuser ex
rel. Jacobs v. Community Ins. Corp., 2009 WI 151, ¶23, 321 Wis. 2d 729, 774
N.W.2d 653. The application of the known and compelling danger exception to
governmental immunity is by nature “case-by-case.” Lodl, 253 Wis. 2d 323, ¶38.

¶26 Nusse argues in her appellant’s brief that the “known and
compelling danger” exception to governmental immunity applies in this case.
However, in the circuit court Nusse did not develop an argument regarding this
exception in her response to WTC’s summary judgment motion beyond her
conclusory reference to the exception; nor did she argue that exception at the
summary judgment hearing. Nor on appeal does she, in her reply brief, respond to
WTC’s arguments that the known and compelling danger exception does not
apply. We deem Nusse to have conceded that WTC’s arguments against the
application of the known and compelling danger exception here are correct. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (appellant’s failure to respond in reply brief to argument made in
response brief may be taken as a concession).

CONCLUSION

¶27 For the reasons stated, we affirm the circuit court’s judgment
granting WTC’s motion for summary judgment.

By the Court.—Judgment affirmed.

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

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