Wisconsin Court of Appeals finds school immune despite sexual abuse.

Byline: David Ziemer

Plaintiffs' attorneys have long complained about the distinction in governmental immunity cases that allow political corporations to be sued for negligence in not performing ministerial duties, but grant immunity for their negligent performance of discretionary duties. However, if ever there was a case with facts that warrant the Wisconsin Supreme Court to reconsider its precedents regarding governmental immunity, it may be Manning v. Necedah School District, No. 2005AP3093 (not recommended for publication), decided by the court of appeals in the school district's favor on Sept. 27. The alleged facts, and the school district's alleged indifference, if true, are shocking; yet, the court of appeals affirmed the grant of summary judgment to the district. Allegations Against District The plaintiffs, four schoolchildren, alleged that, over a period of four years, myriad school officials had ample reason to believe that John Lynch, a school bus driver, was molesting children on the bus. Those officials and employees included the principal; the principal's secretary (who was also Lynch's wife); a teacher; the supervisor of the drivers; other bus drivers; and a janitor. However, none of the officials and em-ployees took any action to prevent the abuse, other than talking to Lynch about it, or informing a supervisor who did nothing in response but talk to Lynch about it. Finally, a Juneau County sheriff's deputy discovered what was gong on, when his stepdaughter informed him that Lynch had touched the private parts of two other girls who rode the bus. A surveillance camera was placed on the bus, resulting in Lynch's arrest, and charges of 18 counts of illicit sexual conduct (he died before trial). Filing Suit Four children allegedly abused by Lynch sued the district, alleging a variety of negligence claims: failure to investigate allegations against Lynch; failure to properly supervise Lynch; failure to "take other appropriate actions to determine if Lynch was a threat to the safety of the minor students"; failure to supervise and instruct school personnel responsible for protecting students; and failure to follow and enforce school policies adopted to prevent sexual assaults against students. The cases were consolidated and Juneau County Circuit Court Judge Charles A. Pollex granted summary judgment in favor of the district. The circuit court held the district was immune from liability under sec. 893.80(4), because none of the...