Wisconsin's sovereign immunity law could change: Ministerial duty exception at issue in case.

Byline: David Ziemer

A two-justice concurrence in a Wisconsin Supreme Court opinion last term urged that governmental immunity be abolished for torts committed by state employees, even if the acts were committed within the employee's discretion, as opposed to acts in violation of an absolute ministerial duty.

Earlier this month, the court accepted review in a case that may give it the opportunity to do just what that concurrence advocated. Pries v. McMillon, No. 2008AP89.

Historically, states and municipalities were immune from liability in tort under the doctrine of sovereign immunity. But in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), the Supreme Court abrogated immunity, a holding that was subsequently codified by the legislature (currently sec. 893.80). The law contained limitations on damages, and required the filing of a notice of claim before filing suit.

But in subsequent cases, including Kimps v. Hill, 200 Wis.2d 1, 546 N.W.2d 151 (1996), the court judicially crafted a rule giving broad immunity from liability for discretionary acts, with an exception for the negligent performance of a purely ministerial duty.

Earlier this year, however, Justice David T. Prosser wrote a lengthy concurrence in a governmental immunity case, joined by Justice N. Patrick Crooks, that criticized the distinction.

So far as government responsibility for torts is concerned, immunity has become the rule and liability has become the rare exception, Prosser wrote. Justice has been confined to a crawl space too narrow for most tort victims to fit. Umansky v. ABC Ins. Co., 2009 WI 82.

State Fair injury

The Pries case, which the Court agreed to hear on Nov. 18, involves a lawsuit by an inmate at the House of Correction who was working at the State Fair. He was injured while disassembling a horse stall and brought suit...