Appeal from a judgment of the Circuit Court for Winnebago County: Robert A. Haase, Judge.
Petition to Review Denied.
Scott, C.j., Voss, P.j., and Brown, J.
The opinion of the court was delivered by: Scott
Wisconsin Department of Transportation engineers Charles R. Ryan and Dale J. Borell appeal from a denial of their motion to dismiss a complaint against them. The complaint was filed as a result of an automobile accident at an intersection that is under their supervision. The sole issue on appeal is whether Ryan and Borell can be held personally liable for their decisions concerning the placement of signs at the intersection where the accident occurred. Because we conclude that both engineers exercised judgment within the scope of their lawful authority, we reverse.
The southbound exit ramp from Highway 41 to Neenah intersects with North Street, an east-west roadway. At the time relevant to the instant case, stationary stop signs were posted at the intersection for both eastbound and westbound traffic on North Street; no stop sign was posted for traffic on the ramp. In June 1977, Mitchell Hjerstedt was driving on the southbound exit ramp. As he reached the North Street intersection, his car was struck by a westbound vehicle that ran the stop sign. Hjerstedt was seriously injured in the collision.
Hjerstedt filed a complaint against Robert Schultz, the driver of the westbound car. In addition, Hjerstedt filed a complaint against engineers Ryan and Borell, as individuals, alleging that they were negligent in their placement of signs at the intersection. At the close of Hjerstedt's case against the engineers, Ryan and Borell moved for dismissal on the grounds that Hjerstedt had failed to prove that either of them had violated a ministerial duty, and, hence, they were immune from liability. The court took the motion under advisement. At the close of evidence, Ryan and Borell moved for a directed verdict and a dismissal. Their motion was denied. The jury returned a verdict allocating seventy-five percent of the negligence to Schultz, ten percent to Ryan, and fifteen percent to Borell.
The issue before us is whether the trial court erred in denying Ryan and Borell's motion for dismissal of the complaint against them. We conclude that the trial court should have dismissed the complaint.
Under sec. 805.14(4), Stats., "any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict or dismissal or by moving the court to find as a matter of law upon any claim or defense or upon any element or ground thereof." Section 805.14(1) provides:
No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
Ryan and Borell correctly assert that they cannot be held personally liable for Hjerstedt's injuries unless Hjerstedt established that they violated a "ministerial duty" with respect to the intersection where the accident happened. They argue that none of the evidence introduced at trial demonstrated that either one had breached such a duty. We agree.
Under the general rule, a public officer is not personally liable to one injured as a result of an act performed within the scope of his or her official authority and in the line of official duty. Lister v. Board of Regents of the University of Wisconsin System, 72 Wis. 2d 282, 300, 240 N.W.2d 610, 621 (1976). Numerous public policy considerations support the rule: (1) the danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates, and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office. Id. at 299, 240 N.W.2d at 621.
An exception to the immunity rule is that an officer is liable for damages resulting from his or her negligent performance of a purely ministerial duty. Id. at 300-01, 240 N.W.2d at 621-22. "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. at 301, 240 N.W.2d at 622.
In keeping with the public policies that support the rule of immunity for public officials, the Wisconsin Supreme Court has determined that it does not want to give juries the opportunity to second-guess the "reasonableness and safety" of any legally adequate arrangement of signs used to control traffic at an intersection. Raisanen v. City of Milwaukee, 35 Wis. 2d 504, 514, 151 N.W.2d 129, 134 (1967). In the absence of a statute or regulation that mandates a sign placement, whether or not to post a stop, warning or yield sign at a given location is a matter that requires the exercise of judgment. See Dusek v. Pierce County, 42 Wis. 2d 498, 506, 167 N.W.2d 246, 250 (1969). Even where an official fails to recognize that traffic at a given intersection is hazardous and fails to warn highway users of the danger, the official is not subject to personal liability for his mistake. See id. at 505, 167 N.W.2d at 250.
Hjerstedt points out that in Cords v. Anderson, 80 Wis. 2d 525, 542, 259 N.W.2d 672, 680 (1977), the supreme court held a park manager personally liable for his failure to recommend that warning signs should be placed along a dangerous path located in a wilderness area belonging to the state. A part of the path was within a single footstep of a one hundred foot dropoff that was not readily discernible to hikers. The court stated that especially because people were allowed to use the path after dark, the location of the path posed an obvious danger to the public. The park manager admitted that he was aware of the danger. The court held that on the facts of the case, ...