Dr. Randall Melchert, Happy Hobby, Inc. and The Warren V. Jones and Joyce M. Jones Revocable Living Trust, Plaintiffs-Appellants-Petitioners,
Pro Electric Contractors and Secura Insurance, A Mutual Company, Defendants-Respondents. v.
Submitted on Briefs: oral argument: November 9, 2 016
OF A DECISION OF THE COURT OF APPEALS Reported at 363 Wis.2d
654, 862 N.W.2d 902 (Ct. App. 2016 - Unpublished)
Court Waukesha County James R. Kieffer Judge
the plaintiff-appellants-petitioners, there was a brief by
Rudolph J. Kuss, and Stevens & Kuss, S.C., Brookfield,
and oral argument by Rudolph J. Kuss.
the defendants-respondents, there was a brief by Amy M.
Freiman, Rick E. Hills and Hills Legal Group, LTD, Waukesha,
and oral argument by Amy M. Freiman.
MICHAEL J. GABLEMAN, J.
We review an unpublished decision of the court of appeals
that affirmed the Waukesha County circuit
court's grant of summary judgment in favor of Pro
Electric Contractors ("Pro Electric"), after Pro
Electric was sued for negligence in connection with its work
as a contractor on a government construction project.
Melchert v. Pro Electric Contractors, No.
2013AP2882, unpublished slip op. (Wis. Ct. App. Mar. 11,
Dr. Randall Melchert, Happy Hobby, Inc., and The Warren
V. Jones and Joyce M. Jones Revocable Living Trust
("Petitioners") brought suit after Pro Electric
severed a sewer lateral during an excavation, because the
broken lateral caused flooding damage to property that
Petitioners owned and occupied. Pro Electric moved for
summary judgment, asserting immunity as a governmental
contractor pursuant to Wis.Stat. §
893.80(4).While Pro Electric admitted to severing the
sewer lateral, it argued that the damage occurred because of
construction design decisions made by the Wisconsin
Department of Transportation ("DOT"), and that Pro
Electric was merely implementing DOT's decisions.
Following a hearing, the circuit court granted the motion and
dismissed the case. The court of appeals affirmed.
This case requires us to address the extent to which
governmental immunity protects a private contractor
implementing a construction design chosen by a governmental
entity. We hold that Pro Electric is immune from liability
for severing the sewer lateral because it acted in accordance
with reasonably precise design specifications adopted by a
governmental entity in the exercise of its legislative,
quasi-legislative, judicial, or quasi-judicial functions.
This case also requires us to interpret and apply certain
provisions of the Digger's Hotline statute, codified at
Wis.Stat. § 182.0175. Petitioners allege that Pro
Electric caused their damages not only by severing the sewer
lateral, but also by backfilling the excavation without
inspecting the sewer lateral for damage and allowing repairs
to be made, as required by § 182.0175(2) (am)
6.-6m. Pro Electric is not immune from liability
as to this second allegation, because DOT did not provide Pro
Electric with reasonably precise specifications for
inspecting sewer laterals for damage before backfilling
pursuant to § 182.0175(2)(am)6.-6m. Ultimately, however,
we affirm the circuit court's grant of summary judgment
on the factual record before us. We do so because the
undisputed material facts do not support a reasonable
inference that Pro Electric failed to comply with its duties
under § 182.0175(2)(am).
We begin with a brief factual background and description of
the procedural history, and we next set forth the applicable
principles of governmental contractor immunity. We apply
these principles respectively to the two aspects of Pro
Electric's conduct that allegedly caused Petitioners'
damages: (1) Pro Electric's conduct in severing the sewer
lateral, and (2) Pro Electric's conduct in backfilling
the excavation without inspecting the sewer lateral for
damage and allowing repairs to be made, pursuant to Wis.Stat.
§ 182.0175(2) (am) . Finally, we perform the necessary
analysis to determine whether Pro Electric is entitled to
We have set forth the facts that appear in the record and
which the parties do not dispute. On July 25, 2011, DOT
approved a plan for the improvement of a five-mile stretch of
State Highway 190, also known as Capitol Drive, in Brookfield
("Project Plan"). The Project Plan spanned over 1,
000 pages and contained specifications and detailed diagrams
for the installation of new asphalt pavement, curbs, gutters,
sidewalks, and traffic signals. Additionally, the DOT Highway
Work Proposal for the project included over 100 pages of
"Special Provisions" covering the various aspects
of the project, including a section on requirements regarding
Following the bidding process, DOT awarded the project to
Payne & Dolan as the general contractor. On January 5,
2012, Payne & Dolan entered into a subcontractor
agreement with Pro Electric to perform work on
certain parts of the project, including the installation of
traffic signals. For some of the traffic signals, the Project
Plan directed Pro Electric to install new concrete bases to
support the traffic signal poles.
This case concerns only the installation of the concrete base
identified in the Project Plan as "SB2, " located
at the northeast corner of Capitol Drive and 128th Street and
identified by specific coordinates in the Project
Plan. The Project Plan directed Pro Electric to
install a "Type 10" concrete base to support the
traffic signal pole for SB2 and to use a circular auger to
drill the hole in the ground for the base. The Project Plan
specified that a Type 10 base required a hole that was 14
feet deep and 30 inches wide.
At least three days before Pro Electric started the
excavation for SB2, Pro Electric contacted Digger's
Hotline. The statute requires an excavator to contact
Digger's Hotline at least three days before beginning any
excavation. Wis.Stat. § 182.0175(2)(am)l. Under
the statute, Digger's Hotline is then responsible for
contacting the owners of transmission
facilitiesin the area, and the owners are responsible
for ensuring that such facilities are marked. §
182.0175(1) (d)6., (2m)(a)2. Pro Electric instructs its
employees to inspect the area visually for these markings
before beginning excavation.
Pro Electric's employees augered the hole for SB2 on
August 22, 2012. Pro Electric used a circular auger attached
to a truck at the end of a boom. Two of Pro Electric's
employees performed the work: one was assigned to operate the
auger from the truck and the other to monitor the auger and
periodically clean it with a shovel. As Craig Clements,
president of Pro Electric, stated in his affidavit, drilling
a hole with a circular auger "creates a situation where
the technician operating the auger has no ability to
see into the hole which is being augered."
DOT retained an engineering firm, HNTB, to ensure Pro
Electric's compliance with the Project Plan, and an HNTB
engineer, Julie Keller, was onsite to supervise the augering
work. The DOT Project Plan warned that "there may be
other utility installations within the project which are not
shown" on the diagram, but in anticipation of a
contractor encountering such unexpected utility
installations, it further provided that "the engineer
may adjust the locations of items under this contract to
avoid conflict with existing utility facilities." Keller
neither instructed nor authorized Pro Electric to change the
location of SB2. Nothing in the record suggests that
either Pro Electric or Keller was aware, or had any reason to
be aware, of any utility facilities in the way of the
excavation for SB2. Pro Electric proceeded to complete the
Type 10 concrete base in accordance with the specifications
set forth in the DOT Project Plan.
At some point after the project was completed, sewage backed
up into an adjoining commercial property. The property was
owned by The Warren Jones and Joyce M. Jones
Revocable Living Trust and occupied by Dr. Randall Melchert
and Happy Hobby, Inc., as tenants. It was subsequently
discovered that the sewer backup occurred because an
underground sewer lateral serving Petitioners' property
ran directly through the location of SB2, such that Pro
Electric had severed that lateral while constructing SB2.
Nothing in the record suggests that either Pro Electric or
HNTB was aware at the time of construction that Pro Electric
had severed anything. The sewer lateral had been made of
clay, and the surrounding soil was also clay, thus making it
unlikely that indicia of the damage would have been apparent
among the material the auger was bringing up.Clements
stated in his affidavit that "[n]o employee of Pro
Electric ever reported to me, HNTB, or the general contractor
that any sewer lateral was struck during the installation of
SB2. All Pro Electric employees were instructed that any such
incident would need to be reported immediately."
On March 1, 2013, Petitioners sued Pro Electric in the
Waukesha County circuit court. Their complaint alleged that
Pro Electric negligently severed the sewer lateral and then
completed the project without repairing it. The complaint
further alleged that, by doing so, Pro Electric thereby
caused flooding and water damage to Petitioners'
property, along with monetary losses, inconvenience, and
other damages. In its answer, Pro Electric asserted immunity
from suit as a governmental contractor. The court held a
summary judgment hearing on Pro Electric's motion on
November 18, 2013.
In an oral ruling following the hearing, the circuit court
granted summary judgment in favor of Pro Electric, ruling
that it was immune from liability. The court concluded that,
"under any reasonable view of the evidence, DOT design
choices regarding the location and the depth of the traffic
light caused this accident here. Those relevant design
choices were made by the government." The court did not
consider whether the Digger's Hotline statute, Wis.Stat.
§ 182.0175, imposed additional duties on Pro Electric,
because the court determined that the statute did not apply.
Therefore, the circuit court granted summary judgment to Pro
Electric and dismissed Petitioners' case.
The court of appeals affirmed, concluding that Pro Electric
was immune from liability for any damages that resulted from
severing the sewer lateral. The court of appeals determined
that the "project design decision [of] where and how to
install the traffic light, as implemented by Pro Electric, is
entitled to immunity under Wis.Stat. § 893.80(4)
'because it was made through the exercise of a
legislative, quasi-legislative, judicial, or quasi-judicial
function of the governmental entity.'"
Melchert, unpublished slip op., ¶ll (quoting
Showers Appraisals, LLC v. Musson Bros., 013 WI 79');">2013 WI 79,
¶34, 350 Wis.2d 509, 835 N.W.2d 226');">835 N.W.2d 226) . The court also
examined Petitioners' allegation that Pro Electric was
negligent in "backfilling the hole without repairing the
severed sewer lateral, " concluding that the record
"does not support a causal connection between
[Petitioners'] specific allegations of negligence . . .
and the alleged injury." Id.,
STANDARD OF REVIEW
We review a grant of summary judgment independently, using
the same methodology as the circuit court. Oneida Cty.
Dep't of Soc. Servs. v. Nicole W., 2007 WI 30,
¶8, 299 Wis.2d 637, 728 N.W.2d 652. "The judgment
sought shall be rendered 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.
"We review questions of statutory interpretation and
application independently, but benefiting from the
discussions of the circuit court and the court of
appeals." State v. Grunke, 2008 WI 82,
¶IO, 311 Wis.2d 439, 752 N.W.2d 769. "[D]etermining
whether governmental immunity exists for particular conduct
requires the application of legal standards to the facts
found, which is also a question of law for our independent
review." Showers, 350 Wis.2d 509, ¶21.
General Principles of Governmental Contractor Immunity
Our discussion begins with the longstanding principle that a
governmental entity is immune from liability for acts done
"in the exercise of its legislative or judicial or
quasi-legislative or quasi-judicial functions."
Holytz v. City of Milwaukee, 17 Wis.2d 26, 40, 115
N.W.2d 618 (1962). The legislature has codified this
principle in Wis.Stat. § 893.80(4). Showers,
350 Wis.2d 509, ¶24 (citing Coffey v. City of
Milwaukee, 74 Wis.2d 526, 532, 247 N.W.2d 132 (1976)).
As we have recognized, immunity under § 893.80(4)
"is available to a governmental entity only for those
governmental decisions that are made as an exercise of
'legislative, quasi-legislative, judicial or
quasi-judicial functions.'" Showers, 350
Wis.2d 509, ¶35. "Legislative and
quasi-legislative functions generally refer to those policy
choices made in an official capacity, e.g., when a
governmental entity chooses one project design over
another." Id., ¶26 (citing Estate of
Lyons v. CNA Ins., 07 Wis.2d 446');">207 Wis.2d 446, 453, 558 N.W.2d 658');">558 N.W.2d 658
(Ct. App. 1996)).
It is also well established that a governmental entity's
immunity may extend to private contractors acting as agents
of the governmental entity. Lyons, 207 Wis.2d at
457-58. A contractor asserting governmental immunity must
prove two elements. First, the contractor must show that it
was an "agent" of the governmental entity under
"the Lyons test, i.e., whether the governmental
entity approved reasonably precise specifications that the
governmental contractor adhered to when engaging in the
conduct that caused the injury." Showers, 350
Wis.2d 509, ¶37.
Second, "in addition to satisfying the Lyons
test ... a contractor asserting immunity must be able to
demonstrate that the conduct for which immunity is sought was
the implementing of a governmental entity's decision made
during the exercise of the entity's legislative,
quasi-legislative, judicial, or quasi-judicial
functions." Id., ¶45. This is so because
the contractor's immunity "is dependent upon the
immunity of the governmental act or decision that the agent
was implementing when it caused an injury."
Id., ¶35. If that act or decision was
made during the exercise of the governmental entity's
legislative, quasi-legislative, judicial, or quasi-judicial
functions, the governmental entity's immunity may extend
to an agent implementing that act or decision. Id.,
For a private entity such as Pro Electric that is contracting
with a governmental entity, this is where immunity ends. A
contractor is not immune from liability if the governmental
entity did not direct the injury-causing conduct with
reasonable precision in the exercise of its legislative,
quasi-legislative, judicial, or quasi-judicial functions. As
we explained in Showers, the DOT contractor in that
case was not immune from allegations of negligent
construction work, in part because the contractor had not
demonstrated that the allegedly negligent acts "were the
implementation of a governmental entity's exercise of
legislative, quasi-legislative, judicial, or quasi-judicial
functions." Id., ¶54. The overarching
principle is that a "governmental contractor [is]
entitled to the same level of immunity as would be accorded
to the governmental entity had it been sued directly . . .
." Id., ¶31 (citing Lyons, 207
Wis.2d at 454).
Legislative or Quasi-Legislative Nature of Construction
Decisions regarding the design and placement of individual
elements incorporated into larger government construction
projects have been held to be legislative or
quasi-legislative decisions. For example, in Allstate
Insurance v. Metropolitan Sewerage Commission of County of
Milwaukee, 8 0 Wis.2d 10, 258 N.W.2d 148');">258 N.W.2d 148 (1977), a
driver was injured in an accident with a truck which was
servicing a manhole located in the middle of the street. The
plaintiffs claimed that the relevant governmental entity was
negligent for placing the manhole in that particular
location, id. at 14, but the court held that
governmental immunity applied. "[T]he decisions of the
[governmental entity] in planning and designing the system in
question, including the placement of the manhole, were
legislative acts performed in response to its authority to
plan and construct sewer systems . . . ." Id.
at 15-16 (footnote omitted). Similarly, "decisions
concerning the adoption of a waterworks system, the selection
of the specific type of pipe, the placement of the pipe in
the ground, and the continued existence of such pipe"
are entitled to immunity. Milwaukee Metro. Sewerage Dist.
v. City of Milwaukee, 2005 WI 8, ¶60, 277 Wis.2d
635, 691 N.W.2d 658. It is, indeed, well settled that
"acts of designing, planning, and implementing are
legislative or quasi-legislative acts subject to immunity
under [Wis. Stat.] § 893.80(4)." Bostco LLC v.
Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶41
n.21, 350 Wis.2d 554, 835 N.W.2d 160');">835 N.W.2d 160.
We now apply the foregoing principles to the two aspects of
Pro Electric's conduct that allegedly caused
Petitioners' damages: (1) Pro Electric's conduct in
severing the sewer lateral, and (2) Pro Electric's
conduct in backfilling the excavation without inspecting the
sewer lateral for damage and allowing repairs to be made,
pursuant to Wis.Stat. § 182.0175(2)(am). We address each
allegation in turn.
Electric is Immune From Liability For Severing the Sewer
Pro Electric is immune from liability for severing the sewer
lateral, because the DOT Project Plan provided reasonably
precise specifications for Pro Electric's augering, Pro
Electric severed the sewer lateral by adhering to those
specifications, and DOT adopted the specifications in the
exercise of its legislative, quasi-legislative, judicial, or
Petitioners conceded at oral argument that the specifications
in DOT's Project Plan for Pro Electric's augering
were reasonably precise and that Pro Electric complied with
those specifications exactly. While we are not bound by the
concessions of the parties, see State v. Hunt, 2014
WI 102, ¶42 n.ll, 360 Wis.2d 576, 851 N.W.2d 434, we
agree that a factual basis exists for Petitioners'
As for reasonable specificity, DOT directed the exact
location for the augering using measured coordinates and
specified the dimensions of the augering by directing that
SB2 was to be constructed with a Type 10 base. A Type 10 base
required a hole with particular dimensions: 30 inches in
diameter and 14 feet deep, with between 2 and 4 inches of
concrete exposed above ground. These dimensions gave Pro
Electric discretion of no more than two inches as to the
depth of the hole. DOT also specified the method of
excavation: "Bases shall be excavated by use of a
circular auger." Clements testified that this was a
precise instruction, because variations among types of augers
concern only the size, type of teeth, or the kind of truck on
which the auger is mounted; otherwise, "[a]n auger's
an auger." Given these facts and the fact that
Petitioners do not contest this point, we have no difficulty
concluding that DOT's specifications for the augering
were reasonably precise.
Petitioners have also conceded that, when Pro Electric
augered the hole for the concrete base for SB2, Pro Electric
followed DOT's reasonably precise specifications as to
the location and dimensions of the hole and the method of
augering. Although Keller, the DOT-retained engineer, had
authority to change the location of SB2, Pro Electric did
not. As the circuit court concluded, Pro Electric "did
what they were told to do by the DOT. In my opinion, there is
no genuine issue of material fact as it relates to
that." We agree, and we therefore conclude that Pro
Electric complied with DOT's reasonably precise
specifications as to the specific augering activities that
severed the sewer lateral.
Finally, DOT adopted the specifications for Pro
Electric's augering in the exercise of its legislative or
quasi-legislative functions. The project at issue was
governed by the DOT Project Plan, which was prepared at
DOT's direction and approved by DOT prior to the start of
the project. By providing the final approval to the entire
Project Plan, DOT thereby made all the relevant decisions
about which traffic signals to replace, where to put them,
and even the precise size of concrete bases to use.
In Allstate, we concluded that "the decisions
of the [governmental entity] in planning and designing the
system in question, including the placement of the manhole,
were legislative acts performed in response to its authority
to plan and construct sewer systems . . . ."
Allstate, 80 Wis.2d at 15-16 (footnote omitted).
Similarly, in choosing to approve the Project Plan in this
case, DOT was exercising its legislatively delegated
authority to "direct, undertake and expend state and
federal aid for planning, promotion and protection activities
in the areas of highways, motor vehicles, [and] traffic law
enforcement . . . ." Wis.Stat. § 85.02(1). The
placement of a traffic signal in a highway project is akin to
the placement of a manhole in a sewer system, and "[i]t
is not for the court to be judge or jury to 'second
guess' [governmental entities] in these determinations
nor to find they are liable for negligence."
Allstate, 80 Wis.2d at 16.
In light of the foregoing, we agree with the circuit court
and court of appeals and hold that Pro Electric severed the
sewer lateral as an agent implementing a legislative or
quasi-legislative DOT design decision. DOT-not Pro Electric-
made the decision to auger that particular hole in that
particular place, and all of the evidence suggests that Pro
Electric severed the sewer lateral not because of the manner
in which Pro Electric chose to do the augering, but simply
because the Project Plan directed Pro Electric as to exactly
where and how to auger.
Electric Is Not Immune From Liability For Backfilling the