One of the most elementary and fundamental principles of our legal system is that citizens have the right to recover for their injuries from the person who injured them.  However, when that person is a government agent or employee, the injured person’s right to sue becomes constricted by the doctrine of governmental immunity.  Governmental immunity essentially protects the government from certain types of lawsuits.   It stems from the old English notion that the “King can do no wrong.” The state has since moved away from the idea of complete immunity. Following the 1962 case of Holytz v. City of Milwaukee, now “the rule is liability – the exception is immunity.” In other words, this case set the precedent for limited immunity for government and city workers.     This issue often comes up in car accident cases when drivers are injured by police officers or emergency vehicles during “hot pursuits,” high speed chases, or some other traffic accident.

In Wisconsin, the rule on governmental immunity can be found in Wis. Stat. § 893.80, which provides limited immunity for government officers, agencies or employees “for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” The court has found these words to be synonymous with discretion. Where the driver of an emergency vehicle causes an accident while acting within the scope of his or her duties, the driver generally cannot be liable for any injuries they caused.

However, the rule of immunity is not absolute.  There are several exceptions, including the known danger exception and the ministerial duty exception.

The known danger exception arises when a situation is so dangerous that it is clear the police officer or government employee is required to act in some specific way.  In those cases, the government will not be entitled to immunity.  For instance, in Cords v. Anderson, the Court found that a trail in a public park that ran near the edge of a cliff, and that did not have a guard, a handrail, or a warning sign, was a known danger.  As such, the government was liable for a park patron’s injuries when the patron fell off the trail and into a gorge.  Conversely, in Lodl v. Progressive Northern Insurance Co., the Wisconsin Supreme Court held that inoperative stoplights at an intersection did not constitute a known danger.  Thus, the police could not be sued for their actions in directing traffic, even though those actions may have caused a car accident.

The ministerial duty exception means that when the police officer is required by law to act in some specific way, immunity will not apply to shield the officer from suit.  In some cases, courts have looked to Wis. Stat. § 346.03 to determine whether or not an officer or emergency worker can be held liable for injuries they may have caused in the scope of their duties. Wis. Stat. § 346.03 holds that while emergency vehicles may be granted certain privileges while in the scope of their work, they must do so “with due regard under the circumstances for the safety of all persons.”  Several Wisconsin Courts have held that a government worker’s duty to act with due regard for safety under Wis. Stat. § 346.30 was a ministerial duty.  In Legue v. City of Racine, the Court found that a police officer who ran a red light on the way to the scene of an accident failed to act with due regard for safety pursuant to Wis. Stat. §346.30, and therefore the officer could be sued for the injuries she caused by running the red light.

If you are injured as the result of a governmental worker’s actions, talk to an attorney.  You may very well be able to recover, despite the immunity doctrine.