Wisconsin Supreme Court Limits Firefighter Immunity Protection

The Wisconsin Supreme Court issued an important ruling today on firefighter liability under state law. The case of Brown et al v. Acuity et al arose out of a vehicle accident involving a volunteer firefighter responding to an alarm.

On June 8, 2008, Lt. Parnell Burditt with the Okauchee Fire Department was responding to the station for an alarm when he collided with a vehicle carrying Marilyn M. Brown and Delores M. Schwartz. The accident occurred at an intersection controlled by a traffic light. Lt. Burditt stopped for the red light. He was displaying flashing lights and another vehicle stopped to allow him to proceed. As he started through the intersection he collided with a third vehicle containing Brown and Schwartz that he did not see.

Brown, Schwartz and their insurers filed suit against Lt. Burditt, OFD, and their insurers alleging negligence. The trial court dismissed the suit concluding that Lt. Burditt was entitled for immunity under Wisconsin Statute § 893.80(4). Which reads as follows:

(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

The trial court concluded that Lt. Burditt was acting with the scope of his employment as an emergency responder, and was entitled to immunity. The Wisconsin Court of Appeals affirmed and the cased ended up before the Wisconsin Supreme Court.

The plaintiffs argued two key points to the Wisconsin Supreme Court. First they argued that Lt. Burditt was not acting within the scope of his employment as a firefighter while he was responding to the station in his personally owned vehicle (POV) and thus was not entitled to public officer immunity under §893.80(4). Second, they alleged that even if he was acting within the scope of his employment, he was not entitled to immunity because he was carrying out a ministerial as opposed to a discretionary act.

The plaintiffs’ first argument was essentially that a volunteer firefighter responding to the fire station for an alarm is nothing more than an employee commuting to work. They pointed to a line of cases that said commuters are not employees until they arrive at work. From this they argued that a firefighter driving to the fire station is outside the scope of employment and not entitled to immunity protection.

The Wisconsin Supreme Court distinguished the commuter cases finding that a firefighter responding to the fire station is within the scope of employment as soon as he/she receives the alarm and makes the decision to respond. The court pointed to the fact that unlike a commuter, once a firefighter starts responding to an alarm he is subject to the orders and commands of his superiors. The court concluded that volunteer firefighters responding to alarms are acting within the scope of their employment for purposes of §893.80(4).

The court then moved on to the second question, whether Lt. Burditt was exercising discretion or acting in a ministerial function. The court acknowledged that a number of exceptions to immunity protection under §893.80(4) exist, and one of them involves employees who are engaged in tasks that are “ministerial” in nature.

The court described ministerial as follows:

A public officer's duty is ministerial only when it is absolute, certain and imperative, involving the performance of a specific task that the law imposes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion. … If liability is premised on either the negligent performance or non-performance of a ministerial duty, then immunity will not apply [internal quotations removed].

 

The court acknowledged that to be eligible for immunity protection under §893.80(4) an official must be exercising discretion and not performing a ministerial act.  The court concluded that because state traffic laws required Lt. Burditt to stop at the red light until it turned green, and did not authorize an exception, he was under a ministerial duty to comply. In other words Lt. Burditt had no discretion to proceed or not proceed through the red light.

As a result, the supreme court remanded the case back to the trial court for a trial on the issue of whether Lt. Burditt was in fact negligent in causing the accident.

Here is a copy of the ruling: Brown v Acuity

There is one more point I want to mention. In rendering its decision, the court may have muddied the waters a bit by suggesting that if Lt. Burditt had used flashing lights and audible warning devices (and qualified as an emergency vehicle) he likely would have been exercising discretion, and thus been entitled to immunity protection. “Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity.”

This is dangerous territory and commenters have already seized on this part of the ruling to proclaim that if you don’t use both lights and siren you have no liability protection. In my mind that is a dangerous kind of reasoning.

The best liability protection any of us can have when driving is to avoid accidents. When you avoid accidents you don’t have to worry about immunity protection. Driving carefully, and obeying the traffic laws is in my opinion is a far better way of protecting yourself than turning on a siren and hoping you will have immunity.

My guess is the court was speculating – or perhaps responding to arguments made by attorneys in the case. It is a stretch and IMHO a mistake to read this opinion as suggesting that firefighters need to use their audible warning devices as a means to obtain immunity protection.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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