                                                              2013 WI 79

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2011AP1158
COMPLETE TITLE:         Showers Appraisals, LLC, Real Marketing, LLC and
                        Mark W. Showers,
                                  Plaintiffs-Appellants-Petitioners,
                             v.
                        Musson Bros., Inc. and West Bend Mutual
                        Insurance Company,
                                  Defendants-Respondents-Cross-
                        Appellants,
                        League of Wisconsin Municipalities Mutual
                        Insurance and City of Oshkosh,
                                  Defendants-Cross-Respondents.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 343 Wis. 2d 623, 819 N.W.2d 316
                                  (Ct. App. 2012 – Published)
                                     PDC No: 2012 WI App 80

OPINION FILED:          July 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 13, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Winnebago
   JUDGE:               Barbara H. Key

JUSTICES:
   CONCURRED:           CROOKS, J., ABRAHAMSON, C.J., BRADLEY, J.,
                        concur. (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiffs-appellants-petitioners,   there   were
briefs by Daniel J. Posanski and Gerardo Medina Jr. and Dempsey
Law Firm LLP, Oshkosh, and oral argument by Daniel J. Posanski.


       For defendant-cross-respondents, there was a brief by Bree
A. Madison and Richard J. Carlson, and Silton Seifert Carlson
S.C., Appleton, with oral argument by Bree A. Madison.
     For the defendants-respondents-cross-appellants, there was
a brief by David G. Dudas and Joseph P. Putzstuck, and McCanna,
Dudas & Kewley, S.C., Appleton, with oral argument by David G.
Dudas.


     An amicus curiae brief was filed by Martha H. Heidt and
Bye, Goff & Rohde, Ltd., River Falls, on behalf of the Wisconsin
Association of Justice.




                               2
                                                                    2013 WI 79
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2011AP1158
(L.C. No.    2009CV1438)

STATE OF WISCONSIN                       :             IN SUPREME COURT

Showers Appraisals, LLC, Real Marketing, LLC
and Mark W. Showers,

              Plaintiffs-Appellants-Petitioners,

      v.
                                                                 FILED
Musson Bros., Inc. and West Bend Mutual
Insurance Company,                                          JUL 18, 2013
              Defendants-Respondents-Cross-                    Diane M. Fremgen
              Appellants,                                   Clerk of Supreme Court


League of Wisconsin Municipalities Mutual
Insurance and City of Oshkosh,

              Defendants-Cross-Respondents.




      REVIEW of a decision of the Court of Appeals.              Reversed and

remanded.



      ¶1      PATIENCE DRAKE ROGGENSACK, J.       This is a review of a

published decision of the court of appeals1 that affirmed the

Winnebago County Circuit Court's2 grant of summary judgment in
      1
       Showers Appraisals, LLC v. Musson Bros., Inc., 2012 WI App
80, 343 Wis. 2d 623, 819 N.W.2d 316.
      2
          The Honorable Barbara H. Key presided.
                                                                   No.    2011AP1158



favor of Musson Bros., Inc. (Musson).                   This case arises from

flood damage to Mark Showers' property in the City of Oshkosh,

where Musson was conducting sewer removal and installation as a

contractor for the Wisconsin Department of Transportation (DOT).

In granting and affirming summary judgment, the circuit court

and court of appeals concluded that Musson was a governmental

contractor      entitled   to   immunity      under    Wis.   Stat.    § 893.80(4)

(2011–12),3 based on the court of appeals' decision in Estate of

Lyons v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658

(Ct. App. 1996).

       ¶2      We conclude that where a third party's claim against a

governmental        contractor4 is    based    on     the   allegation    that the

contractor negligently performed its work under a contract with

a governmental entity, the governmental contractor must prove

both that the contractor meets the definition of "agent" under

Wis. Stat. § 893.80(4), as set forth in Lyons, and that the

contractor's act is one for which immunity is available under

§ 893.80(4).        Specifically, we conclude that for a contractor to

come       within   § 893.80(4)'s    shield    of   immunity,    the     contractor

       3
       All subsequent references to the Wisconsin Statutes are to
the 2011–12 version unless otherwise indicated.
       4
       The court of appeals in Estate of Lyons v. CNA Insurance
Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996), used
the term "governmental contractor" to refer to those independent
private contractors that it concluded may be entitled to
immunity under Wis. Stat. § 893.80(4), based on the nature of
their contractual relationships with governmental entities.   We
continue this usage, but emphasize that the contractors involved
are private entities whose affiliation with the government is
through a contractual relationship for a particular project.

                                        2
                                                                     No.     2011AP1158



must prove it was acting as the governmental entity's agent in

accordance with reasonably precise specifications, as set forth

in Lyons.     In this case, Musson has not shown that it was acting

as a governmental entity's agent for purposes of the alleged

injury-causing conduct because Musson was not acting pursuant to

"reasonably precise specifications."

      ¶3     Moreover, pursuant to the plain language of Wis. Stat.

§ 893.80(4),      we   also    conclude    that    a   governmental        contractor

seeking to assert the defense of immunity should clearly allege

in the pleadings why the injury-causing conduct comes within a

legislative,       quasi-legislative,          judicial      or     quasi-judicial

function as set out in § 893.80(4).                    In the context of this

case, a governmental contractor would be required to assert that

it was implementing a decision of a governmental entity that was

made within the scope of the governmental entity's legislative,

quasi-legislative,           judicial     or      quasi-judicial           functions.5

Adherence    to   these      statutory    requirements       for    immunity     under

§ 893.80(4) will avoid extending blanket immunity for claims of

negligently performed work against governmental contractors when
the   sole   basis     for    immunity    is   that    the   work   was     performed

      5
       In other cases we have used the term "discretionary" to
refer to those acts that are within Wis. Stat. § 893.80(4)'s
"legislative,   quasi-legislative,  judicial or   quasi-judicial
functions."   See, e.g., Lifer v. Raymond, 80 Wis. 2d 503, 511–
12, 259 N.W.2d 537 (1977) (citing § 893.80(4)'s predecessor,
Wis. Stat. § 895.43(3)). Our use of the statutory terms in this
case, rather than the designation "discretionary," is not
intended as a change to the immunity analysis, but rather as a
recognition that the applicable standard is based on precise
statutory language. See infra, ¶35.

                                          3
                                                                             No.    2011AP1158



pursuant to a contract with a governmental entity.                                  Allowing

governmental        contractors       to   claim       immunity    in   such       instances

would vastly expand the doctrine of governmental immunity.

       ¶4     Therefore,       based       on       Musson   failing     to        meet    the

standard      for   a   Wis.    Stat.      § 893.80(4)       agent,     Musson       is    not

entitled      to    immunity     under          § 893.80(4).        Additionally,           we

conclude that the facts set out in support of summary judgment

would not support a claim of governmental contractor immunity

because Musson has failed to assert that the acts for which it

claims immunity were "acts done in the exercise of legislative,

quasi-legislative,         judicial        or       quasi-judicial      functions,"         as

required under § 893.80(4).                Accordingly, Showers' claims should

be analyzed no differently than negligence claims against other

contractors.

       ¶5     Musson may therefore be liable if Showers is able to

show that in performing its work under the government contract,

Musson had a duty of due care to Showers, that Musson breached

that duty, and that such breach was a cause of Showers' damages.

Accordingly,        we reverse and          remand      to   the   circuit         court   for
further proceedings on Showers' claims against Musson consistent

with   this    opinion.         Additionally,           because    Musson's         and    the
City's      cross-claims       were   not       fully   litigated       in    the    circuit

court and were not addressed by the court of appeals, those
claims should be addressed on remand.

                                  I.       BACKGROUND

       ¶6     In September 2007, the DOT and the City of Oshkosh

entered into a state–municipal agreement for a sewer improvement
                                                4
                                                                         No.   2011AP1158



project along a stretch of Ohio Street in Oshkosh, which is also

State Highway 44.          Under the agreement, the State (through the

DOT)    would     provide     substantial          financing      for    the    project,

although the City was responsible for funding and construction

of sanitary sewers and water mains, as well as the sealing of

concrete joints.          The DOT would remain involved in the project,

including overseeing the bidding process and being onsite during

construction.

       ¶7      The DOT opened the Ohio Street project for bidding,

informing potential bidders that, as contractors, they would be

"responsible for any damages to property or injury to persons

occurring       through     their     own     negligence       or     that     of     their

employees or agents, incident to the performance of work under

this contract, pursuant to the Standard Specifications for Road

and    Bridge    Construction        applicable       to   this     contract."         The

specifications         applicable     to    the     project    were     the    State    of

Wisconsin       Standard    Specifications          for    Highway      and    Structure

Construction.          These Standard Specifications consist of hundreds

of     pages    of      directions     and        specifications        regarding       how
governmental         contractors     are     to    perform     certain       aspects    of

contracted projects.
       ¶8      After    completion     of    the     bidding      process,      the    DOT

awarded the contract to Musson, and the two entered into the
Contract for Highway Work, which provided that DOT would pay

Musson $4,393,833.15 for its work.                    Musson began work on the

Ohio Street project in spring 2008.


                                             5
                                                                      No.    2011AP1158



       ¶9      Prior to the commencement of the Ohio Street project,

Mark       Showers    had    contracted    for    the   construction        of    a    new

building on the property he owned on the corner of Ohio Street

and Sixth Avenue in Oshkosh.                    As part of that construction,

Showers was required by city code to connect his downspouts,

sump       pump,   and    parking    lot   drainage     to    the   municipal     storm

sewer.       The construction of Showers' building was completed on

or about November 30, 2007, and Real Marketing, LLC and Showers

Appraisals,          LLC,6   began    conducting      their     business     at       that

location.

       ¶10     When the Ohio Street sewer project commenced in spring

2008, the City, the DOT, and Musson discussed certain aspects of

how the project would proceed, one of which was whether the

roadway was to be removed all at once, or whether it should be

removed and repaired on a block-by-block basis.                         The parties

purportedly        agreed    that    the   block-by-block       approach     would      be

best; however, there is no formal documentation of the parties'

alleged agreement on this aspect of the project, and indeed,

Musson       has     at   times     disputed     whether     there    was    such      an
agreement.

       ¶11     Whatever the parties did or did not agree to, Musson
removed the entire roadway along Ohio Street, from the storm

sewer's outlet at the Fox River to the end of the project,


       6
       Mark Showers is the majority owner of Showers Appraisals,
LLC, and Real Marketing, LLC. These entities collectively will
be referred to throughout the opinion as "Showers" unless
otherwise indicated.

                                            6
                                                                              No.    2011AP1158



around      Ninth    Street;        disconnected          the    storm     sewers    in     that

reach; and placed a bladder at the discharge at the Fox River so

that       water    would     not    flow       from      the    river      into    the     non-

operational sewer system.                  Musson's decision to proceed in this

manner caused some disputes between City officials and Musson,

based on the City's concern that by removing the entire storm

sewer,      Musson       would   compromise         the    City's      ability      to    manage

storm water.

       ¶12    The DOT concluded that Musson's decision to remove the

storm sewer along the project's reach, rather than on a block-

by-block basis, was allowed under a provision in the Standard

Specifications,            referred        to    as       the    "means      and     methods"

provision.7         That provision states, in pertinent part, that the

contractor         "is    solely     responsible           for       the   means,    methods,

techniques,        sequences,        and    procedures          of    construction.         The

contractor is not responsible for the negligence of others in

the    design        or     specification           of    specific         means,    methods,

techniques, sequences, or procedures of construction described

in and expressly required by the contract."
       ¶13    On June 8, 2008, rain storms inundated the Ohio Street

project site, dropping approximately 4.25 inches of rain in the
area of the project site.                  The storm left water standing in the

exposed roadbed outside Showers' property, and a manager with


       7
       When Musson sought approval to remove the pavement and
leave the roadbed exposed, Ryan Schanhofer of DOT informed
Musson that there was nothing in the contract explicitly
prohibiting that approach.

                                                7
                                                                               No.       2011AP1158



Musson      reported      that       Musson's    pumps       were    unable        to    maintain

drainage for the amount of rain that had fallen.                               After viewing

the project site outside his property, Showers noted multiple

conditions that potentially impeded drainage (as well as other

conditions         that   he     alleged        were       contrary       to   the       Standard

Specifications), including mounds of soil in the roadbed and

drainage      inlets clogged with               soil       and    debris.       When       Showers

spoke with employees from                 the       City    and    Musson      regarding       the

standing water and the potential for damage from another large

storm       that   was    predicted,       Showers          was    told     that     there     was

nothing that either entity could do to remedy the situation.

        ¶14    Following the substantial rain event of June 8, the

City and Musson began to prepare a contingency pumping plan for

the next rain storm that was forecast for June 12.                                         On the

evening       of   June 11,      a    Musson     employee         allegedly        was     placing

pumps       according     to     the     plan;       however,        Showers         and     other

neighbors in the area averred that the pumps either were not

present or were not operating during the June 12 storm event.

Marc Miller, a water maintenance officer with the City, could
not confirm the exact number of pumps that he recalled seeing at

the Ohio Street project site, nor could he confirm how many
pumps were running at the relevant times.8

     ¶15       By 5:30 p.m. on June 12, water was overflowing from
the storm sewers in Showers' parking lot, and the Ohio Street

        8
       Schanhofer also stated that by the morning of June 13,
there were no pumps present at or near Showers' property at the
intersection of Ohio Street and Sixth Avenue.

                                                8
                                                                              No.   2011AP1158



roadbed was entirely flooded.                  Additionally, water had begun to

overflow from another drainage basin into the stretch of Ohio

Street near Showers' property.                     The June 12 storm was estimated

to have dropped approximately 4.36 inches of rain on the area

within      5.5    hours     during     the    evening,          in   addition      to    near-

continuous, but less intense rain throughout the entire day.

       ¶16       Following the June 12 rains, the basement at Showers'

property flooded with more than seven feet of water.                                 Showers

retained an engineer who concluded that approximately 117,500

gallons      of    water     had   been       trapped       in    the    roadbed     outside

Showers' property for 15 to 18 hours, and that the hydrostatic

pressure         caused     by   that     water       eventually        caused      Showers'

basement floor to rupture, thereby allowing the water to seep up

into       the    basement.        Showers'          sump    pump       ran    continuously

following the storm, but because the pump was connected with the

storm sewers, the discharge of the sump pump merely recycled

water out into the roadbed, which then seeped back into Showers'

basement.         Neither the City nor Musson had informed Showers that

the    storm       sewers    had   been       disconnected.              Because     of    the
flooding, Showers incurred at least $140,000 in damages to his

business and personal property, and was forced to relocate his
businesses for four months while the Ohio Street property could

be cleaned, repaired, and restored.9


       9
       Notwithstanding these damages, experts averred that Musson
complied with the Standard Specifications regarding maintenance
of drainage during all phases of the Ohio Street construction
project.

                                               9
                                                                             No.     2011AP1158



        ¶17       Showers commenced the present action by serving Musson

and the City with a summons and complaint on July 23, 2009.10                               In

pertinent part, Showers alleged that "improper drainage, design,

maintenance, excavation, construction procedures, and failure to

take corrective measures" caused flooding in Showers' basement

following the June 8 and 12 storms.                        Accordingly, Showers sought

relief        from    the     City   and     Musson    on    the    grounds        that   those

entities were "jointly and severally liable to [Showers] for

negligent acts or omissions which caused [Showers'] building to

flood,        resulting        in    damage     to    the     building       and     personal

property, including losses for repairs, replacements, clean up,

diminished           value,    and    loss    of     use    and    related    damages      and

losses."

        ¶18       The City and Musson moved for summary judgment, each

arguing that it was entitled to immunity for its acts relating

to the Ohio Street sewer project; additionally, the City and

Musson            brought      cross-claims          against        one      another       for

indemnification.              After considering affidavits and arguments by

the parties, the circuit court granted summary judgment for the
City and Musson on the basis that both entities were entitled to

governmental          immunity       under    Wis.    Stat.       § 893.80(4).        Showers
appealed the grant of summary judgment as to Musson, but not the

grant        of    summary    judgment       dismissing      his    claims    against      the
City.        Therefore, Showers' claims against the City are no longer

        10
       Prior to commencing this action, on October 3, 2008,
Showers served the City with a notice of claim as required under
Wis. Stat. § 893.80(1) (2007–08).

                                               10
                                                                               No.    2011AP1158



a   part     of    this      case.        However,      Musson    did       cross-appeal     the

dismissal of its indemnification claim against the City.

       ¶19    The court of appeals affirmed the grant of summary

judgment for Musson.                 Showers Appraisals, LLC v. Musson Bros.,

Inc., 2012 WI App 80, ¶1, 343 Wis. 2d 623, 819 N.W.2d 316.                                   The

court concluded that under the test set forth in Lyons, Musson

was entitled to governmental contractor immunity as a statutory

"agent"       under     Wis.      Stat.        § 893.80(4).           Id.      Additionally,

because       the      court      concluded        that       Musson    was     entitled      to

immunity,         it   did    not      address     Musson's      or    the    City's    cross-

appeals.      Id.

       ¶20     Showers        filed       a     petition       for     review,       which    we

granted.11

                                         II.    DISCUSSION

                                  A.     Standard of Review

       ¶21    The      circuit       court      granted      summary    judgment       for   the

City    and       Musson     on     the    basis      of     governmental      immunity      and

governmental contractor immunity under Wis. Stat. § 893.80(4).

The interpretation of a statute is a question of law that we

review      independently           of    the    circuit      court     and    the   court    of

appeals,       although        we      benefit        from    those     courts'      analyses.


       11
       Following summary judgment, the City has appeared in this
action in response to Musson's cross-appeal against the City for
indemnification. The City appeared in the court of appeals, was
included as a party in Showers' petition for review, and has
submitted briefs and argument before this court in favor of its
position that both the City and Musson are entitled to immunity
in this case.

                                                 11
                                                                          No.     2011AP1158



Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d

541,         749    N.W.2d      581.       In        addition,    determining      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.                           Estate of Brown

v. Mathy Constr. Co., 2008 WI App 114, ¶6, 313 Wis. 2d 497, 756

N.W.2d 417.              Also, when we review a grant of summary judgment,

we will affirm it if no genuine issue of material facts exists

and "the moving party is entitled to judgment as a matter of

law."         Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342
Wis. 2d 311, 818 N.W.2d 819.

                         B.   Governmental Contractor Immunity

        ¶22        The   City   and     Musson       assert   that,   under     Wis.   Stat.

§ 893.80(4),12 Musson is entitled to immunity from liability for

Showers'           claims.      In     order    to    address    that   claim,    we   must

interpret § 893.80(4).                 We therefore begin with the language of

        12
       The   statutory   immunity   afforded    under   Wis.   Stat.
§ 893.80(4)   has   been    referred   to    as    "municipal"    or
"governmental" immunity, and is distinct from the sovereign
immunity that the Wisconsin Constitution grants the State. See
Anderson v. City of Milwaukee, 208 Wis. 2d 18, 28 n.11, 559
N.W.2d 563 (1997). Nonetheless, we have acknowledged that there
is overlap in the principles governing whether a governmental
entity or officer is entitled to immunity.      See C.L. v. Olson,
143 Wis. 2d 701, 716 n.9, 422 N.W.2d 614 (1988).          Therefore,
although the immunity that Musson claims in this case could be
the sovereign immunity conferred upon the DOT as a state agency
(because of Musson's contract with the DOT), principles of
governmental contractor immunity under § 893.80(4) have been
raised as being applicable here. Neither the State nor the DOT
was sued, so the right of a sovereign to consent to suit was
never at issue. See Holytz v. City of Milwaukee, 17 Wis. 2d 26,
41, 115 N.W.2d 618 (1962).

                                                 12
                                                               No.    2011AP1158



that statute.       Section 893.80(4) provides, in pertinent part,

that "[n]o suit may be brought against any [governmental entity]

. . . or against its officers, officials, agents or employees

for acts done in the exercise of legislative, quasi-legislative,

judicial or quasi-judicial functions."

     ¶23    Our task when interpreting a statute is to discern the

statute's meaning, which we presume is expressed in the language

chosen by the legislature.         Richards, 309 Wis. 2d 541, ¶20.             If

the meaning of the language is plain, we apply that meaning.

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110.               "Statutory language is

given its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical or special definitional meaning."              Id.    Our analysis

of statutory language also may be aided by considering prior

decisions   examining      the   relevant    statutory   provisions.          See

DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15, 302 Wis. 2d 564,

734 N.W.2d 394.

     ¶24 Wisconsin Stat. § 893.80(4) was enacted in response to

our decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39,

115 N.W.2d 618 (1962).           See Coffey v. City of Milwaukee, 74

Wis. 2d 526, 532, 247 N.W.2d 132 (1976) (recognizing that what

is now § 893.80(4) is the codification of Holytz).                   In Holytz,

17   Wis. 2d   at    39,    we   abrogated    the    common    law     rule    of

governmental immunity for governmental entities, and stated that

"henceforward, so far as governmental responsibility for torts


                                     13
                                                                                  No.     2011AP1158



is    concerned,       the      rule    is   liability            [and]    the     exception     is

immunity."

       ¶25    Holytz excepted from that abrogation the acts of a

governmental           entity          exercising           its      legislative,           quasi-

legislative, judicial or quasi-judicial functions.                                      See id. at

40.      That      language carving           out      an    exception       to     governmental

liability       now     appears        in    Wis.      Stat.       § 893.80(4),          with   the

addition      of      immunity       for     governmental           officers,        agents     and

employees, thereby including those individuals for whose acts

the governmental entity would be liable under the doctrine of

respondeat superior.              See id.; see also Kettner v. Wausau Ins.
Cos., 191 Wis. 2d 723, 729-30, 530 N.W.2d 399 (Ct. App. 1995)

(limiting       the    type     of     agents     for       which    § 893.80       may    provide

immunity).

        ¶26   When analyzing and applying Wis. Stat. § 893.80(4), we

often have used the term "discretionary" as a shorthand to refer

to    decisions       of    a   governmental           entity       that    are     legislative,

quasi-legislative, judicial or quasi-judicial. See, e.g., Willow

Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235

Wis. 2d 409, 611 N.W.2d 693; C.L. v. Olson, 143 Wis. 2d 701, 710

n.5, 422 N.W.2d 614 (1988); Lifer v. Raymond, 80 Wis. 2d 503,

511–12, 259 N.W.2d 537 (1977); see also Lyons, 207 Wis. 2d at

453–54.       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.         See       Lyons,      207   Wis. 2d         at     453.          Quasi-judicial

functions       generally        refer       to     those         acts     that    involve      the
                                                  14
                                                                       No.       2011AP1158



exercise of discretion in coming to a judgment; the availability

of a public hearing on the judgment before a specialized board;

and the imposition by a board of an appropriate final decision.

See Coffey, 74 Wis. 2d at 534-35.

      ¶27    In the present case, the parties' arguments center on

the   application      of    Wis.     Stat.      § 893.80(4)      in   regard        to    a

governmental       contractor      who    claims     immunity     derived        from     the

governmental entity with which the contractor has a contractual

relationship.13        The        court   of     appeals     addressed       a    similar

situation     in    Lyons.         There,      the   court    examined       whether       a
governmental        contractor        was      entitled      to    immunity          under

§ 893.80(4) when the contractor implemented a bridge design that

had   been    selected       by     the     contracting      governmental         entity.

Because the court of appeals' decision in Lyons was grounded in

the United States Supreme Court's decision in Boyle v. United

Technologies Corp., 487 U.S. 500, 510–13 (1988), it is necessary

to understand Boyle to place Lyons in proper perspective.

      ¶28    In Boyle, a governmental contractor was sued based on

its sale of a helicopter to the United States Marine Corps.                               Id.

at 502.      The helicopter was alleged to have a design defect in

the co-pilot's escape system, which prevented the opening of the


      13
       Musson does not specify whether the immunity it seeks is
legislative, quasi-legislative, judicial or quasi-judicial in
nature. We need not make that determination because we conclude
that Showers' allegation that Musson negligently performed its
construction responsibilities does not implicate any of the
governmental entity functions excepted from liability pursuant
to Wis. Stat. § 893.80(4).

                                            15
                                                                           No.   2011AP1158



escape hatch when the helicopter was submerged.                             Id. at 503.

The alleged design defect resulted in the death of a pilot who

survived a crash into water, but drowned because he could not

escape from the helicopter.           Id. at 502.

     ¶29     In    analyzing      whether    the        contractor's       governmental-

contractor    defense       had    merit,        the    Supreme    Court     focused     on

whether    the     government      contract        required       the    contractor      to

"deliver   helicopters        with    the    sort       of   escape-hatch        mechanism

shown by the specifications" of the helicopter that the Marine

Corps had chosen.          Id. at 509.       The Supreme Court reasoned that
"the selection of the appropriate design for military equipment

to be used by our Armed Forces is assuredly a discretionary

function."        Id. at 511.     The Court then concluded by setting out

a three-part test to determine whether the relationship between

the governmental contractor and the governmental entity was such

that the contractor should be immune from liability for design

defects in military equipment chosen by the Armed Forces:                              "(1)

the United        States   approved    reasonably            precise    specifications;

(2) the equipment conformed to those specifications; and (3) the

supplier warned the United States about the dangers in the use

of the equipment that were known to the supplier but not to the

United States."       Id. at 512.

     ¶30     In explaining its test, the Supreme Court said, "[t]he

first two of these conditions assure that the suit is within the

area where the policy of the 'discretionary function' would be

frustrated——i.e.,          they   assure         that    the      design     feature    in

question was considered by a Government officer, and not merely
                                            16
                                                                                     No.    2011AP1158



by    the     contractor           itself."            Id.    (emphasis        added).         In    so

explaining, the Supreme Court made clear that a discretionary

act   of      a    governmental           officer        is    a    necessary        component       to

potential              immunity           for      the         governmental            contractor.

Accordingly,            a    governmental          contractor's           own       "discretionary

actions"          would      not    have        sufficed       to    afford      the       contractor

immunity for its actions in Boyle.

        ¶31       In    Lyons,      the    court        of    appeals     also       focused    on    a

design defect that allegedly was a cause of an accident.                                       Lyons,

207 Wis. 2d at 449.                     It is important to note that, as was the

case in Boyle, it was the governmental entity in Lyons that made

the choice of design that allegedly was a cause of the accident.

Id.         This       design       choice       was     made       in   the     exercise       of    a

legislative            or quasi-legislative              function        of    the     governmental

entity.           Id.       at   453.       Because          the    governmental           contractor

performed          its       contractual          tasks        under      reasonably          precise

specifications              pursuant       to     the    governmental           entity's       quasi-

legislative design decision, the contractor functioned as a Wis.

Stat. § 893.80(4) agent of the governmental entity when carrying

out   the     entity's           design     decision.           See      id.   at    457–58,     461.

Therefore, the governmental contractor was entitled to the same

level    of       immunity         as    would    be     accorded        to    the     governmental

entity had it been sued directly for its design choice.                                        Id. at

454 (explaining the court's reliance on the rationale of Boyle

where the governmental contractor defense precluded suit "if the

challenged design choice was made by military officials").


                                                   17
                                                                          No.        2011AP1158



        ¶32    Lyons adopted Boyle's three-part test.                    Id. at 457-58.

The court of appeals explained that a governmental contractor

that follows governmental specifications is an "agent" within

the meaning of Wis. Stat. § 893.80(4) when the contractor meets

the three-part test of Boyle.                   Id.      "This three-part test will

ensure that state and municipal government, and the public at

large,    is    able    to     make     the   best    use     of    professional          design

assistance, but that professional contractors are not unfairly

burdened by lawsuits when they follow governmental directives."

Id. at 458.
        ¶33    Subsequent       court    of     appeals     decisions     have        affirmed

the     Lyons       court's     rationale       regarding          contractor        immunity,

stating, for example, that "[i]n Lyons, we expressly held that

an independent contractor meeting the three-part test was an

agent    within       the     meaning    of   § 893.80(4)."            Jankee        v.    Clark

Cnty., 222 Wis. 2d 151, 165, 585 N.W.2d 913 (Ct. App. 1998),

rev'd on other grounds, 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d

297.     The language of some of these cases may be read to suggest

that    the     relevant       question       is     merely    whether     a     contractor

satisfies       the    three-part        test      and   is    therefore        an    "agent"

entitled       to    immunity.        See     id.;    see     also    Woychik        v.   Ruzic

Constr. Co., 2001 WI App 280, ¶8, 248 Wis. 2d 983, 638 N.W.2d




                                              18
                                                                               No.      2011AP1158



394   (unpublished         decision).14        Indeed,       the       court      of    appeals'

decision in the case at hand suggests that satisfaction of the

elements     of     the    Lyons     test    will    be     sufficient            to     immunize

governmental contractors' conduct.                   See Showers Appraisals, 343

Wis. 2d 623, ¶22; see also Bronfeld v. Pember Cos., 2010 WI App

150, ¶12, 330 Wis. 2d 123, 792 N.W.2d 222.

      ¶34    However,         analyzing        whether           the        conduct        of     a

governmental contractor was undertaken as a statutory "agent"

within      the    scope     of     the     immunity       accorded         by     Wis.     Stat.

§ 893.80(4) solely by reference to the three-part Lyons test may
lead a court to err.              Rather, an equally dispositive question in

the   § 893.80(4)          immunity       analysis     is     whether            the     relevant

decision      of    the     governmental          entity     that       the       governmental

contractor        implements      is,     itself,    entitled          to    immunity       under

§ 893.80(4)        because     it    was    made     through       the       exercise       of    a

legislative,         quasi-legislative,             judicial           or     quasi-judicial

function of the governmental entity.                         Stated otherwise, only

certain     types     of     acts    fall     within       the     immunity            shield    of

§ 893.80(4).         It was on such a foundation that both the Lyons

and Boyle decisions stand because the governmental decision in

      14
       Wisconsin Stat. § 809.23(3) does not prohibit this
court's discussion of unpublished decisions when such discussion
relies on the opinion solely to demonstrate that courts have
used particular language from other cases, and does not rely on
the decision for authoritative or persuasive value.    See State
v. Higginbotham, 162 Wis. 2d 978, 996–97, 471 N.W.2d 24 (1991).
Moreover, because such use of unpublished decisions has such
longstanding acceptance, see id., we need not decide now whether
§ 809.23(3) imposes any other limitations on this court's use of
unpublished decisions in its opinions.

                                             19
                                                                            No.     2011AP1158



each    case,     i.e.,      the    choice       of    design,        was     made     by    a

governmental entity in the exercise of its legislative or quasi-

legislative function.

       ¶35   Immunity 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" as set out in Wis. Stat. § 893.80(4).                            Any statutory

immunity to which an agent of the governmental entity may be

entitled is dependent upon the immunity of the governmental act

or decision that the agent was implementing when it caused an

injury.        This    immunity     inquiry        under      § 893.80(4)——examining

whether a governmental entity's conduct was an exercise of a

"legislative,         quasi-legislative,           judicial         or      quasi-judicial

function"——gives           effect    to      the      legislature's              prerogative

regarding the circumstances in which immunity may be available

under § 893.80(4).            Although     some       of    our     cases    have    equated

§ 893.80(4)'s         "legislative,        quasi-legislative,                judicial       or

quasi-judicial"        standard     with     the      term    "discretionary,"           see,
e.g., Olson, 143 Wis. 2d at 710 n.5; Lifer, 80 Wis. 2d at 511–

12, and although our decision is not intended in any way to

alter   that    standard,      we   do     emphasize         that    the     legislatively

selected policy decision regarding immunity under § 893.80(4) is

best    honored       by    applying       the     legislature's            chosen      plain

language, rather than a judicial distillation thereof.                                   This

approach     comports       with    fundamental            principles       of     statutory

interpretation, under which the plain language of a statute is


                                           20
                                                                         No.     2011AP1158



presumed to most directly convey what the legislature means.

See Kalal, 271 Wis. 2d 633, ¶44.

       ¶36        From   the    foregoing,      when      a   governmental     contractor

seeks immunity under Wis. Stat. § 893.80(4), the contractor must

show both that the contractor was an agent as that term is used

in § 893.80(4), i.e., as is expressed in the Lyons test, and

that     the       allegedly        injurious        conduct    was    caused     by    the

implementation of a decision for which immunity is available for

governmental entities under § 893.80(4).                         As discussed below,

Musson has failed to show that it is an agent in accordance with

Lyons.       Nonetheless, because the plain language of § 893.80(4)
demonstrates that the immunity analysis requires an element in

addition       to what is        required       by    Lyons'    agency   test    (namely,

allegations that the injury-causing act was legislative, quasi-

legislative, judicial or quasi-judicial in character), we set

forth the applicable standard so that litigants and courts may

engage       in    a     complete    analysis        of   whether     immunity    may    be

available in future cases.

       ¶37     The first and second requirements of 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, limit

when a governmental contractor is a statutory agent under Wis.




                                             21
                                                                                   No.     2011AP1158



Stat. § 893.80(4).15              Stated otherwise, the governmental entity

must have had the right to control the tasks performed by the

contractor        with    "reasonably          precise         specifications"             and    the

contractor must have followed those specifications.                                      When these

facts are proved, the contractor is a § 893.80(4) agent of the

governmental entity.              See, e.g., Kettner, 191 Wis. 2d at 733–37

(explaining       that     not    all conduct            of    agents       comes        within   the

scope of § 893.80; rather, only that conduct that may be imputed

to a governmental entity as the act of the entity's servant

comes within § 893.80).16

      ¶38    The    principles          of    immunity         for    particular          types    of

agents     under    Wis.     Stat.          § 893.80,         as   discussed        in     Kettner,
should be read in harmony with the Lyons test and with the

principles of governmental immunity enunciated in § 893.80(4).

For   example,       the     allegation           in     Lyons       that    the     bridge       was

improperly        designed        by        the        governmental         contractor,           who

undertook     the        design    at       the    direction          of    the     governmental

entity,     was    the    act of        a    § 893.80(4)–type              agent     because      the

      15
       We note that the third criterion for statutory agency set
out in Lyons, that the contractor warned the governmental entity
about dangers known to the contractor but unknown to the
governmental entity, does not bear on whether statutory agency
is present.    Rather, it is grounded in a concern that the
immunity accorded does not cut off information highly relevant
to governmental decisions.   Boyle v. United Techs. Corp., 487
U.S. 500, 512-13 (1988).
      16
       The primary consideration in determining whether an act
was undertaken by one who acts in the capacity of a servant is
whether the principal had the right to control the conduct of
the agent.   Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188,
198-99, 423 N.W.2d 848 (1988).

                                                  22
                                                                                No.     2011AP1158



governmental          entity     controlled        the    design       choice        and   design

choices       are    legislative        or   quasi-legislative             functions.           See

Lyons,    207       Wis. 2d     at     452–58;    see     also       Chart     v.     Dvorak,    57

Wis. 2d 92, 100–01, 203 N.W.2d 673 (1973) (recognizing that the

decision to undertake a project, or how to design the project,

may be immunized as the exercise of a legislative or quasi-

legislative function).

      ¶39      However, if the allegation in Lyons were not that the

design was a cause of the accident, and were instead that the

contractor did not construct the bridge in a workman-like manner

and     thereby       caused      injury,        such     an        allegation        would     not

implicate a legislative, quasi-legislative, judicial or quasi-

judicial function under Wis. Stat. § 893.80(4).                               Accordingly, an

allegation of negligent workmanship would not have the potential

for immunity under § 893.80(4) for that specific injury-causing

conduct,       and        no   Lyons     inquiry        (to        determine        whether     the

contractor          was   a    § 893.80(4)-type          agent)       would     be    necessary.

This conclusion is based on the scope of immunity contemplated

by this court in Holytz, and by the legislature's codification

of Holytz in what is now § 893.80(4).

        ¶40    Some cases applying Kettner's agency principles in the

context       of    immunity inquiries           could        be    read   to    suggest      that

"agent" may be interpreted broadly to afford immunity to all

governmental contractors' conduct.                        However, in light of Wis.

Stat.    § 893.80(4)'s           explicit     language             limiting     the    scope     of

governmental immunity, immunity will be extended to governmental

contractors only where the contractor acted as a "servant" for
                                              23
                                                                                     No.   2011AP1158



the    purposes         of    the     challenged        conduct.              See    Kettner,      191

Wis. 2d       at    734–36.           Indeed,          as    we       explained       above,      this

definition         of    "agent"      is    manifest         in       the    Lyons    test,    which

requires that a governmental contractor adhere to "reasonably

precise       specifications."             Cf.   Arsand          v.    City    of    Franklin,      83

Wis. 2d 40, 45–46, 264 N.W.2d 579 (1978) (defining servant as

"one employed to perform service for another in his affairs and

who, with respect to his physical conduct in the performance of

the    service,         is    subject      to    the    other's           control     or   right    to

control").

       ¶41     Other cases following Lyons also illustrate that care
in analysis is needed when a claim of governmental contractor

immunity       is   made.           For    example,         in     Bronfeld,        the    court    of

appeals addressed an allegation that a subcontractor negligently

erected barricades and failed to maintain the construction site

so as to protect public safety.                        The plaintiff claimed that the

contractor was therefore liable for the plaintiff's injuries,

which    occurred            when   she     tripped         over      a     barricade      that    the

contractor had placed at the site.                            See Bronfeld, 330 Wis. 2d

123, ¶¶10, 12.

        ¶42    In Bronfeld, the government's general contractor had

provided a detailed traffic control plan that the City of River

Falls approved, and the subcontractor followed that plan.                                         Id.,

¶6.      The court of appeals began by noting that placement of

barricades is a discretionary duty, and therefore, if the City

had placed the barricades itself, it would have been immune from

suit    pursuant         to    Wis.     Stat.     § 893.80(4).                Id.,     ¶19.       This
                                                  24
                                                                              No.   2011AP1158



cursory determination of whether the governmental entity would

have been entitled to immunity under the language of § 893.80(4)

highlights the need for a more thorough immunity analysis for

claims of governmental immunity.

        ¶43    After making this primary determination, the court in

Bronfeld       applied       the     Lyons     test        to     determine     whether    the

contractor was an agent.               The court concluded that the test was

satisfied, and that the contractor was entitled to immunity,

because        (1)     the     City      had        provided           reasonably     precise

specifications regarding traffic control and barricade placement

by requiring and approving the traffic control plan the general

contractor submitted; (2) the subcontractor complied with the

those specifications; and (3) the subcontractor had not been

aware     of     any       dangers      posed       by          the    reasonably     precise

specifications.            See id., ¶¶24–33.
        ¶44    Bronfeld's cursory analysis of governmental contractor

immunity under Wis. Stat. § 893.80(4) may be attributable to

Brown, where the language used to apply Lyons' reasoning could

be   construed        to    afford    immunity        to    governmental        contractors'

actions       where    the     alleged       injury        did        not   arise   from   the

contractor's implementing a governmental entity's decision that

was made pursuant to a "legislative, quasi-legislative, [etc.]

function," such as the adoption of a design or plan.                                In Brown,

the court seemed to emphasize the importance of whether there

existed         "reasonably            precise             specifications,"           without

acknowledging that, for such specifications to afford immunity

to a governmental contractor, the contractor's alleged injury-
                                               25
                                                                                No.     2011AP1158



causing actions must have been due to its implementation of a

governmental entity's exercise of one of the functions for which

immunity is accorded under § 893.80(4).                        See Brown, 313 Wis. 2d

497, ¶11 (stating that "[t]he question is not what other safety

precautions        might      have    been     taken,        but    whether           the    safety

requirements           provided       by     DOT        were        reasonably              precise

specifications,"            without    analysis         of    whether           the    allegedly

injurious conduct had been undertaken pursuant to a legislative

or quasi-legislative function of the governmental entity).

      ¶45   In sum, in addition to satisfying the Lyons test for
governmental           contractor      immunity,         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.        To apply Lyons without analyzing the applicability

of immunity under Wis. Stat. § 893.80(4) to the particular act

for   which       liability      is    alleged      could          grant    a     governmental

contractor broader immunity than the governmental entity itself

would be entitled to under the statute.                             Accordingly, in the

future,     when       a    governmental       contractor          asserts        that       it    is

entitled to immunity under § 893.80(4), we encourage litigants

and courts        to    adhere to      the     statutory       standard          to    determine

whether       the          alleged     immunity-supporting                  functions             are

legislative, quasi-legislative, judicial or quasi-judicial.

      ¶46   Our        conclusion      regarding        the        intersection             of    the

agency principles embodied in the Lyons test and the type of
                                             26
                                                                    No.   2011AP1158



acts for which governmental immunity may be afforded under Wis.

Stat. § 893.80(4) is well-supported nationwide.                     For example,

other   jurisdictions    have     concluded      that       while      governmental

contractors will     not be liable        for    injuries      alleged     to    have

arisen from defects in a design the government chose, "it is

well settled that this rule of non-liability does not exempt a

contractor   from    liability    where    the       injury    arises     from    the

contractor's   negligent    performance         of    the     work."      Gaunt    &

Haynes, Inc. v. Moritz Corp., 485 N.E.2d 1123, 1126 (Ill. App.

Ct. 1985); Rodriguez v. New Jersey Sports & Exposition Auth.,

472 A.2d 146, 149 (N.J. App. Div. 1983) ("A public contractor

may . . . be held liable when negligent in the execution of the

contract.").     Furthermore, a legal encyclopedia notes that "the

courts are practically unanimous" in support of the proposition

that a governmental contractor is not entitled to governmental

immunity for injuries arising from negligent performance of the

contract work.       A.E. Korpela, Annotation, Right of contractor

with federal, state, or local public body to latter's immunity

from tort liability, 9 A.L.R. 3d 382 §§ 2(a), 5 (1966); see also

64 Am. Jur. 2d, Public Works and Contracts § 109 (2013 update)

(discussing contractors' negligence in performing work; neglect

or failure to comply with contract).             This understanding of the

doctrine of governmental contractor immunity has been echoed by

legal   commentators.      See,    e.g.,    Richard         Ausness,      Surrogate

Immunity:      The    Government     Contract         Defense       and    Products

Liability, 47 Ohio St. L.J. 985, 995 (1986).


                                     27
                                                                                 No.     2011AP1158



                                     C.   Application

     ¶47     With       the above     principles          in    mind,       we    turn     to   the

present case.           Although the parties have framed their arguments

solely in terms of the Lyons test, we analyze Musson's claim for

immunity    under        both   requirements         of    Wis.       Stat.       § 893.80(4).

This includes whether Musson is an agent under § 893.80(4), as

determined by the Lyons test, as well as whether the conduct

that is alleged to be a cause of injury is entitled to immunity

under § 893.80(4) as the implementation of a legislative, quasi-

legislative, etc. decision.                  We conclude first that, under the

Lyons tests, Musson has failed to demonstrate that it is an
agent      entitled            to     governmental              contractor              immunity.

Furthermore, as guidance to future litigants, we examine why

Musson's   allegations          in    support      of     summary          judgment      fail   to

demonstrate that Musson was entitled to immunity as an agent

implementing        a     legislative,        quasi-legislative,                  judicial      or

quasi-judicial function of a governmental entity.

    ¶48     Under        the    Lyons       test    as     applied          to     Wis.      Stat.

§ 893.80(4),    Musson was            not   an     agent       for    which       immunity      was

available.      The       relevant        contractual          language          (the    Standard

Specifications)          demonstrates       that     Musson          was    not    subject      to

"reasonably precise specifications" as is necessary to invoke




                                             28
                                                                No.   2011AP1158



contractor immunity as an agent of a governmental entity.17                 The

primary provision upon which the parties focus their arguments

and upon which we rely in concluding that the Lyons test is not

satisfied is the "means and methods" provision in the Standard

Specifications.18          The conduct for which Musson was responsible

under        the   means   and   methods    provision   are,   by   definition,

distinguishable from conduct for which immunity may be available

for agents under § 893.80(4), as set forth in Lyons.



        17
       As our discussion below should make clear, our reference
to the Specifications as support for our conclusion that
immunity is not available should not be read to suggest that the
terms of a government contract may create immunity where none
would otherwise exist by virtue of the legislative, quasi-
legislative, judicial or quasi-judicial nature of the activities
at issue.   Our reference to the Standard Specifications merely
demonstrates that the parties apparently contemplated that
Musson's performance of its construction responsibilities would
not entitle Musson to the immunity that may be afforded to
agents under Wis. Stat. § 893.80(4).
     18
       Other sections in the Standard Specifications also
support the contention that the parties contemplated that Musson
was not subject to reasonably precise specifications under Lyons
and could be held liable for any negligence in the performance
of the construction. For example:

        - § 107.1(2), requiring the contractor to "[p]rovide
          all   necessary  safeguards,  safety   devices,  and
          protective equipment.   Take all other actions that
          are reasonably necessary to protect the life and
          health of employees on the project and the safety of
          the public."

     - § 107.11.1(3), requiring the             contractor to "[a]ssume
       liability for all damage                 to public or private
       property   resulting  from               contractor  operations,
       defective work or materials,             or non-execution of the
       contract."

                                           29
                                                                             No.     2011AP1158



        ¶49    The means and methods provision states, in relevant

part, that Musson "is solely responsible for the means, methods,

techniques,           sequences,         and     procedures         of       construction."

(Emphasis added.)            In this context, being "responsible" for the

"means, methods, [etc.]" involves both powers and duties.                                  That

is, Musson was not only empowered to take actions involving how

the construction process was to proceed, Musson also had the

responsibility         for    the    actions        it    took,    including        incurring

liability       if    its    actions      caused         injury.       See    Black's       Law
Dictionary      1427       (9th    ed.   2009)      (defining       "responsibility"         as

"liability");         see    id.    (noting      that     "responsible        . . .     simply

means liable to be made to account or pay") (quoting H.L.A.

Hart,    "Changing         Conceptions     of       Responsibility,"         in    Punishment

and Responsibility           186, 196–97 (1968)).

        ¶50    Many of Musson's day-to-day actions at the Ohio Street

project site are chronicled in the daily logs of onsite activity

kept by one of the DOT's engineers, Ryan Schanhofer.                               These logs

note numerous instances of Musson taking actions without DOT or

City approval, pursuant to Musson's independent responsibility

under the means and methods provision.                      Throughout the course of

the project, there were multiple occasions on which Schanhofer

had to inform City officials that he could not stop Musson from

proceeding       on    a    certain      course      because       Musson's       action   was

within the "means and methods" provision.                          One of these actions

was the removal of the entire roadbed of Ohio Street, rather

than removing portions on a block-by-block basis.                                  Other such

actions       included      whatever      steps      Musson    would     take      to   ensure
                                               30
                                                                     No.     2011AP1158



proper       drainage,     as    demonstrated       by     Schanhofer's    note   that

Musson's cleaning silt screens in drainage areas was "up to the

contractor."19

       ¶51     As discussed above, the nature of Musson's actions,

taken pursuant to the means and methods provision, demonstrates

that        Musson   had        substantial        independent      decision-making

authority       in    performing       its        tasks,     such   that     Musson's

relationship with the DOT for the conduct that is alleged to

have    resulted     in    harm   cannot     be    characterized    as     that   of   a

servant.       See Arsand, 83 Wis. 2d at 45–46 (defining servant as
one subject to the master's control or right of control).                         Such

independent discretion is also contrary to Lyons' "reasonably

precise specifications" requirement, in that a contractor may

not possess such control over the alleged injury-causing action


       19
        Moreover, the mere fact that DOT personnel were onsite
during Musson's performance of the Ohio Street sewer work does
not   transform   Musson's  contractual   performance  into   the
implementation of legislative, quasi-legislative, judicial or
quasi-judicial   actions   that   are   entitled   to   immunity.
Tellingly, § 105.2(4) of the Standard Specifications provides
that "[t]he department's review does not relieve the contractor
of the responsibility for obtaining satisfactory results."

     Similarly, where the Standard Specifications are silent on
the safety measures or performance standards applicable in a
given scenario, a contractor may not rely on that silence as a
license to undertake whatever measures the contractor selects
without threat of liability.     Governmental contractor immunity
must be based on the prior exercise of legislative, quasi-
legislative,   judicial   or   quasi-judicial   functions  by   a
governmental entity under Wis. Stat. § 893.80(4), which the
governmental   contractor implements as a       statutory  agent.
Silence, without more, does not demonstrate the exercise of
necessary governmental decision-making.

                                           31
                                                                                 No.    2011AP1158



and still be considered an agent for purposes of governmental

contractor immunity under Wis. Stat. § 893.80(4).                                  Musson thus

fails        to   satisfy       the     Lyons    test    and    is   not    an    agent     under

§ 893.80(4).20

        ¶52       Next, having concluded that Musson is not entitled to

immunity          as    an    agent     under   the     Lyons   test,      we    also    examine

Musson's claim for immunity in light of the injury alleged and

the   plain            language    of    Wis.    Stat.     § 893.80(4),          which    limits

immunity to "acts done in the exercise of legislative, quasi-

legislative, judicial or quasi-judicial functions."                                    Beginning

with the injury that Showers has alleged, we note that Showers'

allegations             are     different        in     kind    from       the     allegations

underlying the Lyons test for governmental contractor immunity.
The substance of Showers' claim is not that Musson was negligent

in its implementation of a decision made in the exercise of a

governmental             entity's     legislative,        quasi-legislative,            judicial

or quasi-judicial function, as was the case in Lyons.                                    Rather,

Showers           alleges         that     Musson       negligently         performed         its

excavation,             construction,      and    drainage       responsibilities           under

the   contract.               Specifically,       Showers'      complaint        alleges     that


        20
        Because Musson has failed to demonstrate that there were
reasonably precise specifications that controlled any alleged
injury-causing decision or conduct, we have no need to examine
the second and third requirements of the Lyons test (i.e.,
whether   the   contractor   followed  such   reasonably    precise
specifications    and   whether   the   contractor    warned    the
governmental   entity   of  any   dangers   associated   with   the
specifications that were known by the contractor, but not by the
governmental entity).

                                                 32
                                                                          No.        2011AP1158



Musson    is    liable      for     "improper    drainage,        . . .    maintenance,

excavation,       construction         procedures,        and     failure        to       take

corrective measures."

        ¶53    These assertions are fundamentally different from the

assertion       that   a    governmental        entity    negligently       selected         a

design that a contractor implemented for a government project.

Design selection is a type of governmental entity decision that

we   have      determined         is   within     the     legislative           or     quasi-

legislative       function        immunized     under    Wis.     Stat.    § 893.80(4).

See, e.g., Chart, 57 Wis. 2d at 100–01 (recognizing legislative
or quasi-legislative nature of design decision); Lange v. Town

of Norway, 77 Wis. 2d 313, 318–20, 253 N.W.2d 240 (1977) (same).

        ¶54    In contrast, Showers alleges that Musson's performance

of its construction duties, such as maintaining drainage at the

worksite, did not meet the standard of due care for construction

work.     Cf. Brooks v. Hayes, 133 Wis. 2d 228, 234–35, 395 N.W.2d

167 (1986) (recognizing that a construction contract implicitly

imposes a duty on contractors to perform work according to the

standard of due care).              An allegation such as Showers makes does

not implicate the types of acts for which Wis. Stat. § 893.80(4)

affords       immunity     to   a   governmental        entity.      Therefore,           they

cannot form the basis for immunity for a contractor.                                    For a

governmental entity to be accorded immunity under § 893.80(4),

the entity must be able to show that the allegedly injurious act

was done in the exercise of a legislative, quasi-legislative,

judicial or quasi-judicial function.                    Musson has not shown that

the acts that Showers asserts were a cause of injury——Musson's
                                           33
                                                                          No.     2011AP1158



alleged       improper          drainage,     maintenance,          excavation,           and

construction at the Ohio Street project——were the implementation

of     a   governmental         entity's    exercise      of    legislative,        quasi-

legislative, judicial or quasi-judicial functions.                              Therefore,

immunity under § 893.80(4) is not available for those acts.

       ¶55    In     future      cases,     governmental        contractors        seeking

immunity should include in their pleadings sufficient facts to

demonstrate         that    the     governmental         entity     from        which     the

contractor      would      derive       immunity   was    engaged    in     one    of     the

functions      for     which     immunity     is   available      under     Wis.        Stat.

§ 893.80(4), and that the contractor was an agent with respect

to injury-causing conduct.

       ¶56    Accordingly, Showers' claims, that Musson negligently

performed the work required by the government contract, should

be analyzed under standard negligence principles.                           See Coffey,
74 Wis. 2d at 531, 535–40 (setting forth elements of standard

negligence         analysis        and     applying       those     elements            after

determining         that     municipal       officer      was     not      entitled        to

immunity).         Although ultimately Musson may be found not to have

been       negligent       in     its     performance      of     its      construction

activities,        summary      judgment     was   inappropriate        based      on     the

substance of Showers' complaint.

                                   III.     CONCLUSION

       ¶57    We conclude that where a third party's claim against a

governmental        contractor      is     based   on    the    allegation       that     the

contractor negligently performed its work under a contract with

a governmental entity, the governmental contractor must prove
                                             34
                                                                          No.    2011AP1158



both that the contractor meets the definition of "agent" under

Wis. Stat. § 893.80(4), as set forth in Lyons, and that the

contractor's act is one for which immunity is available under

§ 893.80(4).       Specifically, we conclude that for a contractor to

come    within     § 893.80(4)'s     shield       of       immunity,     the    contractor

must prove it was acting as the governmental entity's agent in

accordance with reasonably precise specifications, as set forth

in Lyons.      In this case, Musson has not shown that it was acting

as a governmental entity's agent for purposes of the alleged

injury-causing conduct because Musson was not acting pursuant to

"reasonably precise specifications."

       ¶58    Moreover, pursuant to the plain language of Wis. Stat.

§ 893.80(4),       we   also    conclude    that       a    governmental        contractor

seeking to assert the defense of immunity should clearly allege

in the pleadings why the injury-causing conduct comes within a

legislative,        quasi-legislative,            judicial        or     quasi-judicial

function as set out in § 893.80(4).                         In the context of this

case, a governmental contractor would be required to assert that

it was implementing a decision of a governmental entity that was

made within the scope of the governmental entity's legislative,

quasi-legislative,            judicial      or      quasi-judicial              functions.

Adherence     to   these      statutory    requirements           for    immunity    under

§ 893.80(4) will avoid extending blanket immunity for claims of

negligently performed work against governmental contractors when

the    sole   basis     for    immunity    is     that      the   work    was   performed

pursuant to a contract with a governmental entity.                               Allowing

governmental       contractors     to     claim    immunity       in     such    instances
                                           35
                                                                            No.       2011AP1158



would    vastly      expand      the    doctrine       of    governmental          immunity.

Applying this rationale to this case, we conclude that Musson

would    not    be    entitled     to    immunity      for    Showers'          claims      that

Musson       negligently        performed       its    work    under        a     government

contract, because Musson has not made a showing that Musson was

an   agent     implementing        a    governmental        entity's    decision            made

within the scope of the entity's legislative, quasi-legislative,

judicial or quasi-judicial functions.

       ¶59     Therefore,       based     on       Musson    failing    to        meet      the

standard      for    a   Wis.    Stat.    § 893.80(4)         agent,   Musson          is    not

entitled       to    immunity     under        § 893.80(4).         Additionally,            we

conclude that the facts set out in support of summary judgment

would not support a claim of governmental contractor immunity

because Musson has failed to assert that the acts for which it

claims immunity were "acts done in the exercise of legislative,

quasi-legislative,         judicial       or       quasi-judicial      functions,"           as

required under § 893.80(4).               Accordingly, Showers' claims should

be analyzed no differently than negligence claims against other

contractors.
       ¶60     Musson may therefore be liable if Showers is able to

show that in performing its work under the government contract,
Musson had a duty of due care to Showers, that Musson breached

that duty, and that such breach was a cause of Showers' damages.
Accordingly, we reverse and                   remand   to    the   circuit        court     for

further proceedings on Showers' claims against Musson consistent

with    this    opinion.         Additionally,         because     Musson's           and   the

City's   cross-claims           were    not    fully   litigated       in       the    circuit
                                              36
                                                            No.     2011AP1158



court and were not addressed by the court of appeals, those

claims should be addressed on remand.

     By   the   Court.—The   decision   of   the   court   of     appeals   is

reversed and the cause remanded to the circuit court.




                                   37
                                                                                   No.     2011AP1158.npc


        ¶61   N.    PATRICK     CROOKS,         J. (concurring).                         This    case       is

about    whether      Musson    Bros.,         Inc.          (Musson)         is    an        agent    of    a

governmental        entity     under      the       test       established               in    the     Lyons

case.     See Estate of Lyons v. CNA Ins. Cos., 207 Wis. 2d 446,

558 N.W.2d 658 (Ct. App. 1996).                              I agree with the majority's

conclusion that under the Lyons test, Musson is not an agent

because Musson has not shown that it was acting pursuant to

"reasonably precise specifications" as the first prong of the

Lyons    test      requires.         Musson             is    therefore            not    entitled          to
immunity.          The grant of summary judgment should therefore be

reversed.          Although    I    do        not       join       the   majority             opinion,       I

respectfully concur for reasons stated herein.

                                                I.

     ¶62      In past cases,             we    have          not    focused         on     whether       the

governmental         entity's        decisions                were       legislative,                 quasi-

legislative,        judicial,       or    quasi-judicial                 as    a     first       step       in

answering the Lyons question.                           Even if the court chooses to

adopt that framework for the Lyons test, I am concerned that the

majority      may    have     taken      an     approach            to    the       Lyons        immunity
analysis      itself    that       could       be       read       as    changing          the    law       on

governmental contractor immunity.                             If that is the majority's
intent, the best way to do so is to acknowledge that, and to

offer more guidance to litigants, lawyers, and courts.
     ¶63      While the majority opinion (at ¶2 n.5) says that there

is no intention to adopt a fundamental change in our immunity

jurisprudence, I am also concerned that, due to some notable

similarities, the majority opinion could be read as endorsing

                                                    1
                                                                    No.    2011AP1158.npc


the type of fundamental change that Justice Gableman advocates

in a concurrence in an unrelated governmental immunity case.1

While I share Justice Gableman's dismay with some aspects of

this       court's   immunity    jurisprudence,        I    favor    an     incremental

approach to correcting the problems.                       A good place to start

would be to recognize that our prior cases have construed the

ministerial duty exception to immunity too narrowly.2

       ¶64     The majority's approach provides little guidance as to

how    the     showing   it     requires    could      be    met.         The    majority

concludes       that   "[T]he    facts     set   out    in    support       of   summary

judgment would not support a claim of governmental contractor

immunity because Musson has failed to assert that the acts for

which it claims immunity were 'acts done in the exercise of

       1
       See Bostco, LLC v. Milwaukee Metro. Sewerage Dist., 2013
WI 78, ¶103, ___ Wis. 2d ___, ___ N.W.2d ___ (Gableman, J.,
concurring):

       I would . . . do away with the ministerial duty and
       known danger exceptions and restore our immunity
       jurisprudence to conform with § 893.80(4) and Holytz.
       That   is,   governmental  entities,   officials,   and
       employees should be entitled to immunity only for
       "acts done in the exercise of legislative, quasi-
       legislative, judicial, or quasi-judicial functions."
       Wis. Stat. § 893.80(4); see also [Holytz v. City of
       Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962)].
       2
       A brief definition of a "ministerial duty" is something
that is "absolute, certain and imperative, involving merely the
execution of a set task, and when the law which imposes it
prescribes and defines the time,      mode and occasion for its
performance with such certainty that nothing remains for
judgment or discretion." This definition is cited in Lister v.
Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976),
which takes language from Meyer v. Carman, 271 Wis. 329, 332, 73
N.W.2d 514 (1955) (quoting 18 Eugene McQuillin, Municipal
Corporations § 53.33, at 225 (3d ed.)).

                                           2
                                                                          No.    2011AP1158.npc


legislative,        quasi-legislative,              judicial         or     quasi-judicial

functions.'"        Majority op., ¶4.

       ¶65    In cases involving immunity, the analysis has usually

focused on whether the alleged negligent acts were discretionary

or non-discretionary, and immunity determinations often turned

on such analysis.              Here, the majority holds that Musson must

make an initial showing before application of the three prongs

of    the    Lyons       test     for    governmental              contractors         claiming

immunity.      Specifically, the majority faults Musson for failing

to "assert that the acts for which it claims immunity were 'acts

done in the exercise of legislative, quasi-legislative, judicial

or quasi-judicial functions' . . . ."                         See majority op., ¶59.
Litigants may be unable to discern from this opinion what sort

of facts they must allege in order to establish that immunity

applies.      When this court crafts a somewhat different analytical

framework, the best practice is to clearly lay out the reasons

for   the    change,      and    articulate        what      litigants       must      show   to

satisfy the standard.

       ¶66    There are striking similarities between the language
of the majority and the language of Justice Gableman's Bostco

concurrence.            Both    opinions      read      the    statute          as   requiring
parties      who   would       claim    immunity        to    show    that       the    alleged

negligent     act    was       related   to       the   exercise       of       "legislative,
quasi-legislative, judicial, or quasi-judicial functions."                                    In

Justice Gableman's Bostco concurrence, he advocates "restor[ing]

Holytz by placing the burden on the government to show that it

is    entitled     to    immunity,       as   opposed         to    the     status      quo   in

                                              3
                                                                    No.    2011AP1158.npc


Wisconsin, where it is now the plaintiff's responsibility to

prove that immunity was pierced."                   Bostco,        LLC    v.   Milwaukee

Metro. Sewerage Dist., 2013 WI 78, ¶113, ___ Wis. 2d ___, ___

N.W.2d ___ (Gableman, J., concurring).                  The Bostco concurrence

endorses a test under which "[t]he governmental entity seeking

to    establish     immunity    bears    the    burden       of    proving"      certain

facts.       Id.     Similarly, under the majority's holding in this

case, a governmental contractor who seeks to invoke statutory

immunity bears at least the initial burden of establishing that

the    government      entity's       decisions     were     legislative,        quasi-

legislative,       judicial,    or    quasi-judicial.             Majority     op.,   ¶2.

Compare      Bostco,     ___    Wis.     2d    ____,       ¶103     (Gableman,        J.,
concurring)        ("governmental      entities,      officials,         and   employees

should    be    entitled   to    immunity      only    for    'acts       done   in   the

exercise of legislative, quasi-legislative, judicial, or quasi-

judicial functions'"), with majority op., ¶27 n.13 ("Musson does

not specify whether the immunity it seeks is legislative, quasi-

legislative, judicial or quasi-judicial in nature.").

       ¶67     Further, in this case, there was extensive briefing on
the potential application of the ministerial duty exception to

immunity, and yet the majority does not address the arguments or

acknowledge its potential application.                 This might be viewed by

some as consistent with Justice Gableman's suggestion that in

immunity cases analysis of ministerial duty should be "do[ne]

away   with."        Bostco,    ___    Wis.    2d   ___,     ¶103    (Gableman,       J.,

concurring).



                                          4
                                                                 No.      2011AP1158.npc


        ¶68    An incremental approach that would be more consistent

with our jurisprudence would be one that addresses the problem

of   this      court's    overly     narrow    interpretation        of   ministerial

duty.         Our    ministerial     duty    analysis   at   times    turns    into   a

search to find any discretion that could have been exercised,

and then declaring immunity is required.                     Ruling out liability

wherever        any    discretion      is     exercised      essentially       creates

immunity for almost all actions.                   As an influential treatise

noted:

      Stating the reasons for the discretionary-ministerial
      distinction is much easier than stating the rule....
      [T]he    difference    between  "discretionary"   and
      "ministerial" is artificial. An act is said to be
      discretionary when the officer must exercise some
      judgment in determining whether and how to perform an
      act. The problem is that "[i]t would be difficult to
      conceive of any official act, no matter how directly
      ministerial, that did not admit of some discretion in
      the manner of its performance, even if it involved
      only the driving of a nail."
McQuillin, Municipal Corporations § 53.04.10 (3d ed.) (quoted in
Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶136,

235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting)).

        ¶69    The     fact   that    even     a   "directly    ministerial"        act

involves "some discretion in the manner of its performance" can

make it easy for courts to decline to find a ministerial duty

where one in fact exists.              Like Justice Gableman, I believe our

cases have sometimes failed to recognize this and have employed

too restrictive an interpretation of ministerial duty.                             (See

Bostco, ¶109 (Gableman, J., concurring).                  While I do not favor a

fundamental shift in our jurisprudence, we should be mindful of

the fact that declining to determine that a ministerial duty
                             5
                                                                    No.    2011AP1158.npc


exists where any exercise of discretion can be detected leads to

immunizing too much government conduct.                       We should apply the

test         concerning     ministerial   duty     in   a    way    that   serves    the

important public policy objectives that underlie the reasons for

permitting liability where a ministerial duty exists.                           We must

do   a       better   job    of   striking   the    balance        between    too   much

immunity, which creates a heavy burden for those who suffer harm

from negligent government acts, and too much liability, which

creates a heavy burden for taxpayers.

                                           II.

         ¶70     This case concerns only one small subset of potential

government agents——private governmental contractors.

         ¶71     Yet, the majority has serially cited public employee

and other public official immunity cases.                      See, e.g., majority
op., ¶¶22 n.12, 24, 26.                 Those cases are not relevant to the

Lyons analysis and are advanced despite the presence of a line

of private governmental contractor immunity cases that apply the

Lyons         test    and     private     governmental        contractor       immunity

principles in their proper contexts.3                       See, e.g., Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d




         3
       An additional concern is the majority's apparent criticism
of two private governmental contractor immunity cases. Majority
op., ¶¶40-44.     In a few cursory sentences, it calls into
question the analyses of the court of appeals in Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d
222 and Estate of Brown v. Mathy Const. Co., 2008 WI App 114,
313 Wis. 2d 497, 756 N.W.2d 417.     Majority op., ¶¶41, 44.   Is
the majority sub silencio overruling Bronfeld and Estate of
Brown?
                                6
                                                       No.   2011AP1158.npc


222; Estate of Brown v. Mathy Const. Co., 2008 WI App 114, 313

Wis. 2d 497, 756 N.W.2d 417.4

     ¶72   Here,   the   Lyons     test   determines    which     private

governmental   contractors   are   considered   "agents"     under    Wis.

Stat. § 893.80(4) such that they may be shielded by immunity.5
     4
       In   its   analysis,  the   majority   characterizes   as
precedential the court of appeals decision in Jankee v. Clark
Cnty., 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), rev'd by
Jankee v. Clark Cnty., 2000 WI 64, 235 Wis. 2d 700, 612 N.W.2d
297. See majority op., ¶33. This court has not decided whether
a court of appeals decision that has been reviewed by this court
has precedential value.

     In my view, when this court reviews a decision of the court
of appeals, the court of appeals opinion no longer has
precedential value. As this court stated in Blum v. 1st Auto &
Cas. Ins. Co., 2010 WI 78, ¶54, 326 Wis. 2d 729, 786 N.W.2d 78,
"[c]ircuit courts should not be forced to engage in a legal
analysis as to precisely which holdings in court of appeals
decisions are still good law, or whether, based on some
particular language in the supreme court decision, the general
rule should not be applied."    Such a rule would prevent that
kind of confusion.
     5
       This court has never addressed the propriety of the Lyons
test, which appears inconsistent with the analysis of the court
of appeals in Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 530
N.W.2d 399 (Ct. App. 1995).    The Kettner court determined that
Wis. Stat. § 893.80(3), which sets forth a damage cap, applies
only   to  "agents"   who  are   subject   to  a   master-servant
relationship. 191 Wis. 2d at 734. The requirement of a master-
servant relationship might not be established solely by
establishing the three elements of the Lyons test, which
determines if a private governmental contractor is an "agent"
under Wis. Stat. § 893.80(4).    Compare id. at 737 (discussing
indicia of a right to control required in a master-servant
relationship) with Lyons, 207 Wis. 2d at 457-58 (discussing the
requirement of reasonably precise specifications).

     Thus, Wis. Stat. § 893.80(3) and Wis. Stat. § 893.80(4)
appear to set forth different standards for the same statutory
term, "agent."   However, because no one in this case asks this
court to revisit Lyons or Kettner or to resolve that apparent
discrepancy, I employ the Lyons test assuming its propriety.
                                   7
                                                               No.    2011AP1158.npc


In order to be deemed a Wis. Stat. § 893.80(4) "agent," Musson

must show that:

     (1) the governmental authority                approved     reasonably
     precise specifications;

     (2) the contractor's            actions      conformed     to      those
     specifications; and

     (3) the contractor warned the supervising governmental
     authority about the possible dangers associated with
     those specifications that were known to the contractor
     but not to the governmental officials.
207 Wis. 2d at 457-58.

     ¶73     In this case, the parties dispute whether the first

requirement    of    the    Lyons   test   is    met.   Thus,        the   relevant

inquiry is whether a governmental authority approved reasonably

precise specifications addressing Musson's negligent conduct.

     ¶74     To determine whether a governmental authority approved

reasonably precise specifications, I look to Musson's contract,

which sets forth its obligations regarding the road construction

project at issue.          Musson's ability to independently choose the

methods of construction on the project is governed by a "means
and methods" clause in the contract, which provides:

     [The contractor] is solely responsible for the means,
     methods, techniques, sequences, or procedures of
     construction described in and expressly required by
     the contract.
     ¶75     Under the "means and methods" clause, Musson was left
with near-absolute freedom to choose the means and methods by

which it constructed the street——irrespective of the means and
methods    actually     preferred     by   the     governmental       authorities

overseeing     the    project.       The   Department     of     Transportation

supported that interpretation when it concluded that the "means
                               8
                                                                          No.     2011AP1158.npc


and    methods"       clause    meant      that     Musson    could        choose     its    own

method of construction relating to the storm sewers at issue.

See majority op., ¶¶11-12.

        ¶76    Ultimately,      Musson's          substantial          freedom      under    the

"means        and    methods"       clause        dooms     its        argument     that     the

government approved reasonably precise specifications addressing

its     alleged        negligent       conduct.              To        establish      that     a

specification is reasonably precise, Musson must have had its

discretion significantly curtailed in some way.                                   Bronfeld v.
Pember Cos., Inc., 2010 WI App 150, ¶¶29-30, 330 Wis. 2d 123,

792 N.W.2d 222 (requiring a showing by a governmental contractor

that      the        specifications             "significantly            curtailed"         the

contractor's           discretion          in       order         to      establish         that

specifications are reasonably precise under Lyons).                                The "means

and    methods"       clause    fails      to     clear     that       hurdle    under      these

facts.

        ¶77    Because      there    was     no     government-approved             reasonably

precise specification that addresses Musson's negligent conduct,

I conclude that Musson failed to establish that it is an "agent"
under    Wis.       Stat.   § 893.80(4)         pursuant      to       Lyons.       Therefore,

Musson is not shielded by the grant of immunity set forth in
Wis. Stat. § 893.80(4).             Accordingly, I respectfully concur.

        ¶78    I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.




                                                9
    No.   2011AP1158.npc




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