                                                                       2013 WI 60

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2011AP583
COMPLETE TITLE:         Marilyn M. Brown and Delores M. Schwartz,
                                  Plaintiffs-Appellants-Petitioners,
                        Dean Health Insurance, Inc., Conseco Insurance
                        Company and
                        Kathleen Sebelius,
                                  Involuntary-Plaintiffs,
                             v.
                        Acuity, A Mutual Insurance Company, Parnell P.
                        Burditt,
                        American Alternative Insurance Company and
                        Okauchee Fire Department,
                                  Defendants-Respondents,
                        Utica Mutual Insurance Company,
                                  Defendant.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 342 Wis. 2d 236, 815 N.W.2d 719
                                  (Ct. App. 2012 – Published)
                                     PDC No: 2012 WI App 66

OPINION FILED:          July 9, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 12, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Waukesha
   JUDGE:               Donald J. Hassin Jr.

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiffs-appellants-petitioners,         there     were
briefs by Don C. Prachthauser, Keith R. Stachowiak, and Murphy &
Prachthauser, S.C., Milwaukee, and oral argument by Keith R.
Stachowiak.


       For        defendants-respondents American Alternative Insurance
Company      and    Okauchee   Fire    Department,   there   was   a    brief   by
Bennett J. Brantmeier, Amanda J. Ramaker, Danielle H. Thompson
and     Brantmeier    Law,   LLC,     Jefferson,    with    oral    argument     by
Bennett J. Brantmeier.


        For   defendants-respondents         Acuity,    A   Mutual       Insurance
Company, and Parnell P. Burditt, there was a brief filed by
Lance    S.   Grady   and    Daniel    K.    Miller,    Waukesha,       with   oral
argument by Lance S. Grady.


      An amicus curiae brief was filed by J. Michael Riley and
Axley Brynelson, LLP, Madison, and oral argument by J. Michael
Riley on behalf of Wisconsin Association for Justice.


      An amicus curiae brief was filed by Michele M. Ford and
Crivello      Carlson,   S.C.,      Milwaukee,     on   behalf     of    Wisconsin
Defense Counsel.




                                         2
                                                                          2013 WI 60
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2011AP0583
(L.C. No.   2010CV520)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Marilyn M. Brown and Delores M. Schwartz,

            Plaintiffs-Appellants-Petitioners,

Dean Health Insurance, Inc., Conseco Insurance
Company and Kathleen Sebelius,

            Involuntary-Plaintiffs,

      v.
                                                                       FILED
Acuity, A Mutual Insurance Company, Parnell P.                     JUL 9, 2013
Burditt, American Alternative Insurance Company
and Okauchee Fire Department,                                        Diane M. Fremgen
                                                                  Clerk of Supreme Court

            Defendants-Respondents,

Utica Mutual Insurance Company,

            Defendant.




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

cause remanded.



      ¶1    ANN   WALSH     BRADLEY,    J.   The     petitioners,        Marilyn      M.

Brown (Brown) and Delores M. Schwartz (Schwartz), seek review of

a   published     opinion    of   the   court   of     appeals      affirming       the
                                                                           No.   2011AP0583



circuit    court's    grant    of    summary      judgment       in    favor       of   the

defendants,      dismissing        Parnell      P.   Burditt          (Burditt),        the

Okauchee Fire Department (OFD), and their insurers.1                             Brown and

Schwartz commenced an action alleging that Burditt, a volunteer

firefighter and a member of the OFD, negligently caused their

injuries when he drove his vehicle through a red stop signal

into an intersection, where it collided with a vehicle carrying

Brown and Schwartz.          The circuit court granted summary judgment

dismissing Burditt, the OFD, and their insurers on the grounds

that Burditt is shielded by public officer immunity and that his

acts do not fall within the ministerial duty exception to that

immunity.

      ¶2      Brown and Schwartz argue that Burditt was not acting

within the scope of his employment as a volunteer firefighter

when the collision occurred, thus placing him outside the class

of    individuals       subject        to        public      officer             immunity.

Additionally, they argue that because Burditt acted contrary to

a ministerial duty to stop at the red stop signal, his acts fall
within     the   ministerial        duty       exception    to        public       officer

immunity.
      ¶3      We conclude that Burditt was acting within the scope

of his employment when the collision occurred.                        Accordingly, he
is   within    the   class    of   individuals       that   may       be    shielded     by

public officer immunity.

      1
       Brown v. Acuity, 2012 WI App 66, 342 Wis. 2d 236, 815
N.W.2d 719, affirming the circuit court for Waukesha County,
Donald J. Hassin, J., presiding.

                                           2
                                                                              No.    2011AP0583



        ¶4     However,        we    further       conclude       that    Burditt      is    not

entitled        to    public        officer    immunity           because    his     acts     in

proceeding through the red stop signal without an audible signal

violated a clear ministerial duty.                      He therefore falls within

that exception to public officer immunity.                              The "rules of the

road" statutes codified at Chapter 346 of the Wisconsin Statutes

required Burditt to stop at the red stop signal because his

vehicle lacked an audible signal.                     Because Burditt's acts fall

within        the     ministerial       duty       exception        to      public    officer

immunity, he is not shielded by immunity and summary judgment is

not appropriate.             Accordingly, we reverse the court of appeals

and remand for further proceedings.

                                               I

        ¶5     The material facts of this case are undisputed.                                On

June 8, 2008, a dark and rainy evening, Burditt was driving his

truck on his way to the OFD fire station when he came to an

intersection          with     a     four-lane       divided        highway.          It     was

approximately          10:20    p.m.,    and       Burditt        was    responding     to    an
emergency call issued by the OFD.                       The OFD is organized as a

non-stock corporation and serves several communities in the area
around Okauchee, Wisconsin.                   Burditt has been a member of the

OFD   since         2002.      Burditt    served       as     a    Lieutenant        volunteer
firefighter          and     Emergency        Medical       Services        (EMS)     Service

Director with the OFD.
        ¶6     When Burditt reached the intersection, he encountered

a red stop signal and accordingly he brought his truck to a

stop.        His truck had three flashing lights activated, but it had
                                               3
                                                                                No.    2011AP0583



no    audible       signal.2           Burditt        looked    to     his    left    into   the

southbound lanes of the intersecting road and saw that there was

no oncoming traffic coming from that direction, so he proceeded

through the red stop signal into the middle of the intersection.

       ¶7      Burditt stopped his truck again at the median between

the northbound and southbound lanes of the intersecting road.

He    looked       to    the   right     into     the    northbound          lanes.    Seeing   a

vehicle coming, he waited for the other vehicle to pass through

the    intersection.                  However,        just     prior     to     reaching     the

intersection, the other vehicle pulled over to the side of the

road and stopped.

       ¶8      After         seeing    the    other      vehicle       pull    over,    Burditt

proceeded across the northbound lanes, still against the red

stop signal.            A third vehicle that had been traveling behind the

vehicle that pulled over collided with Burditt's vehicle as he

was crossing the northbound lanes.                           He did not see the vehicle

that collided with his truck.                     Burditt later acknowledged that

he had no authority to proceed against the red stop signal,
calling it a "poor decision."

       ¶9      As indicated, Burditt was on the road on the evening
of    June     8        in   response        to   the     OFD's      emergency        call   for




       2
       One revolving red light was located on the vehicle's
center dash, another flashing light was located on the vehicle's
driver side, and a strobe light was mounted on the passenger-
side visor.

                                                  4
                                                                               No.   2011AP0583



assistance.3          The     OFD      uses   a       system    of    pagers    to   dispatch

emergency calls to volunteer firefighters.                             When the volunteer

firefighters receive the call on their pagers, they decide if

they can respond.           In most cases, responding to a call initially

means       leaving    from    home,      work,         or    some    other    location    and

traveling to the fire station.                        For calls that are related only

to EMS, the volunteer firefighters respond directly to the scene

of the emergency.

     ¶10       The call that was issued on June 8 was not an EMS-only

call, and therefore Burditt was traveling to the fire station.

The means and methods by which Burditt traveled to the station

were left up to him.

     ¶11       The    OFD     exercises       no        control       over    how    volunteer

firefighters          choose      to     travel         to     the    fire     station    when

responding to a call.               Variables of travel such as route, speed,

and the type of vehicle used to travel to the fire station are

left entirely to the volunteer firefighters.

     ¶12       When the volunteer firefighters arrive at the station
on an emergency call, generally they are expected to obtain the

needed       equipment      for      responding          to     the    emergency.         Once
equipped, the volunteer firefighters then travel to the scene of

the emergency.          Assignments in responding to the emergency are
normally given en route to the call.


        3
       The emergency later turned out to be a flooded basement.
However, Burditt did not know the call was for a flooded
basement when he received it——he received only a message on his
OFD-issued pager that an emergency was taking place.

                                                  5
                                                                       No.    2011AP0583



     ¶13    The OFD procedures are collected in a set of Standard

Operating Guidelines that are set forth by the OFD.                           One such

guideline governs the manner in which volunteer firefighters may

utilize personal vehicles to respond to calls:

     S.O.G. 300.0

     Goal: Provide a guideline for the operation of motor
     vehicles.

     . . . .

     Use of Personal Vehicles

     A) Members may have emergency lights only

     B) Members vehicles used to respond to alarms are not
     covered by the Okauchee Fire Department

     C) Unless authorized, emergency lights will not be
     used, if responding more than 15 minutes f[rom] the
     fire station.    Red lights may be used only when
     responding to an alarm for OKFD, unless authorized by
     O.I.C.

     No warning device         will      automatically       grant      you   the
     right of way!
Another    guideline    states      that       "Wisc.   Statute       346.03"   is    an

"Applicable     State   Statute[]"       for     emergency      vehicles      and   that

guideline   reminds     the   volunteer         firefighters      that       they   "are
responsible to operate within these guidelines" when operating

vehicles for the OFD.
     ¶14    Officers    of    the   OFD        are   expected    to    carry    pagers

twenty-four hours a day, seven days a week.                       When a call to
respond to an emergency goes out, the officers are expected to

respond    to   the   emergency     if     available.        From      the    time   of
dispatch until the time that an emergency call ends, Burditt and


                                           6
                                                          No.    2011AP0583



other members of the OFD are obligated to follow the orders of

their commanding officers.

     ¶15   Brown and Schwartz were passengers in the vehicle that

collided   with   Burditt's   truck.   They   commenced   this    action,

alleging that Burditt negligently caused their injuries.               The

allegations in the complaint are brief and are set forth in

relevant part as follows:

    On June 8, 2008, in Waukesha County, Wisconsin, a
    motor vehicle collision occurred involving automobiles
    being driven by defendant, Parnell Burditt, who was
    responding to a volunteer fire call with the Okauchee
    Fire Department and struck the automobile being driven
    by Frank V. Brown.    Plaintiffs, Marilyn M. Brown and
    Delores M. Schwartz were passengers in the vehicle
    operated by Frank V. Brown.

    [] The negligence of defendant, Parnell Burditt, was a
    substantial factor causing the collision.
    ¶16    Burditt moved for summary judgment, arguing that he

was acting within the scope of his employment with the OFD when

he was responding to the call and traveling to the fire station,

and that he was therefore shielded by public officer immunity.4

     4
       Under Wis. Stat. § 893.80(4), public officers are immune
from liability for certain acts.      The statute provides as
follows:

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

                                   7
                                                                           No.    2011AP0583



Additionally, he contended that his acts in proceeding through

the intersection were discretionary, and as a result, he did not

fall within the ministerial duty exception to public officer

immunity.         In response, Brown and Schwartz argued that Burditt

was not entitled to immunity because he was not acting within

the scope of his employment when the accident occurred and that

his acts were contrary to a ministerial duty to stop at the red

stop signal.

       ¶17    In addressing the motion, the circuit court considered

first whether Burditt was acting in the scope of his employment

at the time the collision occurred.                      It determined that "the

minute that . . . he's responding to the circumstances of the

emergency, whether he goes to the firehouse, the scene of the

motor vehicle accident, the crisis . . . it's occurring within

the    scope       of   the    umbrella     covered         by     the    Okauchee       Fire

Department,         [and]     he   is    acting       within     the      scope    of    his

employment."

       ¶18    It addressed next whether Burditt acted contrary to a
ministerial duty when he proceeded through the red stop signal.

The circuit court explained that the act of going through the
red    stop       signal    requires    discretion,         "one    to     operat[e]     the

vehicle, two [to] put your foot on the accelerator, and three
[to] drive your car through the intersection."                           It distinguished

a   duty     to    "obey    traffic     laws"   from    a    ministerial         duty,    and
ultimately concluded that the duties imposed on Burditt in this

case   were       not   ministerial.       As     a   result,       the    circuit      court


                                            8
                                                                               No.     2011AP0583



granted summary judgment dismissing Burditt and his insurer from

the case.

       ¶19    The     OFD     subsequently           moved       for    summary       judgment,

arguing      that     the     circuit         court's       rationale         for    dismissing

Burditt from the action entitled it also to immunity and to the

same     relief.        The       circuit       court       granted      summary       judgment

dismissing      OFD    and    its       insurer      from       the    case   "for     the    same

reasons" that it dismissed Burditt and his insurer.

       ¶20    The     court       of    appeals       affirmed         the    circuit    court.

Brown v. Acuity, 2012 WI App 66, 342 Wis. 2d 236, 815 N.W.2d

719. Addressing first whether Burditt was within the scope of

his employment, the court of appeals determined that Burditt's

relationship with the OFD is "nontraditional."                                 Id., ¶9.           It

observed       that         although          Burditt        chooses          the     mode        of

transportation and the route he will take once a call comes in,

"it is the OFD that decides when a call goes out and to whom."

Id.      The court of appeals opined that volunteer firefighters

"are actuated by a purpose to serve the fire department from the

moment    they      choose     to      respond       to    an    emergency      call."         Id.

Ultimately,      it    concluded         that     Burditt        was    acting       within    the

scope of his employment while en route to the fire station.                                   Id.

       ¶21    Turning        to        address       whether          Burditt's       acts        in

proceeding       through      the       red    stop       signal      were    contrary       to     a

ministerial      duty,       the       court    of    appeals         determined      that     the

ministerial duty exception to public officer immunity does not

apply.       It concluded that although Burditt undisputedly "failed

to meet" the standard set forth in Wis. Stat. § 346.03(3) (2009-
                                                 9
                                                                No.     2011AP0583



10)5   requiring    an   audible   and    visual   signal     when    proceeding

through a red stop signal, that failure merely "subjected him[]

to the penalty for violating" the statute and did not render the

duty to comply ministerial.        Id., ¶18

                                     II

       ¶22   In this case, we are called upon to review the opinion

of the court of appeals that affirmed the circuit court's grant

of summary judgment in favor of the defendants.                      The circuit

court dismissed Burditt, the OFD, and their insurers because of

its    conclusion   that   Burditt       is   shielded   by   public     officer




       5
       All subsequent references to the Wisconsin Statutes refer
to the 2009-10 version unless otherwise indicated.     Wisconsin
Stat. § 346.03(3) provides as follows:

       (3)   The  exemption   granted  the   operator  of  an
       authorized emergency vehicle by sub. (2)(a) applies
       only when the operator of the vehicle is giving visual
       signal by means of at least one flashing, oscillating
       or rotating red light except that the visual signal
       given by a police vehicle may be by means of a blue
       light and a red light which are flashing, oscillating
       or rotating, except as otherwise provided in sub.
       (4m). The exemptions granted by sub. (2)(b), (c) and
       (d) apply only when the operator of the emergency
       vehicle is giving both such visual signal and also an
       audible signal by means of a siren or exhaust whistle,
       except as otherwise provided in sub. (4) or (4m).

     The requirements set forth in Wis. Stat. § 346.03(3)
qualify a grant of privilege to the operator of an authorized
emergency vehicle to "[p]roceed past a red or stop signal or
stop sign, but only after slowing down as may be necessary for
safe operation." Wis. Stat. § 346.03(2)(b).

                                     10
                                                                     No.   2011AP0583



immunity.6        Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is

entitled     to    a    judgment     as    a    matter   of   law.     Wis.     Stat.

§ 802.08(2).        Here, the material facts are undisputed and the

resolution of the case ultimately turns on questions of law.

     ¶23     The first question presented is whether Burditt falls

within a class of individuals who may be shielded by public

officer immunity because he was acting within the scope of his

employment as a volunteer firefighter at the time the accident

occurred.     Whether Burditt was acting within the scope of his

employment        given      the   undisputed     material    facts    presents     a

question     of        law    that    we       review    independently     of     the

determinations of the circuit court and the court of appeals.


     6
       The OFD and            its insurer argue that Burditt is, and
therefore that they            are, shielded by immunity.   Additionally,
they echo Burditt's           argument that Burditt was within the scope
of his employment at          the time of the collision.

     The OFD and its insurer appear to advance these positions
because they additionally contend that Burditt's insurer is the
primary insurer under Wis. Stat. § 895.46, a statute that sets
forth indemnification criteria for governmental entities when
public officers become liable for acts committed within the
scope of their employment.    They reason that if Burditt was
within the scope of his employment and not immune, the
limitation on damages set forth in Wis. Stat. § 893.80(3)
applies to any damages that are awarded.    Thus, any potential
damages would fall within the liability limits of Burditt's
insurance policy and they would not be responsible for any
damages.

     The questions concerning the OFD's ultimate liability and
whether there are statutory limitations on any damages that may
be awarded are outside the scope of our review and we do not
address them.

                                           11
                                                                  No.     2011AP0583



See Olson v. Connerly, 156 Wis. 2d 488, 494-95, 457 N.W.2d 479

(1990).

        ¶24   If we determine that Burditt was acting within the

scope of his employment as a volunteer firefighter, we must then

determine whether Burditt's acts in proceeding through a red

stop signal fall within the ministerial duty exception to public

officer immunity.          Whether the ministerial duty exception to

public officer immunity applies to undisputed facts presents a

question      of     law     that   we    review      independently       of      the

determinations of the circuit court and the court of appeals.

Pries v. McMillon, 2010 WI 63, ¶19, 326 Wis. 2d 37, 784 N.W.2d
648.

                                         III

        ¶25   We first address whether Burditt was acting within the

scope of his employment at the time of the collision.                         Burditt

argues that he was acting as a volunteer firefighter from the

moment he chose to respond to the call and began to travel to

the fire station.          He contends that this case differs from a

typical commuter case and therefore the general rule set forth

in DeRuyter v. Wis. Elec. Power Co., 200 Wis. 2d 349, 546 N.W.2d

534    (Ct.   App.   1996)    stating    that    an   employee   is     not    acting

within the scope of his employment when going to and from a

given     place      of    employment     does     not   apply    under         these

circumstances.       Because he was merely acting within the scope of

his employment, Burditt contends that he falls within the class




                                         12
                                                                         No.    2011AP0583



of individuals to which public officer immunity applies.7                           Thus,

the   ultimate      aim     of    our     inquiry    into    whether     Burditt    acted

within the scope of his employment is to determine whether he

falls within the class of individuals who may be shielded by

public officer immunity.

       ¶26     We   begin        that     inquiry    by     examining     DeRuyter     to

determine whether it sets forth an analytical framework for the

present case.        In that case, an individual was driving from his

home to a vocational training session at his employer's central

training       center.       DeRuyter,        200     Wis.     2d   at   355.       While
traveling, he lost control of his vehicle and caused a tanker

filled with jet fuel to jackknife, roll down an embankment, and

burst into flames, killing its driver.                    Id. at 355-56.

       ¶27     Two civil actions were commenced after the accident,

and both alleged that the driver was acting within the scope of

his    employment         with     Wisconsin        Electric    when     the    accident

occurred.       Id. at 356.             The allegations were advanced in order

to    render    Wisconsin         Electric    vicariously       liable    through     the

doctrine of respondeat superior.                  Id. at 358-59.

       7
       Public officer immunity applies "regardless of whether the
public [officer] is employed by the state or by a political
subdivision of the state," such as a municipality. Kierstyn v.
Racine Unified School Dist., 228 Wis. 2d 81, 89, 596 N.W.2d 417
(1999).     Although the OFD is organized as a non-stock
corporation and not as a fire company under Chapter 213 of the
Wisconsin statutes, it is considered a government subdivision or
agency for the purposes of an immunity analysis. See Mellenthin
v. Berger, 2003 WI App 126, ¶¶9, 15, 265 Wis. 2d 575, 666 N.W.2d
120 (a fire department that is a non-stock corporation is
considered a government subdivision or agency for the purposes
of Wis. Stat. § 893.80(4)).

                                             13
                                                                    No.     2011AP0583



      ¶28       The court of appeals, in concluding that the driver

was not acting within the scope of his employment, noted that

the "touchstone of scope-of-employment issues . . . is employer

control over the employee."               Id. at 360.        It set forth as a

"general maxim" in commuter cases that where an employee works

for another at a given place of employment, and lives at home or

boards himself, "it is the business of the employee to present

himself at the place of employment, and the relation of master

and servant does not exist while he is going between his home

and place of employment."              Id. at 361.        Therefore, under those
circumstances, only when the employer "exercises control over

the method or route of the employee's travel to or from work can

the employee be said to be acting within his or her employment."8

Id.       The    DeRuyter     court   focused    on   employer    control    in    the

commuting context because "without such control, the employee is

not actuated by a purpose to serve the employer . . . but is

solely promoting the employee's 'own convenience.'"                      Id. at 361-

62.

      ¶29       Thus,   the    DeRuyter    court's     ultimate     focus    was    on

whether     the    employee     is    actuated   by   a   purpose   to    serve    the

employer.        Id.    Other scope of employment cases likewise focus

on that same requirement.               For example, in Olson v. Connerly,


      8
       See also Murray v. Travelers Ins. Co., 229 Wis. 2d 819,
827, 601 N.W.2d 661 (Ct. App. 1999) ("DeRuyter determined that
an employer could be held vicariously liable for the negligent
acts of an employee when commuting only if the employer
exercised control over the method or route of the employee's
travel.").

                                          14
                                                                  No.     2011AP0583



156 Wis. 2d 488, 457 N.W.2d 479 (1990), this court addressed a

scope-of-employment         question        arising    under       Wis.       Stat.

§ 895.46(1)(a), a public officer indemnification statute.9

     ¶30      In Olson, a faculty member argued that he was acting

within the scope of his employment when he negligently caused

injury to a medical assistant, making the State responsible for

the damages and costs entered against him pursuant to Wis. Stat.

§ 895.46(1)(a).      Id. at 496.        The Olson court surveyed other

scope    of   employment    cases   arising     in    different    contexts      to

determine whether the faculty member was acting within the scope

of his employment.         Id. at 496-97.       It stated that this court

has "always deemed significant the employee's intent at the time

the acts in question were committed."            Id. at 497-98.

     ¶31      Ultimately, the Olson court determined that there is

no requirement that serving the employer be the employee's "only

purpose or even the employee's primary purpose."                   Id. at 499.


     9
       Wisconsin     Stat.    895.46(1)(a)       provides   as     follows,      in
relevant part:

     (1)(a) If the defendant in any action or special
     proceeding is a public officer or employee and is
     proceeded against in an official capacity or is
     proceeded against as an individual because of acts
     committed while carrying out duties as an officer or
     employee and the jury or the court finds that the
     defendant was acting within the scope of employment,
     the judgment as to damages and costs entered against
     the officer or employee, except as provided in s.
     146.89(4), in excess of any insurance applicable to
     the officer or employee shall be paid by the state or
     political subdivision of which the defendant is an
     officer or employee. . . .

                                       15
                                                                         No.   2011AP0583



Rather, an employee's conduct is not within the scope of his

employment if "it is too little actuated by a purpose to serve

the employer or if it is motivated entirely by the employee's

own purposes."           Id. at 499-500.

       ¶32        Here, as in other contexts, the focus of our inquiry

must likewise center on whether an employee is actuated by a

purpose to serve his employer.                     However, a different analysis

from        the    one     set    forth      in    DeRuyter   is    required       under

circumstances where the employee does not have a fixed place of

employment.            Recognizing the differences in cases where there is

no fixed place of employment, the court of appeals declared that

the DeRuyter analysis "does not apply" in those circumstances.10

Murray v. Travelers Ins. Co., 229 Wis. 2d 819, 828, 601 N.W.2d

661 (Ct. App. 1999).

       ¶33        In    Murray,   a    physical     therapist      was    required    to

schedule appointments with clients of her employer and travel to

and    from       the    homes    of   the    patients   to   administer       physical

therapy to them.            Id. at 823-24.          One day, on her way from one


       10
       Case law indicates that there are other exceptions to the
"general maxim" that where an employee works for another at a
given place of employment, and lives at home or boards himself,
"it is the business of the employee to present himself at the
place of employment, and the relation of master and servant does
not exist while he is going between his home and place of
employment." DeRuyter v. Wis. Elec. Power Co., 200 Wis. 2d 349,
361, 546 N.W.2d 534 (Ct. App. 1996). For additional discussion
of the "general maxim" and its exceptions, see Christopher
Vaeth, Employer's Liability for Negligence of Employee in
Driving his or her own Automobile, 27 A.L.R. 5th 174 (1995)
(collecting cases that identify the "coming and going" rule and
the exceptions to that rule, including the "on-call" exception).

                                              16
                                                                                  No.    2011AP0583



appointment    to     another       appointment,               she    was   involved        in     an

automobile     accident          with     a    third       party,          and     one    of     the

passengers in the other vehicle commenced an action against her

and her employer.          Id. at 823.

      ¶34    The court of appeals reasoned that the circumstances

presented in that case distinguished it from DeRuyter because

under   DeRuyter,         the     employee          must       have    a    fixed        place     of

employment.        Id. at 827-28.             Upon determining that the DeRuyter

analysis     did    not    apply,        the       court       of    appeals      examined        the

circumstances of the physical therapist's travel and concluded

that her travel "was actuated by a purpose to serve her employer

when the accident occurred."                  Id. at 831.

      ¶35    Like Murray, the facts of this case do not comfortably

fit into the DeRuyter analysis.                     Burditt is an on-call volunteer

firefighter who could be called to any number of locations at

any time.      Sometimes he may be required to report to the fire

station and sometimes he may need to report directly to the

scene of the emergency depending on the nature of the call.

Even though the OFD guidelines require him to travel first to

the   fire   station       in    responding          to    a    non-EMS         call,    the     fire

station is still not Burditt's ultimate destination.                                    Rather, he

is expected to pick up the necessary equipment and travel again

to the scene of the emergency.

      ¶36    Thus, Burditt is not a typical commuter with a fixed

place of employment as described by DeRuyter.                                    Instead he is

more like the physical therapist in Murray, whose employment

required     her      to        travel        to     a     number          of     destinations.
                                               17
                                                              No.   2011AP0583



Accordingly, the DeRuyter "general maxim" does not apply in this

case.      200 Wis. 2d at 361.     Like the Murray and Olson courts, we

focus instead on whether Burditt was actuated by a purpose to

serve his employer when the accident occurred.

      ¶37     The undisputed facts of this case show that Burditt

was actuated by a purpose to serve the OFD when the accident

occurred.      His entire purpose in traveling to the fire station

on the evening of June 8 was to respond to the emergency call

that had come through on his pager.             No one argues that he had

any other motivation.

      ¶38     Furthermore, once he responded, Burditt was obligated

to   follow    the   orders   of   his    commanding   officers.    Although

DeRuyter does not apply, the fact that Burditt was bound by the
orders of his commanding officers lends further support to our

analysis.11


      11
       In 2011 Wisconsin Act 162, effective April 12, 2012, the
legislature amended Wis. Stat. § 893.80 to expressly provide
that an "agent" for the purposes of the immunity analysis
includes a volunteer firefighter.    One element of the statute
provides that a volunteer firefighter must be "subject to the
right of control of the volunteer company":

      (1b) In this section, "agent" includes a volunteer. In
      this subsection, "volunteer" means a person who
      satisfies all of the following:

      (a) The person provides services or performs duties
      for and with the express or implied consent of a
      volunteer fire company organized under ch. 181 or 213,
      political corporation, or governmental subdivision or
      agency thereof. A person satisfies the requirements
      under this paragraph even if the activities of the
      person with regard to the services and duties and the
      details and method by which the services are provided
                                         18
                                                                         No.    2011AP0583



        ¶39    Therefore, we conclude that Burditt, in responding to

the call, acted within the scope of his employment.                            Because he

was acting within the scope of his employment as a volunteer

firefighter, Burditt falls within the class of individuals who

may be shielded by public officer immunity.                          See Wis. Stat.

§ 893.80(4).

                                              IV

        ¶40    Having determined that Burditt falls within the class

of individuals who may be shielded by public officer immunity,

we   address        next    whether      Burditt's    allegedly      negligent         acts

qualify for an exception to that immunity.                        Brown and Schwartz

argue    that       Burditt      acted   contrary    to   a     ministerial      duty    to

follow    certain         "rules    of   the   road,"     which    are    codified       in

Chapter       346    of    the    Wisconsin    statutes.         Specifically,         they

contend that Burditt disregarded a statutory requirement that he


        and the duties are performed                      are    left     to     the
        discretion of the person.

        (b) The person is subject to the right of control of
        the volunteer company, political corporation, or
        governmental subdivision or agency described in par.
        (a).

     (c) The person is not paid a fee, salary, or other
     compensation by any person for the services or duties
     described   in   par.   (a).   In   this   paragraph,
     "compensation" does not include the reimbursement of
     expenses.

     Wis. Stat. § 893.80(1b) (2011-12).    Although the current
Wis. Stat. § 893.80(1b) was not in effect during the relevant
events of this case, our analysis is consistent with the
elements set forth by the legislature in the recent revisions to
the statute.

                                              19
                                                                 No.   2011AP0583



may not proceed through a red stop signal unless he activates

both an emergency light and an audible signal as set forth in

Wis. Stat. § 346.03(3).

     ¶41      Public   officer    immunity   is    grounded     in   Wis.   Stat.

§ 893.80(4).     The statute provides as follows:

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

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

quasi-judicial functions."           Id.; see also Willow Creek Ranch,

L.L.C. v. Town of Shelby, 2000 WI 56, ¶25, 235 Wis. 2d 409, 611

N.W.2d 693.

        ¶42   The general rule of immunity for public officers in

their    performance    of   acts   within   the   scope   of    employment is

subject to four exceptions identified in case law.                     Scott v.

Savers Property and Cas. Ins. Co., 2003 WI 60, ¶16, 262 Wis. 2d

127, 663 N.W.2d 715.             The four exceptions to public officer
immunity are set forth as follows:

    Both state and municipal immunity are subject to
    several exceptions "representing a judicial balance
    struck between 'the need of public officers to perform
    their functions freely [and] the right of an aggrieved
    party to seek redress.'" . . . There is no immunity
    against liability associated with: 1) the performance
    of ministerial duties imposed by law; 2) known and

                                       20
                                                                              No.     2011AP0583


     compelling dangers that give rise to ministerial
     duties on the part of public officers or employees; 3)
     acts involving medical discretion; and 4) acts that
     are malicious, willful, and intentional.
Lodl v. Progressive Northern Ins. Co., 2002 WI 71, ¶24, 253 Wis.

2d 323, 646 N.W.2d 314.

     ¶43    In    this    case,    the       sole      exception       at     issue    is     the

ministerial      duty     exception.              A     public       officer's        duty       is

ministerial only when it is "absolute, certain and imperative,"

involving the         "performance      of    a specific             task"    that    the     law

imposes    and    defines    the     "time,           mode     and    occasion        for     its

performance      with     such     certainty            that     nothing       remains        for

judgment or discretion."           Lister v. Board of Regents, 72 Wis. 2d
282, 301, 240 N.W.2d 610 (1976).                       If liability is premised on

either     the   negligent        performance            or    non-performance           of      a

ministerial      duty,    then    immunity            will    not    apply.         Lodl,     253

Wis. 2d 323, ¶26.

     ¶44    To determine whether a ministerial duty exists, this

court has in past cases examined the language of an applicable

statute, regulation, or procedure that is argued to impose such

a duty.     See, e.g., id., ¶¶29-30 (examining an operations policy
guideline to determine whether it imposed a ministerial duty);

Bicknese v. Sutula, 2003 WI 31, ¶25, 260 Wis. 2d 713, 660 N.W.2d
289 (evaluating an employee policy manual); Umansky v. ABC Ins.

Co., 2009 WI 82, ¶18, 319 Wis. 2d 622, 769 N.W.2d 1 (examining a
safety     regulation).           The        duty       imposed        by     the     statute,

regulation,      or    procedure     must      conform         to    all     elements       of    a




                                             21
                                                     No.   2011AP0583



ministerial duty.     Yao v. Chapman, 2005 WI App 200, ¶31, 287

Wis. 2d 445, 705 N.W.2d 272.

     ¶45   Here, Brown and Schwartz argue that the "rules of the

road" codified at Chapter 346 of the Wisconsin Statutes imposed

a ministerial duty upon Burditt to stop at a red stop signal.

The "rules of the road" generally require that a vehicle must

stop at a red stop signal:

     (1) Whenever traffic is controlled by traffic control
     signals    exhibiting    different    colored     lights
     successively, or with arrows, the following colors
     shall be used and shall indicate and apply to
     operators of vehicles and pedestrians as follows:

     ...

     (c) Red. 1. Vehicular traffic facing a red signal
     shall stop before entering the crosswalk on the near
     side of an intersection, or if none, then before
     entering the intersection or at such other point as
     may be indicated by a clearly visible sign or marking
     and shall remain standing until green or other signal
     permitting movement is shown.
Wis. Stat. § 346.37(1)(c)1.     Although all vehicles are subject

to the general requirement to stop at a red stop signal, Wis.
Stat. § 346.03 grants authorized emergency vehicles a privilege

to proceed through the red stop signal under certain specified
circumstances.12    The authorized emergency vehicle may "[p]roceed

     12
       An "authorized emergency vehicle" is defined in the
statutes to include "[p]rivately owned motor vehicles being used
by deputy state fire marshals or by personnel of a full-time or
part-time fire department or by members of a volunteer fire
department while en route to a fire or on an emergency call
pursuant to orders of their chief or other commanding officer."
Wis. Stat. § 340.01(3)(d).



                                 22
                                                                                 No.     2011AP0583



past a red or stop signal or stop sign, but only after slowing

down    as     may       be       necessary      for    safe        operation"    and        meeting

additional          conditions           set    forth       in   other    portions           of    the

statute.       Wis. Stat. § 346.03(2)(b).

       ¶46     In    order         to     lawfully      proceed        through    a     red        stop

signal, the operator of the authorized emergency vehicle must

give    a     "visual         signal,"        which    is    defined     as     "at    least        one

flashing,       oscillating              or    rotating       red     light."         Wis.        Stat.

§ 346.03(3).          Furthermore, it must also give an audible signal,

which the statute defines as "a siren or exhaust whistle."                                        Id.

        ¶47    Even if an operator of an authorized emergency vehicle

gives       both     a        visual      and    an     audible        signal,        Wis.        Stat.

§ 346.03(5) still requires that the operator drive "with due

regard under the circumstances for the safety of all persons."

Thus, in order to comply with Wis. Stat. § 346.03 and lawfully

proceed       through         a    red    stop    signal,        an    authorized       emergency

vehicle must slow down as may be necessary for safe operation,

have given both a visual and an audible signal, and must have

proceeded with due regard under the circumstances for the safety

of all persons.

       ¶48     Here,       Burditt        by     his    own      admission      made     a        "poor

decision" to proceed through the red stop signal, proceeding

while giving a visual signal, but not while giving any audible

signal.       His actions are undisputedly contrary to the statutory

requirements         set       forth     in Wis.       Stat.     § 346.03(3).           The       only

question is whether acting contrary to that "rule of the road"

was ministerial.
                                                  23
                                                                        No.      2011AP0583



      ¶49        This court considered whether acting contrary to the

"rules      of    the    road"    may   constitute       an    act   contrary        to   a

ministerial duty in Estate of Cavanaugh v. Andrade, 202 Wis. 2d

290, 550 N.W.2d 103 (1996).                In that case, a law enforcement

official engaged in a high-speed chase with another vehicle that

failed to stop at a red stop signal.                    Id. at 296.         The vehicle

which was being pursued struck and killed a third-party driver.

Id.        The    deceased      driver's   estate     sued     the   law    enforcement

official and the municipality for which he was employed alleging

a cause of action sounding in negligence.                    Id. at 297.

      ¶50        The    municipality    and     the    law     enforcement       official

argued that they were immune from liability.13                          Id.       The law

enforcement officer argued that his alleged negligent initiation

of the high-speed chase and his failure to terminate it were

discretionary           acts,    and    further       argued     that      his    alleged


      13
       The municipality argued that Wis. Stat. § 346.03(6) set
forth no ministerial duty such that failing to comply with a
statutory mandate regarding policies and procedures for high-
speed chases exposed it to liability.    Estate of Cavanaugh v.
Andrade, 202 Wis. 2d 290, 296-97, 550 N.W.2d 103 (1996).     The
Cavanaugh court agreed that the municipality's failure to comply
with Wis. Stat. § 346.03(6) constituted an act contrary to a
ministerial duty. Id. at 301.

     In examining the statute, the court observed that although
"the promulgation of guidelines in general involves a great
amount of governmental discretion, § 346.03(6) makes the
inclusion   of  certain   parts   of   the  policy  promulgation
ministerial." Id. The duty was ministerial because the statute
mandated that law enforcement agencies consider "specific
factors" that were "absolute, certain and imperative, involving
merely the performance of a specific task." Id. (quoting Kimps
v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996)).

                                           24
                                                                               No.     2011AP0583



operation       of    his   vehicle       contrary       to    Wis.     Stat.    § 346.03(5)

requiring due regard under the circumstances for the safety of

all   persons        did    not   mean     that     he     had     acted     contrary        to   a

ministerial duty.           Id. at 315.

        ¶51    The     Cavanaugh         court      determined          that     Wis.        Stat.

§ 346.03(5)          imposed      only     a     discretionary           duty        under     the

circumstances of the case.                 Id. at 315-16.               It noted that the

officer's actions in initiating and continuing the high-speed

chase    were    discretionary,           distinguishing           those      acts    from     the

physical operation of the vehicle, which it suggested may be

ministerial in some circumstances.                   Id. at 316-18.
        ¶52    In Cavanaugh, it was the officer's decisions relating

to the initiation and continuance of the high-speed chase that

constituted the negligent conduct.                       Id.       This court employed a

similar       analysis      in    Lodl,    253      Wis.      2d    323,     ¶27,     where       it

examined law enforcement regulations relating to the decision to

direct traffic at an intersection.                       The Lodl court noted that

the regulations did not require the officer to direct traffic in

any given situation or otherwise remove officer discretion over

the decision to undertake manual traffic control, and determined

that they did not impose a ministerial duty.                           Id.

        ¶53    In this case, Burditt argues that, like the officer

initiating and continuing the high-speed chase in Cavanaugh, his

decision       to     enter       the     intersection           was    not     ministerial.

Likewise, he contends that his decision to proceed through the

red stop signal is comparable to the law enforcement officer

deciding whether to direct traffic in Lodl.                            However, unlike the
                                               25
                                                                            No.    2011AP0583



decisions       to     initiate     and    continue      a    high-speed           chase    in

Cavanaugh and the decision to direct traffic in Lodl, Wis. Stat.

§ 346.03(3)          directly      governs    Burditt's        acts     in        proceeding

through     a    red     stop     signal     without     an    audible        signal       and

satisfies all elements of a ministerial duty.                          Lister, 72 Wis.

2d at 301.

      ¶54    Burditt may proceed through a red stop signal only if

his vehicle gives a visual and an audible signal.                                 Wis. Stat.

§ 346.03(3).          He did not give an audible signal, and therefore,

he had no discretion to proceed through the red stop signal.

The   statute        sets   forth     "absolute,       certain       and     imperative,"

requirements concerning the "performance of a specific task,"

proceeding      through      the    red    stop   signal,      and     it    imposes        and

defines the "time, mode and occasion" for proceeding through the

red stop signal "with such certainty that nothing remains for

judgment or discretion."             Lister, 72 Wis. 2d at 301.
      ¶55    Thus, Wis. Stat. § 346.03(3) imposed upon Burditt a

ministerial duty to stop at the red stop signal.                             He failed to

comply with that ministerial duty and now faces allegations of

negligence      premised on         his failure     to       comply.        He     therefore

falls within the ministerial duty exception to public officer

immunity.

      ¶56    We further observe that as a supplement to Wis. Stat.

§ 346.03, the OFD set forth guidelines that appear to prohibit

its members from proceeding through a red stop signal.                                     The

guidelines state that a personal vehicle must be driven with

"emergency      lights      only,"    excluding    audible       signals          from     use.
                                             26
                                                                          No.     2011AP0583



Also     under       the      "Use    of     Personal     Vehicles"       heading,       the

guidelines caution that "[n]o warning device will automatically

grant you the right of way!"                       Although we need not determine

whether       the     guidelines       themselves       established       a   ministerial

duty, those directives only strengthen our conclusion.

        ¶57    Accordingly, we conclude that Burditt is not shielded

by   public         officer    immunity      because     he     acted    contrary       to    a

ministerial duty.              Because Burditt is not shielded by public

officer immunity, summary judgment dismissing Burditt, the OFD,

and their insurers is not appropriate.

                                               V

        ¶58    In sum, we conclude that Burditt was acting within the

scope     of        his    employment          when     the      collision        occurred.

Accordingly, he is within the class of individuals that may be

shielded by public officer immunity.

       ¶59     However,       we     further    conclude        that    Burditt    is    not

entitled       to     public       officer     immunity       because     his     acts       in

proceeding through the red stop signal without an audible signal
violated a clear ministerial duty.                      He therefore falls within

that exception to public officer immunity.                         The "rules of the
road" statutes codified at Chapter 346 of the Wisconsin Statutes

required Burditt to stop at the red stop signal because his
vehicle lacked an audible signal.                      Because Burditt's acts fall

within        the     ministerial       duty        exception     to    public     officer
immunity, he is not shielded by immunity and summary judgment is

not appropriate.              Accordingly, we reverse the court of appeals

and remand for further proceedings.
                                               27
                                                            No.     2011AP0583



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

reversed and the cause is remanded.




                                   28
    No.   2011AP0583




1
