                                                                      2014 WI 92

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2012AP2499
COMPLETE TITLE:         Eileen W. Legue,
                                   Plaintiff-Appellant,
                        Department of Health and Human Services and
                        Farmers
                        Insurance Exchange,
                                   Involuntary-Plaintiffs,
                             v.
                        City of Racine and Amy L. Matsen,
                                   Defendants-Respondents.




                           ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:          July 25, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 14, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Charles H. Constantine

JUSTICES:
   CONCURRED:
   DISSENTED:           ZIEGLER, BRADLEY, ROGGENSACK, JJJ., dissent.
                        (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the plaintiff-appellant, there were briefs by Timothy
S.   Knurr        and   Gruber   Law   Offices,   LLC,   Milwaukee,    and   oral
argument by Timothy S. Knurr.




       For the defendants-respondents, there was a brief by Thomas
M. Devine,          Anthony P. Hahn,     Jennifer O. Hemmer, and        Hostak,
Henzl & Bichler, S.C., Racine, and oral argument by Thomas M.
Devine.
    An amicus curiae brief was filed by J. Michael Riley and
Axley   Brynelson,   LLP,   Madison,   on   behalf   of   the   Wisconsin
Association for Justice.




                                   2
                                                                    2014 WI 92
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.    2012AP2499
(L.C. No.   2011CV2090)

STATE OF WISCONSIN                        :            IN SUPREME COURT

Eileen W. Legue,

            Plaintiff-Appellant,

Department of Health and Human Services and
Farmers Insurance Exchange,                                      FILED
            Involuntary-Plaintiffs,
                                                            JUL 25, 2014
      v.
                                                               Diane M. Fremgen
                                                            Clerk of Supreme Court
City of Racine and Amy L. Matsen,

            Defendants-Respondents.




      APPEAL from a judgment of the Circuit Court for Racine

County, Charles H. Constantine, Judge.        Reversed and remanded.



      ¶1    SHIRLEY S. ABRAHAMSON, C.J.       This is an appeal from a

judgment of the circuit court for Racine County, Charles H.

Constantine, Judge, dismissing the action of Eileen W. Legue,
                                                                           No.   2012AP2499



the plaintiff,1 against the City of Racine and Amy L. Matsen, a

Racine      police       officer.2     The      court    of    appeals     certified    the

appeal to this court pursuant to Wis. Stat. § (Rule) 809.61.

       ¶2         This     appeal    originates         from    a    collision     at    an

intersection in the City of Racine between the plaintiff's car

and a Racine police car driven by Officer Matsen, the defendant.

The police car was responding to an emergency dispatch calling

the officer to the scene of an accident.

       ¶3         The collision of the automobiles presents an issue of

law at the juncture of Wis. Stat. § 893.80 (2011-12),3 governing

the    immunity          of    municipal   government          and   its   officers     and

employees, and Wis. Stat. § 346.03, governing the rules of the

road for emergency vehicles.

       ¶4         The immunity statute, Wis. Stat. § 893.80(4), declares

that no suit may be brought against any governmental actor for

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

judicial,         or     quasi-judicial    functions.           "These     functions    are

synonymous with discretionary acts."4                      The law of our state is


       1
       The U.S. Department of Health and Human Services and
Farmers Insurance Exchange are involuntary plaintiffs. We refer
only to Eileen W. Legue as the plaintiff for the sake of
simplicity.
       2
       For the sake of simplicity we refer only to Amy L. Matsen,
the police officer, as a defendant.
       3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       4
       Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56,
¶25, 235 Wis. 2d 409, 611 N.W.2d 693.

                                                2
                                                                                   No.     2012AP2499



clear        that    for      municipal      government            actors         "the     rule     is

liability——the exception is immunity."5

       ¶5      The statute governing the rules of the road applicable

to emergency vehicles, Wis. Stat. § 346.03, sets forth statutory

privileges          of   authorized     emergency             vehicles       to       exempt     their

operators from certain rules of the road, but also explicitly

states that an operator of an emergency vehicle is not relieved

of    the     "duty      to   drive    or     ride       with      due      regard       under     the

circumstances for the safety of all persons . . . ."                                     Wis. Stat.

§ 346.03(5).

       ¶6      The       appeal   raises       two      issues        of    law.          The     more

difficult       one       implicates        the       interplay       between          Wis.      Stat.

§§ 893.80(4) and 346.03(5).                  The appeal raises the question of

how     to     reconcile       the     statutory         dichotomy          of        discretionary

immunity       and       ministerial      liability           in   § 893.80(4)            with     the

statutory       imposition        of    a    duty       on     officers          to    operate      an

authorized          emergency        vehicle          "with     due        regard        under     the

circumstances for the safety of all persons" in § 346.03(5).




     "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."   Showers
Appraisals, LLC v. Musson Bros, 2013 WI 79, ¶26, 350
Wis. 2d 509, 835 N.W.2d 226 (citing, inter alia, Willow Creek
Ranch).
       5
       Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39, 115
N.W.2d 618 (1962).   See also Lodl v. Progressive N. Ins. Co.,
2002 WI 71, ¶22, 253 Wis. 2d 323, 646 N.W.2d 314.

                                                  3
                                                  No.    2012AP2499



    ¶7   The issue is phrased by the court of appeals in its

certification memorandum as a question the case law has left

open:

    Does governmental immunity apply when someone is
    injured because an officer proceeds against a traffic
    signal as authorized by Wis. Stat. § 346.03(2)(b)
    (2011-12), if the officer slowed the vehicle and
    activated lights and sirens as required by § 346.03(3)
    but nonetheless arguably violated the duty to operate
    the vehicle "with due regard under the circumstances"
    as       required      by       § 346.03(5)? . . . More
    specifically, . . . when, if ever, the "due regard"
    requirement    imposed  by    § 346.03(5)   becomes   a
    "ministerial" obligation, violation of which will
    create an exception to governmental immunity.6
    ¶8   The second issue of law is whether, assuming liability

for the police officer's alleged negligence, there was credible




    6
       The court of appeals' certification memorandum viewed the
following question as left open by Brown v. Acuity, 2013 WI 60,
¶42, 348 Wis. 2d 603, 833 N.W.2d 96:

    [D]oes immunity apply if an officer's manner          of
    proceeding against a traffic signal fulfills         the
    ministerial duties of Wis. Stat. § 346.03(2)(b)      and
    (3) (that is, the officer slows the vehicle          and
    activates lights and sirens) but arguably violates   the
    duty to operate the vehicle "with due regard under   the
    circumstances" as required by § 346.03(5)?

     The City of Racine and Amy L. Matsen raised the issue of
their governmental immunity by a post-verdict motion seeking
judgment    notwithstanding   the    verdict.       Wis.   Stat.
§ 805.14(5)(b).    A circuit court's order granting a judgment
notwithstanding the verdict is a ruling on an issue of law. The
circuit court in effect granted the motion by dismissing the
action on the ground of governmental immunity.

                               4
                                                                      No.   2012AP2499



evidence to support the jury's verdict that the police officer's

negligence caused the plaintiff's injuries.7

     ¶9     The    first    issue     requires        that     we   interpret      the

immunity statute and the rules of the road statute and apply

them to the facts presented.

     ¶10    The plaintiff asserts that the immunity statute does

not apply to the alleged negligent acts of the police officer in

failing to keep a proper lookout and failing to maintain a speed

that allowed for a proper lookout.                In contrast, the defendant

asserts that the police officer's decisions regarding lookout

and speed, which the plaintiff alleges are part of the duty of

"due regard under the circumstances," are instead part of the

officer's    discretionary      decision         to    enter    the     intersection

against the red light.         In sum, the officer contends that her

decisions    regarding      lookout    and       speed,      when     she   proceeded

through the red light after slowing down with the squad car's

lights     and    siren    engaged    in     compliance        with     Wis.    Stat.

§ 346.03(2)(b) and (3), were immune discretionary acts.
     ¶11    Both parties rely on Estate of Cavanaugh v. Andrade,

202 Wis. 2d 290, 319, 550 N.W.2d 103 (1996), to support their

respective positions.

     ¶12    The    plaintiff   relies       on   the    following       sentence   in

Cavanaugh:



     7
       The City of Racine and Amy L. Matsen challenged the jury
verdict by a motion for directed verdict. The circuit court in
effect granted the motion.

                                        5
                                                                    No.   2012AP2499


      In sum, despite the general discretionary act immunity
      set forth in § 893.80(4), a negligence action may be
      sustained against an officer involved in a high-speed
      pursuit on the grounds that he or she breached the
      duty to operate the vehicle with "due regard under the
      circumstances" under § 346.03(5).
Cavanaugh, 202 Wis. 2d at 319.

      ¶13   The   defendant   relies       on   the   very   next    sentence    in

Cavanaugh:

      However, the negligent operation under § 346.03(5)
      does not include the discretionary decisions to
      initiate or continue a pursuit; such discretionary
      decisions continue to be afforded immunity under
      § 893.80(4).
Id.

      ¶14   In its certification memorandum, the court of appeals

pointed out that Cavanaugh instructs that "an officer can be

liable for negligent driving during an emergency response if

damages were caused by the officer's negligent operation of the

vehicle     beyond   the   context     of       the   discretionary       decision

itself."     Yet this leaves us to puzzle:             Which decisions go to

negligent operation, and which go to the discretionary decision?
      ¶15   The court of appeals explains this gray area left by

Cavanaugh as follows:

      When, if ever, does a public officer's obligation to
      operate an emergency vehicle with "due regard under
      the circumstances" under Wis. Stat. § 346.03(5) create
      an exception to the governmental immunity provided by
      Wis. Stat. § 893.80?

      When, if ever, does a public officer's decision to
      violate rules of the road during an emergency trigger
      potential liability for arguable failure to operate
      with "due regard under the circumstances" by making
      that decision?


                                       6
                                                                           No.    2012AP2499



       ¶16    We conclude that the immunity statute does not apply

in the present case to the police officer's violation of the

duty    to     operate      the     vehicle        "with     due    regard       under    the

circumstances."           A contrary outcome would contravene Wis. Stat.

§ 893.80(4) and 346.03(5), public policy, the rules of statutory

interpretation, and case law.

       ¶17    We further conclude that there was credible evidence

to support the jury verdict of causal negligence on the part of

the police officer.

       ¶18    For the reasons set forth, we reverse the judgment of

the circuit court dismissing the action and remand the matter to

the circuit court to reinstate the jury verdict.

       ¶19    We reach this conclusion by reasoning as follows:

        I.    We    state    the     facts     and     procedural      posture      of     the

              appeal.

        II.    We       survey    the      current    state    of    the     doctrine      of

              governmental           immunity         governed       by      Wis.        Stat.

              § 893.80(4) to give context for our decision in the
              instant case.

        III.       We     state      and      apply    the     rules       of     statutory

              interpretation            to     Wis.        Stat.     § 893.80(4)           and

              § 346.03(5).

        IV.    We       scrutinize      our    case    law,   especially         Estate     of

              Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103

              (1996), for principles guiding our understanding of

              the       interplay        of    Wis.        Stat.    §§ 893.80(4)           and
              346.03(5),           the         distinction          between          immune
                                               7
                                                                              No.     2012AP2499



               discretionary        and    non-immune         ministerial           acts   under

               Wis. Stat. § 893.80(4), and the nature of the duty of

               "due regard" in Wis. Stat. § 346.03(5).

          V.   Upon    holding      that    immunity         does     not    apply     in    the

               instant     case,     we     search         the     record     for     credible

               evidence to support the jury verdict that the police

               officer's      alleged            negligent           acts      caused        the

               plaintiff's injury.

         ¶20   For the reasons set forth, we reverse the judgment of

the circuit court dismissing the action and remand the matter to

the circuit court to reinstate the jury verdict.

                                                 I

         ¶21   The    facts   and    procedural            history    of     this     case   are

undisputed for purposes of this appeal.

         ¶22   On July 27, 2009, Police Officer Amy Matsen responded

to   a    dispatch     calling      her    to        the   scene    of   a   motor     vehicle

accident with unknown injuries.                      She engaged in a full emergency

response, activating her lights and siren in the squad car and
exceeded the speed limit.

         ¶23   At    around   noon,        she       was   proceeding        northbound       on

Douglas Avenue in the City of Racine at a high rate of speed,

occasionally using the car's bullhorn.

         ¶24   As she approached the intersection of Douglas Avenue

and South Street, she observed the red light and slowed her car

to 27 miles per hour.              The posted speed limit was 30 miles per

hour.      Northbound traffic was stopped at the light.                         The officer
maneuvered her car around the traffic stopped at the light and
                                                 8
                                                                              No.       2012AP2499



into    the    southbound         lanes       of       Douglas    Avenue     to     enter      the

intersection.

       ¶25    Before impact, the officer saw another vehicle turn

from the eastbound lane of South Street onto the southbound lane

of   Douglas       Avenue.        The     officer        testified     that       she    had    to

maneuver her car to avoid the turning car.

       ¶26    When the officer's car entered the intersection, the

plaintiff's car was eastbound on South Street at 30 miles per

hour.    Eastbound traffic, including the plaintiff, had a green

light.       The plaintiff did not slow down when she entered the

intersection.            The     plaintiff's           radio    was   on;    the    car's      air

conditioning        was    on;    and     the      car    windows     were    closed.          The

plaintiff         did    not     see    the     officer's         vehicle     or    hear       the

officer's siren or horn.

       ¶27    A    KFC    store        sits   on       the     southwest     corner      of    the

intersection.            Both parties stipulated that the store blocked

the view of cars entering the intersection.                           The plaintiff's car

would not have been visible to the officer and the officer's car
would not have been visible to the plaintiff until about two

seconds before the collision occurred.

       ¶28    When        both     cars       entered           the   intersection,            the

plaintiff's vehicle struck the driver's side of the officer's

vehicle.      The collision was recorded by a dash-mounted camera in

the squad car.

       ¶29    Both the plaintiff and the officer were injured.                                 The

plaintiff brought suit against the police officer and the City
of Racine for injuries sustained.
                                                   9
                                                                   No.    2012AP2499



    ¶30    At     trial,   the    police       officer    conceded       that     she

considered   it    necessary     to    check     for   pedestrians       and    other

vehicles and travel at a reasonable speed to make observations

about traffic, in order to properly exercise her duty of care.

    ¶31    Additionally,       the     parties    stipulated   that       City     of

Racine    Police    Department        Policy     and   Procedure     Number       812

dictates the requirements of an officer in responding to an

emergency request.     The policy reads in relevant part:

    POLICY:

    The operator of an emergency vehicle shall insure that
    he or she has due regard for the safety of all
    occupants of his or her vehicle as well as the safety
    of pedestrians and occupants of other vehicles.

    PROCEDURE:

    When responding to an emergency call or actively
    involved in a pursuit, the following requirements must
    be complied with:

           1. Use emergency lights and siren simultaneously
           and continuously.

           2. At all times, comply with the requirements of
           Wisconsin State Statute [Section] 346.03 relative
           to the giving of audible and visual signals (sub.
           3).

                   a. The emergency vehicle operator may exceed
                   the speed limit without giving audible and
                   visual    signals   under    the   following
                   circumstances (sub. 4):

                       1) While obtaining evidence of a speed
                       violation

                       2) When responding to a call which
                       he/she reasonably believes involves a
                       felony   in  progress   and   reasonably
                       believes any of the following:

                                        10
                                              No.   2012AP2499


              a) Knowledge of his/her presence
              may endanger the safety of a
              victim or other person.

              b) Knowledge of his/her         presence
              may cause the suspected         violator
              to evade apprehension.

              c) Knowledge of his/her presence
              may cause the suspected violator
              to destroy evidence of a suspected
              felony or may otherwise result in
              the   loss   of   evidence  of   a
              suspected felony.

              d) Knowledge of his/her presence
              may cause the suspected violator
              to cease the commission of a
              suspected   felony   before   he/she
              obtains   sufficient   evidence   to
              establish grounds for arrest.

. . . .

5. Keep in mind that the exemptions granted above
do not relieve department members from the duty
to drive with due regard under the circumstances
for the safety of all persons, taking into
consideration:

    a. The type, actions        and   speed    of   the
    vehicle being pursued;

    b. The geographic area of pursuit and its
    population density;

    c. The time of day and day of week;

    d. The vehicular      and   pedestrian     traffic
    present in area;

    e. The road and weather conditions;

    f. The officer's familiarity with the area
    of pursuit.

6.   Although  the   conditions  are   identified
individually, each can have an impact on another;
therefore, the totality of the circumstances
                     11
                                                                            No.    2012AP2499


            should be considered. Their value for decision-
            making purposes is enhanced when considered in
            combination.
      ¶32   The    jury   returned        a     special      verdict,      finding    that,

inter   alia:      (1)    the      defendant         was    causally      negligent     with

regard to the operation of her motor vehicle; (2) the plaintiff

was causally negligent with regard to the operation of her motor

vehicle; and (3) the defendant and the plaintiff were each fifty

percent causally negligent.                   The jury awarded damages to the

plaintiff in the amount of $129,799.72.                          The police officer did
not seek damages in the present case.

      ¶33   After the verdict was returned, the officer brought a

motion for judgment notwithstanding the verdict asserting the

officer's      immunity      and     a    motion           for    a     directed    verdict

challenging, inter alia, the jury's finding of the defendant's

causal negligence.

      ¶34   On     the    motion         for        judgment       notwithstanding       the

verdict, the circuit court ruled as a matter of law that because

the   police     officer's      decision        to    enter       the   intersection     was

discretionary, all her other allegedly negligent decisions were
part of her discretionary decision and immune from suit.                             On the

motion for a directed verdict, the circuit court ruled that the

police officer had a duty to exercise due regard but that in the

instant case the police officer's negligence was not causal.

                                               II

      ¶35   The instant case requires us to survey the current

state of the doctrine of governmental immunity governed by Wis.
Stat. § 893.80 to give context for our decision.

                                               12
                                                                    No.   2012AP2499



     ¶36     Prior to 1961, the common law doctrine of governmental

immunity    generally   barred    tort      suits   against     a    governmental

entity.      In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115

N.W.2d 618    (1962),   the    court   rejected      the     immunity       doctrine

outright      for    municipalities         and     stated     a      new      rule:

"[H]enceforward, so far as governmental responsibility for torts

is concerned, the rule is liability——the exception is immunity."

Holytz, 17 Wis. 2d at 39.        Nevertheless, Holytz declared that a

municipality is not liable for acts done "in the exercise of its

legislative or judicial or quasi-legislative or quasi-judicial

functions."     Holytz, 17 Wis. 2d at 40.

     ¶37     The Holytz court noted that if the legislature deemed

it better public policy, the legislature was of course free to

reinstate immunity.

     ¶38     After   Holytz,   the     legislature      created       Wis.     Stat.

§ 331.43, now numbered § 893.80, setting forth the circumstances

under which the general rule of governmental liability does not

apply.8     The statute codified Holytz's exception to municipal
governmental liability:        Government is immune for acts done in

the exercise of "legislative, judicial, quasi-legislative, and

quasi-judicial functions."9

     8
         Ch. 198, Laws of 1963.
     9
       See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee,
2005 WI 8, ¶53, 277 Wis. 2d 635, 691 N.W.2d 658 (recognizing
that § 893.80 "codified the holding in Holytz regarding immunity
for legislative, judicial, quasi-legislative, or quasi-judicial
acts") (citing Lange v. Town of Norway, 77 Wis. 2d 313, 314-18,
253 N.W.2d 240 (1977)).

                                       13
                                                                   No.    2012AP2499



      ¶39     Wisconsin   Stat.   § 893.80(4)       (which    is    substantially

the same as the provision adopted in 1963) presently reads as

follows:

      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 (emphasis added).
      ¶40     The court has explicated the purpose of the government

immunity statute as protecting separation of powers and avoiding

judicial      intrusion   into    the   policy    decisions        of    the   other

branches.      The court explained:

      The purpose of [governmental] immunity is to ensure
      that courts refuse to pass judgment on policy
      decisions in the province of coordinate branches of
      government, if such a policy decision, consciously
      balancing risks and advantages, took place.10
      ¶41     The   exceptions    to    municipal     and    employee      immunity

represent "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.'"11            The threat of liability and

a   lawsuit    against    governmental       actors   creates      public      policy



      10
       Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 687, 292
N.W.2d 816, 827 (1980) (internal quotation marks and citations
omitted).
      11
       Lodl, 253 Wis. 2d 323, ¶24 (quoting C.L. v. Olson, 143
Wis. 2d 701, 710, 422 N.W.2d 614 (1988)).

                                        14
                                                                 No.     2012AP2499



concerns,    which   governmental     immunity    seeks   to     reduce.       The

public policy concerns include:

     (1) The danger of influencing public officers in the
     performance of their functions by the threat of a
     lawsuit; (2) the deterrent effect which the threat of
     personal liability might have on those who are
     considering entering public service; (3) the drain on
     valuable time caused by such actions; (4) the
     unfairness   of  subjecting   officials  to   personal
     liability for the acts of their subordinates; and (5)
     the feeling that the ballot and removal procedures are
     more appropriate methods of dealing with misconduct in
     public office.12
These public policy considerations have to be balanced against

the need to protect the public against the misfortune of being

injured by a government actor.13

     ¶42    The   court   has   interpreted      the    words    "legislative,

quasi-legislative, judicial or quasi-judicial functions" in Wis.

Stat.      § 893.80(4)    to     be        synonymous     with         the    word




     12
       Lodl, 253 Wis. 2d 323, ¶23 (quoting Lister v. Board of
Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).
     13
          C.L., 143 Wis. 2d at 708-09.

                                      15
                                                         No.    2012AP2499



"discretionary."14    If an act is discretionary, then governmental

immunity provided by Wis. Stat. § 893.80(4) applies.            There is

no   immunity,   however,   for   liability   associated       with   "the

performance of ministerial duties imposed by law."15




     14
       The rule was first announced in Lister v. Board of
Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976), which stated
that "the most generally favored principle is that public
officers are immune from liability for damages resulting from
their negligence or unintentional fault in the performance of
discretionary functions." Lister, 72 Wis. 2d at 301. The court
has echoed this notion multiple times.     See, e.g., Lodl, 253
Wis. 2d 323, ¶21 ("The statute immunizes against liability for
legislative, quasi-legislative, judicial, and quasi-judicial
acts, which have been collectively interpreted to include any
act that involves the exercise of discretion and judgment.");
Willow Creek Ranch, 235 Wis. 2d 409, ¶25 ("Under Wis. Stat.
§ 893.80(4), a municipality is immune from 'any suit' for 'acts
done in the exercise of legislative, quasi-legislative, judicial
or quasi-judicial functions.'    These functions are synonymous
with discretionary acts.").
     15
       Brown,   348     Wis. 2d 603,    ¶42   (quoting     Lodl,       253
Wis. 2d 323, ¶24).

     The ministerial duty, according to some case law, is not so
much   an  exception    as   a   recognition   that   immunity   law
distinguishes   between    discretionary   and   ministerial   acts,
immunizing the performance of the former but not the latter.
See Lodl, 253 Wis. 2d 323, ¶25.

                                  16
                                                           No.   2012AP2499



     ¶43     The   court's    explication    and   application   of    the

doctrine of governmental immunity under Wis. Stat. § 893.80(4)

has come under increasing criticism by members of the court.16

     ¶44     The criticism came clearly and forcefully to the fore

in Scott v. Savers Property & Casualty Insurance Co., 2003 WI

60, 262 Wis. 2d 127, 663 N.W.2d 715.

     ¶45     In Scott, a school guidance counselor gave incorrect

information to a student regarding appropriate classes.               As a

result the student was ineligible for an athletic scholarship.17

A majority of the court held that the counselor was immune,

performing a discretionary act.

     ¶46     The   separate     writings     in    Scott   explore     the

dissatisfaction surrounding the existing governmental immunity-

governmental liability doctrines.           See Scott, 262 Wis. 2d 127,

¶58 (Abrahamson, C.J., concurring) (noting the "jurisprudential

chaos     surrounding   the   phrase   'legislative,   quasi-legislative,

judicial or quasi-judicial functions' in § 893.80(4)"); id., ¶62

(Bablitch, J., concurring, joined by Crooks, J.) (decrying the

     16
       Commentators have also noted the court's recent criticism
of the doctrine and have themselves criticized the existing case
law. See, e.g., Linda M. Annoye, Comment, Revising Wisconsin's
Government Immunity Doctrine, 88 Marq. L. Rev. 971 (2005)
(advocating for an additional requirement that a discretionary
decision be a policy decision to receive immunity); Andrea
Dudding, Comment, Reining in Municipalities: How To Tame the
Municipal Immunity Monster in Wisconsin, 2004 Wis. L. Rev. 1741
(criticizing the application of governmental immunity to low
level municipal actors and advocating immunity only for high
level policy and decision making actors).
     17
       See Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60,
262 Wis. 2d 127, 663 N.W.2d 715.

                                       17
                                                                               No.    2012AP2499



existing doctrine as producing "an unjust result" and creating

"injustice and inequity," and predicting that the doctrine of

governmental immunity "will not[ ] stand much longer"); id., ¶82

(Prosser, J., dissenting) (criticizing the governmental immunity

doctrine         as    "wrong       and    unjust"     and    "contrary    to    legislative

intent").             See also          Bostco LLC v. Milwaukee Metro. Sewerage

Dist., 2013 WI 78, ¶¶108-109, 350 Wis. 2d 554, 835 N.W.2d 160

(Gableman, J., concurring) (discretionary immunity has been used

"to stretch governmental immunity beyond both the text of the

statute and the Holytz decision" and has "essentially restored

governmental               immunity");         id.,    ¶¶182-83      (Abrahamson,           C.J.,

dissenting,            joined      by    Bradley,      J.)    (criticizing      the    majority

opinion          for       ruling       that    the    continuation       of     a    nuisance

constituted            a   ministerial         act,    even    though   the    nuisance      was

created by a design defect, the design being a discretionary

immune act).

       ¶47        Some      of   the     criticism      has    centered   on    the    court's

alleged          rewriting         of    the   statute       by   substituting        the   word
"discretionary"              for    the    text   of    § 893.80(4),      which       immunizes

acts        in    the       exercise       of     "legislative,         quasi-legislative,

judicial or quasi-judicial functions."18                           These critics reason

that an act may involve an exercise of judgment and discretion

but is not an exercise of a "legislative, quasi-legislative,

judicial, or quasi-judicial function."


       18
       See, e.g., Scott, 262 Wis. 2d 127, ¶¶75-79 (Prosser, J.,
dissenting).

                                                  18
                                                                           No.   2012AP2499



      ¶48     Other criticism has been directed at the case law for

not        consistently          explaining       the       distinction            between

discretionary        and    ministerial      acts.      The    test       distinguishing

between ministerial and discretionary acts has been disparaged

as too malleable and not consistently applied.

      ¶49     Some cases have defined a discretionary act broadly as

follows:      "A discretionary act involves the exercise of judgment

in the application of a rule to specific facts."                            Willow Creek

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

Wis. 2d 409,     611       N.W.2d 693.        Consequently,         one    would    assume

that a ministerial act, in contrast to a discretionary act, is

one   that    does    not    involve      the    exercise      of   judgment       in   the

application of a rule to specific facts.

      ¶50     Other cases appear to set forth a more specific, more

difficult test to be met for an act to be characterized as

ministerial:         An act is ministerial if 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."19                The court has also stated that a

"duty      imposed   by    the    statute,      regulation,     or    procedure         must

conform to all elements of a ministerial duty."20

      19
       Brown, 348 Wis. 2d 603, ¶43 (quoting Lister, 72 Wis. 2d
at 301).    See also Kimps v. Hill, 200 Wis. 2d 1, 10-11, 546
N.W.2d 151 (1996) (quoting Olson, 143 Wis. 2d at 711-12 (quoting
Lister, 72 Wis. 2d at 301)).
      20
       Brown, 348 Wis. 2d 603, ¶44 (quoting Yao v. Chapman, 2005
WI App 200, ¶31, 287 Wis. 2d 445, 705 N.W.2d 272).

                                           19
                                                                    No.    2012AP2499



       ¶51       This    "absolute,    certain   and    imperative"    and   "time,

mode and occasion" test for a ministerial act has engendered

disagreement among members of the court regarding its meaning

and its application.

       ¶52       For example, in Pries v. McMillon, 2010 WI 63, ¶¶33-

37, 326 Wis. 2d 37, 784 N.W.2d 648, the company's instructions

for dismantling a horse stall at State Fair Park admonished,

"[A]lways have someone holding up the piece that you are taking

down."       The instructions do not state where the piece is to be

held or how high it is to be held.                     Nevertheless, the court

ruled that the company's language satisfied the requirements of

a ministerial duty.

       ¶53       The three-justice dissent asserted that the written

instructions suffer from "a critical lack of particularity as to

time, mode and occasion for performance."21

       ¶54       In Cavanaugh, the court noted that although Wis. Stat.

§ 346.03(6) requires law enforcement agencies to provide written

guidelines, the statute does not specify the time, mode, or
occasion         for    the   agency   to   provide    the   written   guidelines.

Nevertheless, Cavanaugh held that the law enforcement agency's

duty        to    promulgate      guidelines     under       § 346.03(6)     was   a

ministerial function and that the agency's failure to promulgate

written guidelines conforming to the statute rendered the agency

liable.

       21
       Pries v. McMillon, 2010 WI 63, ¶77, 326 Wis. 2d 37, 784
N.W.2d 648 (Bradley, J., dissenting, joined by Roggensack, J. &
Gableman, J.).

                                            20
                                                                                   No.    2012AP2499



      ¶55       The        following       functions         have      been        held     to     be

discretionary           and      thus     immune:       A     school      district         benefit

specialist         giving         information          to      an     employee            regarding

employment benefits;22 a University faculty member constructing a

volleyball        net      base    for    a    physical       education        class;23      and    a

police officer directing traffic at an intersection when the

traffic     light          was    not     functioning        despite      mandatory         police

department protocols for directing traffic.24

      ¶56       Conversely, the following functions have been held to

be ministerial and not immune:                      A sewer authority's maintenance

of a sewer system;25 a University of Wisconsin department chair's

offer      of    employment          to    a    faculty       member;26        a    director       of

facilities' construction and maintenance of a platform at Camp

Randall according to safety regulations.27

      ¶57       In the face of the criticisms of and inconsistencies

in   the    law       of    governmental        immunity,       our    state        nevertheless

continues        to        operate      under    the        doctrine      of       immunity      for

discretionary acts and liability for ministerial acts.

      22
       See Kierstyn v. Racine                          Unified        School         Dist.,      228
Wis. 2d 81, 596 N.W.2d 417 (1999).
      23
           Kimps, 200 Wis. 2d 1.
      24
           See Lodl, 253 Wis. 2d 323.
      25
           Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635.
      26
       Bicknese             v.    Sutula,      2003    WI    31,    260   Wis. 2d 713,           660
N.W.2d 289.
      27
       Umansky v. ABC Ins. Co., 2009 WI 82, 319 Wis. 2d 622, 769
N.W.2d 1.

                                                 21
                                                                                    No.   2012AP2499



       ¶58        The     parties       frame        their          positions        within     the

discretionary-ministerial                   dichotomy.              The     plaintiff     contends

that the duty of the police officer to act with "due regard

under       the    circumstances,"           under       Wis.       Stat.    § 346.03(5)      is   a

ministerial             function     that     is     not       immune       under     Wis.    Stat.

§ 893.80(4).             As might be expected, the police officer asserts

that she was acting in the exercise of a discretionary function

and is therefore immune from suit.

       ¶59        With this general overview of the current state of the

doctrine          of     governmental         immunity          governed       by     Wis.    Stat.

§ 893.80(4), we look to the applicable statutes, regulations,

and   procedures           to   determine          how    to     characterize         the    police

officer's conduct in the intersection in the present case.

                                                III

       ¶60        We     turn      to   the        interpretation             of     Wis.     Stat.

§ 893.80(4) and § 346.03(5) and their application to the facts

of    the     present       case.           Interpretation           and     application      of   a

statute       is        ordinarily      a     question         of    law     that     this    court
determines independently but benefiting from the analyses of the

circuit court and court of appeals.28

       ¶61        We interpret a statute by looking at the text of the

statute.29         The statutory language is examined within the context



       28
       DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶26,
299 Wis. 2d 561, 729 N.W.2d 396.
       29
       Klemm v. Am. Transmission Co., LLC, 2011 WI 37, ¶18, 333
Wis. 2d 580, 798 N.W.2d 223.

                                                   22
                                                                          No.   2012AP2499



in   which    it    is      used.30    Words     are     ordinarily         interpreted

according to their common and approved usage; technical words

and phrases and others are ordinarily interpreted according to

their     technical      meaning.31    Statutes        are       interpreted    to    give

effect to each word and to avoid surplusage.32                        We interpret a

statute      by    examining     the   purpose     of        a    statute33     and    the

consequences of alternative interpretations.34                       We also examine




     30
       Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10,
232 Wis. 2d 587, 592, 605 N.W.2d 515 ("While it is true that
statutory interpretation begins with the language of the
statute, it is also well established that courts must not look
at a single, isolated sentence or portion of a sentence, but at
the role of the relevant language in the entire statute.");
Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612
N.W.2d 659 (contextual approach is not new); Klemm, 333
Wis. 2d 580, ¶18 ("The statutory language is examined within the
context in which it is used.").
     31
       Klemm,         333     Wis. 2d 580,     ¶18;      see       also     Wis.      Stat.
§ 990.01.
     32
       See, e.g., Klemm, 333 Wis. 2d 580, ¶18; Pawlowski v. Am.
Family Mut. Ins. Co., 2009 WI 105, ¶22 n.14, 322 Wis. 2d 21, 777
N.W.2d 67 (citing Donaldson v. State, 93 Wis. 2d 306, 315, 286
N.W.2d 817 (1980)).
     33
       State v. Hanson, 2012 WI 4, ¶16, 338 Wis. 2d 243, 808
N.W.2d 390; Klemm, 333 Wis. 2d 580, ¶18; Lagerstrom v. Myrtle
Werth Hosp.-Mayo Health Sys., 2005 WI 124, ¶51, 285 Wis. 2d 1,
700 N.W.2d 201.
     34
       State v. Hayes, 2004 WI 80, ¶16, 273 Wis. 2d 1, 681
N.W.2d 203; Teschendorf v. State Farm Ins. Cos., 2006 WI 89,
¶30, 293 Wis. 2d 123, 717 N.W.2d 258 (considering "alternative
interpretation" to evaluate potential absurd results); State v.
Cole, 2003 WI 59, ¶66, 262 Wis. 2d 167, 663 N.W.2d 700
(considering    consequences   of    a    party's    alternative
interpretation).

                                        23
                                                                      No.    2012AP2499



our case law interpreting the statute35 and the statutory history

of the statute to determine its meaning.36

     ¶62    We    look    first     to   the    text   of   the       two    relevant

statutes.    The most noticeable fact is that the texts of the two

statutes do not refer to each other.               At first blush, they seem

to have no relationship to each other at all.

     ¶63    As    we     noted    previously,      immunity      is     granted     in

§ 893.80(4) to governmental actors for acts in the exercise of

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

functions," which the court has deciphered as synonymous with a

wide range of functions which are described as "discretionary."

     ¶64    The    words         "liability,"     "immunity,"          "no     suit,"

"discretionary,"           "ministerial,"          "legislative,"             "quasi-

legislative," "judicial" or "quasi judicial" do not appear in

Wis. Stat. § 346.03.


     35
       Nowell v. City of Wausau, 2013 WI 88, ¶21, 351 Wis. 2d 1,
838 N.W.2d 852; Juneau County Star-Times v. Juneau County, 2013
WI 4, ¶66, 345 Wis. 2d 122, 824 N.W.2d 457; State v. Davison,
2003 WI 89, ¶61, 263 Wis. 2d 145, 666 N.W.2d 1.
     36
        "Statutory history encompasses the previously enacted and
repealed provisions of a statute. By analyzing the changes the
legislature has made over the course of several years, we may be
assisted in arriving at the meaning of a statute. Therefore,
statutory history is part of the context in which we interpret
the words used in a statute." Richards v. Badger Mut. Ins. Co.,
2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581 (citations
omitted). See, e.g., LaCount v. Gen. Cas. Co., 2006 WI 14, ¶31,
288 Wis. 2d 358, 709 N.W.2d 418; VanCleve v. City of Marinette,
2003 WI 2, ¶6, 258 Wis. 2d 80, 655 N.W.2d 113; State v. Byers,
2003 WI 86, ¶¶22-27, 263 Wis. 2d 113, 665 N.W.2d 729; Hughes v.
Chrysler Motors Corp., 197 Wis. 2d 973, 980-84, 542 N.W.2d 148
(1996).

                                         24
                                                                  No.        2012AP2499



    ¶65    Wisconsin        Stat.      § 346.03        lays       out            various

circumstances under which an operator of an authorized emergency

vehicle may exercise a "privilege" set forth in the section.

The "privileges" exempt an operator of an authorized emergency

vehicle   from     complying    with     certain       rules     of        the    road,

including:    stopping, standing, or parking; proceeding past a

red or stop signal or stop sign; exceeding the speed limit; and

leaving   doors    of   a   parked   vehicle      open.        Exercising         these

privileges   is,   however,    subject      to   the   conditions          stated     in

§ 346.03 (2) to (5m).

    ¶66    Section 346.03 reads in full as follows:

    (1) The operator of an authorized emergency vehicle,
    when responding to an emergency call or when in the
    pursuit of an actual or suspected violator of the law,
    when responding to but not upon returning from a fire
    alarm,   when   transporting  an   organ   for   human
    transplantation,    or   when   transporting   medical
    personnel for the purpose of performing human organ
    harvesting or transplantation immediately after the
    transportation, may exercise the privileges set forth
    in this section, but subject to the conditions stated
    in subs. (2) to (5m).

    (2) The operator of an authorized emergency vehicle
    may:

    (a)   Stop,  stand   or  park,               irrespective         of     the
    provisions of this chapter;

    (b) Proceed past a red or stop signal or stop sign,
    but only after slowing down as may be necessary for
    safe operation;

    (c) Exceed the speed limit;

    (d) Disregard regulations governing direction                                of
    movement or turning in specified directions.



                                       25
                                             No.   2012AP2499


(2m) Notwithstanding s. 346.94(20), a law enforcement
officer,   a  fire   fighter,  or  emergency  medical
personnel may open and leave open any door of an
authorized emergency vehicle when the vehicle is
stopped, standing, or parked and the person is
performing official duties.

(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).

(4) Except as provided in sub. (4m), a law enforcement
officer operating a police vehicle shall otherwise
comply with the requirements of sub. (3) relative to
the giving of audible and visual signals but may
exceed the speed limit without giving audible and
visual signal under the following circumstances:

(a) If the officer is obtaining evidence of a speed
violation.

(b) If the officer is responding to a call which the
officer reasonably believes involves a felony in
progress and the officer reasonably believes any of
the following:

1. Knowledge of the officer's presence may endanger
the safety of a victim or other person.

2. Knowledge of the officer's presence may cause the
suspected violator to evade apprehension.

3. Knowledge of the officer's presence may cause the
suspected violator to destroy evidence of a suspected
felony or may otherwise result in the loss of evidence
of a suspected felony.



                          26
                                                            No.   2012AP2499


    4. Knowledge of the officer's presence may cause the
    suspected violator to cease the commission of a
    suspected felony before the officer obtains sufficient
    evidence to establish grounds for arrest.

    (4m) A law enforcement officer operating a police
    vehicle that is a bicycle is not required to comply
    with the requirements of sub. (3) relative to the
    giving of audible and visual signals.

    (5) The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive or ride
    with due regard under the circumstances for the safety
    of all persons nor do they protect such operator from
    the consequences of his or her reckless disregard for
    the safety of others.

    (5m) The privileges granted under this section apply
    to the operator of an authorized emergency vehicle
    under s. 340.01(3)(dg) or (dh) only if the operator
    has successfully completed a safety and training
    course in emergency vehicle operation that is taken at
    a technical college under ch. 38 or that is approved
    by the department and only if the vehicle being
    operated is plainly marked, in a manner prescribed by
    the department, to identify it as an authorized
    emergency vehicle under s. 340.01(3)(dg) or (dh).

    (6) Every law enforcement agency that uses authorized
    emergency vehicles shall provide written guidelines
    for its officers and employees regarding exceeding
    speed limits under the circumstances specified in sub.
    (4) and when otherwise in pursuit of actual or
    suspected violators.    The guidelines shall consider,
    among other factors, road conditions, density of
    population, severity of crime and necessity of pursuit
    by vehicle.     The guidelines are not subject to
    requirements for rules under ch. 227.        Each law
    enforcement agency shall review its written guidelines
    by June 30 of each even-numbered year and, if
    considered appropriate by the law enforcement agency,
    shall revise those guidelines.
    ¶67   In   contrast   to   the   other   subsections'   exemption    of
emergency vehicle operators from compliance with certain rules


                                     27
                                                                   No.   2012AP2499



of the road, subsection (5) of Wis. Stat. § 346.03 imposes a

duty    on   an     operator   of   an    authorized        emergency    vehicle.

Subsection (5) states that the exemptions from the rules of the

road granted an operator of an authorized emergency vehicle "do

not relieve the operator from the duty to drive or ride with due

regard under the circumstances for the safety of all persons and

do not protect the operator from the consequences of his or her

reckless disregard for the safety of others."

       ¶68   Thus,    § 346.03(5), as         the   court     of   appeals     has

explained, "qualifies the privileges granted by secs. 346.03(1)

to (4)."37     Subsection (5) does not, however, explicitly impose

liability on a governmental actor.

       ¶69   That Wis. Stat. § 346.03(5) is to be interpreted as

imposing liability on a governmental actor is supported by the

text of Wis. Stat. § 346.03(5) imposing a duty of due regard, in

the context of the exemption/privilege language of the other

provisions of § 346.03.        This language leads us to conclude that

an exemption or privilege begets immunity and a duty begets
liability.        Why would the legislature exempt an operator of an

authorized emergency vehicle from complying with certain rules




       37
       City of Madison v. Polenska, 143 Wis. 2d 525, 527, 421
N.W.2d 862, 863 (Ct. App. 1988).

                                         28
                                                                        No.   2012AP2499



of the road and impose a duty of due regard unless a violation

of the duty can result in liability?38

     ¶70    Our case law has interpreted Wis. Stat. § 346.03(5) as

providing    a    cause    of   action     arising     out    of    a   breach   of   an

emergency vehicle operator's duty created by the statute.                          See,

e.g.,     Brown    v.     Acuity,   2013        WI   60,    348    Wis. 2d 603,       833

N.W.2d 96; Cavanaugh, 202 Wis. 2d 290; see also Montalto v. Fond

du Lac Cnty., 272 Wis. 552, 76 N.W.2d 279 (1956) (holding that a

negligence       action    could    be   sustained         based   on   an    ambulance

operator's failure to exercise due regard                         for the safety of

others).

     ¶71    The statutory history of Wis. Stat. § 346.03(5) also

supports this interpretation.

     ¶72    In 1915, the legislature exempted police officers from

automobile regulations and rules of the road when the police

officers were pursuing violators of the automobile code, but did

not explicitly provide for the police officer's liability.39

     ¶73    In Suren v. Zuege, 186 Wis. 264, 201 N.W. 722 (1925),
the court interpreted the statute as rendering a police officer


     38
       See Candee v. Egan, 84 Wis. 2d 348, 357, 267 N.W.2d 890
(1978) ("Even though a statute does not expressly provide a
civil remedy for those injured by its violation, this court will
imply such a remedy if it concludes that the legislature
intended such a remedy to exist.").
     39
       Section 1, ch. 511, Laws of 1915 provided:     "Any police
officer of any city, county, town or village shall be exempt
from [the sections of the code regarding auto regulation], while
actually in pursuit of and attempting to apprehend a person who
is violating any of the provisions of these sections."

                                           29
                                                             No.   2012AP2499



liable for breach of the duty of ordinary care for the safety of

others and himself, stating:

       This statutory exemption . . . while rendering [the
       officer] immune from prosecution or preventing the
       application of the rule that such excess of speed may
       establish a prima facie presumption of negligence,
       does not absolve [the officer] from the duty to
       exercise that which, under those circumstances and
       conditions, is reasonable and ordinary care for the
       safety of others and himself.
Suren, 186 Wis. at 267 (emphasis added).

       ¶74    In its revision of the automobile code in 1929, the

legislature     adopted   an   explicit   provision   that   the   emergency

vehicle operator is not protected from the consequences of a

reckless disregard for the safety of others.40

       ¶75    In the same 1929 legislation, the legislature exempted

operators of emergency vehicles from speed restrictions.41                In

1947, the legislature amended the speed limit statute to state

that    the   exemption   from   speed    limits   does   not   relieve   an

       40
       Section 3, ch. 454, Laws of 1929, codified at Wis. Stat.
§ 85.12(5) (1929), provides in relevant part:

       (5) EXEMPTIONS TO AUTHORIZED EMERGENCY VEHICLES.    The
       provisions of said sections regulating the movement,
       parking and standing of vehicles shall not apply to
       authorized emergency vehicles while the operator of
       such vehicle is operating the same in an emergency in
       the necessary performance of public duties.        This
       exemption shall not, however, protect the operator of
       any such vehicle from the consequence of a reckless
       disregard for the safety of others (emphasis added).
       41
       "The speed limitations set forth in section 85.40 shall
not apply to authorized emergency vehicles when operating in
emergencies."   § 3, ch. 454, Laws of 1929, codified as Wis.
Stat. § 85.42 (1929).

                                     30
                                                             No.    2012AP2499



operator of an authorized emergency vehicle from either the duty

to operate with "due regard" for the safety of all persons using

the   highway,    nor   shall    it    protect   the   operator    from    the

consequence of a reckless disregard of the safety of others.42

      ¶76   Thus, even in the pre-Holytz era, authorized emergency

vehicle operators who were exempt from obeying certain traffic

laws were nonetheless "bound to exercise reasonable precautions

against the extraordinary dangers of the situation which duty

compels them to create."        Montalto, 272 Wis. at 558.

      ¶77   In   Montalto,   the      court   concluded   that    Wis.    Stat.

§§ 85.12(5) and 85.40(5) (1953) could be the basis of an action

against the operator of an emergency vehicle:

      The right of way given to public service vehicles and
      their exemption from traffic regulations, however, do
      not   relieve  their  operators  from   the   duty of
      exercising due care to prevent injury to themselves
      and others lawfully upon the ways.     Although it is
      generally recognized that firemen driving to a fire,

      42
       Section 1, ch. 407, Laws of 1947, codified as Wis. Stat.
§ 85.40(5) (1947), provides as follows:

      (5) The speed limitations set forth in this section
      shall not apply to authorized emergency vehicles when
      responding to emergency calls and the operators
      thereof sound audible signal by siren or exhaust
      whistle, and when such emergency vehicle is equipped
      with at least one lighted lamp exhibiting red light
      visible under normal atmospheric conditions from a
      distance of 500 feet to the front of such vehicle.
      This provision shall not relieve the operator of an
      authorized emergency vehicle from the duty to operate
      with due regard for the safety of all persons using
      the highway, nor shall it protect the operator of any
      such vehicle from the consequence of a reckless
      disregard of the safety of others (emphasis added).

                                       31
                                                   No.   2012AP2499


    when the safety of lives and property are at stake,
    are in many instances duty bound to proceed at a rate
    of speed greater than that which any ordinary driver
    could justify and cannot be required to stop for red
    lights or other traffic signals, they must include in
    the care they are bound to exercise reasonable
    precautions against the extraordinary dangers of the
    situation which duty compels them to create.     They
    must keep in mind the speed at which their vehicle is
    traveling and the probable consequences of their
    disregard of traffic signals . . . .
Montalto, 272 Wis. at 558 (quoting Russell v. Nadeau, 29 A.2d

916, 917 (Me. 1943)).

    ¶78   In 1957, the legislature enacted a new vehicle code,

codifying the new rules of the road in Wis. Stat. Chapter 346

(1957) and adopting a provision substantially the same as the

present § 346.03(5).

    ¶79   Section 1, ch. 260, Laws of 1957, codified at Wis.

Stat. § 346.03(5) (1957), provides in relevant part:

    (5) The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive with due
    regard under the circumstances for the safety of all
    persons nor do they protect such operator from the
    consequences of his reckless disregard for the safety
    of others.
    ¶80   The 1957 Legislative Council note to ch. 260, Laws of

1957, also supports our interpretation of Wis. Stat. § 346.03(5)

as creating liability:

    Subsection (5) makes clear that the operator of an
    authorized emergency vehicle is not relieved of the
    duty to drive with due care. This is the rule
    applicable under the present law with respect to
    violation of the speed law . . . but § 85.12(5) seems
    to make the operator of an authorized emergency
    vehicle liable for his negligence in the case of
    disregard of other rules of the road only if such

                               32
                                                                       No.    2012AP2499


       negligence amounts to a reckless disregard of the
       safety of others.      The Supreme Court so held in
       Montalto v. Fond du Lac County, 272 Wis. 2d 442, 76
       N.W.2d 279 (1956). There is no logical basis for this
       distinction and it has been eliminated.
Wisconsin Annotations 1804 (1960).

       ¶81   In Cavanaugh, 202 Wis. 2d 290, the court held that the

standard for operating an authorized emergency vehicle "with due

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

a negligence standard.         Cavanaugh, 202 Wis. 2d at 316.

       ¶82   Thus, the statutory history of Wis. Stat. § 346.03(5)
supports our interpretation that it is a liability statute.

       ¶83   Our    interpretation       of   the     language     and       statutory

history      of    Wis.   Stat.     § 346.03(5)      as   a    liability       statute

dovetails with § 893.80(5), a subsection of the immunity statute

that we have not previously discussed.

       ¶84   The    legislature      affirmed   in    Wis.      Stat.    § 893.80(5)

that    statutes     other   than    § 893.80     might   govern        liability    of

governmental actors.         The legislature declared in subsection (5)

of § 893.80 that "[w]hen rights or remedies are provided by any

other    statute     against      any   [governmental         actor]    for    injury,




                                         33
                                                                       No.   2012AP2499



damage or death, such statute shall apply and the limitations in

sub. (3) [referring to caps on damages] shall be inapplicable."43

     ¶85    Wisconsin      Stat.      § 893.80(5)       provides       in    full   as

follows:

     Except as provided in this subsection, the provisions
     and limitations of this section shall be exclusive and
     shall apply to all claims against a volunteer fire
     company    organized   under    ch.   213,    political
     corporation, governmental subdivision or agency or
     against any officer, official, agent or employee
     thereof for acts done in an official capacity or the
     course of his or her agency or employment.         When
     rights or remedies are provided by any other statute
     against   any   political   corporation,   governmental
     subdivision or agency or any officer, official, agent
     or employee thereof for injury, damage or death, such
     statute shall apply and the limitations in sub. (3)
     shall be inapplicable (emphasis added).
     ¶86    This       language    makes        clear   that     the     legislature

envisioned      the    possibility    that      other   statutes       might   create

rights     or    remedies      that     plaintiffs       can     pursue        against

governmental          actors      despite        Wis.    Stat.         § 893.80(4)'s

codification      of    immunity     for    legislative,       quasi-legislative,

judicial, or quasi-judicial acts.




     43
       The court has interpreted the last sentence to refer
specifically to the applicability of damage caps and not to
other subsections of § 893.80.     "[Section] 893.80(5), Stats.,
only directs that when a claim is based on another statute, the
damage limitations of sec. 893.80(3) do not apply.       Section
893.80(5) does not say that the notice provisions of sec.
893.80(1) do not apply."        DNR v. City of Waukesha, 184
Wis. 2d 178, 192-93, 515 N.W.2d 888, 893-94 (1994), abrogated on
other grounds by State ex rel. Auchinleck v. Town of LaGrange,
200 Wis. 2d 585, 547 N.W.2d 587 (1996).

                                           34
                                                                           No.   2012AP2499



     ¶87    Our        rules     of     statutory         interpretation         regarding

surplusage     militate         in     favor       of     interpreting       Wis.        Stat.

§ 346.03(5) as imposing liability on the officer in the instant

case for failure to exercise due regard.

     ¶88    The     defendant         police       officer    in   the     present        case

invites us to view Wis. Stat. § 346.03(5) and its "due regard"

requirement as a "vague suggestion."44                       Yet the statute is not

vague in its imposition of duty:                    The section "does not relieve

[the] operator from the duty" of due regard.                         The defendant is

asking us to read the mandate of § 346.03(5) out of the statute

entirely.

     ¶89    The     defendant         police       officer       further     avers        that

because she met the requirements of Wis. Stat. § 346.03(2)(b)

and § 346.03(3), that is, she slowed her vehicle and activated

her lights and siren, the duty of "due regard" was already met.45

     ¶90    Reading compliance with Wis. Stat. § 346.03(2)(b) and

§ 346.03(3)       as     meeting       the     due      regard     standard,        as    the

defendants     urge,           ignores       the        language    of      § 346.03(5).
Subsection (5) explicitly states that the duty of due regard

exists    notwithstanding         the    other       exemptions     or   privileges         in

§ 346.03:    "The       exemptions       granted . . . by          [§ 346.03]       do     not

relieve such operator from the duty to drive or ride with due


     44
          Brief of Defendants-Respondents at 18.
     45
       The court of appeals asks in its certification memorandum
whether compliance with the slow-down and lights-and-sirens
requirements are sufficient to demonstrate "due regard" in the
instant case.

                                             35
                                                                               No.    2012AP2499



regard    under        the     circumstances           for        the     safety       of     all

persons . . . ."        The text of § 346.03(5) envisions "due regard"

as a standard of care existing independently of the exemptions

granted by § 346.03.

    ¶91     A holding adopting the police officer’s interpretation

that compliance with the exemptions or privileges authorized in

§ 346.03 meets the duty of "due regard" under § 346.03(5) would

treat the language of (5) as surplusage.                           Such a holding would

do exactly what the statute forbids, namely it would relieve the

operator of this duty.           We decline to do so.

    ¶92     To    be    true     to   Wis.     Stat.        § 893.80(4)         and    (5)    and

§ 346.03(5),      and    the     rules        of    statutory       interpretation,            we

conclude that the police officer in the instant case who is

alleged    to    have        breached    the        duty     of    "due        regard"      under

§ 346.03(5) is not immune from suit under § 893.80(4).

                                              IV

    ¶93     We    turn        now     from         applying       rules        of     statutory

interpretation to scrutinizing our case law, especially Estate
of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 (1996),

for principles guiding our understanding of the interplay of

Wis. Stat. § 893.80(4) and § 346.03(5), the distinction between

immune discretionary and non-immune ministerial acts under Wis.

Stat.     § 893.80(4),         and      the        nature     of        "due     regard"      in

§ 346.03(5).

    ¶94     At    first       glance,     the       question       whether          Wis.    Stat.

§ 893.80(4),      the     immunity       statute,          bars    claims        brought      for
breach of an emergency vehicle operator's duty of "due regard
                                              36
                                                                           No.    2012AP2499



under the circumstances" appears to be resolved by Cavanaugh.                              A

closer inspection reveals that it is not.

      ¶95     The Cavanaugh court declared, as we noted previously,

that "despite the general discretionary act immunity set forth

in § 893.80(4), a negligence action may be sustained against an

officer involved in a high-speed pursuit on the grounds that he

or she breached the duty to operate the vehicle with 'due regard

under   the    circumstances'            under       § 346.03(5)."       Cavanaugh,      202

Wis. 2d at 319.

      ¶96     The dilemma presented by the Cavanaugh opinion is that

it distinguishes the discretionary decision to pursue (entitled

to   immunity       under    Wis.       Stat.    § 893.80(4))       from    the   physical

operation      of    the     vehicle         (not     entitled    to    immunity     under

§ 893.80(4)) without clarifying which acts are included in the

decision      to    pursue       and    which    acts     are    included     within     the

physical operation of the vehicle.

      ¶97     The police officer contends that her lookout and speed

were part and parcel of her decision to proceed through the red
light, after slowing down with the police car's lights and siren

engaged pursuant to Wis. Stat.                       § 346.03(2)(b) and (3).             The

decision to proceed, the officer reasons, was a discretionary

act and thus her lookout and speed were subject to immunity akin

to   the    decision        to    engage      and      persist   in    pursuit      in   the

Cavanaugh case.

      ¶98     In    contrast,          the   plaintiff     argues      that   the   police

officer's negligence, such as the officer's failure to keep a
lookout, goes to the "physical operation of the vehicle."
                                                37
                                                                               No.    2012AP2499



       ¶99    We first examine Cavanaugh more closely to distill its

teachings.         We    then        turn   to       a    closer     examination       of   the

discretionary-ministerial dichotomy in Cavanaugh.

                                                 A

       ¶100 First,       the        facts   and      reasoning       of    Cavanaugh.        In

Cavanaugh, a driver pursued by a police officer in a high-speed

pursuit collided with another car, killing the victim.                                      The

victim's estate brought an action against the officer, the city,

and the other driver for their negligence.                               The estate alleged

that    the   officer         was    negligent       in     failing       to   terminate    the

pursuit      and   negligent         with   respect         to     the    operation    of   the

vehicle, contrary to the "due regard" standard under Wis. Stat.

§ 346.03(5).            The     estate      also         alleged    that       the   city   was

negligent in failing to provide adequate guidelines for high-

speed chases, contrary to Wis. Stat. § 346.03(6).                                    The jury

found the officer and the city each partially negligent and

awarded damages to the victim.46

       ¶101 In motions for judgment notwithstanding the verdict,
the officer and the city each raised claims of immunity.                                    The

circuit court denied both claims, holding that the officer and

the city were not immune.                   The court of appeals reversed the

circuit court, holding that the city was immune but the officer

was not.



       46
       The jury found the other driver 75 percent negligent, the
officer 2 percent negligent, and the city 23 percent negligent.
Cavanaugh, 202 Wis. 2d at 297.

                                              38
                                                                          No.    2012AP2499



      ¶102 This   court      reversed      the     court      of    appeals,      holding,

inter alia:

       1) The city had a ministerial duty to create guidelines

           pursuant to Wis. Stat. § 346.03(6) and was not immune

           from suit for its negligence in failing to adopt such

           guidelines;

       2) The officer's decision to initiate and continue the

           high-speed pursuit was discretionary and the officer

           was immune from liability for his alleged negligent

           speed; and

       3) A suit for negligence may be maintained against an

           officer        engaged          in           a       high-speed         pursuit

           notwithstanding the immunity statute if the officer's

           operation of the vehicle breaches the statutory duty

           of "due regard."47

      ¶103 With     regard    to     the        first       holding,     the     Cavanaugh

majority declared that Wis. Stat. § 346.03(6), which requires

law   enforcement    agencies      to    create     guidelines,          established      a
ministerial   duty.          The   Cavanaugh            court      reasoned      that   the

statutory mandate that the law enforcement agency "shall provide

written    guidelines"       and   "shall         consider"           specific     factors

dictates   actions    that    "are      absolute,           certain    and     imperative,



      47
       The Cavanaugh court also held that the officer was not
liable "because there [was] no credible evidence . . . that any
alleged negligence . . . with respect to physical operation of
[the] vehicle was a substantial factor in causing the accident."
Cavanaugh, 202 Wis. 2d at 322.

                                           39
                                                                            No.    2012AP2499



involving       merely    the        performance           of    a      specific      task."

Cavanaugh, 202 Wis. 2d at 301.

       ¶104 With    regard      to    the    second        and   third      holdings,    the

Cavanaugh court distinguished between two separate functions of

the    police     officer——"an       officer's          discretionary        decision       to

initiate    and    continue     a    high-speed         chase"       and    the   officer's

"physical operation of the vehicle."                     Cavanaugh, 202 Wis. 2d at

317.

       ¶105 The     Cavanaugh        court         considered        the     decision       to

initiate    and    continue      a     high-speed          chase     to     be    inherently

discretionary.           It   further         concluded          that      the     officer's

allegedly negligent acts (e.g., speeding) were "[i]nherent in

the decision to pursue."             Cavanaugh, 202 Wis. 2d at 316 (citing

City of Lancaster v. Chambers, 883 S.W.2d 650, 655 (Tex. 1994)).

       ¶106 Nevertheless,        the    Cavanaugh          court     did    not    create    a

"blanket immunity from all liability by virtue of [a public

officer's] involvement in a pursuit." Cavanaugh, 202 Wis. 2d at

317.     The     Cavanaugh      court       drew    a    distinction         between    acts
relating    to     the   decision       to        pursue    and      acts    relating       to

negligent physical operation of the vehicle, with the former

being immune and the latter being subject to liability.                                  The

Cavanaugh court explained:

       Our holding that 893.80(4) provides immunity for an
       officer's decision to initiate or continue a pursuit
       does not mean, as suggested by the dissent to this
       section, that officers are afforded blanket immunity
       from all liability by virtue of their involvement in a
       pursuit.  We agree with the court of appeals that an
       officer may be negligent pursuant to 346.04(5) for

                                             40
                                                                              No.     2012AP2499


       failing to physically operate his or her vehicle with
       due regard for the safety of others.

       This distinction between                 an officer's discretionary
       decision to initiate and                 continue a pursuit and the
       physical operation of the                vehicle has been recognized
       by other jurisdictions . .               . .
Cavanaugh, 202 Wis. 2d              at 317.            Cavanaugh       thus attempted to

segregate      an    officer's          decision       to    initiate     or    continue        a

pursuit from that officer's physical operation of the vehicle

with due regard under the circumstances for the safety of all

persons.

       ¶107 To      support       its    distinction         between    the     decision       to

pursue,    which     is     immune,       and    the    physical       operation       of     the

vehicle, which is not immune, the Cavanaugh court relied on two

sister-state cases, Thornton v. Shore, 666 P.2d 655 (Kan. 1983),

and Kelly v. City of Tulsa, 791 P.2d 826 (Okla. Civ. App. 1990),

interpreting         statutory           language           similar     to     Wis.         Stat.

§ 346.03(5).

       ¶108 These      cases       declare      that    under     statutes          similar    to

Wis.   Stat.     § 346.03(5)        requiring        "due      care"    during       emergency

vehicle responses, the "duty of due care" applies "only to the

operation      of     the     emergency         vehicle        itself,"        not     to     the

initiation or continuation of the pursuit.                            Kelly, 791 P.2d at

828; Thornton, 666 P.2d at 667-68 (quoted by                                 Cavanaugh, 202

Wis. 2d at 318).

       ¶109 The theoretical and practical difficulties of making

this   distinction          has    been    acknowledged          in     the    years        since

Cavanaugh, Thornton, and Kelly.



                                                41
                                                                         No.     2012AP2499



    ¶110 The Kansas Supreme Court overruled Thornton in Robbins

v. City of Wichita, 172 P.3d 1187, 1195 (Kan. 2007), "refusing

to distinguish between the decision to pursue and continue the

pursuit from the method of pursuing."

    ¶111 In     Robbins,      officers       engaged      in    a    high-speed       chase

that resulted in a fatal collision.                     The officers argued that

their decision to pursue the suspect at high speed was immune

because their decision on their speed was derived from their

discretionary    decision          to    pursue,    not       from    their     negligent

operation of the vehicle.

    ¶112 The Robbins court reasoned that it was not feasible to

distinguish between which actions derived from the decision to

pursue   and   which   actions          derived    from       the    operation       of   the

vehicle, because "the act of driving involves both mental and

physical components."         Robbins, 172 P.3d at 1195.

    ¶113 Thus, the Robbins court concluded that officers could

be liable for breaches of the duty of due care for decisions to

pursue or continue pursuit of a fleeing driver.
    ¶114 Similarly, the Oklahoma Supreme Court overruled Kelly

in State ex rel. Oklahoma Dep't of Public Safety v. Gurich, 238

P.3d 1 (Okla. 2010), citing Robbins for the proposition that "a

decision   to    begin        or        discontinue       a     police     pursuit        is

indistinguishable      from    the       method    of   pursuing."             The   Gurich

court similarly concluded that officers are liable for breaches

of the duty of due care for both physical operation of a vehicle

and the decision to pursue or continue pursuit.


                                            42
                                                                         No.     2012AP2499



       ¶115 Cavanaugh's           distinction         between    the     decision         to

pursue,       which    is   immune,   and    the      physical    operation       of     the

vehicle, which is not immune, has thus been rebuffed by other

jurisdictions as unworkable.

       ¶116 Cavanaugh         nevertheless         retains       vitality        and      is

instructive in the instant case, as is the mandatory language of

Wis.        Stat.     § 346.03(5)     declaring        that     the     exemptions        or

privileges "do not relieve such operator from the duty to drive

or ride with due regard . . . ."

       ¶117 Cavanaugh teaches that an officer must still treat all

persons and vehicles with "due regard under the circumstances,"

notwithstanding         the   discretionary        decision      of   the      officer    to

engage in a high-speed pursuit or respond to an emergency call.

Cavanaugh instructs that the duties of the officer to operate

the    vehicle        are   not   subsumed       by    an     initial    discretionary

decision.

       ¶118 Even though the officer "may . . . proceed past a red

or stop signal or stop sign," Wis. Stat. § 346.03(2)(b), that
officer must still "slow[] down as may be necessary for safe

operation," § 346.03(2)(b), "giv[e] both such visual signal and

also an audible signal by means of a siren or exhaust whistle,"

§ 346.03(3),48 and maintain "the duty to drive or ride with due

regard under the circumstances              . . . ."        § 346.03(5).

                                            B


       48
       See discussion infra, ¶¶125-130, on this requirement in
Brown, 348 Wis. 2d 603.

                                            43
                                                                                No.       2012AP2499



      ¶119 We             turn    from       Cavanaugh's       pursuit/physical           operation

distinction           to        the     discretionary-ministerial             distinction          to

determine whether the police officer's breach of the duty of due

regard under Wis. Stat. § 346.03(5) subjects the officer in the

present case to immunity or liability.

      ¶120 A              key     step       in    inquiring       whether          an     act    is

discretionary or ministerial is to identify the law creating the

duty to act.              "Where there is a written law or policy defining a

duty,      we    naturally            look    to   the    language      of    the     writing     to

evaluate whether the duty and its parameters are expressed so

clearly         and       precisely,         so    as    to    eliminate      the        official's

exercise of discretion."49

      ¶121 In             the    instant       case,     the    plaintiff      points       to   two

sources         of    law        that      allegedly     create    the       ministerial         duty

requiring the police officer to act with "due regard under the

circumstances":                 First, the statute governing the rules of the

road applicable to an authorized emergency vehicle, Wis. Stat.

§ 346.03(5); and second, the internal procedures of the Racine
Police Department.

      ¶122 The             text       of    Wis.   Stat.       § 346.03(5)      declares         that

operators            of     authorized         emergency        vehicles,      despite        their

privilege or exemption from other requirements of the rules of

the   road,          must       continue      to   operate      their    vehicles         with   due

regard under the circumstances for the safety of others.



      49
           See Pries, 326 Wis. 2d 37, ¶26.

                                                    44
                                                                        No.       2012AP2499



     ¶123 The      internal       procedures        for     the        Racine       Police

Department echo the language of Wis. Stat. § 346.03(5), stating

that "the exemptions granted above do not relieve department

members   from    the   duty    to    drive     with      due    regard       under       the

circumstances for the safety of all persons."                            The internal

police procedures list the considerations that a police officer

must take into account to drive with "due regard":

     a. The type, actions and speed of the vehicle being
     pursued;

     b. The geographic area of pursuit and its population
     density;

     c. The time of day and day of week;

     d. The      vehicular     and   pedestrian        traffic        present      in
     area;

     e. The road and weather conditions;

     f. The officer's             familiarity        with       the     area       of
     pursuit.50
     ¶124 Wisconsin       Stat.      § 346.03       and    the    internal          Racine

Police Department procedures create a ministerial duty.51

     ¶125 Our      conclusion        that     the    statute          sets        forth     a

ministerial duty is supported by our case law.                         See Brown, 348

Wis. 2d 603; Cavanaugh 202 Wis. 2d 290.

     ¶126 In Brown, the court held that an officer breached a

ministerial      duty   regarding     the     method      by     which       an    officer

     50
       City of Racine Police Department, Policy and Procedure
No. 812 (2006).
     51
       See the discussion of a governmental entity's ministerial
duty to create guidelines, ¶¶102-103, supra.

                                        45
                                                                       No.   2012AP2499



operated an emergency vehicle and consequently subjected himself

to liability, even if the officer's operation of the vehicle

occurred as part of his performance of some discretionary act

that is otherwise immune.

      ¶127 In Brown, a volunteer fire truck driver was responding

to an emergency and entered an intersection against a red light.

An exemption to the general rules of the road granted by Wis.

Stat. § 346.03(2)(b) states that an operator of an authorized

emergency vehicle may "proceed past a red or stop signal or stop

sign, but only after slowing down as may be necessary for safe

operation."

      ¶128 The fire truck driver had his vehicle's lights on but

no   siren    was    activated.       Under     Wis.    Stat.    § 346.03(3),      the

exception        allowing    an    operator     of     an   authorized       emergency

vehicle     to    enter     an   intersection    against     a   red    stop   signal

applies only if both the visual signal and audible signal by

means of a siren or exhaust whistle are engaged.52

      52
           Wisconsin Stat. § 346.03(3) reads in full:

      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).

                                         46
                                                                       No.   2012AP2499



       ¶129 The Brown court held that the driver's failure to use

a siren was a failure to perform a ministerial duty.                         Although

the   initial       decision     to     initiate     the   emergency   response    and

proceed through the red light was discretionary under Cavanaugh,

the driver's activation of the siren was "directly govern[ed]"

by the statute and was a nondiscretionary ministerial function

on    the    part    of   the    driver.         Brown,    348   Wis. 2d 603,      ¶53.

Failure to perform a nondiscretionary ministerial function set

forth in Wis. Stat. § 346.03(3) resulted in liability in Brown.

       ¶130 The      Brown      court    did   not    address    whether     the   "due

regard" obligation imposed by Wis. Stat. § 346.03(5) could also

support liability in that case.

       ¶131 The ministerial duty in the instant case is a duty to

maintain a particular standard of care——namely a duty of "due

regard under the circumstances."                   This duty is given additional

clarification, but not precision, through the Racine internal

police procedures detailing what due regard entails.                           As our

case law has demonstrated, although not consistently, a duty
need not dictate each precise undertaking that the government

actor must implement in order to be ministerial.53

       ¶132 In Cavanaugh, for example, the statute established a

duty on the part of the governmental entity to create guidelines

but did not explain the exact method or means by which to enact

those guidelines, i.e., it left them to the discretion of the



       53
            See ¶¶48-59, supra.

                                            47
                                                                 No.   2012AP2499



entity.54    Nevertheless, in Cavanaugh, the court held that when

the governmental entity fails to comply with the requirements of

Wis. Stat. § 346.03, the immunity statute does not protect the

governmental entity from liability.              Cavanaugh, 202 Wis. 2d at

300-01.

     ¶133 Using       the   discretionary-ministerial            dichotomy    to

determine immunity and liability, we hold that the officer's

acts in the instant case are outside the scope of the immunity

statute and the officer is liable for negligence.

     ¶134 Today's      holding    is      in   keeping    with   sister   state

jurisdictions with statutes similar to Wisconsin's that view the

operation    of   a   vehicle    as   a    paradigmatic    ministerial    act.55

     54
          Wis. Stat. § 346.03(6).
     55
       As Downs v. United States, 522 F.2d 990 (6th Cir. 1975)
notes, in interpreting the Federal Tort Claims Act, operating an
automobile is the archetypal nondiscretionary act, even though
it still involves judgment on the part of the operator:

     It is not the mere exercise of judgment, however,
     which immunizes the United States from liability for
     the torts of its employees. Driving an automobile was
     frequently cited in the congressional reports leading
     to the Act as an example of "non-discretionary"
     activity which would be outside the discretionary
     function exception. Driving an automobile involves
     judgment. The failure to signal a turn, for example,
     may be said to represent an exercise of judgment,
     albeit a poor one.      Yet, the automobile accident
     caused by a federal employee while on the job is an
     archetypal claim which Congress sought to place in the
     courts.

Downs, 522 F.2d at 995 (citations omitted). See also Schmitz v.
City of Dubuque, 682 N.W.2d 70, 73 (Iowa 2004) (quoting Downs);
Pile v. City of Brandenburg, 215 S.W.3d 36, 40 (Ky. 2006) ("The
act   of  safely  controlling   a  police  cruiser  is   not  a
                                          48
                                                                            No.   2012AP2499



These jurisdictions tend to hold that immunity does not attach

to   negligent        operation      on   the      part    of   an    emergency    vehicle

operator.56

      ¶135 Consequently,             we   view       our    discretionary-ministerial

jurisprudence as directing us to hold that immunity does not

apply      to   the    police   officer's          conduct      in    the   instant     case

simply because she made the discretionary decision to respond to

an emergency call.

                                              V

      ¶136 Because        we    hold      that       no    immunity    exists     for    the

officer     in   the    instant       case,     we    review     the    circuit    court's

decision to direct a verdict in favor of the officer.

      ¶137 A      motion       for    a    directed         verdict     challenges       the

sufficiency of the evidence.                      A circuit court may grant the


discretionary act, but rather a ministerial function."); Mumm v.
Mornson, 708 N.W.2d 475, 491-92 (Minn. 2006) (officers were not
entitled to immunity for decision to continue pursuit, because
the officers' duty to discontinue pursuit was ministerial in
compliance with department policies).
      56
       See, e.g., Patrick v. Miresso, 848 N.E.2d 1083 (Ind.
2006) (holding that a claim that an emergency vehicle operator
breached a similar "due regard" statute was not barred by
immunity); Robbins, 172 P.3d 1187 (Kan. 2007); Mason v. Bitton,
534 P.2d 1360, 1365 (Wash. 1975) (holding that immunity cannot
bar liability in a case alleging breach of due regard by an
emergency vehicle because "[i]f this type of conduct were immune
from liability, the exception would surely engulf the rule, if
not totally destroy it"); Biscoe v. Arlington County, 734 F.2d
1352 (D.C. Cir. 1984) (applying District of Columbia law using
similar "due regard" language to allow a suit for negligence
against an emergency vehicle operator and governmental actor for
failing to exercise "due regard" and holding that pursuit was a
ministerial duty).

                                              49
                                                                   No.   2012AP2499



motion if the circuit "court is satisfied that, considering all

credible    evidence     and    reasonable      inferences   therefrom    in    the

light most favorable to the party against whom the motion is

made, there is no credible evidence to sustain a finding in

favor of such party."           Wis. Stat. § 805.14(1).            When there is

any credible evidence to support a jury's verdict, even though

it   is    contradicted        and   the    contradictory    evidence     appears

stronger    and   more    convincing,       nevertheless     the   verdict     must

stand.57

     ¶138 Like the circuit court, an appellate court conducts a

search of the record for facts to uphold the jury verdict.58                    An

appellate court should not overturn a circuit court's decision

to dismiss for insufficient evidence unless the record reveals

that the circuit court was "clearly wrong."59                A circuit court's

decision to change the jury's answer is clearly wrong if the

jury's verdict is supported by any credible evidence.60




     57
       Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, ¶47, 341
Wis. 2d 119, 143, 815 N.W.2d 314, 326, decision clarified on
denial of reconsideration, 2012 WI 74, 342 Wis. 2d 254, 823
N.W.2d 266,   reconsideration  denied,   2012   WI  106,   343
Wis. 2d 558, 820 N.W.2d 432.
     58
          Marquez, 341 Wis. 2d 119, ¶48.
     59
          Id., ¶49.
     60
          Marquez, 341 Wis. 2d 119, ¶49.

                                           50
                                                                  No.     2012AP2499



      ¶139 The circuit court determined that a directed verdict

in the present case was justified.            The circuit court adhered to

the negligence standard as set forth in Cavanaugh and concluded

that "[the officer's] negligence could not have been causal, and

on that basis, she should not be liable as determined by the

jury."

      ¶140 The jury had before it evidence that there was an

obstruction    to   the   police   officer's     vision;    that        the   police

officer    was      familiar   with     the     intersection;           that    the

intersection     was   busy;   that   the   police    officer      entered      the

intersection at 27 miles per hour; that the police officer was a

block from her destination; that the officer saw another car

turning right into the southbound lanes and had to avoid the

car; that the officer never saw the plaintiff's car; and that

the police officer could not have avoided the accident after

entering the intersection.

      ¶141 The circuit court reasoned that any breach of duty of

due   regard   after   initiating     the   entry    into   the    intersection
could not have caused the accident, because any failure to keep

a lookout after entering would not have prevented the accident.




     "If there is any credible evidence . . . from which the
jury could conclude that the . . . driver was negligent with
respect to any of the items of negligence in regard to which
they were instructed——lookout, management and control, or speed—
—the motion for directed verdict [is] properly denied and the
jury's verdict must be sustained."       Crowder v. Milwaukee &
Suburban Transp. Corp., 39 Wis. 2d 499, 159 N.W.2d 723 (1968).

                                      51
                                                                         No.    2012AP2499



      ¶142 Yet the police officer's duty of due regard did not

simply emerge once the police officer entered the intersection.

The   duty    to    keep       a   lookout     existed     before     entry     into   the

intersection.61

      ¶143 A jury could find that the police officer's conduct

demonstrated a failure of lookout, a failure to reduce speed,

and a failure of management and control.                          Viewing the credible

evidence     in    the    light      most    favorable       to    the   plaintiff,     we

conclude that there is credible evidence to support a jury's

finding      that        the       officer's       conduct        constituted     causal

negligence.

      ¶144 The police officer argues that because she had the

right of way under Wis. Stat. § 346.03(2), which authorizes the

officer to enter the intersection against a red stop signal, the

plaintiff     could        not      have    been    only     50      percent    causally

negligent.

      ¶145 The police officer cites to Sabinasz v. Milwaukee &

Suburban Transport Co., 71 Wis. 2d 218, 238 N.W.2d 99 (1976),
for the proposition that the plaintiff's failure to yield to the

officer's right of way bars a jury finding that the plaintiff is

only 50 percent responsible.                 Yet the Sabinasz court noted that

even when a driver has the right of way and can assume that

drivers without the right of way will yield, "[T]his does not

excuse the driver [with the right of way] from maintaining a


      61
           Leckwee v. Gibson, 90 Wis. 2d 275, 290-91, 280 N.W.2d 186
(1979).

                                             52
                                                               No.    2012AP2499



proper lookout or relieve him of liability if the jury finds

that he failed to do so."           Sabinasz, 71 Wis. 2d at 223.              This

principle holds true even when the vehicle with the right of way

is an authorized emergency vehicle and the other driver was also

negligent and failed to yield.            See Montalto, 272 Wis. 552.

       ¶146 The standard of review dictates our result. There was

"credible evidence" that the officer was negligent and caused

the injury.        Therefore, the circuit court erred in directing a

verdict in the instant case.

                                    * * * *

       ¶147 We conclude that the immunity statute does not apply

in the present case to the police officer's violation of the

duty    to    operate     the   vehicle     "with   due   regard     under    the

circumstances."         A contrary outcome would contravene Wis. Stat.

§ 893.80(4) and § 346.03(5), public policy, rules of statutory

interpretation, and case law.

       ¶148 We further conclude that there was credible evidence

to support the jury verdict of causal negligence on the part of
the police officer.

       ¶149 For the reasons set forth, we reverse the judgment of

the circuit court dismissing the action and remand the matter to

the circuit court to reinstate the jury verdict.

       By    the   Court.——The    judgment     of   the   circuit     court    is

reversed and the cause is remanded.




                                      53
                                                         No.    2012AP2499.akz


    ¶150 ANNETTE      KINGSLAND       ZIEGLER,      J.         (dissenting).

Emergency responders are permitted, to some extent, to violate

the rules of the road when responding to an emergency, and for

good reason.   See Wis. Stat. § 346.03(2).1      I recognize that this

privilege is not limitless, see Wis. Stat. § 346.03(3),2 and I

further recognize that an emergency responder must exercise "due

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

See § 346.03(5).3    Under the facts of this case, however, the


    1
        Wisconsin Stat. § 346.03(2) provides:

    The operator of an authorized emergency vehicle may:

         (a) Stop, stand or park,         irrespective         of   the
    provisions of this chapter;

         (b) Proceed past a red or stop signal or stop
    sign, but only after slowing down as may be necessary
    for safe operation;

           (c) Exceed the speed limit;

         (d) Disregard regulations governing direction of
    movement or turning in specified directions.
    2
        Wisconsin Stat. § 346.03(3) provides:

         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).
    3
        Wisconsin Stat. § 346.03(5) provides:

                                  1
                                                                 No.   2012AP2499.akz


circuit court correctly concluded that Officer Matsen, as an

emergency responder, complied with her statutory obligations and

is entitled to immunity.

    ¶151 The       majority       opinion's      reasoning     leads   it   to    err

because it disregards the standard set by the legislature in

Wis. Stat. § 346.03; departs from our jurisprudence in regard to

ministerial duty and discretionary act; disregards the standard

we set in Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550

N.W.2d 103      (1996);     and   ignores      the    circumstances    under     which

Officer Matsen was acting.           Accordingly, I respectfully dissent.

    ¶152 In the case at issue, Officer Matsen, acting as an

emergency responder, had activated her lights and siren, thus

complying with Wis. Stat. § 346.03(3).                    As she approached the

intersection, Officer Matsen slowed her vehicle to 27 miles per

hour,   below    the   30    miles   per       hour   posted   speed   limit,    thus

complying with § 346.03(2)(b).              While it is true that Legue and

Officer Matsen were not visible to one another because a KFC

blocked their view of each other, Officer Matsen had engaged
full emergency response with her squad lights on and emergency

siren sounding.

    ¶153 Legue was under an absolute obligation to give Officer

Matsen the right of way.           See Wis. Stat. § 346.19(1).4           Legue had

         The exemptions granted the operator of an
    authorized emergency vehicle by this section do not
    relieve such operator from the duty to drive or ride
    with due regard under the circumstances for the safety
    of all persons nor do they protect such operator from
    the consequences of his or her reckless disregard for
    the safety of others.
    4
        Wisconsin Stat. § 346.19(1) provides in relevant part:
                                           2
                                                                            No.      2012AP2499.akz


her radio on, her air conditioning on, and her windows closed.

Legue   did    not    see     or    hear      Officer       Matsen's       vehicle.           Legue

entered the intersection traveling at 30 miles per hour and

broadsided Officer Matsen's squad car.                       The jury found Legue and

Officer Matsen equally negligent.                         The circuit court, however,

concluded that Officer Matsen, as an emergency responder, was

entitled      to    immunity       as    she       was    acting      in    a     discretionary

capacity with due regard under the circumstances.                               I agree.

    ¶154 The         majority       opinion        fails    to     interpret          Wis.    Stat.

§ 346.03(5) and concludes that Officer Matsen, as an emergency

responder,     is    not     entitled         to    immunity       because        she    was   not

acting with discretionary authority, but instead failed in her

"ministerial         duty"     to       act        with     "due      regard          under    the

circumstances."            Majority       op.,      ¶¶131-33.          In       so    doing,    the

majority opinion ignores the plain meaning of                                   § 346.03(5) by

affording      virtually       no       consideration            to    the        legislature's

coupling of "due regard" with "under the circumstances."                                        The

majority opinion confuses discretionary decision-making that the
legislature        afforded    to       emergency         responders       with       common    law

negligence principles.

    ¶155 I conclude that Wis. Stat. § 346.03 sets the test we

are to apply.          The statute illuminates what is meant by "due

regard"     when      an     authorized            emergency          vehicle         enters     an

intersection against a red light.                        It provides that an operator

of an emergency vehicle can proceed past a red light if it

         Upon the approach of any authorized emergency
    vehicle giving audible signal by siren the operator of
    a vehicle shall yield the right-of-way . . . .

                                               3
                                                                     No.     2012AP2499.akz


"slow[s] down as may be necessary for safe operation" and if it

gives   a   "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, . . . and

also an audible signal by means of a siren or exhaust whistle."

Wis. Stat. § 346.03(2)(b) and (3).                     These requirements inform

what regard is due.

      ¶156 Although       the     case     at     issue       involved       an    officer

traveling    below     the     speed     limit    with    her       lights     and   siren

engaged,    entering      an   intersection        against      a    red     signal,   the

circumstances that can attend responding to an emergency are

incredibly diverse.            For example the area through which the

emergency responder passes and the time of day are part of the

circumstances of an emergency response, e.g., is the emergency

responder    proceeding        through    a     school    district      with       children

present or is he or she proceeding through a rural area at two

o'clock in the morning?           The type of emergency is also part of
the circumstances, e.g., is the call for help a request for help

for a feared heart attack or a call to stop a vehicle involved

in a traffic violation?

      ¶157 "Due regard under the circumstances for the safety of

all   persons"   is    not     fully     described       with   particularity,          nor

could it be, because the circumstances will generally require

the exercise of judgment by the emergency responder in ways that

are   particular     to   the    circumstance       with       which    the       emergency
responder is confronted.           When the circumstances                  require such

                                           4
                                                                       No.    2012AP2499.akz


an     exercise   of    judgment,      it       is     the     sine    qua     non    of     a

discretionary decision.

       ¶158 Wisconsin Stat. § 346.03(6) also shows that exercising

"due    regard    under      the    circumstances"           often     will     require      a

judgment call.         This section requires law enforcement agencies

to provide written guidelines for officers to assist in their

response to an emergency.              Those guidelines are to consider,

"road conditions, density of population, severity of crime and

necessity of pursuit by vehicle."                § 346.03(6).

       ¶159 Of    course,     we     expect      emergency       responders          to    use

discretion under the circumstances to permit them to respond

safely and promptly.              Of course, we contemplate that they may

not follow the rules of the road when so responding.                                 In the

mind of the responder and in the legislature's own language, the

response will be balanced and measured in that the responder

must use "due regard under the circumstances."                          This balancing

generally    requires       judgment    calls         that     vary    circumstance         by

circumstance.      Such a balancing of continuingly changing factors
in an emergency response             then       is not "absolute, certain and

imperative" decision-making as the legislature would have set

out if a ministerial duty were fully described.

       ¶160 To explain further, under our precedent, discretionary

and ministerial duties are very different.                           Ministerial duties

are     "'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

                                            5
                                                                  No.    2012AP2499.akz


discretion.'"          Brown    v.    Acuity,        2013    WI    60,     ¶43,    348

Wis. 2d 603, 833 N.W.2d 96 (quoting Lister v. Board of Regents

of   University   Wisconsin          System,    72     Wis. 2d 282,        301,    240

N.W.2d 610 (1976)).

     ¶161 A public officer, such as an emergency responder, is

immune from suit for acts done in the exercise of legislative,

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

348 Wis. 2d 603, ¶41 (quoting Wis. Stat. § 893.80(4)).                            Acts

that require the exercise of judgment are "discretionary" under

the law.   Lister, 72 Wis. 2d 282.             A public officer discharging

a "ministerial duty," by contrast, is not entitled to immunity.

Kimps v. Hill, 200 Wis. 2d 1, 10, 546 N.W.2d 151 (1996).5

     ¶162 As    this    court   has     consistently        stated,      "[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




     5
       While the majority opinion criticizes the distinction
between "discretionary" acts, and "ministerial" duties, see
majority op. ¶¶48-56, it nonetheless remains the law in
Wisconsin.   See Brown v. Acuity, 2013 WI 60, ¶¶42-43, 348 Wis.
2d 603, 833 N.W.2d 96.

                                         6
                                                                 No.    2012AP2499.akz


judgment or discretion.'"            Brown, 348 Wis. 2d 603, ¶43 (quoting

Lister, 72 Wis. 2d at 301).6

      ¶163 The     majority       opinion,      however,    departs     from   these

longstanding      principles.        The    majority     fails   to     address     how

Officer Matsen's duty of due regard under the circumstances was

"'absolute, certain and imperative,'" such that she needed to

perform    only    a   "'a    specific      task'"     in   order      to   meet    her

obligation.       Id. (quoting Lister, 72 Wis. 2d at 301).                  Further,

the   majority     does    not    explain      how   Officer   Matsen's      duty   to

exercise "due regard under the circumstances" in the case at

issue imposed or defined the "'time, mode and occasion'" for the

performance of any such task "'with such certainty that nothing

remains for judgment or discretion.'"                  Id. (quoting Lister, 72

Wis. 2d at 301).          Instead, the majority opinion concludes that

an emergency responder is under a ministerial duty not to be

involved in an accident.             See majority op., ¶¶142-43.               If an

accident   occurs,        under   the   majority's      standard,       immunity    is

seemingly precluded.




      6
       The majority opinion claims that some cases, specifically
Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235
Wis. 2d 409, 611 N.W.2d 693, have used a less stringent
statement of the ministerial duty standard.    See majority op.,
¶49. This assertion, however, is incorrect. See Willow Creek,
235 Wis. 2d 409, ¶27 (stating that "[a] ministerial act, in
contrast to an immune discretionary act, involves a duty that
'is absolute, certain and imperative, involving merely the
performance of a specific task when the law imposes, prescribes
and defines the time, mode and occasion for its performance with
such   certainty   that   nothing   remains  for   judgment   or
discretion'").

                                           7
                                                                  No.    2012AP2499.akz


       ¶164 Additionally,         the     majority      opinion's       analysis     is

inconsistent        with   this    court's     prior    decision    in     Estate    of

Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 (1996).

In Cavanaugh we concluded that Wis. Stat. "§ 346.03(5) does not

preclude the defense of immunity for the discretionary acts of

initiating or continuing a high-speed pursuit."                    Id. at 317.       In

so doing, we distinguished between a discretionary decision to

pursue a suspect, and a ministerial obligation to "physically

operate" a vehicle with "due regard under the circumstances for

the safety of all persons."             Id. at 316-17.       We also pointed out

that a determination that the officer was negligent did not

preclude      the   conclusion     that   he    or    she   had   acted    with    "due

regard      under   the    circumstances"      and     thereby    was    immune    from

liability.       Id. at 319.7

       ¶165 In      Cavanaugh     the   officer      initiated    and    continued    a

high speed pursuit through a residential neighborhood.                         Id. at

296.       The pursuit proceeded through solid red traffic signals at

between 60 and 80 miles per hour, despite the fact that the
suspect's illegal conduct merely involved a moving violation.

Id.    We nonetheless concluded that the officer was entitled to

immunity, because the decision to engage in such a pursuit was

discretionary and not ministerial.                Id. at 316.       We noted that

"[i]nherent in the decision to pursue is the decision to speed."

       7
       In Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550
N.W.2d 103 (1996), the jury found that the officer failed to
maintain a proper lookout and this failure was causal in regard
to Cavanaugh's injuries.   Id. at 319.  In the case before us,
Officer Matsen was found by the jury to have failed to maintain
a proper lookout.

                                           8
                                                                   No.    2012AP2499.akz


Id.   The court applied the "due regard under the circumstances"

standard and stated that "an officer may be negligent pursuant

to [Wis. Stat.] § 346.03(5) for failing to physically operate

his or her vehicle with due regard for the safety of others."

Id. at 317.      The court, however, concluded that the officer's

running of red lights, at 60 to 80 mile per hour, did not

violate the "due regard under the circumstances" standard, and

concluded that the officer was immune from liability.

      ¶166 It    is    difficult      to     reconcile       the     precedent        of

Cavanaugh with the majority opinion today.                    As in Cavanaugh,

Officer     Matsen    was   operating       her    vehicle    in         an   emergency

response.     In Cavanaugh, the officer ran several red lights at

between 60 and 80 miles per hour.                 By contrast, Officer Matsen

entered an intersection against a red traffic signal, but did so

at only 27 miles per hour.         In Cavanaugh, the officer was acting

in an effort to issue a traffic ticket.                In the case at issue,

Officer Matsen was responding to an emergency dispatch calling

her to the scene of an accident.
      ¶167 As   with    Cavanaugh     and     that    officer's           decision   to

pursue, Officer Matsen exercised her judgment in deciding to

proceed through the intersection, in response to an emergency.

As with Cavanaugh, inherent in Officer Matsen's judgment is the

exercise of discretion in deciding whether to proceed through

the intersection with its risk of danger from cross-traffic.                          As

with Cavanaugh, Officer Matsen did not maintain proper lookout.

      ¶168 Stated differently, the case at issue is controlled by
Cavanaugh.      If    the   officer   in    Cavanaugh    was       immune      for   his

                                        9
                                                                No.   2012AP2499.akz


discretionary decision to run red lights at 60 to 80 miles per

hour in order to chase a traffic offender, Officer Matsen also

is    immune    for     her    discretionary        decision     to     enter    an

intersection against a red signal at 27 miles per hour in order

to respond to an emergency dispatch calling her to the scene of

an accident.

      ¶169 The majority opinion dutifully recites the standard

articulated in        Cavanaugh     but does not apply it, and instead

opines that Cavanaugh is merely "instructive."                    Majority op.,

¶¶100-16.        The     majority       neither     overrules     nor     reverses

Cavanaugh, but it seriously undermines its value as precedent.8

      ¶170 Under the majority's analysis, I am concerned whether

a plaintiff who is involved in an automobile accident with an

emergency responder need plead only that the responder failed to

exercise "due regard" in order to automatically defeat a claim

of immunity.      Such a principle is clearly at odds with one of

the   primary    justifications       for     governmental     immunity:    "[t]he

danger    of   influencing     public    officers    in   the    performance     of
their     functions     by    the   threat     of   lawsuit."         Kimps,    200

Wis. 2d 1, 9.     It is also at odds with the plain meaning of Wis.

Stat. § 346.03.

      ¶171 For the foregoing reasons, I respectfully dissent.



      8
       The only real difference between the two cases is that, in
the case at issue, the officer himself was involved in the
accident, while in Cavanaugh it was the suspect who struck
another vehicle.    This difference aptly illustrates how the
majority's holding really works: officers are now under a
ministerial duty not to be involved in traffic accidents.

                                         10
                                                      No.     2012AP2499.akz


    ¶172 I   am   authorized   to   state   that   Justices     ANN   WALSH

BRADLEY and PATIENCE DRAKE ROGGENSACK join this dissent.




                                    11
    No.   2012AP2499.akz




1
