                                                                       2019 WI 2

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:               2016AP801
COMPLETE TITLE:         Michael Engelhardt, Julieann Engelhardt,
                        individually and as the Personal Representative
                        of the Estate of Lily Engelhardt,
                                  Plaintiffs-Respondents-Petitioners,
                        State of Wisconsin Department of Health
                        Services,
                                  Involuntary-Plaintiff,
                             v.
                        City of New Berlin, ABC Insurance Company and
                        New Berlin Parks and Recreation Department,
                                  Defendants-Appellants,
                        Wiberg Aquatic Center f/k/a Wirth Aquatic Center
                        and MNO Insurance Company,
                                  Defendants.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                            Reported at 378 Wis. 2d 740, 905 N.W.2d 843
                                        (2017 – unpublished)

OPINION FILED:          January 4, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 24, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Waukesha
   JUDGE:               J. Mac Davis

JUSTICES:
   CONCURRED:           DALLET, J. concurs, joined by R.G. BRADLEY, J. &
                        Kelly, J. (opinion filed)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For        the   plaintiffs-respondents-petitioners,       there      were
briefs filed by Christopher E. Rogers, Susan R. Tyndall, and
Habush       Habush     &   Rottier   S.C.,   Madison.   There   was    an   oral
argument by Christopher E. Rogers.
    For the defendants-appellants, there was a brief filed by
Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee.
There was an oral argument by Dustin T. Woehl.


    An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by William C. Gleisner, III, and Law
Offices of William C. Gleisner, III, Brookfield.


    An amicus curiae brief was filed on behalf of League of
Wisconsin   Municipalities,    Wisconsin    Towns   Association,     and
Wisconsin   Counties   Association    by   Ted   Waskowski,   Kyle    W.
Engelke, and Stafford Rosenbaum, LLP, Madison. There was an oral
argument by Kyle W. Engelke.




                                  2
                                                                    2019 WI 2
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.    2016AP801
(L.C. No.   2014CV1085)

STATE OF WISCONSIN                      :            IN SUPREME COURT

Michael Engelhardt, Julieann Engelhardt,
individually and as the Personal Representative
of the Estate of Lily Engelhardt,

            Plaintiffs-Respondents-Petitioners,

State of Wisconsin Department of Health
Services,

            Involuntary-Plaintiff,                             FILED
      v.
                                                           JAN 4, 2019
City of New Berlin, ABC Insurance Company and
New Berlin Parks and Recreation Department,                  Sheila T. Reiff
                                                          Clerk of Supreme Court

            Defendants-Appellants,

Wiberg Aquatic Center f/k/a Wirth Aquatic
Center and MNO Insurance Company,

            Defendants.




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

cause remanded.
                                                                             No.     2016AP801



      ¶1     SHIRLEY S. ABRAHAMSON, J.                   This is a review of an

unpublished       decision     of   the     court       of     appeals    reversing         the

circuit court's denial of summary judgment to the City of New

Berlin     and    the    New   Berlin      Parks        and    Recreation       Department

(together, "New Berlin").1

      ¶2     Eight-year-old Lily Engelhardt attended a field trip

to Brookfield's Wiberg Aquatic Center organized and run by the

New Berlin Parks and Recreation Department.                              Lily could not

swim.        Lily's      mother     told     Stuart           Bell,    the     "Playground

Coordinator" in charge of the field trip, that Lily could not

swim.      She questioned whether Lily should go on the trip at all.

Bell responded that Lily would be safe because her swimming

ability would be evaluated at the shallow end or zero depth area

of the pool.          Tragically, Lily drowned while staff and other

children were changing in the locker rooms and proceeding to the

pool deck.

      ¶3     Lily's      parents     filed       suit     against      New     Berlin       and

several other defendants, alleging negligence.                         New Berlin moved
for   summary     judgment,       arguing        that   it     was    immune       from   suit

pursuant     to    the    governmental           immunity       statute,       Wis.       Stat.

§ 893.80(4) (2011-12).2             The circuit court denied New Berlin's

summary     judgment     motion,     and     New    Berlin       moved    for       leave    to


      1
       Engelhardt v. City of New Berlin, No.                                       2016AP801,
unpublished slip op. (Wis. Ct. App. Oct. 4, 2017).
      2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                             2
                                                                    No.   2016AP801



appeal.     The court of appeals granted New Berlin's motion and

reversed the circuit court's denial of summary judgment to New

Berlin.

      ¶4     We conclude that New Berlin is not entitled to the

defense of governmental immunity.              The known danger exception to

governmental immunity applies in the instant case.

      ¶5     The known danger exception to governmental immunity,

set forth in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672

(1977), applies when an obviously hazardous situation known to

the     public     officer   or    employee     is    of   such   force    that     a

ministerial duty to correct the situation is created.3                          "[A]

dangerous situation will be held to give rise to a ministerial

duty only when 'there exists a known present danger of such

force     that   the   time,      mode   and   occasion    for    performance      is

evident     with     such    certainty     that      nothing   remains    for     the

exercise of judgment and discretion."4

      ¶6     In the instant case, the danger to which Lily was

exposed at the Aquatic Center as an eight-year-old non-swimmer
was compelling and self-evident.               The obvious dangers involved


      3
       Pries v. McMillon, 2010 WI 63, ¶23-24, 326 Wis. 2d 37, 784
N.W.2d 648; Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶32-40,
253 Wis. 2d 323, 646 N.W.2d 314; C.L. v. Olson, 143 Wis. 2d 701,
715, 422 N.W.2d 614 (1988); Voss ex rel. Harrison v. Elkhorn
Area Sch. Dist., 2006 WI App 234, ¶¶14-18, 297 Wis. 2d 389, 724
N.W.2d 420.
      4
       Lodl, 253 Wis. 2d 323, ¶38 (quoting C.L., 143 Wis. 2d at
717); see also Pries, 326 Wis. 2d 37, ¶24 (quoting C.L., 143
Wis. 2d at 715).


                                          3
                                                            No.   2016AP801



here resemble other obviously hazardous circumstances presented

in Wisconsin cases that applied the known danger exception.5

Drowning was a known danger.        Under the circumstances present

here, Bell and other camp staff had a ministerial duty to give

Lily a swim test before allowing her near the pool.               They did

not perform this ministerial duty.

    ¶7      Because New Berlin is not entitled to the defense of

governmental immunity, we reverse the decision of the court of

appeals and remand the cause to the circuit court for further

proceedings consistent with this opinion.

                                    I

    ¶8      The   instant   case   reaches   this   court    on    summary

judgment.    We recite the facts in the light most favorable to




    5
       See, e.g., Cords v. Anderson, 80 Wis. 2d 525, 541, 259
N.W.2d 672 (1977) (park manager who knew that a trail was
particularly dangerous at night had ministerial duty to "either
place the signs warning the public of the dangerous conditions
existing on the upper trail or to advise his superiors" of the
hazardous condition); Voss, 297 Wis. 2d 389, ¶¶19-20 (teacher
who witnessed students stumbling and falling while wearing
"fatal vision goggles" in classroom full of desks and hard tile
floor had ministerial duty to "stop the activity the way it was
presently   conceived");    Pries,   326   Wis. 2d 37,   ¶¶43-47
(Abrahamson, C.J., concurring) (applying known danger exception
where supervisor, aware of the dangers associated with heavy
pieces of solid steel horse stalls that are unchained during the
process of disassembly, "was in a position as supervisor to do
something about the danger[,] and he failed to do anything about
it——worse, he jumped onto the stalls").


                                    4
                                                                 No.    2016AP801



the Engelhardts, the parties opposing summary judgment, and draw

all reasonable inferences from those facts in their favor.6

     ¶9    On     Monday,     July     2,   2012,      eight-year-old       Lily

Engelhardt started her first day at a summer day camp organized

and run by the New Berlin Parks and Recreation Department.                    On

her second day of camp, the camp was scheduled to take a field

trip to Brookfield's Wiberg Aquatic Center.

     ¶10   Lily    could    not    swim.    Despite     having    taken   three

sessions of beginner swimming lessons through the New Berlin

Parks and Recreation Department, Lily had not moved on to the

next level and was otherwise not making much progress.                    Other

than these three sessions of swimming lessons, Lily had very

little experience with swimming or being in or around pools.

     ¶11   The field trip to the Aquatic Center was optional.

When Lily's mother received a permission slip upon picking Lily

up after her first day, she questioned whether Lily should go on

the field trip given that Lily could not swim.

     ¶12   Lily's    mother       communicated   her   concerns    to     Stuart
Bell, the "Playground Coordinator" in charge of the day camp

program.    She told Bell that Lily could not swim and asked

whether Lily should go on the field trip to the Aquatic Center.

Bell responded that it would be all right for Lily to attend the



     6
       Affordable Erecting, Inc. v. Neosho Trompler, Inc., 2006
WI 67, ¶19, 291 Wis. 2d 259, 715 N.W.2d 620; Kraemer Bros., Inc.
v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857
(1979).


                                        5
                                                                   No.    2016AP801



field trip because Lily would be restricted to the splash pad

area of the Aquatic Center.

    ¶13     In his deposition, Bell testified that New Berlin gave

swim tests to all new campers in order to test their swimming

ability.      In   fact,    when    Lily's      mother    told   Bell    that   her

daughter could not swim, Bell told her that Lily would be safe

because her swimming ability would be evaluated at the pool.

However, Lily was not given a swim test, and Bell told no other

staff members that Lily could not swim.

    ¶14     The Aquatic Center was very busy the day of the field

trip.      Upon arriving at the Aquatic Center, 77 campers were

divided by gender and went into the locker rooms to change.

Although new campers who had not been given a swim test were

instructed to find a leader before getting into the pool, they

were not directed to go to any specific location to find a

leader, and no leaders were stationed at the locker room door to

direct them.

    ¶15     At some point when most of the children were in the
water but before all staff members were out of the locker room,

lifeguards had already discovered a distressed Lily in the pool.

Despite the efforts of lifeguards and other medical personnel,

Lily died as a result of this incident.

    ¶16     Lily's   parents       sued   New    Berlin    and   several    other

defendants, alleging negligence.              New Berlin moved for summary

judgment, arguing that it was immune from suit pursuant to Wis.

Stat. § 893.80(4).         The circuit court determined that an issue
of fact precluded New Berlin's immunity as a matter of law.                     New
                                          6
                                                                   No.     2016AP801



Berlin moved for leave to appeal.               The motion was granted by the

court of appeals.

     ¶17    The   court    of    appeals        reversed   the   circuit    court,

concluding that New Berlin was immune from suit under Wis. Stat.

§ 893.80(4)7 and was entitled to summary judgment.

     ¶18    The court of appeals reasoned that none of the camp

documents    highlighted        by   the    Engelhardts     (specifically,      the

camp's information packet, staff guidelines, and staff handbook)

created ministerial duties and that the known danger exception

to governmental immunity did not apply.

                                           II

     ¶19    The issue presented is whether New Berlin is entitled

to governmental immunity or whether an exception to governmental

immunity applies.         "Whether an exception to immunity applies

requires us to determine the proper scope of the common law

doctrine of governmental immunity; that is a question of law

that we review de novo without deference to the circuit court or




     7
         Wisconsin Stat. § 893.80(4) provides:

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


                                           7
                                                                              No.     2016AP801



court of          appeals, but benefitting from the analysis of each

court."8

                                                 III

                                                   A

       ¶20        We begin our analysis with the text of Wis. Stat.

§ 893.80(4), the governmental immunity statute.9

       ¶21        In    relevant        part,   Wis.     Stat.    § 893.80(4)       immunizes

municipalities from liability arising out of "acts done in the

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

judicial functions."

       ¶22        For    over      40     years,       this    court   has    consistently

interpreted this particular statutory language to include any

acts       that    involve       the     exercise       of    discretion.10         Immunizing

government             officials        from    liability       arising   out       of   their

discretionary             acts     "is     based       largely     upon   public         policy

considerations that spring from the interest in protecting the

public purse and a preference for political rather than judicial



       8
       Pries, 326 Wis. 2d 37, ¶19 (citing Kimps v. Hill, 200
Wis. 2d 1, 8, 546 N.W.2d 151 (1996)); see also Lodl, 253
Wis. 2d 323, ¶17 (citing Kierstyn v. Racine Unified Sch. Dist.,
228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999)).
       9
       State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
       10
       Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537
(1977); see also Willow Creek Ranch, L.L.C. v. Town of Shelby,
2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693 (concluding
that this particular statutory language is "synonymous with
discretionary acts").


                                                   8
                                                               No.    2016AP801



redress for the actions of public officers."11               We highlighted

these    important   policy   considerations     in   Lister   v.    Board   of

Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976), as follows:

    (1) The danger of influencing public officers in the
    performance of their functions by the threat of
    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
    ¶23     Despite decades of legislative silence with regard to

this court's long-standing interpretation of the governmental

immunity statute, the Engelhardts invite this court to reverse

course    on   the   past     40   years    of   Wisconsin     jurisprudence

interpreting the governmental immunity statute.13              They urge the

court to adopt an interpretation of the statute that would have

the effect of exposing municipalities to liability in a far

greater number of circumstances.




    11
       Lodl,   253      Wis. 2d 323,       ¶23   (citing     Kierstyn,       228
Wis. 2d at 89-90).
    12
       See also Lodl, 253 Wis. 2d 323, ¶23 (quoting Lister v.
Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)).
    13
       Our interpretation of the particular statutory language
at issue has stood undisturbed for over 40 years.          The
distinction between discretionary and ministerial acts is over
60 years old.    See Meyer v. Carman, 271 Wis. 329, 331-33, 73
N.W.2d 514 (1955).


                                      9
                                                                             No.    2016AP801



     ¶24        We decline the Engelhardts' invitation.                         Decades of

jurisprudence         cannot,    and    should      not,    be      discarded      casually.

"'This court follows the doctrine of stare decisis scrupulously

because of our abiding respect for the rule of law.'"14                                  The

doctrine        of    stare     decisis       is    vital      to     "the    evenhanded,

predictable, and consistent development of legal principles[.]"15

It "fosters reliance on judicial decisions[] and contributes to

the actual and perceived integrity of the judicial process."16

     ¶25        The   doctrine     of       stare    decisis        is   a   particularly

important concern "where a court has authoritatively interpreted

a statute[.]"17        This is because "the legislature remains free to

alter     its    construction"         if    it     believes     we      interpreted     the

statute incorrectly or in a way that results in unintended or

undesirable consequences.18

     ¶26        The legislature has not overturned our interpretation

of the statute.          Although it is not conclusive of legislative


     14
       Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶41,
281 Wis. 2d 300, 697 N.W.2d 417 (quoting Johnson Controls v.
Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257).
     15
       Payne v. Tennessee, 501 U.S. 808, 827 (1991); Romanshek,
281 Wis. 2d 300, ¶43; Johnson Controls, 264 Wis. 2d 60, ¶95.
     16
       Payne, 501 U.S. at 827; Romanshek, 281 Wis. 2d 300, ¶43;
Johnson Controls, 264 Wis. 2d 60, ¶95.
     17
       Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton v. S.C.
Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)).
     18
       Romanshek, 281 Wis. 2d 300, ¶45 (citing Hilton, 502 U.S.
at 202).


                                              10
                                                                     No.     2016AP801



intent, we note that the legislature has on numerous occasions

revised and recreated Wis. Stat. § 893.80 without altering the

statutory language in response to this court's interpretation of

the statute.19           Indeed, the legislature repealed and recreated

the governmental immunity statute in 1977,20 but it did not see

fit   to    "correct"       the    court's     understanding    of   governmental

immunity for discretionary acts as discussed in Lister, a case

decided just one year earlier.21

      ¶27    If     we     adopt    the      interpretation    of     Wis.     Stat.

§ 893.80(4) urged by the Engelhardts, we would effectively pull

the rug out from under municipalities and other governmental

entities     that    have     managed     their    affairs    relying      upon   our

decades-old interpretation of the governmental immunity statute.

Such a result would be especially jarring to the public and

legal community given that just two years ago, we rejected the

specific interpretation of the statute that the Engelhardts urge

us to adopt today.22




      19
       Romanshek, 281 Wis. 2d 300, ¶52 ("Legislative inaction
following judicial construction of a statute, while not
conclusive,     evinces    legislative     approval of    the
interpretation.") (quoted source omitted).
      20
           See 1977 Wis. Act 285, § 11.
      21
           Lister, 72 Wis. 2d at 300-02.
      22
       See generally Melchert v. Pro Elec. Contractors, 2017 WI
30, ¶¶53-65, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley, J.,
dissenting).


                                          11
                                                                          No.     2016AP801



     ¶28    It    is    unwise    for    a    court     to    frequently        call    into

question existing and long-standing law.                          Doing so gives the

impression       that    the     decision         to   overturn     prior       cases    is

"undertaken      merely    because      the       composition      of   the     court   has

changed."23       "When existing law is open to revision in every

case, deciding cases becomes a mere exercise of judicial will,

with arbitrary and unpredictable results."24

                                             B

     ¶29    Wisconsin       Stat.       § 893.80(4)          provides     no     immunity

against liability associated with several categories of acts:

     There is no immunity against liability associated
     with:    1) the performance of ministerial duties
     imposed by law; 2) known and compelling dangers that
     give rise to ministerial duties on the part of public
     officers or employees; 3) acts involving medical
     discretion; and 4) acts that are malicious, willful
     and intentional.25
     ¶30    These       exceptions      "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.'"26
     23
          Johnson Controls, 264 Wis. 2d 60, ¶95.
     24
       Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (internal quotation marks omitted) (quoting State v.
Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶29, 244
Wis. 2d 613,   628   N.W.2d 376);   see   also   Romanshek,  281
Wis. 2d 300, ¶42; Johnson Controls, 264 Wis. 2d 60, ¶95.
     25
       Lodl, 253 Wis. 2d 323, ¶24 (citing Willow Creek Ranch,
235 Wis. 2d 409, ¶25).
     26
          C.L., 143 Wis. 2d at 710 (quoting Lister, 72 Wis. 2d at
300).


                                             12
                                                                No.    2016AP801



      ¶31    In   the    instant   case,    the   Engelhardts    invoke       the

"ministerial duty" and "known danger" exceptions to governmental

immunity.     These two exceptions are related——they "overlap to an

extent, inasmuch as they both require the identification of a

ministerial duty."27        Thus, a brief discussion of ministerial

duties is relevant to the application of both exceptions.

      ¶32    In Wisconsin, the test for determining whether a duty

is   ministerial    or   discretionary     was    articulated   in    Meyer    v.

Carman, 271 Wis. 2d 329, 332, 73 N.W.2d 514 (1955).                    We have

described the test for ministerial duties as follows:

      A public officer's duty is ministerial only when it 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.28

      27
           Pries, 326 Wis. 2d 37, ¶24.
      28
       Lister,   72        Wis. 2d at      301;    see   also    Pries,       326
Wis. 2d 37, ¶22.

     The difference between a ministerial duty for purposes of
the "ministerial duty" exception to governmental immunity and a
ministerial duty for purposes of the "known danger" exception
has been described as follows:

      [A] ministerial duty for purposes of the ministerial
      duty exception is imposed by law or policy and
      performance is required in a time, manner, and under
      conditions where the officer does not          exercise
      discretion or judgment.   In contrast, the ministerial
      duty for purposes of the known danger exception arises
      not from a written law or policy, but when an
      obviously dangerous situation presents itself.

Pries, 326 Wis. 2d 37, ¶24.


                                      13
                                                                 No.    2016AP801



     ¶33    We have explained that "circumstances may give rise to

such a certain duty, where . . . the nature of the danger is

compelling and known to the officer and is of such force that

the public officer has no discretion not to act."29

     ¶34    If     either   the    "ministerial     duty"   exception   or   the

"known danger" exception applies, New Berlin is not entitled to

governmental immunity pursuant to Wis. Stat. § 893.80(4).

                                       IV

     ¶35    Having established the proper legal framework, we now

apply that framework to the facts of the case.               We conclude that

the known danger exception applies, and therefore, New Berlin is

not entitled to governmental immunity.

     ¶36    The known danger exception was first established by

this court in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672

(1977).      The    Cords   case    involved   an    accident   where   hikers,

legally accessing a park hiking trail at night, fell into a deep

gorge located on a part of the trail known by the park manager

to be particularly hazardous at night.30

     29
       C.L., 143 Wis. 2d at 715 (citing Domino v. Walworth Cty.,
118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984)); see also
Pries, 326 Wis. 2d 37, ¶24.
     30
          Cords, 80 Wis. 2d at 532-35.

     In Cords, we described the topography of the trail in great
detail, and we do not repeat that description here.     We note,
however, that the hazardous condition on the trail was a cutback
"where one misstep of a foot in a southerly direction would
cause an uninterrupted twenty foot slide down a sharp incline to
a direct dropoff of approximately eighty feet to the rock bottom
of the gorge." Cords, 80 Wis. 2d at 532.


                                       14
                                                                           No.     2016AP801



      ¶37    The issue was whether the park manager was entitled to

immunity from the hikers' negligence suit.

      ¶38    We concluded that the park manager "had an absolute,

certain, or imperative duty to either place the signs warning

the public of the dangerous conditions existing on the upper

trail or to advise his superiors" of the hazardous conditions.31

      ¶39    We explained: "[The park manager] knew the terrain at

the   glen       was    dangerous         particularly    at     night;    he    was    in   a

position as park manager to do something about it; he failed to

do anything about it.                     He is liable for the breach of this

duty."32     Based on the facts presented in Cords, the court held

"that the duty to either place warning signs or advise superiors

of the conditions is . . . a duty so clear and so absolute that

it falls within the definition of a ministerial duty."33

      ¶40    The        court        of    appeals     applied     the     known       danger

exception        in     Voss    ex     rel.   Harrison     v.    Elkhorn    Area       School

District, 2006 WI App 234, 297 Wis. 2d 389, 724 N.W.2d 420.                                  In

Voss, a teacher was instructing the class regarding the dangers
of driving after having consumed alcohol.34                       The teacher had the

students         wear     "fatal          vision    goggles"      which,    when        worn,

replicated        a    .10     blood      alcohol    concentration.35       The    teacher
      31
           Id. at 541.
      32
           Id.
      33
           Id. at 542.
      34
           Voss, 297 Wis. 2d 389, ¶2.
      35
           Id.


                                               15
                                                              No.   2016AP801



arranged the desks in the classroom into three straight rows and

instructed three students wearing goggles to walk in between the

rows and go after a tennis ball thrown by the teacher.36              "[T]he

purpose of this particular exercise was to divert the student's

attention away from an otherwise simple task (walking down an

aisle of desks) and then show how the addition of another simple

task (going after a ball) makes the performance of both tasks

difficult when a person is under the influence of alcohol."37

     ¶41    The teacher was aware of the risks inherent in the

exercise.     Although the potential for danger was obvious, the

teacher had also witnessed first-hand a student who bumped into

a desk and hit her knees against the floor while performing this

exercise.38       The incident giving rise to the lawsuit in Voss

occurred when a student caught her foot on the leg of a desk,

tripped, and hit her mouth on the top of the desk, causing

severe injuries to her teeth.39

     ¶42    The      student's    parents   sued   the   school     district

claiming negligence, and the school district argued that it was
entitled    to     governmental    immunity   pursuant   to    Wis.   Stat.

§ 893.80(4).40


     36
          Id., ¶4.
     37
          Id., ¶5.
     38
          Id., ¶¶5-6.
     39
          Id., ¶¶6-9.
     40
          Id., ¶10.


                                      16
                                                                 No.     2016AP801



     ¶43    The   court   of   appeals    determined      that    the        school

district was not entitled to governmental immunity because the

known danger exception applied to the facts of the case.41

     ¶44    The   court   of   appeals   stated   that,    like        the   facts

presented in Cords, the facts presented in Voss represented an

"example[] of conditions that are nearly certain to cause injury

if not corrected, or in other words, are 'accidents waiting to

happen.'"42    The court of appeals explained:

     The teacher knew of the perils of conducting the
     exercise. The fatal vision goggles distort vision and
     impair depth perception and sense of balance.      The
     teacher testified that students using the goggles
     would lose their balance and slip or stumble while
     doing the simple tasks he had them perform. In fact,
     that was the entire purpose of the exercise——to show
     students how difficult a simple task becomes when
     alcohol is consumed.   The teacher, however, chose to
     conduct the exercise within the confines of a
     classroom with a hard tile floor and in between aisles
     of desks made of steel or aluminum and wood. Despite
     these obvious hazards, the teacher took no precautions
     to minimize the risk of injury.

              . . . .

     [T]he circumstances presented on the day of Voss'
     injury admitted of only one response on behalf of the
     teacher——stop the activity the way it was presently
     conceived. Before Voss tripped and fell, some of the
     male students had collided with each other and slid on
     the floor and one other student had stumbled and
     fallen to her knees.       At that point, given the
     physical layout of the room and the desks made of
     steel or aluminum and wood, the manner in which the
     students were stumbling and falling and the very
     41
          Id., ¶23.
     42
          Id., ¶19.


                                    17
                                                                   No.    2016AP801


     nature of the effects of the goggles themselves, it
     should have been self-evident to the teacher that the
     activity was hazardous and the only option was to put
     an end to it.     Accordingly, the known and present
     danger exception to immunity applies.43
     ¶45    Though not decided on the basis of the known danger

exception, Pries v. McMillon, 2010 WI 63, 326 Wis. 2d 37, 784

N.W.2d 648, is also instructive.

     ¶46    In    Pries,    a   group   of   workers    were   disassembling     a

steel horse stall at the state fair.44              The stalls were made up

of four steel pieces:            a front, back, and two sides.45               Each
piece measured approximately 10 feet high, 10 feet wide, and

four inches thick, and weighed approximately 200 pounds.46                     When

assembled, the pieces were secured to each other with pins, and

the side and back pieces were secured to a wall with chains.47

     ¶47    At    the   time    of   the     accident   giving    rise    to   the

lawsuit,    a    two-page   written     procedure   was   in     effect   setting

forth the proper method of disassembling horse stalls.                         The

supervisor who was in charge of the workers was aware of the

written instructions and that they stated, in relevant part:

"Always have someone holding up the piece that you are taking

down."48    The supervisor also knew that if the stalls were not
     43
          Id., ¶¶19-20.
     44
          Pries, 326 Wis. 2d 37, ¶4.
     45
          Id., ¶5.
     46
          Id.
     47
          Id.
     48
          Id., ¶9.


                                        18
                                                                    No.    2016AP801



disassembled in an appropriate manner, they posed a risk of

injury.49       "[The supervisor] confirmed that he knew that if the

chains had been removed from the back stall pieces, the stalls

could fall and injure people standing nearby, particularly if

someone jumped up on the stalls."50

     ¶48    At     one   point     while       disassembling    a    stall,     the

plaintiff and two other workers struggled to dislodge a stall

piece that was stuck to another piece.51              The supervisor, a full-

time employee of the Wisconsin State Fair Park, observed that

the chains responsible for securing the pieces had been removed

and commented that they should not have been.52                     Despite that,

the supervisor jumped up on and straddled the stall next to the

piece that the workers were trying to free and started jerking

it up and down with his hands.53               Immediately after, there was a

devastating      accident   in    which    unchained    stall   pieces     started

falling in a domino effect on the workers, striking all three of

them.54

     ¶49    The plaintiff sued the supervisor and State Fair Park
claiming    negligence,     and    the     supervisor   argued      that   he   was

     49
          Id., ¶11.
     50
          Id.
     51
          Id., ¶6.
     52
          Id.
     53
          Id.
     54
          Id.


                                          19
                                                                 No.     2016AP801



entitled    to    governmental     immunity    pursuant    to     Wis.       Stat.

§ 893.80(4).55

     ¶50    The   Pries   court     held    that   the    ministerial         duty

exception to governmental immunity applied because the written

instructions      "establish[ed]     a     ministerial    duty     that       [the

supervisor] then violated when he jumped on and shook the stuck

stall knowing that 'the chains were undone' and knowing of the

instructions to '[a]lways have someone holding up the piece that

you are taking down.'"56

     ¶51    Although the parties in Pries briefed the application

of the known danger exception, the Pries court concluded that

"[b]ecause . . . the ministerial duty exception applies here, it

is not necessary for us to determine whether the known danger

exception also applies."57

     ¶52    Writing   separately,    one    justice   analyzed         the   known

danger exception and concluded that it applied to the facts of

the case:

     The pieces of solid steel horse stalls weigh[ed] 200
     pounds, [were] typically handled by no less than four
     workers, and need[ed] to be constantly supported
     during disassembly.      Disassembly here [was] an
     "accident waiting to happen" and gives rise to an
     absolute duty to take steps to prevent the steel horse
     stall pieces from falling. [The supervisor] knew the
     unchained steel stall pieces were dangerous; he was in
     a position as supervisor to do something about the
     55
          Id., ¶¶7, 14-16.
     56
          Id., ¶33.
     57
          Id., ¶41.


                                     20
                                                                            No.    2016AP801


      danger; and he failed to do anything about it——worse,
      he jumped onto the stalls.     In my view, he thereby
      breached a duty that was "absolute, certain, and
      imperative" following the analysis of the known danger
      cases.58
      ¶53    Our review of Cords, Voss, and Pries leads us to the

conclusion        that    the   known    danger       exception        applies     in     the

instant case, and as a consequence, New Berlin is not entitled

to governmental immunity pursuant to Wis. Stat. § 893.80(4).

      ¶54    As     the     facts       somberly         illustrate,        the     danger

associated with bringing a young child who cannot swim to a busy
water park along with 76 other children is apparent.                               A young

child can quickly become distressed in deep water if he or she

cannot swim.        Serious injury or death can occur very suddenly,

so it is paramount that precautions be taken to lessen those

risks.      The nature of the danger here was immediate, compelling,

and self-evident.           The danger was like hiking a trail with a

treacherous cutback along a steep gorge at night, attempting to

go   after    a    tennis   ball    in   a    classroom       full     of   desks       while

wearing     goggles      that   simulate      a    .10   BAC,    and    jumping      on   an

unchained 200-pound solid steel piece of a horse stall.                                   The

danger was "of such force" that Bell had no discretion not to

act——the     circumstances       of     the       situation     imposed     upon    him     a

ministerial duty to test Lily's swimming ability before she got

into the water.59


      58
           Id., ¶46 (Abrahamson, C.J., concurring).
      59
           See C.L., 143 Wis. 2d at 715.


                                             21
                                                                               No.   2016AP801



      ¶55     Bell    was    aware    that    Lily       could       not   swim.        Lily's

mother told him that Lily could not swim before the field trip

to    the     Aquatic       Center,    but        Bell    did        nothing     with     this

information.         He did not tell any other staff member that Lily

could not swim.          He did nothing to ensure that Lily's swimming

ability would be tested before allowing her to be without direct

supervision.         In short, Bell was aware of the danger, he was in

a position as the Playground Coordinator to do something about

it, and he failed to do anything about it.60

      ¶56     The parties spend a great deal of effort questioning

whether Bell and other camp staff had a ministerial duty to

directly supervise Lily and keep an eye on her at all times

before administering a swim test.

      ¶57     Properly      framed,    the    issue       in    the       instant    case    is

whether the circumstances of the situation created a ministerial

duty to test Lily's swimming ability before she got into the

pool.       We conclude that they did.                   The Engelhardts' theory of

liability is that New Berlin's procedure for making sure that
new campers like Lily did not get into the water without first

having a swim test was ineffective and constitutes negligence.

New   Berlin     negligently         performed       (or,       as    a    result    of     its

negligence, did not perform) its ministerial duty to administer

a swim test before Lily got into the water, and governmental




      60
            Cords, 80 Wis. 2d at 541.


                                             22
                                                                             No.    2016AP801



immunity is not available "for the negligent performance of a

purely ministerial duty."61

       ¶58        Before ending, we note that there might have been a

number of ways in which New Berlin could have discharged its

ministerial duty to test Lily's swimming ability before she got

in the water.             For example, new campers who had not yet taken a

swim test, including Lily, could have been grouped together by

gender and assigned a specific counselor to supervise them until

a swim test was performed.                   Alternatively, camp staff could have

been stationed at the exit of each locker room to fit each new

camper who had not yet taken a swim test, including Lily, with a

life jacket.

       ¶59        In   Cords,        we   specifically      enumerated      two    different

ways    in        which       the    park    manager      could    have    fulfilled      the

ministerial            duty    arising       out    of    the   circumstances       of   that

particular case.62                  That there were at least two possible ways

for the park manager to fulfill his ministerial duty did not

affect the resolution of the case.                         "[S]imply allowing for the
exercise of discretion does not suffice to bring the actions

under       the    blanket          of    immunity      provided   by     sec.    893.80(4),

Stats., when the facts or the allegations reveal a duty so clear

       61
            Pries, 326 Wis. 2d 37, ¶22 (quoting Kimps, 200 Wis. 2d at
10).
       62
       See Cords, 80 Wis. 2d at 541 (concluding that the park
manager had a duty to either place signs warning the public of
the dangerous condition or advise his superiors of the dangerous
condition).


                                                   23
                                                                           No.    2016AP801



and absolute that it falls within the concept of a ministerial

duty."63

       ¶60     Similarly, that there may have been several possible

ways in which New Berlin could have fulfilled its ministerial

duty    does    not       affect    the   resolution        of    the   instant        case.

Rather, it is sufficient for us to conclude that a ministerial

duty    was     created       by   the    obviously     hazardous         circumstances

presented in the instant case, and as a result, New Berlin is

not    entitled      to    governmental      immunity        from   the    Engelhardts'

negligence suit.

       ¶61     Accordingly,        we     conclude     that       the     known    danger

exception applies.

       ¶62     Because we conclude that the known danger exception to

governmental immunity applies, we need not and do not address

whether       any    of    the     written       documents       highlighted      by     the

Engelhardts         created    a   ministerial       duty     for   purposes      of    the

ministerial duty exception.

                                             V
       ¶63     We conclude that the known danger exception applies in

the instant case, and as a result, New Berlin is not entitled to

governmental immunity pursuant to Wis. Stat. § 893.80(4).




       63
       C.L., 143 Wis. 2d at 715 n.8 (quoting Domino, 118 Wis. 2d
at 491-93); see also Pries, 326 Wis. 2d 37, ¶45 n.4 (Abrahamson,
C.J., concurring) (quoting Domino, 118 Wis. 2d at 491).


                                             24
                                                                No.   2016AP801



    ¶64    Accordingly, we reverse the decision of the court of

appeals and remand the cause to the circuit court for further

proceedings consistent with this opinion.

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

reversed and the cause remanded.




                                   25
                                                                         No.    2016AP801.rfd


      ¶65   REBECCA FRANK DALLET, J.                   (concurring).           This case is

about whether the City of New Berlin and the New Berlin Parks

and Recreation Department (together, "New Berlin") are entitled

to immunity for the negligent acts of their camp staff which

resulted in the drowning of eight-year-old Lily.                                 While the

majority    opinion      chooses      to     expand      the   narrow      exception      to

immunity carved out for a "known danger," I apply the plain

language set forth in Wis. Stat. § 893.80(4) to reach the same

result.

      ¶66   After adopting and applying governmental immunity in

Wisconsin    for    almost      a    century,      in     1962     this    court     boldly

abrogated    governmental           immunity,          declaring    it     "ancient      and

fallacious," "archaic," and "unjust, inequitable, and patently

unfair."    Holytz v. City of Milwaukee, 17 Wis. 2d 26, 33-35, 115

N.W.2d 618 (1962).         In the landmark Holytz decision, this court

provided clarity in its statement that "henceforward, so far as

governmental responsibility for torts is concerned, the rule is

liability——the exception is immunity."                     Id. at 39.          An exception
to   immunity     was    carved      out   for     a     governmental      body     in   the

exercise of its "legislative or judicial or quasi-legislative or

quasi-judicial functions."            Id. at 40.

      ¶67   The    following         year,       the     legislature       signaled      its

approval of the Holytz decision with the enactment of Wis. Stat.

§ 893.80(4) which provides, in pertinent part, that "[n]o suit

may be brought against any . . . governmental subdivision or any

agency thereof . . . or against its officers, officials, agents
or   employees     for   acts       done   in     the    exercise     of       legislative,

                                             1
                                                                              No.    2016AP801.rfd


quasi-legislative, judicial, or quasi-judicial functions."1                                      The

language of Holytz and § 893.80(4) advance the original purpose

of governmental immunity, which 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."                                    Legue

v.    City    of   Racine,    2014       WI    92,      ¶40,    357    Wis.     2d     250,     849

N.W.2d 837.

       ¶68    Although     governmental            immunity       was        intended      to    be

reserved only for government agents or employees in the exercise

of    their    legislative,         quasi-legislative,            judicial,           or   quasi-

judicial      functions,      this        court      soon      revived       the      pre-Holytz

distinction        between        "ministerial          duties"        and     "discretionary

acts."       See Cords v. Ehly, 62 Wis. 2d 31, 39-41, 214 N.W.2d 432

(1974).        The   exercise       of    a    "discretionary           act,"        subject     to

immunity, is now synonymous with the exercise of a legislative,

quasi-legislative,           judicial,            and       quasi-judicial             function.

Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶25,
235 Wis. 2d 409, 611 N.W.2d 693.

       ¶69     The artificial distinction between a ministerial duty

and    discretionary         act     is       impracticable           and     the      resulting

decisions      regarding      the    limits        of    governmental          immunity         have

been labeled "jurisprudential chaos."                          Scott v. Savers Property

       1
       The legislature enacted Wis. Stat. § 331.43, which later
became Wis. Stat. § 895.43, which is now Wis. Stat. § 893.80.
See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005
WI 8, ¶¶53-54 & n.13, 277 Wis. 2d 635, 691 N.W.2d 658. However,
the pertinent language of the statute has remained unchanged.


                                               2
                                                                  No.   2016AP801.rfd


and   Cas.   Ins.    Co.,    2003    WI   60,     ¶58,   262   Wis. 2d 127,      663

N.W.2d 715    (Abrahamson, C.J., concurring).2                 Every act has a

discretionary component, such that "[i]t would be difficult to

conceive     of     any     official      act,     no    matter    how     directly

ministerial, that did not admit of some discretion in the manner

of its performance, even if it involved only the driving of a

nail."    Id., ¶136 (Prosser, J., dissenting)(citations omitted).

      ¶70    Far    from   creating    an     "evenhanded,     predictable,      and

consistent     development     of     legal      principles,"3    the    basis   for

adherence to stare decisis, the determination that an act is

sufficiently discretionary so as to invoke immunity has appeared

almost random at times.            See, e.g., Lodl v. Progressive N. Ins.

Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314 (holding that

although     the   statute    at    issue     described    the    procedures     the

officer should use in deciding to manually control traffic, the

      2
       While the majority opinion paints a picture of the
jurisprudence surrounding governmental immunity as being clear
and consistent, quite the contrary is true.      See Bostco LLC
v. Milwaukee   Metro.  Sewerage   Dist.,  2013   WI  78,   ¶135,
350 Wis. 2d 554, 835 N.W.2d 160 (Abrahamson, C.J., dissenting)
("Government immunity and liability is a complicated area of
jurisprudence with 50 years of Wisconsin case law precedent that
is not always easy to explain or justify."). Criticism of this
court's interpretation of Wis. Stat. § 893.80(4) is well
documented.   See, e.g., Melchert v. Pro Electric Contractors,
2017 WI 30, ¶57, 374 Wis. 2d 439, 892 N.W.2d 710 (R.G. Bradley,
J., dissenting); see also Nicholas J. Bullard, Comment, Pushing
the Reset Button on Wisconsin's Governmental Immunity Doctrine,
2014 Wis. L. Rev. 801.
      3
       Payne v. Tennessee, 501 U.S. 808, 827 (1991); Progressive
N. Ins. Co. v. Romanshek, 2005 WI 67, ¶43, 281 Wis. 2d 300, 697
N.W.2d 417; Johnson Controls, Inc. v. Employers Ins. of Wausau,
2003 WI 108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257.


                                          3
                                                                              No.    2016AP801.rfd


officer had discretion as to                          when to perform manual traffic

control);       Scott,         262       Wis. 2d 127          (holding    that       a    guidance

counselor's act of wrongly advising a student that his classes

were     approved         by       the    NCAA    was        discretionary,         despite      the

guidance       counselor's           receipt      of     clear    and    unambiguous            forms

detailing       approved           and     unapproved          NCAA    courses);         Brown     v.

Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96 (holding that

a firefighter was liable for running through a red stop signal

with    his    emergency           lights       activated,       but    without      an    audible

signal, because he violated a clear ministerial duty).                                            The

result    of     this      court's         adoption      of    the     pre-Holytz,        pre-Wis.

Stat.     § 893.80(4)              language        conditioning          immunity         on      the

performance          of    discretionary               acts    has     been    a     return        to

governmental          immunity            as    the     rule     and     liability        as     the

exception.

        I.      THE NARROW KNOWN DANGER EXCEPTION DOES NOT APPLY

       ¶71     In this case, instead of analyzing whether New Berlin

camp     staff       had       a    ministerial         duty     by     operation         of     law,
regulation,          or    governmental               policy,     the     majority         opinion

concludes that a ministerial duty arose by virtue of a "known

danger."       To date, the known danger exception has been limited

to situations where "there exists a known present danger of such

force    that       the    time,         mode    and     occasion       for   performance          is

evident       with    such         certainty          that     nothing    remains         for    the

exercise       of    judgment            and   discretion."            C.L.   v.     Olson,       143

Wis. 2d 701, 717, 422 N.W.2d 614 (1988).                              "[T]he danger must be
compelling enough that a self-evident, particularized, and non-

                                                   4
                                                                        No.   2016AP801.rfd


discretionary municipal action is required.                     The focus is on the

specific act the public officer or official is alleged to have

negligently performed or omitted."                  Lodl, 253 Wis. 2d 323, ¶40.

The known danger exception has been applied in cases where the

potential of danger was high and the act required to prevent the

danger was clear.            See, e.g., Voss ex rel. Harrison v. Elkhorn

Area    School      Dist.,    2006    WI      App   234,      297    Wis. 2d 389,       724

N.W.2d 420 (known danger exception applied where the hazards of

conducting an exercise within the confines of a classroom with a

hard    tile    floor   and    full      of   desks    was    apparent        after   other

students had previously collided with each other and fallen);

but cf. C.L., 143 Wis. 2d at 723 (known danger exception did not

apply because the potential danger of a parolee attacking a

victim did not rise to "such a degree of probability" that the

parole agent was deprived of the discretion regarding the manner

and level of parole supervision required).

       ¶72     In order to apply the known danger exception to the

case at hand, the majority opinion must necessarily expand the
exception      to   apply     in   situations         where    the    danger     was   not

necessarily imminent and where there was discretion in how to

respond to the potential danger.                  The majority opinion concludes

that the known, compelling danger to Lily as a non-swimmer was

that she would drown and that the ministerial duty that arose

from the compelling danger was the administration of a swim

test.        Majority   op.,       ¶6.        The   known      danger     exception     as

previously defined does not apply to the facts of this case.



                                              5
                                                                             No.    2016AP801.rfd


      ¶73     First, the danger involved was not compelling and of

such force to give rise to a duty to act.                              Lily's presence at

the Wiberg Aquatic Center alone did not present a compelling

danger.          Stuart    Bell,       the    Playground       Coordinator,          had    taken

campers to the Aquatic Center every Tuesday in the summer for

twelve years.           During that time there were only two incidents in

which    participants           needed       lifeguard      assistance,        with       neither

incident resulting in injury.                         On the date of the incident,

Aquatic Center lifeguards were on duty, New Berlin camp staff

was present, and procedures were in place to allow non-swimmers

like Lily to safely enjoy the trip to the Aquatic Center.                                       No

one saw Lily near the pool which could have created a compelling

danger.      As noted by the court of appeals, "[a]ware that Lily

could not swim, if Bell had seen her walking right along the

edge of a deep area of the pool, this case would be akin to Voss

in   that    a    situation       would       exist    that      required     Bell     to     take

immediate        action    to     stop       an   'accident       waiting      to     happen.'"

Engelhardt v. City of New Berlin, No. 2016AP801, unpublished
slip op., ¶33 (Wis. Ct. App. Oct. 4, 2017).                            While in hindsight

Lily's      drowning      can     be    said      to   be   an    "accident         waiting    to

happen,"         most     cases        alleging        negligence       fit        that     broad

definition.

      ¶74     Second,      there        was       discretion      as    to     the     mode    of

response.         The majority opinion defines the immediate action

required to prevent the danger of Lily drowning as a swim test.

A swim test would have revealed that Lily could not swim, a fact
already known by Bell based on a conversation that he had with

                                                  6
                                                                   No.   2016AP801.rfd


Lily's   mother    the       day    before       the   incident.      Lily's   mother

testified at her deposition that after she informed Bell that

Lily could not swim, Bell's response was:                   "That's okay. She can

stay in the splash pad area."                There were multiple ways that the

New Berlin camp staff could have kept Lily safe at the Aquatic

Center, such as keeping her at the shallow end of the pool or in

the splash pad area,               alerting the lifeguards and other camp

staff of her inability to swim, having her wear a lifejacket

and, most importantly, supervising Lily.                   There was no one time,

mode or occasion for performance to alleviate the risk of Lily

drowning.     The facts of this case did not present a known,

present and compelling danger and there was no "self-evident,

particularized,        and    nondiscretionary"           response.      Lodl,    253

Wis. 2d 323, ¶40.        The known danger exception does not apply.

             II.       APPLICATION OF WIS. STAT. § 893.80(4)

      ¶75   Instead of expanding the known danger exception to fit

the facts of this case, allowing for broader future use of what

was   intended    to    be    a    "narrow,      judicially-created      exception,"
this court should return to an interpretation that is tethered

to the text of Wis. Stat. § 893.80(4).                    Lodl, 253 Wis. 2d 323,

¶4.   Returning to the text of § 893.80(4) would not only result

in coherency in our jurisprudence, it would also allow redress




                                             7
                                                                                No.    2016AP801.rfd


to innocent victims for wrongs committed by the government.4                                      See

Melchert v. Pro Electric Contractors, 2017 WI 30, ¶¶63-65, 374

Wis. 2d          439, 892 N.W.2d 710 (R.G. Bradley, J., dissenting).

       ¶76       This       court    recently         acknowledged        that         Wis.    Stat.

§ 893.80(4)           "is     best   honored      by     applying         the     legislature's

chosen       plain      language,       rather        than     a    judicial          distillation

thereof."          Showers Appraisals, LLC v. Musson Bros., 2013 WI 79,

¶35,       350    Wis. 2d 509,       835   N.W.2d       226.         This   court        has     been

called upon in the past to revisit § 893.80, yet we have been

reluctant to do so.                  See Melchert, 374 Wis. 2d 439, ¶¶52-65

(R.G. Bradley, J., dissenting); Bostco LLC v. Milwaukee Metro.

Sewerage          Dist.,      2013    WI    78,        ¶136,        350   Wis. 2d 554,           835

N.W.2d 160 (Abrahamson, C.J., dissenting); Scott, 262 Wis. 2d

127,       ¶33.         The    argument      for       revisiting         the         standard    of

governmental immunity has been made and, through amicus briefs,

the        court        has     heard      from         governmental             entities         and

representatives of tort victims.                         There is no time like the

present.
       ¶77       It     is      a     fundamental            principle          of       statutory

construction            to    presume      that       the    legislature's             intent     is

expressed in the statutory language.                               State ex rel. Kalal v.

Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633,

       4
       As Justice N. Patrick Crooks noted in his concurrence in
Showers, the court "must do a better job of striking the balance
between too much immunity, which creates a heavy burden for
those who suffer harm from negligent government acts, and too
much liability, which creates a heavy burden for taxpayers."
Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶69, 350
Wis. 2d 509, 835 N.W.2d 226 (Crooks, J., concurring).


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681 N.W.2d 110.                Statutory          interpretation           begins         with     the

language of the statute.                     Id., ¶45.             "Statutory language is

given its common, ordinary, and accepted meaning . . . ."                                          Id.

Where the "meaning of the statute is plain, we ordinarily stop

the    inquiry,"         and    decline       to       consult      extrinsic         sources       of

interpretation.           Id. (citations omitted).

       ¶78    We     look      then    to    the       common,     ordinary         and    accepted

meaning      of    the    words       in    Wis.       Stat.      § 893.80(4).            The     word

"legislative" means "[o]f, relating to, or involving lawmaking

or    the    power       to    enact       laws;       concerned       with      making        laws."

Legislative, Black's Law Dictionary                           1039 (10th ed. 2014).                The

word    "judicial"            means    "[o]f,          relating      to,    or       involving       a

judgment."         Judicial,          Black's Law Dictionary                  974.        The word

"quasi"      means       "[s]eemingly        but        not    actually;       in     some       sense

or degree; resembling; nearly."                         Quasi, Black's Law Dictionary

1439.         A    "function"          refers          to     an    "[a]ctivity           that      is

appropriate to a particular business or profession."                                      Function,

Black's      Law     Dictionary            787.         Taken       together,         § 893.80(4)
provides governmental immunity only for agents or employees of a

governmental entity who are engaged in an act that, in some

sense or degree, resembles making laws or exercising judgments

related to government business.

       ¶79    Applying the plain language of Wis. Stat. § 893.80(4)

to    the    facts    in       this    case,      the       New    Berlin     camp     staff       was

provided with "Staff Guidelines" which set forth the relevant

expectations         of       camp     staff       as       follows:          "[i]t       is      your
responsibility to supervise the kids at all times.                                   For example,

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during weekly swimming field trips you are to actually watch the

kids in the water by being in the water with them, or by sitting

on the edge of the pool."                     The guidelines further provided:

"[m]ake sure you know where the kids in your care are at all

times,"      and,        underlined         for     emphasis,         that     "[u]nder         no

circumstances should kids be left alone."

       ¶80   While        the     promulgation           of   these     guidelines           would

qualify as a "quasi-legislative" activity of New Berlin, and

thus   New    Berlin       would     receive        immunity      for   legal       challenges

involving the content of those guidelines, New Berlin is not

immune    from      suit    for      its    camp    staff       negligently         failing    to

supervise         Lily     in   accordance          with      the     guidelines.             The

guidelines provided clear instructions to camp staff to "know

where the kids in your care are at all times" and "[u]nder no

circumstances should kids be left alone."                            When the New Berlin

camp     staff      failed      to      supervise        Lily    as     required        by    the

guidelines, they were not making any laws or exercising any

judgments related to government business.                            They cannot be said
to have acted in a quasi-legislative or quasi-judicial manner

and therefore governmental immunity does not apply.

                                     III. CONCLUSION

       ¶81   In sum, although I agree with the majority opinion's

conclusion        that    New   Berlin       is    not    immune      from     suit    for    the

negligence of its camp staff, I cannot join the majority opinion

because      it    expands        the      known    danger       exception         beyond     the

"narrow,     judicially-created              exception"         to    confer       immunity     in
this case.          Instead, I return to the plain language of Wis.

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Stat. § 893.80(4) and conclude that New Berlin is liable for

Lily's drowning because the negligent supervision of Lily at the

Aquatic Center on July 3, 2012 was not an act done in the

exercise of a quasi-legislative or quasi-judicial function.

    ¶82   For the foregoing reasons, I concur.

    ¶83   I am authorized to state that Justices REBECCA GRASSL

BRADLEY and DANIEL KELLY join this concurrence.




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