ANN WALSH BRADLEY, J.
¶ 1 The petitioners, Marilyn M. Brown (Brown) and Delores M. Schwartz (Schwartz), seek review of a published opinion of the court of appeals affirming the circuit court's grant of summary judgment in favor of the defendants, dismissing Parnell P. Burditt (Burditt), the Okauchee Fire Department (OFD), and their insurers.
¶ 2 Brown and Schwartz argue that Burditt was not acting within the scope of his employment as a volunteer firefighter when the collision occurred, thus placing him outside the class of individuals subject to public officer immunity. Additionally, they argue that because Burditt acted contrary to a ministerial duty to stop at the red stop signal, his acts fall within the ministerial duty exception to public officer immunity.
¶ 3 We conclude that Burditt was acting within the scope of his employment when the collision occurred. Accordingly, he is within the class of individuals that may be shielded by public officer immunity.
¶ 4 However, we further conclude that Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity. The "rules of the road" statutes codified at Chapter 346 of the Wisconsin Statutes required Burditt to stop at the red stop signal because his vehicle lacked an audible signal. Because Burditt's acts fall within the ministerial duty exception to public officer immunity, he is not shielded by immunity and summary judgment is not appropriate. Accordingly, we reverse the court of appeals and remand for further proceedings.
¶ 5 The material facts of this case are undisputed. On June 8, 2008, a dark and rainy evening, Burditt was driving his truck on his way to the OFD fire station when he came to an intersection with a four-lane divided highway. It was approximately 10:20 p.m., and Burditt was responding to an emergency call issued by the OFD. The OFD is organized as a non-stock corporation and serves several communities in the area around Okauchee, Wisconsin. Burditt has been a member of the OFD since 2002. Burditt served as a Lieutenant volunteer firefighter and Emergency Medical Services (EMS) Service Director with the OFD.
¶ 7 Burditt stopped his truck again at the median between the northbound and southbound lanes of the intersecting road. He looked to the right into the northbound lanes. Seeing a vehicle coming, he waited for the other vehicle to pass through the intersection. However, just prior to reaching the intersection, the other vehicle pulled over to the side of the road and stopped.
¶ 8 After seeing the other vehicle pull over, Burditt proceeded across the northbound lanes, still against the red stop signal. A third vehicle that had been traveling behind the vehicle that pulled over collided with Burditt's vehicle as he was crossing the northbound lanes. He did not see the vehicle that collided with his truck. Burditt later acknowledged that he had no authority to proceed against the red stop signal, calling it a "poor decision."
¶ 9 As indicated, Burditt was on the road on the evening of June 8 in response to the OFD's emergency call for assistance.
¶ 10 The call that was issued on June 8 was not an EMS-only call, and therefore Burditt was traveling to the fire station. The means and methods by which Burditt traveled to the station were left up to him.
¶ 11 The OFD exercises no control over how volunteer firefighters choose to travel to the fire station when responding to a call. Variables of travel such as route, speed, and the type of vehicle used to travel to the fire station are left entirely to the volunteer firefighters.
¶ 12 When the volunteer firefighters arrive at the station on an emergency call, generally they are expected to obtain the needed equipment for responding to the emergency. Once equipped, the volunteer firefighters then travel to the scene of the emergency. Assignments in responding to the emergency are normally given en route to the call.
¶ 13 The OFD procedures are collected in a set of Standard Operating Guidelines that are set forth by the OFD. One such guideline governs the manner in which volunteer firefighters may utilize personal vehicles to respond to calls:
Another guideline states that "Wisc. Statute 346.03" is an "Applicable State Statute[]" for emergency vehicles and that guideline reminds the volunteer firefighters that they "are responsible to operate within these guidelines" when operating vehicles for the OFD.
¶ 14 Officers of the OFD are expected to carry pagers twenty-four hours a day, seven days a week. When a call to respond to an emergency goes out, the officers are expected to respond to the emergency if available. From the time of dispatch until the time that an emergency call ends, Burditt and other members of the OFD are obligated to follow the orders of their commanding officers.
¶ 15 Brown and Schwartz were passengers in the vehicle that collided with Burditt's truck. They commenced this action, alleging that Burditt negligently caused their injuries. The allegations in the complaint are brief and are set forth in relevant part as follows:
¶ 16 Burditt moved for summary judgment, arguing that he was acting within the scope of his employment with the OFD when he was responding to the call and traveling to the fire station, and that he was therefore shielded by public officer immunity.
¶ 17 In addressing the motion, the circuit court considered first whether Burditt was acting in the scope of his employment at the time the collision occurred. It determined that "the minute that ... he's responding to the circumstances of the emergency, whether he goes to the firehouse,
¶ 18 It addressed next whether Burditt acted contrary to a ministerial duty when he proceeded through the red stop signal. The circuit court explained that the act of going through the red stop signal requires discretion, "one to operat[e] the vehicle, two [to] put your foot on the accelerator, and three [to] drive your car through the intersection." It distinguished a duty to "obey traffic laws" from a ministerial duty, and ultimately concluded that the duties imposed on Burditt in this case were not ministerial. As a result, the circuit court granted summary judgment dismissing Burditt and his insurer from the case.
¶ 19 The OFD subsequently moved for summary judgment, arguing that the circuit court's rationale for dismissing Burditt from the action entitled it also to immunity and to the same relief. The circuit court granted summary judgment dismissing OFD and its insurer from the case "for the same reasons" that it dismissed Burditt and his insurer.
¶ 20 The court of appeals affirmed the circuit court. Brown v. Acuity, 2012 WI App 66, 342 Wis.2d 236, 815 N.W.2d 719. Addressing first whether Burditt was within the scope of his employment, the court of appeals determined that Burditt's relationship with the OFD is "nontraditional." Id., ¶ 9. It observed that although Burditt chooses the mode of transportation and the route he will take once a call comes in, "it is the OFD that decides when a call goes out and to whom." Id. The court of appeals opined that volunteer firefighters "are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call." Id. Ultimately, it concluded that Burditt was acting within the scope of his employment while en route to the fire station. Id.
¶ 21 Turning to address whether Burditt's acts in proceeding through the red stop signal were contrary to a ministerial duty, the court of appeals determined that the ministerial duty exception to public officer immunity does not apply. It concluded that although Burditt undisputedly "failed to meet" the standard set forth in Wis. Stat. § 346.03(3) (2009-10)
¶ 22 In this case, we are called upon to review the opinion of the court of appeals
¶ 23 The first question presented is whether Burditt falls within a class of individuals who may be shielded by public officer immunity because he was acting within the scope of his employment as a volunteer firefighter at the time the accident occurred. Whether Burditt was acting within the scope of his employment given the undisputed material facts presents a question of law that we review independently of the determinations of the circuit court and the court of appeals. See Olson v. Connerly, 156 Wis.2d 488, 494-95, 457 N.W.2d 479 (1990).
¶ 24 If we determine that Burditt was acting within the scope of his employment as a volunteer firefighter, we must then determine whether Burditt's acts in proceeding through a red stop signal fall within the ministerial duty exception to public officer immunity. Whether the ministerial duty exception to public officer immunity applies to undisputed facts presents a question of law that we review independently of the determinations of the circuit court and the court of appeals. Pries v. McMillon, 2010 WI 63, ¶ 19, 326 Wis.2d 37, 784 N.W.2d 648.
¶ 25 We first address whether Burditt was acting within the scope of his employment at the time of the collision. Burditt argues that he was acting as a volunteer firefighter from the moment he chose to respond to the call and began to travel to the fire station. He contends that this case differs from a typical commuter case and therefore the general rule set forth in DeRuyter v. Wis. Elec. Power Co., 200 Wis.2d 349, 546 N.W.2d 534 (Ct. App.1996) stating that an employee is not acting within the scope of his employment when going to and from a given place of employment does not apply under these circumstances. Because he was merely acting within the scope of his employment, Burditt contends that he falls within the class of individuals to which public officer immunity applies.
¶ 26 We begin that inquiry by examining DeRuyter to determine whether it sets forth an analytical framework for the present case. In that case, an individual was driving from his home to a vocational training session at his employer's central training center. DeRuyter, 200 Wis.2d at 355, 546 N.W.2d 534. While traveling, he lost control of his vehicle and caused a tanker filled with jet fuel to jackknife, roll down an embankment, and burst into flames, killing its driver. Id. at 355-56, 546 N.W.2d 534.
¶ 27 Two civil actions were commenced after the accident, and both alleged that the driver was acting within the scope of his employment with Wisconsin Electric when the accident occurred. Id. at 356, 546 N.W.2d 534. The allegations were advanced in order to render Wisconsin Electric vicariously liable through the doctrine of respondeat superior. Id. at 358-59, 546 N.W.2d 534.
¶ 28 The court of appeals, in concluding that the driver was not acting within the scope of his employment, noted that the "touchstone of scope-of-employment issues... is employer control over the employee." Id. at 360, 546 N.W.2d 534. It set forth as a "general maxim" in commuter cases that where an employee works for another at a given place of employment, and lives at home or boards himself, "it is the business of the employee to present himself at the place of employment, and the relation of master and servant does not exist while he is going between his home and place of employment." Id. at 361, 546 N.W.2d 534. Therefore, under those circumstances, only when the employer "exercises control over the method or route of the employee's travel to or from work can the employee be said to be acting within his or her employment."
¶ 29 Thus, the DeRuyter court's ultimate focus was on whether the employee is actuated by a purpose to serve the employer. Id. Other scope of employment cases likewise focus on that same requirement. For example, in Olson v. Connerly, 156 Wis.2d 488, 457 N.W.2d 479 (1990), this court addressed a scope-of-employment question arising under Wis. Stat. § 895.46(1)(a), a public officer indemnification statute.
¶ 31 Ultimately, the Olson court determined that there is no requirement that serving the employer be the employee's "only purpose or even the employee's primary purpose." Id. at 499, 457 N.W.2d 479. Rather, an employee's conduct is not within the scope of his employment if "it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purposes." Id. at 499-500, 457 N.W.2d 479.
¶ 32 Here, as in other contexts, the focus of our inquiry must likewise center on whether an employee is actuated by a purpose to serve his employer. However, a different analysis from the one set forth in DeRuyter is required under circumstances where the employee does not have a fixed place of employment. Recognizing the differences in cases where there is no fixed place of employment, the court of appeals declared that the DeRuyter analysis "does not apply" in those circumstances.
¶ 33 In Murray, a physical therapist was required to schedule appointments with clients of her employer and travel to and from the homes of the patients to administer physical therapy to them. Id. at 823-24, 601 N.W.2d 661. One day, on her way from one appointment to another appointment, she was involved in an automobile accident with a third party, and one of the passengers in the other vehicle commenced an action against her and her employer. Id. at 823, 601 N.W.2d 661.
¶ 34 The court of appeals reasoned that the circumstances presented in that case distinguished it from DeRuyter because under DeRuyter, the employee must have a fixed place of employment. Id. at 827-28, 601 N.W.2d 661. Upon determining that the DeRuyter analysis did not apply, the court of appeals examined the circumstances of the physical therapist's travel and concluded that her travel "was actuated by a purpose to serve her employer when the accident occurred." Id. at 831, 601 N.W.2d 661.
¶ 35 Like Murray, the facts of this case do not comfortably fit into the DeRuyter
¶ 36 Thus, Burditt is not a typical commuter with a fixed place of employment as described by DeRuyter. Instead he is more like the physical therapist in Murray, whose employment required her to travel to a number of destinations. Accordingly, the DeRuyter "general maxim" does not apply in this case. 200 Wis.2d at 361, 546 N.W.2d 534. Like the Murray and Olson courts, we focus instead on whether Burditt was actuated by a purpose to serve his employer when the accident occurred.
¶ 37 The undisputed facts of this case show that Burditt was actuated by a purpose to serve the OFD when the accident occurred. His entire purpose in traveling to the fire station on the evening of June 8 was to respond to the emergency call that had come through on his pager. No one argues that he had any other motivation.
¶ 38 Furthermore, once he responded, Burditt was obligated to follow the orders of his commanding officers. Although DeRuyter does not apply, the fact that Burditt was bound by the orders of his commanding officers lends further support to our analysis.
¶ 39 Therefore, we conclude that Burditt, in responding to the call, acted within the scope of his employment. Because he was acting within the scope of his employment as a volunteer firefighter, Burditt falls within the class of individuals who may be shielded by public officer immunity. See Wis. Stat. § 893.80(4).
¶ 40 Having determined that Burditt falls within the class of individuals who may be shielded by public officer immunity, we address next whether Burditt's allegedly negligent acts qualify for an exception to that immunity. Brown and
¶ 41 Public officer immunity is grounded in Wis. Stat. § 893.80(4). The statute provides as follows:
Thus, a public officer is immune from "any suit" for "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." Id.; see also Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶ 25, 235 Wis.2d 409, 611 N.W.2d 693.
¶ 42 The general rule of immunity for public officers in their performance of acts within the scope of employment is subject to four exceptions identified in case law. Scott v. Savers Property and Cas. Ins. Co., 2003 WI 60, ¶ 16, 262 Wis.2d 127, 663 N.W.2d 715. The four exceptions to public officer immunity are set forth as follows:
Lodl v. Progressive Northern Ins. Co., 2002 WI 71, ¶ 24, 253 Wis.2d 323, 646 N.W.2d 314.
¶ 43 In this case, the sole exception at issue is the ministerial duty exception. A public officer's duty is ministerial only when it is "absolute, certain and imperative," involving the "performance of a specific task" that the law imposes and defines the "time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Lister v. Board of Regents, 72 Wis.2d 282, 301, 240 N.W.2d 610 (1976). If liability is premised on either the negligent performance or non-performance of a ministerial duty, then immunity will not apply. Lodl, 253 Wis.2d 323, ¶ 26, 646 N.W.2d 314.
¶ 44 To determine whether a ministerial duty exists, this court has in past cases examined the language of an applicable statute, regulation, or procedure that is argued to impose such a duty. See, e.g., id., ¶¶ 29-30 (examining an operations policy guideline to determine whether it imposed a ministerial duty); Bicknese v. Sutula, 2003 WI 31, ¶ 25, 260 Wis.2d 713, 660 N.W.2d 289 (evaluating an employee policy manual); Umansky v. ABC Ins. Co., 2009 WI 82, ¶ 18, 319 Wis.2d 622, 769 N.W.2d 1 (examining a safety regulation). The duty imposed by the statute, regulation, or procedure must conform to all elements of a
¶ 45 Here, Brown and Schwartz argue that the "rules of the road" codified at Chapter 346 of the Wisconsin Statutes imposed a ministerial duty upon Burditt to stop at a red stop signal. The "rules of the road" generally require that a vehicle must stop at a red stop signal:
Wis. Stat. § 346.37(1)(c)1. Although all vehicles are subject to the general requirement to stop at a red stop signal, Wis. Stat. § 346.03 grants authorized emergency vehicles a privilege to proceed through the red stop signal under certain specified circumstances.
¶ 46 In order to lawfully proceed through a red stop signal, the operator of the authorized emergency vehicle must give a "visual signal," which is defined as "at least one flashing, oscillating or rotating red light." Wis. Stat. § 346.03(3). Furthermore, it must also give an audible signal, which the statute defines as "a siren or exhaust whistle." Id.
¶ 47 Even if an operator of an authorized emergency vehicle gives both a visual and an audible signal, Wis. Stat. § 346.03(5) still requires that the operator drive "with due regard under the circumstances for the safety of all persons." Thus, in order to comply with Wis. Stat. § 346.03 and lawfully proceed through a red stop signal, an authorized emergency vehicle must slow down as may be necessary for safe operation, have given both a visual and an audible signal, and must have proceeded with due regard under the circumstances for the safety of all persons.
¶ 48 Here, Burditt by his own admission made a "poor decision" to proceed through the red stop signal, proceeding while giving a visual signal, but not while giving any audible signal. His actions are undisputedly contrary to the statutory requirements set forth in Wis. Stat. § 346.03(3). The only question is whether acting contrary to that "rule of the road" was ministerial.
¶ 49 This court considered whether acting contrary to the "rules of the road" may constitute an act contrary to a ministerial duty in Estate of Cavanaugh v. Andrade, 202 Wis.2d 290, 550 N.W.2d 103 (1996). In that case, a law enforcement official engaged in a high-speed chase with another vehicle that failed to stop at a red stop
¶ 50 The municipality and the law enforcement official argued that they were immune from liability.
¶ 51 The Cavanaugh court determined that Wis. Stat. § 346.03(5) imposed only a discretionary duty under the circumstances of the case. Id. at 315-16, 550 N.W.2d 103. It noted that the officer's actions in initiating and continuing the high-speed chase were discretionary, distinguishing those acts from the physical operation of the vehicle, which it suggested may be ministerial in some circumstances. Id. at 316-18, 550 N.W.2d 103.
¶ 52 In Cavanaugh, it was the officer's decisions relating to the initiation and continuance of the high-speed chase that constituted the negligent conduct. Id. This court employed a similar analysis in Lodl, 253 Wis.2d 323, ¶ 27, 646 N.W.2d 314, where it examined law enforcement regulations relating to the decision to direct traffic at an intersection. The Lodl court noted that the regulations did not require the officer to direct traffic in any given situation or otherwise remove officer discretion over the decision to undertake manual traffic control, and determined that they did not impose a ministerial duty. Id.
¶ 53 In this case, Burditt argues that, like the officer initiating and continuing the high-speed chase in Cavanaugh, his decision to enter the intersection was not ministerial. Likewise, he contends that his decision to proceed through the red stop signal is comparable to the law enforcement officer deciding whether to direct traffic in Lodl. However, unlike the decisions to initiate and continue a high-speed chase in Cavanaugh and the decision to direct traffic in Lodl, Wis. Stat. § 346.03(3) directly governs Burditt's acts in proceeding through a red stop signal without an audible signal and satisfies all elements of a ministerial duty. Lister, 72 Wis.2d at 301, 240 N.W.2d 610.
¶ 54 Burditt may proceed through a red stop signal only if his vehicle gives a visual and an audible signal. Wis. Stat. § 346.03(3). He did not give an audible
¶ 55 Thus, Wis. Stat. § 346.03(3) imposed upon Burditt a ministerial duty to stop at the red stop signal. He failed to comply with that ministerial duty and now faces allegations of negligence premised on his failure to comply. He therefore falls within the ministerial duty exception to public officer immunity.
¶ 56 We further observe that as a supplement to Wis. Stat. § 346.03, the OFD set forth guidelines that appear to prohibit its members from proceeding through a red stop signal. The guidelines state that a personal vehicle must be driven with "emergency lights only," excluding audible signals from use. Also under the "Use of Personal Vehicles" heading, the guidelines caution that "[n]o warning device will automatically grant you the right of way!" Although we need not determine whether the guidelines themselves established a ministerial duty, those directives only strengthen our conclusion.
¶ 57 Accordingly, we conclude that Burditt is not shielded by public officer immunity because he acted contrary to a ministerial duty. Because Burditt is not shielded by public officer immunity, summary judgment dismissing Burditt, the OFD, and their insurers is not appropriate.
¶ 58 In sum, we conclude that Burditt was acting within the scope of his employment when the collision occurred. Accordingly, he is within the class of individuals that may be shielded by public officer immunity.
¶ 59 However, we further conclude that Burditt is not entitled to public officer immunity because his acts in proceeding through the red stop signal without an audible signal violated a clear ministerial duty. He therefore falls within that exception to public officer immunity. The "rules of the road" statutes codified at Chapter 346 of the Wisconsin Statutes required Burditt to stop at the red stop signal because his vehicle lacked an audible signal. Because Burditt's acts fall within the ministerial duty exception to public officer immunity, he is not shielded by immunity and summary judgment is not appropriate. Accordingly, we reverse the court of appeals and remand for further proceedings.
The decision of the court of appeals is reversed and the cause is remanded.
The requirements set forth in Wis. Stat. § 346.03(3) qualify a grant of privilege to the operator of an authorized emergency vehicle to "[p]roceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation." Wis. Stat. § 346.03(2)(b).
The OFD and its insurer appear to advance these positions because they additionally contend that Burditt's insurer is the primary insurer under Wis. Stat. § 895.46, a statute that sets forth indemnification criteria for governmental entities when public officers become liable for acts committed within the scope of their employment. They reason that if Burditt was within the scope of his employment and not immune, the limitation on damages set forth in Wis. Stat. § 893.80(3) applies to any damages that are awarded. Thus, any potential damages would fall within the liability limits of Burditt's insurance policy and they would not be responsible for any damages.
The questions concerning the OFD's ultimate liability and whether there are statutory limitations on any damages that may be awarded are outside the scope of our review and we do not address them.
Wis. Stat. § 893.80(1b) (2011-12). Although the current Wis. Stat. § 893.80(1b) was not in effect during the relevant events of this case, our analysis is consistent with the elements set forth by the legislature in the recent revisions to the statute.
In examining the statute, the court observed that although "the promulgation of guidelines in general involves a great amount of governmental discretion, § 346.03(6) makes the inclusion of certain parts of the policy promulgation ministerial." Id. The duty was ministerial because the statute mandated that law enforcement agencies consider "specific factors" that were "absolute, certain and imperative, involving merely the performance of a specific task." Id. (quoting Kimps v. Hill, 200 Wis.2d 1, 10, 546 N.W.2d 151 (1996)).