The exception that ate the rule.

Suing the government ain’t easy. Since they are the government, they get to make the rules about who you can sue and under that circumstances. It should be no surprise that the rules favor the government. One example is governmental immunity. Even if a government agency or employee does something clearly negligent and causes you harm, it’s very likely that they will never pay a dime because they are immune from the lawsuit.

What is interesting is that the law says that immunity should be the exception and liability is the rule. In other words, if you are suing a municipality, like a city or a county, or an employee of a municipality, it shouldn’t be that hard, because the rule is that if they have done wrong, they should pay. Immunity is supposed to be an exception. For years though, government lawyers have been fighting for more and more immunity for local governments. Now, the rule is that any injury that is the result of an “exercise of discretion” is immune. So, if your injury arises out of a government worker making a decision, most likely you can’t sue them. Gee, when does so one do something that isn’t a decision?

Let me give you an example from a real case. A Wisconsin municipality needed to install a sewer drain. Someone at the municipality thought it would be a good idea to install the sewer drain pipe over top of a creek in a fairly populated area. As you might guess, almost immediately children started using the round pipe as a bridge across the creek. As you might also guess, round pipes are slippery and not safe to use as bridges. The municipality was warned about this danger (although one might argue that the warning was unnecessary since the danger was evident), and in response, the city put up a small fence to block the pipe. Almost immediately, vandals, again probably children, tore down the fence so that they could continue to walk across the sewer pipe. Rather than fixing the fence, or installing a fence that was harder to tear down, the municipality “decided” to do nothing. Eventually, someone fell and died.

This is a classic case of gross negligence. Rest assured, if you did something on your own property which attracted children to come and play on an inherently dangerous object and did almost nothing to stop it, you would be sued, and you would pay, when someone got hurt. But not if you’re a city. Because the city in this case “decided” to install the drainpipe over the creek, and because they “decided” not to fix the fence, they were immune from the lawsuit, because government entities are immune if they have caused harm as a result of making a decision, no matter how obviously bad the decision was.

It is difficult to imagine a scenario in which a government agency or its employ would not be found to be immune. After all, anything that a government does is based on a decision to do that thing, and anything that the government doesn’t do, is based on a decision not to do that thing. There is a decision involved in every action and inaction, so it is the rare case indeed where a government agency cannot claim immunity for its decision.

So where does that leave the law that says immunity is the exception? To me, that important legal principal seems to be just lip service these days to the idea that government should compensate the people it harms. Perhaps the government would like us to believe it follows that principle, but the truth is that government lawyers have worked very hard to keep the government from ever paying anyone a dime, no matter how negligently the city employees act.

Chris

3 Responses to “Municipal Immunity”

  1. Tree guy says:

    This is true but there are options. From the Leage of Wisconsin Municipalities and under Liability # 392 talks about the “known danger” exception. It isnt broad but it does open a door, in some cases.
    Tree guy

  2. Tree guy says:

    One example would be the 1984 case of Domino v. Walworth County

  3. BadgerLawyer says:

    You are absolutely right — the “known danger” rule is available, but only in very few cases. In fact, common sense would say that the example used in my original post — a sewer pipe across a river where kids were known to have torn a fence down once already would certainly by a “known” danger. In Domino, a motorcyclist was injured when she hit a downed tree across a road. The County knew about the tree and had earlier dispatched an officer, but then had diverted the squad elsewhere for an accident. The County thus knew about the danger, and failed to warn or take other action. In another case, Cords v. Anderson, a municipality was held liable for not putting up a warning sign along a narrow hiking trail beside a 90 foot drop. The known danger rule was used there to hold the municipality liable for not putting up a warning sign. I am not sure I see an essential difference between the degree of “known danger” in these cases and the sewer pipe case.

    I did a quick search of other cases that referred to Domino. Out of 11 cases, 10 “Distinguished” from Domino, which is legalese for disagreed with. In other words, in 10 other cases, the court, looking at someone trying to use the “known danger” rule, said “No.” In the 11th case, the court also said “no,” just more strongly. Now this isn’t a complete legal analysis of the issue, but it does make the point. It is hard to sue municipalities.

    Thank you for your insightful comments, Tree Guy.

    Chris