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Discretionary Duty and Municipal Liability

The time has come to re-examine the principles underlying the immunity afforded municipalities for the torts of their employees. As a preliminary matter, we are not talking about huge verdicts or settlements against villages or cities. The statutes provide a $50,000 cap, no matter how badly the person is injured.

 

The time has come to re-examine the principles underlying the immunity afforded municipalities for the torts of their employees.  As a preliminary matter, we are not talking about huge verdicts or settlements against villages or cities.  The statutes provide a $50,000 cap, no matter how badly the person is injured.

The current law insulates a municipal official for those acts that are discretionary as opposed to ministerial.  The distinction between a discretionary act and a ministerial act has become blurred over the years.  However, the courts have changed the rule set forth by the legislature.  Originally, liability was the rule, and immunity the exception.  Unfortunately, the courts have completely changed the law, and left injured people with no recourse.

In a recent case, the court found the municipality immune from suit when a bus driver sexually assaulted eighteen students on the school bus.  The court ruled that the families of the children assaulted had no recourse in the courts of this state.  The reason, discretionary immunity.  The court held you cannot sue a municipality for failing to supervise its own employees because such an act requires discretion. 

The courts have noted that the doctrine leads to harsh results.  They have yet to provide a remedy though.  There are a number of options available. 

The simplest solution is to return the dictates of the municipal immunity statute, sec. 893.80 Stats.  The statute insulates judicial and legislative acts from liability.  It also precludes liability for quasi judicial and legislative acts.  The contours of the statute are open to debate, but such an interpretation would allow the students who were assaulted to proceed with a negligent hiring and supervision claim.  This interpretation of the statute would allow a claim for defective bridge design to proceed to a jury trial. 

Private Citizens and corporations are responsible for their torts, and there is no reason the same analysis should not be applied to municipalities.

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