Governmental Immunity Applied to Subcontractor

In a recent case recommended for publication, Bronfeld v. Pember Companies, Inc., the appellate court held a subcontractor immune from a lawsuit filed by Beverly Bronfeld after she was injured when she tripped over a warning barricade placed near a closed crosswalk.  She sued Pember Companies, among others, and the trial court granted summary judgment, finding that Pember had governmental immunity as an Agent of the City of River Falls.  Pember Companies was a subcontractor installing sidewalks as part of a larger contract with the City of River Falls.  River Falls had laid out extensive project, traffic and safety plans, and Pember had complied with the plans.  However, Bronfeld argued that Pember was negligent in the placement of the signs, and had not taken adequate precautions to protect the public. Bromfeld appealed, and the appellate court addressed two issues.

First the Bronfelds argued that Wisconsin Statute § 893.83(1), which is an exception to governmental immunity for certain highway defects, precluded Pember from claiming immunity.  The court concluded that a misplaced barricade was not a highway defect under the statute.  The statute related to the condition of the roadway surface, not temporary barricades.

Then the court reviewed the governmental immunity defense.  Wisconsin Statute § 893.80(4) immunizes local governments and their officers, employees, or agents from liability for acts involving the exercise of discretion or judgment.  The court first analyzed whether placement of barricades was a discretionary act, and concluded that ample case law had already decided this issue.  The placement of signs by a municipality was clearly an act of discretion.  Then the court reviewed whether Pember was immune because it was an agent of River Falls,  The court analyzed the case based on Lyons v. CAN Insurance Co. 207 Wis. 2d 446 (Ct. App. 1996).  In Lyons, the court had developed a three part test for when an agent may be entitled to governmental immunity: (1) whether the governmental authority had approved reasonably precise specifications; (2) whether the contractor’s actions conformed to those specifications; and (3) whether the contractor warned the municipality of any known dangers.  The court found that River Falls had the necessary specifications, Pember had conformed to those specifications, and Pember was unaware of any particular danger associated with the placement of the barricades by the closed crosswalk.  Thus Pember was entitled to immunity under § 893.80(4).

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