2013 WI 60

SUPREME COURT OF WISCONSIN

CASE NO.: 2011AP583

COMPLETE TITLE: Marilyn M. Brown and Delores M. Schwartz,

Plaintiffs-Appellants-Petitioners,

Dean Health Insurance, Inc., Conseco Insurance

Company and

Kathleen Sebelius,

Involuntary-Plaintiffs,

v.

Acuity, A Mutual Insurance Company, Parnell P.

Burditt,

American Alternative Insurance Company and

Okauchee Fire Department,

Defendants-Respondents,

Utica Mutual Insurance Company,

Defendant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 342 Wis. 2d 236, 815 N.W.2d 719

(Ct. App. 2012 – Published)

PDC No: 2012 WI App 66

OPINION FILED: July 9, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: February 12, 2013

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Waukesha

JUDGE: Donald J. Hassin Jr.

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were

briefs by Don C. Prachthauser, Keith R. Stachowiak, and Murphy &

Prachthauser, S.C., Milwaukee, and oral argument by Keith R.

Stachowiak.

For defendants-respondents American Alternative Insurance

Company and Okauchee Fire Department, there was a brief by
2

Bennett J. Brantmeier, Amanda J. Ramaker, Danielle H. Thompson

and Brantmeier Law, LLC, Jefferson, with oral argument by

Bennett J. Brantmeier.

For defendants-respondents Acuity, A Mutual Insurance

Company, and Parnell P. Burditt, there was a brief filed by

Lance S. Grady and Daniel K. Miller, Waukesha, with oral

argument by Lance S. Grady.

An amicus curiae brief was filed by J. Michael Riley and

Axley Brynelson, LLP, Madison, and oral argument by J. Michael

Riley on behalf of Wisconsin Association for Justice.

An amicus curiae brief was filed by Michele M. Ford and

Crivello Carlson, S.C., Milwaukee, on behalf of Wisconsin

Defense Counsel.
2013 WI 60

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2011AP0583

(L.C. No. 2010CV520)

STATE OF WISCONSIN : IN SUPREME COURT

Marilyn M. Brown and Delores M. Schwartz,

Plaintiffs-Appellants-Petitioners,

Dean Health Insurance, Inc., Conseco Insurance

Company and Kathleen Sebelius,

Involuntary-Plaintiffs,

v.

Acuity, A Mutual Insurance Company, Parnell P.

Burditt, American Alternative Insurance Company

and Okauchee Fire Department,

Defendants-Respondents,

Utica Mutual Insurance Company,

Defendant.

FILED

JUL 9, 2013

Diane M. Fremgen

Clerk of Supreme Court

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

cause remanded.

¶1 ANN WALSH BRADLEY, J. The petitioners, Marilyn M.

Brown (Brown) and Delores M. Schwartz (Schwartz), seek review of

a published opinion of the court of appeals affirming the
No. 2011AP0583

2

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.

1 Brown and

Schwartz commenced an action alleging that Burditt, a volunteer

firefighter and a member of the OFD, negligently caused their

injuries when he drove his vehicle through a red stop signal

into an intersection, where it collided with a vehicle carrying

Brown and Schwartz. The circuit court granted summary judgment

dismissing Burditt, the OFD, and their insurers on the grounds

that Burditt is shielded by public officer immunity and that his

acts do not fall within the ministerial duty exception to that

immunity.

¶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.

1 Brown v. Acuity, 2012 WI App 66, 342 Wis. 2d 236, 815

N.W.2d 719, affirming the circuit court for Waukesha County,

Donald J. Hassin, J., presiding.
No. 2011AP0583

3

¶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.

I

¶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.

¶6 When Burditt reached the intersection, he encountered

a red stop signal and accordingly he brought his truck to a

stop. His truck had three flashing lights activated, but it had
No. 2011AP0583

4

no audible signal.

2 Burditt looked to his left into the

southbound lanes of the intersecting road and saw that there was

no oncoming traffic coming from that direction, so he proceeded

through the red stop signal into the middle of the intersection.

¶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

2 One revolving red light was located on the vehicle's

center dash, another flashing light was located on the vehicle's

driver side, and a strobe light was mounted on the passengerside visor.
No. 2011AP0583

5

assistance.

3 The OFD uses a system of pagers to dispatch

emergency calls to volunteer firefighters. When the volunteer

firefighters receive the call on their pagers, they decide if

they can respond. In most cases, responding to a call initially

means leaving from home, work, or some other location and

traveling to the fire station. For calls that are related only

to EMS, the volunteer firefighters respond directly to the scene

of the emergency.

¶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.

3 The emergency later turned out to be a flooded basement.

However, Burditt did not know the call was for a flooded

basement when he received it——he received only a message on his

OFD-issued pager that an emergency was taking place.
No. 2011AP0583

6

¶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:

S.O.G. 300.0

Goal: Provide a guideline for the operation of motor

vehicles.

. . . .

Use of Personal Vehicles

A) Members may have emergency lights only

B) Members vehicles used to respond to alarms are not

covered by the Okauchee Fire Department

C) Unless authorized, emergency lights will not be

used, if responding more than 15 minutes f[rom] the

fire station. Red lights may be used only when

responding to an alarm for OKFD, unless authorized by

O.I.C.

No warning device will automatically grant you the

right of way!

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
No. 2011AP0583

7

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:

On June 8, 2008, in Waukesha County, Wisconsin, a

motor vehicle collision occurred involving automobiles

being driven by defendant, Parnell Burditt, who was

responding to a volunteer fire call with the Okauchee

Fire Department and struck the automobile being driven

by Frank V. Brown. Plaintiffs, Marilyn M. Brown and

Delores M. Schwartz were passengers in the vehicle

operated by Frank V. Brown.

[] The negligence of defendant, Parnell Burditt, was a

substantial factor causing the collision.

¶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.

4

4 Under Wis. Stat. § 893.80(4), public officers are immune

from liability for certain acts. The statute provides as

follows:

(4) 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.
No. 2011AP0583

8

Additionally, he contended that his acts in proceeding through

the intersection were discretionary, and as a result, he did not

fall within the ministerial duty exception to public officer

immunity. In response, Brown and Schwartz argued that Burditt

was not entitled to immunity because he was not acting within

the scope of his employment when the accident occurred and that

his acts were contrary to a ministerial duty to stop at the red

stop signal.

¶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, the scene of the

motor vehicle accident, the crisis . . . it's occurring within

the scope of the umbrella covered by the Okauchee Fire

Department, [and] he is acting within the scope of his

employment."

¶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
No. 2011AP0583

9

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-
No. 2011AP0583

10

10)

5 requiring an audible and visual signal when proceeding

through a red stop signal, that failure merely "subjected him[]

to the penalty for violating" the statute and did not render the

duty to comply ministerial. Id., ¶18

II

¶22 In this case, we are called upon to review the opinion

of the court of appeals that affirmed the circuit court's grant

of summary judgment in favor of the defendants. The circuit

court dismissed Burditt, the OFD, and their insurers because of

its conclusion that Burditt is shielded by public officer

5 All subsequent references to the Wisconsin Statutes refer

to the 2009-10 version unless otherwise indicated. Wisconsin

Stat. § 346.03(3) provides as follows:

(3) The exemption granted the operator of an

authorized emergency vehicle by sub. (2)(a) applies

only when the operator of the vehicle is giving visual

signal by means of at least one flashing, oscillating

or rotating red light except that the visual signal

given by a police vehicle may be by means of a blue

light and a red light which are flashing, oscillating

or rotating, except as otherwise provided in sub.

(4m). The exemptions granted by sub. (2)(b), (c) and

(d) apply only when the operator of the emergency

vehicle is giving both such visual signal and also an

audible signal by means of a siren or exhaust whistle,

except as otherwise provided in sub. (4) or (4m).

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).
No. 2011AP0583

11

immunity.

6 Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law. Wis. Stat.

§ 802.08(2). Here, the material facts are undisputed and the

resolution of the case ultimately turns on questions of law.

¶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.

6 The OFD and its insurer argue that Burditt is, and

therefore that they are, shielded by immunity. Additionally,

they echo Burditt's argument that Burditt was within the scope

of his employment at the time of the collision.

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.
No. 2011AP0583

12

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.

III

¶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
No. 2011AP0583

13

of individuals to which public officer immunity applies.

7 Thus,

the ultimate aim of our inquiry into whether Burditt acted

within the scope of his employment is to determine whether he

falls within the class of individuals who may be shielded by

public officer immunity.

¶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. 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.

¶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. The allegations were advanced in order

to render Wisconsin Electric vicariously liable through the

doctrine of respondeat superior. Id. at 358-59.

7 Public officer immunity applies "regardless of whether the

public [officer] is employed by the state or by a political

subdivision of the state," such as a municipality. Kierstyn v.

Racine Unified School Dist., 228 Wis. 2d 81, 89, 596 N.W.2d 417

(1999). Although the OFD is organized as a non-stock

corporation and not as a fire company under Chapter 213 of the

Wisconsin statutes, it is considered a government subdivision or

agency for the purposes of an immunity analysis. See Mellenthin

v. Berger, 2003 WI App 126, ¶¶9, 15, 265 Wis. 2d 575, 666 N.W.2d

120 (a fire department that is a non-stock corporation is

considered a government subdivision or agency for the purposes

of Wis. Stat. § 893.80(4)).
No. 2011AP0583

14

¶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. 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. 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."

8

Id. The DeRuyter court focused on employer control in the

commuting context because "without such control, the employee is

not actuated by a purpose to serve the employer . . . but is

solely promoting the employee's 'own convenience.'" Id. at 361-

62.

¶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,

8 See also Murray v. Travelers Ins. Co., 229 Wis. 2d 819,

827, 601 N.W.2d 661 (Ct. App. 1999) ("DeRuyter determined that

an employer could be held vicariously liable for the negligent

acts of an employee when commuting only if the employer

exercised control over the method or route of the employee's

travel.").
No. 2011AP0583

15

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.

9

¶30 In Olson, a faculty member argued that he was acting

within the scope of his employment when he negligently caused

injury to a medical assistant, making the State responsible for

the damages and costs entered against him pursuant to Wis. Stat.

§ 895.46(1)(a). Id. at 496. The Olson court surveyed other

scope of employment cases arising in different contexts to

determine whether the faculty member was acting within the scope

of his employment. Id. at 496-97. It stated that this court

has "always deemed significant the employee's intent at the time

the acts in question were committed." Id. at 497-98.

¶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.

9 Wisconsin Stat. 895.46(1)(a) provides as follows, in

relevant part:

(1)(a) If the defendant in any action or special

proceeding is a public officer or employee and is

proceeded against in an official capacity or is

proceeded against as an individual because of acts

committed while carrying out duties as an officer or

employee and the jury or the court finds that the

defendant was acting within the scope of employment,

the judgment as to damages and costs entered against

the officer or employee, except as provided in s.

146.89(4), in excess of any insurance applicable to

the officer or employee shall be paid by the state or

political subdivision of which the defendant is an

officer or employee. . . .
No. 2011AP0583

16

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.

¶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.

10

Murray v. Travelers Ins. Co., 229 Wis. 2d 819, 828, 601 N.W.2d

661 (Ct. App. 1999).

¶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. One day, on her way from one

10 Case law indicates that there are other exceptions to the

"general maxim" 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." DeRuyter v. Wis. Elec. Power Co., 200 Wis. 2d 349,

361, 546 N.W.2d 534 (Ct. App. 1996). For additional discussion

of the "general maxim" and its exceptions, see Christopher

Vaeth, Employer's Liability for Negligence of Employee in

Driving his or her own Automobile, 27 A.L.R. 5th 174 (1995)

(collecting cases that identify the "coming and going" rule and

the exceptions to that rule, including the "on-call" exception).
No. 2011AP0583

17

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.

¶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. 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.

¶35 Like Murray, the facts of this case do not comfortably

fit into the DeRuyter analysis. Burditt is an on-call volunteer

firefighter who could be called to any number of locations at

any time. Sometimes he may be required to report to the fire

station and sometimes he may need to report directly to the

scene of the emergency depending on the nature of the call.

Even though the OFD guidelines require him to travel first to

the fire station in responding to a non-EMS call, the fire

station is still not Burditt's ultimate destination. Rather, he

is expected to pick up the necessary equipment and travel again

to the scene of the emergency.

¶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.
No. 2011AP0583

18

Accordingly, the DeRuyter "general maxim" does not apply in this

case. 200 Wis. 2d at 361. 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.

11

11 In 2011 Wisconsin Act 162, effective April 12, 2012, the

legislature amended Wis. Stat. § 893.80 to expressly provide

that an "agent" for the purposes of the immunity analysis

includes a volunteer firefighter. One element of the statute

provides that a volunteer firefighter must be "subject to the

right of control of the volunteer company":

(1b) In this section, "agent" includes a volunteer. In

this subsection, "volunteer" means a person who

satisfies all of the following:

(a) The person provides services or performs duties

for and with the express or implied consent of a

volunteer fire company organized under ch. 181 or 213,

political corporation, or governmental subdivision or

agency thereof. A person satisfies the requirements

under this paragraph even if the activities of the

person with regard to the services and duties and the

details and method by which the services are provided
No. 2011AP0583

19

¶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).

IV

¶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 Schwartz

argue that Burditt acted contrary to a ministerial duty to

follow certain "rules of the road," which are codified in

Chapter 346 of the Wisconsin statutes. Specifically, they

contend that Burditt disregarded a statutory requirement that he

and the duties are performed are left to the

discretion of the person.

(b) The person is subject to the right of control of

the volunteer company, political corporation, or

governmental subdivision or agency described in par.

(a).

(c) The person is not paid a fee, salary, or other

compensation by any person for the services or duties

described in par. (a). In this paragraph,

"compensation" does not include the reimbursement of

expenses.

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.
No. 2011AP0583

20

may not proceed through a red stop signal unless he activates

both an emergency light and an audible signal as set forth in

Wis. Stat. § 346.03(3).

¶41 Public officer immunity is grounded in Wis. Stat.

§ 893.80(4). The statute provides as follows:

(4) 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.

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:

Both state and municipal immunity are subject to

several exceptions "representing 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.'" . . . There is no immunity

against liability associated with: 1) the performance

of ministerial duties imposed by law; 2) known and
No. 2011AP0583

21

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.

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.

¶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
No. 2011AP0583

22

ministerial duty. Yao v. Chapman, 2005 WI App 200, ¶31, 287

Wis. 2d 445, 705 N.W.2d 272.

¶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:

(1) Whenever traffic is controlled by traffic control

signals exhibiting different colored lights

successively, or with arrows, the following colors

shall be used and shall indicate and apply to

operators of vehicles and pedestrians as follows:

...

(c) Red. 1. Vehicular traffic facing a red signal

shall stop before entering the crosswalk on the near

side of an intersection, or if none, then before

entering the intersection or at such other point as

may be indicated by a clearly visible sign or marking

and shall remain standing until green or other signal

permitting movement is shown.

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.

12 The authorized emergency vehicle may "[p]roceed

12 An "authorized emergency vehicle" is defined in the

statutes to include "[p]rivately owned motor vehicles being used

by deputy state fire marshals or by personnel of a full-time or

part-time fire department or by members of a volunteer fire

department while en route to a fire or on an emergency call

pursuant to orders of their chief or other commanding officer."

Wis. Stat. § 340.01(3)(d).
No. 2011AP0583

23

past a red or stop signal or stop sign, but only after slowing

down as may be necessary for safe operation" and meeting

additional conditions set forth in other portions of the

statute. Wis. Stat. § 346.03(2)(b).

¶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.
No. 2011AP0583

24

¶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 signal. Id. at 296. The vehicle

which was being pursued struck and killed a third-party driver.

Id. The deceased driver's estate sued the law enforcement

official and the municipality for which he was employed alleging

a cause of action sounding in negligence. Id. at 297.

¶50 The municipality and the law enforcement official

argued that they were immune from liability.

13 Id. The law

enforcement officer argued that his alleged negligent initiation

of the high-speed chase and his failure to terminate it were

discretionary acts, and further argued that his alleged

13 The municipality argued that Wis. Stat. § 346.03(6) set

forth no ministerial duty such that failing to comply with a

statutory mandate regarding policies and procedures for highspeed chases exposed it to liability. Estate of Cavanaugh v.

Andrade, 202 Wis. 2d 290, 296-97, 550 N.W.2d 103 (1996). The

Cavanaugh court agreed that the municipality's failure to comply

with Wis. Stat. § 346.03(6) constituted an act contrary to a

ministerial duty. Id. at 301.

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)).
No. 2011AP0583

25

operation of his vehicle contrary to Wis. Stat. § 346.03(5)

requiring due regard under the circumstances for the safety of

all persons did not mean that he had acted contrary to a

ministerial duty. Id. at 315.

¶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. 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.

¶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, 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
No. 2011AP0583

26

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.

¶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 signal, and therefore,

he had no discretion to proceed through the red stop signal.

The statute sets forth "absolute, certain and imperative,"

requirements concerning the "performance of a specific task,"

proceeding through the red stop signal, and it imposes and

defines the "time, mode and occasion" for proceeding through the

red stop signal "with such certainty that nothing remains for

judgment or discretion." Lister, 72 Wis. 2d at 301.

¶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.
No. 2011AP0583

27

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.

V

¶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.
No. 2011AP0583

28

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

reversed and the cause is remanded.
No. 2011AP0583

1