Municipal sport and recreation service providers may have policies and procedures in place to minimize risks inherent in dangerous activities, but employees who fail to implement those protocols expose themselves and their organizations to liability. Moreover, municipalities should never view the governmental immunity defense as a foolproof safety net for negligence. These concepts recently came to light in Engelhardt v City of New Berlin, et. al., No. 2016AP801 (2019). 

Aquatic center concern
In 2012, eight-year-old Lily Engelhardt was a camper at a summer day camp organized and run by the New Berlin (Wis.) Recreation Department. The camp scheduled an optional field trip to Brookfield's Wiberg Aquatic Center on the second day of camp. Despite having taken three sessions of beginner swimming lessons through the New Berlin Recreation Department, Lily had not progressed to the next level and had very little experience with swimming or being in or around pools.

Upon receiving a field trip permission slip from the camp, Lily's mother communicated her concerns with Stuart Bell, the person in charge of the day camp program, telling Bell that Lily could not swim and asking whether Lily should go on the field trip to the aquatic center. Bell responded that Lily would be safe because her swimming ability would be evaluated at the shallow end or zero-depth area of the pool, and that if necessary, Lily would be restricted to the aquatic center's splash pad area.

On the day of the field trip, the aquatic center was very busy. Upon arrival, the 77 New Berlin campers were divided by gender to change in the facility's locker rooms. New campers who had not been given a swim test were instructed to find a leader before getting into the pool — however, they were not directed to go to any specific location to find a leader, and no leaders were stationed at the locker room door to direct them. As for Lily, no swim test was given, and Bell didn't tell any other staff members that Lily could not swim.

At some point — after most of the children had entered the water, but before all staff members were out of the locker room — lifeguards discovered a distressed Lily in the pool. Despite their efforts and those of other medical personnel, Lily died eight days later.
 

Governmental immunity
Lily's parents filed a negligence lawsuit against New Berlin and several other defendants. In response, New Berlin moved for summary judgment, arguing that it was immune from suit pursuant to Wis. Stat. § 893.80(4). After the circuit court determined that New Berlin was not entitled to immunity as a matter of law, New Berlin filed an appeal. The court of appeals reversed the circuit court, concluding that New Berlin was in fact immune from liability for Lily's death under Wis. Stat. § 893.80(4)[7] and was entitled to summary judgment.

In 2019, approximately seven and a half years after Lily's death, the immunity issue was resolved with finality by the Wisconsin Supreme Court, which found that New Berlin is not entitled to the defense of governmental immunity. The 2019 Supreme Court decision remanded the lawsuit back to the circuit court level for trial — assuming the case is not settled.

The issue considered as this case progressed through the Wisconsin civil court system is whether New Berlin is entitled to governmental immunity as a defense to negligence. Immunity serves as a totality defense, and would effectively bar any negligence claim filed by the Engelhardts. The Wisconsin governmental immunity statute, Wis. Stat. § 893.80(4), immunizes municipalities from liability arising out of "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."

The Wisconsin Supreme Court has consistently interpreted this particular statutory language to include any acts that involve the exercise of discretion. However, Wisconsin Stat. § 893.80(4) also provides exceptions to immunity. There can be no immunity against liability associated with several categories of acts: 1) the performance of ministerial duties imposed by law; 2) known and 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. Courts have applied these exceptions when appropriate under the law to ensure a balance between "the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress."
 

Ministerial duty
The Engelhardts argue the "ministerial duty" and "known danger" exceptions to governmental immunity. These two exceptions are related, and both require the identification of a ministerial duty. Per Wisconsin common law, a duty is ministerial "only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion."

However, Wisconsin courts have interpreted this definition such that "circumstances may give rise to such a certain duty, where ... the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act." This interpretation is the basis of the "known danger" exception to immunity that the Engelhardt's seek. As illustrated by the preceding statutory language, the known danger exception applies when an obviously hazardous situation known to the public officer or employee is of such force that a ministerial duty to correct the situation is created.

The Engelhardts argued, and the Wisconsin Supreme Court agreed, that the danger associated with bringing a young child who cannot swim to a busy aquatic center is apparent. As noted by the court, "A young child can quickly become distressed in deep water if he or she cannot swim. Serious injury or death can occur very suddenly, so it is paramount that precautions be taken to lessen those risks. The nature of the danger here was immediate, compelling, and self-evident... The danger was 'of such force' that Bell had no discretion not to act — the circumstances of the situation imposed upon him a ministerial duty to test Lily's swimming ability before she got into the water."

Further, the court stated, "Bell was aware that Lily could not swim. Lily's mother told him that Lily could not swim before the field trip to the Aquatic Center, but Bell did nothing with this information. He did not tell any other staff member that Lily could not swim. He did nothing to ensure that Lily's swimming ability would be tested before allowing her to be without direct supervision. In short, Bell was aware of the danger, he was in a position as the Playground Coordinator to do something about it, and he failed to do anything about it."

The facts of this case forced the court to determine whether the circumstances of the situation created a ministerial duty to test Lily's swimming ability before she got into the pool, thus allowing the "known danger" exception to immunity to apply. Although there was a dissenting opinion, the majority of the court determined that the dangers present in an aquatic facility for a non-swimmer child were sufficient enough to satisfy the legal requirements of the exception.

Specifically, the court stated, "The Engelhardts' theory of liability is that New Berlin's procedure for making sure that new campers like Lily did not get into the water without first having a swim test was ineffective and constitutes negligence. New Berlin negligently performed (or, as a result of its negligence, did not perform) its ministerial duty to administer a swim test before Lily got into the water, and governmental immunity is not available 'for the negligent performance of a purely ministerial duty.' "
 

Liability shield fallibility
This case is instructive for all municipal or publically owned and operated facilities that rely on the availability of immunity as a shield from negligence liability. While this defense is available in some situations, there can also be exceptions to the immunity defense, rendering the defense void. The potential availability of immunity should never lessen sound decision-making and risk management practice by sport and recreation service providers, especially in circumstances in which children or members of special populations are involved as participants.

Many activities offered by municipal or publically owned and operated facilities are inherently dangerous. While the administration of these activities may ordinarily be considered a discretionary function, thus subject to the immunity defense, the Engelhardt case demonstrates that exceptions do apply. The facts of the Engelhardt case are tragic, and expose the negligence and total lack of awareness by a municipal employee hired to provide care for young children. While many sport and recreation service providers will likely have policies and procedures in place to prevent tragedies such as Lily's death, those same providers must recognize the necessity of such preparedness. These service providers must be concerned foremost with the safety of participants, but also must carefully consider how the immunity defense may apply in a negligence lawsuit.


This article originally appeared in the July | August 2019 issue of Athletic Business with the title "Aquatic center death illustrates limits of immunity." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.