Johnson v. Village of Benton.

1. Kristen, Robert and Cheryl Johnson appeal a judgment dismissing their personal injury complaint against the Village of Benton and its president, Gary McCrea. The issue is whether the defendants are immune from suit because the village president was performing a discretionary act. We conclude they are and affirm.

2. The amended complaint contains the following allegations: Kristen was injured by a dog bite in the Village of Benton, and her parents Robert and Cheryl incurred medical expenses as a result. Defendant Gary McCrea was the village president at the time. Before Kristen was bitten, McCrea had been notified that the dog was running loose in the village and was dangerous. McCrea had an affirmative duty to capture the dog and prevent it from harming persons in the village. McCrea at one point, "had actual physical control" of the dog, but then released it and allowed it to roam free in the village.

3. The defendants moved for summary judgment. They argued that they were immune from suit by virtue of Wis. Stat. §893.80(4) (1999-2000),1 which provides:

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.

4. The Johnsons responded that McCrea's duty arose from Wis. Stat. §174.042(3), which provides:"An officer shall attempt to capture and restrain any dog running at large and any untagged dog." They argued that the village president is an "officer" for the purpose of this statute because village presidents are peace officers by operation of Wis. Stat. §61.31(1), and that the duty imposed by §174.042(3) is not discretionary. The court ruled that the duty was discretionary, rendering McCrea and the village immune from suit.

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¶7. We conclude, however, that the duty at issue is a discretionary one, rather than a ministerial one. A ministerial duty is one that "`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.'" Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶25, 253 Wis.2d 323, 646 N.W.2d 314 (citation omitted). In this case, Wis. Stat. §174.042(3) imposes only a discretionary duty because it does not prescribe a method, time, or manner for discharging the duty. In short, the statute leaves to the discretion of the officer the specific details of how to "attempt to capture and restrain" a dog. An officer undertaking this duty is immune from suit for his discretionary acts in discharging the duty.

By the Court. Judgment affirmed. Case dismissed.

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L. Hargraves