(Affirming 140 Wis.2d 224, 409 N.W.2d 156 (Ct.App. 1987).)

LOUIS J. CECI, J.

This case is before the court on review of a published decision of the court of appeals affirming a decision of the circuit court for Dane county, Angela B. Bartell, circuit judge, ordering summary judgment in favor of the defendant, Donald Hohlstein (Hohlstein). The issue presented for review is whether the court of appeals correctly determined that parole agent Hohlstein is immune from liability as a public officer for allegedly negligent conduct in allowing the parolee, Donald L. Olson (Olson) to operate a motor vehicle or in failing to impose restrictions upon Olson's operation of the vehicle. We affirm the decision of the court of appeals.

The essential facts of this case are undisputed. In 1979, Olson was convicted in the Columbia county circuit court under sec. 940.225(2)(e), Stats. (1979-80), of having had sexual contact and sexual intercourse with two individuals between the ages of 12 and 18, for which he was sentenced to two terms of four years, to be served concurrently. In both incidents, a vehicle had been involved in the abduction of the victims. Olson was released on parole on April 23, 1982, and placed under Hohlstein's supervision. In accordance with his responsibilities under Wis. Admin. Code sec. HSS 328.04(2)(d), Hohlstein established and provided to Olson a copy of the rules of supervision. Hohlstein granted Olson permission to operate vehicles. The only restriction placed upon Olson's operation of vehicles was set forth in his parole rules and required that any vehicle he was operating not be equipped with a device capable of monitoring police, fire or emergency communications.

On October 16, 1982, Olson had traveled from his home in the city of Columbus to the city of Madison, where he offered a ride to the plaintiff, C.L., who had missed a bus. Olson had stated that he would drive plaintiff to the Capitol square to connect with another bus. Instead, Olson transported plaintiff toward Columbus and sexually assaulted her. Olson was convicted of two felony counts in connection with his assault of the plaintiff.

The plaintiff filed a complaint, alleging that parole agent Hohlstein negligently permitted Olson to operate motor vehicles or negligently failed to impose restrictions upon his operation of vehicles. Defendant Hohlstein moved for summary judgment on the ground that he was immune from liability for his conduct as a public officer because his action involved the exercise of discretion. The trial court granted the motion. The court of appeals affirmed the order of the trial court. We agree with the conclusion of the court of appeals that Hohlstein is immune from liability but, to the extent that our analysis differs, we do not completely embrace the rationale applied by the court of appeals in arriving at this result.

In reviewing an order granting summary judgment, we apply the same standards set forth under sec. 802.08(2), Stats., as do trial courts. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). First, the court examines the complaint to determine whether a claim for relief has been stated. Id. Only if a claim has been stated does the court then proceed to determine whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate a genuine issue as to any material fact. Id. This court has previously stated that, "The objection of an officer's civil immunity, affecting as it does his substantive liability for damages, is properly presented by a demurrer on the ground that the complaint fails to state a cause of action." Lister v. Board of Regents, 72 Wis.2d 282, 299, 240 N.W.2d 610 (1976). Consequently, because we determine, for the reasons set forth below, that Hohlstein was immune from liability for the activity alleged in the complaint, we find that the complaint fails to state a claim upon which relief may be granted and proceed no further.

Upon release by parole, a paroled individual remains in the legal custody of the Department of Health and Social Services and is subject to conditions and rules of parole. Section 57.06(3), Stats. The Wisconsin Administrative Code sets forth with greater particularity the nature of the supervision of the parolee which must be maintained:

"HSS 328.04 Field supervision. (1) Parole and probation supervision is a mechanism of control and an attempt to guide offenders into socially appropriate ways of living. Field staff are to provide individualized supervision of clients in a manner consistent with the goals and objectives of this chapter. Specifically, field staff are to attempt to help the client be successfully reassimilated into the community, help the client adjust to and cope with community living, reduce crime, and protect the public.

"(2) An agent shall abide by the department's administrative rules. An agent's responsibilities upon receiving a client for control and supervision shall include:

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"(d) Establishing written rules of supervision that are supplemental to existing court-imposed or parole board conditions, and providing the client with a copy of them;

"(e) Informing the client of the possible consequences of not abiding by the rules and conditions of supervision;

"(f) Explaining the conditions and rules of supervision and the reporting requirements immediately upon reception to field supervision in a manner the client can understand;

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"(3) When probation or parole begins, an agent shall meet with a client to review or develop written rules and specific conditions of the client's supervision, or both."

Among the parole rules which are particularized under the administrative code is the following, which requires that the parolee "[o]btain advance permission from an agent to purchase, trade, sell, or operate a motor vehicle." Section HSS 328.04(3)(h). It is parole agent Hohlstein's allegedly negligent decision to grant permission to Olson to operate the motor vehicle for which the plaintiff seeks to hold Hohlstein responsible for damages. Whether Hohlstein would be immune from liability if such negligence were established in granting permission to operate the motor vehicle requires a review and the application of principles of the immunity of public officers and employees.

The immunity of public officers for certain acts undertaken in their official capacities derives from common law. Lister, 72 Wis.2d at 299. The public policy considerations which support the grant of immunity include:

"(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office." Id.

Recently, the purpose and scope of the doctrine of federal official immunity under state tort law was described by the United States Supreme Court as follows:

"The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective Government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits. See Bart v. Matteo, supra, 360 U.S. [564] at 571, 79 S.Ct. [1335] at 1339 [1959]; Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973). This Court always has recognized, however, that official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official." Westfall v. Erwin, 108 S.Ct. 580, 583 (1988).

The general rule acknowledged in Wisconsin is that a public officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual's public office. Lister, 72 Wis.2d at 300. However, this general rule of immunity is subject to exceptions, representing a judicial balance struck between "the need of public officers to perform their functions freely against the right of an aggrieved party to seek redress." Id. Specifically, the doctrine of immunity affords no protection to a public officer or employee for (1) the negligent performance of a ministerial duty or (2) conduct that is malicious, willful and intentional. See Ibrahim v. Samore, 118 Wis.2d 720, 728, 348 N.W.2d 554 (1984) (citing Lister, 72 Wis.2d at 300-02). The ultimate question presented in this case is whether the decision to permit Olson to operate a vehicle was of a ministerial or a discretionary nature.

The test which has evolved for the determination of whether a duty is discretionary or ministerial is based upon that articulated in Eugene McQuillin's treatise on municipal corporations. See Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955) (quoting 18 E. McQuillin, Municipal Corporations, sec. 53.33 at 225 (3d ed.)). The test has remained substantially the same and was described in Lister as follows: "A public officer's 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." Lister, 72 Wis.2d at 301.

In Lister, this analysis was applied to determine whether a public officer charged with the responsibility of determining residency status for tuition purposes was exercising discretion or performing a ministerial duty when making the residency determination. The court determined that the statute setting forth the requirements for residency status "did not prescribe the classification process with such certainty that nothing remained for the administrative officer's judgment and discretion." Id. In this regard, the court highlighted the fact that the classification required the administrative officer to consider, before making the classification, several activities of the student.

Subsequent to Lister, two cases, Lifer v. Raymond, 80 Wis.2d 503, 259 N.W.2d 537 (1977), and Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977), were decided on the same day regarding the ministerial/discretionary act distinction. In Lifer, the court considered an attempt to hold a state officer liable for negligently licensing a woman to drive who was allegedly too overweight to drive. The court determined that the examiner would be immune from liability, holding:

"It is crystal clear that any determination by a road test examiner that an applicant for a driver's license was so overweight as to be suffering from a `physical disability or disease such as to prevent him from exercising reasonable control over a motor vehicle' involves the exercise of judgment and discretion. The complaint does not allege that the motor vehicle division has promulgated internal rules which establish the maximum pounds permitted per inch of height. Any determination by a road test examiner that by reason of excess poundage a particular applicant was unable to exercise reasonable control over a motor vehicle is entirely an exercise of judgment on his part." 80 Wis.2d at 510 (quoting sec. 343.06(7), Stats.).

In Cords, the same analysis was applied to reach a different result. Cords concerned an attempt to hold the manager of a state-owned park liable for injuries allegedly resulting from his negligence in failing to notify his supervisor of a dangerous condition or to recommend the erection of signs warning of such danger. The court discussed the general rule of immunity as presented in Lister but found the facts therein to warrant exception to the general rule. Specifically, the court found that:

"There comes a time when `the buck stops.' Anderson [the public employee] knew the terrain at the glen was dangerous particularly at night; he was in a position as park manager to do something about it; he failed to do anything about it. He is liable for the breach of this duty." Cords, 80 Wis.2d at 541.

In sum, the court held that "the duty to either place warning signs or advise superiors of the conditions is, on the facts here, a duty so clear and so absolute that it falls within the definition of a ministerial duty." Id. at 542.

The plaintiff and defendant perceive of a conflict between Lifer and Cords and direct the court, for resolution of the conflict, to the decision of the court of appeals in Larsen v. Wisconsin Power Light Co., 120 Wis.2d 508, 355 N.W.2d 557 (Ct.App. 1984). In Larsen, the court observed as to Lifer and Cords:

"These precedents represent an uneasy compromise between protection of discretionary judgments by state officials and compensation of injured parties. Two general principles are deducible: (1) A public officer who has a clear duty to undertake a specific task must do so with reasonable care; and (2) if an official in the exercise of official duties knows of a specific danger, that official must use reasonable care to protect the public from the danger. Cords, 80 Wis.2d at 541, 259 N.W.2d at 679-80." Id. at 517.

While the result is, in all likelihood, the same, our characterization of the result of the Cords and Lifer decisions differs from that set forth by the court of appeals in Larsen. Specifically, whereas the court of appeals in Larsen described the Cords analysis of the "known danger" circumstances as a test to be applied to find liability even where an act is the result of a public officer's discretion, an interpretation of Cords more consistent with the doctrine of immunity is that a public officer's duty is ministerial where a danger is known and of such quality that the public officer's duty to act becomes "`absolute, certain and imperative . . . .'" Cords, 80 Wis.2d at 541 (quoting Lister, 72 Wis.2d at 301). Stated otherwise, where a public officer's duty is not generally prescribed and defined by law in time, mode, and occasion, such that "nothing remains for judgment or discretion," circumstances may give rise to such a certain duty where, as in Cords, 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. As subsequently explained in Scarpaci v. Milwaukee County, 96 Wis.2d 663, 292 N.W.2d 816 (1980), it is the nature of the specific act upon which liability is based, as opposed to the categorization of the general duties of a public officer, which is determinative of whether an officer is immune from liability. Id. at 685.

There would appear to be an additional source of confusion regarding the court's decision in Scarpaci. The Scarpaci decision concerned the related issues of a medical examiner's decision to perform an autopsy and allegations of misconduct in the manner in which the autopsy was performed. The court noted, with respect to the decision to conduct the autopsy, that the examiner had the statutory authority to conduct the examination when the medical examiner had reason to believe that death had been due to unexplained or suspicious circumstances, indicating, for example, murder or manslaughter. As to this decision of whether to perform the autopsy, the court observed that the legislature intended the medical examiner to exercise discretion in making a subjective determination. Id. at 684-85, 696. Consequently, the court held that such a subjective determination was entitled to immunity under sec. 893.80(4) even if the decision that there was reason to believe that the autopsy should be performed was erroneous. Id. at 696. However, the court found that while the medical examiner's action in actually performing the autopsy was discretionary in nature, the discretion exercised was medical, not governmental. Id. at 686. Thus, the court concluded that the judgment and discretion involved in the performance of the autopsy did not entitle the medical examiner to immunity under sec. 893.80(4).

In sum, exception to the general rule of public officer immunity exists where the public officer's or employee's duty is absolute, certain and imperative, involving merely the performance of a specific task and (1) the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment of discretion, see, e.g., Lister, 72 Wis.2d at 300-01; or (2) there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion, see, e.g., Cords, 80 Wis.2d at 541. Additionally, the doctrine of immunity may be inapplicable where a public officer's challenged decision involves the exercise of discretion but the discretion exercised is not governmental, i.e., does not require the application of statutes to facts nor a subjective evaluation of the law. See, e.g., Scarpaci, 96 Wis.2d at 686-88; Protic v. Castle Co., 132 Wis.2d 364, 370, 392 N.W.2d 119 (1986); Gordon v. Milwaukee County, 125 Wis.2d 62, 67, 370 N.W.2d 803 (1985).

The challenged decision in the case at bar concerns parole officer Hohlstein's decision to permit Olson to drive. In support of the position that Hohlstein's decision was not discretionary, the plaintiff refers the court to secs. 343.06, 343.28, and 343.31, Stats. Plaintiff posits that these statutory sections set forth a clear statement of legislative policy that individuals such as Olson, who have been convicted of a felony in which a motor vehicle had been used, should not be issued an operator's license and, if one had been issued, that such license should be revoked. Whatever the application of these statutory provisions might be insofar as the duty of the Department of Transportation is concerned is not a question before the court. What is significant is that these provisions do not in any manner operate to limit the discretion of the Department of Health and Social Services. In fact, the statutory scheme includes some deference to the Department of Health and Social Services under sec. 343.31, Stats., by providing that licenses may be granted or reinstated in certain circumstances upon the recommendation of the department with court approval.

Apart from the arguments concerning ch. 343, Stats., plaintiff asserts that (1) Hohlstein had a clear duty to investigate the advisability of licensing Olson, which he failed to reasonably perform; and (2) had he reasonably performed the duty, he would not have granted permission to Olson to operate a vehicle, given the danger apparent from Olson's use of motor vehicles on prior occasions to transport his female victims to secluded areas before he assaulted them. In support of the contention that Hohlstein should have responded to a "clear danger," plaintiff presents allegations not explicitly alleged in the complaint. Specifically, plaintiff asserts that had Hohlstein abided by the departmental requirement of "maximum supervision" which prescribed monthly home visits, the danger could have been made apparent. Plaintiff notes, in support of the imminency of the danger, two incidents. First, plaintiff directs the court's attention to the fact that Hohlstein had been informed by the police of an anonymous report that Olson had been observed in June of 1982 "eyeing" young girls at a tavern. Hohlstein had confronted Olson with this report, but Olson had denied any wrongdoing. Second, the plaintiff notes that at the only home visit made by Hohlstein, on October 12, 1982, four days before the assault, he observed that Olson appeared nervous and had a newspaper article concerning a Dane county rape-murder case spread on his table. Although not specifically alleged in the complaint, because we must construe the complaint liberally on appeal, we have considered these allegations and accept them as true, as reasonable inferences from the facts as pleaded. See Prah v. Maretti, 108 Wis.2d 223, 229, 321 N.W.2d 182 (1982).

We commence our analysis of this argument under the first part of the above-outlined test by examining the discretionary nature of the decision of a parole agent of whether to grant permission to a parolee to operate a motor vehicle. There is nothing in the regulation which specifies those factors a parole agent should examine in making such a determination. The discretionary nature of the parole agent's decisions under Wis. Admin. Code sec. HSS 328.04 is made apparent in the notes of the appendix to this section:

"This section states the agent's general and specific responsibilities and provides a means of satisfying them. Stated simply, an agent's responsibility is to help the client to live in a socially acceptable way and to protect the public. This section has been structured to provide sufficient flexibility to allow an agent to treat a client on an individualized basis, applying appropriate rewards and sanctions on the basis of a client's conduct. This section is designed to eliminate the arbitrary exercise of agent discretion while providing for sufficient flexibility to make necessary decisions so as not to tie his or her hands." Wis. Admin. Code sec. HSS 328.04 app.

Stated otherwise, there is nothing in the administrative regulations which describes with any degree of certainty the "time, mode and occasion" of the parole agent's decision of whether to grant permission to the parolee to operate a vehicle.

Having thus determined that a parole agent's decision regarding permission to drive is ordinarily one left to the discretion of the agent, we proceed to consider whether the facts in the case at bar present a situation similar to that at issue in Cords, where an imminent danger is known by the employee or officer to be present and is a danger of such force as to leave nothing to the discretion of the officer. In Cords, there could be no subjective determination that could justify the failure to take some action in response to the dangerous condition known by the park manager to be present. However, in the case at bar, the very nature of a parole agent's position involves a subjective and discretionary balance between the danger posed by a parolee and the treatment of the parolee-client. The appendix accompanying sec. 328.04(3) provides: "Subsection (3) notes the permissible subjects for the rules of supervision which should supplement any court imposed conditions. Only those rules necessary to provide for the necessary supervision, treatment, and control of the client and the protection of the public should be imposed." The determination of those rules or conditions of parole which should be imposed involves a process of weighing policies for and against such rules and conditions. Decisions involving this type of evaluation of policies are the precise sort as to which immunity must attach. See Restatement (Second) of Torts, sec. 895D, comment d (1979). While in hindsight we may observe that the balance was improperly struck and grieve the tragic consequences, this is not to say that the potential of danger rose to such a degree of probability that, in determining whether Olson should be permitted to drive, nothing was left to Hohlstein's discretion.

The plaintiff has, on appeal, failed to demonstrate that the possibility of recidivism was any more than just that — a possibility. To suggest that the judgment exercised was incorrect or even to posit negligence on the part of Hohlstein, absent a showing that the challenged conduct was ministerial, is to discuss the type of conduct for which Hohlstein is immune from liability. To impose liability for such conduct would inhibit the exercise of unfettered professional discretion by parole agents and consequently threaten the achievement of the stated goals of reassimilation of the client into the community. The independent judgment of parole agents provided under Wis. Admin. Code sec. HSS 328.04 has been determined to best serve the needs of both the client and the public, and we are not now prepared to judicially strip the professional judgment of parole agents by clothing a discretionary act in ill-fitting ministerial garb. "It is not the function of the court to undertake itself to make the type of policy decision that is better left to the administrative position in which the task is placed." Restatement (Second) of Torts sec. 895D, comment d (1979).

Finally, plaintiff has advanced some argument that the allegedly negligent judgment of the parole agent did not involve governmental discretion, but professional judgment akin to that considered in Scarpaci. We disagree. The judgment of the parole officer insofar as the discretionary imposition of rules and conditions of parole are concerned involves a decision-making process more comparable to a medical examiner's decision to perform an autopsy, which in Scarpaci was found to constitute governmental discretion, than to judgment exercised in the actual performance of the autopsy, which was found to be excepted from the doctrine of immunity. Like the decision to perform an autopsy, the discretion required of a parole officer requires a subjective evaluation and application of the law to the facts presented in an individual case. While the parole officer is given flexibility in the decisions to be made regarding a parolee, the framework within which the discretion is to be exercised is administratively regulated. See, e.g., Wis. Admin. Code sec. HSS 328.04 app. (quoted supra p. 17). Thus, while professional judgment is implicated in a parole agent's decision, generally, regarding the imposition of rules and conditions of parole and, specifically, regarding the grant of permission to operate a vehicle, the discretion involves the evaluation of public policies within a regulated framework and consequently fundamentally constitutes discretion of a governmental nature.

We determine, for the reasons set forth above, that the plaintiff has failed to allege circumstances warranting exception to the general rule of public officer or employee immunity. Therefore, we hold that the complaint failed to state a claim upon which relief could be granted and proceed no further in our analysis of the propriety of the order granting summary judgment. Consequently, we affirm the decision of the court of appeals.

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

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[T]he actions of [the dispatcher] were not so discretionary so as to fall within the immunity provisions of sec. 893.80(4), Stats. Rather, [the dispatcher's] duties, under the facts of this case, appear absolute, certain or imperative within the meaning of Cords."