In Engelhardt v. City of New Berlin (2019 WI 2), the Supreme Court held that the City of New Berlin was negligent when a child drowned on a field trip because the known and present danger exception to governmental immunity applied.

Lily Engelhardt drowned on a field trip with the City of New Berlin Parks and Recreation Department. Lily’s parents had previously informed a New Berlin staff member that Lily could not swim. The Engelhardts sued the city.

Government employees are immune from liability under Wis. Stat. § 893.80(4) unless certain exceptions apply. One exception states that government employees may be held liable if they fail to respond to a known, present, and compelling danger. In this case, the court held that the known and present danger exception did apply because the danger of a non-swimmer drowning on the field trip was compelling and obvious. The park staff failed to properly respond to this danger by taking Lily on the field trip without sufficient supervision, a life jacket, or a swim test.

In a concurring opinion, Justice Dallet (joined by Justices R. Bradley and Kelly) agreed that New Berlin was liable but argued the known and present danger exception did not apply here. Instead, Dallet found the city was not acting in a quasi-legislative or quasi-judicial function when it failed to supervise Lily on the field trip; therefore, governmental immunity did not apply under the language of § 893.80(4).