SCOTT v. SAVERS PROPERTY CAS. INS. CO., 2003 WI 60

262 Wis.2d 127, 663 N.W.2d 715

Supreme Court of Wisconsin.
No. 01-2953.Oral Argument: March 4, 2003.
Opinion Filed: June 19, 2003.

Page 128

Page 129

Page 130

Page 131

REVIEW of a decision of the Court of Appeals. Affirmed.

For the plaintiffs-appellants-petitioners there were briefs b Russell T. Golla and Anderson, O’Brien, Bertz, Skrenes Golla, Stevens Point, and oral argument by Russell T. Golla.

For the defendants-respondents there was a brief by Cari L. Westerhof
and Ruder, Ware Michler, LLSC, Wausau, and oral argument by Cari Lynn Westerhof.

An amicus curiae brief was filed by Michael Riley and Atterbury, Riley Kammer, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers.

Page 132

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals[1]
affirming the judgment of the Circuit Court for Portage County, James Mason, Judge. The circuit court dismissed the amended complaint of Ryan Scott and his parents, Kathy and Patrick Scott, against the Stevens Point Area Public School District and its insurer, Savers Property and Casualty Insurance Company. The circuit court concluded that the negligence claim in the amended complaint was barred under Wis. Stat. § 893.80(4) (2001-02)[2] , Wisconsin’s governmental immunity statute, and that the allegations of breach of contract and promissory estoppel failed to state claims upon which relief could be granted.

¶ 2. Ryan Scott and his parents, Kathy and Patrick Scott (the plaintiffs), allege that Dave Johnson, a guidance counselor at Stevens Point Area Senior High School (SPASH) in the Stevens Point Area Public School District, provided them with inaccurate information about National Collegiate Athletic Association (NCAA) student athlete scholarship eligibility requirements, and as a result, Ryan Scott lost a hockey scholarship to the University of Alaska. The plaintiffs brought suit against Stevens Point Area Public School District and its insurer, Savers Property and Casualty Insurance Company (the District), seeking damages for the loss of the scholarship and other expenses incurred. The amended complaint sets forth three claims for relief: negligence, breach of contract, and promissory

Page 133

estoppel. The District responded by filing a motion to dismiss for failure to state a claim upon which relief may be granted.

¶ 3. To determine whether the plaintiffs’ amended complaint against the District should be dismissed for failure to state a claim upon which relief can be granted, we must answer three questions: First, does the negligent provision of counseling services, as alleged in the amended complaint, fall under either the ministerial duty or professional discretion exception to Wisconsin’s governmental immunity statute, Wis. Stat. § 893.80(4), so that the plaintiffs state a claim against the District? Second, was an enforceable contract created between the District and the plaintiffs when, according to the amended complaint, guidance counselor Johnson agreed to assist Ryan Scott in selecting classes approved by the NCAA, so that the plaintiffs have a claim for breach of contract? Third, does the plaintiffs’ amended complaint allege grounds for equitable relief based upon the doctrine of promissory estoppel?

¶ 4. We answer each question in the negative and affirm the court of appeals’ decision that the amended complaint should be dismissed. We conclude that none of the allegations in the plaintiffs’ amended complaint support a claim for relief under either the ministerial act or professional discretion exception to Wis. Stat. § 893.80(4). We conclude that no contract exists to support a breach of contract claim in the present case because any alleged promise by the District to provide counseling services was a promise to perform a preexisting legal obligation. We also conclude that the promissory estoppel claim fails. Permitting the plaintiffs to obtain damages from an immune public official through the back door opened by a claim of promissory estoppel

Page 134

contravenes the government immunity policy of this State set forth in Wis. Stat. § 893.80(4) and consequently would not serve the ends of justice.

I¶ 5. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint.[3] All facts pleaded and all reasonable inferences from those facts are admitted as true, but only for the purpose of testing the legal sufficiency of a claim, not for trial.[4] A complaint will be dismissed only if it appears certain that no relief can be granted under any set of facts that the plaintiffs might prove in support of their allegations.[5]

¶ 6. Whether a complaint states a claim upon which relief may be granted is a question of law that is determined by this court independent of the circuit court and court of appeals, but with the benefit of the analyses of these courts. We test the sufficiency of the plaintiffs’ amended complaint by first setting forth the facts asserted in the complaint and then analyzing each of the legal theories upon which the plaintiffs rest their claims for relief.[6]

Page 135

II¶ 7. The plaintiffs’ amended complaint alleges the following facts. Ryan Scott attended Stevens Point Area Senior High School (SPASH), which is part of the Stevens Point Area Public School District. SPASH offered guidance counseling services as required by Wis. Stat. § 121.02(1)(e) and Wis. Admin. Code § PI 8.01(e) (Oct., 2001).[7] These services were explained in the school’s “Educational Planner,” a publication offered to

Page 136

students.[8] Dave Johnson was employed by the District as a guidance counselor at SPASH and met the state’s licensing requirements. Johnson was Ryan Scott’s assigned guidance counselor.

¶ 8. During Ryan Scott’s junior year of high school, he and his parents met with Johnson. The plaintiffs explained that Ryan Scott was trying to receive a hockey scholarship to an NCAA Division I school. The plaintiffs knew that the NCAA required students to take courses in certain core subjects in order to be eligible for a student athlete scholarship. The plaintiffs told Johnson that they wanted to make sure Ryan Scott fulfilled the core requirements and needed help in selecting the appropriate courses. Johnson agreed to assist them.

¶ 9. In Ryan Scott’s senior year of high school, he and his mother met with Johnson to discuss which classes Ryan Scott should take. They asked Johnson specifically whether “Broadcast Communication” was a course approved by the NCAA as fulfilling a core English requirement. This information was available to Johnson. SPASH had sent its curriculum to the NCAA Initial Eligibility Clearinghouse and received a Form 48-H indicating those courses offered by SPASH that met the NCAA approved core course requirements and those that did not. Johnson had access to 48-H forms covering several years, and each of them explicitly states that “Broadcast Communication” is not an approved

Page 137

course. Johnson, however, erroneously advised Ryan Scott and his mother that “Broadcast Communication” was an approved course. Ryan Scott enrolled in and completed the “Broadcast Communication” course.

¶ 10. After graduating from SPASH, Ryan Scott played junior hockey in Iowa and was offered a full four-year scholarship to the University of Alaska, an NCAA Division I school. The plaintiffs accepted the scholarship offer. The scholarship was contingent upon receipt of an initial eligibility certification from the NCAA. After receipt of Ryan Scott’s final transcripts from SPASH, the NCAA determined that Ryan Scott was not eligible for a Division I student athlete scholarship solely because “Broadcast Communication” was not an approved core course in English. The University of Alaska rescinded its scholarship.

¶ 11. The plaintiffs sued the District, seeking recovery in the amount of the rescinded scholarship plus the out-of-pocket expenses they incurred for Ryan Scott’s college education, and the District filed a motion to dismiss.

¶ 12. The circuit court granted the District’s motion to dismiss the amended complaint, concluding that the plaintiffs’ case was governed byKierstyn v. Racine Unified School District, 228 Wis.2d 81, 596 N.W.2d 417
(1999). In Kierstyn, the court held that a school district benefits specialist who provided erroneous advice was immune from liability. The circuit court held that the immunity rationale of Kierstyn applied to the plaintiffs’ promissory estoppel claim.

¶ 13. The court of appeals affirmed the judgment of the circuit court dismissing the plaintiffs’ suit. The court of appeals held that the District was immune from suit under Wis. Stat. § 893.80(4), pursuant to Kierstyn. Moreover, the court of appeals concluded that

Page 138

the alleged contract failed for lack of consideration and that equitable relief under the doctrine of promissory estoppel was not appropriate because the District did not make a promise that reasonably induced reliance, and because injustice would not be avoided or remedied by granting judgment to the plaintiffs.

III¶ 14. We begin our analysis of the amended complaint with the plaintiffs’ claim for damages on the ground of negligence. The parties agree that the amended complaint properly states all the elements of a negligence claim. The dispute focuses on whether the District is immune from liability for negligence under Wis. Stat. § 893.80(4), Wisconsin’s government immunity statute.

¶ 15. The statute provides political subdivisions and public officials with immunity for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. Section 893.80(4) reads as follows:

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.

Page 139

¶ 16. Decisions of this court have concluded that quasi-judicial or quasi-legislative activities are activities that involve the exercise of “discretion.”[9] Further decisions of this court have recognized limitations to governmental immunity where the activities performed are (1) ministerial duties imposed by law, (2) duties to address a known danger, (3) actions involving professional discretion, and (4) actions that are malicious, willful, and intentional.[10]

¶ 17. The plaintiffs argue that the amended complaint in the present case was improperly dismissed because rendering guidance counseling and advice to students falls within the ministerial duty exception and the professional discretion exception to immunity. According to the plaintiffs, Johnson was not required to exercise any discretion or judgment in accurately conveying the unambiguous information contained in Form 48-H that “Broadcast Communication” was not an NCAA-approved course. The information Johnson disseminated was, the plaintiffs argue, capable of being easily and readily verified. Furthermore, the plaintiffs assert that Johnson, as a licensed and certified school counselor, exercised “professional” discretion and is therefore exempt from immunity.

Page 140

¶ 18. We conclude, as did both the circuit court and court of appeals, that the present case does not fall within either the ministerial duty exception or the professional discretion exception to immunity and that therefore the District is immune from liability under Wis. Stat. § 893.80(4).

¶ 19. The facts in the case at hand and the plaintiffs’ claim are legally indistinguishable from the facts and claim set forth in our four-year-old Kierstyn decision, in which the ministerial duty and professional discretion exceptions were explained. In Kierstyn, the court ruled against the complainant, who suffered financial harm when he relied on the erroneous advice of a benefits counselor employed by a school district. Because we conclude that Kierstyn governs the outcome of the present case, we shall examine the facts and holding of Kierstyn.

¶ 20. Judith Kierstyn was an employee of the Racine Unified School District. She became ill and had to take a medical leave of absence. She received benefits both as a union employee of the school district and as a municipal employee with the Wisconsin Retirement System (WRS), and when she ceased working, Ms. Kierstyn and her husband met with a health benefit specialist employed by the school district in order to determine the disability benefits. The health benefit specialist was an employee of the school district and authorized to give employees information about their union benefits; he was not, on the other hand, an agent of WRS able to give authoritative advice on WRS benefits, though he was equipped with the resources to provide information on WRS benefits.

¶ 21. At this meeting, the health benefit specialist erroneously informed the Kierstyns that Ms. Kierstyn could not apply for WRS benefits until she had depleted

Page 141

all of her available sick leave, despite the fact that Wis. Stat. § 40.63 clearly and unambiguously stated otherwise. Relying on this misinformation, the Kierstyns did not apply for disability benefits. Ms. Kierstyn died before depleting her available sick leave and therefore never applied for her disability benefits. Her death rendered her ineligible for the disability benefits.

¶ 22. Mr. Kierstyn sued the benefit specialist and the school district for damages for negligence, and the school district defended on the ground that the health benefit specialist exercised a discretionary function so that the District was immune under Wis. Stat. § 893.80(4).

¶ 23. Mr. Kierstyn contended that the benefits counselor’s actions fell within the ministerial duty exception to liability, because the correct advice that the specialist should have provided was clearly and unambiguously available to the specialist and did not require the specialist to exercise any discretion to provide it. This court rejected his claim.

¶ 24. The Kierstyn court explained that a duty is ministerial in nature when its performance is demanded by a specific legal obligation that leaves no room for judgment or discretion. The court reasoned that the health benefit specialist in Kierstyn did not perform a ministerial duty. He was not legally obligated to provide WRS benefit information; his conduct was not due to any duty that was “absolute, certain and imperative” or any law that “impose[d], prescribe[d] and define[d] the time, mode and occasion for [the conduct’s] performance.”[11]

¶ 25. Moreover, the court rejected Mr. Kierstyn’s chief argument that once the benefit specialist took the

Page 142

discretionary action of providing WRS information, he had a ministerial duty to provide the information that was unambiguously contained in the statute.[12] Mr. Kierstyn acknowledged that when an officer applies a statute to a given set of facts, the interpretation is quasi-judicial and has the hallmarks of discretion. Yet Mr. Kierstyn argued that the unambiguous statute created a ministerial duty once the officer acted. Thus Mr. Kierstyn’s argument that a ministerial duty was involved focused on the clear statutory statement of the information the benefit specialist erroneously furnished. The Kierstyn court concluded that the statute’s clarity regarding the information to be provided does not render the duty ministerial.

¶ 26. Unlike the health benefit specialist in Kierstyn, Johnson provided guidance and counseling services to students that SPASH was required to provide.[13] The question remains, however, whether Johnson was performing ministerial or discretionary duties when he gave advice about NCAA-approved courses to Ryan Scott.

¶ 27. A duty is regarded as ministerial when it has been “positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.”[14] Recently, in

Page 143

Lodl v. Progressive NorthernInsurance Co., 2002 WI 71, 253 Wis.2d 323, 646 N.W.2d 314, this court repeated the narrow definition of ministerial duties first set out inLister v. Board of Regents, 72 Wis.2d 282, 301, 240 N.W.2d 610 (1976). The court wrote:

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.[15]

¶ 28. As a result of the Lister/Lodl definition of “ministerial,” many governmental actions, even those done under a legal obligation, qualify as discretionary because they implicate some discretion.[16]
The court of appeals concluded, in accordance with this definition, that the provision of guidance services is inherently discretionary because the statute and regulation do not impose, prescribe, and define the time, mode, and occasion for its performance. Neither the statute nor the regulation creates a duty that is “absolute, certain

Page 144

and imperative” with respect to counseling or providing information about NCAA requirements. The court of appeals wrote as follows:

The counselor’s general obligation to provide counseling services did not dictate precisely what advice or information should be given to each student. Rather, the counselor was required to apply the requirements of various institutions to each student’s situation. This interpretive process was inherently discretionary in nature.[17]

¶ 29. We agree with the court of appeals, given our definition of “ministerial.” Moreover, like the clear and unambiguous benefits statute in Kierstyn, the existence of Form 48-H clearly and unambiguously detailing approved and unapproved NCAA courses does not transform Johnson’s counseling obligations into a ministerial act. His failure to provide correct advice in the face of clear and unambiguous information goes to his negligence, not the nature of his duty. In the end, the plaintiffs’ argument is not that the NCAA Form 48-H imposes a ministerial duty on Johnson, only that its clarity renders Johnson’s conduct that much more negligent. The analysis of immunity under Wis. Stat. §893.80(4), however, assumes negligence.[18] We conclude that Johnson’s actions, like those of the health benefit specialist in Kierstyn, do not fall within the definition of ministerial conduct.

Page 145

¶ 30. The plaintiffs’ second argument is that any discretion exercised by Johnson was professional in nature and therefore falls within the third exception to governmental immunity. This argument was also raised in Kierstyn and rejected by this court. As the court inKierstyn explained, the professional discretion exception to governmental immunity has been limited to the medical setting.[19]

¶ 31. The professional discretion exception to governmental immunity originated in Scarpaci v. Milwaukee County, 96 Wis.2d 663, 292 N.W.2d 816
(1980), in which the court held a county medical examiner liable for negligence committed in the course of performing an autopsy. This court in Scarpaci concluded that the decisions made during the autopsy constituted “medical” discretion, not “governmental” discretion, and therefore the medical examiner was not protected from liability.[20]
The exception has been applied in only two other cases, both involving public officials performing acts in the medical context,[21] and inStann v. Waukesha County, 161 Wis.2d 808, 818, 468 N.W.2d 775 (Ct.App. 1991), the court of appeals limited the exception to the medical context. In Kierstyn and in Kimps v. Hill, the court refused to revisit the Stann rule.[22]

Page 146

¶ 32. The court concluded in Kierstyn that “even if we were to readScarpaci as erasing immunity for acts of professional discretion, this expansion would be of no avail to [Mr.] Kierstyn.”[23] Including a health benefits specialist within the professional discretion exception would mean that many persons would fall within the professional discretion exception and that the exception “would swallow the rule.”[24]
Similarly, we conclude that the professional discretion exception to Wis. Stat. § 893.80(4) does not apply to a guidance counselor.

¶ 33. In addition to their arguments that Johnson’s actions fall within one of the exceptions to immunity, the plaintiffs urge this court to reexamine its cases and the balance this court has struck between the need of municipal public officers to perform their functions freely and the right of an aggrieved party to seek redress for injuries. The plaintiffs urge the court to return to the holding in Holytz v. City ofMilwaukee that immunity is the exception, not the rule,[25] to abandon the rule equating the concepts of “quasi-judicial” and “quasi-legislative” in § 893.80(4) with discretionary duties, and to reexamine the multitude of exceptions and interpretations the court has encrusted on Wis. Stat. § 893.80(4).

¶ 34. The plaintiffs argue that Wis. Stat. § 893.80(4), codifying this court’s decision in Holytz, originally intended to providemunicipal government immunity only for a narrow slice of conduct involving “legislative or judicial or quasi-legislative or quasi-

Page 147

judicial functions.” According to the plaintiffs, this court mistakenly broadened the grant of municipal immunity in Lifer v. Raymond, 80 Wis.2d 503, 259 N.W.2d 537 (1977), when it affixed to the doctrine of municipal officer immunity the ministerial/discretionary distinction applicable tostate government immunity. The result of this erroneous mixing of doctrines, asserts the plaintiffs, is that students like Ryan Scott remain powerless and remediless in the face of clearly negligent actions committed by schools and other municipal actors.

¶ 35. This court has had many opportunities to apply Wis. Stat. § 893.80(4), and we have struggled to define the proper scope of governmental immunity, considering the underlying policy goals.[26] The doctrine of governmental immunity represents “a balance between the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.”[27] The doctrine reflects concern for “protection

Page 148

of the public purse against legal action and . . . the restraint of public officials through political rather than judicial means.”[28]

¶ 36. Governmental immunity was developed “to protect public officers from being unduly hampered or intimidated in the discretion of their functions by threat of lawsuit or personal liability.”[29] Guidance counselors are important figures in our educational system. They are regularly required to make discretionary decisions and judgment calls in performing their functions, and the future progress and success of students rests on the ability of the guidance counselors to make those decisions. Immunity allows guidance counselors to perform their duties free from the hindrance of threats of litigation or liability.

¶ 37. The plaintiffs correctly point out that Ryan Scott has suffered greatly, and he has no avenue for redress. The outcome of this case is harsh, and the harshness of our holding is especially palpable because the negligence is so clear. Yet the doctrine of governmental immunity plays a significant role in our legal system. Imposing liability in the present case would therefore not serve the policy underlying the doctrine of immunity.

¶ 38. For the reasons set forth, we conclude that the District is immune from liability for negligence under Wis. Stat. § 893.80(4).

IV¶ 39. We turn next to the plaintiffs’ contract-based claims. The plaintiffs allege contract claims to

Page 149

avoid the application of Wis. Stat. § 893.80(4), the government immunity statute.

¶ 40. The plaintiffs allege two contract claims as grounds for relief. The first claim is that a contract to provide counseling services exists between the District and the plaintiffs and that the District breached the contract when it gave incorrect information to Ryan Scott about the “Broadcast Communication” course. The second claim is that, if no contract exists, the plaintiffs are entitled to equitable relief under the doctrine of promissory estoppel because the District should have expected its promise to provide counseling services to induce the plaintiffs to act in reliance on that promise, which they did to their detriment.

¶ 41. We agree with the court of appeals that neither contract-based theory states a claim upon which relief may be granted.

A¶ 42. The plaintiffs argue that a contract was formed when they accepted the District’s offer to provide them with guidance counseling services, including a specific offer to counsel Ryan Scott about NCAA-approved core courses necessary for Division I student athlete scholarship eligibility. The plaintiffs view the contract with the District as a unilateral contract. According to the plaintiffs, the District made the offer to provide counseling and the plaintiffs accepted the offer by their performance, that is, by their utilizing the counseling services. This contract was then breached, argue the plaintiffs, when Johnson counseled Ryan Scott to take the unapproved “Broadcast Communication” course.

¶ 43. The District responds that no enforceable contract was created or breached in the present case.

Page 150

According to the District, the alleged contract fails for insufficiency of consideration — the promise to provide counseling services is not sufficient consideration because it is a promise to perform an act that the District is already statutorily and legally obligated to perform. The court of appeals agreed with the District, concluding that because the District was legally obligated to provide guidance counseling services under Wis. Stat. § 121.02(e) (Oct., 2001), there was no bargained-for exchange of promises between the parties.[30]

¶ 44. We agree with the District and the court of appeals that no contract existed between the District and the plaintiffs in the present case. The district is required by statute and administrative regulation to provide guidance counseling services. Thus the District and its agent, Johnson, had a legal duty to the plaintiffs to do what they allegedly promised to do. Under Wis. Stat. § 121.02(1)(e) and Wis. Admin. Code § PI 8.01(e), the District and Johnson could not have refrained from providing counseling services. Consequently, neither the District nor Johnson could have participated in any bargained-for exchange for counseling services with the plaintiffs.[31]

Page 151

¶ 45. The general rule is that the performance of a legal duty, or the promise to perform a legal duty, is not sufficient consideration to create a contract.[32] Here,

Page 152

Johnson’s and the District’s performance was induced not by the plaintiffs but by the laws of the state. The plaintiffs had a right to have Johnson perform his job, but no contract was created between the plaintiffs and the District or Johnson. The Williston contract text explains the rule as follows:

If a promisee is already bound by official duty to render a service, it is no detriment to him and no benefit to the promisor beyond that what the law requires the promise to suffer or to give, for him to do or agree to do the service on request. Though the previous legal duty does not necessarily run to the promisor under the later agreement, it does run to the public of which the promisor is one member. As such, he has a right, though it may not be one enforceable at law, to the performance in question, and therefore, no contract can be based upon such consideration.[33]

Page 153

¶ 46. The plaintiffs argue that focusing only on the provision of counseling services generally ignores the additional promise made by Johnson to specifically aid the plaintiffs with the selection of NCAA-approved courses. The plaintiffs are attempting to assert that Johnson offered, promised, or agreed to perform services in addition to those required by law. We conclude that Johnson made no such agreement.

¶ 47. The District is required to develop a counseling program that provides education information to assist pupils in problem solving and in making decisions.[34] The program “shall” include “post-secondary planning.”[35] Johnson’s promise to advise Ryan Scott in selecting NCAA-approved courses thus falls squarely within the District’s obligation to assist with post-secondary planning and is part and parcel of the legal duty already owed to the plaintiffs.[36] In this case the

Page 154

services provided to the plaintiffs were not in addition to or materially different from the District’s performance of its legal obligation to provide guidance counseling.

¶ 48. We conclude that the plaintiffs’ breach of contract claim fails. The District and Johnson had a legal duty to provide the counseling services requested by the plaintiffs. The plaintiffs did not convert this legal duty into a contractual duty by requesting or using Johnson’s service.

B¶ 49. The plaintiffs next argue that if their breach of contract claim fails, then the doctrine of promissory estoppel requires judicial enforcement of Johnson’s promise. The plaintiffs argue that Johnson and Ryan Scott had a special relationship and Ryan Scott relied on Johnson’s statement that “Broadcast Communication” was an NCAA-approved course to his detriment.

¶ 50. The District responds that promissory estoppel is not appropriate because the plaintiffs relied on Johnson’s representation that the course was NCAA-approved, not on Johnson’s promise to provide guidance counseling and aid with course selection.

¶ 51. In order to state a claim on which equitable relief under the doctrine of promissory estoppel may be

Page 155

granted, the plaintiffs’ complaint must be read to allege the three elements of promissory estoppel. The elements are:

1. The promise is one which the promissor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promissee;
2. The promise induced such action or forbearance; and
3. Injustice can be avoided only by enforcement of the promise.[37]

The first two elements are typically questions of fact, while the third element requires a court to make a “policy decision.”[38]

¶ 52. We conclude that considerations of policy undermine any claim for relief under the doctrine of promissory estoppel in the present case. Undoubtedly, Ryan Scott has suffered a great injustice. He lost a full scholarship to the University of Alaska and the opportunity to play on an NCAA Division I hockey team based upon the negligent acts of Johnson and the District. However, when making a policy decision under the third element of the promissory estoppel test — that is, determining whether an injustice can be avoided by enforcing the promise — a court “must remember all of its powers, derived from equity, law merchant, and other sources, as well as the common law. Its decree should be molded accordingly.”[39]

Page 156

¶ 53. Molding a decision upon consideration of all sources of law under the third element of promissory estoppel also includes consideration of the statutory restriction on governmental liability. Governmental immunity under Wis. Stat. § 893.80(4) applies only to claims based in tort, not to claims in contract.[40] Promissory estoppel, however, rests on a theory separate from contract;[41] a claim for promissory estoppel only arises when there is no contract. “One branch of promissory estoppel’s family tree lies in tort”[42] and “[o]bligations and remedies based on reliance are not peculiar to the law of contracts.”[43] A single set of facts may give rise to actions both in contract and in tort, thus making it difficult to always draw a clear distinction between the two actions.[44]

Page 157

¶ 54. In the present case, the plaintiffs’ promissory estoppel claim is based on the same allegations as the plaintiffs’ negligence claim. We have just held that the grant of government immunity under Wis. Stat. § 893.80(4) extends to the plaintiffs’ negligence claims against the District and Johnson.

¶ 55. Permitting the plaintiffs to obtain damages from an immune public official through the back door opened by a claim of promissory estoppel contravenes the government immunity policy of this State set forth in Wis. Stat. § 893.80(4) and consequently would not serve the ends of justice. The circuit court correctly concluded that “the immunity rational [sic] of Kierstyn nevertheless applies [to the plaintiffs’] promissory estoppel premise just as it does to [the plaintiffs’] negligence claim. The facts giving rise to the claim are the

Page 158

same in either cause of action. Promissory estoppel could’ve been pled inKierstyn.”[45]

V¶ 56. For the foregoing reasons, we affirm the decision of the court of appeals affirming the circuit court’s judgment dismissing the plaintiffs’ amended complaint for failure to state a claim upon which relief can be granted.

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

¶ 57. ANN WALSH BRADLEY, J., did not participate.

¶ 58. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).

As I recognized in writing for the majority, this court has had many opportunities to apply Wis. Stat. § 893.80(4), and we have struggled to define the proper scope of governmental immunity.[46] One need only review a handful of this court’s recent decisions on the limits of governmental immunity to appreciate the jurisprudential chaos surrounding the phrase “legislative, quasi-legislative, judicial or quasi-judicial functions” in § 893.80(4).[47]

¶ 59. If this court is ready to revisit the limits of Wis. Stat. § 893.80(4), as Justice Prosser’s dissent and Justice Bablitch’s concurrence suggest, then it should

Page 159

set this case for re-briefing and re-argument in the fall and invite amicus curiae participation from affected actors, such as the State of Wisconsin, the League of Wisconsin Municipalities, the Wisconsin Counties Association, the Wisconsin Insurance Alliance, and others. The impact of construing governmental immunity anew will have a far-reaching impact, and this court should only undertake such a task with the benefit of full information.

¶ 60. I am authorized to state that Justices WILLIAM A. BABLITCH and N. PATRICK CROOKS join this opinion.

¶ 61. WILLIAM A. BABLITCH, J. (concurring).

Although my sentiments are with the dissent, I concur only because I feel compelled by stare decisis to do so.

¶ 62. Although the majority’s result is consistent with past cases, it is also an unjust result. This court should revisit these past cases for the reasons so well stated in the dissent of Justice Prosser. A doctrine of governmental immunity that has caused such injustice and inequity, in this case and others, cannot, and I predict, will not, stand much longer. See, e.g., Kierstyn v. Racine Unified Sch. Dist., 228 Wis.2d 81, 596 N.W.2d 417 (1999); Willow Creek Ranch v. Town ofShelby, 2000 WI 56, 235 Wis.2d 409, 611 N.W.2d 693. Unfortunately, because this court will not now revisit the past, Scott suffers.

¶ 63. Here, Scott did nothing wrong. In fact, he did everything right. Scott sought out the appropriate individual to assist him in choosing courses to fulfill the requirements for his NCAA scholarship. Scott relied on the advice of his high school guidance counselor, the school official who was privy to the information Scott

Page 160

requested; regrettably, it was to his detriment. The law should not allow such an injustice. Although the majority denies Scott any relief, I believe he should have a legal remedy. Accordingly, I respectfully concur.

¶ 64. I am authorized to state that Justice N. PATRICK CROOKS joins this concurrence.

¶ 65. DIANE S. SYKES, J. (concurring).

I write separately to state my disagreement with the majority’s characterization of promissory estoppel. The majority opinion appears to suggest that in some circumstances, promissory estoppel may be a tort remedy. Majority op., ¶ 53. This is incorrect.

¶ 66. Promissory estoppel is an equitable contract remedy that enforces a promise, in the absence of proof of the elements of a contract, where there has been substantial reliance on the promise, but only to the extent that justice requires. Hoffman v. Red Owl Stores,Inc., 26 Wis.2d 683, 698, 133 N.W.2d 267 (1965). In recognizing the promissory estoppel cause of action nearly 40 years ago in Hoffman, this court was defining a new contract remedy, not creating a new tort.Bicknese v. Sutula, 2003 WI 31, ¶ 62, 260 Wis.2d 713, 660 N.W.2d 289
(Sykes, J., dissenting).[48]

¶ 67. It is certainly true, as the majority states, that “a claim for promissory estoppel only arises when there is no contract,” but the majority subtly overstates

Page 161

the matter when it also asserts that promissory estoppel “rests on a theory separate from contract.” Majority op., ¶ 53. A promissory estoppel claim is not the equivalent of a breach of contract claim, in its elements or its measure of damages.Hoffman, 26 Wis.2d at 699-701. But that hardly means that promissory estoppel falls outside the law of contracts and can be considered a tort cause of action.

¶ 68. On this point, the majority cites Ferraro v. Koelsch, 124 Wis.2d 154, 368 N.W.2d 666 (1985), and Forrer v. Sears, Roebuck Co., 36 Wis.2d 388, 153 N.W.2d 587 (1967). Majority op., ¶ 53 n. 41. Both of these were contract cases, however, and neither supports the notion that promissory estoppel might be a tort. In Ferraro, this court found an express contract between the parties based upon an employee handbook. Ferraro, 124 Wis.2d at 157-158. Ferraro simply describes the distinctions between promissory estoppel and breach of contract theories, and notes that in Forrer the plaintiff pleaded promissory estoppel. Ferraro, 124 Wis.2d at 167-68.

¶ 69. That promissory estoppel is different from breach of contract does not operate to remove promissory estoppel from the realm of contract law into the realm of tort law. A plaintiff may proceed in tort under the separate and distinct theories of strict products liability and negligence, but these are both still tort claims, despite their distinctions. Similarly, a plaintiff may proceed in contract under the separate and distinct theories of breach of contract and promissory estoppel. Both are contract claims. If proof of the contract fails, the promise may still be enforced (although not to the extent of full breach of contract damages) if the elements of promissory estoppel are proven.

Page 162

¶ 70. The majority also asserts that “‘[o]ne branch of promissory estoppel’s family tree lies in tort'” and that “‘[a]rguably, promissory estoppel can be asserted as an independent tort theory of detrimental reliance.'” Majority op., ¶ 53 n. 42. The source of these statements is the treatise Corbin on Contracts. Id. There is no support in Wisconsin law for Corbin’s colorful genealogical assertion or an “arguable” independent promissory estoppel tort.

¶ 71. Tort law does contain remedies that, like promissory estoppel, protect reliance interests.[49] Tort and contract remedies, however, have distinct purposes, elements, and types of recoverable damages. SeeMackenzie v. Miller Brewing Co., 2001 WI 23, ¶¶ 27-28, 241 Wis.2d 700, 723-25, 623 N.W.2d 739; Digicorp v. Ameritech, 2003 WI 54, ¶ 75, 262 Wis.2d 32, 662 N.W.2d 652 (Sykes, J., concurring in part, dissenting in part) (citing Wausau Tile, Inc. v. County Concrete Corp., 226 Wis.2d 235, 247, 593 N.W.2d 445 (1999)). “Tort law `rests on obligations imposed by law.’ . . . In contrast, contract law `is based on obligations imposed by bargain,’. . . Essentially, contract law is based upon the principles of free will and consent, whereas tort law is based upon the principles of risk-sharing and social duties.” Mackenzie, 241 Wis.2d 700, ¶¶ 27-28 (internal citations omitted). We should respect and enforce these distinctions, not blur them.[50]

Page 163

¶ 72. The majority asserts that “[a] single set of facts may give rise to actions both in contract and in tort, thus making it difficult to always draw a clear distinction between the two actions.” Majority op., ¶ 53. That a single set of facts may in certain circumstances support both a contract claim and a tort claim does not mean that a single cause of action, promissory estoppel, is both a tort and a contract remedy.

¶ 73. Here, the plaintiffs brought three claims for relief, one in tort (negligence) and two in contract (breach of contract and promissory estoppel). The majority states that “[i]n the present case . . . the plaintiffs treat promissory estoppel as a contract-based claim.” Majority op., ¶ 53 n. 44. I object to any suggestion that promissory estoppel can be either a tort or a contract remedy depending upon how any particular plaintiff might treat it. Bicknese, 2003 WI 31, ¶ 74
(Sykes, J., dissenting).

¶ 74. Although I disagree with the majority’s characterization of promissory estoppel,[51] I agree that the plaintiffs have failed to state a promissory estoppel

Page 164

claim. There was no promise, either by the district or Johnson, upon which to base a promissory estoppel claim. This is an action for negligent performance of counseling services by a public high school guidance counselor, and, as such, is barred by public officer immunity under Wis. Stat. § 893.80(4). The contract and promissory estoppel claims are factually insufficient to survive the motion to dismiss.

¶ 75. DAVID T. PROSSER, J. (dissenting).

Four decades have passed since this court issued its landmark decision in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Many have now forgotten the zeal with which a unanimous court attacked and belittled the doctrine of governmental immunity, quoting judicial and legal writers to the effect that governmental immunity was “ancient and fallacious,” “archaic,” “mistaken and unjust,” “unsupported by any valid reason,” “unjust, inequitable, and patently unfair,” and an “absurdity.”Id. at 33-35.

¶ 76. In a bold stroke, the court disavowed its past decisions and abrogated the principle of governmental immunity. It declared that “so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity.” Id. at 39.

¶ 77. The court stopped short of imposing “liability on a government body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions.” Id. at 40 (citing Hargrove v. Cocoa Beach, 96 So.2d 130, 133 (Fla. 1957)). It recognized that government should not be liable for all harms to which it is connected, including honest errors in the exercise of discretion.

¶ 78. The Wisconsin legislature did not back away from reform. It promptly enacted a progressive tort claims act which followed the suggestions in the Holytz opinion. See ch. 198, Laws of 1963. The legislature

Page 165

specifically adopted the court’s articulated exception to tort liability, which is now set out in Wis. Stat. § 893.80(4). This statute provides that “No suit may be brought against any . . . [political] corporation, [governmental] subdivision or agency [thereof] . . . 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.” (Emphasis added.)

¶ 79. In logic, a government agency seeking to rely on this statute as a defense against the negligence of its employee should be required to establish that the employee’s negligence occurred in the exercise of some legislative, quasi-legislative, judicial, or quasi-judicial function. Yet, this is not the focus of our current jurisprudence. Instead, when the government claims immunity for negligence from an alleged “discretionary” act, an injured party is forced to try to shoehorn the negligent employee’s conduct into one of the four narrow exceptions to governmental immunity, such as “ministerial duty,” that have been grafted onto § 893.80(4). Willow Creek Ranch v. Town of Shelby, 2000 WI 56, ¶ 26, 235 Wis.2d 409, 611 N.W.2d 693; Kierstyn v. Racine UnifiedSch. Dist., 228 Wis.2d 81, 90-97, 596 N.W.2d 417 (1999). In effect, this methodology has made the rule become immunity — the exception, liability.

¶ 80. The legislature is not responsible for the reenactment of governmental immunity. This court is responsible for several decades of backsliding that has produced today’s opinion.

¶ 81. The majority opinion faithfully describes the salient facts of this case. Majority op., ¶¶ 8-9. The Stevens Point Area Senior High School submitted its curriculum to the NCAA Initial-Eligibility Clearinghouse

Page 166

and received back four reports listing, individually, both the approved and disapproved courses. These reports were dated April 4, 1996, January 30, 1997, July 31, 1997, and April 21, 1998. All four reports list BROADCAST COMMUNICATION as the first course under the heading NOT ACCEPTABLE.

¶ 82. In determining today that a school counselor is immune from liability for advising a student that BROADCAST COMMUNICATION is an acceptable NCAA-approved course when the counselor had access to a two-page, clearly organized NCAA document listing BROADCAST COMMUNICATION as NOT ACCEPTABLE, this court has come virtually full circle on governmental immunity. The result is profoundly wrong and unjust. It is also contrary to legislative intent. For the reasons indicated, I respectfully dissent.

Page 167