Umansky v. ABC Ins.: WI Court Allows Wrongful Death Suit to Proceed

On November 21, 2003, ABC television cameraman Richard Umansky was standing on a four‑by‑eight‑foot platform built by the University of Wisconsin at Camp Randall Stadium. The platform sat roughly eight feet above a concrete walkway yet lacked a guardrail. After the day’s football game, Umansky was found unconscious on the ground and later died from his injuries. His parents, Harold and Thelma Umansky, along with his estate, filed a wrongful‑death action against Barry Fox — director of facilities for the stadium — and ABC Insurance Company. They alleged that Fox had been responsible for ensuring the stadium complied with state and federal safety regulations and that he negligently failed to install the guardrail required by 29 C.F.R. § 1910.23(c)(1), a federal rule that Wisconsin had adopted for all public buildings. The regulation mandates that every open‑sided floor or platform four feet or more above an adjacent surface be guarded by a standard railing.

Fox moved for summary judgment, arguing that he was immune from suit because his decisions were discretionary acts of a state employee. The circuit court agreed and granted summary judgment. The Umanskys appealed.

Court of Appeals decision

The Wisconsin Court of Appeals reversed. After examining Fox’s job description and the incorporated OSHA regulation, the court concluded that Fox had a ministerial, non‑discretionary duty to ensure that guardrails were installed. It held that the platform fell within the regulation’s definition of a “platform” and that the regulation applied to public buildings through Wisconsin’s administrative code, meaning Fox had no discretion to ignore it. Because a ministerial duty is “absolute, certain and imperative,” the court determined that Fox was not entitled to discretionary‑act immunity. The case was remanded for trial on negligence.

Supreme Court review and analysis

The Wisconsin Supreme Court granted review to consider whether Fox’s duty was truly ministerial and whether the OSHA regulation applied when the injured worker was not a public employee. The court first reaffirmed the longstanding definition of a ministerial duty: a task is ministerial when the law prescribes the time, mode and occasion for its performance with such certainty that nothing is left to judgment or discretion. Fox’s job description expressly required him to ensure Camp Randall Stadium complied with state and federal safety regulations. The regulation requiring guardrails on platforms elevated four feet or more above the ground was incorporated into Wisconsin’s administrative code and applied to “all places of employment and public buildings,” leaving no room for discretion.

Fox argued that the duty to install guardrails ran only to public employees and that the regulation applied only if a public employee used the platform. The court rejected this argument. It noted that the purpose of Wisconsin’s adoption of OSHA regulations was to give public employees occupational safety protections equivalent to those available to private employees and that the regulations were intended to protect anyone who could be injured at the workplace. Focusing on whether the injured worker was a public employee would create disparate safety standards for public and private workers, contrary to legislative intent. The court emphasized that safety regulations protect “places, not people” and that once a ministerial duty exists, the employment status of the injured party is irrelevant.

The court therefore adopted the appellate court’s rulings and held that Fox had a ministerial duty to ensure that the platform complied with the guardrail requirement. Because the regulation is part of Wisconsin’s administrative code and applies to public buildings, the duty existed regardless of whether any public employee was on the platform at the time. The court further noted that the state’s legislative scheme intentionally provided identical safety standards for public and private employees; adopting Fox’s argument would defeat that purpose.

Conclusion and remand

The Supreme Court affirmed the Court of Appeals and remanded the case to the circuit court for trial on negligence. The trial will focus on whether Fox breached his ministerial duty, whether that breach caused Umansky’s death, comparative fault among the parties and damages. By holding that safety regulations create ministerial duties for state employees, the decision clarifies the limits of public‑employee immunity and underscores that compliance with OSHA‑derived regulations is mandatory for public facilities. The case thus serves as a cautionary tale: ignoring clearly defined safety rules can expose public employers and their administrators to liability when workers are injured.

OSHA compliance and workplace safety support

Ensuring that your company complies with OSHA regulations and state safety laws is essential to protecting workers and avoiding costly citations. Schedule a consultation at Whitcomb Selinsky PC to learn how we can help your business stay compliant and address any OSHA‑related disputes.