June 1, 2003Newsletter

Guidance Counselor's Advice Covered By Immunity


Recently, the Wisconsin Supreme Court was asked to determine whether a school district is immune from liability for the negligent provision of counseling services by one of its guidance counselors, where the counselor's erroneous advice caused a student to lose a four year scholarship. Reluctantly, the Court held that the school district was immune under Wisconsin's governmental immunity statute, Wis. Stat. § 893.80(4).

Factual & Procedural Background

Ryan Scott was offered a four-year athletic scholarship to play Division I hockey at the University of Alaska, provided he met certain National Collegiate Athletic Association ("NCAA") student athlete requirements. During Scott's junior year, his parents specifically asked Scott's high school guidance counselor whether "Broadcast Communication" was a course approved by the NCAA as fulfilling the core English requirement. Despite having the correct information readily available to him, the guidance counselor erroneously advised the Scotts that "Broadcast Communication" was an NCAA approved course. Scott enrolled in and completed the course based on the counselor's advice.

Following Scott's graduation, the university discovered that he failed to meet the core English requirement and subsequently rescinded its scholarship offer. Scott's parents sued the school district alleging: (1) negligence; (2) breach of contract; and (3) promissory estoppel.

Governmental Immunity
The Court held that governmental immunity applied to the guidance counselor's act of rendering advice. The counselor's act was negligent but, nevertheless, covered by governmental immunity. Therefore, no liability would attach to the school district for the counselor's negligence.

Breach of Contract Claims
The Appellants alleged two contract claims: (1) a contract to provide counseling services exists between the District and Plaintiffs; and (2) if no contract exists, the plaintiffs are entitled to equitable relief under the doctrine of promissory estoppel. In the absence of a contract, courts apply the equitable remedy of promissory estoppel in order to enforce a promise to avoid an injustice.

The Court rejected the breach of contract claim on grounds of insufficiency of consideration, reasoning "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 under Wis. Stat. §121.02(e)." The Court similarly rejected the promissory estoppel claim on policy grounds, because Plaintiffs' claim was based on the same allegations as their negligence claims, supra. The Court reasoned: "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. sec. 893.80(4) and consequently would not serve the ends of justice."


Although the Supreme Court rejected the Scotts' claims, it did so reluctantly, leaving the future scope of Wisconsin's governmental immunity statute in question. According to the Court: "The outcome of this case is harsh, and the harshness of our holding is especially palpable because the negligence is so clear."

Chief Justice Abrahamson, who wrote the majority opinion, opened the door to the Court's revisiting the issue by stating: "If this court is ready to revisit the limits of Wis. Stat. sec. 893.80(4) . . . then it should set this case for re-briefing and re-argument in the fall and invite amicus curiae participation from affected actors . . . 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." In all, the Court filed three separate written concurrences and one dissent.


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