893.80 Annotation
This section does not apply to certiorari actions under s. 59.694 (10). Kapischke v. County of Walworth,
226 Wis. 2d 320,
595 N.W.2d 42 (Ct. App. 1999),
98-0796.
893.80 Annotation
A public officer is clothed in immunity when that officer applies statutes to a given set of facts. An unambiguous statute, negligently applied, that does not direct how to act in any manner does not create a ministerial duty that is not sheltered by immunity. Kierstyn v. Racine Unified School District,
228 Wis. 2d 81,
596 N.W.2d 417 (1999),
97-1573.
893.80 Annotation
Suits must be based in tort to garner immunity under sub. (4). There is no immunity from actions for declaratory relief. Willow Creek Ranch v. Town of Shelby,
2000 WI 56,
235 Wis. 2d 409,
611 N.W.2d 693,
97-2075.
893.80 Annotation
Subsection (1g) is constitutional. There is a rational basis for restricting the opportunity to bring suit to 6 months for claimants who have been served with a notice of disallowance and to 3 years when claimants have not been served. That there are different time periods does not violate equal protection guarantees. Griffin v. Milwaukee Transport Services, Inc.
2001 WI App 125,
246 Wis. 2d 433,
630 N.W.2d 536,
00-0861.
893.80 Annotation
The existence of a known present danger should not turn on the subjective impressions of a citizen-witness. A public officer's duty to act becomes absolute when the nature of the danger is compelling and known to the officer and is of such force that the officer has no discretion not to act. Hoskins v. Dodge County,
2002 WI App 40,
251 Wis. 2d 276,
642 N.W.2d 213,
01-0834.
893.80 Annotation
A proper application of the known danger exception to public officer immunity begins with the assumption that the officer was negligent in failing to perform, or in inadequately performing the act in question. To pierce immunity the circumstances must have been sufficiently dangerous so as to give rise to a ministerial duty not just to act generally but to perform the particular act upon which liability is premised. Lodl v. Progressive Northern Insurance Company,
2002 WI 71,
253 Wis. 2d 323,
646 N.W.2d 314,
00-0221.
893.80 Annotation
Nothing in Cords suggests that a ministerial duty is placed on the government to protect the public from every manifest danger. The Cords known and present danger exception to sub. (4) immunity did not apply to a pipe that was used as a footbridge over a creek when the public was not invited to so use it, a sidewalk was provided to cross the creek not far from the pipe, and the use as a footbridge presented an obvious danger. Caraher v. City of Menomonie,
2002 WI App 184,
256 Wis. 2d 605,
649 N.W.2d 184,
01-2772.
893.80 Annotation
The analysis of immunity under sub. (4) assumes negligence. The existence of a form clearly and unambiguously detailing information requested of a high school guidance counselor did not transform the counselor'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. Scott v. Savers Property & Casualty Insurance Co.
2003 WI 60,
262 Wis. 2d 127,
663 N.W.2d 715,
01-2953.
893.80 Annotation
Any fire department created pursuant to s. 60.55, whether formed under ch. 181 or 213, is a government subdivision or agency entitled to immunity under sub. (4). Mellenthin v. Berger,
2003 WI App 126,
265 Wis. 2d 575,
666 N.W.2d 120,
02-2524.
893.80 Annotation
A ministerial duty cannot arise from a manufacturer's instructions because a ministerial duty must be imposed by law. Law means an act of government and includes statutes, administrative rules, policies, or orders and plans adopted or contracts entered into by governmental units. Meyers v. Schultz,
2004 WI App 234,
277 Wis. 2d 845,
690 N.W.2d 873,
04-0542.
893.80 Annotation
A municipality may be immune from nuisance suits depending on the nature of the tortious acts giving rise to the nuisance. A municipality is immune from suit for nuisance predicated on negligent acts that are discretionary in nature. A municipality does not enjoy immunity from suit for nuisance when the underlying tortious conduct is negligence comprised of acts performed pursuant to a ministerial duty. Milwaukee Metropolitan Sewerage District v. City of Milwaukee,
2005 WI 8,
277 Wis. 2d 635,
691 N.W.2d 858,
02-2961.
893.80 Annotation
Decisions concerning the adoption, design, and implementation of a public works system are discretionary, such as the adoption of a waterworks system, the selection of the type of pipe, the placement of the pipe in the ground, and the continued existence of the pipe, are legislative decisions for which a city enjoys immunity. A city may be liable for its negligence in failing to repair the leaky water main if it had notice of the leak and was under a ministerial duty to repair it prior to a break. Milwaukee Metropolitan Sewerage District v. City of Milwaukee,
2005 WI 8,
277 Wis. 2d 635,
691 N.W.2d 858,
02-2961.
893.80 Annotation
It is contrary to the protection afforded by sub. (1) to force a government entity to spend resources and taxpayer money to investigate every injury when the requisite 120-day notice is not given on the mere chance that the injury may turn out to be catastrophic, irrespective of how minor it may seem initially. Moran v. Milwaukee County,
2005 WI App 30,
278 Wis. 2d 747,
693 N.W.2d 121,
04-0709.
893.80 Annotation
The known and compelling danger exception to immunity under sub. (4) is determined on a case-by-case basis. A dangerous situation will give rise to a ministerial duty when there exists a 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. The duty arises by virtue of particularly hazardous circumstances that are both known to the municipality or its officers and sufficiently dangerous to require an explicit, non-discretionary municipal response. It is not enough that the situation require the employee to do something about it. Voss v. Elkhorn Area School District,
2006 WI App 234,
297 Wis. 2d 389,
724 N.W.2d 420,
05-3037.
893.80 Annotation
Service of a notice of disallowance must be upon the claimant and strictly comply with those modes of service set out in sub. (1g), which requires that service be made by either registered or certified mail. The return of a receipt for registered or certified mail signed by the claimant and the return of registered mail addressed to the claimant, are examples of proof of service acceptable under sub. (1g). Pool v. City of Sheboygan,
2007 WI 38,
300 Wis. 2d 74,
729 N.W.2d 415,
05-2028.
893.80 Annotation
Sub. (1m) applies to medical malpractice claims against governmental bodies that fall within the scope of this section. Chapter 655 does not contain any statute of limitations provision that conflicts with this section. The generally exclusive nature of ch. 655 does not prevent the application of this section when applicable. Rouse v. Theda Clark Medical Center, Inc.
2007 WI 87,
302 Wis. 2d 358,
735 N.W.2d 30,
05-2743.
893.80 Annotation
University of Wisconsin Hospital & Clinics Authority is a "political corporation" under sub. (1) (a) that falls within the notice of claim requirement of this section. Rouse v. Theda Clark Medical Center, Inc.
2007 WI 87,
302 Wis. 2d 358,
735 N.W.2d 30,
05-2743.
893.80 Annotation
There is a 3-point test for when the notice-of-claim requirement in sub. (1) (b) has to give way: 1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; 2) whether enforcement of sub. (1) would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and 3) whether the purposes for which sub. (1) was enacted would be furthered by requiring that a notice of claim be filed. Oak Creek Citizen's Action Committee v. City of Oak Creek,
2007 WI App 196,
304 Wis. 2d 702,
738 N.W.2d 168,
06-2697.
893.80 Annotation
Sub. (1) (b) did not apply to an action for mandamus seeking to compel a city council to comply with the direct-legislation statute, s. 9.20. Oak Creek Citizen's Action Committee v. City of Oak Creek,
2007 WI App 196,
304 Wis. 2d 702,
738 N.W.2d 168,
06-2697.
893.80 Annotation
Administrative code provisions imposed a ministerial duty on a municipality to place a water main at a specified depth. When the municipality installed the water main at an appropriate depth to prevent freezing and the surface was subsequently graded so that the water main was no longer at the required depth, there was no breach of the ministerial duty. The design of the overall development, including the soil grading, was a discretionary act and enjoyed governmental immunity. DeFever v. City of Waukesha,
2007 WI App 266,
306 Wis. 2d 766,
743 N.W.2d 848,
06-3053.
893.80 Annotation
Under Lyons, an independent professional contractor who follows official directives is an agent for the purposes of sub. (4) or is entitled to common law immunity when: 1) the governmental authority approved reasonably precise specifications; 2) the contractor's actions conformed to those specifications; and 3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials. Estate of Brown v. Mathy Construction Company,
2008 WI App 114,
313 Wis. 2d 497,
756 N.W.2d 417,
07-1543. See also Bronfeld v. Pember Companies, Inc.
2010 WI App 150,
330 Wis. 2d 123,
792 N.W.2d 222,
09-2297.
893.80 Annotation
Under the Lyons test, the specification question is not what other safety precautions might have been taken, but whether the safety requirements provided by the contract were reasonably precise specifications. A contract is reasonably precise if it reasonably and precisely lists items required. Common sense dictates that items not required by the contract do not obligate the contractor to provide them. Estate of Brown v. Mathy Construction Company,
2008 WI App 114,
313 Wis. 2d 497,
756 N.W.2d 417,
07-1543.
893.80 Annotation
A spirit rule book for cheerleading, not officially adopted by a school district, lacked the absolute, certain, and imperative direction that prescribes and defines the time, mode, and occasion for an action's performance with such certainty that nothing remains for judgment or discretion. As such, the plaintiff did not show that the rule book created an absolute, certain, or imperative duty that fell within the ministerial duty exception to governmental immunity under sub. (4). Noffke v. Bakke,
2009 WI 10,
315 Wis. 2d 350,
760 N.W.2d 156,
06-1886.
893.80 Annotation
So long as a precautionary measure is taken in response to an open and obvious danger, the law is that the government remains immune from suit under sub. (4). In this case, the trial court found that a teacher took no precautionary measure to deal with a known danger. While the teacher had the option to pick one precautionary measure over another, she did not have the option to do nothing and the exception to immunity applied. Heuser v. Community Insurance Corporation,
2009 WI App 151,
321 Wis. 2d 729,
774 N.W.2d 653,
08-2760.
893.80 Annotation
Three factors should be considered when determining whether to exempt a specific statute from the notice of claim requirements: 1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; 2) whether enforcement of the notice of claim requirements would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and 3) whether the purposes for which this section was enacted would be furthered by requiring that a notice of claim be filed. Antitrust actions brought under s. 133.18 are not exempt from the notice of claim requirements found in sub. (1). E-Z Roll Off, LLC v. County of Oneida,
2011 WI 71,
335 Wis. 2d 720,
800 N.W.2d 421,
09-0775.
893.80 Annotation
A government entity is not entitled to immunity for a failure to maintain its property as to a condition of disrepair or defect or a failure to operate. In this case, once the sewerage district had notice that its deep tunnel was draining the aquifer in downtown Milwaukee to the detriment of property owners, it had an "absolute, certain and imperative" duty to repair the tunnel. As the entity responsible for the tunnel, and being aware that the tunnel was causing structural damage to the plaintiff's property, the district had a ministerial duty to repair the tunnel. Because it did not, it enjoyed no immunity for its negligence under sub. (4). Bostco LLC v. Milwaukee Metropolitan Sewerage District,
2011 WI App 76,
334 Wis. 2d 620,
800 N.W.2d 518,
07-0221.
893.80 Annotation
The first step in the ministerial duty analysis is to identify a source of law or policy that imposes the alleged duty. Merely arguing, in general terms, that a municipality that alters the normal course of traffic on a road must take measures to ensure the public can safely travel on the road and not pointing to any statute, regulation, or policy that imposes this duty, fails to do so. Even assuming the county had a duty to ensure reasonably safe travel during road construction, this duty would not be ministerial. How to safely control traffic in a construction zone is an inherently discretionary decision requiring the exercise of judgment. American Family Mutual Insurance Co. v. Outagamie County,
2012 WI App 60,
341 Wis. 2d 413,
816 N.W.2d 340,
11-1211.
893.80 Annotation
Volunteer firefighters are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call. Because of that, they are operating within the scope of their employment for the purposes of sub. (4) immunity. Brown v. Acuity, A Mutual Insurance Company,
2012 WI App 66,
342 Wis. 2d 236,
815 N.W.2d 719,
11-0583.
893.80 Annotation
The government and its employees may have various forms of liability under s. 346.03, which provides exemptions for compliance with certain traffic laws for operators of emergency vehicles, but the statute does not supersede sub. (4) immunity for discretionary decisions. In this case, a driver's decision to proceed through the intersection against a red light was discretionary and the driver was immune from liability for negligence based on that decision. Brown v. Acuity, A Mutual Insurance Company,
2012 WI App 66,
342 Wis. 2d 236,
815 N.W.2d 719,
11-0583.
893.80 Annotation
Liability of vocational, technical, and adult education [now technical college] districts and of their officers and employees is discussed.
77 Atty. Gen. 145.
893.80 Annotation
A town that responds to a Level B hazardous waste release in its own capacity, in the absence of a county wide agreement, does not receive immunity from civil liability under s. 895.483 (2), but other statutory and common law immunities apply.
OAG 1-99.
893.80 Annotation
Monroe v. Pape,
367 U.S. 167 (1961), is overruled insofar as it holds that local governments are wholly immune from suit under 42 USC 1983. Monell v. New York City Dept. of Social Services,
436 U.S. 658 (1978).
893.80 Annotation
A defendant public official has the burden to plead "good faith" as an affirmative defense in a 42 USC 1983 case. Gomez v. Toledo,
446 U.S. 635 (1980).
893.80 Annotation
A municipality is immune from punitive damages under 42 USC 1983. Newport v. Fact Concerts, Inc.
453 U.S. 247 (1981).
893.80 Annotation
A city ordinance regulating cable television was not exempt from antitrust scrutiny under the Parker doctrine. Community Communications Co. v. Boulder,
455 U.S. 40 (1982).
893.80 Annotation
This section is preempted in 42 USC 1983 actions and may not be applied as it conflicts with purpose and effects of federal civil rights actions. Felder v. Casey,
487 U.S. 131 (1988).
893.80 Annotation
A claim of excessive force in the course of making a seizure of the person is properly analyzed under the 4th Amendment's objective reasonableness standard. A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4th Amendment, even when it places the fleeing motorist at risk of serious injury or death. Scott v. Harris,
550 U.S. 372,
127 S. Ct. 1769,
167 L. Ed. 2d 686 (2007).
893.80 Annotation
Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken. When an alleged 4th amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner. There is a narrow exception allowing suit when it is obvious that no reasonably competent officer would have concluded that a warrant should issue. Messerschmidt v. Millender, 565 U. S. ___
182 L. Ed. 2d 47,
132 S. Ct. 1235 (2012).
893.80 Annotation
Sub. (4) bars direct suits against municipalities for the torts of their employees. It does not preclude suing the officer directly and using s. 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Commission,
915 F.2d 1085 (1990).
893.80 Annotation
Once a deputy assumed a duty to protect a person subsequently murdered in a room adjacent to where the deputy was present, the deputy's obligation was no longer discretionary and he was no longer entitled to immunity under sub. (4) for decisions made at the murder site. Losinski v. County of Trempealeau,
946 F.2d 544 (1991).
893.80 Annotation
Immunity of elected officials under sub. (4) is not defeated by the possibility that the official's acts were malicious. Farr v. Gruber,
950 F.2d 399 (1991).
893.80 Annotation
The state may not be sued by a citizen under the wrongful death statute. Pinon v. State of Wisconsin,
368 F. Supp. 608.
893.80 Annotation
Civil rights actions against municipalities are discussed. Starstead v. City of Superior,
533 F. Supp. 1365 (1982).
893.80 Annotation
A county was not vicariously liable for its sheriff's alleged use of excessive force when the complaint alleged intentional tort. Voie v. Flood,
589 F. Supp. 746 (1984).
893.80 Annotation
Decisions by law enforcement officers concerning whether and how to arrest someone are discretionary for purposes of sub. (4). Wilson v. City of Milwaukee,
138 F. Supp. 2d 1126 (2001).
893.80 Annotation
The duty to report abuse of children to authorities under s. 48.981 is ministerial and not discretionary. Baumgardt v. Wausau School District Board of Education,
475 F. Supp. 2d 800 (2007).
893.80 Annotation
The discretionary function exception to government tort liability. 61 MLR 163.
893.80 Annotation
Several police supervisor immunities from state court suit may be doomed. Fine, 1977 WBB 9.
893.80 Annotation
Municipal liability: The failure to provide adequate police protection — the special duty doctrine should be discarded. 1984 WLR 499.
893.80 Annotation
Wisconsin recovery limit for victims of municipal torts: A conflict of public interests. 1986 WLR 155.
893.80 Annotation
Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin. Dudding. 2004 WLR 1741.
893.80 Annotation
Revising Wisconsin's Government Immunity Doctrine, Annoye, 88 MLR 971 (2005).
893.80 Annotation
Government Immunity for Safe Place Statute Violations. Cabush. Wis. Law. Oct. 1999.
893.80 Annotation
Fighting City Hall: Municipal Immunity in Wisconsin. Pollack. Wis. Law. Dec. 2000.
893.82
893.82
Claims against state employees; notice of claim; limitation of damages. 893.82(1)
(1) The purposes of this section are to:
893.82(1)(a)
(a) Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
893.82(1)(b)
(b) Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
893.82(1)(c)
(c) Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
893.82(2)(a)
(a) "Civil action or civil proceeding" includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.
893.82(2)(b)
(b) "Claimant" means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.
893.82(2)(c)
(c) "Damage" or "injury" means any damage or injury of any nature which is caused or allegedly caused by the event. "Damage" or "injury" includes, but is not limited to, any physical or mental damage or injury or financial damage or injury resulting from claims for contribution or indemnification.
893.82(2)(d)
(d) "State officer, employee or agent" includes any of the following persons:
893.82(2)(d)1.
1. An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.
893.82(2)(d)1m.
1m. A volunteer health care provider who provides services under
s. 146.89, for the provision of those services.
893.82(2)(d)1n.
1n. A practitioner who provides services under
s. 257.03 and a health care facility on whose behalf services are provided under
s. 257.04, for the provision of those services.
893.82(2)(d)3.
3. A member of the board of governors created under
s. 619.04 (3), a member of a committee or subcommittee of that board of governors, a member of the injured patients and families compensation fund peer review council created under
s. 655.275 (2), and a person consulting with that council under
s. 655.275 (5) (b).
893.82(2m)
(2m) No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
893.82(3)
(3) Except as provided in
sub. (5m), no civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employee's or agent's duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved. Except as provided under
sub. (3m), a specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.
893.82(3m)
(3m) If the claimant is a prisoner, as defined in
s. 801.02 (7) (a) 2., the prisoner may not commence the civil action or proceeding until the attorney general denies the claim or until 120 days after the written notice under
sub. (3) is served upon the attorney general, whichever is earlier. This subsection does not apply to a prisoner who commences an action seeking injunctive relief if the court finds that there is a substantial risk to the prisoner's health or safety.
893.82(4)(a)(a) Except as provided in
par. (b), if the civil action or proceeding under
sub. (3) is based on contribution or indemnification, the event under
sub. (3) is the underlying cause of action, not the cause of action for contribution or indemnification, and, except as provided in
sub. (5m), the 120-day limitation applies to that event.
893.82(4)(b)1.1. If the claimant under
par. (a) establishes that he or she had no actual or constructive knowledge of the underlying cause of action at the time of the event under
sub. (3), except as provided in
sub. (5m), the 120-day limitation under
sub. (3) applies to the earlier of the following:
893.82(4)(b)1.a.
a. The date the cause of action for contribution or indemnification accrues.
893.82(4)(b)1.b.
b. The date the claimant acquired actual or constructive knowledge of the underlying cause of action.
893.82(4)(b)2.
2. The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph.
893.82(5)
(5) The notice under
sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol by certified mail. Notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.
893.82(5m)
(5m) With regard to a claim to recover damages for medical malpractice, the provisions of
subs. (3),
(3m), and
(4) do not apply. The time periods for commencing an action under this section for damages for medical malpractice are the time periods under
ss. 893.55 (1m),
(2), and
(3) and
893.56.
893.82(6)
(6) The amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer, employee or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, including any such action or proceeding based on contribution or indemnification, shall not exceed $250,000. No punitive damages may be allowed or recoverable in any such action.
893.82(7)
(7) With respect to a state officer, employee or agent described in
sub. (2) (d) 3., this section applies to an event causing the injury, damage or death giving rise to an action against the state officer, employee or agent, which occurs before, on or after April 25, 1990.
