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
It is evident that the plain meaning of "action" in sub. (3) is a judicial proceeding. While two other subsections within this section utilize the term "suit," those sections are unrelated; they operate independently and without reference to subsection (3). Thus, it does no mischief to interpret suit and action to have the same meaning. Sub. (3) provides for one damages cap, per person, per action. Anderson v. Hebert,
2013 WI App 54,
347 Wis. 2d 321,
830 N.W.2d 704,
12-1313.
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,
2013 WI 60,
348 Wis. 2d 603,
833 N.W.2d 96,
11-0583.
893.80 Annotation
Under s. 346.03 (3), the driver of an emergency vehicle may proceed through a red stop signal only if his or her vehicle gives a visual and an audible signal. A driver who did not give an audible signal has no discretion to proceed through a red stop signal. The statute sets forth "absolute, certain and imperative," requirements concerning the "performance of a specific task." Thus s. 346.03 (3) imposes upon a driver a ministerial duty to stop at a red stop signal, and a driver who does not falls within the ministerial duty exception to public officer immunity. Brown v. Acuity, A Mutual Insurance Company,
2013 WI 60,
348 Wis. 2d 603,
833 N.W.2d 96,
11-0583.
893.80 Annotation
The monetary damage cap in sub. (3) does not violate equal protection. The plain meaning of sub. (3) is to limit the dollar amount of recovery to be paid for damages, injuries, or death to $50,000 per claimant, but the plain meaning of that provision has no bearing on the availability of equitable relief such as abatement. Bostco LLC v. Milwaukee Metropolitan Sewerage District,
2013 WI 78,
350 Wis. 2d 554,
835 N.W.2d 160,
07-0221.
893.80 Annotation
A municipal entity may be subjected to claims for equitable relief to abate a negligently maintained nuisance that is a cause of significant harm and of which the municipal entity has notice. Under
Willow Creek and
Johnson, equitable relief will be barred when a municipal entity is entitled to immunity. When a plaintiff seeks equitable or injunctive relief against a municipal entity, a court must first answer the threshold question of whether immunity applies. If a court concludes that the actions the plaintiff is seeking to stop through a suit in equity are legislative, quasi-legislative, judicial, or quasi-judicial, then the suit must be dismissed because the governmental entity is protected by immunity. Bostco LLC v. Milwaukee Metropolitan Sewerage District,
2013 WI 78,
350 Wis. 2d 554,
835 N.W.2d 160,
07-0221.
893.80 Annotation
When a governmental contractor seeks immunity under sub. (4), the contractor must show both that the contractor was an agent as that term is used in sub. (4) and that the allegedly injurious conduct was caused by the implementation of a decision for which immunity is available for governmental entities under sub. (4). A governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial, or quasi-judicial function as set out in sub. (4). Showers Appraisals, LLC v. Musson Bros., Inc.
2013 WI 79,
350 Wis. 2d 509,
835 N.W.2d 226,
11-1158.
893.80 Annotation
While s. 346.03 provides statutory privileges of authorized emergency vehicles exempting their operators from certain rules of the road, it also explicitly states that an operator of an emergency vehicle is not relieved of the "duty to drive or ride with due regard under the circumstances for the safety of all persons . . . ." The duty of "due regard under the circumstances" is a ministerial duty for purposes of determining immunity under this section. Legue v. City of Racine,
2014 WI 92, ___ Wis. 2d ___,
849 N.W.2d 837,
12-2499.
893.80 Annotation
Nothing in Wisconsin law bars class action against a governmental body that is a mass action of named claimants bringing similar claims, provided that each claimant has complied with this section. Townsend v. Neenah Joint School District,
2014 WI App 117, ___ Wis. 2d ___, ___ N.W.2d ___,
13-2839.
893.80 Annotation
To evaluate whether named claimants gave sufficient notice under this section, the issue is whether the notice they filed substantially complies with all the requirements of this section. To substantially comply, a notice must satisfy two related but distinct notice requirements. Sub. (1d) (a) imposes a "notice of injury" requirement of "written notice of the circumstances of the claim signed by the party, agent or attorney" and a "notice of claim" requirement under sub. (1d) (b) that notice of the claimant's identity and address, along with an itemized statement of relief sought, was presented to the proper person at the governmental body and was denied. Actual notice and lack of prejudice are an alternative to the written notice for sub. (1d) (a) but not for sub. (1d) (b). Townsend v. Neenah Joint School District,
2014 WI App 117, ___ Wis. 2d ___, ___ N.W.2d ___,
13-2839.
893.80 Annotation
Whether claims were presented by the claimants' authority is a function of the requirement under sub. (1d) (a) that a claim be "signed by the party, agent or attorney" or, in the alternative, that the governmental body had actual notice. In this case the notice was signed by an attorney "for Claimants and Class," and the "class" was defined as the persons whose names, addresses, and claims were itemized on an attached list. If the notice of claim were a pleading in court, the attorney's signature would have sufficed to indicate his status as representative for the identified clients and "need not be verified or accompanied by affidavit." Townsend v. Neenah Joint School District,
2014 WI App 117, ___ Wis. 2d ___, ___ N.W.2d ___,
13-2839.
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.
893.80 Annotation
Returning to First Principles? Governmental; Immunity in Wisconsin. Johnson-Karp. Wis. Law. Apr. 2014.
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, except a volunteer health care provider described in
s. 146.89 (5) (a), 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.
893.82(9)
(9) For purposes of this section, any employee of the state of Minnesota performing services for this state pursuant to a valid agreement between this state and the state of Minnesota providing for interchange of employees or services is considered to have the same status an as employee of this state performing the same services for this state, and any employee of this state who performs services for the state of Minnesota pursuant to such an agreement is considered to have the same status as when performing the same services for this state in any action brought under the laws of this state.
893.82 Note
Judicial Council Committee's Note, 1979: This section is previous s. 895.45 renumbered for more logical placement in restructured ch. 893. The previous 90-day time period in which to file written notice of a claim against an employee of the state of Wisconsin has been increased to 120 days to make the time period consistent with the period for filing notice of claims with other governmental bodies allowed in s. 893.80. (See note following s. 893.80). [Bill 326-A]
893.82 Annotation
The court had no jurisdiction over state employees alleged to have intentionally damaged the plaintiff when the complaint failed to comply with the notice of claim statute. Elm Park Iowa, Inc. v. Denniston,
92 Wis. 2d 723,
286 N.W.2d 5 (Ct. App. 1979).
893.82 Annotation
Noncompliance with the notice of injury statute barred suit even though the defendant failed to raise the issue in responsive pleadings. Mannino v. Davenport,
99 Wis. 2d 602,
299 N.W.2d 823 (1981).
893.82 Annotation
The court properly granted the defendant's motion to dismiss since a notice of claim of injury was not served upon the attorney general within the 120 day limit. Ibrahim v. Samore,
118 Wis. 2d 720,
348 N.W.2d 554 (1984).
893.82 Annotation
Substantial compliance with the requirements for the content of a notice under sub. (3) is sufficient to meet legislative intent. Daily v. UW-Whitewater,
145 Wis. 2d 756,
429 N.W.2d 83 (Ct. App. 1988).
893.82 Annotation
Sub. (3) does not create an exception for a plaintiff who is unaware that a defendant is a state employee. Renner vs. Madison General Hospital,
151 Wis. 2d 885,
447 N.W.2d 97 (Ct. App. 1989).
893.82 Annotation
Under an administrative-services-only state group insurance contract, the insurer is an agent of the state, and the plaintiff must comply with the notice provisions under this section to maintain an action. Smith v. Wisconsin Physicians Services,
152 Wis. 2d 25,
447 N.W.2d 371 (Ct. App. 1989).
893.82 Annotation
A possible finding that a state employee was acting as an apparent agent of a non-state hospital does not permit the maintenance of a suit against the state employee absent compliance with the notice requirements. Kashishian v. Port,
167 Wis. 2d 24,
481 N.W.2d 227 (1992).
893.82 Annotation
Actual notice and lack of prejudice to the state are not exceptions to the 120-day notice requirement. Carlson v. Pepin County
167 Wis. 2d 345,
481 N.W.2d 498 (Ct. App. 1992).
893.82 Annotation
The certified mail requirement under sub. (5) is subject to strict construction. Kelley v. Reyes,
168 Wis. 2d 743,
484 N.W.2d 388 (Ct. App. 1992).
893.82 Annotation
Records relating to pending claims need not be disclosed under s. 19.35. Records of nonpending claims must be disclosed unless an in camera inspection reveals attorney-client privilege would be violated. George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
893.82 Annotation
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan,
188 Wis. 2d 157,
524 N.W.2d 630 (1994).
893.82 Annotation
Sub. (5) requires a notice of claim to be sworn to and to include evidence showing that an oath or affirmation occurred. Kellner v. Christian,
197 Wis. 2d 183,
539 N.W.2d 685 (1994),
93-1657.
893.82 Annotation
The discovery rule does not apply to sub. (3). The failure to apply the discovery rule to sub. (3) is not unconstitutional. Oney v. Schrauth,
197 Wis. 2d 891,
541 N.W.2d 229 (Ct. App. 1995),
94-3298.
893.82 Annotation
The constitutional mandate of just compensation for a taking of property cannot be limited in amount by statute. A taking may result in the state's obligation to pay more than $250,000. Retired Teachers Association v. Employee Trust Funds Board,
207 Wis. 2d 1,
558 N.W.2d 83 (1997),
94-0712.
