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
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
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
The Lyons test for extending governmental immunity to an independent contractor is whether: 1) there were reasonably precise specifications; and 2) whether the contractor followed them. Exact direction to the contractor is not the hallmark of the first prong of the test. In this case, standard specifications that applied to the contract's allegedly negligent methods, combined with governmental oversight of those methods, curtailed the contractor's discretion so that it was subject to reasonably precise specifications. As with the first prong, the second prong analysis includes the written plans for the project and the ongoing supervision and adjustments to those plans during the project. If the contractor was following the plans at the time of the alleged negligence and not disregarding instructions or acting without governmental oversight, Lyons makes it immune from any negligence that resulted from following the plan. Showers Appraisals, LLC v. Musson Bros., Inc. 2012 WI App 80
, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1158
Liability of vocational, technical, and adult education [now technical college] districts and of their officers and employees is discussed. 77 Atty. Gen. 145
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
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
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
A municipality is immune from punitive damages under 42 USC 1983. Newport v. Fact Concerts, Inc. 453 U.S. 247
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
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
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
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
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
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
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
The state may not be sued by a citizen under the wrongful death statute. Pinon v. State of Wisconsin, 368 F. Supp. 608
Civil rights actions against municipalities are discussed. Starstead v. City of Superior, 533 F. Supp. 1365
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
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
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
The discretionary function exception to government tort liability. 61 MLR 163.
Several police supervisor immunities from state court suit may be doomed. Fine, 1977 WBB 9.
Municipal liability: The failure to provide adequate police protection — the special duty doctrine should be discarded. 1984 WLR 499.
Wisconsin recovery limit for victims of municipal torts: A conflict of public interests. 1986 WLR 155.
Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin. Dudding. 2004 WLR 1741.
Revising Wisconsin's Government Immunity Doctrine, Annoye, 88 MLR 971 (2005).
Government Immunity for Safe Place Statute Violations. Cabush. Wis. Law. Oct. 1999.
Fighting City Hall: Municipal Immunity in Wisconsin. Pollack. Wis. Law. Dec. 2000.
Claims against state employees; notice of claim; limitation of damages. 893.82(1)
The purposes of this section are to:
Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
"Civil action or civil proceeding" includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.
"Claimant" means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.
"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.
"State officer, employee or agent" includes any of the following persons:
An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.
A volunteer health care provider who provides services under s. 146.89
, for the provision of those services.
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.
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)
No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
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.
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.
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.
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:
The date the cause of action for contribution or indemnification accrues.
The date the claimant acquired actual or constructive knowledge of the underlying cause of action.
The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph.
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.
With regard to a claim to recover damages for medical malpractice, the provisions of subs. (3)
, 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)
, and (3)
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.
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.
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.
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]
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).
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
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
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).
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).
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).
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
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).
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).
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).
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan, 188 Wis. 2d 157
, 524 N.W.2d 630
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
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
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
A state "agent" under sub. (3) means an individual and not a state agency. Miller v. Mauston School District, 222 Wis. 2d 540
, 588 N.W.2d 305
(Ct. App. 1998), 97-1874
A defendant is not relieved from filing a notice of claim under this section when a state employee also performs functions for a private employer. The notice of claim provisions are constitutional. Riccitelli v. Broekhuizen, 227 Wis. 2d 100
, 595 N.W.2d 392
This section does not provide an administrative remedy for purposes of filing a federal civil rights claim under 42 USC 1983 and therefore the failure to file a notice of claim under this section was not a failure to exhaust administrative remedies justifying denial of a petition. State ex rel. Ledford v. Circuit Court for Dane County, 228 Wis. 2d 768
, 599 N.W.2d 45
(Ct. App. 1999), 99-0939
The factors relevant to a master/servant relationship are relevant to deciding whether a person is a state employee under sub. (3). A state employee's affiliation with another entity does not vitiate his or her status as a state employee for purposes of sub. (3) as long as the act sued upon grows out of or was committed in the course of duties as a state employee. Lamoreux v. Oreck, 2004 WI App 160
, 275 Wis. 2d 801
, 686 N.W.2d 722
A notice is properly served on the attorney general under sub. (5) if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, post office box, or any combination of those three addresses, assuming that the notice otherwise complies with sub. (5). Hines v. Resnick, 2011 WI App 163
, 338 Wis. 2d 190
, 807 N.W.2d 687
Kellner sets forth two requirements in order for a notice of claim to be properly "sworn to" under sub. (5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Neither requirement demands that a false notice of claim be punishable for perjury or that a notice of claim must contain a statement by a notary that an oath or affirmation was administered. Estate of Hopgood v. Boyd, 2013 WI 1
, ___ Wis. 2d ___, ___ N.W.2d ___, 11-0914
Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under this section and are entitled to the state's indemnification for liability under s. 895.46. OAG 2-06
This section provides no affirmative waiver of the state's immunity to suit, but forecloses suit when its procedures are not followed. The state has not waived its immunity under the federal Fair Labor Standards Act. Luder v. Endicott, 86 F. Supp. 2d 854
The injury caused by a misdiagnosis arises when the misdiagnosis causes greater harm than existed at the time of the misdiagnosis. Under sub. (6), discovery occurs when the plaintiff has information that would give a reasonable person notice of the injury, that is, of the greater harm caused by the misdiagnosis. McCulloch v. Linblade, 513 F. Supp 2d 1037
Damages caused by accumulation of snow or ice; liability of city, village, town, and county.
No action may be maintained against a city, village, town, or county to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks. Any action to recover damages for injuries sustained by reason of an accumulation of snow or ice that has existed for 3 weeks or more upon any bridge or highway is subject to s. 893.80
History: 2003 a. 214
; 2011 a. 132
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.