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)2. 2. A member of a local emergency planning committee appointed by a county board under s. 59.54 (8) (a).
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) (4)
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(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 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 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 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 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.
893.82 Annotation 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, 03-2045.
893.82 Annotation 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, 345 Wis. 2d 65, 825 N.W.2d 273, 11-0914.
893.82 Annotation Sub. (3)'s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result. The plaintiffs' claims in this case did not arise from a singular event occurring at a fixed moment in time, but were based on numerous events that transpired over a duration of time. Requiring them to set forth the exact moment in time that each of these events occurred was unreasonable. Mayo v. Boyd, 2014 WI App 37, 353 Wis. 2d 162, 844 N.W.2d 652, 13-1578.
893.82 Annotation 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 (2000).
893.82 Annotation 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 (2007).
893.83 893.83 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.
893.83 Annotation A spouse's action for loss of consortium is separate and has a separate dollar limitation from the injured spouse's claim for damages. Schwartz v. Milwaukee, 54 Wis. 2d 286, 195 N.W.2d 480 (1970).
893.83 Annotation Shoveling snow from a sidewalk to create a mound along the curb does not create an unnatural or artificial accumulation that renders a city liable. Kobelinski v. Milwaukee & Suburban Transport Corp. 56 Wis. 2d 504, 202 N.W.2d 415 (1972).
893.83 Annotation This section creates a secondary liability on a municipality or county for highway defects that cause damage only when the act or default of another tortfeasor also contributes to the creation of the defect. Dickens v. Kensmoe, 61 Wis. 2d 211, 212 N.W.2d 484 (1973).
893.83 Annotation City liability arising from snow and ice on sidewalks is determined under the standard of whether, under all the circumstances, the city was unreasonable in allowing the condition to continue. Circumstances to be considered include location, climactic conditions, accumulation, practicality of removal, traffic on the sidewalk, and intended use of the sidewalk by pedestrians. Schattschneider v. Milwaukee & Suburban Transport Corp. 72 Wis. 2d 252, 240 N.W.2d 182 (1976).
893.83 Annotation An insurance policy was construed to waive the recovery limitations this section. Stanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979).
893.83 Annotation Immunity under this section does not exist for injuries resulting from ice on a stairway connecting 2 sidewalks. Henderson v. Milwaukee County, 198 Wis. 2d 748, 543 N.W.2d 544 (Ct. App. 1995).
893.83 Annotation As used in this section, "highway" includes the shoulder of the highway. Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998), 96-2507.
893.83 Annotation A person other than a municipality with any lability for a defect is primarily liable for the entire resulting judgment. If a contractor settles with the injured party for less than the amount of the ultimate award, the municipality is not liable for the balance. VanCleve v. City of Marinette, 2002 WI App 10, 250 Wis. 2d 121, 639 N.W.2d 792, 01-0231.
893.83 Annotation A municipality's liability is triggered only if execution has been issued against the party with primary liability and returned unsatisfied. By entering into a settlement and release with a defendant found by a jury to be liable, a plaintiff indirectly waives any right to hold the municipality secondarily liable because the release prevents taking a judgment against and executing upon the primarily liable defendant. VanCleve v. City of Marinette, 2003 WI 2, 258 Wis. 2d 80, 655 N.W.2d 113, 01-0231.
893.83 Annotation When an accumulation of ice is created by natural conditions a municipality has 3 weeks to address the problem. Actions based on artificial accumulations are actionable without the 3-week requirement. To be an artificial condition, grading must be part of a drainage design plan or be shown to divert water from other sources onto the sidewalks. If not, grading, by itself, does not create an artificial condition on land even if the municipality had notice that a hazardous condition existed. Gruber v. Village of North Fond du Lac, 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692, 03-0537.
subch. IX of ch. 893 SUBCHAPTER IX
893.85 893.85 Action concerning old-age assistance lien.
893.85(1)(1) An action to collect an old-age assistance lien filed under s. 49.26, 1971 stats., prior to August 5, 1973, must be commenced within 10 years after the date of filing of the required certificate under s. 49.26 (4), 1971 stats.
893.85 History History: 1977 c. 385; 1979 c. 323.
893.85 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.181 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.86 History History: 1979 c. 323; 1993 a. 301.
893.87 History History: 1979 c. 323.
893.87 Note Judicial Council Committee's Note, 1979: This section is previous s. 893.18 (6) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.87 Annotation This section applies only if the action is of a type that does not fall under any other statute of limitations. State v. Holland Plastics Co. 111 Wis. 2d 497, 331 N.W.2d 320 (1983).
893.88 History History: 1971 c. 21; 1979 c. 323, 352; 1979 c. 355 s. 225, 231; 1979 c. 357; Stats. 1979 s. 893.88; 1983 a. 447.
893.88 Annotation This section did not revive a time-barred paternity action. In re Paternity of D. L. T., 137 Wis. 2d 57, 403 N.W.2d 434 (1987).
893.88 AnnotationThis section is constitutional. Paternity of James A. O. 182 Wis. 2d 166, 513 N.W.2d 410 (Ct. App. 1994).
893.89 893.89 Action for injury resulting from improvements to real property.
893.89(1)(1) In this section, "exposure period" means the 10 years immediately following the date of substantial completion of the improvement to real property.
893.89(2) (2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
893.89(3) (3)
893.89(3)(b) (b) If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 8th year and ending on the last day of the 10th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for 3 years after the date on which the damages occurred.
893.89(3)(c) (c) An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b).
893.89(4) (4) This section does not apply to any of the following:
893.89(4)(b) (b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
893.89(4)(d) (d) Damages that were sustained before April 29, 1994.
893.89 History History: 1975 c. 335; 1979 c. 323; 1993 a. 309, 311.
893.89 Annotation Bleachers at a high school football stadium qualified as an improvement to real property because they were a permanent addition to real property that enhanced its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. That an improvement can be removed without harming the real property will not necessarily indicate that the item is not an improvement to real property. The more pertinent inquiry is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.
893.89 Annotation This section does not violate Article I, Section 9, the right to remedy clause of the Wisconsin Constitution nor the guarantees of equal protection in the federal and state constitutions. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.
893.89 Annotation This section bars safe place claims under s. 101.11 resulting from injuries caused by structural defects, 10 years after a structure is substantially completed, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252.
893.89 Annotation An easement agreement that expressly stated that the defendant sewer district agreed to construct and maintain an intercepting sewer in good order and condition and to indemnify and save harmless the plaintiff from all loss or injury to its property and persons due to such construction was an express warranty under Hocking. Cianciola, LLP v. Milwaukee Metropolitan Sewerage District, 2011 WI App 35, 331 Wis. 2d 740, 796 N.W.2d 806, 10-0087.
893.89 Annotation This section provides that persons involved in improvements to real property may not be sued more than ten years after substantial completion of a project. The statute does not extend the time for bringing lawsuits that are otherwise time-barred by statutes of limitations. This section is a catch-all provision that imposes a time limit on many lawsuits relating to property improvements that are not otherwise time-barred within ten years after substantial completion. If a cause of action is time-barred by a statute of limitations before it would be barred under this section, that statute of limitations applies. Kalahari Development, LLC v. Iconica, Inc. 2012 WI App 34, 340 Wis. 2d 454, 811 N.W.2d 825, 11-0643.
893.90(1) (1) An action by the state or any of its departments or agencies or by any county, town, village, city, school district, technical college district or other municipal unit to recover any sum of money by reason of the breach of an official bond or the breach of a bond of any nature, whether required by law or not, given by a public officer or any agent or employee of a governmental unit shall be commenced within 3 years after the governmental unit receives knowledge of the fact that a default has occurred in some of the conditions of the bond and that it was damaged because of the default or be barred.
893.90(2) (2) Any civil action arising under ch. 11, subch. III of ch. 13 or subch. II of ch. 19 shall be commenced within 3 years after the cause of action accrues or be barred.
893.91 893.91 Action for expenses related to a forest fire. An action by a state or town under s. 26.14 (9) (b) to recover expenses incurred in the suppression of a forest fire shall be commenced within 2 years of the setting of the fire or be barred.
893.92 893.92 Action for contribution. An action for contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be barred.
893.92 History History: 1979 c. 323.
893.925 893.925 Action for certain damages related to mining.
893.925(1)(1) A claim against the mining damage appropriation under s. 107.31 to recover damages for mining-related injuries shall be brought within 3 years of the date on which the death occurs or the injury was or should have been known.
893.925 History History: 1979 c. 353 s. 7; Stats. 1979 s. 893.207; 1979 c. 355 s. 227; Stats. 1979 s. 893.925; 1995 a. 27 ss. 7214, 9116 (5); 2011 a. 32.
893.93 893.93 Miscellaneous actions.
893.93(1) (1) The following actions shall be commenced within 6 years after the cause of action accrues or be barred:
893.93(1)(a) (a) An action upon a liability created by statute when a different limitation is not prescribed by law.
893.93(1)(b) (b) An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.
893.93(1)(c) (c) An action upon a claim, whether arising on contract or otherwise, against a decedent or against a decedent's estate, unless probate of the estate in this state is commenced within 6 years after the decedent's death.
893.93(1)(d) (d) An action under s. 968.31.
893.93(1)(e) (e) An action under s. 895.444.
893.93(2) (2) The following actions shall be commenced within 2 years after the cause of action accrues or be barred:
893.93(2)(a) (a) An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.
893.93(2)(b) (b) An action to recover a forfeiture or penalty imposed by any bylaw, ordinance or regulation of any town, county, city or village or of any corporation or limited liability company organized under the laws of this state, when no other limitation is prescribed by law.
893.93(3)(a) (a) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.
893.93(3)(b) (b) An action under ch. 135.
893.93 Annotation If the complaint does not allege the requisite elements for a cause of action based on fraud, s. 893.19 (7) [now s. 893.93 (1) (b)] does not apply. Estate of Demos, 50 Wis. 2d 262, 184 N.W.2d 117.
893.93 Annotation A complaint alleging employment discrimination on the basis of sex and seeking back-pay damages is an action upon a liability created by statute, and in the absence of any other applicable limitation, the 6-year limitation of s. 893.19 (4) [now s. 893.93 (1) (a)] applies. Yanta v. Montgomery Ward & Co., Inc. 66 Wis. 2d 53, 224 N.W.2d 389 (1974).
Loading...
Loading...
2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Dec. 13, 2014. Published and certified under s. 35.18. Changes effective after Dec. 13, 2014 are designated by NOTES. (Published 12-13-14)