893.80 Annotation
Breach of ministerial duty was inferred by complaint's allegations that defendant state employes, who set up detour route on which plaintiff was injured, failed to follow national traffic standards, place appropriate signs, and safely construct temporary road. Pavlik v. Kinsey, 81 W (2d) 42, 259 NW (2d) 709.
893.80 Annotation
Insurance policy was construed to waive recovery limitations under ss. 81.15 and 895.43, 1971 stats. Stanhope v. Brown County, 90 W (2d) 823, 280 NW (2d) 711 (1979).
893.80 Annotation
See note to 111.31, citing Kurtz v. City of Waukesha, 91 W (2d) 103, 280 NW (2d) 757 (1979).
893.80 Annotation
"Quasi-judicial" or "quasi-legislative" acts are synonymous with "discretionary" acts. Scarpaci v. Milwaukee County, 96 W (2d) 663, 292 NW (2d) 816 (1980).
893.80 Annotation
Recovery limitations under 81.15 and 895.43 (2), 1965 stats., are constitutional. Sambs v. City of Brookfield, 97 W (2d) 356, 293 NW (2d) 504 (1980).
893.80 Annotation
City was liable for negligent acts of employes even though employes were immune from liability. Maynard v. City of Madison, 101 W (2d) 273, 304 NW (2d) 163 (Ct. App. 1981).
893.80 Annotation
This section cannot limit damage award under 42 USC 1983. Court erred in reducing attorney's fees award. Thompson v. Village of Hales Corners, 115 W (2d) 289, 340 NW (2d) 704 (1983).
893.80 Annotation
Sheriff's dispatcher breached ministerial duty by failing to have fallen tree removed from road. Domino v. Walworth County, 118 W (2d) 488, 347 NW (2d) 917 (Ct. App. 1984).
893.80 Annotation
Service of notice of claim on agency of county met jurisdictional prerequisite of (1) (b). Finken v. Milwaukee County, 120 W (2d) 69, 353 NW (2d) 827 (Ct. App. 1984).
893.80 Annotation
Claim for specific amount of money damages satisfied (1) (b) requirement of "itemized statement of relief sought". Figgs v. City of Milwaukee, 121 W (2d) 44, 357 NW (2d) 548 (1984).
893.80 Annotation
Although decision to release patient from mental health complex was quasi-judicial and hence protected under (4), medical examination and diagnosis which formed basis for decision to release was not immune. Gordon v. Milwaukee County, 125 W (2d) 62, 370 NW (2d) 803 (Ct. App. 1985).
893.80 Annotation
Where claim was not disallowed in writing and claimant did not wait 120 days after presentation before filing lawsuit, statute of limitation was not tolled. Schwetz v. Employers Ins. of Wausau, 126 W (2d) 32, 374 NW (2d) 241 (Ct. App. 1985).
893.80 Annotation
Neither statutory nor traditional common law immunity protects public body from properly pleaded private nuisance claim. Hillcrest Golf v. Altoona, 135 W (2d) 431, 400 NW (2d) 493 (Ct. App. 1986).
893.80 Annotation
Injured party and subrogee may not recover separately up to liability limit under (3). Wilmot v. Racine County, 136 W (2d) 57, 400 NW (2d) 917 (1987).
893.80 Annotation
Recovery limitations applicable to insured municipality likewise applied to insurer, notwithstanding higher policy limits and s. 632.24. Gonzalez v. City of Franklin, 137 W (2d) 109, 403 NW (2d) 747 (1987).
893.80 Annotation
Where 3 municipalities formed one volunteer fire department under ch. 60, liability under (3) was limited to $50,000, not 3 times that amount. Selzler v. Dresser, etc., Fire Dept. 141 W (2d) 465, 415 NW (2d) 546 (Ct. App. 1987).
893.80 Annotation
Parole officer didn't breach ministerial duty by allowing parolee to drive. C. L. v. Olson, 143 W (2d) 701, 422 NW (2d) 614 (1988).
893.80 Annotation
Each of three children damaged by county's negligence in treatment of mother was entitled to recover $50,000 maximum pursuant to (3). Boles v. Milwaukee, 150 W (2d) 801, 443 NW (2d) 679 (Ct. App. 1989).
893.80 Annotation
Sub. (4) immunity provision does not apply to breach of contract suits. Energy Complexes v. Eau Claire County, 152 W (2d) 453, 449 NW (2d) 35 (1989).
893.80 Annotation
Where claim is filed and affected body does not serve notice of disallowance, 6 month limitation period in (1) (b) is not triggered. Lindstrom v. Christianson, 161 W (2d) 635, 469 NW (2d) 189 (Ct. App. 1991).
893.80 Annotation
Discretionary act immunity under s. 893.80 is inapplicable to s. 345.05 claims. Frostman v. State Farm Mut. Ins. Co. 171 W (2d) 138, 491 NW (2d) 100 (Ct. App. 1992).
893.80 Annotation
A letter to an attorney referring to the denial of a client's claim does not trigger the six month statute of limitations under sub. (1) (b). Humphrey v. Elk Creek Lake Protection, 172 W (2d) 397, 493 NW (2d) 270 (Ct. App. 1992).
893.80 Annotation
Once the 120 day period under sub. (1) (b) has run, a municipality may not revive the six-month period of limitation by giving notice of disallowance. Blackbourn v. Onalaska School Dist. 174 W (2d) 496, 497 NW (2d) 460 (Ct. App. 1993).
893.80 Annotation
Sub. (4) immunity does not extend to medical decisions of governmental medical personnel. Linville v. City of Janesville, 174 W (2d) 571, 497 NW (2d) 465 (Ct. App. 1993).
893.80 Annotation
A paramedic has a ministerial duty to attempt a rescue at a life threatening situation and thus there is no immunity under sub. (4). Linville v. City of Janesville, 174 W (2d) 571, 497 NW (2d) 465 (Ct. App. 1993).
893.80 Annotation
Sub. (4) affords a governmental body immunity for its intentional torts; the intentional torts of a city cannot occur except through the acts of an official or agent of the city. Old Tuckaway Assoc. v. City of Greenfield, 180 W (2d) 254, 509 NW (2d) 323 (Ct. App. 1993).
893.80 Annotation
Inequitable or fraudulent conduct need not be established to estop a party from asserting the failure to comply with the notice of claim requirements of this section. An employe's reliance on a school district employe's instruction to deal directly with the school's insurer was sufficient to estop the school from asserting a failure to comply with sub. (1) (b) as a defense. Fritsch v. St. Croix Central School District, 183 W (2d) 336, 515 NW (2d) 328 (Ct. App. 1994).
893.80 Annotation
This section applies to all causes of action, including actions for equitable relief, not just to actions in tort or those for money damages. The state must comply with the sub. (1) notice requirements. Sub. (5) does not say that when a claim is based on another statute, sub. (1) does not apply. Substantial compliance with sub. (1) discussed. DNR v. City of Waukesha, 184 W (2d) 178, 515 NW (2d) 888 (1994).
893.80 Annotation
An officer who decides to engage in pursuit is afforded immunity from liability for the decision, but may be subject to liability under s. 346.03 (5) for operating a motor vehicle negligently during the chase. A city which has adopted a policy which complies with s. 346.03 (6) is immune from liability for injuries resulting from a high speed chase. Estate of Cavanaugh v. Andrade, 191 W (2d) 244, 528 NW (2d) 492 (Ct. App. 1995).
893.80 Annotation
Sub. (1) has 2 components: notice of injury and notice of claim. Both must be satisfied before an action is commenced. The notice of claim must state a specific dollar amount. Vanstone v. Town of Delafield, 191 W (2d) 587, 530 NW (2d) 16 (Ct. App. 1995).
893.80 Annotation
An independent contractor is not an agent under sub. (3) and not protected by the liability limits under this section. Kettner v. Wausau Insurance Cos. 191 W (2d) 724, 530 NW (2d) 399 (Ct. App. 1995).
893.80 Annotation
Intentional tort immunity granted to municipalities by sub. (4) does not extend to the municipality's representatives. Envirologix v. City of Waukesha, 192 W (2d) 277, 531 NW (2d) 357 (Ct. App. 1995).
893.80 Annotation
Where action was mandatory under city ordinance, but permissive under state statute, the action was mandatory and therefore ministerial and not subject to immunity under sub. (4). Turner v. City of Milwaukee, 193 W (2d) 412, 535 NW (2d) 15 (Ct. App. 1995).
893.80 Annotation
Statement by police that an action will be taken does not render that action ministerial. Failure to carry out that action does not remove the immunity granted by this section. Barillari v. City of Milwaukee, 194 W (2d) 247, 533 NW (2d) 759 (1995).
893.80 Annotation
The county had an absolute duty not to represent in an offer to purchase that it had no notice that a property it was selling was free of toxic materials unless it was true. An appraisal indicating contamination contained in the county's files was actual notice to the county. Under these circumstances there is no immunity under sub. (4). Major v. Milwaukee County, 196 W (2d) 939, 539 NW (2d) 472 (Ct. App. 1995).
893.80 Annotation
The damage limitation under sub. (3) may be waived if not raised as an affirmative defense. Anderson v. City of Milwaukee, 199 W (2d) 479, 544 NW (2d) 630 (Ct. App. 1995).
893.80 Annotation
Once the city exercised its discretion in deciding to construct a walkway, it had a ministerial duty to construct it in compliance with the safe-place statute and was not immune from liability under sub. (4). Anderson v. City of Milwaukee, 199 W (2d) 479, 544 NW (2d) 630 (Ct. App. 1995).
893.80 Annotation
Actions brought under the open meetings and open records laws are exempt from the notice provisions of sub. (1). Auchinleck v. Town of LaGrange, 200 W (2d) 585, 547 NW (2d) 587 (1996).
893.80 Annotation
There is no discretion as to maintaining a sewer system so as not to cause injury to residents. Thus a municipality's operation and maintenance of a sewer system do not fall within the immunity provisions of this section. Menick v. City of Menasha, 200 W (2d) 737, 547 NW (2d) 778 (Ct. App. 1996).
893.80 Annotation
Filing suit prior to expiration of 120-day period or denial of claim is not truly commenced and does not toll the statute of limitations when filed. Colby v. Columbia County, 202 W (2d) 342, 550 NW (2d) 124 (1996).
893.80 Annotation
The interplay between s. 893.23 and s. 893.80 creates a statute of limitations equal to 3 years and 120 days when filing a claim under s. 893.80. Colby v. Columbia County, 202 W (2d) 342, 550 NW (2d) 124 (1996).
893.80 Annotation
Liability of vocational, technical and adult education districts and of their officers and employes discussed.
77 Atty. Gen. 145.
893.80 Annotation
Monroe v. Pape, 367 US 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 US 658 (1978).
893.80 Annotation
Defendant public official has burden to plead "good faith" as affirmative defense in 42 USC 1983 case. Gomez v. Toledo, 446 US 635 (1980).
893.80 Annotation
See note to art. VII, sec. 3, citing Supreme Court of VA. v. Consumers Union, 446 US 719 (1980).
893.80 Annotation
Municipality is immune from punitive damages under 42 USC 1983. Newport v. Fact Concerts, Inc. 453 US 247 (1981).
893.80 Annotation
City ordinance regulating cable television was not exempt from antitrust scrutiny under Parker doctrine. Community Communications Co. v. Boulder, 455 US 40 (1982).
893.80 Annotation
This section is pre-empted in federal 42 USC 1983 actions and may not be applied; it conflicts with purpose and effects of federal civil rights actions. Felder v. Casey, 487 US 131 (1988).
893.80 Annotation
Sub. (4) bars direct suits against municipalities for the torts of their employes, it does not preclude suing the officer directly and using 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Com'n. 915 F (2d) 1085 (1990).
893.80 Annotation
Once deputy assumed a duty to protect person subsequently murdered in room adjacent to where deputy was present, his obligation was no longer discretionary and he was no longer entitled to immunity under (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 (4) is not defeated by possibility that the official's acts were malicious. Farr v. Gruber, 950 F (2d) 399 (1991).
893.80 Annotation
State may not be sued by citizen under wrongful death statute. Pinon v. State of Wisconsin, 368 F Supp. 608.
893.80 Annotation
Civil rights actions against municipalities discussed. Starstead v. City of Superior, 533 F Supp. 1365 (1982).
893.80 Annotation
County was not vicariously liable for sheriff's alleged use of excessive force where complaint alleged intentional tort. Voie v. Flood, 589 F Supp. 746 (1984).
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.
893.82
893.82
Claims against state employes; 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, employe 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, employe or agent" includes any of the following persons:
893.82(2)(d)1.
1. An officer, employe 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)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 patients 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, employe 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, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employe'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, employe or agent involved. A specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.
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 time periods under
subs. (3) and
(4) shall be 180 days after discovery of the injury or the date on which, in the exercise of reasonable diligence, the injury should have been discovered, rather than 120 days after the event causing the injury.
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, employe 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, employe 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, employe or agent, which occurs before, on or after April 25, 1990.
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 employe 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]
