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
Liability of vocational, technical and adult education 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
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 Com'n. 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
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.
Government Immunity for Safe Place Statute Violations. Cabush. Wis. Law. Oct. 1999.
A county shall be liable for injury to person or property by a mob or riot therein except when cities are liable. Within a city, the city shall be liable for such injury except that within a 1st class city the city shall not be liable for any such injury occurring upon the interstate freeway system or in or upon grounds, buildings or other improvements owned by a county and designated for stadium or airport purposes and appurtenant uses. A 1st class city's immunity from liability in providing or failing to provide police services upon the freeway system or in or upon such grounds, buildings or other improvements shall be as provided under s. 893.80 (6)
Claim therefor must be filed within 6 months thereafter. Such claim may be allowed in whole or in part, as other claims, and procedure to enforce shall be as for other claims.
The city or county may recover all such claims and costs paid by it, against any and all persons engaged in inflicting the injury.
No person shall recover hereunder when the injury was occasioned or in any manner aided, sanctioned, or permitted by that person or caused by that person's negligence, nor unless that person shall have used all reasonable diligence to prevent the same, and shall have immediately notified the mayor or sheriff after being apprised of any threat of or attempt at such injury. Every mayor or sheriff receiving such notice shall take all legal means to prevent injury, and if that officer shall refuse or neglect to do so, the party injured may elect to hold that officer liable by bringing action against that officer within 6 months of the injury.
This section shall not apply to property damage to houses of ill fame when the owner has notice that they are used as such.
History: 1979 c. 34
; 1981 c. 314
; 1991 a. 316
; 1999 a. 150
; Stats. 1999 s. 893.81.
This section does not render a city a wrongdoer, since liability is imposed without fault, and an insurer who has paid for riot damage cannot recover on a theory of subrogation. Interstate Fire & Cas. Co. v. Milwaukee, 45 Wis. 2d 331
, 173 N.W.2d 187
An insurer cannot recover against a city for money paid out for mob damage on a subrogation theory. American Insurance Co. v. Milwaukee, 51 Wis. 2d 346
, 187 N.W.2d 142
Liability for riot damages; subrogation against municipalities for riot damage claims. 1971 WLR 1236.
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 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)
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 time periods under subs. (3)
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.
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.
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).
Non-compliance 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 a 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 non-pending 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).
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 Ass'n 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).
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).
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
STATUTES OF LIMITATION; ACTIONS BY THE STATE, STATUTORY LIABILITY AND MISCELLANEOUS ACTIONS
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.
No claim under s. 49.25
, 1971 stats., may be presented more than 10 years after the date of the most recent old-age assistance payment covered by the claim.
History: 1977 c. 385
; 1979 c. 323
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]
Action concerning recovery of legal fees paid for indigents.
An action under s. 757.66
to recover an amount paid by a county for legal representation of an indigent defendant shall be commenced within 10 years after the recording of the claim required under s. 757.66
or be barred.
History: 1979 c. 323
; 1993 a. 301
General limitation of action in favor of the state.
Any action in favor of the state, if no other limitation is prescribed in this chapter, shall be commenced within 10 years after the cause of action accrues or be barred. No cause of action in favor of the state for relief on the ground of fraud shall be deemed to have accrued until discovery on the part of the state of the facts constituting the fraud.