893.80 Annotation
Service of notice of a claim on an agency of a county met the jurisdictional prerequisite of sub. (1) (b). Finken v. Milwaukee County,
120 Wis. 2d 69,
353 N.W.2d 827 (Ct. App. 1984).
893.80 Annotation
A claim for a specific amount of money damages satisfied the sub. (1) (b) requirement of an "itemized statement of relief sought." Figgs v. City of Milwaukee,
121 Wis. 2d 44,
357 N.W.2d 548 (1984).
893.80 Annotation
Although a decision to release a patient from a mental health complex was quasi-judicial and protected under sub. (4), the medical examination and diagnosis that formed the basis for the decision to release were not. Gordon v. Milwaukee County,
125 Wis. 2d 62,
370 N.W.2d 803 (Ct. App. 1985).
893.80 Annotation
When a claim was not disallowed in writing and the claimant did not wait 120 days after presentation before filing a lawsuit, the statute of limitations was not tolled. Schwetz v. Employers Insurance of Wausau,
126 Wis. 2d 32,
374 N.W.2d 241 (Ct. App. 1985).
893.80 Annotation
Neither statutory nor traditional common law immunity protects a public body from a properly pleaded private nuisance claim. Hillcrest Golf & Country Cub v. City of Altoona,
135 Wis. 2d 431,
400 N.W.2d 493 (Ct. App. 1986).
893.80 Annotation
An injured party and subrogee may not recover separately up to the liability limit under sub. (3). Wilmot v. Racine County,
136 Wis. 2d 57,
400 N.W.2d 917 (1987).
893.80 Annotation
Recovery limitations applicable to an insured municipality are likewise applied to the insurer, notwithstanding higher policy limits and s. 632.24. Gonzalez v. City of Franklin,
137 Wis. 2d 109,
403 N.W.2d 747 (1987).
893.80 Annotation
When 3 municipalities formed one volunteer fire department under ch. 60, liability under sub. (3) was limited to $50,000, not 3 times that amount. Selzler v. Dresser, Osceola, Garfield Fire Dept.
141 Wis. 2d 465,
415 N.W.2d 546 (Ct. App. 1987).
893.80 Annotation
A parole officer did not breach a ministerial duty by allowing a parolee to drive. C. L. v. Olson,
143 Wis. 2d 701,
422 N.W.2d 614 (1988).
893.80 Annotation
Each of 3 children damaged by a county's negligence in the treatment of their mother was entitled to recover the $50,000 maximum under sub. (3). Boles v. Milwaukee,
150 Wis. 2d 801,
443 N.W.2d 679 (Ct. App. 1989).
893.80 Annotation
The sub. (4) immunity provision does not apply to breach of contract suits. Energy Complexes v. Eau Claire County,
152 Wis. 2d 453,
449 N.W.2d 35 (1989).
893.80 Annotation
If a claim is filed and the affected body does not serve a notice of disallowance, the 6 month limitation period in (1) (b) [now sub. (1g)] is not triggered. Lindstrom v. Christianson,
161 Wis. 2d 635,
469 N.W.2d 189 (Ct. App. 1991).
893.80 Annotation
Governmental immunity attaches to a police officer's actions in executing an arrest. "Quasi judicial and quasi-legislative" under sub. (4) are synonymous with "discretionary," but immunity does not attach merely because the conduct involves discretion. The question is whether the decision involved the type of judgment and discretion that rises to governmental discretion, as opposed to professional or technical judgment and discretion. Sheridan v. City of Janesville,
164 Wis. 2d 420,
474 N.W.2d 799 (Ct. App. 1991).
893.80 Annotation
Discretionary act immunity under s. 893.80 is inapplicable to s. 345.05 claims of municipal liability for motor vehicle accidents. Frostman v. State Farm Mut. Ins. Co.
171 Wis. 2d 138,
491 N.W.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 6-month statute of limitations under sub. (1) (b) [now sub. (1g)] . Humphrey v. Elk Creek Lake Protection,
172 Wis. 2d 397,
493 N.W.2d 270 (Ct. App. 1992).
893.80 Annotation
Once the 120 day period under sub. (1) (b) [now sub. (1g)] has run, a municipality may not revive the 6-month limitation period by giving notice of disallowance. Blackbourn v. Onalaska School Dist.
174 Wis. 2d 496,
497 N.W.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 Wis. 2d 571,
497 N.W.2d 465 (Ct. App. 1993).
893.80 Annotation
A paramedic has a ministerial duty to attempt a rescue at a life threatening situation; thus there is no immunity under sub. (4). Linville v. City of Janesville,
174 Wis. 2d 571,
497 N.W.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 Associates v. City of Greenfield,
180 Wis. 2d 254,
509 N.W.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 employee's reliance on a school district employee'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 Wis. 2d 336,
515 N.W.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) is discussed. DNR v. City of Waukesha,
184 Wis. 2d 178,
515 N.W.2d 888 (1994).
893.80 Annotation
A police 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 that has adopted a policy that complies with s. 346.03 (6) is immune from liability for injuries resulting from a high speed chase. Estate of Cavanaugh v. Andrade,
191 Wis. 2d 244,
528 N.W.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 Wis. 2d 586,
530 N.W.2d 16 (Ct. App. 1995).
893.80 Annotation
An independent contractor is not an agent under sub. (3) and is not protected by the liability limits under this section. Kettner v. Wausau Insurance Cos.
191 Wis. 2d 724,
530 N.W.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 Wis. 2d 277,
531 N.W.2d 357 (Ct. App. 1995).
893.80 Annotation
When an action was mandatory under a city ordinance, but permissive under state statutes, the action was mandatory and therefore ministerial and not subject to immunity under sub. (4). Turner v. City of Milwaukee,
193 Wis. 2d 412,
535 N.W.2d 15 (Ct. App. 1995).
893.80 Annotation
The general rule is that a public employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual's public office. Barillari v. City of Milwaukee,
194 Wis. 2d 247,
533 N.W.2d 759 (1995).
893.80 Annotation
A statement by a police officer that an action will be taken does not render that action ministerial. Failure to carry out the action does not remove the immunity granted by this section. Barillari v. City of Milwaukee,
194 Wis. 2d 247,
533 N.W.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 Wis. 2d 939,
539 N.W.2d 472 (Ct. App. 1995),
95-1351.
893.80 Annotation
Actions brought under the open meetings and public records laws are exempt from the notice provisions of sub. (1). Auchinleck v. Town of LaGrange,
200 Wis. 2d 585,
547 N.W.2d 587 (1996),
94-2809.
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 Wis. 2d 737,
547 N.W.2d 778 (Ct. App. 1996),
95-0185.
893.80 Annotation
A suit filed prior to the expiration of the 120-day period or denial of the claim is not truly commenced and does not toll the statute of limitations when filed. Colby v. Columbia County,
202 Wis. 2d 342,
550 N.W.2d 124 (1996),
93-3348.
893.80 Annotation
The interplay between ss. 893.23 and 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 Wis. 2d 342,
550 N.W.2d 124 (1996),
93-3348.
893.80 Annotation
Service of a disallowance of claim on a claimant's attorney does not meet the statutory requirement of service on the claimant. When there was never proper service under the statute, the general 3-year statute of limitations for personal injuries applied. Cary v. City of Madison,
203 Wis. 2d 261,
551 N.W.2d 596 (Ct. App. 1996).
893.80 Annotation
Class action procedure under s. 803.08 does not override the notice requirements of this section. Notice on behalf of named persons and others "similarly situated" does not satisfy the notice requirement for the unnamed persons. For the government entity to have actual knowledge it must have knowledge of the event for which liability is asserted, and also the identity of and damage alleged to have been suffered by the potential claimant.. Nothing in sub. (1p) makes the notice requirements inapplicable to claims under that subsection. Markweise v. Peck Foods Corp.
205 Wis. 2d 208,
556 N.W.2d 326 (Ct. App. 1996).
893.80 Annotation
Allowing the continuation of a "known present danger" is an exception to governmental immunity. To apply, the danger must be so clear and absolute that taking corrective action falls within the definition of a ministerial duty. Expert testimony of dangerousness is not sufficient to establish a "known present danger." Bauder v. Delevan-Darien School District,
207 Wis. 2d 312,
558 N.W.2d 881 (Ct. App. 1996).
893.80 Annotation
The immunity provisions of sub.(4), like the notice and claim provisions of sub. (1), are not limited to tort or money damage actions. Johnson v. City of Edgerton,
207 Wis. 2d 345,
558 N.W.2d 653 (Ct. App. 1996).
893.80 Annotation
Governmental immunity extends to private parties who act under directives from government authorities. Estate of Lyons v. CNA Insurance Cos.
207 Wis. 2d 448,
558 N.W.2d 658 (Ct. App. 1996).
893.80 Annotation
The damage limitation under sub. (3) is not an affirmative defense and may not be waived by omission, although it may be expressly waived. Discretionary immunity under sub. (4) is an affirmative defense and may be waived by omission. Anderson v. City of Milwaukee,
208 Wis. 2d 18,
559 N.W.2d 563 (1997).
893.80 Annotation
The filing of a federal lawsuit, subsequently dismissed, did not satisfy the notice and claim requirements of sub. (1) (b). Probst v. Winnebago County,
208 Wis. 2d 280,
560 N.W.2d 291 (Ct. App. 1997).
893.80 Annotation
Appeals of special assessments brought under s. 66.60 (12) (a) [now s. 66.0703 (12)] are exempt from the notice provisions of sub. (1). Gamroth v. Village of Jackson,
215 Wis. 2d 250,
571 N.W.2d 917 (Ct. App. 1997).
893.80 Annotation
For purposes of immunity under sub. (4), fulfilling the duties under the safe place statute is discretionary. Spencer v. County of Brown,
215 Wis. 2d 635,
573 N.W.2d 222 (Ct. App. 1997)
893.80 Annotation
Compliance with sub. (1) (b) is a prerequisite to all actions against listed entities, whether sounding in tort or not, and whether brought as an initial claim, counterclaim, or cross-claim. City of Racine v. Waste Facility Siting Board,
216 Wis. 2d 616 575 N.W.2d 712 (1998).
893.80 Annotation
Filing a notice of claim under sub. (1) (b) is not required when an injunction of a public nuisance is sought under s. 30.294, whether or not the injunction will be directed against the municipality. Gillen v. City of Neenah,
219 Wis. 2d 807,
580 N.W.2d 628 (1998).
893.80 Annotation
Lyons adopted a form of governmental contractor immunity applicable to parties who contract with municipal and state authorities and who are directed to perform certain tasks under the contract. That immunity extends to the contractor's subcontractors. Jankee v. Clark County,
222 Wis. 2d 151,
585 N.W.2d 913 (Ct. App. 1998).
893.80 Annotation
Sub. (1m) as amended in 1986 cannot be applied retroactively. Snopek v. Lakeland Medical Center,
223 Wis. 2d 288,
588 N.W.2d 19 (1999).
893.80 Annotation
A town contesting an annexation under sub. (10) is not required to file a notice of claim under s. 893.80 against the annexing municipality. Town of Burke v. City of Madison,
225 Wis. 2d 615,
593 N.W.2d 822 (Ct. App. 1999).
893.80 Annotation
Alleging an ongoing course of conduct without identifying a specific circumstance or example of that conduct that occurred within 120 days of the notice of claim does not satisfy the requirements of sub. (1) (a). Probst v. Winnebago County,
225 Wis. 2d 753,
593 N.W.2d 478 (Ct. App. 1999).
893.80 Annotation
This section does not apply to certiorari actions under s. 59.694 (10). Kapischke v. County of Walworth,
226 Wis. 2d 320,
595 N.W.2d 42 (Ct. App. 1999).
893.80 Annotation
A public officer is clothed in immunity when that officer applies statutes to a given set of facts. An unambiguous statute, negligently applied, that does not direct how to act in any manner does not create a ministerial duty that is not sheltered by immunity. Kierstyn v. Racine Unified School District,
228 Wis. 2d 81,
596 N.W.2d 417 (1999).
893.80 Annotation
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.
893.80 Annotation
The notice provisions of this section do not apply to 3rd-party complaints for contribution. Dixson v. Wisconsin Health Organization Insurance Corporation, 2000 WI 95,
237 Wis. 2d 149,
612 N.W.2d 721.
893.80 Annotation
A governmental employee may have a ministerial duty to take some action, although how that act is performed is discretionary. Rolland v. County of Milwaukee, 2001 WI App 53,
241 Wis. 2d 215,
625 N.W.2d 590.
893.80 Annotation
Subsection (1g) is constitutional. There is a rational basis for restricting the opportunity to bring suit to 6 months for claimants who have been served with a notice of disallowance and to 3 years when claimants have not been served. That there are different time periods does not violate equal protection guarantees. Griffin v. Milwaukee Transport Services, Inc. 2001 WI App 125,
246 Wis. 2d 433,
630 N.W.2d 536.
893.80 Annotation
Sovereign immunity from suit can only be waived by express language. Consent to suit may not be implied. Anhalt v. City of Sheboygan, 2001 WI App 271,
249 Wis. 2d 62,
637 N.W.2d 422.
893.80 Annotation
The existence of a known present danger should not turn on the subjective impressions of a citizen-witness. A public officer's duty to act becomes absolute when the nature of the danger is compelling and known to the officer and is of such force that the officer has no discretion not to act. Hoskins v. Dodge County, 2002 WI App 40,
251 Wis. 2d 276,
642 N.W.2d 213.
893.80 Annotation
A proper application of the known danger exception to public officer immunity begins with the assumption that the officer was negligent in failing to perform, or in inadequately performing the act in question. To pierce immunity the circumstances must have been sufficiently dangerous so as to give rise to a ministerial duty not just to act generally but to perform the particular act upon which liability is premised. Lodl v. Progressive Northern Insurance Company, 2002 WI 71,
253 Wis. 2d 323,
646 N.W.2d 314.
893.80 Annotation
Nothing in Cords suggests that a ministerial duty is placed on the government to protect the public from every manifest danger. The Cords known and present danger exception to sub. (4) immunity did not apply to a pipe that was used as a footbridge over a creek when the public was not invited to so use it, a sidewalk was provided to cross the creek not far from the pipe, and the use as a footbridge presented an obvious danger. Caraher v. City of Menomonie, 2002 WI App 184,
256 Wis. 2d 605,
649 N.W.2d 184.
893.80 Annotation
The analysis of immunity under sub. (4) assumes negligence. The existence of a form clearly and unambiguously detailing information requested of a high school guidance counselor did not transform the counselor's counseling obligations into a ministerial act. His failure to provide correct advice in the face of clear and unambiguous information goes to his negligence, not the nature of his duty. Scott v. Savers Property & Casualty Insurance Co. 2003 WI 60,
262 Wis. 2d 127,
663 N.W.2d 715,
01-2953.
893.80 Annotation
Sub. (1) does not apply to appeals of condemnation awards under s. 32.05 (11). Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122,
265 Wis. 2d 422,
665 N.W.2d 379,
02-2212.
893.80 Annotation
Any fire department created pursuant to s. 60.55, whether formed under ch. 181 or 213, is a government subdivision or agency entitled to immunity under sub. (4). Mellenthin v. Berger, 2003 WI App 126,
265 Wis. 2d 575,
666 N.W.2d 120,
02-2524.
893.80 Annotation
A city has no immunity for its creation of a nuisance. Further, a nuisance may be proved by a showing of negligent conduct. While a cause of action alleging negligence is immunized, a nuisance created by negligent conduct is not protected by this section. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2003 WI App 209,
267 Wis. 2d 688,
671 N.W.2d 346,
02-2961.
893.80 Annotation
Liability of vocational, technical, and adult education 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
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 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
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.
893.81(1)(1) 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).
893.81(2)
(2) 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.
893.81(3)
(3) The city or county may recover all such claims and costs paid by it, against any and all persons engaged in inflicting the injury.
893.81(4)
(4) 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.
893.81(5)
(5) This section shall not apply to property damage to houses of ill fame when the owner has notice that they are used as such.
893.81 History
History: 1979 c. 34;
1981 c. 314 s.
146;
1991 a. 316;
1999 a. 150 s.
259; Stats. 1999 s. 893.81.
