893.735 History
History: 1997 a. 133.
893.74
893.74
School district; contesting validity. No appeal or other action attacking the legality of the formation of a school district, either directly or indirectly, may be commenced after the school district has exercised the rights and privileges of a school district for a period of 90 days.
893.74 History
History: 1979 c. 323.
893.74 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action attacking the legality of a formation of a school district (see note following s. 117.01 (7)). [Bill 326-A]
893.75
893.75
Limitation of action attacking municipal contracts. Whenever the proper officers of any city, village or town, however incorporated, enter into any contract in manner and form as prescribed by statute, and either party to the contract has procured or furnished materials or expended money under the terms of the contract, no action or proceedings may be maintained to test the validity of the contract unless the action or proceeding is commenced within 60 days after the date of the signing of the contract.
893.75 History
History: 1979 c. 323;
1993 a. 246.
893.75 Note
Judicial Council Committee's Note, 1979: This action has been created to place into ch. 893 the statute of limitation for an action contesting the validity in a contract entered into by a city or village (see note following s. 66.13). [Bill 326-A]
893.76
893.76
Order to repair or remove building or restore site; contesting. An application under
s. 66.05 (3) to a circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing a building or part of a building and restoring a site to a dust-free and erosion-free condition shall be made within 30 days after service of the order issued under
s. 66.05 (1m) [66.05 (1)] or be barred.
893.76 Note
NOTE: The bracketed language indicates the correct cross-reference.
893.76 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an application for an order restraining the razing or removing of a building (see note following s. 66.05 (3)). [Bill 326-A]
893.765
893.765
Order to remove wharves or piers in navigable waters; contesting. An application under
s. 66.0495 (3) to circuit court for a restraining order prohibiting the removal of a wharf or pier shall be made within 30 days after service of the order issued under
s. 66.0495 (1) or be barred.
893.765 History
History: 1981 c. 252.
893.77
893.77
Validity of municipal obligation. 893.77(1)
(1) An action to contest the validity of any municipal obligation which has been certified by an attorney in the manner provided in
s. 67.025, for other than constitutional reasons, must be commenced within 30 days after the recording of such certificate as provided by
s. 67.025. An action to contest the validity of any state or state authority obligation for other than constitutional reasons must be commenced within 30 days after the adoption of the authorizing resolution for such obligation.
893.77(2)
(2) An action or proceeding to contest the validity of any municipal bond or other financing, other than an obligation certified as described in
sub. (1), for other than constitutional reasons, must be commenced within 30 days after the date on which the issuer publishes in the issuer's official newspaper, or, if none exists, in a newspaper having general circulation within the issuer's boundaries, a class 1 notice, under
ch. 985, authorized by the governing body of the issuer, and setting forth the name of the issuer, that the notice is given under this section, the amount of the bond issue or other financing and the anticipated date of closing of the bond or other financing and that a copy of proceedings had to date of the notice are on file and available for inspection in a designated office of the issuer. The notice may not be published until after the issuer has entered into a contract for sale of the bond or other financing.
893.77(3)
(3) An action contesting bonds of a municipal power district organized under
ch. 198, for other than constitutional reasons, shall be commenced within 30 days after the date of their issuance or be barred.
893.77 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.23 renumbered for more logical placement in the restructured chapter. Section 893.77 (3) is created to place into ch. 893 of the statutes the statute of limitations for an action contesting the bonds of a municipal power district (see note following s. 198.18 (3)). [Bill 326-A]
CLAIMS AGAINST GOVERNMENTAL BODIES, OFFICERS AND EMPLOYES
893.80
893.80
Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits. 893.80(1)(1) Except as provided in
subs. (1g),
(1m),
(1p) and
(8), no action may be brought or maintained against any volunteer fire company organized under
ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
893.80(1)(a)
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under
s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employe; and
893.80(1)(b)
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant fire company, corporation, subdivision or agency and the claim is disallowed.
893.80(1g)
(1g) Notice of disallowance of the claim submitted under
sub. (1) shall be served on the claimant by registered or certified mail and the receipt therefor, signed by the claimant, or the returned registered letter, shall be proof of service. Failure of the appropriate body to disallow a claim within 120 days after presentation of the written notice of the claim is a disallowance. No action on a claim under this section against any defendant fire company, corporation, subdivision or agency nor against any defendant officer, official, agent or employe, may be brought after 6 months from the date of service of the notice of disallowance, and the notice of disallowance shall contain a statement to that effect.
893.80(1m)
(1m) With regard to a claim to recover damages for medical malpractice, the time period under
sub. (1) (a) 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 happening of the event giving rise to the claim.
893.80(1p)
(1p) No action may be brought or maintained with regard to a claim to recover damages against any political corporation, governmental subdivision or agency thereof for the negligent inspection of any property, premises, place of employment or construction site for the violation of any statute, rule, ordinance or health and safety code unless the alleged negligent act or omission occurred after November 30, 1976. In any such action, the time period under
sub. (1) (a) shall be one year after discovery of the negligent act or omission or the date on which, in the exercise of reasonable diligence the negligent act or omission should have been discovered.
893.80(1t)
(1t) Only one action for property damage may be brought under
sub. (1p) by 2 or more joint tenants of a single-family dwelling.
893.80(2)
(2) The claimant may accept payment of a portion of the claim without waiving the right to recover the balance. No interest may be recovered on any portion of a claim after an order is drawn and made available to the claimant. If in an action the claimant recovers a greater sum than was allowed, the claimant shall recover costs, otherwise the defendant shall recover costs.
893.80(3)
(3) Except as provided in this subsection, the amount recoverable by any person for any damages, injuries or death in any action founded on tort against any volunteer fire company organized under
ch. 181 or
213, political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000. The amount recoverable under this subsection shall not exceed $25,000 in any such action against a volunteer fire company organized under
ch. 181 or
213 or its officers, officials, agents or employes. If a volunteer fire company organized under
ch. 181 or
213 is part of a combined fire department, the $25,000 limit still applies to actions against the volunteer fire company or its officers, officials, agents or employes. No punitive damages may be allowed or recoverable in any such action under this subsection.
893.80(4)
(4) No suit may be brought against any volunteer fire company organized under
ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
893.80(5)
(5) Except as provided in this subsection, the provisions and limitations of this section shall be exclusive and shall apply to all claims against a volunteer fire company organized under
ch. 213, political corporation, governmental subdivision or agency or against any officer, official, agent or employe thereof for acts done in an official capacity or the course of his or her agency or employment. When rights or remedies are provided by any other statute against any political corporation, governmental subdivision or agency or any officer, official, agent or employe thereof for injury, damage or death, such statute shall apply and the limitations in
sub. (3) shall be inapplicable.
893.80(6)
(6) A 1st class city, its officers, officials, agents or employes shall not be liable for any claim for damages to person or property arising out of any act or omission in providing or failing to provide police services upon the interstate freeway system or in or upon any grounds, building or other improvement owned by a county and designated for stadium or airport purposes and appurtenant uses.
893.80(7)
(7) No suit may be brought against any city, town or village or any governmental subdivision or agency thereof or against any officer, official, agent or employe of any of those entities who, in good faith, acts or fails to act to provide a notice to a property owner that a public nuisance under
s. 823.113 (1) or
(1m) (b) exists.
893.80 History
History: Sup. Ct. Order, 67 W (2d) 585, 784 (1975);
1975 c. 218;
1977 c. 285,
447;
1979 c. 34;
1979 c. 323 s.
29; Stats. 1979 s. 893.80;
1981 c. 63;
1985 a. 340;
1987 a. 377;
1993 a. 139;
1995 a. 6,
158,
267;
1997 a. 27.
893.80 Note
Judicial Council Committee's Note, 1979: Previous s. 895.43 is renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.80 Annotation
A husband's action for loss of consortium is separate, has its own $25,000 limitation and is not to be reduced by his wife's negligence. Schwartz v. Milwaukee, 54 W (2d) 286, 195 NW (2d) 480.
893.80 Annotation
Sub. (3) [(4)] establishes municipal immunity against actions for intentional torts of its employes, and assault and battery constitutes an intentional tort. Sub. (3) [(4)] also precludes suit against municipality for alleged failure of police and fire commission to act in removing officer, since this is a quasi-judicial function. Salerno v. Racine, 62 W (2d) 243, 214 NW (2d) 446.
893.80 Annotation
Where the policy contained no language precluding the insurer from raising the limited liability defense, the $25,000 limitation was not waived. Sambs v. Brookfield, 66 W (2d) 296, 224 NW (2d) 582.
893.80 Annotation
Plaintiff's complaint alleging that 2 police officers who forcibly entered his home and physically abused him were negligent inter alia in failing to identify themselves and in using excessive force, in reality alleged causes of action in trespass and assault and battery—intentional torts for which the municipality was immune from direct action under (3) [(4)], hence, the trial court should have granted defendant's demurrer to the complaint. Baranowski v. Milwaukee, 70 W (2d) 684, 235 NW (2d) 279.
893.80 Annotation
Compliance with statute is a condition in fact requisite to liability, but is not a condition required for stating a cause of action. Rabe v. Outagamie County, 72 W (2d) 492, 241 NW (2d) 428.
893.80 Annotation
Requirements that claim be first presented to school district and disallowed and that suit be commenced within 6 months of disallowance do not deny equal protection. Binder v. Madison, 72 W (2d) 613, 241 NW (2d) 613.
893.80 Annotation
Any duty owed by a municipality to the general public is also owed to individual members of the public. Inspection of buildings for safety and fire prevention purposes under 101.14 does not involve a quasi-judicial function within meaning of 895.43 (3) [(4)]. Coffey v. Milwaukee, 74 W (2d) 526, 247 NW (2d) 132.
893.80 Annotation
Under (1), plaintiff has burden of proving the giving of notice, or actual notice and nonexistence of prejudice, but need not allege same in complaint. City is required to plead lack of compliance with statute as defense. See note to 81.15, citing Weiss v. Milwaukee, 79 W (2d) 213, 255 NW (2d) 496.
893.80 Annotation
Doctrine of municipal tort immunity applied to relieve political subdivisions from liability for negligence where automobile collision occurred due to use of sewer by truck. Allstate Ins. v. Metro. Sewerage Comm. 80 W (2d) 10, 258 NW (2d) 148.
893.80 Annotation
Park manager of state owned recreational area who knew that publicly used trail was inches away from 90-foot gorge and that terrain was dangerous, is liable for injuries to plaintiffs who fell into gorge, for breach of ministerial duty in failing to either place warning signs or advise superiors of condition. Cords v. Anderson, 80 W (2d) 525, 259 NW (2d) 672.
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) 586, 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
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
Service of a disallowance of claim on a claimant's attorney does not meet the statutory requirement of service on the claimant. Where there was never proper service under the statute, the general 3 year statute of limitations for personal injuries applies. Cary v. City of Madison, 203 W (2d) 261, 551 NW (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 not only knowledge of the event for which liability is asserted, but 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 W (2d) 207, 556 NW (2d) 326 (Ct. App. 1996).
