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).
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 W (2d) 312, 558 NW (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 W (2d) 345, 558 NW (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 W (2d) 448, 558 NW (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 W (2d) 18, 559 NW (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 W (2d) 280, 560 NW (2d) 291 (Ct. App. 1997).
893.80 Annotation
Appeals brought under s. 66.60 (12) (a) are exempt from the notice provisions of sub. (1). Gamroth v. Village of Jackson, 215 W (2d) 250, 571 NW (2d) 917 (Ct. App. 1997).
893.80 Annotation
Sub. (1m) is procedural, rather than a substantive statute of limitations, and as such its application is retroactive. Snopek v. Lakeland Medical Center, 215 W (2d) 537, 573 NW (2d) 213 (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 W (2d) 635, 573 NW (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 W (2d) 616 575 NW (2d) 712 (1998).
893.80 Annotation
Filing a notice of claim under sub. (1) (b) is not required where an injunction is sought under s. 30.924, whether or not the sought after injunction will be directed against the municipality. Gillen v. City of Neenah, 219 W (2d) 807, 580 NW (2d) 628 (1998).
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. 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)(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]
893.82 Annotation
Court had no jurisdiction over state employes alleged to have intentionally damaged plaintiff where complaint failed to comply with notice of claim statute. Elm Park Iowa, Inc. v. Denniston, 92 W (2d) 723, 286 NW (2d) 5 (Ct. App. 1979).
893.82 Annotation
Notice provisions of this section do not apply to third-party complaints for contribution. Coulson v. Larsen, 94 W (2d) 56, 287 NW (2d) 754 (1980).
893.82 Annotation
Non-compliance with notice of injury statute barred suit even though defendant failed to raise issue in responsive pleading. Mannino v. Davenport, 99 W (2d) 602, 299 NW (2d) 823 (1981).
893.82 Annotation
Plaintiff was required to serve notice on attorney general as condition precedent to bringing claim. Doe v. Ellis, 103 W (2d) 581, 309 NW (2d) 375 (Ct. App. 1981).
893.82 Annotation
Court properly granted defendant's motion to dismiss since notice of claim of injury was not served upon attorney general within 120 day limit. Ibrahim v. Samore, 118 W (2d) 720, 348 NW (2d) 554 (1984).
893.82 Annotation
Substantial compliance with requirements for content of notice under (3) is sufficient to meet legislative intent. Daily v. Wis. University, Whitewater, 145 W (2d) 756, 429 NW (2d) 83 (Ct. App. 1988).
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 W (2d) 885, 447 NW (2d) 97 (Ct. App. 1989).
893.82 Annotation
Under administrative-services-only state group insurance contract, insurer is agent of state, and plaintiff must comply with notice provisions under this section to maintain action. Smith v. Wisconsin Physicians Services, 152 W (2d) 25, 447 NW (2d) 371 (Ct. App. 1989).
893.82 Annotation
Possible finding that state employe was acting as apparent agent of non-state hospital does not permit maintenance of suit against state employe absent compliance with notice requirements. Kashishian v. Port, 167 W (2d) 24, 481 NW (2d) 227 (1992).
893.82 Annotation
Actual notice and lack of prejudice to the state are not exceptions to 120 day notice requirement. Carlson v. Pepin County 167 W (2d) 345, 481 NW (2d) 498 (Ct. App. 1992).
893.82 Annotation
Certified mail requirement under (5) is subject to strict construction. Kelley v. Reyes, 168 W (2d) 743, 484 NW (2d) 388 (Ct. App. 1992).
893.82 Annotation
Records relating to pending claims need not be disclosed under 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 W (2d) 573, 485 NW (2d) 460 (Ct. App. 1992).
893.82 Annotation
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan, 188 W (2d) 157, 524 NW (2d) 630 (1994).
893.82 Annotation
Sub. (5) requires a notice of claim to be sworn to and to include evidence to show that an oath or affirmation occurred. Kellner v. Christian, 197 W (2d) 183, 539 NW (2d) 685 (1994).
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 W (2d) 891, 541 NW (2d) 229 (Ct. App. 1995).
893.82 Annotation
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. Employe Trust Funds Board, 207 W (2d) 1, 558 NW (2d) 83 (1997).
STATUTES OF LIMITATION; ACTIONS BY THE STATE, STATUTORY LIABILITY AND MISCELLANEOUS ACTIONS
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(2)
(2) 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.
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
893.86
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.
893.86 History
History: 1979 c. 323;
1993 a. 301.
893.87
893.87
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.
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
See note to 893.43, citing State v. Holland Plastics Co. 111 W (2d) 497, 331 NW (2d) 320 (1983).
