893.735 Annotation
That out-of-state inmates have a longer filing deadline for challenging parole revocation under Frohwirth does not violate the constitutional grantee of equal protection. State ex rel. Saffold v. Schwarz, 2001 WI App 56,
241 Wis. 2d 253,
625 N.W.2d 333.
893.735 Annotation
A verified petition, being a sworn statement, that was unchallenged by the state was sufficient to establish the number of days between the date of the challenged decision and the prisoner's receipt of it. There were no circumstances justifying not extending the 45-day limit pursuant to sub. (2). State ex rel. Johnson v. Litscher, 2001 WI App 47,
241 Wis. 2d 407,
625 N.W.2d 887.
893.735 Annotation
The statute of limitations is tolled while a prisoner waits for the department of justice to provide the certification required by ss. 801.02 (7) (d) and 802.05 (3) (c). State ex rel. Locklear v. Schwarz, 2001 WI App 74,
242 Wis. 2d 327,
629 N.W.2d 30.
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. 66.0413 (1) (h) 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. 66.0413 (1) (b) or be barred.
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. 30.13 (5m) (c) 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. 30.13 (5m) (a) or be barred.
893.765 History
History: 1981 c. 252;
1999 a. 150 ss.
669,
672;
2001 a. 30 s.
108.
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 EMPLOYEES
893.80
893.80
Claims against governmental bodies or officers, agents or employees; 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 employee 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 employee 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 employee; 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 employee, 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 employees 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 employees. 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 employees. 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 employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees 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 employee 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 employee 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 employees 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 employee 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 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 spouse's action for loss of consortium is separate and has a separate dollar limitation from the injured spouse's claim for damages. Schwartz v. Milwaukee,
54 Wis. 2d 286,
195 N.W.2d 480.
893.80 Annotation
Sub. (3) [now (4)] establishes municipal immunity from actions for the intentional torts of its employees, and assault and battery constitutes an intentional tort. Sub. (3) [now (4)] also precludes suit against a municipality for the alleged failure of its police and fire commission to act to remove an officer, since that is a quasi-judicial function. Salerno v. Racine,
62 Wis. 2d 243,
214 N.W.2d 446 (1972).
893.80 Annotation
When a policy contained no language precluding the insurer from raising the limited liability defense, the $25,000 limitation was not waived. Sambs v. Brookfield,
66 Wis. 2d 296,
224 N.W.2d 582 (1974).
893.80 Annotation
A 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 intentional torts for which the municipality was immune from direct action under (3) [now (4)]. Baranowski v. Milwaukee,
70 Wis. 2d 684,
235 N.W.2d 279 (1975).
893.80 Annotation
Compliance with a 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 Wis. 2d 492,
241 N.W.2d 428 (1972).
893.80 Annotation
The requirements that a claim be first presented to a school district and disallowed and that suit be must commenced within 6 months of disallowance do not deny equal protection. Binder v. Madison,
72 Wis. 2d 613,
241 N.W.2d 613 (1976).
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 s. 101.14 does not involve a quasi-judicial function within the meaning of s. 895.43 (3) [now 893.80 (4)]. Coffey v. Milwaukee,
74 Wis. 2d 526,
247 N.W.2d 132 (1976).
893.80 Annotation
Under sub. (1), the plaintiff has the burden of proving the giving of notice, or actual notice, and the nonexistence of prejudice, but need not allege the same in the complaint. A city is required to plead lack of compliance with the statute as a defense. Weiss v. Milwaukee,
79 Wis. 2d 213,
255 N.W.2d 496 (1977).
893.80 Annotation
The doctrine of municipal tort immunity was applied to relieve a political subdivisions from liability for negligence when an automobile collision occurred due to the use of a sewer by a truck. Allstate Insurance Co. v. Milwaukee Metropolitan Sewerage Commission
80 Wis. 2d 10,
258 N.W.2d 148 (1977).
893.80 Annotation
A park manager of a state-owned recreational area who knew that a publicly used trail was inches away from a 90-foot gorge and that the terrain was dangerous breached a ministerial duty in failing to either place warning signs or advise superiors of the condition and was liable for injuries to the plaintiffs who fell into the gorge. Cords v. Anderson,
80 Wis. 2d 525,
259 N.W.2d 672 (1977).
893.80 Annotation
A breach of a ministerial duty was inferred from the complaint's allegations that the defendant state employees who set up a detour route on which the plaintiff was injured failed to follow national traffic standards, place appropriate signs, and safely construct a temporary road. Pavlik v. Kinsey,
81 Wis. 2d 42,
259 N.W.2d 709 (1977).
893.80 Annotation
An insurance policy was construed to waive recovery limitations under ss. 81.15 and 895.43, 1971 stats. Stanhope v. Brown County,
90 Wis. 2d 823,
280 N.W.2d 711 (1979).
893.80 Annotation
Section 118.20 is not the exclusive remedy of a wronged teacher. It is supplementary to the remedy under the fair employment act. General provisions of s. 893.80 are superseded by specific authority of that act. Kurtz v. City of Waukesha,
91 Wis. 2d 103,
280 N.W.2d 757 (1979).
893.80 Annotation
"Quasi-judicial" or "quasi-legislative" acts are synonymous with "discretionary" acts. Scarpaci v. Milwaukee County,
96 Wis. 2d 663,
292 N.W.2d 816 (1980).
893.80 Annotation
Recovery limitations under ss. 81.15 and 895.43 (2), 1965 stats., are constitutional. Sambs v. City of Brookfield,
97 Wis. 2d 356,
293 N.W.2d 504 (1980).
893.80 Annotation
A city was liable for the negligent acts of its employees, even though the employees were immune from liability. Maynard v. City of Madison,
101 Wis. 2d 273,
304 N.W.2d 163 (Ct. App. 1981).
893.80 Annotation
This section cannot limit damage awards under 42 USC 1983. The court erred in reducing an attorney fees award. Thompson v. Village of Hales Corners,
115 Wis. 2d 289,
340 N.W.2d 704 (1983).
893.80 Annotation
A sheriff's dispatcher breached a ministerial duty by failing to have a fallen tree removed from a road. Domino v. Walworth County,
118 Wis. 2d 488,
347 N.W.2d 917 (Ct. App. 1984).
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) 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). 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) has run a municipality may not revive the 6-month period of limitation 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).
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).
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).
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).
