893.83 Note
NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.
893.83 Annotation
The plaintiff's oral notice to the chief of police, who said he would file a report, and direct contact and negotiation with the city's insurer, within 120 days, was sufficient compliance to sustain an action for damages against the city. Harte v. City of Eagle River,
45 Wis. 2d 513,
173 N.W.2d 683 (1972).
893.83 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 (1970).
893.83 Annotation
Shoveling snow from a sidewalk to create a mound along the curb does not create an unnatural or artificial accumulation that renders a city liable. Kobelinski v. Milwaukee & Suburban Transport Corp.
56 Wis. 2d 504,
202 N.W.2d 415 (1972).
893.83 Annotation
This section creates a secondary liability on a municipality or county for highway defects that cause damage only when the act or default of another tortfeasor also contributes to the creation of the defect. Dickens v. Kensmoe,
61 Wis. 2d 211,
212 N.W.2d 484 (1973).
893.83 Annotation
Ice resulting from improper drainage of runoff water is an artificial accumulation outside the 3-week limitation. An insurance policy did not waive the recovery limitation under this section. Sambs v. Brookfield,
66 Wis. 2d 296,
224 N.W.2d 582 (1974).
893.83 Annotation
City liability arising from snow and ice on sidewalks is determined under the standard of whether, under all the circumstances, the city was unreasonable in allowing the condition to continue. Circumstances to be considered include location, climactic conditions, accumulation, practicality of removal, traffic on the sidewalk, and intended use of the sidewalk by pedestrians. Schattschneider v. Milwaukee & Suburban Transport Corp.
72 Wis. 2d 252,
240 N.W.2d 182 (1976).
893.83 Annotation
The allegedly negligent placement of an arterial stop sign by a city does not constitute a highway defect within the meaning of this section. Weiss v. Milwaukee,
79 Wis. 2d 213,
255 N.W.2d 496 (1977).
893.83 Annotation
When the plaintiff fell due to a depression in a street enclosed as a temporary sidewalk, the city, not the indemnitor contractor, was primarily liable since the contractor did no excavation in the street and its enclosing of the street did not cause the defect. Webster v. Klug & Smith,
81 Wis. 2d 334,
260 N.W.2d 686 (1978).
893.83 Annotation
Failure to warn of a rubble pile beyond the dead end of a road was not actionable under this section. Foss v. Town of Kronenwetter,
87 Wis. 2d 91,
273 N.W.2d 801 (Ct. App. 1978).
893.83 Annotation
An insurance policy was construed to waive the recovery limitations this section. Stanhope v. Brown County,
90 Wis. 2d 823,
280 N.W.2d 711 (1979).
893.83 Annotation
Recovery limitations under this section are constitutional. Sambs v. City of Brookfield,
97 Wis. 2d 356,
293 N.W.2d 504 (1980).
893.83 Annotation
This section does not impose liability for failure to cut roadside vegetation. Estridge v. City of Eau Claire,
166 Wis. 2d 684,
480 N.W.2d 513 (Ct. App. 1991).
893.83 Annotation
Immunity under this section does not exist for injuries resulting from ice on a stairway connecting 2 sidewalks. Henderson v. Milwaukee County,
198 Wis. 2d 748,
543 N.W.2d 544 (Ct. App. 1995).
893.83 Annotation
If a plaintiff's injuries occurred by reason of insufficiency or want of repairs of any highway, a governmental entity is not afforded immunity under s. 893.80 (4). Morris v. Juneau County,
219 Wis. 2d 543,
579 N.W.2d 690 (1998).
893.83 Annotation
As used in this section, "highway" includes the shoulder of the highway. Morris v. Juneau County,
219 Wis. 2d 543,
579 N.W.2d 690 (1998).
893.83 Annotation
A person other than a municipality with any lability for a defect is primarily liable for the entire resulting judgment. If a contractor settles with the injured party for less than the amount of the ultimate award, the municipality is not liable for the balance. VanCleve v. City of Marinette, 2002 WI App 10,
250 Wis. 2d 121,
639 N.W.2d 792.
893.83 Annotation
Under this section, a municipality may not be held primarily liable, and there can be neither joint, nor primary, liability on the municipality's part if any other party has any liability. Municipal liability is successive and is only for the damages and costs that the party with primary liability is unable to pay. VanCleve v. City of Marinette, 2003 WI 2,
258 Wis. 2d 80,
655 N.W.2d 113,
01-0231.
893.83 Annotation
A municipality's liability is triggered only if execution has been issued against the party with primary liability and returned unsatisfied. By entering into a settlement and release with a defendant found by a jury to be liable, a plaintiff indirectly waives any right to hold the municipality secondarily liable because the release prevents taking a judgment against and executing upon the primarily liable defendant. VanCleve v. City of Marinette, 2003 WI 2,
258 Wis. 2d 80,
655 N.W.2d 113,
01-0231.
893.83 Annotation
A "highway" is an area that the entire community has free access to travel on. A public parking lot is available to the entire community for vehicular travel, and as such, a city's public parking lot is a "highway" for purposes of this section. Ellerman v. City of Manitowoc, 2003 WI App 216,
267 Wis. 2d 480,
671 N.W.2d 366,
03-0322.
893.83 Annotation
When an accumulation of ice is created by natural conditions a municipality has 3 weeks to address the problem. Actions based on artificial accumulations are actionable without the 3-week requirement. To be an artificial condition, grading must be part of a drainage design plan or be shown to divert water from other sources onto the sidewalks. If not, grading, by itself, does not create an artificial condition on land even if the municipality had notice that a hazardous condition existed. Gruber v. Village of North Fond du Lac, 2003 WI App 217,
267 Wis. 2d 368,
671 N.W.2d 692,
03-0537.
893.83 Annotation
The language that a highway that "any county by law or by agreement with any town, city or village is bound to keep in repair" does not apply when a county is obligated by contract with the state to maintain a state highway that was allegedly defective. Grinnell Mutual Reinsurance Co. v. State Farm Mutual Insurance Co., 2004 WI App 32,
269 Wis. 2d 873,
676 N.W.2d 573,
03-1415.
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
This section applies only if the action is of a type that does not fall under any other statute of limitations. State v. Holland Plastics Co.
111 Wis. 2d 497,
331 N.W.2d 320 (1983).
893.87 Annotation
When every day of violation of a statute constitutes a separate violation, a cause of action accrues on each day of an alleged violation. State v. Chrysler Outboard Corp.
219 Wis. 2d 130,
580 N.W.2d 203 (1998).
893.88
893.88
Paternity actions. Notwithstanding
s. 990.06, an action for the establishment of the paternity of a child shall be commenced within 19 years of the date of the birth of the child or be barred.
893.88 History
History: 1971 c. 21;
1979 c. 323,
352;
1979 c. 355 s.
225,
231;
1979 c. 357; Stats. 1979 s. 893.88;
1983 a. 447.
893.88 Annotation
This section did not revive a time-barred paternity action. In re Paternity of D. L. T.,
137 Wis. 2d 57,
403 N.W.2d 434 (1987).
893.88 Annotation
This section, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70,
261 Wis. 2d 723,
661 N.W.2d 869,
01-2189.
893.89
893.89
Action for injury resulting from improvements to real property. 893.89(1)(1) In this section, "exposure period" means the 10 years immediately following the date of substantial completion of the improvement to real property.
893.89(2)
(2) Except as provided in
sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
893.89(3)(a)(a) Except as provided in
pars. (b) and
(c), if a person sustains damages as the result of a deficiency or defect in an improvement to real property, and the statute of limitations applicable to the damages bars commencement of the cause of action before the end of the exposure period, the statute of limitations applicable to the damages applies.
893.89(3)(b)
(b) If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 8th year and ending on the last day of the 10th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for 3 years after the date on which the damages occurred.
893.89(3)(c)
(c) An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under
par. (b).
893.89(4)
(4) This section does not apply to any of the following:
893.89(4)(a)
(a) A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.
893.89(4)(b)
(b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
893.89(4)(c)
(c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.
893.89(4)(d)
(d) Damages that were sustained before April 29, 1994.
893.89(5)
(5) Except as provided in
sub. (4), this section applies to improvements to real property substantially completed before, on or after April 29, 1994.
893.89(6)
(6) This section does not affect the rights of any person under
ch. 102.
893.90
893.90
Bond; campaign financing; lobbying. 893.90(1)
(1) An action by the state or any of its departments or agencies or by any county, town, village, city, school district, technical college district or other municipal unit to recover any sum of money by reason of the breach of an official bond or the breach of a bond of any nature, whether required by law or not, given by a public officer or any agent or employee of a governmental unit shall be commenced within 3 years after the governmental unit receives knowledge of the fact that a default has occurred in some of the conditions of the bond and that it was damaged because of the default or be barred.
893.90(2)
(2) Any civil action arising under
ch. 11,
subch. III of ch. 13 or
subch. II of ch. 19 shall be commenced within 3 years after the cause of action accrues or be barred.
893.90 Note
Judicial Council Committee's Note, 1979: This section is previous ss. 893.20 and 893.205 (3) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.91
893.91
Action for expenses related to a forest fire. An action by a state or town under
s. 26.14 (9) (b) to recover expenses incurred in the suppression of a forest fire shall be commenced within 2 years of the setting of the fire or be barred.
893.91 History
History: 1979 c. 323.
893.91 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitation for an action to recover expenses related to fighting a forest fire. See the note following s. 26.14 (9) (b). [Bill 326-A]
893.92
893.92
Action for contribution. An action for contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be barred.
893.92 History
History: 1979 c. 323.
893.92 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.22 (4) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.925
893.925
Action for certain damages related to mining. 893.925(1)(1) A claim against the mining damage appropriation under
s. 107.31 to recover damages for mining-related injuries shall be brought within 3 years of the date on which the death occurs or the injury was or should have been known.
893.925(2)(a)(a) An action to recover damages for mining-related injuries under
s. 107.32 shall be brought within 3 years of the date on which the death or injury occurs unless the department of commerce gives written notice within the time specified in this subsection that a claim has been filed with it under
sub. (1), in which case an action based on the claim may be brought against the person to whom the notice is given within one year after the final resolution, including any appeal, of the claim or within the time specified in this subsection, whichever is longer.
893.925(2)(b)
(b) In this subsection "date of injury" means the date on which the evidence of injury, resulting from the act upon which the action is based, is sufficient to alert the injured party to the possibility of the injury. The injury need not be of such magnitude as to identify the causal factor.
893.925 History
History: 1979 c. 353 s.
7; Stats. 1979 s. 893.207;
1979 c. 355 s.
227; Stats. 1979 s. 893.925;
1995 a. 27 ss.
7214,
9116 (5).
893.93
893.93
Miscellaneous actions. 893.93(1)
(1) The following actions shall be commenced within 6 years after the cause of action accrues or be barred:
893.93(1)(a)
(a) An action upon a liability created by statute when a different limitation is not prescribed by law.
893.93(1)(b)
(b) An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.
893.93(1)(c)
(c) An action upon a claim, whether arising on contract or otherwise, against a decedent or against a decedent's estate, unless probate of the estate in this state is commenced within 6 years after the decedent's death.
893.93(2)
(2) The following actions shall be commenced within 2 years after the cause of action accrues or be barred:
893.93(2)(a)
(a) An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.
893.93(2)(b)
(b) An action to recover a forfeiture or penalty imposed by any bylaw, ordinance or regulation of any town, county, city or village or of any corporation or limited liability company organized under the laws of this state, when no other limitation is prescribed by law.
893.93(3)
(3) The following actions shall be commenced within one year after the cause of action accrues or be barred:
893.93(3)(a)
(a) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.
893.93(4)
(4) An action by a drainage board for damages under
s. 88.92 (2) shall be commenced within 3 years after the drainage board discovers the fact, or with the exercise of reasonable diligence should have discovered the fact of the damage, whichever comes first, or be barred.
893.93 History
History: 1979 c. 323;
1993 a. 98,
112,
456.
893.93 Note
Judicial Council Committee's Note, 1979: This section has been created to place in one location within restructured ch. 893 various miscellaneous statutes of limitation for easier reference and use. Sub. (1) (a) is previous s. 893.19 (4). Sub. (1) (b) is previous s. 893.19 (7). Sub. (1) (c) is previous s. 893.19 (9). Sub. (1) (d) is previous s. 893.19 (10). Sub. (2) (a) is previous s. 893.21 (1) with a comma placed after the word "penalty" in order to have the section accurately reflect the decision in Grengs v. 20th Century Fox Film Corporation,
232 F.2d 325 (1956). Sub. (2) (b) is previous s. 893.21 (4). Sub. (3) (a) is previous s. 893.22 (1). Sub. (3) (b) is previous s. 893.22 (3). [Bill 326-A]
