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, employee 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, employee 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, employee 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 employee 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
The court had no jurisdiction over state employees alleged to have intentionally damaged the plaintiff when the complaint failed to comply with the notice of claim statute. Elm Park Iowa, Inc. v. Denniston,
92 Wis. 2d 723,
286 N.W.2d 5 (Ct. App. 1979).
893.82 Annotation
Noncompliance with the notice of injury statute barred suit even though the defendant failed to raise the issue in responsive pleadings. Mannino v. Davenport,
99 Wis. 2d 602,
299 N.W.2d 823 (1981).
893.82 Annotation
The court properly granted the defendant's motion to dismiss since a notice of claim of injury was not served upon the attorney general within the 120 day limit. Ibrahim v. Samore,
118 Wis. 2d 720,
348 N.W.2d 554 (1984).
893.82 Annotation
Substantial compliance with the requirements for the content of a notice under sub. (3) is sufficient to meet legislative intent. Daily v. UW-Whitewater,
145 Wis. 2d 756,
429 N.W.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 Wis. 2d 885,
447 N.W.2d 97 (Ct. App. 1989).
893.82 Annotation
Under an administrative-services-only state group insurance contract, the insurer is an agent of the state, and the plaintiff must comply with the notice provisions under this section to maintain an action. Smith v. Wisconsin Physicians Services,
152 Wis. 2d 25,
447 N.W.2d 371 (Ct. App. 1989).
893.82 Annotation
A possible finding that a state employee was acting as an apparent agent of a non-state hospital does not permit the maintenance of a suit against the state employee absent compliance with the notice requirements. Kashishian v. Port,
167 Wis. 2d 24,
481 N.W.2d 227 (1992).
893.82 Annotation
Actual notice and lack of prejudice to the state are not exceptions to the 120-day notice requirement. Carlson v. Pepin County
167 Wis. 2d 345,
481 N.W.2d 498 (Ct. App. 1992).
893.82 Annotation
The certified mail requirement under sub. (5) is subject to strict construction. Kelley v. Reyes,
168 Wis. 2d 743,
484 N.W.2d 388 (Ct. App. 1992).
893.82 Annotation
Records relating to pending claims need not be disclosed under s. 19.35. Records of nonpending claims must be disclosed unless an in camera inspection reveals attorney-client privilege would be violated. George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
893.82 Annotation
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan,
188 Wis. 2d 157,
524 N.W.2d 630 (1994).
893.82 Annotation
Sub. (5) requires a notice of claim to be sworn to and to include evidence showing that an oath or affirmation occurred. Kellner v. Christian,
197 Wis. 2d 183,
539 N.W.2d 685 (1994),
93-1657.
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 Wis. 2d 891,
541 N.W.2d 229 (Ct. App. 1995),
94-3298.
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 Association v. Employee Trust Funds Board,
207 Wis. 2d 1,
558 N.W.2d 83 (1997),
94-0712.
893.82 Annotation
A state "agent" under sub. (3) means an individual and not a state agency. Miller v. Mauston School District,
222 Wis. 2d 540,
588 N.W.2d 305 (Ct. App. 1998),
97-1874.
893.82 Annotation
A defendant is not relieved from filing a notice of claim under this section when a state employee also performs functions for a private employer. The notice of claim provisions are constitutional. Riccitelli v. Broekhuizen,
227 Wis. 2d 100,
595 N.W.2d 392 (1999),
98-0329.
893.82 Annotation
This section does not provide an administrative remedy for purposes of filing a federal civil rights claim under 42 USC 1983 and therefore the failure to file a notice of claim under this section was not a failure to exhaust administrative remedies justifying denial of a petition. State ex rel. Ledford v. Circuit Court for Dane County,
228 Wis. 2d 768,
599 N.W.2d 45 (Ct. App. 1999),
99-0939.
893.82 Annotation
The factors relevant to a master/servant relationship are relevant to deciding whether a person is a state employee under sub. (3). A state employee's affiliation with another entity does not vitiate his or her status as a state employee for purposes of sub. (3) as long as the act sued upon grows out of or was committed in the course of duties as a state employee. Lamoreux v. Oreck, 2004 WI App 160,
275 Wis. 2d 801,
686 N.W.2d 722,
03-2045.
893.82 Annotation
Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under this section and are entitled to the state's indemnification for liability under s. 895.46.
OAG 2-06.
893.82 Annotation
This section provides no affirmative waiver of the state's immunity to suit, but forecloses suit when its procedures are not followed. The state has not waived its immunity under the federal Fair Labor Standards Act. Luder v. Endicott,
86 F. Supp. 2d 854 (2000).
893.82 Annotation
The injury caused by a misdiagnosis arises when the misdiagnosis causes greater harm than existed at the time of the misdiagnosis. Under sub. (6), discovery occurs when the plaintiff has information that would give a reasonable person notice of the injury, that is, of the greater harm caused by the misdiagnosis. McCulloch v. Linblade,
513 F. Supp 2d 1037 (2007).
893.83
893.83
Highway defects. 893.83(1)(1)
Damages caused by highway defects; liability of municipality. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway that any town, city, or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city, or village. If the damages happen by reason of the insufficiency or want of repairs of a highway that any county by law or by agreement with any town, city, or village is bound to keep in repair, or that occupies any land owned and controlled by the county, the county is liable for the damages and the claim for damages shall be against the county. If the damages happen by reason of the insufficiency or want of repairs of a bridge erected or maintained at the expense of 2 or more towns, cities, villages, or counties, the action shall be brought against all of the towns, cities, villages, or counties that are liable for the repairs of the bridge. Upon recovery of judgment, the damages and costs shall be paid by the towns, cities, villages, or counties in the proportion in which they are liable for the repairs. The court may direct the judgment to be collected from each town, city, village, or county for its proportion only. The amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under
s. 893.80 shall apply to the commencement of actions brought under this subsection. No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.
893.83(2)
(2) Highway defects; liability of wrongdoer; procedure. Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village, or county would be liable, and such damages are caused by, or arise from, the wrong, default, or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor. The town, city, village, or county may be sued with the person or private corporation so primarily liable. If the town, city, village, or county denies its primary liability and proves upon whom such liability rests, the judgment shall be against all of the defendants shown by the verdict or finding to be liable for the damages. Judgment against the town, city, village, or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part. On such return being made, the defendant town, city, village, or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.
893.83 History
History: 2003 a. 214 ss.
136,
137,
189.
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),
96-2507.
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,
01-0231.
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),
96-1158.
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.
893.89 Annotation
Bleachers at a high school football stadium qualified as an improvement to real property because they were a permanent addition to real property that enhanced its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. That an improvement can be removed without harming the real property will not necessarily indicate that the item is not an improvement to real property. The more pertinent inquiry is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99,
283 Wis. 2d 1,
698 N.W.2d 794,
03-1067.
