893.80 Annotation
Sub. (4) bars direct suits against municipalities for the torts of their employees. It does not preclude suing the officer directly and using s. 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Commission,
915 F.2d 1085 (1990).
893.80 Annotation
Once a deputy assumed a duty to protect a person subsequently murdered in a room adjacent to where the deputy was present, the deputy's obligation was no longer discretionary and he was no longer entitled to immunity under sub. (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 sub. (4) is not defeated by the possibility that the official's acts were malicious. Farr v. Gruber,
950 F.2d 399 (1991).
893.80 Annotation
The state may not be sued by a citizen under the wrongful death statute. Pinon v. State of Wisconsin,
368 F. Supp. 608.
893.80 Annotation
Civil rights actions against municipalities are discussed. Starstead v. City of Superior,
533 F. Supp. 1365 (1982).
893.80 Annotation
A county was not vicariously liable for its sheriff's alleged use of excessive force when the complaint alleged intentional tort. Voie v. Flood,
589 F. Supp. 746 (1984).
893.80 Annotation
Decisions by law enforcement officers concerning whether and how to arrest someone are discretionary for purposes of sub. (4). Wilson v. City of Milwaukee,
138 F. Supp. 2d 1126 (2001).
893.80 Annotation
The duty to report abuse of children to authorities under s. 48.981 is ministerial and not discretionary. Baumgardt v. Wausau School District Board of Education,
475 F. Supp. 2d 800 (2007).
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.
893.80 Annotation
Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin. Dudding. 2004 WLR 1741.
893.80 Annotation
Revising Wisconsin's Government Immunity Doctrine, Annoye, 88 MLR 971 (2005).
893.80 Annotation
Government Immunity for Safe Place Statute Violations. Cabush. Wis. Law. Oct. 1999.
893.80 Annotation
Fighting City Hall: Municipal Immunity in Wisconsin. Pollack. Wis. Law. Dec. 2000.
893.82
893.82
Claims against state employees; 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, employee 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, employee or agent" includes any of the following persons:
893.82(2)(d)1.
1. An officer, employee 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)1n.
1n. A practitioner who provides services under
s. 257.03 and a health care facility on whose behalf services are provided under
s. 257.04, 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 injured patients and families 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, employee 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, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employee'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, employee 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 provisions of
subs. (3),
(3m), and
(4) do not apply. The time periods for commencing an action under this section for damages for medical malpractice are the time periods under
ss. 893.55 (1m),
(2), and
(3) and
893.56.
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.
