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 the state 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(8) (8)This section does not apply to actions commenced under s. 19.37, 19.97, or 281.99 or to claims against the interstate insurance product regulation commission.
893.80(9) (9)The procurement or maintenance of insurance or self-insurance by a volunteer fire company organized under ch. 181 or 213, political corporation, or governmental subdivision or agency thereof, irrespective of the extent or type of coverage or the persons insured, shall not do any of the following:
893.80(9)(a) (a) Constitute a waiver of the provisions of this section.
893.80(9)(b) (b) Be relied upon to deny a person status as an officer, official, agent, or employee of the volunteer fire company, political corporation, or governmental subdivision or agency thereof.
893.80 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 218; 1977 c. 285, 447; 1979 c. 34; 1979 c. 323 s. 29; Stats. 1979 s. 893.80; 1981 c. 63; 1985 a. 340; 1987 a. 377; 1993 a. 139; 1995 a. 6, 158, 267; 1997 a. 27; 2005 a. 281; 2007 a. 168; 2009 a. 278; 2011 a. 162.
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 (1972).
893.80 Annotation Sub. (3) [now sub. (4)] establishes municipal immunity from actions for the intentional torts of its employees; assault and battery constitutes an intentional tort. Sub. (3) [now sub. (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 The class action statute, s. 260.12 [now s. 803.08], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401, 238 N.W.2d 509 (1974). But see Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.
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 sub. (3) [now sub. (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 (1976).
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 s. 893.80 (4)]. Coffey v. Milwaukee, 74 Wis. 2d 526, 247 N.W.2d 132 (1976).
893.80 Annotation Under sub. (1) [now sub. (1d)], 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 subdivision 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 [now ss. 893.83 (1) and 893.80]. 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 this section 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) [now ss. 893.83 (1) and 893.80 (2)] 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 a county agency met the jurisdictional prerequisite of sub. (1) (b) [now sub. (1d) (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) [now sub. (1d) (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) [now sub. (1g)] 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 this section 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) [now sub. (1g)]. 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) [now sub. (1g)] has run, a municipality may not revive the 6-month limitation period 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) [now sub. (1d) (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) [now sub. (1d)] notice requirements. Sub. (5) does not say that when a claim is based on another statute sub. (1) [now sub. (1d)] does not apply. Substantial compliance with sub. (1) [now sub. (1d)] 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) [now sub. (1d)] 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), 95-1351.
893.80 Annotation Actions brought under the open meetings and public records laws are exempt from the notice provisions of sub. (1) [now sub. (1d)]. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), 94-2809.
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), 95-0185.
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), 93-3348.
893.80 Annotation The interplay between this section and s. 893.23 creates a statute of limitations equal to 3 years and 120 days when filing a claim under this section. Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996), 93-3348.
893.80 Annotation Service of a disallowance of claim on a claimant's attorney does not meet the statutory requirement of service on the claimant. When there was never proper service under the statute, the general 3-year statute of limitations for personal injuries applied. Cary v. City of Madison, 203 Wis. 2d 261, 551 N.W.2d 596 (Ct. App. 1996), 95-3559.
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 knowledge of the event for which liability is asserted, and 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 Wis. 2d 208, 556 N.W.2d 326 (Ct. App. 1996), 95-1193.
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. Delavan-Darien School District, 207 Wis. 2d 310, 558 N.W.2d 881 (Ct. App. 1996), 95-0495.
893.80 Annotation The immunity provisions of sub. (4), like the notice and claim provisions of sub. (1) [now sub. (1d)], are not limited to tort or money damage actions. Johnson v. City of Edgerton, 207 Wis. 2d 343, 558 N.W.2d 653 (Ct. App. 1996), 96-0894.
893.80 Annotation Governmental immunity extends to private parties who act under directives from government authorities. Estate of Lyons v. CNA Insurance Cos. 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), 95-3372.
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 Wis. 2d 18, 559 N.W.2d 563 (1997), 94-1030.
893.80 Annotation The filing of a federal lawsuit, subsequently dismissed, did not satisfy the notice and claim requirements of sub. (1) (b) [now sub. (1d) (b)]. Probst v. Winnebago County, 208 Wis. 2d 280, 560 N.W.2d 291 (Ct. App. 1997), 96-0186.
893.80 Annotation Appeals of special assessments brought under s. 66.60 (12) (a) [now s. 66.0703 (12)] are exempt from the notice provisions of sub. (1) [now sub. (1d)]. Gamroth v. Village of Jackson, 215 Wis. 2d 251, 571 N.W.2d 917 (Ct. App. 1997), 96-3396.
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 Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997), 97-0267.
893.80 Annotation Compliance with sub. (1) (b) [now sub. (1d) (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 Wis. 2d 616, 575 N.W.2d 712 (1998), 96-0688.
893.80 Annotation Filing a notice of claim under sub. (1) (b) [now sub. (1d) (b)] is not required when an injunction of a public nuisance is sought under s. 30.294, whether or not the injunction will be directed against the municipality. Gillen v. City of Neenah, 219 Wis. 2d 806, 580 N.W.2d 628 (1998), 96-2470.
893.80 Annotation Lyons adopted a form of governmental-contractor immunity applicable to parties who contract with municipal and state authorities and who are directed to perform certain tasks under the contract. That immunity extends to the contractor's subcontractors. Jankee v. Clark County, 222 Wis. 2d 151, 585 N.W.2d 913 (Ct. App. 1998), 95-2136.
893.80 Annotation Sub. (1m) as amended in 1986 cannot be applied retroactively. Snopek v. Lakeland Medical Center, 223 Wis. 2d 288, 588 N.W.2d 19 (1999), 96-3645.
893.80 Annotation A town contesting an annexation under s. 66.0217 (10) [now s. 66.0217 (11)] is not required to file a notice of claim under this section against the annexing municipality. Town of Burke v. City of Madison, 225 Wis. 2d 615, 593 N.W.2d 822 (Ct. App. 1999), 98-0108.
893.80 Annotation Alleging an ongoing course of conduct without identifying a specific circumstance or example of that conduct that occurred within 120 days of the notice of claim does not satisfy the requirements of sub. (1) (a) [now sub. (1d) (a)]. Probst v. Winnebago County, 225 Wis. 2d 753, 593 N.W.2d 478 (Ct. App. 1999), 98-0451.
893.80 Annotation This section does not apply to certiorari actions under s. 59.694 (10). Kapischke v. County of Walworth, 226 Wis. 2d 320, 595 N.W.2d 42 (Ct. App. 1999), 98-0796.
893.80 Annotation A public officer is clothed in immunity when that officer applies statutes to a given set of facts. An unambiguous statute, negligently applied, that does not direct how to act in any manner does not create a ministerial duty that is not sheltered by immunity. Kierstyn v. Racine Unified School District, 228 Wis. 2d 81, 596 N.W.2d 417 (1999), 97-1573.
893.80 Annotation Suits must be based in tort to garner immunity under sub. (4). There is no immunity from actions for declaratory relief. Willow Creek Ranch v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, 97-2075.
893.80 Annotation The notice provisions of this section do not apply to 3rd-party complaints for contribution. Dixson v. Wisconsin Health Organization Insurance Corporation, 2000 WI 95, 237 Wis. 2d 149, 612 N.W.2d 721, 97-3816.
893.80 Annotation A governmental employee may have a ministerial duty to take some action, although how that act is performed is discretionary. Rolland v. County of Milwaukee, 2001 WI App 53, 241 Wis. 2d 215, 625 N.W.2d 590, 99-1913.
893.80 Annotation Subsection (1g) is constitutional. There is a rational basis for restricting the opportunity to bring suit to 6 months for claimants who have been served with a notice of disallowance and to 3 years when claimants have not been served. That there are different time periods does not violate equal protection guarantees. Griffin v. Milwaukee Transport Services, Inc. 2001 WI App 125, 246 Wis. 2d 433, 630 N.W.2d 536, 00-0861.
893.80 Annotation Sovereign immunity from suit can only be waived by express language. Consent to suit may not be implied. Anhalt v. City of Sheboygan, 2001 WI App 271, 249 Wis. 2d 62, 637 N.W.2d 422, 00-3551.
893.80 Annotation The existence of a known present danger should not turn on the subjective impressions of a citizen-witness. A public officer's duty to act becomes absolute when the nature of the danger is compelling and known to the officer and is of such force that the officer has no discretion not to act. Hoskins v. Dodge County, 2002 WI App 40, 251 Wis. 2d 276, 642 N.W.2d 213, 01-0834.
893.80 Annotation A proper application of the known danger exception to public officer immunity begins with the assumption that the officer was negligent in failing to perform, or in inadequately performing the act in question. To pierce immunity the circumstances must have been sufficiently dangerous so as to give rise to a ministerial duty not just to act generally but to perform the particular act upon which liability is premised. Lodl v. Progressive Northern Insurance Company, 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314, 00-0221.
893.80 Annotation Both state and municipal immunity under sub. (4) are subject to several exceptions representing a judicial balance struck between the need of public officers to perform their functions freely and the right of an aggrieved party to seek redress. There is no immunity against liability associated with 1) the performance of ministerial duties imposed by law; 2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; 3) acts involving medical discretion; and 4) acts that are malicious, willful, and intentional. Lodl v. Progressive Northern Insurance Co., 2002 WI 71, 253 Wis. 2d 323, 646 N.W.2d 314, 00-0221.
893.80 Annotation Nothing in Cords suggests that a ministerial duty is placed on the government to protect the public from every manifest danger. The Cords known and present danger exception to sub. (4) immunity did not apply to a pipe that was used as a footbridge over a creek when the public was not invited to so use it, a sidewalk was provided to cross the creek not far from the pipe, and the use as a footbridge presented an obvious danger. Caraher v. City of Menomonie, 2002 WI App 184, 256 Wis. 2d 605, 649 N.W.2d 184, 01-2772.
893.80 Annotation The analysis of immunity under sub. (4) assumes negligence. The existence of a form clearly and unambiguously detailing information requested of a high school guidance counselor did not transform the counselor's counseling obligations into a ministerial act. His failure to provide correct advice in the face of clear and unambiguous information goes to his negligence, not the nature of his duty. Scott v. Savers Property & Casualty Insurance Co. 2003 WI 60, 262 Wis. 2d 127, 663 N.W.2d 715, 01-2953.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 18 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on October 1, 2019. Published and certified under s. 35.18. Changes effective after October 1, 2019, are designated by NOTES. (Published 10-1-19)