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 former s. 81.15, 1965 stats., and s. 895.43 (2) [now sub. (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 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 three municipalities formed one volunteer fire department under ch. 60, liability under sub. (3) was limited to $50,000, not three times that amount. Selzler v. Dresser, Osceola, Garfield Fire Department, 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 three 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 County, 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, Inc. 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 six-month limitation period in sub. (1) (b) [now sub. (1g)] is not triggered. Linstrom 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 involves 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 Mutual Automobile Insurance 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 six-month statute of limitations under sub. (1) (b) [now sub. (1g)]. Humphrey v. Elk Creek Lake Protection & Rehabilitation District, 172 Wis. 2d 397, 493 N.W.2d 241 (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 six-month limitation period by giving notice of disallowance. Blackbourn v. School District, 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. Discussing substantial compliance with sub. (1) [now sub. (1d)]. 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 two 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 723, 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 municipalities' representatives. Envirologix Corp. 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 those circumstances, there was no immunity under sub. (4). Major v. County of Milwaukee, 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)]. State ex rel. 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 three 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 three-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), 94-2285.
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, 207 Wis. 2d 446 (1996), 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, L.L.C. 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 third-party complaints for contribution. Dixson v. Wisconsin Health Organization Insurance Corp., 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 Sub. (1g) is constitutional. There is a rational basis for restricting the opportunity to bring suit to six months for claimants who have been served with a notice of disallowance and to three 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. Cities & Villages Mutual Insurance Co., 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 Co., 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, 80 Wis. 2d 525 (1977), 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 344, 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. The counselor's failure to provide correct advice in the face of clear and unambiguous information goes to the counselor's negligence, not the nature of the counselor's duty. Scott v. Savers Property & Casualty Insurance Co., 2003 WI 60, 262 Wis. 2d 127, 663 N.W.2d 715, 01-2953.
893.80 Annotation Sub. (1) [now sub. (1d)] does not apply to appeals of condemnation awards under s. 32.05 (11). Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, 265 Wis. 2d 422, 665 N.W.2d 379, 02-2212.
893.80 Annotation Any fire department created pursuant to s. 60.55, whether formed under ch. 181 or 213, is a government subdivision or agency entitled to immunity under sub. (4). Mellenthin v. Berger, 2003 WI App 126, 265 Wis. 2d 575, 666 N.W.2d 120, 02-2524.
893.80 Annotation A ministerial duty cannot arise from a manufacturer's instructions because a ministerial duty must be imposed by law. Law means an act of government and includes statutes, administrative rules, policies, or orders and plans adopted or contracts entered into by governmental units. Meyers v. Schultz, 2004 WI App 234, 277 Wis. 2d 845, 690 N.W.2d 873, 04-0542.
893.80 Annotation A municipality may be immune from nuisance suits depending on the nature of the tortious acts giving rise to the nuisance. A municipality is immune from suit for nuisance predicated on negligent acts that are discretionary in nature. A municipality does not enjoy immunity from suit for nuisance when the underlying tortious conduct is negligence comprised of acts performed pursuant to a ministerial duty. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, 02-2961.
893.80 Annotation Decisions concerning the adoption, design, and implementation of a public works system are discretionary, such as the adoption of a waterworks system, the selection of the type of pipe, the placement of the pipe in the ground, and the continued existence of the pipe, are legislative decisions for which a city enjoys immunity. A city may be liable for its negligence in failing to repair the leaky water main if it had notice of the leak and was under a ministerial duty to repair it prior to a break. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, 02-2961.
893.80 Annotation It is contrary to the protection afforded by sub. (1) [now sub. (1d)] to force a government entity to spend resources and taxpayer money to investigate every injury when the requisite 120-day notice is not given on the mere chance that the injury may turn out to be catastrophic, irrespective of how minor it may seem initially. Moran v. Milwaukee County, 2005 WI App 30, 278 Wis. 2d 747, 693 N.W.2d 121, 04-0709.
893.80 Annotation The known and compelling danger exception to immunity under sub. (4) is determined on a case-by-case basis. A dangerous situation will give rise to a ministerial duty when there exists a danger of such force that the time, mode, and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion. The duty arises by virtue of particularly hazardous circumstances that are both known to the municipality or its officers and sufficiently dangerous to require an explicit, non-discretionary municipal response. It is not enough that the situation require the employee to do something about it. Voss v. Elkhorn Area School District, 2006 WI App 234, 297 Wis. 2d 389, 724 N.W.2d 420, 05-3037. But see Engelhardt v. City of New Berlin, 2019 WI 2, 385 Wis. 2d 86, 921 N.W.2d 714, 16-0801.
893.80 Annotation Service of a notice of disallowance must be upon the claimant and strictly comply with those modes of service set out in sub. (1g), which requires that service be made by either registered or certified mail. The return of a receipt for registered or certified mail signed by the claimant and the return of registered mail addressed to the claimant are examples of proof of service acceptable under sub. (1g). Pool v. City of Sheboygan, 2007 WI 38, 300 Wis. 2d 74, 729 N.W.2d 415, 05-2028.
893.80 Annotation Sub. (1m) applies to medical malpractice claims against governmental bodies that fall within the scope of this section. Ch. 655 does not contain any statute of limitations provision that conflicts with this section. The generally exclusive nature of ch. 655 does not prevent the application of this section when applicable. Rouse v. Theda Clark Medical Center, Inc., 2007 WI 87, 302 Wis. 2d 358, 735 N.W.2d 30, 05-2743.
893.80 Annotation The University of Wisconsin Hospital & Clinics Authority is a “political corporation" under sub. (1) (a) [now sub. (1d) (a)] that falls within the notice of claim requirement of this section. Rouse v. Theda Clark Medical Center, Inc., 2007 WI 87, 302 Wis. 2d 358, 735 N.W.2d 30, 05-2743.
893.80 Annotation There is a three-point test for when the notice-of-claim requirement in sub. (1) (b) [now sub. (1d) (b)] has to give way: 1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; 2) whether enforcement of sub. (1) [now sub. (1d)] would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and 3) whether the purposes for which sub. (1) [now sub. (1d)] was enacted would be furthered by requiring that a notice of claim be filed. Oak Creek Citizen's Action Committee v. City of Oak Creek, 2007 WI App 196, 304 Wis. 2d 702, 738 N.W.2d 168, 06-2697.
893.80 Annotation Sub. (1) (b) [now sub. (1d) (b)] did not apply to an action for mandamus seeking to compel a city council to comply with the direct-legislation statute, s. 9.20. Oak Creek Citizen's Action Committee v. City of Oak Creek, 2007 WI App 196, 304 Wis. 2d 702, 738 N.W.2d 168, 06-2697.
893.80 Annotation Administrative code provisions imposed a ministerial duty on a municipality to place a water main at a specified depth. When the municipality installed the water main at an appropriate depth to prevent freezing and the surface was subsequently graded so that the water main was no longer at the required depth, there was no breach of the ministerial duty. The design of the overall development, including the soil grading, was a discretionary act and enjoyed governmental immunity. DeFever v. City of Waukesha, 2007 WI App 266, 306 Wis. 2d 766, 743 N.W.2d 848, 06-3053.
893.80 Annotation Under Lyons, 207 Wis. 2d 446 (1996), an independent professional contractor who follows official directives is an agent for the purposes of sub. (4) or is entitled to common law immunity when: 1) the governmental authority approved reasonably precise specifications; 2) the contractor's actions conformed to those specifications; and 3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials. Estate of Brown v. Mathy Construction Co., 2008 WI App 114, 313 Wis. 2d 497, 756 N.W.2d 417, 07-1543. See also Bronfeld v. Pember Cos., 2010 WI App 150, 330 Wis. 2d 123, 792 N.W.2d 222, 09-2297.
893.80 Annotation Under the Lyons, 207 Wis. 2d 446 (1996), test, the specification question is not what other safety precautions might have been taken, but whether the safety requirements provided by the contract were reasonably precise specifications. A contract is reasonably precise if it reasonably and precisely lists items required. Common sense dictates that items not required by the contract do not obligate the contractor to provide them. Estate of Brown v. Mathy Construction Co., 2008 WI App 114, 313 Wis. 2d 497, 756 N.W.2d 417, 07-1543.
893.80 Annotation A spirit rule book for cheerleading, not officially adopted by a school district, lacked the absolute, certain, and imperative direction that prescribes and defines the time, mode, and occasion for an action's performance with such certainty that nothing remains for judgment or discretion. As such, the plaintiff did not show that the rule book created an absolute, certain, or imperative duty that fell within the ministerial duty exception to governmental immunity under sub. (4). Noffke v. Bakke, 2009 WI 10, 315 Wis. 2d 350, 760 N.W.2d 156, 06-1886.
893.80 Annotation So long as a precautionary measure is taken in response to an open and obvious danger, the law is that the government remains immune from suit under sub. (4). In this case, the trial court found that a teacher took no precautionary measure to deal with a known danger. While the teacher had the option to pick one precautionary measure over another, the teacher did not have the option to do nothing, and the exception to immunity applied. Heuser v. Community Insurance Corp., 2009 WI App 151, 321 Wis. 2d 729, 774 N.W.2d 653, 08-2760.
893.80 Annotation A government entity is not entitled to immunity for a failure to maintain its property as to a condition of disrepair or defect or a failure to operate. In this case, once the sewerage district had notice that its deep tunnel was draining the aquifer in downtown Milwaukee to the detriment of property owners, it had an “absolute, certain and imperative" duty to repair the tunnel. As the entity responsible for the tunnel, and being aware that the tunnel was causing structural damage to the plaintiff's property, the district had a ministerial duty to repair the tunnel. Because it did not, it enjoyed no immunity for its negligence under sub. (4). Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2011 WI App 76, 334 Wis. 2d 620, 800 N.W.2d 518, 07-0221.
893.80 AnnotationAffirmed. 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160, 07-0221.
893.80 Annotation Three factors should be considered when determining whether to exempt a specific statute from the notice of claim requirements: 1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; 2) whether enforcement of the notice of claim requirements would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and 3) whether the purposes for which this section was enacted would be furthered by requiring that a notice of claim be filed. Antitrust actions brought under s. 133.18 are not exempt from the notice of claim requirements found in sub. (1) [now sub. (1d)]. E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, 335 Wis. 2d 720, 800 N.W.2d 421, 09-0775.
893.80 Annotation The first step in the ministerial duty analysis is to identify a source of law or policy that imposes the alleged duty. Merely arguing, in general terms, that a municipality that alters the normal course of traffic on a road must take measures to ensure the public can safely travel on the road and not pointing to any statute, regulation, or policy that imposes this duty, fails to do so. Even assuming the county had a duty to ensure reasonably safe travel during road construction, that duty would not be ministerial. How to safely control traffic in a construction zone is an inherently discretionary decision requiring the exercise of judgment. American Family Mutual Insurance Co. v. Outagamie County, 2012 WI App 60, 341 Wis. 2d 413, 816 N.W.2d 340, 11-1211.
893.80 Annotation It is evident that the plain meaning of “action" in sub. (3) is a judicial proceeding. While two other subsections within this section utilize the term “suit," those subsections are unrelated; they operate independently and without reference to sub. (3). Thus, it does no mischief to interpret suit and action to have the same meaning. Sub. (3) provides for one damages cap, per person, per action. Anderson v. Hebert, 2013 WI App 54, 347 Wis. 2d 321, 830 N.W.2d 704, 12-1313.
893.80 Annotation Volunteer firefighters are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call. Because of that, they are operating within the scope of their employment for the purposes of sub. (4) immunity. Brown v. Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96, 11-0583.
893.80 Annotation Under s. 346.03 (3), the driver of an emergency vehicle may proceed through a red stop signal only if the driver's vehicle gives a visual and an audible signal. A driver who did not give an audible signal has no discretion to proceed through a red stop signal. The statute sets forth “absolute, certain and imperative" requirements concerning the “performance of a specific task." Thus s. 346.03 (3) imposes upon a driver a ministerial duty to stop at a red stop signal, and a driver who does not falls within the ministerial duty exception to public officer immunity. Brown v. Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96, 11-0583.
893.80 Annotation The monetary damage cap in sub. (3) does not violate equal protection. The plain meaning of sub. (3) is to limit the dollar amount of recovery to be paid for damages, injuries, or death to $50,000 per claimant, but the plain meaning of that provision has no bearing on the availability of equitable relief such as abatement. Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160, 07-0221.
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2021-22 Wisconsin Statutes updated through 2023 Wis. Act 71 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on February 14, 2024. Published and certified under s. 35.18. Changes effective after February 14, 2024, are designated by NOTES. (Published 2-14-24)