Returning to First Principles? Governmental Immunity in Wisconsin. Johnson-Karp. Wis. Law. Apr. 2014.
Claims against state employees; notice of claim; limitation of damages. 893.82(1)(1)
The purposes of this section are to:
Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
“Civil action or civil proceeding" includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.
“Claimant" means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.
“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.
“State officer, employee or agent" includes any of the following persons:
An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.
A volunteer health care provider who provides services under s. 146.89
, except a volunteer health care provider described in s. 146.89 (5) (a)
, for the provision of those services.
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.
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)
No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
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.
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.
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.
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:
The date the cause of action for contribution or indemnification accrues.
The date the claimant acquired actual or constructive knowledge of the underlying cause of action.
The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph.
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 or at the department of justice by personal service or by certified mail. If served by certified mail, notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.
With regard to a claim to recover damages for medical malpractice, the provisions of subs. (3)
, 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)
, and (3)
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.
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.
For purposes of this section, any employee of the state of Minnesota performing services for this state pursuant to a valid agreement between this state and the state of Minnesota providing for interchange of employees or services is considered to have the same status an as employee of this state performing the same services for this state, and any employee of this state who performs services for the state of Minnesota pursuant to such an agreement is considered to have the same status as when performing the same services for this state in any action brought under the laws of this state.
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]
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).
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
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
Sub. (3) does not create an exception for a plaintiff who is unaware that a defendant is a state employee. Renner v. Madison General Hospital, 151 Wis. 2d 885
, 447 N.W.2d 97
(Ct. App. 1989).
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).
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
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).
The certified mail requirement under sub. (5) is subject to strict construction. Thus, when the plaintiff in this case served notice of claim by regular mail rather than by certified mail, dismissal was appropriate. Kelly v. Reyes, 168 Wis. 2d 743
, 484 N.W.2d 388
(Ct. App. 1992).
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).
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan, 188 Wis. 2d 157
, 524 N.W.2d 630
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
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
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 Ass'n v. Employee Trust Funds Board, 207 Wis. 2d 1
, 558 N.W.2d 83
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
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
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
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
A notice is properly served on the attorney general under sub. (5) if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, post office box, or any combination of those three addresses, assuming that the notice otherwise complies with sub. (5). Hines v. Resnick, 2011 WI App 163
, 338 Wis. 2d 190
, 807 N.W.2d 687
sets forth two requirements in order for a notice of claim to be properly “sworn to" under sub. (5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Neither requirement demands that a false notice of claim be punishable for perjury or that a notice of claim must contain a statement by a notary that an oath or affirmation was administered. Estate of Hopgood v. Boyd, 2013 WI 1
, 345 Wis. 2d 65
, 825 N.W.2d 273
Sub. (3)'s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result. The plaintiffs' claims in this case did not arise from a singular event occurring at a fixed moment in time, but were based on numerous events that transpired over a duration of time. Requiring them to set forth the exact moment in time that each of these events occurred was unreasonable. Mayo v. Boyd, 2014 WI App 37
, 353 Wis. 2d 162
, 844 N.W.2d 652
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
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
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
Statutory challenges. 893.825(1)(1)
In an action in which a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the attorney general shall be served with a copy of the proceeding and is entitled to be heard.
In an action in which a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the speaker of the assembly, the president of the senate, and the senate majority leader shall also be served with a copy of the proceeding and the assembly, the senate, and the joint committee on legislative organization are entitled to be heard.
History: 2017 a. 369
Damages caused by accumulation of snow or ice; liability of city, village, town, and county.
No action may be maintained against a city, village, town, or county 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. Any action to recover damages for injuries sustained by reason of an accumulation of snow or ice that has existed for 3 weeks or more upon any bridge or highway is subject to s. 893.80
History: 2003 a. 214
; 2011 a. 132
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
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
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
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
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
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
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
Recovery limitations under this section are constitutional. Sambs v. City of Brookfield, 97 Wis. 2d 356
, 293 N.W.2d 504
Immunity under this section does not exist for injuries resulting from ice on a stairway connecting two sidewalks. Henderson v. Milwaukee County, 198 Wis. 2d 748
, 543 N.W.2d 544
(Ct. App. 1995).
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
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
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
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
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
When an accumulation of ice is created by natural conditions, a municipality has three weeks to address the problem. Actions based on artificial accumulations are actionable without the three-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
STATUTES OF LIMITATION; ACTIONS BY THE STATE, STATUTORY LIABILITY AND MISCELLANEOUS ACTIONS
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.
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.
History: 1977 c. 385
; 1979 c. 323
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]
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.
History: 1979 c. 323
; 1993 a. 301