Highway commission [now transportation dept.] supervisors who are responsible for the placement of highway warning signs may be sued if a sign is not placed in accordance with commission rules. They cannot claim the state's immunity from suit. Chart v. Dvorak, 57 Wis. 2d 92
, 203 N.W.2d 673
"Litigation" under sub. (1) refers only to civil proceedings. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574
, 263 N.W.2d 218
Mandatory payment under sub. (1) did not apply to an official who was sued for illegally retaining his salary due to an alleged failure to comply with the statutory requirements for a bond and oath of office. The official was not acting in his official capacity when filing the bond or taking the oath or in defending a related suit. Thuermer v. Village of Mishicot, 86 Wis. 2d 374
, 272 N.W.2d 409
(Ct. App. 1978).
An insurer of public employees had no right of recovery under s. 270.58 (1) [now s. 895.46 (1)]. Horace Mann Insurance Co. v. Wauwatosa Board of Education, 88 Wis. 2d 385
, 276 N.W.2d 761
The state could not be sued as an indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight, 93 Wis. 2d 337
, 286 N.W.2d 824
The state may not be sued directly for the tortious acts of its employees. Miller v. Smith, 100 Wis. 2d 609
, 302 N.W.2d 468
The "color of law" element of 42 USC 1983 lawsuit is not identical to the "scope of employment" element under sub. (1). Cameron v. Milwaukee, 102 Wis. 2d 448
, 307 N.W.2d 164
Whether alderpersons were acting within the scope of their employment was inappropriately decided by summary judgment. Schroeder v. Schoessow, 108 Wis. 2d 49
, 321 N.W.2d 131
Once a governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay, 112 Wis. 2d 609
, 334 N.W.2d 235
Sub. (1) applied to a forfeiture action against a police officer. Crawford v. City of Ashland, 134 Wis. 2d 369
, 396 N.W.2d 781
(Ct. App. 1986).
"Any action" in sub. (1) (a) means a trial in which the issue of "scope of employment" is essential and evidence on the issue is introduced and argued. Desotelle v. Continental Cas. Co. 136 Wis. 2d 13
, 400 N.W.2d 524
(Ct. App. 1986).
In "scope of employment" cases under sub. (1) (a), consideration must be given to whether the employee was "actuated," in some measure, by a purpose to serve the employer. Olson v. Connerly, 156 Wis. 2d 488
, 457 N.W.2d 479
A former school employee sued by the school district over her employment contract was not entitled to costs under sub. (1) (a). Pardeeville Area School District v. Bomber, 214 Wis. 2d 397
, 571 N.W.2d 189
(Ct. App. 1997), 97-1469
Voting members of a commission created by 2 villages were public officers protected by s. 895.46 (1). 74 Atty. Gen. 208
Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent that they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating the open meetings law. 77 Atty. Gen. 177
The University of Wisconsin has no authority to agree to hold harmless a county that incurs liability because of a university officer's torts, but common law would require the officer to indemnify the county and statutory indemnification would require the state to indemnify the officer when acting in the scope of employment. 78 Atty. Gen. 1
State Emergency Response Board Committee and Local Emergency Planning Committee subcommittee members appointed by a county board are entitled to indemnity for damage liability under s. 895.46 and legal representation by the attorney general under s. 165.25. 81 Atty. Gen. 17
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 s. 893.82 and are entitled to the state's indemnification for liability under this section. OAG 2-06
An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if he or she is carrying out duties within the scope of his or her employment. OAG 9-09
This section may require indemnification for actions that are not intended to benefit the employer when those actions further the objectives of employment. Hibma v. Odegaard, 769 F.2d 1147
Section 893.80 (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
An employee can misuse or exceed his or her authority while still acting within the scope of his or her employment. Graham
exemplifies the principle that a police officer can grossly exceed his authority to use force and still be found to have acted within the scope of employment. Javier v. City of Milwaukee, 670 F. 3d 823
Sub. (1) does not prevent a state official from asserting "good faith" as a defense to a charge of infringement of civil rights. Clarke v. Cady, 358 F. Supp. 1156
The purpose of this section is not to transform any suit against a state employee into a suit against the state, but to shield state employees from monetary loss in tort suits. Ware v. Percy, 468 F. Supp. 1266
A county could not be held liable for a civil rights judgment against a county judge when the judgment held that the judge was not carrying out duties of the office at the relevant time. Harris v. County of Racine, 512 F. Supp. 1273
If an employee is part of an inter-municipal team under s. 66.305 [now s. 66.0313], the agency requesting the team's services is the de facto employer for purposes of indemnification under this section. Leibenstein v. Crowe, 826 F. Supp. 1174
A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. constitution does not apply. Abraham v. Piechowski, 13 F. Supp. 2d 1023
Indemnification of the Wisconsin State Agencies Building Corporation and the Wisconsin State Public Building Corporation.
If the Wisconsin State Agencies Building Corporation or the Wisconsin State Public Building Corporation is the defendant in an action or special proceeding in its capacity as owner of facilities occupied by any department or agents of any department of state government, the judgment as to damages and costs shall be paid by the state from the appropriation made under s. 20.865 (1) (fm)
. The state, when it does not provide legal counsel to the defendant, its members, officers or employees, shall pay reasonable attorney fees and costs of defending the action regardless of the results of the litigation, unless the court or jury finds that the member, officer or employee did not act within the scope of that person's employment. Failure by the defendant to give notice to the department of justice of an action or special proceeding commenced against it, its members, officers or employees as soon as reasonably possible shall bar recovery by the defendant, its members, officers or employees from the state under this section. Attorney fees and expenses may not be recovered if the state offers the member, officer or employee legal counsel and the offer is refused.
History: 1977 c. 344
Indemnification of a financial institution.
A financial institution, as defined in s. 943.80 (2)
, that compensates a customer for a pecuniary loss resulting from a financial crime, as defined in s. 943.80 (1)
, or assumes the loss, may bring a civil action against the person who committed the crime to recover the amount of the loss, any other damages incurred by the financial institution as a result of the crime, and the costs incurred to bring the action, including attorney's fees.
History: 2005 a. 212
; 2007 a. 97
EXEMPTIONS FROM, AND LIMITATIONS ON, LIABILITY
Exemption from civil liability for furnishing safety inspection or advisory services.
The furnishing of, or failure to furnish, safety inspection or advisory services intended to reduce the likelihood of injury, death or loss shall not subject a state officer, employee or agent, or an insurer, the insurer's agent or employee undertaking to perform such services as an incident to insurance, to liability for damages from injury, death or loss occurring as a result of any act or omission in the course of the safety inspection or advisory services. This section shall not apply if the active negligence of the state officer, employee or agent, or of the insurer, the insurer's agent or employee created the condition that was the proximate cause of injury, death or loss. This section shall not apply to an insurer, the insurer's agent or employee performing the safety inspection or advisory services when required to do so under the provisions of a written service contract.
History: 1991 a. 39
; 2005 a. 155
; Stats. 2005 s. 895.475.
A "written service contract" is a contract that obligates the insurer to provide loss control services to an insured. Samuels Recycling Co. v. CNA Insurance Cos. 223 Wis. 2d 233
, 588 N.W.2d 385
(Ct. App. 1998), 97-3511
Civil liability exemption; emergency medical care. 895.48(1)(1)
Except as provided in sub. (1g)
, any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care.
The immunity described in sub. (1)
and s. 450.11 (1i) (c) 3.
does not extend when employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities, or at a physician's office.
Except as provided in par. (b)
, any physician, physician assistant, podiatrist, or athletic trainer licensed under ch. 448
, chiropractor licensed under ch. 446
, dentist licensed under ch. 447
, emergency medical technician licensed under s. 256.15
, first responder certified under s. 256.15 (8)
, registered nurse licensed under ch. 441
, or a massage therapist or bodywork therapist licensed under ch. 460
who renders voluntary health care to a participant in an athletic event or contest sponsored by a nonprofit corporation, as defined in s. 66.0129 (6) (b)
, a private school, as defined in s. 115.001 (3r)
, a tribal school, as defined in s. 115.001 (15m)
, a public agency, as defined in s. 46.856 (1) (b)
, or a school, as defined in s. 609.655 (1) (c)
, is immune from civil liability for his or her acts or omissions in rendering that care if all of the following conditions exist:
The health care is rendered at the site of the event or contest, during transportation to a health care facility from the event or contest, or in a locker room or similar facility immediately before, during or immediately after the event or contest.
The physician, podiatrist, athletic trainer, chiropractor, dentist, emergency medical technician, first responder, physician assistant, registered nurse, massage therapist or bodywork therapist does not receive compensation for the health care, other than reimbursement for expenses.
(b) Paragraph (a)
does not apply to health care services provided by a volunteer health care provider under s. 146.89
"Cardiac arrest" means the sudden cessation of cardiac function and the disappearance of arterial blood pressure that connote ventricular fibrillation or pulseless ventricular tachycardia.
"Pulseless ventricular tachycardia" means a disturbance in the normal rhythm of the heart that is characterized by rapid electrical activity of the heart with no cardiac output.
Any of the following, other than an emergency medical technician or a first responder — defibrillation, is immune from civil liability for the acts or omissions of a person in rendering in good faith emergency care by use of an automated external defibrillator to an individual who appears to be in cardiac arrest:
The person who provides the automated external defibrillator for use, if the person ensures that the automated external defibrillator is maintained and tested in accordance with any operational guidelines of the manufacturer.
Any person who provides training in the use of an automated external defibrillator to the person who renders care.
The immunity specified in par. (am)
does not extend to any of the following:
A person whose act or omission resulting from the use or the provision for use of the automated external defibrillator constitutes gross negligence.
A health care professional who renders emergency care for compensation and within the scope of his or her usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of an emergency or accident, enroute to a hospital or other institution equipped with hospital facilities or at a physician's office.
History: 1977 c. 164
; 1987 a. 14
; 1989 a. 31
; 1993 a. 109
; 1995 a. 227
; 1997 a. 67
; 1999 a. 7
; 2001 a. 74
; 2003 a. 33
; 2005 a. 155
; 2007 a. 130
; 2009 a. 113
; 2011 a. 260
; 2013 a. 200
Whatever the precise scope of "scene of any emergency or accident" in sub. (1), the phrase is sufficiently broad to include the defendant's home when the injured, bleeding plaintiff arrived after being hurt in an incident involving an all-terrain vehicle in nearby woods. In the circumstances of the case, "emergency care" under sub. (1) refers to the initial evaluation and immediate assistance, treatment, and intervention rendered to the plaintiff during the period before care could be transferred to professional medical personnel. Mueller v. McMillian Warner Insurance Company, 2006 WI 54
, 290 Wis. 2d 571
, 714 N.W.2d 183
There are 3 requirements before sub. (1) relieves a person from liability: 1) emergency care must be rendered at the scene of the emergency; 2) the care rendered must be emergency care; and 3) any emergency care must be rendered in good faith. Clayton v. American Family Mutual Insurance Company, 2007 WI App 228
, 305 Wis. 2d 766
, 741 N.W.2d 297
The "Good Samaritan" law is discussed. 67 Atty. Gen. 218.
Incidental benefits received by volunteer members of the National Ski Patrol in exchange for rendering emergency care to disabled skiers may result in a loss of civil liability immunity under the Good Samaritan law. 79 Atty. Gen. 194
The Good Samaritan statute. 62 MLR 469 (1979).
The Good Samaritan Statute: Civil Liability Exemptions for Emergency Care. Szymanski. Wis. Law. July 2007.
Civil liability exemption; hazardous materials. 895.4802(1)(c)
"Hazardous substance prediction" means any declaration or estimate of the likely spread or impact of an actual discharge of a hazardous substance that is based on meteorological, mathematical, computer or similar models.
"Hazardous substance predictor" means any person who makes a hazardous substance prediction pursuant to a contract or agreement with a public agency or pursuant to a contract or agreement with a person who possesses or controls hazardous substances for the purpose of assisting that person in supplying a public agency with a hazardous substance prediction in the event of an actual discharge of a hazardous substance.
Any person is immune from civil liability for his or her good faith acts or omissions related to assistance or advice which the person provides relating to an emergency or a potential emergency regarding either of the following:
Mitigating or attempting to mitigate the effects of an actual or threatened discharge of a hazardous substance.
Preventing or cleaning up or attempting to prevent or clean up an actual or threatened discharge of a hazardous substance.
The immunity under sub. (2)
does not extend to any person:
Whose act or omission causes in whole or in part the actual or threatened discharge and who would otherwise be liable for the act or omission;
Whose act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct; or
Who receives or expects to receive compensation, other than reimbursement for out-of-pocket expenses, for rendering the advice and assistance.
Any hazardous substance predictor or any person who provides the technology to enable hazardous substance predictions to be made is immune from civil liability for his or her good faith acts or omissions in making that prediction or providing that technology.
The good faith of any hazardous substance predictor or any person who provides the technology to make a prediction is presumed in any civil action. Any person who asserts that the acts or omissions under par. (a)
were not made in good faith has the burden of proving that assertion by clear and convincing evidence.
History: 2005 a. 155
; 2005 a. 347
NOTE: 2005 Wis. Act 347
, which affected this section, contains extensive explanatory notes.
Civil liability exemption; information concerning paternity.
Any member of the staff of a hospital who is designated by the hospital and trained by the department of children and families under s. 69.14 (1) (cm)
and who in good faith provides to a child's available parents written information that is provided by the department of children and families and oral information or an audio or video presentation about the form that is prescribed by the state registrar under s. 69.15 (3) (b) 3.
and about the significance and benefits of, and alternatives to, establishing paternity, under the requirements of s. 69.14 (1) (cm)
, is immune from civil liability for his or her acts or omissions in providing that oral information or audio or video presentation and written information.
History: 2005 a. 155
; 2007 a. 20
Civil liability exemption; equine activities. 895.481(1)(a)
"Equine" means a donkey, hinny, horse, mule or pony.