Feb. 1, 2017 – Lawyers familiar with Wisconsin civil procedure and damages law might consider themselves competent to take any personal injury or contract case that crosses their office threshold.
Not so fast: the defendant’s identity might introduce complexities that demand familiarity with special statutes and case law concerning the substance and procedure of claims against governmental employees.
This is where Wisconsin Governmental Claims and Immunities Handbook, published by State Bar of Wisconsin PINNACLE®, can help you not to lose before starting.
Presuit Notice is Required
Probably the most significant difference in Wisconsin between claims against the government and claims against other defendants is that the former require the service of notice as a condition precedent to commencing suit and that the time limit is very short: written notice must be served within 120 days after the happening of the event giving rise to the claim.
Chapter 5 of the Governmental Claims and Immunities Handbook methodically lays out this and other statutory notice provisions. The authors state that although a court might require only substantial compliance with Wis. Stat. section 893.80, “[f]rom a practical standpoint, the more strictly the statute can be adhered to, the greater the chances of avoiding a procedural dismissal.” Meanwhile, strict compliance is required with Wis. Stat. section 893.82, which governs actions against state officers, employees, and agents. As noted in the recently issued supplement to the Handbook, a 2016 Wisconsin Supreme Court opinion clarified that strict compliance applies to the method of service of notice on the Wisconsin attorney general.
The Nature of the Defendant’s Relevant Employment Duties Matters
Another distinction between defendants is that some governmental employees are immune from liability for acts committed when carrying out “discretionary” duties. Wisconsin courts distinguish between discretionary duties and ministerial duties, which are not protected. For example, the failure of a groundskeeper to clear ice from a sidewalk at a university was found to be part of a discretionary duty, whereas compliance with an administrative code provision requiring a specific kind of safety railing was found part of a ministerial duty. These and many other examples, and the history and continuing evolution of Wisconsin immunity law, are discussed in Chapter 3 of the Handbook.
Damages Awards Against Governmental Defendants Are Capped
All counsel and potential plaintiffs must make a cost-benefit analysis before deciding whether to sue. From an injured party’s perspective, the most crucial consequence of the identity of the tortfeasor in a suit against a governmental entity or employee is that the Wisconsin Legislature has imposed caps on damages payable by local governmental entities and has prohibited punitive damages awards. The cap is $50,000 for suits against most governmental defendants and $25,000 for suits against volunteer fire companies. Chapter 3 of the Handbook outlines the application of the damages cap provision, Wis. Stat. section 893.80(3), and summarizes exceptions, identifying key case law interpretations not obvious on the face of the statute.
Statutory Immunity Extends to Nongovernmental Actors in Some Circumstances
The Wisconsin Legislature has broadened the scope of immunity in certain situations to include nongovernmental actors. For example, Wis. Stat. section 895.52 provides that no property owner, including a governmental body, is liable for any injury to a person allowed to engage in a recreational activity on the owner’s property. Although the statute specifically identifies some covered activities, “the statute’s enumerated recreational activities act more to illustrate, rather than limit, the general language.”
Chapter 4 of the Handbook discusses some of the most relevant cases in which courts have interpreted and applied terms including “recreational activity,” “owner,” “occupies,” and “structure.” The latter three words were extensively parsed by the Wisconsin Supreme Court in a 2016 opinion, highlighted in the recent supplement, stemming from an incident in which an individual was injured by a hot air balloon.
How to Order
The Wisconsin Governmental Claims and Immunities Handbook is available both in print and online via Books UnBound, the State Bar’s interactive online library. The print book costs $119 for members and $149 for nonmembers.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing).
For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
