In 1962, the Wisconsin Supreme Court issued a decision in Holytz v. City of Milwaukee.¹ The case, a watershed decision for Wisconsin’s highest court, held that cities and other governmental arms and agencies can be sued for damages in court pursuant to the respondeat superior doctrine.²

Shortly after the decision was issued, the Wisconsin Legislature responded in kind with the passage of Wis. Stat. section 893.80.³ Section 893.80’s most important function from the municipal perspective is its damage cap. The statute sets a capped amount of damages – $50,000 – for an individual who makes a claim against a municipality and its employees.⁴

For claims against state employees, officers, and agents, individuals can look to section 893.82.

Unfortunately, many individuals across the state simply are not aware of the requirements that must be met. Many times, potential clients will be faced with the fact that they are too late to vindicate their state law rights, but the hope of this article is to elucidate and clarify some of the hoops the legislature has set up for individuals to jump through.

Giving Notice

In order for individuals who have fallen victim to rights violations, torts, or even simple negligence to be able to present claims under state law, the individuals must provide “written notice of the circumstances of the claim” within "120 days after the happening of the event giving rise to the claim."⁵

The circumstances should detail the time and place of the event giving rise to the claim, and the notice should also provide the circumstances of the injury caused by the event. The notice⁶must ​​be signed by the claimant, or their agent or attorney.

Wisconsin’s notice of claims procedures do not restrict or limit federal causes of action such as 42 U.S.C. § 1983.⁷

The notice must be served upon the governmental body and the agent or employee responsible, pursuant to the provisions of Wis. Stat. section 801.11, which provides for personal service and, in some limited circumstances, substitute service.⁸

Note that the statute requires only substantial, rather than strict, compliance with these provisions.⁹ When an individual serves a written notice of circumstances pursuant to the statute within 120 days after the event, a conclusive presumption that there has been no prejudice to the governmental body is created.¹⁰

When Notice is Not Timely

However, in the event a written notice is not served in a timely manner, an individual’s claim would not be barred if the individual can demonstrate that the governmental body had actual notice of the claim and was not prejudiced by the delay.¹¹ “Actual notice” as that phrase is used in the statute “is the equivalent of actual knowledge.”¹²

It is also important to clarify, due to the rise in police misconduct cases and the mirroring rise of situations warranting an 893.80 notice, that mere knowledge of an event giving rise to a claim by the police does not constitute notice of the claim.¹³

Claims May Be Submitted Later

An individual must also submit a “claim containing the address of the claimant and an itemized statement of the relief sought” to the clerk or secretary for the governmental body.¹⁴

This claim, which need not be presented within 120 days of the event, may be submitted together with the notice of circumstances or separately at a later date.

Once a claim is presented, no lawsuit may be filed for the next 120 days unless a municipality serves a written notice of disallowance upon the claimant.¹⁵

And beware: a notice of disallowance has the potential to shorten the applicable statute of limitations, as no lawsuit may be filed after six months from the date a notice of disallowance was properly served on the claimant.¹⁶

Awareness Is Key

Individuals unfortunately suffer injuries and damages as the result of negligence or other actions of agents and employees of governmental bodies all the time. The individuals who have claims against these governmental bodies oftentimes are not aware of the many hoops that people in power have put in place as barriers to access.

One can hope that increased education and awareness regarding these statutory schemes will help to vindicate the rights of individuals across Wisconsin.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).

² The doctrine of respondeat superior provides that a public body can be held responsible for the torts and negligence of its officers, agents, and employees when the negligence occurs during the course of business of that public body. Holytz, 17 Wis. 2d at 40 (superseded by statute).

³ Initially, the Legislature passed section 895.43 in an effort to create statewide notice rules for municipalities, which had previously had their own notice rules at the municipal level. The statute was renumbered and reformulated in 1978.

⁴ Wis. Stat. § 893.80(3).

⁵ Wis. Stat. § 893.80(1d)(a).

⁶ There are no notice requirements for medical malpractice claims. Wis. Stat. § 893.80(1m).

⁷See Felder v. Casey, 487 U.S. 131 (1988).

⁸ Wis. Stat. § 801.11.

⁹Figgs v. City of Milwaukee, 121 Wis. 2d 44, 55, 357 N.W.2d 548 (1984); Townsend v. Neenah Joint Sch. Dist., 2014 WI App 117, ¶ 23, 358 Wis. 2d 618, 633, 856 N.W.2d 644, 651.

¹⁰Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 580, 334 N.W.2d 242 (1983).

¹¹ Wis. Stat. § 893.80(1d)(a).

¹²Elkhorn Area Sch. Dist. v. East Troy Comm. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206, 209 (1982).

¹³Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 911 (7th Cir. 1985).

¹⁴ Wis. Stat. § 893.80(1d)(b).

¹⁵ Wis. Stat. § 893.80(1d)(b); Wis. Stat. § 893.80(1g).

¹⁶ Wis. Stat. § 893.80(1g).