Feb. 18, 2015 – Would you rather get hit by a car driven by a bartender hurrying to get home from work or one driven by a volunteer firefighter racing to an unfolding emergency? The obvious answer would seem to be “Neither.” But a lawyer would answer more methodically: “If I have to answer, and if I have to pick one, I’d rather be hit by the bartender.”
Why? Because the lawyer knows that although identifying the driver is the first step, identifying the driver’s employer is a close second. Statutory and common law both provide immunity for governmental employees like the firefighter.
Wis. Stat. section 893.80 of the Wisconsin Statutes specifically provides immunity to local governments for certain types of discretionary acts on the part of their employees, agents, or officials. As stated in State Bar of Wisconsin PINNACLE’s Wisconsin Governmental Claims and Immunities Handbook, the Wisconsin Supreme Court reconfirmed in the 1970s that the “general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty.”
Surmounting the Procedural Roadblocks
The firefighter, although a governmental employee, isn’t absolutely protected from liability. But parties must comply with significant procedural and substantive law hurdles to reach the substance of an action. First (in terms of timing), a notice of claim must be served on the governmental unit that employs the driver. Section 893.80 bars actions against certain volunteer fire companies, political corporations, governmental subdivisions or agencies thereof, or any officer, official, agent, or employee of one of these entities, unless notice-of-injury and claim-for-damages requirements are met.
Within 120 days after the occurrence of an event giving rise to a claim, the aggrieved party must serve the governmental entity with notice of the circumstances of the claim, andbefore a claimant can proceed to court, the governmental entity must disallow the claim. The time limits for filing and disallowing a notice of claim are 120 days, significantly shortening the statute of limitation for suits against governmental employees, as compared to suits against nongovernmental entities and individuals.
Are the Rewards Worth the Risks?
Discretionary acts of governmental employees are subject to immunity; ministerial acts are not. In dozens of Wisconsin cases, judges have evaluated fact patterns and made the discretionary/ministerial distinction. Even if the actions are deemed ministerial, the damages payable by governmental entities and employees are strictly limited by statute: $50,000 for damages recoverable by any person, reduced to $25,000 if the action is against a volunteer fire company or one of its employees. Wis. Stat. § 893.80(3). If the incident involves a municipal motor vehicle, the limit is $250,000 under section 345.05. Governmental entities and employees are not liable for punitive damages.
Learn the Newest Developments and the Still-Vital History of Governmental Claims and Immunities
The Wisconsin Governmental Claims and Immunities Handbook discusses the history and underpinnings of governmental immunity and provides all details for filing suit against Wisconsin governmental entities and employees. It also briefly discusses suits against the federal government, as well as statutes and cases dealing with recreational immunities, including three statutes recently enacted by the Wisconsin Legislature.
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