Inside Track: Don't Lose Before Starting: Learn the Rules for Suing the State with Governmental Claims and Immunities:

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  • Inside Track

    Don't Lose Before Starting: Learn the Rules for Suing the State with Governmental Claims and Immunities

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    If your client was injured by a public employee, quickly evaluate and preserve the claim using Wisconsin Governmental Claims and Immunities Handbook from State Bar of Wisconsin PINNACLE®.

    March 6, 2019 – Lawyers familiar with Wisconsin civil procedure and damages law might feel confident taking any personal injury or contract case a potential client brings in.

    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®, helps you to not lose before you begin.

    Pre-suit Notice is Required

    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.

    The time limit is very short: Written notice must be served within 120 days after the event that prompts the claim.

    Chapter 5 of the 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.”

    As emphasized in a 2016 Wisconsin Supreme Court opinion, strict compliance is required with Wis. Stat. section 893.82, which governs actions against state officers, employees, and agents. And as noted in the 2017-18 supplement, the Supreme Court reiterated in a 2017 opinion that the Wis. Stat. section 893.80 notice-of-claim provisions apply to all actions, with only limited exceptions.

    It Matters: Discretionary Duties vs. Ministerial Duties

    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.

    Find these and many other examples, including the history and continuing evolution of Wisconsin immunity law, in Chapter 3 of the Handbook.

    Damages Awards Are Capped against Governmental Defendants

    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.

    Recreational Activity Immunity Can Further Shield Governmental Tortfeasors

    In some situations, the activities of the plaintiff are significant for purposes of liability determinations.

    Wis. Stat. section 895.52, the recreational-activity-immunity statute, 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 “recreational activities” and other statutory terms. In a 2017 published opinion discussed in the 2017-18 supplement, the Wisconsin Court of Appeals held that a grandmother supervising her grandson at a city-owned pool was engaged in a recreational activity within the meaning of the statute.

    How to Order

    The Wisconsin Governmental Claims and Immunities Handbook is available both in print for $119 for members and $149 for nonmembers, and online via Books UnBound®, the State Bar’s interactive online library.

    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.

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