893.82 Claims against state employees; notice of (a) 2., the prisoner may not commence the civil action or proclaim; limitation of damages. (1) The purposes of this sec- ceeding until the attorney general denies the claim or until 120 days after the written notice under sub. (3) is served upon the attion are to: torney general, whichever is earlier. This subsection does not ap(a) Provide the attorney general with adequate time to investiply to a prisoner who commences an action seeking injunctive regate claims which might result in judgments to be paid by the lief if the court finds that there is a substantial risk to the prisstate. oner’s health or safety. (b) Provide the attorney general with an opportunity to effect (4) (a) Except as provided in par. (b), if the civil action or a compromise without a civil action or civil proceeding. proceeding under sub. (3) is based on contribution or indemnifi(c) Place a limit on the amounts recoverable in civil actions or cation, the event under sub. (3) is the underlying cause of action, civil proceedings against any state officer, employee or agent. not the cause of action for contribution or indemnification, and, (2) In this section: except as provided in sub. (5m), the 120-day limitation applies to (a) “Civil action or civil proceeding” includes a civil action or that event. civil proceeding commenced or continued by counterclaim, cross (b) 1. If the claimant under par. (a) establishes that he or she claim or 3rd-party complaint. had no actual or constructive knowledge of the underlying cause (b) “Claimant” means the person or entity sustaining the of action at the time of the event under sub. (3), except as prodamage or injury or his or her agent, attorney or personal vided in sub. (5m), the 120-day limitation under sub. (3) applies representative. to the earlier of the following: (c) “Damage” or “injury” means any damage or injury of any a. The date the cause of action for contribution or indemnifinature which is caused or allegedly caused by the event. “Dam- cation accrues. LIMITATIONS ON CIVIL ACTIONS; CLAIMS AGAINST GOVERNMENT
b. The date the claimant acquired actual or constructive knowledge of the underlying cause of action. 2. The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph. (5) The notice under sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol or at the department of justice by personal service or by certified mail. If served by certified mail, notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice. (5m) With regard to a claim to recover damages for medical malpractice, the provisions of subs. (3), (3m), and (4) do not apply. The time periods for commencing an action under this section for damages for medical malpractice are the time periods under ss. 893.55 (1m), (2), and (3) and 893.56. (6) The amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer, employee or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, including any such action or proceeding based on contribution or indemnification, shall not exceed $250,000. No punitive damages may be allowed or recoverable in any such action. (7) With respect to a state officer, employee or agent described in sub. (2) (d) 3., this section applies to an event causing the injury, damage or death giving rise to an action against the state officer, employee or agent, which occurs before, on or after April 25, 1990. (8) This section does not apply to actions commenced under s. 19.37 or 19.97. (9) For purposes of this section, any employee of the state of Minnesota performing services for this state pursuant to a valid agreement between this state and the state of Minnesota providing for interchange of employees or services is considered to have the same status an as employee of this state performing the same services for this state, and any employee of this state who performs services for the state of Minnesota pursuant to such an agreement is considered to have the same status as when performing the same services for this state in any action brought under the laws of this state. History: 1973 c. 333; 1977 c. 29; 1979 c. 221; 1979 c. 323 s. 30; 1979 c. 355; Stats. 1979 s. 893.82; 1983 a. 27; 1985 a. 66, 340; 1987 a. 342; 1987 a. 403 s. 256; 1989 a. 187, 206, 359; 1991 a. 39, 269; 1993 a. 27, 28; 1995 a. 158, 201; 1997 a. 133; 2003 a. 111; 2005 a. 96; 2007 a. 79, 130; 2009 a. 42, 278; 2011 a. 32; 2013 a. 241; 2019 a. 29. Judicial Council Committee’s Note, 1979: This section is previous s. 895.45 renumbered for more logical placement in restructured ch. 893. The previous 90day time period in which to file written notice of a claim against an employee of the state of Wisconsin has been increased to 120 days to make the time period consistent with the period for filing notice of claims with other governmental bodies allowed in s. 893.80. (See note following s. 893.80). [Bill 326-A] The court had no jurisdiction over state employees alleged to have intentionally damaged the plaintiff when the complaint failed to comply with the notice of claim statute. Elm Park Iowa, Inc. v. Denniston, 92 Wis. 2d 723, 286 N.W.2d 5 (Ct. App. 1979). Noncompliance with the notice of injury statute barred suit even though the defendant failed to raise the issue in responsive pleadings. Mannino v. Davenport, 99 Wis. 2d 602, 299 N.W.2d 823 (1981). The court properly granted the defendant’s motion to dismiss since a notice of claim of injury was not served upon the attorney general within the 120-day limit. Ibrahim v. Samore, 118 Wis. 2d 720, 348 N.W.2d 554 (1984). Sub. (3) does not create an exception for a plaintiff who is unaware that a defendant is a state employee. Renner v. Madison General Hospital, 151 Wis. 2d 885, 447 N.W.2d 97 (Ct. App. 1989). Under an administrative-services-only state group insurance contract, the insurer is an agent of the state, and the plaintiff must comply with the notice provisions under this section to maintain an action. Smith v. Wisconsin Physicians Service, 152 Wis. 2d 25, 447 N.W.2d 371 (Ct. App. 1989). A possible finding that a state employee was acting as an apparent agent of a nonstate hospital does not permit the maintenance of a suit against the state employee absent compliance with the notice requirements. Kashishian v. Port, 167 Wis. 2d 24, 481 N.W.2d 277 (1992). Actual notice and lack of prejudice to the state are not exceptions to the 120-day
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notice requirement. Carlson v. Pepin County, 167 Wis. 2d 345, 481 N.W.2d 498 (Ct. App. 1992). The certified mail requirement under sub. (5) is subject to strict construction. Thus, when the plaintiff in this case served notice of claim by regular mail rather than by certified mail, dismissal was appropriate. Kelly v. Reyes, 168 Wis. 2d 743, 484 N.W.2d 388 (Ct. App. 1992). Records relating to pending claims need not be disclosed under s. 19.35. Records of nonpending claims must be disclosed unless an in camera inspection reveals attorney-client privilege would be violated. George v. Record Custodian, 169 Wis. 2d 573, 485 N.W.2d 460 (Ct. App. 1992). Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan, 188 Wis. 2d 157, 524 N.W.2d 630 (1994). Sub. (5) requires a notice of claim to be sworn to and to include evidence showing that an oath or affirmation occurred. Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995), 93-1657. The discovery rule does not apply to sub. (3). The failure to apply the discovery rule to sub. (3) is not unconstitutional. Oney v. Schrauth, 197 Wis. 2d 891, 541 N.W.2d 229 (Ct. App. 1995), 94-3298. The constitutional mandate of just compensation for a taking of property cannot be limited in amount by statute. A taking may result in the state’s obligation to pay more than $250,000. Wisconsin Retired Teachers Ass’n v. Employe Trust Funds Board, 207 Wis. 2d 1, 558 N.W.2d 83 (1997), 94-0712. A state “agent” under sub. (3) means an individual and not a state agency. Miller v. Mauston School District, 222 Wis. 2d 540, 588 N.W.2d 305 (Ct. App. 1998), 971874. A defendant is not relieved from filing a notice of claim under this section when a state employee also performs functions for a private employer. The notice of claim provisions are constitutional. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 595 N.W.2d 392 (1999), 98-0329. This section does not provide an administrative remedy for purposes of filing a federal civil rights claim under 42 USC 1983, and therefore the failure to file a notice of claim under this section was not a failure to exhaust administrative remedies justifying denial of a petition. State ex rel. Ledford v. Circuit Court, 228 Wis. 2d 768, 599 N.W.2d 45 (Ct. App. 1999), 99-0939. The factors relevant to a master/servant relationship are relevant to deciding whether a person is a state employee under sub. (3). A state employee’s affiliation with another entity does not vitiate the employee’s status as a state employee for purposes of sub. (3) as long as the act sued upon grows out of or was committed in the course of duties as a state employee. Lamoreux v. Oreck, 2004 WI App 160, 275 Wis. 2d 801, 686 N.W.2d 722, 03-2045. A notice is properly served on the attorney general under sub. (5) if a claimant sends the notice by certified mail addressed to the attorney general at the attorney general’s capitol office, Main Street office, post office box, or any combination of those three addresses, assuming that the notice otherwise complies with sub. (5). Hines v. Resnick, 2011 WI App 163, 338 Wis. 2d 190, 807 N.W.2d 687, 11-0109. Kellner, 197 Wis. 2d 183 (1995), sets forth two requirements in order for a notice of claim to be properly “sworn to” under sub. (5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Neither requirement demands that a false notice of claim be punishable for perjury or that a notice of claim must contain a statement by a notary that an oath or affirmation was administered. Estate of Hopgood v. Boyd, 2013 WI 1, 345 Wis. 2d 65, 825 N.W.2d 273, 11-0914. Sub. (3)’s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result. The plaintiffs’ claims in this case did not arise from a singular event occurring at a fixed moment in time, but were based on numerous events that transpired over a duration of time. Requiring them to set forth the exact moment in time that each of these events occurred was unreasonable. Mayo v. Boyd, 2014 WI App 37, 353 Wis. 2d 162, 844 N.W.2d 652, 13-1578. 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 this section and are entitled to the state’s indemnification for liability under s. 895.46. OAG 206. This section provides no affirmative waiver of the state’s immunity to suit but forecloses suit when its procedures are not followed. The state has not waived its immunity under the federal Fair Labor Standards Act. Luder v. Endicott, 86 F. Supp. 2d 854 (2000). The injury caused by a misdiagnosis arises when the misdiagnosis causes greater harm than existed at the time of the misdiagnosis. Under sub. (6), discovery occurs when the plaintiff has information that would give a reasonable person notice of the injury, that is, of the greater harm caused by the misdiagnosis. McCullough v. Lindblade, 513 F. Supp. 2d 1037 (2007). The notice-of-claim statute applies to claims for malpractice against a staff attorney in the public defender’s office. Sanders v. Vishny, 563 F. Supp. 3d 938 (2021).
893.825 Statutory challenges. (1) In an action in which a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the attorney general shall be served with a copy of the proceeding and is entitled to be heard. (2) In an action in which a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the speaker of the assembly, the president of the senate, and the senate majority leader shall also be served with a copy of the pro- Updated 23-24 Wis. Stats. 30 LIMITATIONS ON CIVIL ACTIONS; CLAIMS AGAINST GOVERNMENT ceeding and the assembly, the senate, and the joint committee on state. Any action in favor of the state, if no other limitation is legislative organization are entitled to be heard. prescribed in this chapter, shall be commenced within 10 years History: 2017 a. 369. after the cause of action accrues or be barred. No cause of action in favor of the state for relief on the ground of fraud shall be