Wisconsin Statutes & Annotations
Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units.
893.82 - Claims against state employees; notice of claim; limitation of damages.

893.82 Claims against state employees; notice of claim; limitation of damages.
(1) The purposes of this section are to:
(a) Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
(b) Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
(c) Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
(2) In this section:
(a) “Civil action or civil proceeding" includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.
(b) “Claimant" means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.
(c) “Damage" or “injury" means any damage or injury of any nature which is caused or allegedly caused by the event. “Damage" or “injury" includes, but is not limited to, any physical or mental damage or injury or financial damage or injury resulting from claims for contribution or indemnification.
(d) “State officer, employee or agent" includes any of the following persons:
1. An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.
1m. A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89 (5) (a), for the provision of those services.
1n. A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04, for the provision of those services.
1r. A physician under s. 251.07 or 252.04 (9) (b).
2. A member of a local emergency planning committee appointed by a county board under s. 59.54 (8) (a).
3. A member of the board of governors created under s. 619.04 (3), a member of a committee or subcommittee of that board of governors, a member of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and a person consulting with that council under s. 655.275 (5) (b).
(2m) No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
(3) Except as provided in sub. (5m), no civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employee's or agent's duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved. Except as provided under sub. (3m), a specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.
(3m) If the claimant is a prisoner, as defined in s. 801.02 (7) (a) 2., the prisoner may not commence the civil action or proceeding until the attorney general denies the claim or until 120 days after the written notice under sub. (3) is served upon the attorney general, whichever is earlier. This subsection does not apply to a prisoner who commences an action seeking injunctive relief if the court finds that there is a substantial risk to the prisoner's health or safety.
(4)
(a) Except as provided in par. (b), if the civil action or proceeding under sub. (3) is based on contribution or indemnification, the event under sub. (3) is the underlying cause of action, not the cause of action for contribution or indemnification, and, except as provided in sub. (5m), the 120-day limitation applies to that event.
(b)
1. If the claimant under par. (a) establishes that he or she had no actual or constructive knowledge of the underlying cause of action at the time of the event under sub. (3), except as provided in sub. (5m), the 120-day limitation under sub. (3) applies to the earlier of the following:
a. The date the cause of action for contribution or indemnification accrues.
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 90-day 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 Services, 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 non-state 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 227 (1992).
Actual notice and lack of prejudice to the state are not exceptions to the 120-day 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 (1994), 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. Retired Teachers Ass'n v. Employee 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), 97-1874.
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 for Dane County, 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 his or her 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 his or her 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 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 2-06.
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. McCulloch v. Linblade, 513 F. Supp 2d 1037 (2007).

Structure Wisconsin Statutes & Annotations

Wisconsin Statutes & Annotations

Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units.

893.01 - Civil actions; objection as to time of commencing.

893.02 - Action, when commenced.

893.03 - Presenting claims.

893.04 - Computation of period within which action may be commenced.

893.05 - Relation of statute of limitations to right and remedy.

893.07 - Application of foreign statutes of limitation.

893.10 - Actions, time for commencing.

893.11 - Extension of time if no person to sue.

893.12 - Advance payment of damages; limitation extended.

893.13 - Tolling of statutes of limitation.

893.135 - Tolling of statute of limitations for marital property agreements.

893.137 - Tolling of statute of limitations for certain time-share actions.

893.14 - Limitation on use of a right of action as a defense or counterclaim.

893.15 - Effect of an action in a non-Wisconsin forum on a Wisconsin cause of action.

893.16 - Person under disability.

893.17 - Transition; limitation if disability exists; temporary.

893.18 - Transition; persons under disability.

893.19 - Limitation when person out of state.

893.20 - Application to alien enemy.

893.21 - Effect of military exemption from civil process.

893.22 - Limitation in case of death.

893.23 - When action stayed.

893.24 - Adverse possession; section lines.

893.25 - Adverse possession, not founded on written instrument.

893.26 - Adverse possession, founded on recorded written instrument.

893.27 - Adverse possession; founded on recorded title claim and payment of taxes.

893.28 - Prescriptive rights by adverse user.

893.29 - No adverse possession by or against the state or political subdivisions.

893.30 - Presumption from legal title.

893.305 - Affidavit of interruption; adverse possession and prescriptive use.

893.31 - Tenant's possession that of landlord.

893.32 - Entry upon real estate, when valid as interruption of adverse possession.

893.33 - Action concerning real estate.

893.34 - Immunity for property owners.

893.35 - Action to recover personal property.

893.36 - Secured livestock.

893.37 - Survey.

893.38 - Extension of certain approvals.

893.40 - Action on judgment or decree; court of record.

893.41 - Breach of contract to marry; action to recover property.

893.415 - Action to collect support.

893.42 - Action on a judgment of court not of record.

893.425 - Fraudulent transfers.

893.43 - Action on contract.

893.44 - Compensation for personal service.

893.45 - Acknowledgment or new promise.

893.46 - Acknowledgment, who not bound by.

893.47 - Actions against parties jointly liable.

893.48 - Payment, effect of, not altered.

893.49 - Payment by one not to affect others.

893.50 - Other actions.

893.51 - Action for wrongful taking of personal property.

893.52 - Action for damages for injury to property.

893.53 - Action for injury to character or other rights.

893.54 - Injury to the person.

893.55 - Medical malpractice; limitation of actions; limitation of damages; itemization of damages.

893.555 - Limitation of damages; long-term care providers.

893.56 - Health care providers; minors actions.

893.57 - Intentional torts.

893.58 - Actions concerning seduction.

893.585 - Sexual exploitation by a therapist.

893.587 - Sexual assault of a child; limitation.

893.59 - Actions concerning damage to highway or railroad grade.

893.60 - What actions not affected.

893.61 - Contract for payment of money; governmental subdivisions.

893.62 - Action concerning usury.

893.63 - Actions on cashier's check, certified check, or bank money order.

893.64 - Actions upon accounts.

893.65 - Bank bills not affected.

893.66 - Certified public accountants; limitations of actions.

893.70 - Action against certain officials.

893.71 - County seat; contesting change.

893.72 - Actions contesting special assessment.

893.73 - Actions contesting governmental decisions.

893.735 - Action by prisoner contesting a governmental decision.

893.74 - School district; contesting validity.

893.75 - Limitation of action attacking municipal contracts.

893.76 - Order to repair or remove building or restore site; contesting.

893.765 - Order to remove wharves or piers in navigable waters; contesting.

893.77 - Validity of municipal obligation.

893.80 - Claims against governmental bodies or officers, agents or employees; notice of injury; limitation of damages and suits.

893.82 - Claims against state employees; notice of claim; limitation of damages.

893.825 - Statutory challenges.

893.83 - Damages caused by accumulation of snow or ice; liability of city, village, town, and county.

893.85 - Action concerning old-age assistance lien.

893.86 - Action concerning recovery of legal fees paid for indigents.

893.87 - General limitation of action in favor of the state.

893.88 - Paternity actions.

893.89 - Action for injury resulting from improvements to real property.

893.895 - Real estate appraisers; limitations of actions.

893.90 - Bond; campaign financing; lobbying.

893.91 - Action for expenses related to a forest fire.

893.92 - Action for contribution.

893.925 - Action for certain damages related to mining.

893.93 - Miscellaneous actions.

893.94 - Organized crime control; civil remedies.

893.95 - Unclaimed property; civil remedies.

893.96 - Family leave and medical leave; civil remedies.

893.965 - Bone marrow and organ donation leave; civil remedies.

893.97 - Business closing notification.

893.98 - Cessation of health care benefits notification.

893.99 - Home care consumer notification.