Chapter 893

893.82 Note 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]

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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 277 (1992).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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.

893.82 Annotation 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).

893.82 Annotation 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).

893.82 Annotation 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).

893.825 893.825 Statutory challenges.

893.825(1) (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.

893.825(2) (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 proceeding and the assembly, the senate, and the joint committee on legislative organization are entitled to be heard.

893.825 History History: 2017 a. 369.

893.83 893.83 Damages caused by accumulation of snow or ice; liability of city, village, town, and county. No action may be maintained against a city, village, town, or county to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks. Any action to recover damages for injuries sustained by reason of an accumulation of snow or ice that has existed for 3 weeks or more upon any bridge or highway is subject to s. 893.80.

893.83 History History: 2003 a. 214 ss. 136, 137, 189; 2011 a. 132.

893.83 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

893.83 Annotation Shoveling snow from a sidewalk to create a mound along the curb does not create an unnatural or artificial accumulation that renders a city liable. Kobelinski v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 504, 202 N.W.2d 415 (1972).

893.83 Annotation City liability arising from snow and ice on sidewalks is determined under the standard of whether, under all the circumstances, the city was unreasonable in allowing the condition to continue. Circumstances to be considered include location, climactic conditions, accumulation, practicality of removal, traffic on the sidewalk, and intended use of the sidewalk by pedestrians. Schattschneider v. Milwaukee & Suburban Transport Corp., 72 Wis. 2d 252, 240 N.W.2d 182 (1976).

893.83 Annotation This section does not apply to a stairway connecting sidewalks. Although case law has extended the meaning of “highways” to include sidewalks, “highways” do not include stairways connecting sidewalks. Henderson v. Milwaukee County, 198 Wis. 2d 747, 543 N.W.2d 544 (Ct. App. 1995), 95-2294.

893.83 Annotation As used in this section, “highway” includes the shoulder of the highway. Morris v. Juneau County, 219 Wis. 2d 543, 579 N.W.2d 690 (1998), 96-2507.

893.83 Annotation A “highway” is an area that the entire community has free access to travel on. A public parking lot is available to the entire community for vehicular travel, and, as such, a city’s public parking lot is a “highway” for purposes of this section. Ellerman v. City of Manitowoc, 2003 WI App 216, 267 Wis. 2d 480, 671 N.W.2d 366, 03-0322.

893.83 Annotation When an accumulation of ice is created by natural conditions, a municipality has three weeks to address the problem. Actions based on artificial accumulations are actionable without the three-week requirement. To be an artificial condition, grading must be part of a drainage design plan or be shown to divert water from other sources onto the sidewalks. If not, grading, by itself, does not create an artificial condition on land even if the municipality had notice that a hazardous condition existed. Gruber v. Village of North Fond du Lac, 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692, 03-0357.

893.83 Note NOTE: The above annotations cite to s. 81.15, the predecessor statute to this section.

893.83 Annotation The first sentence of this section grants municipalities a period of absolute immunity for claims based on snow and ice accumulations that have existed less than three weeks. The second sentence clarifies that immunity is not absolute if the snow or ice accumulation has existed for three weeks or more—under such circumstances, a claim is subject to s. 893.80, like any other tort claim against a municipality. Knoke v. City of Monroe, 2021 WI App 6, 395 Wis. 2d 551, 953 N.W.2d 889, 19-2003.

subch. IX of ch. 893 SUBCHAPTER IX

STATUTES OF LIMITATION; ACTIONS BY THE STATE, STATUTORY LIABILITY AND MISCELLANEOUS ACTIONS

893.85 893.85 Action concerning old-age assistance lien.

893.85(1) (1) An action to collect an old-age assistance lien filed under s. 49.26, 1971 stats., prior to August 5, 1973, must be commenced within 10 years after the date of filing of the required certificate under s. 49.26 (4), 1971 stats.

893.85(2) (2) No claim under s. 49.25, 1971 stats., may be presented more than 10 years after the date of the most recent old-age assistance payment covered by the claim.

893.85 History History: 1977 c. 385; 1979 c. 323.

893.85 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.181 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.86 893.86 Action concerning recovery of legal fees paid for indigents. An action under s. 757.66 to recover an amount paid by a county for legal representation of an indigent defendant shall be commenced within 10 years after the recording of the claim required under s. 757.66 or be barred.

893.86 History History: 1979 c. 323; 1993 a. 301.

893.87 893.87 General limitation of action in favor of the state. Any action in favor of the state, if no other limitation is prescribed in this chapter, shall be commenced within 10 years 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 deemed to have accrued until discovery on the part of the state of the facts constituting the fraud.

893.87 History History: 1979 c. 323.

893.87 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.18 (6) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.87 Annotation This section applies only if the action is of a type that does not fall under any other statute of limitations. State v. Holland Plastics Co., 111 Wis. 2d 497, 331 N.W.2d 320 (1983).

893.87 Annotation When every day of violation of a statute constitutes a separate violation, a cause of action accrues on each day of an alleged violation. State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 580 N.W.2d 203 (1998), 96-1158.

893.88 893.88 Paternity actions. Notwithstanding s. 990.06, an action for the establishment of the paternity of a child shall be commenced within 19 years of the date of the birth of the child or be barred.

893.88 History History: 1971 c. 21; 1979 c. 323, 352; 1979 c. 355 s. 225, 231; 1979 c. 357; Stats. 1979 s. 893.88; 1983 a. 447.

893.88 Annotation This section did not revive a time-barred paternity action. State v. D.B., 137 Wis. 2d 57, 403 N.W.2d 434 (1987).

893.88 Annotation This section is constitutional. James A.O. v. George C.B., 182 Wis. 2d 166, 513 N.W.2d 410 (Ct. App. 1994).

893.88 Annotation This section, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.

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

893.89(1) (1) In this section, “exposure period” means the 7 years immediately following the date of substantial completion of the improvement to real property.

893.89(2) (2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.

893.89(3) (3) 

893.89(3)(a) (a) Except as provided in pars. (b) and (c), if a person sustains damages as the result of a deficiency or defect in an improvement to real property, and the statute of limitations applicable to the damages bars commencement of the cause of action before the end of the exposure period, the statute of limitations applicable to the damages applies.

893.89(3)(b) (b) If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 5th year and ending on the last day of the 7th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for 3 years after the date on which the damages occurred.

893.89(3)(c) (c) An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b).

893.89(4) (4) This section does not apply to any of the following:

893.89(4)(a) (a) A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.

893.89(4)(b) (b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.

893.89(4)(c) (c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.

893.89(4)(d) (d) Damages that were sustained before April 29, 1994.

893.89(5) (5) Except as provided in sub. (4), this section applies to improvements to real property substantially completed before, on or after April 29, 1994.

893.89(6) (6) This section does not affect the rights of any person under ch. 102.

893.89 History History: 1975 c. 335; 1979 c. 323; 1993 a. 309, 311; 2017 a. 235.

893.89 Annotation “Substantial completion,” the event that triggers the limitation period under former s. 893.89, 1977 stats., is ambiguous. The period begins to run when planners, designers, and contractors lose a significant amount of control over the improvement. A convenient and fair measure of the time when control over the improvement shifts from the builders to the owner is the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the use it was intended. Holy Family Catholic Congregation v. Stubenrauch Associates, Inc., 136 Wis. 2d 515, 402 N.W.2d 382 (Ct. App. 1987). See also Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.

893.89 Annotation Bleachers at a high school football stadium qualified as an “improvement to real property” for purposes of this section because they were a permanent addition to real property that enhanced its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. That an improvement can be removed without harming the real property will not necessarily indicate that the item is not an improvement to real property. The more pertinent inquiry is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.

893.89 Annotation This section does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor the guarantees of equal protection in the federal and state constitutions. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.

893.89 Annotation This section bars safe place claims under s. 101.11 resulting from injuries caused by structural defects ten [now seven] years after a structure is substantially completed, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252.

893.89 Annotation The evident purpose of sub. (4) (b) is to give a party who has bargained for a warranty or guarantee the benefit of the warranty or guarantee period before the exposure period begins to run. The common council is the only entity authorized by statute to act on behalf of a city. Sub. (4) (b) does not need to explicitly state that a municipality must take “official action,” because the only manner in which a municipality may lawfully act is already established by the statutes that govern it. Sub. (4) (b) does not extend to an “unofficial” warranty or guarantee that is unenforceable and does not provide an equitable estoppel exception to the running of the statute. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.

893.89 Annotation When the design and construction of city streets caused a water drainage problem, the city’s failure to alter the streets to remedy the problem was a not failure to “maintain” the streets under sub. (4) (c). The applicable common meaning of “maintenance” in this context is the labor of keeping something in a state of repair. Here there was no factual submission showing that the city did or failed to do something with respect to keeping the streets in repair that caused the water damage. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.

893.89 Annotation The warranty specified in sub. (4) (b) is an express warranty; this means an implied warranty is not enough. City officials, such as employees and individual members of the common council, cannot, through representations that problems will be solved, bind the city to resolve those problems unless they act or make their representations with the authority to bind the city. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.

893.89 Annotation When an improvement to real property creates a nuisance, a party has ten [now seven] years from the substantial completion of that improvement to bring suit. Sub. (4) (c) applies when an improvement to real property is completed, but the owner or occupier is negligent in the maintenance, operation, or inspection of it, thus causing damage. It does not apply to proper maintenance of an improvement when it is the improvement itself that causes injury. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.

893.89 Annotation An easement agreement that expressly stated that the defendant sewer district agreed to construct and maintain an intercepting sewer in good order and condition and to indemnify and save harmless the plaintiff from all loss or injury to its property and persons due to such construction was an express warranty under Hocking, 2010 WI 59. Cianciola, LLP v. Milwaukee Metropolitan Sewerage District, 2011 WI App 35, 331 Wis. 2d 740, 796 N.W.2d 806, 10-0087.

893.89 Annotation This section provides that persons involved in improvements to real property may not be sued more than ten [now seven] years after substantial completion of a project. The statute does not extend the time for bringing lawsuits that are otherwise time-barred by statutes of limitations. This section is a catch-all provision that imposes a time limit on many lawsuits relating to property improvements that are not otherwise time-barred within ten [now seven] years after substantial completion. If a cause of action is time-barred by a statute of limitations before it would be barred under this section, that statute of limitations applies. Kalahari Development, LLC v. Iconica, Inc., 2012 WI App 34, 340 Wis. 2d 454, 811 N.W.2d 825, 11-0643.

893.89 Annotation This section applies to claims against subsequent owners who were not involved in the actual improvement to the property. Expanding the class of claims exempt from the statute of repose under sub. (4) (c) to include not only unsafe conditions, but also structural defects of which an owner has notice, would effectively swallow the rule because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct. Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75, 355 Wis. 2d 403, 851 N.W.2d 771, 13-1369.

893.89 Annotation “Damages” in sub. (4) (d) means legally actionable damages. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.

893.89 Annotation The purpose of this section is to protect contractors who are involved in permanent improvements to real property. Daily repairs are not improvements to real property as that phrase is used in this section. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.

893.89 Annotation Although the accident in this case occurred well after the ten-year [now seven-year] exposure period had expired, there was sufficient evidence in the record to support the trial court’s findings that the defendant concealed and misrepresented changes in construction, thus triggering the fraud exception to the statute of repose. Wosinski v. Advance Cast Stone Co., 2017 WI App 51, 377 Wis. 2d 596, 901 N.W.2d 797, 14-1961.

893.89 Annotation The builder’s statute of repose may not be avoided by arguing that a hazard such as an uneven floor or inclined surface should be discovered by a property owner and either fixed or marked. If that logic were followed, a duty to inspect and warn would render the statutory exposure period meaningless because a plaintiff could always allege that a defendant should have inspected its premises and either fixed or warned of any alleged defect. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.