NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
Judicial Council Committee's Note, 1979: This section has been created to consolidate into one provision of ch. 893 six types of actions presently outside of the chapter involving the contesting of governmental decisions. The actions have been broken down into 2 separate categories, those which must be commenced within 180 days of the adoption of the governmental decision and those that must be commenced within 90 days of the decision.
The previous 180-day period within which to contest a county zoning ordinance or amendment remains unchanged.
The one-year period in which to commence an action to contest the proceedings to constitute or divide a town has been shortened to 180 days (see note following s. 60.05 (4)). The previous 180-day time period to commence an action contesting the validity of the creation of a soil and water district remains unchanged (see note following s. 92.16).
The previous 20-day period to commence an action to set aside an action of a town board to establish a sanitary district has been increased to 90 days (see note following s. 60.304).
The previous 60-day period within which to commence an action to contest the validity of an annexation has been increased to 90 days (see note following s. 66.021 (10) (a)).
The 90-day period to commence an action contesting the validity of an order regarding a highway or highway records remains unchanged (see note following s. 80.34 (2)). [Bill 326-A]
Under sub. (2), “adoption" refers to a legislative body's approval of an annexation ordinance. The statute of limitations begins to run on that date. Town of Sheboygan v. City of Sheboygan, 150 Wis. 2d 210
, 441 N.W.2d 752
(Ct. App. 1989).
Action by prisoner contesting a governmental decision. 893.735(2)
An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition. Subject to no contact requirements of a court or the department of corrections, a prisoner in administrative confinement, program segregation or adjustment segregation may communicate by 1st class mail, in accordance with department of corrections' rules or with written policies of the custodian of the prisoner, with a 3rd party outside the institution regarding the action or special proceeding.
In this section, an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.
History: 1997 a. 133
The words “on behalf of" in sub. (2) are not restricted to third-party conduct. The time limit applies to actions filed by a prisoner on behalf of himself or herself. State ex rel. Collins v. Cooke, 2000 WI App 101
, 235 Wis. 2d 63
, 611 N.W.2d 774
The definition of “prisoner" in s. 801.02 (7) (a) 2. does not include a Wisconsin inmate sent to an out-of-state county jail, and, therefore, the 45-day limit does not apply to the inmate. State ex rel. Frohwirth v. Wisconsin Parole Commission, 2000 WI App 139
, 237 Wis. 2d 627
, 614 N.W.2d 541
Persons seeking certiorari review of probation revocation are prisoners subject to the 45-day filing deadline under sub. (2). State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86
, 236 Wis. 2d 473
, 613 N.W.2d 591
When a prison inmate places a certiorari petition in the prison's mailbox for forwarding to the circuit court, the 45-day limit under sub. (2) is tolled. However, other defects in filing may nonetheless result in rejection by the court. State ex rel. Shimkus v. Sondalle, 2000 WI App 262
, 240 Wis. 2d 310
, 622 N.W.2d 763
To invoke the tolling of the 45-day limit under sub. (2), an inmate must present an affidavit or some other sufficient evidence of the date on which the petition was deposited in the institution mailbox. State ex rel. Shimkus v. Sondalle, 2000 WI App 262
, 240 Wis. 2d 310
, 622 N.W.2d 763
A verified petition, being a sworn statement, that was unchallenged by the state was sufficient to establish the number of days between the date of the challenged decision and the prisoner's receipt of it. There were no circumstances justifying not extending the 45-day limit pursuant to sub. (2). State ex rel. Johnson v. Litscher, 2001 WI App 47
, 241 Wis. 2d 407
, 625 N.W.2d 887
That out-of-state inmates have a longer filing deadline for challenging parole revocation under Frohwirth
does not violate the constitutional guarantee of equal protection. State ex rel. Saffold v. Schwarz, 2001 WI App 56
, 241 Wis. 2d 253
, 625 N.W.2d 333
The statute of limitations is tolled while a prisoner waits for the Department of Justice to provide the certification required by ss. 801.02 (7) (d) and 802.05 (3) (c). State ex rel. Locklear v. Schwarz, 2001 WI App 74
, 242 Wis. 2d 327
, 629 N.W.2d 30
To invoke the tolling of the 45-day limit under sub. (2), a prisoner must submit proper documents and comply with statutory fee or fee-waiver requirements. State ex rel. Tyler v. Bett, 2002 WI App 234
, 257 Wis. 2d 606
, 652 N.W.2d 800
Petitioners were entitled to equitable relief when they timely asked counsel to file for certiorari, counsel promised to do so, and due to counsel's failure to timely file they were denied certiorari review. The 45-day time limit for the filing of a writ of certiorari was equitably tolled as of the date that counsel promised to file for certiorari review. Griffin v. Smith, 2004 WI 36
, 270 Wis. 2d 235
, 677 N.W.2d 259
School district; contesting validity.
No appeal or other action attacking the legality of the formation of a school district, either directly or indirectly, may be commenced after the school district has exercised the rights and privileges of a school district for a period of 90 days.
History: 1979 c. 323
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action attacking the legality of a formation of a school district (see note following s. 117.01 (7)). [Bill 326-A]
Limitation of action attacking municipal contracts.
Whenever the proper officers of any city, village or town, however incorporated, enter into any contract in manner and form as prescribed by statute, and either party to the contract has procured or furnished materials or expended money under the terms of the contract, no action or proceedings may be maintained to test the validity of the contract unless the action or proceeding is commenced within 60 days after the date of the signing of the contract.
History: 1979 c. 323
; 1993 a. 246
Judicial Council Committee's Note, 1979: This action has been created to place into ch. 893 the statute of limitation for an action contesting the validity in a contract entered into by a city or village (see note following s. 66.13). [Bill 326-A]
Order to repair or remove building or restore site; contesting.
An application under s. 66.0413 (1) (h)
to a circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing a building or part of a building and restoring a site to a dust-free and erosion-free condition shall be made within 30 days after service of the order issued under s. 66.0413 (1) (b)
or be barred.
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an application for an order restraining the razing or removing of a building (see note following s. 66.05 (3)). [Bill 326-A]
Order to remove wharves or piers in navigable waters; contesting.
An application under s. 30.13 (5m) (c)
to circuit court for a restraining order prohibiting the removal of a wharf or pier shall be made within 30 days after service of the order issued under s. 30.13 (5m) (a)
or be barred.
History: 1981 c. 252
; 1999 a. 150
; 2001 a. 30
Validity of municipal obligation. 893.77(1)(1)
An action to contest the validity of any municipal obligation which has been certified by an attorney in the manner provided in s. 67.025
, for other than constitutional reasons, must be commenced within 30 days after the recording of such certificate as provided by s. 67.025
. An action to contest the validity of any state or state authority obligation for other than constitutional reasons must be commenced within 30 days after the adoption of the authorizing resolution for such obligation.
An action or proceeding to contest the validity of any municipal bond or other financing, other than an obligation certified as described in sub. (1)
, for other than constitutional reasons, must be commenced within 30 days after the date on which the issuer publishes in the issuer's official newspaper, or, if none exists, in a newspaper having general circulation within the issuer's boundaries, a class 1 notice, under ch. 985
, authorized by the governing body of the issuer, and setting forth the name of the issuer, that the notice is given under this section, the amount of the bond issue or other financing and the anticipated date of closing of the bond or other financing and that a copy of proceedings had to date of the notice are on file and available for inspection in a designated office of the issuer. The notice may not be published until after the issuer has entered into a contract for sale of the bond or other financing.
An action contesting bonds of a municipal power district organized under ch. 198
, for other than constitutional reasons, shall be commenced within 30 days after the date of their issuance or be barred.
Judicial Council Committee's Note, 1979: This section is previous s. 893.23 renumbered for more logical placement in the restructured chapter. Section 893.77 (3) is created to place into ch. 893 of the statutes the statute of limitations for an action contesting the bonds of a municipal power district (see note following s. 198.18 (3)). [Bill 326-A]
CLAIMS AGAINST GOVERNMENTAL BODIES,
OFFICERS AND EMPLOYEES;
Claims against governmental bodies or officers, agents or employees; notice of injury; limitation of damages and suits. 893.80(1b)(1b)
In this section, “agent" includes a volunteer. In this subsection, “volunteer" means a person who satisfies all of the following:
The person provides services or performs duties for and with the express or implied consent of a volunteer fire company organized under ch. 181
, political corporation, or governmental subdivision or agency thereof. A person satisfies the requirements under this paragraph even if the activities of the person with regard to the services and duties and the details and method by which the services are provided and the duties are performed are left to the discretion of the person.
The person is subject to the right of control of the volunteer company, political corporation, or governmental subdivision or agency described in par. (a)
The person is not paid a fee, salary, or other compensation by any person for the services or duties described in par. (a)
. In this paragraph, “compensation" does not include the reimbursement of expenses.
Except as provided in subs. (1g)
, no action may be brought or maintained against any volunteer fire company organized under ch. 213
, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employee of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employee under s. 801.11
. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employee; and
A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant fire company, corporation, subdivision or agency and the claim is disallowed.
Notice of disallowance of the claim submitted under sub. (1d)
shall be served on the claimant by registered or certified mail and the receipt therefor, signed by the claimant, or the returned registered letter, shall be proof of service. Failure of the appropriate body to disallow a claim within 120 days after presentation of the written notice of the claim is a disallowance. No action on a claim under this section against any defendant fire company, corporation, subdivision or agency nor against any defendant officer, official, agent or employee, may be brought after 6 months from the date of service of the notice of disallowance, and the notice of disallowance shall contain a statement to that effect.
With regard to a claim to recover damages for medical malpractice, the provisions of sub. (1d)
do not apply. The time periods that apply for commencing an action under this section for damages for medical malpractice are the time periods under ss. 893.55 (1m)
, and (3)
No action may be brought or maintained with regard to a claim to recover damages against any political corporation, governmental subdivision or agency thereof for the negligent inspection of any property, premises, place of employment or construction site for the violation of any statute, rule, ordinance or health and safety code unless the alleged negligent act or omission occurred after November 30, 1976. In any such action, the time period under sub. (1d) (a)
shall be one year after discovery of the negligent act or omission or the date on which, in the exercise of reasonable diligence the negligent act or omission should have been discovered.
Only one action for property damage may be brought under sub. (1p)
by 2 or more joint tenants of a single-family dwelling.
The claimant may accept payment of a portion of the claim without waiving the right to recover the balance. No interest may be recovered on any portion of a claim after an order is drawn and made available to the claimant. If in an action the claimant recovers a greater sum than was allowed, the claimant shall recover costs, otherwise the defendant shall recover costs.
Except as provided in this subsection, the amount recoverable by any person for any damages, injuries or death in any action founded on tort against any volunteer fire company organized under ch. 181
, political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employees for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000. The amount recoverable under this subsection shall not exceed $25,000 in any such action against a volunteer fire company organized under ch. 181
or its officers, officials, agents or employees. If a volunteer fire company organized under ch. 181
is part of a combined fire department, the $25,000 limit still applies to actions against the volunteer fire company or its officers, officials, agents or employees. No punitive damages may be allowed or recoverable in any such action under this subsection.
No suit may be brought against any volunteer fire company organized under ch. 213
, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
Except as provided in this subsection, the provisions and limitations of this section shall be exclusive and shall apply to all claims against a volunteer fire company organized under ch. 213
, political corporation, governmental subdivision or agency or against any officer, official, agent or employee thereof for acts done in an official capacity or the course of his or her agency or employment. When rights or remedies are provided by any other statute against any political corporation, governmental subdivision or agency or any officer, official, agent or employee thereof for injury, damage or death, such statute shall apply and the limitations in sub. (3)
shall be inapplicable.
A 1st class city, its officers, officials, agents or employees shall not be liable for any claim for damages to person or property arising out of any act or omission in providing or failing to provide police services upon the interstate freeway system or in or upon any grounds, building or other improvement owned by a county and designated for stadium or airport purposes and appurtenant uses.
No suit may be brought against the state or any governmental subdivision or agency thereof or against any officer, official, agent or employee of any of those entities who, in good faith, acts or fails to act to provide a notice to a property owner that a public nuisance under s. 823.113 (1)
or (1m) (b)
This section does not apply to actions commenced under s. 19.37
, or 281.99
or to claims against the interstate insurance product regulation commission.
The procurement or maintenance of insurance or self-insurance by a volunteer fire company organized under ch. 181
, political corporation, or governmental subdivision or agency thereof, irrespective of the extent or type of coverage or the persons insured, shall not do any of the following:
Constitute a waiver of the provisions of this section.
Be relied upon to deny a person status as an officer, official, agent, or employee of the volunteer fire company, political corporation, or governmental subdivision or agency thereof.
Judicial Council Committee's Note, 1979: Previous s. 895.43 is renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
A spouse's action for loss of consortium is separate and has a separate dollar limitation from the injured spouse's claim for damages. Schwartz v. Milwaukee, 54 Wis. 2d 286
, 195 N.W.2d 480
Sub. (3) [now sub. (4)] establishes municipal immunity from actions for the intentional torts of its employees; assault and battery constitutes an intentional tort. Sub. (3) [now sub. (4)] also precludes suit against a municipality for the alleged failure of its police and fire commission to act to remove an officer, since that is a quasi-judicial function. Salerno v. Racine, 62 Wis. 2d 243
, 214 N.W.2d 446
When a policy contained no language precluding the insurer from raising the limited liability defense, the $25,000 limitation was not waived. Sambs v. Brookfield, 66 Wis. 2d 296
, 224 N.W.2d 582
The class action statute, s. 260.12 [now s. 803.08], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401
, 238 N.W.2d 509
(1974). But see Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
A plaintiff's complaint alleging that two police officers who forcibly entered his home and physically abused him were negligent inter alia in failing to identify themselves and in using excessive force, in reality alleged intentional torts for which the municipality was immune from direct action under sub. (3) [now sub. (4)]. Baranowski v. Milwaukee, 70 Wis. 2d 684
, 235 N.W.2d 279
Compliance with a statute is a condition in fact requisite to liability, but is not a condition required for stating a cause of action. Rabe v. Outagamie County, 72 Wis. 2d 492
, 241 N.W.2d 428
The requirements that a claim be first presented to a school district and disallowed and that suit be must commenced within six months of disallowance do not deny equal protection. Binder v. Madison, 72 Wis. 2d 613
, 241 N.W.2d 613
Any duty owed by a municipality to the general public is also owed to individual members of the public. Inspection of buildings for safety and fire prevention purposes under s. 101.14 does not involve a quasi-judicial function within the meaning of s. 895.43 (3) [now sub. (4)]. Coffey v. Milwaukee, 74 Wis. 2d 526
, 247 N.W.2d 132
Under sub. (1) [now sub. (1d)], the plaintiff has the burden of proving the giving of notice, or actual notice, and the nonexistence of prejudice, but need not allege the same in the complaint. A city is required to plead lack of compliance with the statute as a defense. Weiss v. Milwaukee, 79 Wis. 2d 213
, 255 N.W.2d 496
The doctrine of municipal tort immunity was applied to relieve a political subdivision from liability for negligence when an automobile collision occurred due to the use of a sewer by a truck. Allstate Insurance Co. v. Milwaukee Metropolitan Sewerage Commission, 80 Wis. 2d 10
, 258 N.W.2d 148
A park manager of a state-owned recreational area who knew that a publicly used trail was inches away from a 90-foot gorge and that the terrain was dangerous breached a ministerial duty in failing to either place warning signs or advise superiors of the condition and was liable for injuries to the plaintiffs who fell into the gorge. Cords v. Anderson, 80 Wis. 2d 525
, 259 N.W.2d 672
A breach of a ministerial duty was inferred from the complaint's allegations that the defendant state employees who set up a detour route on which the plaintiff was injured failed to follow national traffic standards, place appropriate signs, and safely construct a temporary road. Pavlik v. Kinsey, 81 Wis. 2d 42
, 259 N.W.2d 709
An insurance policy was construed to waive recovery limitations under ss. 81.15 and 895.43 [now this section and s. 893.83 (1)]. Stanhope v. Brown County, 90 Wis. 2d 823
, 280 N.W.2d 711
Section 118.20 is not the exclusive remedy of a wronged teacher. It is supplementary to the remedy under the fair employment act. General provisions of this section are superseded by specific authority of that act. Kurtz v. City of Waukesha, 91 Wis. 2d 103
, 280 N.W.2d 757
“Quasi-judicial" or “quasi-legislative" acts are synonymous with “discretionary" acts. Scarpaci v. Milwaukee County, 96 Wis. 2d 663
, 292 N.W.2d 816
Recovery limitations under ss. 81.15 and 895.43 (2) [now sub. (2) and s. 893.83 (1)] are constitutional. Sambs v. City of Brookfield, 97 Wis. 2d 356
, 293 N.W.2d 504
A city was liable for the negligent acts of its employees, even though the employees were immune from liability. Maynard v. City of Madison, 101 Wis. 2d 273
, 304 N.W.2d 163
(Ct. App. 1981).
This section cannot limit damage awards under 42 USC 1983. The court erred in reducing an attorney fees award. Thompson v. Village of Hales Corners, 115 Wis. 2d 289
, 340 N.W.2d 704
A sheriff's dispatcher breached a ministerial duty by failing to have a fallen tree removed from a road. Domino v. Walworth County, 118 Wis. 2d 488
, 347 N.W.2d 917
(Ct. App. 1984).
Service of notice of a claim on a county agency met the jurisdictional prerequisite of sub. (1) (b) [now sub. (1d) (b)]. Finken v. Milwaukee County, 120 Wis. 2d 69
, 353 N.W.2d 827
(Ct. App. 1984).
A claim for a specific amount of money damages satisfied the sub. (1) (b) [now sub. (1d) (b)] requirement of an “itemized statement of relief sought." Figgs v. City of Milwaukee, 121 Wis. 2d 44
, 357 N.W.2d 548
Although a decision to release a patient from a mental health complex was quasi-judicial and protected under sub. (4), the medical examination and diagnosis that formed the basis for the decision to release were not. Gordon v. Milwaukee County, 125 Wis. 2d 62
, 370 N.W.2d 803
(Ct. App. 1985).
When a claim was not disallowed in writing and the claimant did not wait 120 days after presentation before filing a lawsuit, the statute of limitations was not tolled. Schwetz v. Employers Insurance of Wausau, 126 Wis. 2d 32
, 374 N.W.2d 241
(Ct. App. 1985).