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When you're injured in Wisconsin because of someone's negligence, you have the option to file a personal injury lawsuit against that person in Wisconsin's courts. Is the same true if you're hurt by the wrongdoing of a government employee or agency? For example, say you're hit by a car driven by a Wisconsin employee, or you trip and fall on a broken staircase in a city building. Can you just sue the government? The short answer is no, you can't. Suing the government can be a tricky business in any state. We'll see why that's especially true in Wisconsin, where the law is—to put it mildly—rather confusing. We begin, though, with an introduction to the issues you're likely to encounter if you bring an injury claim against the government.
When you bring a personal injury claim against the government, expect to face an often-confusing lineup of rules, procedures, and limitations that you don't have to deal with when you sue a private person or a business. Here's a partial list of some common government injury claim issues. Chances are some or all of these—and maybe others—will make an appearance in your case.
Government immunities are rules crafted by courts and legislatures to make sure that governments and their employees can avoid liability (legal responsibility) for injuries they cause. There are many different immunities, and each works a bit differently than the others. The details aren't as important as what an immunity can do to your case.
Immunities are claim killers. No matter how serious or permanent your injuries or how blameworthy the government's misconduct might be, an immunity probably ends your claim. Most governments have "waived" (voluntarily surrendered) their immunities, at least for some claims. But in every state, some immunities remain.
When you've been injured by the government, be prepared to move quickly. Special deadlines, including lawsuit-filing deadlines known as statutes of limitations, often require that you act within just a few months. Don't be surprised if you have to make critical decisions even before you've had a chance to gather all the facts.
Does this mean injury claims against the government move more quickly or efficiently than other claims? Regrettably, no. The main reason for these quick deadlines is simple: They kill claims before the government can be forced to pay. Don't try to navigate your way through them alone. An experienced government claims lawyer is essential.
In addition to immunities and short deadlines, you'll also have to contend with processes and procedures you're not likely to find in other cases. Here's just one example. Almost all states require you to send the government written notice of your claim or your intent to sue before you can file a lawsuit. Pay close attention to your state and local law: The notice deadline might be just a few months after you were injured.
This notice requirement is yet another claim killer. Some injured claimants, unaware that notice is necessary, will fail to provide it. In most states, failure to timely notify the government ends your claim.
When all else fails—if you manage to handle the immunities, jump through all the deadline hoops, and follow all the special procedures—damage limits are the government's "get out of jail (almost) free" card. As the name suggests, damage limits cap the damages you can collect from the government even if you win your case.
Cap amounts vary from state to state, but in some places they can be as low as a few hundred thousand dollars. If your injuries are serious or catastrophic, that won't be nearly enough to provide for your needs.
The starting point to analyze a potential injury claim against the government should be your state's "tort claims act," or similar law. A "tort" is simply a wrongful act that causes personal injury or property damage. A "tort claim" is an insurance claim or a civil lawsuit to collect compensation (damages) for tort injuries.
The term "tort claims act" can be a bit misleading. State tort claims laws don't regulate all tort claims generally. Instead, they lay down the basic rules—immunities, deadlines, and special procedures—for tort claims against the state. In some states, the tort claims act also details the rules for claims against local governments. State courts usually fill in the blanks with case decisions that explain and interpret the law.
Wisconsin doesn't have a tort claims act like most other states. Instead, its law consists of a confusing assortment of statutes, together with case decisions from the Wisconsin Supreme Court. Here's the bottom line: As to Wisconsin and its political subdivisions—counties, cities, towns, villages, school districts, and more—immunity is the rule, liability is the exception.
Government officers and employees, both state and local, are immune from liability for most acts within the scope of their duties. Because the government can act only through its employees and officers, their immunity effectively insulates the government itself from liability. Here's how it works.
All government actions can be categorized as either "discretionary" or "ministerial." Because they involve some element of judgment based on particular facts and circumstances, most government acts fall into the discretionary category. As a rule, Wisconsin public officers and employees—state or local—can't be held legally responsible for injuries resulting from the negligent performance of discretionary acts. The result? In Wisconsin, so-called "discretionary acts" immunity is a wide-ranging rule that shields most of the day-to-day work of government actors.
Examples of Discretionary ActsThe line between discretionary and ministerial acts isn't sharp or bright. Deciding which side of the line an act falls on typically requires close judgments based on contested facts and circumstances. Wisconsin courts have found these acts to be discretionary and thus immune from liability:
The Wisconsin Supreme Court has carved out four categories of cases that don't qualify for discretionary acts immunity. Government officers and employees aren't immune from liability for:
Negligently performed ministerial acts. Government officers and employees face liability when their negligence (carelessness) in carrying out a ministerial act causes injury. A ministerial act is one that's " absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." (Lister v. Board of Regents, 72 Wis. 2d 282, 301 (1976).)
Examples of Ministerial ActsWisconsin courts have found these acts to be ministerial and not immune from liability:
Negligence in response to a known danger. A "known danger" exists when there's "an obviously hazardous situation" and "the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act." (Pries v. McMillon, 326 Wis. 2d 37, 53 (Wis. 2010) (internal quotation and citation omitted).)
Stated a bit differently, a known danger involves circumstances so obviously dangerous that they create a ministerial duty to act. When a public officer or employee negligently takes or fails to take appropriate action in response to a known danger, liability can follow. (See Cords v. Anderson, 80 Wis. 2d 525 (Wis. 1977).)
Acts involving medical decision making. Wisconsin's discretionary acts immunity doesn't apply to discretionary medical acts. (See Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 686 (Wis. 1980) (liability for negligently performing an autopsy).) Why this exception for discretionary acts? Because, according to the Wisconsin Supreme Court, the discretion being exercised is medical, not governmental.
This exception applies only to medical cases, not those involving other sorts of professional discretion. (Stann v. Waukesha County, 161 Wis. 2d 808, 818 (Wis. Ct. App. 1991).)
Malicious, willful, and intentional acts. For this exception to apply, the government's action must be all three: Intentional, willful, and malicious. (See Bicknese v. Sutula, 260 Wis. 2d 713, 728 (Wis. 2003).)
Here's a partial list of personal injury negligence claims commonly filed against Wisconsin and its political subdivisions:
This listing isn't meant to be complete. Your lawyer can tell you whether your claim falls into the ministerial or discretionary group.
When you've been injured by Wisconsin or its officers or employees, Wis. Stat. § 893.82 (2024) prescribes special notice procedures and deadlines you'll have to follow before you can file a lawsuit in court.
Not later than 120 days after the date you're injured, you must send written notice of your claim to the Wisconsin Attorney General. You can use this claim form. Your notice must be written and should describe:
The notice should be sworn, meaning you'll need to have it notarized. You can deliver it personally (be sure to get a delivery receipt) or via certified mail to the Attorney General at the state capitol or the Wisconsin Department of Justice. (Wis. Stat. § 893.82(5) (2024).)
Like most states, Wisconsin limits the personal injury damages you can recover from the State. The most you can collect is $250,000, no matter how serious or disabling your injuries might be. This amount won't be nearly enough if you've suffered serious or catastrophic injuries. You can't get punitive damages in a claim against Wisconsin. (Wis. Stat. § 893.82(6) (2024).)
A different statute, Wis. Stat. § 893.80 (2024), details the requirements for claims against a Wisconsin local government.
Within 120 days from the date you were injured, you must deliver both a notice of your claim and your claim itself, all as spelled out in Wis. Stat. § 893.80(1d) (2024).
Written notice of your claim. You must send a " written notice of the circumstances of the claim" to the local government, officer, or employee you believe is responsible for your injury. If you fail to send this notice, you can still file a lawsuit as long as the government had actual notice of your claim and its legal position wasn't harmed by the delay in notification.
Filing your claim. You also must send the clerk or secretary of the local government a written claim. Your claim must include:
Once you file your claim, the government has up to 120 days to consider it. The claim is denied or treated as denied on the earlier of:
If you want to file a lawsuit, you have just six months from the date your claim is denied (or is treated as denied). (Wis. Stat. § 893.80(1g) (2024).) Miss this statute of limitations and, barring an exception that gives you more time, your claim is legally dead. If you try to file suit after the deadline has run out, the court will dismiss it. You won't have any better luck trying to settle your claim. Once the statute of limitations expires, you no longer have a claim to settle.
Under (Wis. Stat. § 893.80(3) (2024), with one exception your damages against most Wisconsin local governments can't exceed $50,000. The exception is for claims against a volunteer fire department, where your damages are capped at $25,000. In cases involving even moderate injuries, these cap amounts won't make you whole.
We've covered some of the basic rules relating to injury claims against the government in Wisconsin. If you have a claim (or a potential claim), your first call should be to an experienced Wisconsin government claims lawyer. You can bet that the government lawyers know the law and how to use it against you. Without expert help on your side, your claim stands little chance of success.
When you're ready to move forward, here's how to find an attorney near you.