Liability

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381. Section 301.46(7), Stats., grants immunity from civil liability for any good faith act or omission regarding the release of information on registered sex offenders under sec. 301.46 which allows police chiefs to provide information regarding registered sex offenders to specified parties or members of the general public if the police chief believes that providing the information is necessary to protect the public. Wisconsin law does not extend immunity to a person whose act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct. The federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, amended by Megan's Law, also grants immunity for good faith conduct under the Act. 42 U.S.C. sec. 14071(e). 7/10/97.

383. Although Wisconsin municipalities can be held liable for damages caused by the negligence of their officers or employees, a municipality would be immune from liability for the erroneous grant of a permit because the grant or denial of a permit is a quasi-judicial function. Section 893.80(4), Stats; Allstate Insurance v. Metro Sewerage Comm'n, 80 Wis.2d 10, 258 N.W.2d 148 (1977). (1/8/97).

384. Reviews recent U.S. Supreme Court decision, Bogan v. Scott-Harris, No. 96-1569, (U.S. Mar. 3, 1998), holding that local legislators, such as members of village boards and common councils, are absolutely immune from civil liability under 42 U.S.C. sec. 1983 for their legislative activities. Also discusses personal liability of municipal officials in general. 2/27/98.

385. Business alleging loss of profits due to decreased road accessibility during municipal construction project could not sue contractor based on breach of contract or negligence. The business lacked standing to sue under the contract because it was not a third-party beneficiary of the contract which was made on behalf of the public as a whole rather than the business, and public policy barred the business's negligence claim because the potential liability was too out of proportion to the significance of any negligence, and to allow area businesses to recover lost profits from the contractor would open a field of liability with no just or sensible stopping point. Sussex Tool & Supply, Inc. v. Mainline Sewer & Water, Inc., 231 Wis.2d 404, 605 N.W.2d 620 (Ct. App. 1999). 4/1/00.

386. Discusses potential liability issues relating to unmanaged e-mail and internet use and makes some suggestions for drafting and enforcing policies. 5/31/01.

387. A municipality is not required to cut roadside vegetation and a municipality that decides to undertake the task of cutting roadside vegetation does not assume a duty to do so with reasonable care. Estate of Wagoner v. City of Milwaukee, Case No. 01-0623 (Ct. App. Nov. 20, 2001) (recommended for publication). 11/30/01.

388. Section 66.05(3), Stats., (now 66.0143(1)(h), Stats.) limitation on damage claims against municipalities for razing buildings does not bar post-razing claims by owner against municipality or contractor for torts committed in the carrying out of a raze order that are not premised on the wrongfulness or unreasonableness of the order, challenges to the reasonableness of a lien imposed for the costs of razing or failure to provide credit for salvage removal. Smith v. Williams, Case No. 00-3399 (Ct. App. November 29, 2001) (recommended for publication). 12/30/01

389. Settlement agreement between plaintiff and contractor in highway defect lawsuit for less than total amount awarded does not remove municipality's sec. 81.17, Stats., protection against judgment even if municipality does not object to agreement and agrees to dismissal of contractor from lawsuit. VanCleve v. City of Marinette, Case No. 01-0231, (Ct. App. December 18, 2001) (recommended for publication). 12/30/01.

390. Summarizes Wisconsin's recreational immunity statute, sec. 895.52, which provides municipalities with broad immunity from liability for the death or injury of a person engaged in a recreational activity on municipal property. Also summarizes significant court decisions interpreting the statute. 1/31/02.

390 R1. Summarizes Wisconsin’s recreational immunity statute, sec. 895.52, which provides municipalities with broad immunity from liability for the death or injury of a person engaged in a recreational activity on municipal property. Also summarizes significant court decisions interpreting the statute. 3/31/16.

391. Local governments are "persons" and can be sued under the federal False Claims Act and are subject to its punitive treble damages remedy. United States ex rel. Chandler v. Cook County, Illinois, Case No. 00-4110 (7th Cir. Jan. 22, 2002). 2/28/02.

392. The "known danger" exception to municipal immunity is a narrow, judicially created exception that arises only when there exists a danger that is known and compelling enough to give rise to a ministerial duty on the part of a municipality or its officers. For the known danger exception to apply, the danger must be compelling enough that a self-evident, particularized, and non-discretionary municipal action is required. The focus is on the specific act the public officer or official is alleged to have negligently performed or omitted. Lodl v. Progressive Northern Insurance Co., 2002 WI 71, ____ Wis.2d ___, 646 N.W.2d 314 (June 25, 2002). 7/31/02.

393. Section 81.17, Stats., is a successive liability statute rather than a joint liability statute and where it is applicable, a municipality may not be held to pay the remaining amount of the jury award when an injured plaintiff enters into a Pierringer release with the defendant who is primarily liable under the statute. Under sec. 81.17, Stats., a judgment against a municipality is not enforceable against execution has been issued against the party found primarily liable and returned unsatisfied. Where the injured plaintiff has entered into a Pierringer release with the defendant who is primarily liable, he or she cannot obtain a judgment against the defendant and thus the judgment cannot be executed and returned unsatisfied. VanCleve v. City of Marinette, 2003 WI 2, affirming 2002 WI App 10, 250 Wis.2d 121, 639 N.W.2d 792.1/3/03.

394. City did not waive affirmative defense that it was not primarily liable pursuant to sec. 81.17, Stats., by failing to object to the plaintiff entering into Pierringer release with defendant who was primarily liable and stipulating to defendant's dismissal from the lawsuit because the City had no legal basis for such an objection and the stipulation to the dismissal did not resolve any of the claims between the plaintiff and the municipality. VanCleve v. City of Marinette, 2003 WI 2, affirming 2002 WI App 10, 250 Wis.2d 121, 639 N.W.2d 792. 1/3/03.

395. Public policy reasons against imposing liability cannot trump unambiguous statute. VanCleve v. City of Marinette, 2003 WI 2, affirming 2002 WI App 10, 250 Wis.2d 121, 639 N.W.2d 792. 12/31/02.

396. Local governments are "persons" and can be sued under the federal False Claims Act and are subject to its punitive treble damages remedy. Cook County v. United States ex rel. Chandler, Case No. 01-1752 (March 10, 2003), aff'g United States ex rel. Chandler v. Cook County, Illinois, Case No. 00-4110 (7th Cir. Jan. 22, 2002). 2/28/02.

397. "A government issued notice alleging an insured's liability for environmental response under CERCLA constitutes the commencement of a legal proceeding that, in the CERCLA context, is the functional equivalent of a suit." In addition, "costs incurred to clean up damaged property as a result of an insured's liability under CERCLA are sums that an insured is legally obligated to pay as damages." Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108 (5-2 decision) (overruling City of Edgerton v. General Casualty Co. of Wisconsin, 184 Wis. 2d 750, 517 N.W.2d 463 (1994)). 8/29/03.

398. A public parking lot "available to the entire community for vehicular travel" is a "highway" within the meaning of sec. 81.15, Stats. Ellerman v. City of Manitowoc, Appeal No. 03-0322 (Ct. App. Sep. 24, 2003) (recommended for publication). 9/30/03.

399. Whether immunity exists under Wis. Stat. sec. 893.80(4) for nuisance founded on a municipality's negligence depends upon the character of the negligent acts; if the acts complained of are legislative, quasi-legislative, judicial, or quasi-judicial (discretionary), the municipality is protected by immunity, but immunity does not apply if the negligence involves an act performed pursuant to a ministerial duty. Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, Case No. 02-2961, aff'g 2003 WI App 209. 1/31/05.

400. Decisions regarding the adoption, design, and implementation of public works are discretionary, legislative, or quasi-legislative acts subject to immunity, as are approval of the design and construction of a public work, even if the system is poorly designed, and a municipal government is immune for this discretionary act under Wis. Stat. sec. 893.80(4). Thus, the City's decisions concerning the adoption of a waterworks system, the selection of the specific type of pipe, the placement of the pipe in the ground, and the continued existence of such pipe constituted discretionary legislative decisions, and the city was immune from private nuisance suit related to such decisions. Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, Case No. 02-2961, aff'g 2003 WI App 209.

401. Overview of the constitutional procedural due process requirements including coverage of the Town of Castle Rock v. Gonzales, 545 U.S. ___ (2005) decision where the U.S. Supreme Court concluded that a plaintiff did not have a cognizable property interest in the enforcement of a restraining order to support her procedural due process violation claim against the municipality. 10/31/05.

402. An employer may be liable under the Civil Rights Act of 1964 for the improper conduct of non-employees such as an independent contractor. Dunn v. Washington County Hospital, ___ F3d ___ (7th Cir., November 17, 2005). 11/30/05.

403. The clear and unambiguous statutory requirement to serve a notice of disallowance of claim on the claimant imposed on the government by Wis. Stat. sec. 893.80(1g) requires strict compliance to protect bona fide claims and is not satisfied by "actual notice" of disallowance and service on an adult child of a claimant does not satisfy this requirement. Pool v. City of Sheboygan, 2006 WL 1153907, Appeal No. 2005AP2028 (Ct. App. May 3, 2006) (recommended for publication). 5/31/06.

404. Members of a city police and fire commission who participated from 1997 to 2003 in a race-conscious promotion system with no identifiable standards to narrowly tailor it to the specific, identifiable, compelling needs of the municipal department in question were not entitled to qualified immunity and its no personal liability benefit since current law provided fair notice to the commissioners that their actions were outside of the constitutionally permissible bounds for such a system. Alexander v. City of Milwaukee, No. 06-1505 (7th Cir. Jan 19, 2007). 1/31/07.

405. Trial court's decision finding a city liable under sec. 1983 of the Civil Rights Act for the actions of members of its police and fire commission and under Title VII of the Civil Rights Act for the actions of its police chief who all participated in an unconstitutional race-conscious promotion system was proper given that the police and fire commission was a final policymaker and sec. 1983 provides no municipal liability exemption for unlawful conduct of a final policymaker and, irrespective of final policymaker status, a city is liable for the actions of its police chief under the respondeat superior theory of liability embraced by Title VII. Alexander v. City of Milwaukee, No. 06-1505 (7th Cir. Jan 19, 2007). 1/31/07.

406. Punitive damages should be proportional to the wrongfulness of each defendant's conduct and a jury must be clearly instructed that each individual defendant's actions and fault must serve as the basis for fashioning an appropriate punitive damages award. Alexander v. City of Milwaukee, No. 06-1505 (7th Cir. Jan 19, 2007). 1/31/07.

407. Application of the lost chance doctrine to calculate compensatory damages in a discriminatory promotion case requires a plaintiff to establish the probability that they would be promoted over all other potential candidates not just other plaintiffs. Alexander v. City of Milwaukee, No. 06-1505 (7th Cir. Jan 19, 2007). 1/31/07.

408. A police officer who ended a high-speed car chase by causing the evading vehicle to crash, permanently disabling the vehicle's driver, did not violate the driver's Fourth Amendment right to be free from unreasonable seizures despite the high likelihood of serious injury or death from the officer's actions where the evading driver's actions clearly threatened the safety of innocent bystanders and the officers involved in the chase. Scott v. Harris, 127 S.Ct. 1769, 75 USLW 4297, 550 U.S. ___ (2007). 5/30/07.

409. Post-installation grading done on water main installation site where water main was originally installed in accordance with ministerial duty imposed by state code was an aspect of site planning and involved discretionary decisions about the overall design of the development and thus was covered by governmental immunity applicable to discretionary duties. DeFever v. City of Waukesha and Waukesha Water Utility, 2007 WI App 266, 743 N.W.2d 848. 12/5/07.

410. Legal comment explains case law governing potential claims against municipalities following flooding such as negligence claims involving overflowing sewers, sewer backups and broken water mains, water damage claims arising from construction and maintenance of roads, flooding claims under the inverse condemnation statute or the Takings clauses of the state and federal constitutions, and water damage and flooding alleged to constitute a public or private nuisance.  (Pollen and Bitar, 1/1/09)

411. The False Claims Act (FCA), 31 U.S.C. sec. 3279, prohibits any “person” from submitting, or causing someone else to submit, a false or fraudulent claim for payment to the government. Local governments accepting federal monies need to be aware that local governments are “persons” under the FCA and are subject to the Act’s treble damages remedy for violations of the Act. See Cook County v. U.S. ex rel. Chandler, 538 U.W. 119 (2003). Local governments that accept federal monies need to be aware of the risks of FCA actions and should implement appropriate controls to mitigate those risks. (Attorney Patrick Farley, Axley Brynelson, 3/1/09). 2/27/09.

412. Wis. Stat. ch. 133 antitrust claims are not subject to the notice requirements of Wis. Stat. sec. 893.80(1). E-Z Roll Off LLC v. County of Oneida, No. 2009AP775 (Ct. App. May 11, 2010)(recommended for publication). 5/31/10.

413. A barricaded crosswalk that prevents the public from accessing it while the concrete cures is not an actionable highway defect under sec. 893.83(1) because negligent placement of barricades do not constitute an "insufficiency" or "want of repair" and a barricade precluding the public from using a crosswalk is not in the "traveled" portion of the highway. Bronfeld v. Pember Companies and West Bend Mutual Ins., 2009AP2297 (Wis. Ct. App. Oct. 5, 2010) (publication recommended). 10/29/10.

414. A government contractor is an agent for purposes of sec. 893.80(4) and entitled to immunity if: (1) the governmental authority approved reasonably precise specifications; (2) the contractor's actions conformed to those specifications; and (3) the contractor warned the supervising governmental authority about possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.  A contractor should not bear liability when simply acting as an agent of governmental authorities who retain ultimate responsibility for a project. Bronfeld v. Pember Companies and West Bend Mutual Ins., 2009AP2297 (Wis. Ct. App. Oct. 5, 2010) (publication recommended). 10/29/10.

415. Employers and property owners that do not prohibit individuals or employees from carrying concealed weapons in the course of employment or on owned or occupied property are immune from any liability arising from that decision. Wis. Stat. sec. 175.60(21) as created by 2011 Wis. Act 35. 8/31/11.

416. The scope of Chapter 68 certiorari proceedings extends to questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of, as well as questions relating to the irregularity of the proceedings but does not include authority to grant equitable relief or payment of damages. Guerrero v. City of Kenosha Housing Authority, 2010AP2305 (Ct. App. Sep. 21, 2011) (publication recommended). 9/30/11.

417. Although a person adversely affected by a municipal administrative decision must avail herself of the certiorari process to challenge any violations of her procedural due process rights, she retains the right to seek further redress if necessary via a section 1983 claim. Guerrero v. City of Kenosha Housing Authority, 2010AP2305 (Ct. App. Sep.,21, 2011)(publication recommended). 9/30/11.

418. Municipalities that choose to prohibit carrying of concealed weapons or firearms in municipal buildings or prohibit employees from carrying a concealed weapon in the course of their employment are protected from liability by the immunity granted to municipal officers, officials, agents and employees under sec. 893.80(4) for acts done in the exercise of legislative and quasi-legislative functions. The affirmative grants of immunity in sec. 175.60(21) to persons who do not prohibit others from carrying a concealed weapon on property the person owns or occupies and to employers that don’t prohibit employees from carrying a concealed weapon in the course of employment, do not diminish municipal immunity under 893.80(4). 10/31/11.

419. Municipalities that use music at municipally sponsored festivals, concerts and other events, or at municipal skating rinks, pools and other parks and recreation facilities, when placing telephone calls on hold, etc., should consider whether an annual blanket license from ASCAP or BMI, based on the municipality’s population, is necessary to protect against claims of copyright infringement liability for the music performed or played at these local venues. Special events exceeding $25,000 in gross revenue are not included under the licenses and require additional payment. 5/31/12.

420. Summarizes municipal and public official liability under state and federal statutory and case law. (Attorney Remzy D. Bitar, Crivello Carlson, S.C.) 7/31/12.

421. A county administrator who was acting in the scope of his employment when he made defamatory statements was not entitled to either absolute privilege or immunity from suit based on executive or legislative privilege but liability was capped at $50,000 under Wis. Stat. sec. 893.80 which caps damages for the action, which means judicial proceeding, rather than the various claims or causes within the proceeding. Anderson v. Herbert, 2013AP1313 (Ct. App. March 5, 2013) (publication recommended). 3/31/13.

422. An emergency responder driving his own vehicle from his home in response to an emergency call was acting within the scope of his employment but fell within the ministerial duty exception to public officer immunity because he failed to comply with the ministerial duty imposed by Wis. Stat. sec. 346.03(3). For a responder to retain immunity while driving through a red stop signal, he or she must (1) slow down as may be necessary for safe operation; (2) give both a visual and an audible signal; and (3) proceed with due regard under the circumstances for the safety of all persons. Brown v. Acuity, 2013 WI 60. 7/31/13.

423. Where a third party’s claim against a governmental contractor is based on the allegation that the contractor negligently performed its work under a contract with a governmental entity, to establish immunity from the claim under Wis. Stat. sec. 893.80(4), the governmental contractor must show that the contractor meets the definition of “agent” under sec. 893.80(4), as set forth in Lyons and that the contractor’s actions are of the type for which immunity is available under sec. 893.80(4). 7/31/13.
 
424. Sewerage district’s negligent maintenance of tunnel which siphoned groundwater underneath buildings causing structural damage to the building foundation constituted private nuisance which district was required to abate once it had notice of the problem; because the negligent maintenance of an existing structure was not a legislative, quasi-legislative, judicial, or quasi-judicial function, no immunity attached to the district’s negligent maintenance. Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78. Once a governmental entity has notice that its negligent maintenance of a system or structure is causing damage, the the manner in which the entity complies with the ministerial duty to fix the problem is subject to discretion but no such discretion exists as to whether the entity must fix the known problem.  Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78. 9/1/13.
 
425. Wisconsin Statute sec. 893.80(4) which caps damages on municipal liability for tort claims did not limit property owner’s equitable relief in an action against a sewerage district to abate private nuisance, where district’s negligent maintenance of sewage and stormwater tunnel was causing damage to building foundations.
 
426. The $50,000 damages cap in Wis. Stat, sec. 893.80(4) for claims against municipalities has a rational basis and does not violate equal protection; it was within the legislature’s legitimate power to take steps to preserve sufficient public funds to ensure that the government would be able to continue to provide those services which it believed benefited the citizenry, and the legislature’s specification of a dollar limitation on damages recoverable allowed for fiscal planning and avoided the risk of devastatingly high judgments while permitting victims of public tortfeasors to recover their losses up to that limit. Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78.
 
427. Property owner substantially complied with sec. 893.80 notice of claim requirements for claims against government bodies where, although the notice and the itemized statement of relief were submitted on behalf of two other parties that were not parties to lawsuit against sewerage district, the naming of these parties did not reasonably compromise district’s ability to investigate and evaluate the nature of the claim, which was substantial damage to building foundations from dewatering caused by leaking sewage and stormwater tunnel, and itemization of relief informed district what relief was being sought, thereby apprising it of potential costs for which it might have wanted to budget, and allowing it to contemplate settlement for the asserted injuries. Bostco LLC v. Milwaukee Metro. Sewage Dist., 2013 WI 78.

428. A police officer’s operation of an emergency vehicle is outside the scope of the immunity statute, Wis. Stat. sec. 893.80, and the officer may be liable for violating the “due care” vehicle operation duty in sec. 346.03(5). Legue v. City of Racine, 2014 WI 92, __ Wis. 2d __, __ N.W.2d __. 7/31/14.
 
429. Comment surveys key legal issues associated with municipal volunteer workers and offers suggested practices for reducing liability risks.

430. Legal note by Lisa Soronen of SLLC reviews Fourth Amendment and qualified immunity cases involving police officers decided by the U.S. Supreme Court during its 2013-2014 term, including Riley v. California (police must obtain warrant before searching arrested person’s cell phone), Fernandez v. California (co-tenant could consent to search of home after tenant who refused search is gone), Navarette v. California (police stop after anonymous caller reported vehicle had run her off road complied with 4th amendment because police officer had reasonable suspicion under totality of circumstances), Plumhoff v. Rickard (officers didn’t violate 4th amendment when they shot and killed driver of fleeing vehicle to end a dangerous car chase and, alternatively, were entitled to qualified immunity), Wood v. Moss (qualified immunity granted to secret service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters), and Tolan v. Cotton (qualified immunity claim sent back to 5th Cir. because Court concluded 5th Cir. had failed to view the evidence most favorably to the non-moving party, a person shot by police). 9/30/14. The complete text of this legal note is on page 379 of the November 2014 Municipality.