Moran v. Milwaukee County
Moran v. Milwaukee County
Opinion of the Court
¶ 1. Patricia Moran and her husband Frank Moran appeal from a summary judgment dismissing their complaint against Milwaukee County and Global Aerospace, Inc., Milwaukee County's insurance carrier, in connection with the Morans' personal-injury claim against Milwaukee County. The only issue is whether Wis. Stat. § 893.80(1)(a) bars that claim. The trial court ruled that it does. We affirm.
I.
¶ 2. Patricia Moran alleges that she was injured when, on November 22, 2000, she tripped over what her complaint calls a "sign plate in the parking garage of General Mitchell International Airport." She filed this action against Milwaukee County and Global on May 21, 2003.
¶ 3. Lawsuits against governmental entities like Milwaukee County are regulated by Wis. Stat. § 893.80(1). It provides, with the parts material to this appeal in italics:
Except as provided in subs, (lg), (lm), (lp) and (8), 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:
*750 (a) 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.
(Italics added.)
• is served in the way set out in Wis. Stat. Rule 801.11 on the ultimate defendant "[wjithin 120 days after the happening of the event giving rise to the claim";
• describes "the circumstances of the claim"; and
• is signed by either the party or his or her "agent or attorney."
If all of this is not done, the action must be dismissed unless the plaintiff can prove "that the delay or failure to give the requisite notice has not been prejudicial to the defendant." § 893.80(1)(a). "The plaintiff has the burden of proving the giving of notice or actual notice and the nonexistence of prejudice." Elkhorn Area Sch.
¶ 4. The Morans contend that Mrs. Moran gave the requisite 120-day notice under Wis. Stat. § 893.80(1) when, on December 5, 2000, she filled out part of a "Combined Report" on a document headed "General Mitchell International Airport." (Uppercasing omitted.) The report instructed the person completing the form to "check all that apply" and gave the following choices: "incident"; "accident"; "injury"; and "property damage." (Uppercasing omitted.) A heavy handwritten "X" appears next to "incident"; the others are blank. In response to the form's request for a "[d]etailed description of what happened," Moran wrote: "tripped and caught right foot which I jammed knee on A [sic] bolted sign holder sticking out of ground with no sign on it. It was unmarked that day." The date of the "incident" was given as November 22, 2000. In response to the form's request to "[n]ote any apparent injuries or damage" there is an uppercased hand-printed "unk." In the place for "name, address and telephone # of any witnesses" is an "N/A." The trial court determined that this "Combined Report" did not satisfy § 893.80(1), and, further, that although Mrs. Moran sent to the Milwaukee County Clerk and the airport's director a document dated April 1, 2002, that purported to be a formal "Notice of Injury under Section 893.80," the Morans had not shown that Milwaukee County was not prejudiced.
II.
¶ 5. As noted, the trial court decided this case on summary judgment. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms
A. Wisconsin Stat. §893.80(1).
¶ 6. As we have seen, Wis. Stat. § 893.80(1)(a) requires that the 120-day notice be both "signed by the party, agent or attorney," and, also "served on the. . . political corporation, governmental subdivision or agency . . . under s. 801.11." The December 2000, "Combined Report" satisfies neither of these requirements. First, contrary to the Morans' representations in their appellate briefs, the December 5, 2000, "Combined Report" was not signed by either Patricia Moran or her agent or attorney. Second, Wis. Stat. Rule 801.11(4)1 requires that counties be served by serving "the chairperson of the county board or the county clerk." The December 2000, "Combined Report" was not served on
B. Prejudice.
¶ 7. As noted, whether a plaintiff has proven that the governmental entity was not prejudiced by the plaintiffs failure to comply with the formal 120 day notice requirements of Wis. Stat. § 893.80(1) is a legal issue subject to our de novo review. Olsen, 133 Wis. 2d at 379, 395 N.W.2d at 811. Section 893.80(1) is designed to ensure that the entity will have enough information —either formally by virtue of the 120 day notice, or via the lack-of-prejudice avenue — about the plaintiffs injury to be able to fully investigate "the circumstances giving rise to a claim." Elkhorn Area Sch. Dist., 110 Wis. 2d at 5, 327 N.W.2d at 208. An irreducible minimum of this enough-information requirement is that the governmental entity know the "type of damage alleged to have been suffered by a potential claimant." Markweise v. Peck Foods Corp., 205 Wis. 2d 208, 220, 556 N.W.2d 326, 331 (Ct. App. 1996).
¶ 8. The Morans point to two documents that they say gave Milwaukee County sufficient notice so
1. The December 5, 2000, "Combined Report"
¶ 9. As we have seen, the only information material to our analysis given by the December 5, 2000 "Combined Report" was that:
• Mrs. Moran "tripped and caught [her] right foot which [she] jammed [her] knee on";
• Mrs. Moran tripped on an "unmarked" "bolted sign holder sticking out of [the] ground with no sign on it"; and
• Mrs. Moran's "apparent injuries" were "un-k[nown]." (Uppercasing omitted.)
Although this revealed the "type of damage," see id., 205 Wis. 2d at 220, 556 N.W.2d at 331, namely, that Mrs. Moran "jammed" her knee, it did not give any indication whether that was a serious or a superficial injury. As we discuss below, this is significant in assessing whether the Morans have proved that Milwaukee County was not prejudiced by their failure to give the requisite 120 day notice.
¶ 10. Mrs. Moran's April 1, 2002, "notice of injury" asserted that as a result of her tripping on the sign seventeen months earlier she "has suffered an injury to her right knee, which has required surgery, as well as having developed tarsal tunnel syndrome and RSD [Reflex Sympathetic Dystrophy] to the right lower extremity." Also, on May 14,2002, Mrs. Moran filled out a questionnaire given to her by an adjuster for Milwaukee County and wrote that she was working at the
2. The April 1, 2002, "Notice of Injury."
¶ 11. Mrs. Moran's April 1,2002, "notice of injury" did, for the first time, alert the County that her claimed injuries were serious. (Uppercasing omitted.) This was fleshed out by Mrs. Moran's May 14, 2002, handwritten questionnaire answers, which asserted that:
• Mrs. Moran was "working at the Hertz car rental inside counter" at the airport that day;
• she tripped in the "late afternoon" while walking in the airport's parking garage "from Hertz car rental... to the Hertz Gold Booth in the parking garage";
*756 • she did not "completely fall," but "[i]t took a few steps to slow down the momentum" of her tripping;
• she "was in a lot of pain and limp[ing]," and "went to the gold booth [and] got what [she] needed";
• she "[w]ent back to the airport" and "told a couple of the girls what happened"; and
• she "tried to work a bit more but was hurting so [she] went home."
Mrs. Moran's handwritten May 14 report also alleged that she "still [has] problems with pain," that she "take[s] a lot of medication," that she was seeing a physical therapist twice a week, and that she has not "really resumed [her] normal life at all!"
¶ 12. Although, we can assume that, like the Town of Silver Cliff in Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 334 N.W.2d 242 (1983), Milwaukee County could now assess the nature and extent of Mrs. Moran's treatment, Mrs. Moran was unable in 2002, and is unable now, to tell Milwaukee County: (1) who might have seen her trip; (2) who saw her immediately after she tripped; or (3) to whom she spoke after the accident. Indeed, in a July 12, 2002, letter from her lawyers to the adjuster for Milwaukee County, Mrs. Moran indicated that although she was not working for Hertz, but, rather, Shared Technologies Cellular, "[s]he would visit the [Hertz] gold booth approximately once each day she worked," and "[t]hough there were individuals at the gold booth on the day of the accident," she did "not recall their names." Milwaukee County has no way apparent from this record of investigating the
By the Court. — Judgment affirmed.
The exceptions listed in Wis. Stat. § 893.80(1) do not apply here.
Dissenting Opinion
¶ 13. (dissenting). I write separately because, based on the facts presented, I would reverse the trial court's decision and remand for further proceedings.
¶ 14. The purpose of Wis. Stat. § 893.80(l)(a) is to give the governmental unit notice that an injury has occurred and offer it an opportunity to investigate. Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 580, 334 N.W.2d 224 (1982). The statute requires the injured party to identify the circumstances of the claim within 120 days of the event. Probst v. Winnebago County, 225 Wis. 2d 753, 757-58, 593 N.W.2d 478 (Ct. App. 1999).
¶ 16. The trial court ruled in favor of the County because the December 5 report was marked "incident" only and not marked "injury." I do not find this factor dispositive. Although it would have been preferable if Patricia had marked both boxes, the substance of the report clearly revealed that she injured her knee during the incident. This was sufficient to provide notice to the County that an injury occurred. The case law does not require strict compliance with the statute, DNR v. City of Waukesha, 184 Wis. 2d 178, 198, 515 N.W.2d 888 (1994); rather, it demands only substantial compliance, see State v. Town of Linn, 205 Wis. 2d 426, 435, 556 N.W.2d 394 (Ct. App. 1996).
¶ 17. My review demonstrates that the December 5 report constitutes substantial compliance with the notice of injury statute. The report provided the County with the basic circumstances of the incident and indicated that Patricia had hurt her knee as a result of the incident. As a direct result of the report, the County
¶ 18. Based on the foregoing, I conclude that the trial court erred in dismissing the Morans' complaint. I would reverse the judgment and remand the matter for further proceedings consistent with this opinion.
Reference
- Full Case Name
- Patricia Moran and Frank Moran, Plaintiffs-Appellants, v. Milwaukee County and Global Aerospace, Inc., Defendants-Respondents, Blue Cross Blue Shield of Illinois, Defendant
- Cited By
- 2 cases
- Status
- Published