Joyce S. Clark v. League of Wisconsin Municipalities Mutual Insurance Company

2021 WI App 21COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2019AP954
Case Nos.: 2019AP1489
Complete Title of Case:
NO. 2019AP954
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED
WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE
COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
NO. 2019AP1489
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED
WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE
COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
Opinion Filed: March 31, 2021
Submitted on Briefs: July 16, 2020
JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Michael J. Kuborn of Apex Accident Attorneys, LLC, of
Oshkosh.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Ashley C. Lehocky of Town Counsel Law & Litigation, LLC, of
Appleton.
2
2021 WI App 21COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 31, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal Nos. 2019AP954 Cir. Ct. No. 2018CV848
2019AP1489
STATE OF WISCONSIN IN COURT OF APPEALS
NO. 2019AP954
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED
WISCONSIN INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE
COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
NO. 2019AP1489
JOYCE S. CLARK,
PLAINTIFF-APPELLANT,
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED
WISCONSIN INSURANCE COMPANY,
Nos. 2019AP954
2019AP1489
INVOLUNTARY-PLAINTIFFS,
V.
LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE
COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
DEFENDANTS-RESPONDENTS.
APPEALS from orders of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Reversed and cause remanded with directions.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶1 DAVIS, J. This is a personal injury action by Joyce S. Clark against
the City of Oshkosh (the City). The defendant’s status as a governmental
subdivision brings into play the statutory notice of injury requirement. See WIS.
STAT. § 893.80(1d)(a) (2017-18)1 (as relevant here, a plaintiff must serve on a city
defendant written notice of the circumstances of the claim, meeting certain statutory
requirements, or must demonstrate that the failure to provide such notice was not
prejudicial). Whether Clark complied with this requirement and, if not, whether her
noncompliance should be excused are the primary issues on appeal.
¶2 The trial court granted the City’s motion for summary judgment on
the grounds that Clark had met neither the written notice requirement nor the
statutory prerequisite for excusing noncompliance—lack of prejudice to the City.
We agree with the former finding but not the latter, at least for summary judgment
1
All references to the Wisconsin Statutes are to the 2017-18 version.
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purposes. Although Clark did not provide formal written notice, she sufficiently
raised an issue of fact as to whether the City was thereby prejudiced. We
consequently remand for further proceedings on that issue.
BACKGROUND
¶3 Clark was a sewing instructor with Fox Valley Technical College (the
College).2 As part of her job, she taught classes at the City-owned Oshkosh Senior
Center (the Senior Center). On October 17, 2015, Clark unlocked and walked
through one of the entrance doors to the Senior Center. The door closed faster than
usual behind her, knocking her off balance and causing her to fall. Two of Clark’s
students helped her to her feet.
¶4 Later that day, Clark told her supervisor that she had been injured at
work. The supervisor, on Clark’s behalf, filled out an online “Employer’s First
Report of Injury or Disease” (the Injury Form); this is a standard Wisconsin
Department of Workforce Development workers’ compensation form that is used
to report work-related injuries to the employer’s insurer. On the Injury Form, the
supervisor (mistakenly) listed Clark’s employer as “City of Oshkosh” and not the
College. The Injury Form described the incident and injury as follows:
Injury Description—Describe Activities of Employee
When Injury or Illness Occurred and What Tools,
Machinery, Objects, Chemicals, Etc. Were Involved.
I was attempting to enter building thru electric
controlled door which was turned off
What Happened to Cause This Injury o[r] Illness? (Describe
How The Injury Occurred)
2
For the purpose of this decision, we accept as true all facts concerning Clark’s physical
injury alleged in the complaint or attested to by Clark in her summary judgment affidavits.
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Door closed unexpectedly and hit employee, she lost
balance and hit glass wall face first.
What Was the Injury or Illness? (State the Part of Body
Affected and How It Was Affected)
employe[e] has bruised cheek and left hip
Checked boxes on the Injury Form also indicated that Clark returned to work on
October 21, that hers was not a “Lost Time or Other Compensable Injury,” and that
she was not treated in an emergency room. Clark reviewed and approved the Injury
Form and provided it to the supervisor, who then sent it electronically to the City.
¶5 Paul Greeninger, a City safety and risk management officer, received
the Injury Form. He could not verify that Clark was a City employee, so he asked
Mark Ziemer, the City senior services manager, about the matter. Ziemer oversaw
Senior Center operations and was familiar with Clark; he explained that Clark was
a College and not a City employee. Greeninger informed Clark of her mistake, and
sometime thereafter, Clark properly filed a new workers’ compensation form.
¶6 Greeninger, now aware of Clark’s fall, investigated. Within the week,
he examined the door and spoke with “individuals over at the Senior Center,”
including “the facilities person.” Greeninger learned that employees had been
switching off the door’s “disabled person capability” button at night to preserve the
motor. That button, when pushed, normally allowed the door to slowly open and
close on its own. Because this functionality was turned off on the day of Clark’s
accident, however, the door swung back at Clark faster than she expected and hit
her. Once Greeninger concluded that the door “was still operable,” he ended his
investigation. Greeninger thus summarized the extent and purpose of his inquiry as
follows:
Initially it came that, as I recall, the door was broken and I
wanted to know, if it is broken, we need to fix it. We found
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out it was not broken. So as far as I was concerned, there
was nothing that needed to be fixed. There wasn’t—in my
job, was there uneven surface, was there liquids, did they
trip, did they fall, all those things? None of that was there,
so as far as I was concerned, as a safety person, there was
nothing that needed to be fixed. So at that point my
investigation was done.
¶7 At some point over the two and one-half years between the date of her
fall and April 2018, Clark began suffering severe aftereffects. The fall
“significantly exacerbated” a “previously slight, asymptomatic, pre-existing,
arthritic condition … leading to a hip replacement and in that process an infection
… which damaged [her] kidneys.” On April 12, 2018, Clark filed a notice of claim
form with the City. See WIS. STAT. § 893.80(1d)(b) (as relevant here, suit may not
be brought against a city unless a claim containing the claimant’s address and an
itemized statement of relief sought is properly filed, and the city disallows the
claim). Clark attested that she “suffered injuries to her face; left hip; and, other
injuries,” requiring treatment by multiple providers and resulting in “permanent
injury with permanent residual limitations.” She “demand[ed] satisfaction in the
amount of $50,000.00” and attached an itemized list of medical bills.
¶8 In October 2018, Clark brought suit. The City moved for summary
judgment, arguing that Clark had not complied with the notice of injury requirement
of WIS. STAT. § 893.80(1d)(a).3 The first sentence of § 893.80(1d)(a) concerns
formal notice of injury; as applicable to Clark’s suit, it states that no action may
brought against a city unless, within 120 days of the “event giving rise to the claim,
written notice of the circumstances of the claim” is signed by the claimant, her agent,
or her attorney and is personally served on the city mayor, manager, or clerk (or left
with the person in charge of such office) per the personal jurisdiction requirements
3
The City raised additional arguments on summary judgment, including that Clark did not
comply with the statute of limitations; these issues are not before us on appeal.
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of WIS. STAT. § 801.11(4)(a)3., (b). The City pointed out—and the trial court
agreed—that Clark unquestionably did not provide formal notice of injury: the only
document the City received within 120 days of Clark’s fall was the electronic Injury
Form, which was neither signed nor properly served pursuant to § 801.11.
¶9 Where a claimant fails to give formal notice, the action is not barred
if the claimant substantially complies with WIS. STAT. § 893.80(1d)(a)—meaning
that the defendant “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 [formal] notice
has not been prejudicial to the defendant.” Id.; Bostco LLC v. Milwaukee Metro.
Sewerage Dist., 2013 WI 78, ¶88, 350 Wis. 2d 554, 835 N.W.2d 160. The court
determined that the Injury Form did not and could not provide actual notice, because
although it stated that Clark was physically injured, it did not inform the City of her
claim. The court therefore found that the City did not have actual notice until April
2018, when Clark’s notice of claim form alerted the City both that she had been
injured and that she was seeking to hold it liable. The court further determined that
this delay “was a fairly extensive period of time,” such that permitting Clark’s suit
to proceed would really “defeat[] the purpose of the statute in allowing the
governmental entity to make a prompt investigation of the circumstances giving rise
to a claim.” Accordingly, the court concluded that Clark had not met her burden of
showing lack of prejudice from her failure to give timely written notice.
¶10 Clark moved for reconsideration and relief from judgment, which the
trial court denied. Additional facts will be noted where relevant.
DISCUSSION
Legal Principles
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¶11 In most respects, this is a garden-variety personal injury claim, no
different than a slip-and-fall suit alleging negligence against a property owner, and
the sort of claim that is a mainstay of our civil dockets. In one crucial respect,
however, this case is different: because Clark’s injury occurred on City-owned
property, Clark’s negligence claim lies against the City. That fact brings into play
the statutory requirement that Clark give two separate types of notice before she can
file suit on her claim. See WIS. STAT. § 893.80(1d).4
¶12 The first notice, under WIS. STAT. § 893.80(1d)(a), is often referred
to as the notice of injury. See Yacht Club at Sister Bay Condo. Ass’n v. Village of
Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922 N.W.2d 95. The primary purpose
4
WISCONSIN STAT. § 893.80(1d) states that, except as otherwise provided under
§ 893.80:
[N]o action may be brought or maintained against any volunteer
fire company organized under [WIS. STAT.] 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:
(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 [WIS.
STAT. §] 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
(b) 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.
7
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of this notice is to enable governmental entities to promptly investigate and evaluate
the underlying circumstances that may later give rise to a claim. Id.; Elkhorn Area
Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206 (Ct.
App. 1982).
¶13 The first sentence of WIS. STAT. § 893.80(1d)(a) outlines the
requirements of formal notice of injury: within 120 days of the event giving rise to
the claim, the plaintiff must serve on the defendant, pursuant to WIS. STAT.
§ 801.11, “written notice of the circumstances of the claim,” signed by the plaintiff
or his or her agent or attorney. (Emphasis added.) Thus, there are four elements of
formal notice: proper timing (within the first 120 days), proper service under
§ 801.11 (governing service of process in civil actions), proper signatory, and a
description “of the circumstances of the claim.” Notably, by the plain language of
the statute, formal notice need not apprise the defendant of the claim itself—as will
be discussed below, that comes later. Rather, this notice simply alerts the defendant
that an incident occurred that might thereafter ripen into a claim. That such notice
is “of the circumstances” makes sense when one considers that plaintiffs may not
always realize the extent, or even existence, of the injuries giving rise to a claim
within the first 120 days of an accident.
¶14 To mitigate the potential harshness that might ensue from the strict
application of this requirement, the statute contains a “savings clause.” See Van v.
Town of Manitowoc Rapids, 150 Wis. 2d 929, 933, 442 N.W.2d 557 (Ct. App.
1989). The second sentence of WIS. STAT. § 893.80(1d)(a) allows for substantial
compliance, excusing the plaintiff’s failure to provide formal notice where:
(1) the defendant “had actual notice of the claim,” and (2) the plaintiff “shows to
the satisfaction of the court that the delay or failure to give the requisite [formal]
notice has not been prejudicial.” See WIS. STAT. § 893.80(1d)(a); Bostco LLC, 350
8
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Wis. 2d 554, ¶88. In at least one respect, the actual notice requirement may be more
difficult to meet than formal notice: actual notice must be “of the claim,” rather
than of the mere “circumstances” that may later give rise to a claim. (Emphasis
added.) We will discuss this point further below. On the other hand, actual notice
is not limited to a particular timeframe and may occur outside the 120 days
following the injury-causing event. Nielsen v. Town of Silver Cliff, 112 Wis. 2d
574, 580-81, 334 N.W.2d 242 (1983).
¶15 The second required notice is “[a] claim containing the address of the
claimant and an itemized statement of the relief sought … presented to the
appropriate clerk or person who performs the duties of a clerk or secretary for the
defendant.” WIS. STAT. § 893.80(1d)(b). This portion of the statute is referred to
as the notice of claim requirement and serves the primary purpose of giving the
defendant “the opportunity to compromise and settle a claim, thereby avoiding
costly and time-consuming litigation.”5 Yacht Club at Sister Bay, 385 Wis. 2d 158,
¶20.
¶16 This appeal concerns Clark’s compliance with WIS. STAT.
§ 893.80(1d)(a), the notice of injury requirement. Whether a plaintiff has satisfied
this requirement, either through formal notice or substantial compliance, is
ultimately a question of law that may be appropriate for summary judgment. 6 See
5
The notice of claim requirement may also effectively expedite the litigation process. The
claimant cannot file suit until the claim presented “is disallowed,” which the defendant may
accomplish either by serving a notice of disallowance on the claimant or by simply failing to take
any action within 120 days. WIS. STAT. § 893.80(1d)(b), (1g). Where the defendant serves a notice
of disallowance, the claimant must bring suit within six months Sec. 893.80(1g).
6
To be precise, where the proceeding below involved fact-finding, we review those
findings under the deferential “clearly erroneous” standard, but we determine de novo whether
statutory notice was thereby effected. See E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71,
¶17, 335 Wis. 2d 720, 800 N.W.2d 421. As this case was decided on summary judgment, we owe
no deference to the trial court.
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E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶17, 335 Wis. 2d 720, 800
N.W.2d 421; Moran v. Milwaukee County, 2005 WI App 30, ¶5, 278 Wis. 2d 747,
693 N.W.2d 121. Summary judgment shall be granted where the pleadings and
evidence “show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).
“In order to survive summary judgment, the party with the burden of proof on an
element in the case must establish that there is at least a genuine issue of fact on that
element by submitting evidentiary material ‘set[ting] forth specific facts’ …
pertinent to that element.” Moran, 278 Wis. 2d 747, ¶5 (citation omitted). Thus, a
plaintiff seeking to demonstrate substantial compliance with the notice of injury
requirement bears the burden, on summary judgment, of introducing sufficient
evidence raising a genuine issue of material fact as to when the defendant received
actual notice and whether the defendant was prejudiced by the plaintiff’s failure to
give formal notice. Id.Application of Legal Principles to This Case
¶17 There is no dispute that Clark provided the second required notice
under WIS. STAT. § 893.80(1d)(b) when, on April 12, 2018, she submitted her notice
of claim form to the City. This notice described her accident, injuries, and expenses,
and demanded $50,000, the maximum allowed by § 893.80(3).
¶18 It is equally undisputed that Clark did not provide the first required
notice, the formal notice of injury under WIS. STAT. § 893.80(1d)(a).7 That is, Clark
7
More accurately, it is undisputed that Clark did not comply with the statutory
requirements for formal notice. Clark argues that one may “substantially comply” with the formal
notice requirement, but she has misconstrued the law. To provide notice of injury, a plaintiff must
either strictly comply with the formal notice requirement or substantially comply with WIS. STAT. §
893.80(1d)(a) by demonstrating actual notice of the claim and lack of prejudice to the defendant.
Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶88, 350 Wis. 2d 554, 835 N.W.2d
160.
10
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did not, within 120 days of her accident, serve on the City a signed notice describing
the circumstances of her claim. Instead, she mistakenly sent the City the Injury
Form—the online workers’ compensation form describing her fall and injuries.
Although this form was submitted within the proper timeframe, it was neither signed
by Clark nor served in compliance with WIS. STAT. § 801.11.
¶19 This case, then, boils down to whether: (1) the City had “actual notice
of the claim,” and (2) Clark showed that the City was not prejudiced by her failure
to satisfy the statutory requirements of formal notice. More specifically, the
question is whether factual disputes on these issues precluded summary judgment
in the City’s favor.8
The City had “actual notice of the claim” by virtue of Clark’s April 12, 2018 notice
of claim form
¶20 As we have already discussed, under WIS. STAT. § 893.80(1d)(a), the
actual notice necessary to effectuate substantial compliance is “of the claim.”
(Emphasis added.) On the surface it may seem curious that formal notice is “of the
circumstances of the claim” whereas its substitute, actual notice, is “of the claim”—
until one recalls that the purpose of either notice “is to allow governmental
authorities to make a prompt investigation of the circumstances giving rise to a
8
The following analysis considers only the facts presented on summary judgment. Clark
raised additional facts in her motion for reconsideration and relief from judgment, as to when the
City received actual notice and whether the City was prejudiced. The trial court found that this
evidence was not newly discovered and could have been introduced on summary judgment;
accordingly, the court declined to reconsider its ruling or grant relief from judgment on that or any
other basis. See Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons,
Ltd., 2004 WI App 129, ¶¶44-48, 275 Wis. 2d 397, 685 N.W.2d 853; WIS. STAT.
§ 806.07(1). We agree with the court’s findings and analysis and, as a result, uphold this
discretionary determination. See Koepsell’s Olde Popcorn Wagons, Inc., 275 Wis. 2d 397, ¶6.
Accordingly, we disregard any facts introduced after summary judgment, and we deem forfeited
any arguments that rely on these facts. See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235
Wis. 2d 486, 611 N.W.2d 727.
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claim.” See Elkhorn Area Sch. Dist., 110 Wis. 2d at 5. By its very nature (timing,
signature, and service) formal notice conveys to the defendant that the injured party
is at least contemplating filing suit. Actual notice, which may occur in a variety of
ways, carries no such implication. Thus, to allow the defendant to meaningfully
investigate “the circumstances” of a claim, actual notice should include some
indication that the injured party intends to hold the defendant liable. See Markweise
v. Peck Foods Corp., 205 Wis. 2d 208, 220-21, 556 N.W.2d 326 (Ct. App. 1996);
Felder v. Casey, 139 Wis. 2d 614, 628-631, 408 N.W.2d 19 (1987), rev’d on other
grounds, 487 U.S. 131 (1988).
¶21 The parties spend much of their briefing on whether the City had
actual notice by virtue of the Injury Form, discussions between Clark and City-
employed staff at the Senior Center, or both. Given that actual notice must apprise
the defendant of the injured party’s claim, we hold that these early
communications—focused as they were solely on the cause of Clark’s injury—did
not meet the actual notice requirement. But, again, under the savings clause, there
is no timeframe for providing actual notice (unlike the 120-day requirement for
formal notice). As our supreme court stated in Nielsen:
The statute provides that actual notice is sufficient to maintain a
claim if the plaintiff shows that the governmental unit was not
prejudiced. This method of preserving the claim does not need a
time limit because a subjective showing of no prejudice assures
that the statute’s purpose has been satisfied regardless of when
actual notice is received. This conclusion accords with the plain
language of the statute which establishes no time limit for actual
notice.
Nielsen, 112 Wis. 2d at 580-81 (emphasis added).
¶22 This legal point makes the question of when the City had “actual
notice of the claim” largely academic at this point in the analysis. There can be no
question that the City had such notice when, on April 12, 2018, it received Clark’s
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notice of claim form under WIS. STAT. § 893.80(1d)(b) (this form apprised the City
of both Clark’s injury and her claim for reimbursement for medical expenses). But
although we do not consider the parties’ prior communications sufficient to satisfy
the actual notice requirement, they are nonetheless relevant to the prejudice
analysis—to which we now turn.
Clark raised a genuine issue of material fact on the issue of prejudice, necessitating
remand for further proceedings
¶23 As our review is from summary judgment, the specific question is
whether Clark raised a genuine issue of material fact as to whether she could meet
her burden to show that the City was not prejudiced by the lack of formal notice.
See Moran, 278 Wis. 2d 747, ¶5. Prejudice in this context has been defined as “the
inability of a party to adequately defend a claim” because the party lacked sufficient
opportunity to conduct a prompt investigation. Olsen v. Township of Spooner, 133
Wis. 2d 371, 379-80, 395 N.W.2d 808 (Ct. App. 1986). The trial court found that
the City was prejudiced because of “the passage of time.” This was in reference to
submission of the April 2018 notice of claim form, which served double-duty as
both actual notice under the savings clause and notice of claim under WIS. STAT. §
893.80(1d)(b). In the trial court’s view, such delay between injury and notice was
too “extensive” to allow the City to “make a prompt investigation of the
circumstances giving rise to a claim.”
¶24 We would likely agree with the trial court if, in fact, the only
communication the City received was a form submitted two and one-half years after
the accident. But that, of course, was not when the City first learned of Clark’s fall
or injuries (such as they were at that point). Almost immediately after the accident,
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the City received the Injury Form stating that Clark had fallen and sustained what
she then believed to be minor injuries. As noted above, other discussions ensued
shortly thereafter. Although these communications did not satisfy the statutory
requirements for formal notice of injury, or even the savings clause criteria for
“actual notice of the claim,” they nonetheless cannot be ignored when assessing
prejudice. Upon receiving the Injury Form, Greeninger, the City safety and risk
management officer, investigated the cause of the accident within the week. He
determined that the door was not broken but, rather, that an electronic mechanism
had been turned off. This caused the door to close more quickly than expected,
hitting Clark and causing her to fall. As the extent of Clark’s injuries was then
unknown, Greeninger’s inquiry likely encompassed most, if not all, of what the City
could have investigated at that point. Of course, Greeninger, as a “safety person,”
focused on whether anything “needed to be fixed,” so it is unclear if he performed
as comprehensive an investigation as would have occurred with formal notice or
what, if anything, a different investigation would have yielded. Such questions will
be pertinent on remand, but on this record, we cannot conclude that the City was
prejudiced as a matter of law.
¶25 The above analysis underscores a key point in applying the notice of
injury provision. The date on which a defendant had “actual notice of the claim”
may bear on prejudice—but it is certainly not dispositive. By the express terms of
the statute, prejudice is from “the delay or failure to give the requisite notice.” See
WIS. STAT. § 893.80(1d)(a) (emphasis added). The “requisite” notice is the formal
notice of injury under § 893.80(1d)(a). As previously discussed, such formal notice
need only describe the circumstances of the claim, not the claim itself. That makes
the key inquiry as follows: What, if anything, would the defendant have done
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differently had the plaintiff timely served a statutorily compliant written notice
describing those circumstances?
¶26 It is conceivable that the answer to this “what if” question could be
affected by when the defendant first learned of the actual claim. An example might
be where the defendant’s awareness of an injury was not enough to prompt an
investigation sufficient to protect the defendant’s interests—where, in other words,
only the defendant’s knowledge of a potential lawsuit could have prompted such an
investigation. But whether that is true in any given case should be assessed as part
of the overall factual inquiry into prejudice.
¶27 Here it is undisputed that the City, by way of the Injury Form, almost
immediately learned of the underlying circumstances giving rise to Clark’s claim,
long before it had actual notice of the claim itself. There is evidence to suggest that
this knowledge enabled the City to perform (and that it did perform) the very type
of investigation that formal notice of injury was designed to afford. Thus, the City
may have had “a sufficient opportunity to investigate all incidents giving rise to tort
claims” and to “guard against specious claims.” See Nielsen, 112 Wis. 2d at 580.
Although the burden remains on Clark, on remand, to show a lack of prejudice, the
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evidence is sufficient to at least raise a genuine issue of material fact on that issue,
precluding summary judgment in favor of the City.9
¶28 We therefore remand for further proceedings so that the necessary
findings and conclusions on prejudice, or lack thereof, can be made to the trial
court’s satisfaction. See WIS. STAT. § 893.80(1d)(a) (lack of prejudice shall be
determined “to the satisfaction of the court”). On remand, the court will need to
evaluate whether the City had a sufficient opportunity to perform an investigation
and, if not, what prejudice may have resulted. These proceedings should focus on
prejudice only and should not re-determine other issues of statutory compliance.10
By the Court.—Orders reversed and cause remanded with directions.
9
In reaching this decision, we have considered the City’s position that summary judgment
was appropriate because Clark did not directly argue the issue of prejudice in her summary
judgment response brief. Such failure on Clark’s part makes this case more difficult. Clark’s
summary judgment response, however, argued that actual notice occurred when Clark provided the
Injury Form to the City. As part of this argument, Clark discussed Greeninger’s investigation and
asserted that the City was able to timely investigate and evaluate Clark’s claim; she also attached
supporting deposition evidence. In our view, such argument, while clouding the distinction
between actual notice and prejudice, sufficiently raised the prejudice issue, particularly since lack
of prejudice was expressly argued at the hearing and addressed on the merits by the trial court. We
stress, however, that plaintiffs seeking to demonstrate lack of prejudice under WIS. STAT §
893.80(1d)(a) in a dispositive proceeding should do so front and center, presenting all their
supporting facts and argument in their briefing. As noted in the passage quoted above from Nielsen,
prejudice, not the date of “actual notice,” will generally be the key inquiry in cases concerning
substantial compliance with § 893.80(1d)(a). See Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574,
580-81, 334 N.W.2d 242 (1983).
10
We reject Clark’s additional argument that, in its answer, the City failed to plead
statutory noncompliance as an affirmative defense, pursuant to Maple Grove Country Club Inc. v.
Maple Grove Estates Sanitary District, 2019 WI 43, ¶3, 386 Wis. 2d 425, 926 N.W.2d 184, and
therefore waived any challenge on those grounds. The City’s answer contained a list of “affirmative
defenses,” including that “Plaintiff’s claims are subject to the limitations and immunities in [WIS.
STAT. §] 893.80.” Such statement fulfills the notice pleading standard. Cf. Hlavinka v. Blunt,
Ellis & Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App. 1993) (“[A] pleading must
give the defending party fair notice of … the … claim [and] ‘the grounds upon which it rests’ ….”
(citation omitted)).
16