Under normal circumstances, if you are injured due to the negligent or reckless act of another person, you can file a personal injury lawsuit against them and seek compensation for your losses. If the negligent party was acting on behalf of their employer at the time–say you get hit by a delivery van that ran a red light–you can also sue the employer under the legal principle of respondeat superior.
But what if the negligent employee worked for the government and your injury occurred while that person was engaged in their official duties? If they work for the State of Wisconsin or any of its subdivisions, you can still file a personal injury claim and seek damages. There are, however, some additional legal hoops you need to jump through. And the types and amount of compensation you can receive are more limited. It is in your best interests to reach out to a Wisconsin personal injury lawyer with any questions.
Sovereign Immunity and Tort Claims Against the State
The first thing to understand here is that in most cases, the State of Wisconsin cannot be sued in its own courts. This is an ancient principle of English common law known as sovereign immunity. In order to sue the state, this immunity must be explicitly waived by a legislative act. And any such waiver must be narrowly interpreted in favor of the state’s immunity.
Wisconsin law waives sovereign immunity in civil claims against “any state officer, employee or agent,” for acts that occur in the “discharge” of their official duties. This covers most personal injury claims. So for example, if you are injured in an auto accident caused by a state employee who was driving their official vehicle, you can file a claim against the state as the employer.
The catch is that you cannot simply file a lawsuit in court as you would against a private individual or private employer. The waiver of sovereign immunity requires an accident victim to first file a Notice of Injury and Claim with the Wisconsin Attorney General’s office. The claim itself must include the victim’s name and address, as well as the time, date, and location of their accident or injury, as well as a brief statement of what happened and the nature of the injuries involved.
The Notice of Claim must be filed and served on the Attorney General (by certified mail) within 120 days of the accident or other event leading to the injury. This 120-day deadline is strictly enforced. In other words, if you file the claim on the 121st day, your claim will not even be considered.
The purpose of the Notice of Claim is to give the state time to investigate a personal injury claim and decide whether or not to offer a settlement. The victim is not required to accept the state’s first offer. And if the victim cannot reach a satisfactory settlement with the state–or the state simply denies the claim outright–then the victim has a right to file a personal injury lawsuit. This lawsuit must be filed within 3 years under the statute of limitations.
Limits on Damages
Unfortunately, the Notice of Claim is not the only special restriction placed on personal injury claims against the State of Wisconsin. State law also limits (or “caps”) the financial compensation a victim can receive. This cap is just $250,000, and it covers both economic and non-economic injuries. Economic damages in a personal injury case refer to the victim’s out-of-pocket losses, such as their medical bills and loss of income. Non-economic damages covers losses such as pain and suffering and emotional distress. In personal injury claims against private parties, non-economic damages alone can easily exceed $250,000. So the cap on claims against the state means that an injured party may not receive full compensation for their losses.
Additionally, Wisconsin law bars any recovery of punitive damages against the state. To be fair, punitive damages are not awarded in most personal injury claims against private parties. This is because punitive damages require proof that the defendant was not simply negligent or reckless but they acted with “malice” or intent against the plaintiff.
Personal Injury Claims Against Local Governments
Local governments in Wisconsin, including all cities and counties, are also protected by sovereign immunity. The waiver for personal injury cases described above also covers claims against these local governments. The 120-day notice rule still applies, but it must be filed with the local government involved. And you can only seek a maximum of $50,000 in compensation from a local government (or just $25,000 for a claim made against a volunteer firefighter company).
Who Is Considered an “Agent” of the State?
It is important to emphasize that the rules governing personal injury claims against the state apply to anyone who is considered an “agent” of the state. In some cases it may not be immediately apparent that the person who caused the victim’s injury qualifies. For example, in a 2016 Wisconsin case, Thorsland v. Walter, the parents of a 13-year-old girl sued a volunteer ski instructor after their daughter was severely injured on a training course. The course itself was offered by the Wisconsin Department of Natural Resources (DNR). The instructor moved to dismiss the case, arguing that he acted as an agent of the DNR, and as such the parents had to comply with the 120-day notice rule, which they did not. The Court of Appeals sided with the instructor, holding that he was acting as an agent of the state when the victim’s injury took place.
Contact an Experienced Wisconsin Personal Injury Lawyer Today
Every personal injury case has its legal challenges. But claims involving the government are trickier than most. So it is imperative that you work with an experienced Wisconsin personal injury lawyer who can guide you through the process. Call Fitzpatrick, Skemp & Butler, LLC, today at (608) 784-4370 or contact us online to request a free consultation and to get the legal help you need.