Daily v. University of Wisconsin, Whitewater

Decision Date14 July 1988
Docket NumberNo. 87-2037,87-2037
Citation145 Wis.2d 756,429 N.W.2d 83
Parties, 49 Ed. Law Rep. 736 James D. DAILY, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN, WHITEWATER, and Board of Regents of the University of Wisconsin System, and Jerry Gorby, Acting Executive Director of General Services of the University of Wisconsin, Whitewater Campus, Defendants- Respondents.
CourtWisconsin Court of Appeals

Review Denied.

Michael J. Mealy and Mealy & Kelly, Whitewater, for plaintiff-appellant.

Donald J. Hanaway, Atty. Gen., and Frank D. Remington, Asst. Atty. Gen., Madison, for defendants-respondents.


EICH, Judge.

James D. Daily appeals from an order dismissing his personal injury action against the University of Wisconsin--Whitewater, the University of Wisconsin Board of Regents and a university employee. The dispositive issue is whether substantial compliance with the notice of claim requirements of sec. 893.82(3), Stats., is sufficient, and, if so, whether Daily substantially met those requirements in this case. We answer both questions in the affirmative and reverse the order.

The basic facts are not in dispute. Daily, a student at Whitewater, injured his foot while jogging on a campus footpath. Several weeks later he filed a notice of claim with the office of the attorney general. The notice, which set forth the time, date, location and circumstances of the injury, named only the State of Wisconsin and the University of Wisconsin--Whitewater as the responsible parties. Daily was advised by the university's counsel that his claim was being denied because the state and the board of regents were immune from suit, and also because the notice failed to state the name of the university employee alleged to be negligent, as required by sec. 893.82(3), Stats. That section governs actions against state employees and provides that no civil action may be brought against any such employee for acts arising out of his or her duties "unless within 120 days of the event causing the injury ... the claimant ... serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event ... including the name of the state ... employee ... involved."

Daily then filed a civil damage action in Dane County Circuit Court, naming as defendants the university, the board of regents and Jerry Gorby, the university's acting director of general services. Gorby was described in the complaint as the "ultimate party responsible for the maintenance of the buildings and grounds located on the [university] campus...."

All defendants moved to dismiss the complaint--the university and the board on grounds that the doctrine of sovereign immunity bars any suit against them, and Gorby on grounds that the notice of claim filed with the attorney general failed to comply with the provisions of sec. 893.82(3), Stats., requiring the claimant to name the negligent employee. The trial court granted the motion, and Daily has appealed that portion of the judgment dismissing his action against Gorby.

The trial court's decision to dismiss against Gorby was grounded in our decision in Protic v. Castle Co., 132 Wis.2d 364, 369, 392 N.W.2d 119, 122 (Ct.App.1986), where we stated that "substantial compliance with [sec. 893.82(3) ] is insufficient," citing Yotvat v. Roth, 95 Wis.2d 357, 361, 290 N.W.2d 524, 527 (Ct.App.1980). Daily has satisfied us that our reliance on Yotvat was misplaced, and we withdraw the statement.

Yotvat held that substantial compliance was "insufficient to meet the terms" of the predecessor to sec. 893.82, Stats. (sec. 895.45, Stats. (1977)), because the legislature had provided that "no action shall be brought unless the required notice is given," and the plain language of the statute did not allow for any exceptions. Yotvat, 95 Wis.2d at 361, 290 N.W.2d at 527.

Although the point was never raised in Protic, the legislature, some four months after the Yotvat opinion was released, amended sec. 895.45, Stats. (1977), renumbering it to sec. 893.82, Stats., and extending the notice time from ninety to 120 days. Sec. 30, ch. 323, Laws of 1979. More importantly, the legislature also added interpretive language to the statute stating that its purpose was to provide the attorney general with "adequate time," to investigate and settle claims, sec. 893.82(1)(a)1, and directing that its provisions "shall be liberally construed to effectuate this intent." Sec. 893.82(1)(b). (Sec. 1782, 1983 Wis.Act 27.)

The legislature is presumed to act with knowledge of appellate decisions interpreting state statutes. Glinski v. Sheldon, 88 Wis.2d 509, 519-20, 276 N.W.2d 815, 820 (1979). Thus, when it added the "liberal construction" language to sec. 893.82, Stats., in the wake of our holding in Yotvat that the existing language left no room for a "substantial compliance" argument, it must be held to knowledge of that ruling. In a like manner, it also must be held to an awareness of the supreme court's criticism of the predecessor statute (sec. 895.45, Stats. (1977)) two years earlier in Mannino v. Davenport, 99 Wis.2d 602, 615-16, 299 N.W.2d 823, 829 (1981). In that case, the court upheld the dismissal of a medical malpractice action against a university physician because of the injured plaintiff's failure to comply with the notice requirements--even though the plaintiff was unaware that the physician was a university employee. The plaintiff argued that the doctor waived compliance with the statute when he failed to raise the objection in his responsive pleadings. Reluctantly holding that the plain language of the statute--language the court said made notice "a condition in fact requisite to recovery by the plaintiff," id. at 615, 299 N.W.2d at 829--would not allow any claim of waiver to be interposed, the court stated:

We do not enthusiastically endorse the result in this case. As exemplified by this decision, the requirements of sec. 895.45(1), Stats., produce harsh consequences. Nevertheless, the terms of this legislative enactment must be applied in accord with their plain meaning,...

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6 cases
  • Condemarin v. University Hosp.
    • United States
    • Utah Supreme Court
    • May 1, 1989
    ...should not be overturned without complete briefing by the parties."), superseded by statute as stated in Daily v. Univ. of Wis., Whitewater, 145 Wis.2d 756, 429 N.W.2d 83 (Wis.Ct.App.), review denied, 436 N.W.2d 30 (Wis.1988).16 Main opinion at 357, 358.17 See supra notes 2-11 and accompany......
  • Sorenson v. Batchelder, 2014AP1213.
    • United States
    • Wisconsin Supreme Court
    • May 12, 2016
    ...compliance with § 893.82 previously was sufficient to institute a claim against a state employee. Daily v. Univ. of Wis., Whitewater, 145 Wis.2d 756, 761, 429 N.W.2d 83 (Ct.App.1988), superseded by statute as stated in Modica, 195 Wis.2d at 641, 536 N.W.2d 466.¶ 30 However, Wis. Stat. § 893......
  • Modica v. Verhulst
    • United States
    • Wisconsin Court of Appeals
    • June 29, 1995
    ...according to plaintiff, named in the medical records attached to the notice of claim. Id. Then, in Daily v. University of Wisconsin, Whitewater, 145 Wis.2d 756, 429 N.W.2d 83 (Ct.App.1988), we considered the effect of § 893.82(1)(b), STATS., which had been enacted after Yotvat and prior to ......
  • Kelly v. Reyes, 91-2507
    • United States
    • Wisconsin Court of Appeals
    • April 22, 1992
    ...him by regular mail. Kelly also contends that we mandated liberal construction of the statute in Daily v. University of Wisconsin, Whitewater, 145 Wis.2d 756, 429 N.W.2d 83 (Ct.App.1988). We concluded in Daily that our earlier decision in Yotvat v. Roth, 95 Wis.2d 357, 290 N.W.2d 524 (Ct.Ap......
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