Kempfer v. Evers, 85-1117
| Decision Date | 18 September 1986 |
| Docket Number | No. 85-1117,85-1117 |
| Citation | 395 N.W.2d 812,133 Wis.2d 415 |
| Parties | Dennis J. KEMPFER, Plaintiff-Appellant, v. Raymond H. EVERS, M.D., Superintendent and Medical Director, Rocky Knoll Sanatorium and Hospital; Jerry Coppel, employed by Department of Public Welfare, Division for Children and Youth; Paul M. Weisel, Chairman, Patient Admission and Placement Planning Committee, Southern Wisconsin Colony; John M. Garstecki, Superintendent, South Wisconsin Colony; Marvin J. Steffen, Cottage Supervisor, Southern Wisconsin Colony; Phillip E. Podruch, employed by Southern Wisconsin Colony; Arol Kern, Supervisor of Cottage 4, Southern Wisconsin Colony, Defendants-Respondents, Edward E. Houfek, M.D., employed by the Juvenile Court of Sheboygan County; Eugene R. Neeff, Chief Social Worker, Southern Wisconsin Colony; Wisconsin Department of Health and Social Services; State Department of Public Instruction, Bureau for Handicapped Children, and Certain Other Unknown Defendants, Defendants. |
| Court | Wisconsin Court of Appeals |
Patricia K. Hammel, Madison, for plaintiff-appellant.
Bronson C. La Follette, Atty. Gen., and Waltraud A. Arts, Asst. Atty. Gen., for defendants-respondents.
Alexander Hopp, Sheboygan, for defendant-respondent Raymond H. Evers, M.D.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
Dennis J. Kempfer appeals from an order dismissing his damage action against several state officers and employees. The action was brought under the Federal Civil Rights Act, 42 U.S.C. sec. 1983 (1982), based on Kempfer's claim that the defendants violated his constitutional rights between 1962 and 1973 when he was institutionalized in various state mental health facilities. The issue is whether the action is barred by the statute of limitations. We conclude that it is, and we therefore affirm the order.
The facts alleged in Kempfer's complaint are not disputed. The application of a statute of limitations to the facts is a question of law which we decide independently, without deference to the trial court's decision. Kroeger v. Kroeger, 120 Wis.2d 48, 50, 353 N.W.2d 60, 61 (Ct.App.1984).
Kempfer was born on July 26, 1955. In 1962, a juvenile court ruled that he was mentally deficient and required institutional care. He was committed to Southern Wisconsin Colony and Training School. Kempfer remained confined in various state institutions until the spring of 1973, when he escaped from Mendota State Hospital. He contacted an attorney who negotiated his release from the hospital. Although released from institutional care, he remained under state supervision until he turned eighteen on July 26, 1973.
Several years later, in March, 1980, a friend told Kempfer that he might have a legal cause of action against the state based on his institutionalization while a minor. He eventually consulted an attorney and started this action on April 10, 1984. The substance of Kempfer's complaint is that he was wrongfully institutionalized and denied an appropriate education and that, as a result, he suffered both physical and emotional harm for which he should be compensated.
The trial court dismissed the action on grounds that it was not commenced within the six-year limitation period specified in sec. 893.93(1)(a), Stats. The court held that Kempfer's cause of action accrued on his release by the department on July 26, 1973, and that sec. 893.18(2)(b), which tolls the limitation period for "insane" persons, was inapplicable.
Kempfer argues that his cause of action did not accrue until March, 1980, when he was first advised that he might have a legal claim against the state. He also contends that the statutory limitation should have been tolled under sec. 893.18, Stats., because of his mental disability. We agree with the trial court that the cause of action accrued on July 26, 1973. Because we also conclude that the applicable limitation period is three years, not six, we need not consider the applicability of sec. 893.18. 1
Congress has not provided a statute of limitations for 42 U.S.C. sec. 1983 actions. As a result, state statutes of limitation are applicable if they are not inconsistent with federal law. Wilson v. Garcia, 471 U.S. 261, 265, 105 S.Ct. 1938, 1941, 85 L.Ed.2d 254, 260 (1985). In Wilson, the Supreme Court stated that sec. 1983 actions were properly characterized as personal injury actions for purposes of statutes of limitation. Id., at 275, 105 S.Ct. at 1946, 85 L.Ed.2d at 266. We adopted that view in Hanson v. Madison Service Corp., 125 Wis.2d 138, 141, 370 N.W.2d 586, 588 (Ct.App.1985), where we held that "all sec. 1983 actions brought in Wisconsin [must] be brought within the three year limitation of sec. 893.54(1), Stats."
The period of limitation begins to run when the cause of action accrues. A cause accrues when a person discovers or should have discovered his or her injury. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975); Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578, 583 (1983). Kempfer argues, however, that a cause of action cannot accrue until the person discovers both the injury and the existence of a possible legal remedy. He claims that he did not know he could sue the state until a friend so advised him in March, 1980. He maintains that his cause of action did not accrue until then, basing his argument on the following statement in Hansen: "[A]s a practical matter a claim cannot be enforced until the claimant discovers the injury and the accompanying right of action." Id. at 559, 335 N.W.2d at 582. The statement undoubtedly is correct in its reference to when, as a practical matter, a right may be enforced. But this has nothing to do with when the cause of action accrues. Accrual is based on the person's knowledge that he or she has been injured. Id. at 560, 335 N.W.2d at 583. It is true that when the source of injury is unclear and the injured person has exercised reasonable diligence, the time of accrual may be extended until a causal connection can be established. Borello v. U.S. Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140, 146 (1986). However, neither Hansen nor Borello provide any authority for the...
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