May/June 2019 Issue

Also in this issue: Supreme Court Allows Town to Proceed with Broad Challenge to Annexation Ordinance     |     A Comparison of the First Three Approved Financial Assistance Programs for Private Lead Service Line Replacements

Municipalities Lose the Right to Raise the Notice of Claim Statute as a Defense if Not Plead as an Affirmative Defense

05.31.19

Before persons may sue a municipality, they must serve the municipal clerk with a notice of claim under Wis. Stat. § 893.80(1d). The purpose of the notice is to make the municipality aware of the claim in order to allow the municipality to investigate and possibly settle it before a lawsuit is filed. If a person does not give proper notice, then a subsequent lawsuit can be dismissed. However, a municipality must raise the issue at the start of the lawsuit by pleading it as an affirmative defense in its answer to the complaint.

In Maple Grove Country Club v. Maple Grove Estates Sanitary District, 2019 WI 43 (April 23, 2019), the Wisconsin Supreme Court held that a municipality waives its right to raise the notice defense if it does not plead it as an affirmative defense. In that case, the country club alleged in its complaint that its actions had met the requirements of the notice of claim statute. The district denied those allegations, but did not plead as a separate affirmative defense that the case must be dismissed on the grounds that the club had failed to comply with the statute. The court held that a person does not have to allege in the lawsuit that he complied with the statute and, even if he does, it is not enough for the municipality to simply deny those allegations. Although the parties in the case had submitted evidence and argument about whether the club had, in fact, met the notice requirements, the court explained that it did not have to decide that issue, because the district had lost its right to use the defense.

The statutes give municipalities other defenses to lawsuits, some of which must be plead as affirmative defenses. For example, municipalities have immunity from liability for many discretionary actions and decisions. However, immunity must be plead as an affirmative defense. The statutes also put a limit of $50,000 on damages in certain types of cases. The cap on damages does not have to be plead as an affirmative defense. The lesson is that it is important for attorneys who represent municipalities in lawsuits to be aware of special defenses that may be raised and to determine at the start of the lawsuit whether any of those defenses are applicable and, if so, whether they must be specifically plead as defenses.