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Moran v. Milwaukee County1/25/2005
. Patricia Moran and her husband Frank Moran appeal from a summary judgment dismissing their complaint against Milwaukee County and Global Aerospace, Inc., Milwaukee County's insurance carrier, in connection with the Morans' personal-injury claim against Milwaukee County. The only issue is whether Wis. Stat. § 893.80(1)(a) bars that claim. The trial court ruled that it does. We affirm.
I.
. Patricia Moran alleges that she was injured when, on November 22, 2000, she tripped over what her complaint calls a "sign plate in the parking garage of General Mitchell International Airport." She filed this action against Milwaukee County and Global on May 21, 2003.
. Lawsuits against governmental entities like Milwaukee County are regulated by Wis. Stat. § 893.80(1). It provides, with the parts material to this appeal in italics:
Except as provided in subs. (1g), (1m), (1p) and (8), no action may be brought or maintained against any volunteer fire company organized under 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 s. 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.
(Italics added.) Thus, a notice is not "requisite notice" under § 893.80(1)(a) unless it:
· is served in the way set out in Wis. Stat. Rule 801.11 on the ultimate defendant " ithin 120 days after the happening of the event giving rise to the claim";
· describes "the circumstances of the claim"; and
· is signed by either the party or his or her "agent or attorney."
If all of this is not done, the action must be dismissed unless the plaintiff can prove "that the delay or failure to give the requisite notice has not been prejudicial to the defendant." § 893.80(1)(a). "The plaintiff has the burden of proving the giving of notice or actual notice and the nonexistence of prejudice." Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206, 208 (Ct. App. 1982).
. The Morans contend that Mrs. Moran gave the requisite 120-day notice under Wis. Stat. § 893.80(1) when, on December 5, 2000, she filled out part of a "Combined Report" on a document headed "General Mitchell International Airport." (Uppercasing omitted.) The report instructed the person completing the form to "check all that apply" and gave the following choices: "incident"; "accident"; "injury"; and "property damage." (Uppercasing omitted.) A heavy handwritten "X" appears next to "incident"; the others are blank. In response to the form's request for a " etailed description of what happened," Moran wrote: "tripped and caught right foot which I jammed knee on A bolted sign holder sticking out of ground with no sign on it. It was unmarked that day." The date of the "incident" was given as Novembe
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