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Moran v. Milwaukee County1/25/2005
r 22, 2000. In response to the form's request to " ote any apparent injuries or damage" there is an uppercased hand-printed "unk." In the place for "name, address and telephone # of any witnesses" is an "N/A." The trial court determined that this "Combined Report" did not satisfy § 893.80(1), and, further, that although Mrs. Moran sent to the Milwaukee County Clerk and the airport's director a document dated April 1, 2002, that purported to be a formal "Notice of Injury under Section 893.80," the Morans had not shown that Milwaukee County was not prejudiced.
II.
. As noted, the trial court decided this case on summary judgment. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). In order to survive summary judgment, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," Wis. Stat. Rule 802.08(3), pertinent to that element, Transportation Insurance Co. v. Hunzinger Construction Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139-140 (Ct. App. 1993). This appeal turns on two matters. First, whether the Morans gave the requisite Wis. Stat. § 893.80(1) notice to Milwaukee County. Second, if not, whether they have established that there are facts that demonstrate Milwaukee County was not prejudiced. Prejudice vel non is, however, a legal issue that we decide de novo. Olsen v. Township of Spooner, 133 Wis. 2d 371, 379, 395 N.W.2d 808, 811 (Ct. App. 1986). We discuss these matters in sequence.
A. Wisconsin Stat. § 893.80(1)
. As we have seen, Wis. Stat. § 893.80(1)(a) requires that the 120-day notice be both "signed by the party, agent or attorney," and, also "served on the ... political corporation, governmental subdivision or agency... under s. 801.11." The December 2000, "Combined Report" satisfies neither of these requirements. First, contrary to the Morans' representations in their appellate briefs, the December 5, 2000, "Combined Report" was not signed by either Patricia Moran or her agent or attorney. Second, Wis. Stat. Rule 801.11(4)1. requires that counties be served by serving "the chairperson of the county board or the county clerk." The December 2000, "Combined Report" was not served on either the chairperson of the Milwaukee County board or on the Milwaukee County clerk, and thus the Morans did not comply with Rule 801.11(4)1. Cf. Medley v. City of Milwaukee, 969 F.2d 312, 320 (7th Cir. 1992) (service of § 893.80 notice on the United States Department of Housing and Urban Development not service on City of Milwaukee even though Department may have forwarded notice to the City). Accordingly, we must now turn to whether the Morans have established that Milwaukee County was not prejudiced by their failure to comply with the formal-notice requirements of § 893.80(1).
B. Prejudice
. As noted, whether a plaintiff has proven that the governmental entity was not prejudiced by the plaintiff's failure to comply with the formal 120-day notice-requirements of Wis. Stat. § 893.80(1) is a legal issue subject to our de novo review. Olsen, 133 Wis. 2d at 379, 395 N.W.2d at 811. Section 893.80(1) is designed to ensure that the entity will have enough information-either formally by virtue of the 120-day notice, or via the lack-of-prejudice avenue-about the plaintiff's injury to be able to fully investigate "the circumstances giving rise to a claim." Elkhorn Area Sch. Dist., 110 Wis. 2d at 5, 327 N.W.2d at 208. An irreducible minimum of this enough-information requirement is that the governmental ent
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