Clark v. League of Wisconsin Municipalities Mutual Insurance Company (Notice of Claim)

In Clark v. League of Wisconsin Municipalities Mutual Insurance Company (2019AP954 and 2019AP1489), the District II Court of Appeals held that a claim may still be able to proceed even though the plaintiff failed to provide formal notice as required by Wis. Stat. § 893.80(1d)(a).


While working as an instructor for Fox Valley Technical College in a building owned by the City of Oshkosh, Clark was injured when a door closed behind her faster than usual, knocking her down and causing injury to her face and hip. Clark’s supervisor filed an employer’s report of injury or disease with the Department of Workforce Development. Within a few years of the incident, Clark began suffering severe effects, eventually requiring a hip replacement that also led to an infection. She filed a notice of claim form with the city alleging that her injury at work had significantly worsened a previously minor condition.

Several months later, Clark sued Oshkosh. The city moved for summary judgement, arguing that Clark had not complied with Wis. Stat. § 893.80(1d)(a), which provides that no action may be brought against a city unless written notice of the circumstances of the claim is personally served on the city within 120 days of the alleged event. Although Clark filed an injury report almost immediately, her formal claim was not filed until several years after the incident. The circuit court agreed that Clark had failed to give timely written notice of her claim; Clark moved for reconsideration, which was denied, and then appealed.


Wis. Stat. § 893.80(1d)(a) contains a “savings clause” that excuses a plaintiff’s failure to provide formal notice where the defendant “had actual notice of the claim” and the plaintiff “shows to the satisfaction of the court that the delay or failure to give the requisite [formal] notice has not been prejudicial.” The trial court concluded that the delay between injury and notice was prejudicial because it prevented the city from promptly investigating the claim. The appellate court argued that the city may have had sufficient notice, because Clark reported the injury and filed a report almost immediately, and a city safety manager investigated the incident within a week. The appellate court reversed and remanded the case to the trial court for further proceedings on the issue of prejudice and whether the city had a sufficient opportunity to investigate Clark’s claim.

This opinion was recommended for publication in the official reports.