2021 WI App 21

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case Nos.: 

2019AP954

2019AP1489

Complete Title of Case: 

NO. 2019AP954

JOYCE S. CLARK,

 PLAINTIFF-APPELLANT,

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED 

WISCONSIN INSURANCE COMPANY,

 INVOLUNTARY-PLAINTIFFS,

 V.

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE 

COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,

 DEFENDANTS-RESPONDENTS.

NO. 2019AP1489

JOYCE S. CLARK,

 PLAINTIFF-APPELLANT,

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED 

WISCONSIN INSURANCE COMPANY,

 INVOLUNTARY-PLAINTIFFS,

 V.

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE 

COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,
2

 DEFENDANTS-RESPONDENTS.

Opinion Filed: March 31, 2021

Submitted on Briefs: July 16, 2020

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.

Appellant

ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the 

briefs of Michael J. Kuborn of Apex Accident Attorneys, LLC, of 

Oshkosh.

Respondent

ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the 

brief of Ashley C. Lehocky of Town Counsel Law & Litigation, LLC, of 

Appleton. 
2021 WI App 21

COURT OF APPEALS

DECISION

DATED AND FILED

March 31, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal Nos. 2019AP954

2019AP1489

Cir. Ct. No. 2018CV848

STATE OF WISCONSIN IN COURT OF APPEALS

NO. 2019AP954

JOYCE S. CLARK,

 PLAINTIFF-APPELLANT,

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED 

WISCONSIN INSURANCE COMPANY,

 INVOLUNTARY-PLAINTIFFS,

 V.

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE 

COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,

 DEFENDANTS-RESPONDENTS.

NO. 2019AP1489

JOYCE S. CLARK,

 PLAINTIFF-APPELLANT,

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AND UNITED 

WISCONSIN INSURANCE COMPANY,
Nos. 2019AP954

2019AP1489

2

 INVOLUNTARY-PLAINTIFFS,

 V.

LEAGUE OF WISCONSIN MUNICIPALITIES MUTUAL INSURANCE 

COMPANY, CITY OF OSHKOSH, JEAN WOLLERMAN AND JAMES RABE,

 DEFENDANTS-RESPONDENTS.

APPEALS from orders of the circuit court for Winnebago County: 

DANIEL J. BISSETT, Judge. Reversed and cause remanded with directions. 

Before Neubauer, C.J., Gundrum and Davis, JJ. 

¶1 DAVIS, J. This is a personal injury action by Joyce S. Clark against 

the City of Oshkosh (the City). The defendant’s status as a governmental 

subdivision brings into play the statutory notice of injury requirement. See WIS.

STAT. § 893.80(1d)(a) (2017-18)1(as relevant here, a plaintiff must serve on a city 

defendant written notice of the circumstances of the claim, meeting certain statutory 

requirements, or must demonstrate that the failure to provide such notice was not 

prejudicial). Whether Clark complied with this requirement and, if not, whether her 

noncompliance should be excused are the primary issues on appeal. 

¶2 The trial court granted the City’s motion for summary judgment on 

the grounds that Clark had met neither the written notice requirement nor the 

statutory prerequisite for excusing noncompliance—lack of prejudice to the City. 

We agree with the former finding but not the latter, at least for summary judgment 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version.
Nos. 2019AP954

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3

purposes. Although Clark did not provide formal written notice, she sufficiently 

raised an issue of fact as to whether the City was thereby prejudiced. We 

consequently remand for further proceedings on that issue. 

BACKGROUND

¶3 Clark was a sewing instructor with Fox Valley Technical College (the 

College).2 As part of her job, she taught classes at the City-owned Oshkosh Senior 

Center (the Senior Center). On October 17, 2015, Clark unlocked and walked 

through one of the entrance doors to the Senior Center. The door closed faster than 

usual behind her, knocking her off balance and causing her to fall. Two of Clark’s 

students helped her to her feet. 

¶4 Later that day, Clark told her supervisor that she had been injured at 

work. The supervisor, on Clark’s behalf, filled out an online “Employer’s First 

Report of Injury or Disease” (the Injury Form); this is a standard Wisconsin 

Department of Workforce Development workers’ compensation form that is used 

to report work-related injuries to the employer’s insurer. On the Injury Form, the 

supervisor (mistakenly) listed Clark’s employer as “City of Oshkosh” and not the 

College. The Injury Form described the incident and injury as follows:

Injury Description—Describe Activities of Employee 

When Injury or Illness Occurred and What Tools, 

Machinery, Objects, Chemicals, Etc. Were Involved.

I was attempting to enter building thru electric 

controlled door which was turned off

What Happened to Cause This Injury o[r] Illness? (Describe 

How The Injury Occurred)

 

2

 For the purpose of this decision, we accept as true all facts concerning Clark’s physical 

injury alleged in the complaint or attested to by Clark in her summary judgment affidavits. 
Nos. 2019AP954

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4

Door closed unexpectedly and hit employee, she lost 

balance and hit glass wall face first.

What Was the Injury or Illness? (State the Part of Body 

Affected and How It Was Affected)

employe[e] has bruised cheek and left hip

Checked boxes on the Injury Form also indicated that Clark returned to work on 

October 21, that hers was not a “Lost Time or Other Compensable Injury,” and that 

she was not treated in an emergency room. Clark reviewed and approved the Injury 

Form and provided it to the supervisor, who then sent it electronically to the City.

¶5 Paul Greeninger, a City safety and risk management officer, received 

the Injury Form. He could not verify that Clark was a City employee, so he asked 

Mark Ziemer, the City senior services manager, about the matter. Ziemer oversaw 

Senior Center operations and was familiar with Clark; he explained that Clark was 

a College and not a City employee. Greeninger informed Clark of her mistake, and 

sometime thereafter, Clark properly filed a new workers’ compensation form. 

¶6 Greeninger, now aware of Clark’s fall, investigated. Within the week, 

he examined the door and spoke with “individuals over at the Senior Center,” 

including “the facilities person.” Greeninger learned that employees had been 

switching off the door’s “disabled person capability” button at night to preserve the 

motor. That button, when pushed, normally allowed the door to slowly open and 

close on its own. Because this functionality was turned off on the day of Clark’s 

accident, however, the door swung back at Clark faster than she expected and hit 

her. Once Greeninger concluded that the door “was still operable,” he ended his 

investigation. Greeninger thus summarized the extent and purpose of his inquiry as 

follows:

Initially it came that, as I recall, the door was broken and I 

wanted to know, if it is broken, we need to fix it. We found 
Nos. 2019AP954

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out it was not broken. So as far as I was concerned, there 

was nothing that needed to be fixed. There wasn’t—in my 

job, was there uneven surface, was there liquids, did they 

trip, did they fall, all those things? None of that was there, 

so as far as I was concerned, as a safety person, there was 

nothing that needed to be fixed. So at that point my 

investigation was done.

¶7 At some point over the two and one-half years between the date of her 

fall and April 2018, Clark began suffering severe aftereffects. The fall 

“significantly exacerbated” a “previously slight, asymptomatic, pre-existing, 

arthritic condition ... leading to a hip replacement and in that process an infection 

... which damaged [her] kidneys.” On April 12, 2018, Clark filed a notice of claim 

form with the City. See WIS. STAT. § 893.80(1d)(b) (as relevant here, suit may not 

be brought against a city unless a claim containing the claimant’s address and an 

itemized statement of relief sought is properly filed, and the city disallows the 

claim). Clark attested that she “suffered injuries to her face; left hip; and, other 

injuries,” requiring treatment by multiple providers and resulting in “permanent 

injury with permanent residual limitations.” She “demand[ed] satisfaction in the 

amount of $50,000.00” and attached an itemized list of medical bills.

¶8 In October 2018, Clark brought suit. The City moved for summary 

judgment, arguing that Clark had not complied with the notice of injury requirement 

of WIS. STAT. § 893.80(1d)(a).3 The first sentence of § 893.80(1d)(a) concerns 

formal notice of injury; as applicable to Clark’s suit, it states that no action may 

brought against a city unless, within 120 days of the “event giving rise to the claim, 

written notice of the circumstances of the claim” is signed by the claimant, her agent, 

or her attorney and is personally served on the city mayor, manager, or clerk (or left 

with the person in charge of such office) per the personal jurisdiction requirements 

 

3

 The City raised additional arguments on summary judgment, including that Clark did not 

comply with the statute of limitations; these issues are not before us on appeal.
Nos. 2019AP954

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of WIS. STAT. § 801.11(4)(a)3., (b). The City pointed out—and the trial court 

agreed—that Clark unquestionably did not provide formal notice of injury: the only 

document the City received within 120 days of Clark’s fall was the electronic Injury 

Form, which was neither signed nor properly served pursuant to § 801.11. 

¶9 Where a claimant fails to give formal notice, the action is not barred 

if the claimant substantially complies with WIS. STAT. § 893.80(1d)(a)—meaning 

that the defendant “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 [formal] notice 

has not been prejudicial to the defendant.” Id.; Bostco LLC v. Milwaukee Metro.

Sewerage Dist., 2013 WI 78, ¶88, 350 Wis. 2d 554, 835 N.W.2d 160. The court 

determined that the Injury Form did not and could not provide actual notice, because 

although it stated that Clark was physically injured, it did not inform the City of her 

claim. The court therefore found that the City did not have actual notice until April 

2018, when Clark’s notice of claim form alerted the City both that she had been 

injured and that she was seeking to hold it liable. The court further determined that 

this delay “was a fairly extensive period of time,” such that permitting Clark’s suit 

to proceed would really “defeat[] the purpose of the statute in allowing the 

governmental entity to make a prompt investigation of the circumstances giving rise 

to a claim.” Accordingly, the court concluded that Clark had not met her burden of 

showing lack of prejudice from her failure to give timely written notice. 

¶10 Clark moved for reconsideration and relief from judgment, which the 

trial court denied. Additional facts will be noted where relevant.

DISCUSSION

Legal Principles
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¶11 In most respects, this is a garden-variety personal injury claim, no 

different than a slip-and-fall suit alleging negligence against a property owner, and 

the sort of claim that is a mainstay of our civil dockets. In one crucial respect, 

however, this case is different: because Clark’s injury occurred on City-owned 

property, Clark’s negligence claim lies against the City. That fact brings into play 

the statutory requirement that Clark give two separate types of notice before she can 

file suit on her claim. See WIS. STAT. § 893.80(1d).4 

¶12 The first notice, under WIS. STAT. § 893.80(1d)(a), is often referred 

to as the notice of injury. See Yacht Club at Sister Bay Condo. Ass’n v. Village of 

Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922 N.W.2d 95. The primary purpose 

 

4

 WISCONSIN STAT. § 893.80(1d) states that, except as otherwise provided under 

§ 893.80: 

[N]o action may be brought or maintained against any volunteer

fire company organized under [WIS. STAT.] 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 [WIS.

STAT. §] 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; and

 (b) A claim containing the address of the claimant and an 

itemized statement of the relief sought is presented to the 

appropriate clerk or person who performs the duties of a clerk or 

secretary for the defendant fire company, corporation, subdivision 

or agency and the claim is disallowed.
Nos. 2019AP954

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of this notice is to enable governmental entities to promptly investigate and evaluate 

the underlying circumstances that may later give rise to a claim. Id.; Elkhorn Area 

Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206 (Ct. 

App. 1982). 

¶13 The first sentence of WIS. STAT. § 893.80(1d)(a) outlines the 

requirements of formal notice of injury: within 120 days of the event giving rise to 

the claim, the plaintiff must serve on the defendant, pursuant to WIS. STAT.

§ 801.11, “written notice of the circumstances of the claim,” signed by the plaintiff 

or his or her agent or attorney. (Emphasis added.) Thus, there are four elements of 

formal notice: proper timing (within the first 120 days), proper service under 

§ 801.11 (governing service of process in civil actions), proper signatory, and a 

description “of the circumstances of the claim.” Notably, by the plain language of 

the statute, formal notice need not apprise the defendant of the claim itself—as will 

be discussed below, that comes later. Rather, this notice simply alerts the defendant 

that an incident occurred that might thereafter ripen into a claim. That such notice 

is “of the circumstances” makes sense when one considers that plaintiffs may not 

always realize the extent, or even existence, of the injuries giving rise to a claim 

within the first 120 days of an accident. 

¶14 To mitigate the potential harshness that might ensue from the strict 

application of this requirement, the statute contains a “savings clause.” See Van v. 

Town of Manitowoc Rapids, 150 Wis. 2d 929, 933, 442 N.W.2d 557 (Ct. App. 

1989). The second sentence of WIS. STAT. § 893.80(1d)(a) allows for substantial 

compliance, excusing the plaintiff’s failure to provide formal notice where: 

(1) the defendant “had actual notice of the claim,” and (2) the plaintiff “shows to 

the satisfaction of the court that the delay or failure to give the requisite [formal] 

notice has not been prejudicial.” See WIS. STAT. § 893.80(1d)(a); Bostco LLC, 350 
Nos. 2019AP954

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Wis. 2d 554, ¶88. In at least one respect, the actual notice requirement may be more 

difficult to meet than formal notice: actual notice must be “of the claim,” rather 

than of the mere “circumstances” that may later give rise to a claim. (Emphasis 

added.) We will discuss this point further below. On the other hand, actual notice 

is not limited to a particular timeframe and may occur outside the 120 days 

following the injury-causing event. Nielsen v. Town of Silver Cliff, 112 Wis. 2d 

574, 580-81, 334 N.W.2d 242 (1983). 

¶15 The second required notice is “[a] claim containing the address of the 

claimant and an itemized statement of the relief sought ... presented to the 

appropriate clerk or person who performs the duties of a clerk or secretary for the 

defendant.” WIS. STAT. § 893.80(1d)(b). This portion of the statute is referred to 

as the notice of claim requirement and serves the primary purpose of giving the 

defendant “the opportunity to compromise and settle a claim, thereby avoiding 

costly and time-consuming litigation.”5 Yacht Club at Sister Bay, 385 Wis. 2d 158, 

¶20. 

¶16 This appeal concerns Clark’s compliance with WIS. STAT.

§ 893.80(1d)(a), the notice of injury requirement. Whether a plaintiff has satisfied 

this requirement, either through formal notice or substantial compliance, is 

ultimately a question of law that may be appropriate for summary judgment.6 See 

 

5

 The notice of claim requirement may also effectively expedite the litigation process. The 

claimant cannot file suit until the claim presented “is disallowed,” which the defendant may 

accomplish either by serving a notice of disallowance on the claimant or by simply failing to take 

any action within 120 days. WIS. STAT. § 893.80(1d)(b), (1g). Where the defendant serves a notice

of disallowance, the claimant must bring suit within six months Sec. 893.80(1g). 

6

 To be precise, where the proceeding below involved fact-finding, we review those 

findings under the deferential “clearly erroneous” standard, but we determine de novo whether 

statutory notice was thereby effected. See E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, 

¶17, 335 Wis. 2d 720, 800 N.W.2d 421. As this case was decided on summary judgment, we owe 

no deference to the trial court. 
Nos. 2019AP954

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E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶17, 335 Wis. 2d 720, 800 

N.W.2d 421; Moran v. Milwaukee County, 2005 WI App 30, ¶5, 278 Wis. 2d 747, 

693 N.W.2d 121. Summary judgment shall be granted where the pleadings and 

evidence “show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). 

“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’ ... 

pertinent to that element.” Moran, 278 Wis. 2d 747, ¶5 (citation omitted). Thus, a 

plaintiff seeking to demonstrate substantial compliance with the notice of injury 

requirement bears the burden, on summary judgment, of introducing sufficient 

evidence raising a genuine issue of material fact as to when the defendant received 

actual notice and whether the defendant was prejudiced by the plaintiff’s failure to 

give formal notice. Id.

Application of Legal Principles to This Case

¶17 There is no dispute that Clark provided the second required notice 

under WIS. STAT. § 893.80(1d)(b) when, on April 12, 2018, she submitted her notice 

of claim form to the City. This notice described her accident, injuries, and expenses, 

and demanded $50,000, the maximum allowed by § 893.80(3). 

¶18 It is equally undisputed that Clark did not provide the first required 

notice, the formal notice of injury under WIS. STAT. § 893.80(1d)(a).7 That is, Clark 

 

7

 More accurately, it is undisputed that Clark did not comply with the statutory 

requirements for formal notice. Clark argues that one may “substantially comply” with the formal 

notice requirement, but she has misconstrued the law. To provide notice of injury, a plaintiff must 

either strictly comply with the formal notice requirement or substantially comply with WIS. STAT. § 

893.80(1d)(a) by demonstrating actual notice of the claim and lack of prejudice to the defendant. 

Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶88, 350 Wis. 2d 554, 835 N.W.2d 

160.
Nos. 2019AP954

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did not, within 120 days of her accident, serve on the City a signed notice describing 

the circumstances of her claim. Instead, she mistakenly sent the City the Injury 

Form—the online workers’ compensation form describing her fall and injuries. 

Although this form was submitted within the proper timeframe, it was neither signed 

by Clark nor served in compliance with WIS. STAT. § 801.11. 

¶19 This case, then, boils down to whether: (1) the City had “actual notice 

of the claim,” and (2) Clark showed that the City was not prejudiced by her failure 

to satisfy the statutory requirements of formal notice. More specifically, the 

question is whether factual disputes on these issues precluded summary judgment 

in the City’s favor.8

The City had “actual notice of the claim” by virtue of Clark’s April 12, 2018 notice 

of claim form 

¶20 As we have already discussed, under WIS. STAT. § 893.80(1d)(a), the 

actual notice necessary to effectuate substantial compliance is “of the claim.” 

(Emphasis added.) On the surface it may seem curious that formal notice is “of the 

circumstances of the claim” whereas its substitute, actual notice, is “of the claim”—

until one recalls that the purpose of either notice “is to allow governmental 

authorities to make a prompt investigation of the circumstances giving rise to a 

 

8

 The following analysis considers only the facts presented on summary judgment. Clark 

raised additional facts in her motion for reconsideration and relief from judgment, as to when the 

City received actual notice and whether the City was prejudiced. The trial court found that this 

evidence was not newly discovered and could have been introduced on summary judgment; 

accordingly, the court declined to reconsider its ruling or grant relief from judgment on that or any 

other basis. See Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, 

Ltd., 2004 WI App 129, ¶¶44-48, 275 Wis. 2d 397, 685 N.W.2d 853; WIS. STAT.

§ 806.07(1). We agree with the court’s findings and analysis and, as a result, uphold this

discretionary determination. See Koepsell’s Olde Popcorn Wagons, Inc., 275 Wis. 2d 397, ¶6. 

Accordingly, we disregard any facts introduced after summary judgment, and we deem forfeited 

any arguments that rely on these facts. See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235 

Wis. 2d 486, 611 N.W.2d 727.
Nos. 2019AP954

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claim.” See Elkhorn Area Sch. Dist., 110 Wis. 2d at 5. By its very nature (timing, 

signature, and service) formal notice conveys to the defendant that the injured party 

is at least contemplating filing suit. Actual notice, which may occur in a variety of 

ways, carries no such implication. Thus, to allow the defendant to meaningfully 

investigate “the circumstances” of a claim, actual notice should include some 

indication that the injured party intends to hold the defendant liable. See Markweise 

v. Peck Foods Corp., 205 Wis. 2d 208, 220-21, 556 N.W.2d 326 (Ct. App. 1996); 

Felder v. Casey, 139 Wis. 2d 614, 628-631, 408 N.W.2d 19 (1987), rev’d on other 

grounds, 487 U.S. 131 (1988).

¶21 The parties spend much of their briefing on whether the City had 

actual notice by virtue of the Injury Form, discussions between Clark and Cityemployed staff at the Senior Center, or both. Given that actual notice must apprise 

the defendant of the injured party’s claim, we hold that these early 

communications—focused as they were solely on the cause of Clark’s injury—did 

not meet the actual notice requirement. But, again, under the savings clause, there 

is no timeframe for providing actual notice (unlike the 120-day requirement for 

formal notice). As our supreme court stated in Nielsen:

The statute provides that actual notice is sufficient to maintain a 

claim if the plaintiff shows that the governmental unit was not 

prejudiced. This method of preserving the claim does not need a 

time limit because a subjective showing of no prejudice assures 

that the statute’s purpose has been satisfied regardless of when 

actual notice is received. This conclusion accords with the plain 

language of the statute which establishes no time limit for actual 

notice. 

Nielsen, 112 Wis. 2d at 580-81 (emphasis added).

¶22 This legal point makes the question of when the City had “actual 

notice of the claim” largely academic at this point in the analysis. There can be no 

question that the City had such notice when, on April 12, 2018, it received Clark’s 
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notice of claim form under WIS. STAT. § 893.80(1d)(b) (this form apprised the City 

of both Clark’s injury and her claim for reimbursement for medical expenses). But 

although we do not consider the parties’ prior communications sufficient to satisfy 

the actual notice requirement, they are nonetheless relevant to the prejudice 

analysis—to which we now turn. 

Clark raised a genuine issue of material fact on the issue of prejudice, necessitating 

remand for further proceedings

¶23 As our review is from summary judgment, the specific question is 

whether Clark raised a genuine issue of material fact as to whether she could meet 

her burden to show that the City was not prejudiced by the lack of formal notice. 

See Moran, 278 Wis. 2d 747, ¶5. Prejudice in this context has been defined as “the 

inability of a party to adequately defend a claim” because the party lacked sufficient 

opportunity to conduct a prompt investigation. Olsen v. Township of Spooner, 133 

Wis. 2d 371, 379-80, 395 N.W.2d 808 (Ct. App. 1986). The trial court found that 

the City was prejudiced because of “the passage of time.” This was in reference to 

submission of the April 2018 notice of claim form, which served double-duty as 

both actual notice under the savings clause and notice of claim under WIS. STAT. § 

893.80(1d)(b). In the trial court’s view, such delay between injury and notice was 

too “extensive” to allow the City to “make a prompt investigation of the 

circumstances giving rise to a claim.” 

¶24 We would likely agree with the trial court if, in fact, the only 

communication the City received was a form submitted two and one-half years after 

the accident. But that, of course, was not when the City first learned of Clark’s fall 

or injuries (such as they were at that point). Almost immediately after the accident, 
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the City received the Injury Form stating that Clark had fallen and sustained what 

she then believed to be minor injuries. As noted above, other discussions ensued 

shortly thereafter. Although these communications did not satisfy the statutory 

requirements for formal notice of injury, or even the savings clause criteria for 

“actual notice of the claim,” they nonetheless cannot be ignored when assessing 

prejudice. Upon receiving the Injury Form, Greeninger, the City safety and risk 

management officer, investigated the cause of the accident within the week. He 

determined that the door was not broken but, rather, that an electronic mechanism 

had been turned off. This caused the door to close more quickly than expected, 

hitting Clark and causing her to fall. As the extent of Clark’s injuries was then 

unknown, Greeninger’s inquiry likely encompassed most, if not all, of what the City 

could have investigated at that point. Of course, Greeninger, as a “safety person,” 

focused on whether anything “needed to be fixed,” so it is unclear if he performed 

as comprehensive an investigation as would have occurred with formal notice or 

what, if anything, a different investigation would have yielded. Such questions will 

be pertinent on remand, but on this record, we cannot conclude that the City was 

prejudiced as a matter of law. 

¶25 The above analysis underscores a key point in applying the notice of 

injury provision. The date on which a defendant had “actual notice of the claim” 

may bear on prejudice—but it is certainly not dispositive. By the express terms of 

the statute, prejudice is from “the delay or failure to give the requisite notice.” See 

WIS. STAT. § 893.80(1d)(a) (emphasis added). The “requisite” notice is the formal

notice of injury under § 893.80(1d)(a). As previously discussed, such formal notice 

need only describe the circumstances of the claim, not the claim itself. That makes 

the key inquiry as follows: What, if anything, would the defendant have done 
Nos. 2019AP954

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differently had the plaintiff timely served a statutorily compliant written notice 

describing those circumstances? 

¶26 It is conceivable that the answer to this “what if” question could be 

affected by when the defendant first learned of the actual claim. An example might 

be where the defendant’s awareness of an injury was not enough to prompt an 

investigation sufficient to protect the defendant’s interests—where, in other words, 

only the defendant’s knowledge of a potential lawsuit could have prompted such an 

investigation. But whether that is true in any given case should be assessed as part 

of the overall factual inquiry into prejudice. 

¶27 Here it is undisputed that the City, by way of the Injury Form, almost 

immediately learned of the underlying circumstances giving rise to Clark’s claim, 

long before it had actual notice of the claim itself. There is evidence to suggest that 

this knowledge enabled the City to perform (and that it did perform) the very type 

of investigation that formal notice of injury was designed to afford. Thus, the City 

may have had “a sufficient opportunity to investigate all incidents giving rise to tort 

claims” and to “guard against specious claims.” See Nielsen, 112 Wis. 2d at 580. 

Although the burden remains on Clark, on remand, to show a lack of prejudice, the 
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evidence is sufficient to at least raise a genuine issue of material fact on that issue, 

precluding summary judgment in favor of the City.9

¶28 We therefore remand for further proceedings so that the necessary 

findings and conclusions on prejudice, or lack thereof, can be made to the trial 

court’s satisfaction. See WIS. STAT. § 893.80(1d)(a) (lack of prejudice shall be 

determined “to the satisfaction of the court”). On remand, the court will need to 

evaluate whether the City had a sufficient opportunity to perform an investigation 

and, if not, what prejudice may have resulted. These proceedings should focus on 

prejudice only and should not re-determine other issues of statutory compliance.10

By the Court.—Orders reversed and cause remanded with directions.

 

9

 In reaching this decision, we have considered the City’s position that summary judgment 

was appropriate because Clark did not directly argue the issue of prejudice in her summary 

judgment response brief. Such failure on Clark’s part makes this case more difficult. Clark’s 

summary judgment response, however, argued that actual notice occurred when Clark provided the 

Injury Form to the City. As part of this argument, Clark discussed Greeninger’s investigation and 

asserted that the City was able to timely investigate and evaluate Clark’s claim; she also attached 

supporting deposition evidence. In our view, such argument, while clouding the distinction 

between actual notice and prejudice, sufficiently raised the prejudice issue, particularly since lack 

of prejudice was expressly argued at the hearing and addressed on the merits by the trial court. We 

stress, however, that plaintiffs seeking to demonstrate lack of prejudice under WIS. STAT §

893.80(1d)(a) in a dispositive proceeding should do so front and center, presenting all their 

supporting facts and argument in their briefing. As noted in the passage quoted above from Nielsen, 

prejudice, not the date of “actual notice,” will generally be the key inquiry in cases concerning 

substantial compliance with § 893.80(1d)(a). See Nielsen v. Town of Silver Cliff, 112 Wis. 2d 574, 

580-81, 334 N.W.2d 242 (1983). 

10

 We reject Clark’s additional argument that, in its answer, the City failed to plead 

statutory noncompliance as an affirmative defense, pursuant to Maple Grove Country Club Inc. v. 

Maple Grove Estates Sanitary District, 2019 WI 43, ¶3, 386 Wis. 2d 425, 926 N.W.2d 184, and 

therefore waived any challenge on those grounds. The City’s answer contained a list of “affirmative 

defenses,” including that “Plaintiff’s claims are subject to the limitations and immunities in [WIS.

STAT. §] 893.80.” Such statement fulfills the notice pleading standard. Cf. Hlavinka v. Blunt, 

Ellis & Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App. 1993) (“[A] pleading must 

give the defending party fair notice of ... the ... claim [and] ‘the grounds upon which it rests’ ....” 

(citation omitted)).