Suing the State: Very Early Notice Required to Preserve Claim

Historically, it was the law that no one could sue the King or his men. This ancient principle evolved to a rule where state governments—including counties, cities, and state employees acting in their official capacity—had immunity from lawsuits. Over time, this absolute protection has decayed. However, the doctrine of government immunity still survives in a number of ways. For example, judges cannot be sued for acting in their judicial capacity. Generally though, you can sue the state so long as you comply with the strict procedural requirements that the state requires.

For example, in Wisconsin, a harmed party has just 120 days from the date of the event giving rise to the claim in which to provide a notice of the claim to the state entities involved. In Minnesota and South Dakota, an aggrieved party has just 180 days from the date of the alleged loss or injury to provide the notice.

A few quick notes:

First, consult with an attorney to ensure your notice contains all the required information. If that is not possible, look at the governing statutes and follow the content requirements precisely. Wisconsin Chapter 893, Subchapter VIII, Minnesota Statute 3.736 and 466.05, and South Dakota Codified Law 3-21-2 govern, respectively.

Second, the requirements of these statutes and these deadlines are very strictly enforced, so it is absolutely essential to meet them. If you do not meet them, your case will likely be quickly dismissed. As an example of how strictly these requirements are typically enforced, the Wisconsin Supreme Court ruled in a May 2016 case, Sorenson v. Batchelder, 2016 WI 34, that a case was barred by government immunity because the plaintiff had the notice personally served when the statute required service by certified mail! However, if you have missed the deadline or failed to meet a requirement and have a meritorious case, consult with an attorney as there may be a way to overcome the deficiency. For example, a specific federal or state law may provide an exception for your particular claim or circumstances.

Third, please note that filing a notice of claim in no way alleviates the need to comply with the statute of limitations for your claim. Statute of limitations refers to the time period you have to actually file a lawsuit in the court and serve the defendants. The statute of limitations varies depending on the type of claim you have. In South Dakota, the statute of limitations for any claim brought against the state based on contract or tort is just one year.

The bottom line in all cases: Don’t sleep on your rights, or you will lose them. When the party who has harmed you happens to be the state, extra diligence and early action in the form of serving a notice of claim is necessary.

Attorney Meridith J.O. Socha