Orthmann v. Apple River Campground, Inc.

757 F.2d 909 (7th Cir. 1985)



A statute of Wisconsin provides that a suit may not be brought against a public agency unless two conditions are satisfied: first, written notice of the circumstances of the claim must be served on the agency within 120 days after the happening of the event giving rise to the claim, unless the agency has 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 is not prejudicial to the defendant agency, Wis. Stat. § 893.80(1)(a); and second, a claim containing the address of the claimant and an itemized statement of the relief sought must be presented to the appropriate clerk for the defendant agency, and the claim disallowed, Wis. Stat. § 893.80(1)(b).


Owen Orthmann, age 19, was rendered a quadriplegic when he dove into the Apple River near the village of Somerset, Wisconsin, and his head struck a rock on the shallow bottom. A resident of Minnesota (to which he moved after the accident), Orthmann brought this diversity suit in a federal district court in Wisconsin against the village and against eight firms that comprise the Floater's Association. Members of the Association rent inner tubes for floating down the river to tourists like Orthmann, who was injured when he interrupted his float to go on shore to do some diving. The district judge granted the motion of the members of the Floater's Association, made under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint for failure to state a claim, and the village's motion for summary judgment. Thus the complaint was dismissed in its entirety, and Orthmann appealed.


Is plaintiff permanently barred from suing the village?




The court, in parts, affirmed and reversed and remanded. The summary judgment for the village was proper because the quadriplegic did not, before filing suit, administratively present his claim to the village as required by both Wis. Stat. § 893.80(1)(b) and operation of the Erie doctrine on the applicability of forum state substantive law in diversity actions. The summary judgment did not, however, bar the quadriplegic from refiling his complaint after complying with the statute. It was error to dismiss the quadriplegic's complaint against the businesses because the complaint and proof of the business's subsequent remedial measures properly introduced on appeal were sufficient, under Fed. R. Civ. P. 12(b)(6), to state a cognizable claim of prospective tort liability.

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