Under this discovery rule, "a cause of action accrues when the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered his injury, its nature, its cause and the identity of the allegedly responsible defendant." Carlson v. Pepin County, 167 Wis.2d 345, 352-53, 481 N.W.2d 498, 501 (Ct.App. 1992). Accordingly, we have held that a plaintiff's cause of action had not accrued during the time he was in a coma because he reasonably could not have discovered his injury or its cause.
In Hennekens, although the plaintiff did not use reasonable diligence, the claim accrued not on the day the injury occurred but on the day he received a letter informing him of the injury. Id. at 167-168 n. 21, 465 N.W.2d at 822 (1991); see also Carlson v. Pepin County, 167 Wis.2d 345, 354, 481 N.W.2d 498, 502 (Ct.App. 1992) (remanding case to determine when a plaintiff who suffered brain damage and took five years to discover the defendants' identity should have known who the defendants were). Recently, however, the Wisconsin Court of Appeals has required plaintiffs to use reasonable diligence before they can rely on the discovery rule.
Lewis v. Paul Revere Life Insurance Co., 80 F. Supp. 2d 978, 1005 (E.D. Wis. 2000) (interpreting Wisconsin law). A plaintiff acts with reasonable diligence if she pursues the investigation of her potential claim in the manner a reasonable person would. Hammack v. DeLonghi, S.p.A., 914 F. Supp. 303, 306 (E.D. Wis. 1996) (citing Carlson v. Pepin County, 167 Wis. 2d 345, 353, 481 N.W.2d 498, 501 (Ct. App. 1992)). See also Spitler, 148 Wis. 2d at 638, 436 N.W.2d at 311 (1989) (Reasonable diligence is "such diligence as the great majority of persons would use in the same or similar circumstances.").
"[T]he test is whether a reasonable person under the same or similar circumstances as the plaintiff should have discovered his injury and its cause." Carlson v. Pepin Cty. , 167 Wis. 2d 345, 353, 481 N.W.2d 498 (Ct. App. 1992) (emphasis added). So, the "reasonable person" mentioned in the applicable test must be considered to be in the same circumstances in which Gerald found himself.
in Desert Horse Ass'n, 42 Wis. 2d 414, 424, 167 N.W.2d 425 (1969) (Wisconsin Exposition Department, not set up as separate body politic or corporate and not given power to sue or be sued, is not independent going concern); Sullivan v. Board of Regents of Normal Sch., 209 Wis. 242, 244, 244 N.W. 563 (1932) (Board of Regents, although a body corporate, was by the same statute only an arm of the state and, further, lacked sufficient powers to suggest any intent to make it an independent going concern); Erickson Oil Prods., Inc. v. State, 184 Wis. 2d 36, 53, 516 N.W.2d 755 (Ct. App. 1994) (court refused to infer statutory consent to sue the DOT for specific performance despite other statutory instances when the DOT can be sued); Busse v. Dane County Reg. Plan. Comm'n, 181 Wis. 2d 527, 537-39, 511 N.W.2d 356 (Ct. App. 1993) (Planning Commission is not an independent going concern despite its powers because it lacked authority to sue and be sued and was not a body corporate or politic); and Carlson v. Pepin County, 167 Wis. 2d 345, 356, 481 N.W.2d 498 (Ct. App. 1992) (no statutory consent to sue the state in tort). ¶ 10.
¶ 84. The reasonable-diligence test is an objective one. Carlson v.Pepin County, 167 Wis.2d 345, 353, 481 N.W.2d 498, 501 (Ct.App. 1992). Additionally, what a lawyer retained by a plaintiff knows is imputed to that plaintiff.
This section has been interpreted as giving the State's consent to be sued on some causes but not others. Boldt v. State, 101 Wis.2d 566, 572-73, 305 N.W.2d 133, 138 (1981); see alsoCarlson v. Pepin County, 167 Wis.2d 345, 481 N.W.2d 498 (Ct.App. 1992). In Cords v. State, 62 Wis.2d 42, 50, 214 N.W.2d 405, 410 (1974), the court discusses the State's susceptibility to suit under a predecessor to § 775.01, Stats.
This extension does not apply where the disability was caused by the accident in question. SeeCarlson v. Pepin County, 167 Wis.2d 345, 352, 481 N.W.2d 498, 501 (Ct.App. 1992). Dale has not presented any evidence of a mental disability that was not caused by this accident.
Finally, § 893.82, STATS., is not simply an actual notice statute that permits procedural defects. Carlson v. Pepin County, 167 Wis.2d 345, 357, 481 N.W.2d 498, 503 (Ct.App. 1992). Rather, strict compliance with § 893.82 (5), is a condition precedent to pursuing a claim against the state.
And, he continues, when he finally did discover Standish's name, he amended his federal complaint to include it. From this, Robbins contends that Standish received actual notice of his claim and therefore suffered no prejudice. But amending his federal claim only satisfied the federal procedural requirement; it did not satisfy the separate state-law requirement that Robbins amend his notice of claim with Standish's name. Failure to satisfy this requirement defeats the negligence claim. See WIS. STAT. § 893.82(5); Kellner v. Christian, 525 N.W.2d 286, 290 (Wis. Ct. App. 1994) (holding that the requirements of § 893.82(5) must be strictly complied with even when it produces "harsh consequences"); see also Carlson v. Pepin County, 481 N.W.2d 498, 503 (Wis. Ct. App. 1992). Moreover, even if we overlooked this defect, Robbins would lose on the merits.