CHAPTER 895

DAMAGES, LIABILITY, AND MISCELLANEOUS PROVISIONS REGARDING ACTIONS IN COURTS

895.03 Recovery for death by wrongful act.

895.031 Recovery from estate of wrongdoer.

895.035 Parental liability for acts of minor child.

895.037 Abortions on or for a minor without parental consent or judicial waiver.

895.038 Partial−birth abortions; liability.

895.04 Plaintiff in wrongful death action.

895.043 Punitive damages.

895.044 Damages for maintaining certain claims and counterclaims.

895.045 Contributory negligence.

895.046 Remedies against manufacturers, distributors, sellers, and promoters of products.

895.047 Product liability.

895.048 Recovery by auto or motorboat owner limited.

895.049 Recovery by a person who fails to use protective headgear while operating certain motor vehicles.

895.05 Damages in actions for libel.

895.052 Defamation by radio and television.

895.055 Gaming contracts void.

895.056 Recovery of money wagered.

895.057 Action against judicial officer for loss caused by misconduct.

895.06 Recovery of divisible personalty.

895.065 Radioactive waste emergencies.

895.07 Claims against contractors and suppliers.

895.08 Sport shooting ranges; actions related to safety.

895.09 Scrap metal or plastic bulk merchandise container theft; civil liability.

895.10 Tort actions in residential real estate transactions.

895.14 Tenders of money and property.

895.28 Remedies not merged.

895.33 Limitation of surety’s liability.

895.34 Renewal of sureties upon becoming insufficient and effects thereof.

895.345 Justification of individual sureties.

895.346 Bail, deposit in lieu of bond.

895.35 Expenses in actions against municipal and other officers.

895.36 Process against corporation or limited liability company officer.

895.37 Abrogation of defenses in employee personal injury actions.

895.375 Abrogation of defense that contract was champertous.

895.42 Deposit of undistributed money and property by personal representatives and others.

895.43 Intentional killing by beneficiary of contract.

895.435 Intentional killing by beneficiary of certain death benefits.

895.441 Sexual exploitation by a therapist; action for.

895.442 Sexual exploitation by a member of the clergy; action for.

895.443 Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for.

895.444 Injury caused by criminal gang activity; action for.

895.445 Damage to certain machines; action for.

895.446 Property damage or loss caused by crime; action for.

895.447 Certain agreements to limit or eliminate tort liability void.

895.448 Safety devices on farm equipment, ordinary negligence.

895.449 Action for loss caused by failure to pay for gasoline or diesel fuel.

895.45 Service representatives for adult abusive conduct complainants.

895.453 Payments of chiropractic services from attorney contingency fees.

895.455 Limits on recovery by prisoners.

895.457 Limiting felon’s right to damages.

895.46 State and political subdivisions thereof to pay judgments taken against officers.

895.463 Zoning ordinances.

895.47 Indemnification of the Wisconsin State Agencies Building Corporation and the Wisconsin State Public Building Corporation.

895.472 Indemnification of a financial institution.

SUBCHAPTER II

895.4801 Immunity for health care providers during COVID−19 emergency.

895.4802 Civil liability exemption; hazardous materials.

895.4803 Civil liability exemption; information concerning paternity.

895.481 Civil liability exemption; equine activities.

895.482 Civil liability exemption; ski patrol members.

895.483 Civil liability exemption; regional and local emergency response teams and their sponsoring agencies.

895.484 Civil liability exemption; entering a vehicle to render assistance.

895.485 Civil liability exemption; out−of−home care providers and child−placing agencies.

895.486 Civil immunity exemption; reports of insurance fraud.

895.487 Civil liability exemption; employment references.

895.488 Civil liability exemption; owner or person in lawful possession of the premises.

895.489 Civil liability exemption; tenancy references.

895.492 Civil liability exemption; certificate of qualification for employment.

895.497 Civil liability exemption: furnishing safety services relating to child safety restraint systems.

895.501 Civil liability exemption; credit card reencoders and scanning devices.

895.506 Civil liability exemption; weight gain and obesity claims.

895.51 Civil liability exemption: food or emergency household products; emer- gency medical supplies; donation, sale, or distribution.

895.512 Civil liability exemption; access to toilet facility.

895.514 Civil liability exemption; Health Insurance Risk−Sharing Plan and Authority.

895.515 Civil liability exemption; equipment or technology donation.

895.517 Civil liability exemption: solid waste donation or sale.

895.519 Civil liability exemption; private campgrounds.

895.52 Recreational activities; limitation of property owners’ liability.

895.523 Recreational activities in a school building or on school grounds; limita- tion of liability.

895.524 Participation in an agricultural tourism activity; limitations on civil liabil- ity, assumption of risk.

895.525 Participation in recreational activities; restrictions on civil liability, assumption of risk.

895.526 Participation in an alpine sport; restrictions on civil liability, assumption of risk.

895.5265 Civil liability exemption; placement of certain structures in waterways.

895.527 Sport shooting range activities; limitations on liability and restrictions on operation.

895.528 Civil liability exemption; placement of markers in waterways.

895.529 Civil liability limitation; duty of care owed to trespassers.

895.53 Civil and criminal liability exemption; tests for intoxication.

895.535 Civil and criminal liability exemption; body cavity search.

895.54 Liability exemption; notification of release.

895.55 Liability exemption; oil discharge control.

895.555 Civil liability exemption; anhydrous ammonia.

895.56 Liability exemption; handling of petroleum−contaminated soil under con- tract with the department of transportation.

895.57 Damages and immunity; unauthorized release of animals.

895.58 Liability exemption; use of special waste under public works contracts.

895.61 Asbestos successor corporation; limitation on liability.

895.62 Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.

SUBCHAPTER III STRUCTURED SETTLEMENT TRANSFERS

895.65 Definitions.

895.66 Mandatory disclosures.

895.67 Approval of transfers of structured settlement payment rights.

895.68 Effects of transfer of structured settlement payment rights.

895.69 Procedure.

895.70 General provisions.

SUBCHAPTER I

DAMAGES, RECOVERY, AND MISCELLANEOUS PROVISIONS REGARDING ACTIONS IN COURTS

895.01 What actions survive; actions not to abate.

(1) (am) In addition to the causes of action that survive at com- mon law, all of the following also survive:

1. Causes of action to determine paternity.

895.01 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 2

2. Causes of action for the recovery of personal property or the unlawful withholding or conversion of personal property.

3. Causes of action for the recovery of the possession of real estate and for the unlawful withholding of the possession of real estate.

4. Causes of action for assault and battery.

5. Causes of action for false imprisonment.

6. Causes of action for invasion of privacy.

7. Causes of action for a violation of s. 968.31 (2m) or other damage to the person.

8. Causes of action for all damage done to the property rights or interests of another.

9. Causes of action for goods taken and carried away.

10. Causes of action for damages done to real or personal estate.

11. Equitable actions to set aside conveyances of real estate.

12. Equitable actions to compel a reconveyance of real estate.

13. Equitable actions to quiet the title to real estate.

14. Equitable actions for specific performance of contracts relating to real estate.

(bm) Causes of action for wrongful death shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person.

(2) An action does not abate by the occurrence of any event if the cause of action survives or continues.

History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975), 771; 1977 c. 176; 1987 a.

399; 1993 a. 481; 1999 a. 85; 2007 a. 101.

Punitive damages incident to damages for the pain and suffering of a decedent may be awarded to the estate. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

A paternity action may not be brought against a deceased putative father. Paternity of N.L.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987).

A claim for loss of enjoyment of life caused by professional negligence of mental health professionals survived the death of the alleged victim. Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), 97−1969.

A survival claim accrues when, with reasonable diligence, the decedent should have discovered the claim, but no later than the date of death. Estate of Merrill v. Jer- rick, 231 Wis. 2d 546, 605 N.W.2d 645 (Ct. App. 1999), 99−0787.

Parents of minor children have separate claims for pre−death and post−death loss of society and companionship, and damages are not capped by the wrongful−death limit. Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857,

04−3252.

Under sub. (1) (o) [now sub. (1) (bm)] and s. 895.04 (2), a wrongful death claim does not survive the death of the claimant. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05−2315.

Survival claims accrue on the date the injury is discovered or with reasonable dili- gence should be discovered by either the decedent or an appropriate 3rd party, often the decedent’s personal representative, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12−1493.

Actions under ss. 551.41 and 551.59 survive the death of the wrongdoer. Continen- tal Assurance Co. v. American Bankshares Corp., 483 F. Supp. 175 (1980).

895.02 Measure of damages against personal repre- sentative. When any action described in s. 895.01 (1) shall be prosecuted to judgment against the personal representative, the plaintiff shall be entitled to recover only for the value of the goods taken, including any unjust enrichment of the defendant, or for the damages actually sustained, without any vindictive or exemplary damages or damages for alleged outrage to the feelings of the injured party.

History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 176; 2001 a. 102.

895.03 Recovery for death by wrongful act. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

A complaint alleging that the defendant shot the plaintiff’s husband and that the shooting was wrongful was sufficient to state a cause of action. Kelly v. Mohrhusen, 50 Wis. 2d 337, 184 N.W.2d 149 (1971).

It is sufficient if the death was caused by a wrongful act, neglect, or default in this state. It is not necessary that the death occur in the state. The statute includes cases

dealing with breach of warranty arising out of contract. Schnabl v. Ford Motor Co., 54 Wis. 2d 345, 195 N.W.2d 602, 198 N.W.2d 161 (1972).

A decedent must have had an actionable claim for damages at the time of death for a wrongful death cause of action to exist. If the statute of limitations would have barred the decedent from bringing a medical malpractice action, had the decedent lived, a wrongful death action based on the alleged malpractice is also barred. Miller v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992).

This section does not provide when a claim for damages due to wrongful death accrues, or when it must be brought, or when it will be lost. A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limi- tations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based — the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07−0541.

This section says nothing about who can bring a wrongful death claim, or who the defendants can be. The statute only permits the representative of a deceased to main- tain an action the deceased could have maintained had he or she lived. It did not pre- vent the father of a fetus killed in a car accident from suing the insurer of the fetus’s mother. Tesar v. Anderson, 2010 WI App 116, 329 Wis. 2d 240, 789 N.W.2d 351,

09−1993.

The cause of action authorized under this section applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state’s law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under this section and another state’s wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 354 Wis. 2d 717, 848 N.W.2d 295, 12−0320.

The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12−1493.

895.031 Recovery from estate of wrongdoer. If the death of a person is caused by a wrongful act or omission com- mitted in this state that, if death had not ensued, would have enti- tled the injured party to maintain an action and recover damages and the wrongdoer dies prior to the time of the death of the injured person, the wrongdoer shall be liable for damages not- withstanding either death. Any right of action against a deceased wrongdoer under this section shall be enforced by bringing an action against the deceased wrongdoer’s personal representative.

History: 1993 a. 486; 2001 a. 102.

895.035 Parental liability for acts of minor child. (1) (a) In this section:

1. “Custody” means either legal custody of a child under a court order under s. 767.225 or 767.41, custody of a child under a stipulation under s. 767.34 or actual physical custody of a child. “Custody” does not include legal custody, as defined under s.

48.02 (12), by an agency or a person other than a child’s birth or adoptive parent.

2. “Governing body of a private school” has the meaning given in s. 115.001 (3d).

(b) In determining which parent has custody of a child for pur- poses of this section, the court shall consider which parent had responsibility for caring for and supervising the child at the time the act that caused the injury, damage or loss occurred.

(2) (a) The parent or parents with custody of a minor child, in any circumstances where he, she, or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, draw- ing, writing, or etching from property regarding a violation under

s. 943.017, for the value of unrecovered stolen property, or for per- sonal injury attributable to a willful, malicious, or wanton act of the child.

(b) 1. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under s. 943.51 for their child’s violation of s. 943.50.

2. If a parent is jointly and severally liable under this para- graph and has physical placement of the child, the parent’s liabil- ity is limited to that percentage representing the time that the child actually spends with that parent.

3. Notwithstanding sub. (1), a parent does not have custody of a child for purposes of this paragraph if at the time of the viola- tion the child has been freed from the care, custody, and control of the parent through marriage or emancipation or if at the time of the violation the parent does not reasonably have the ability to exercise supervision and control of the child because the child is

3 Updated 17−18 Wis. Stats.

DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI-

SIONS

895.035

uncontrollable or because another person has interfered with that parent’s exercise of supervision and control.

(2g) The parent or parents with custody of a minor child are liable for the cost of the repair or replacement of, or the removal of the etching, marking, drawing or writing from, property dam- aged as the result of a violation of an ordinance that prohibits intentional etching or marking, drawing or writing with paint, ink or other substance on the physical property of another without the other’s consent.

(2m) (a) If a juvenile or a parent with custody of a juvenile fails to pay restitution under s. 938.245, 938.32, 938.34 (5),

938.343 (4), 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the juvenile or parent will not pay restitution as ordered or agreed to, the victim, the victim’s insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the victim or the vic- tim’s insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, con- sent decree, dispositional order or sentence under which the resti- tution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, disposi- tional order or sentence. A judgment rendered under this para- graph does not bar the victim or the victim’s insurer, or both, from commencing another action seeking compensation from the juve- nile or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim’s insurer.

(b) If a juvenile or a parent with custody of a juvenile fails to pay a forfeiture as ordered by a court assigned to exercise jurisdic- tion under chs. 48 and 938, a court of criminal jurisdiction or a municipal court, if a juvenile or a parent with custody of a juvenile fails to pay costs as ordered by the court assigned to exercise juris- diction under chs. 48 and 938 or a municipal court, if a juvenile fails to pay a surcharge as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a court of criminal jurisdic- tion or if it appears likely that the juvenile or the parent will not pay the forfeiture or surcharge as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38

(1) (a), supervising the juvenile or the law enforcement agency that issued the citation to the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture, surcharge or costs unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture, surcharge or costs is payable, but no later than one year after the expiration of the dis- positional order or sentence or any extension of the dispositional order or sentence.

(bm) 1. Before issuing an order under par. (a) or (b), the court assigned to exercise jurisdiction under chs. 48 and 938 shall give the juvenile and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the juvenile and the parent an opportunity to present evidence as to the amount of the restitution, forfeiture or surcharge unpaid, but not as to the amount of the restitution, forfeiture or surcharge originally ordered. The court shall also give the juvenile and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution, forfeiture or surcharge and the ability of the juvenile or the parent to pay the restitution, forfeiture or sur- charge. In considering the ability of the juvenile or the parent to

pay the restitution, forfeiture or surcharge, the court may consider the assets, as well as the income, of the juvenile or the parent and may consider the future ability of the juvenile or parent to pay the restitution, forfeiture or surcharge within the time specified in s. 893.40.

2. In proceedings under this subsection, the court assigned to exercise jurisdiction under chs. 48 and 938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dis- positional order or sentence or any other finding or order in the records of the juvenile maintained by that court or the municipal court.

3. In proceedings under this subsection, the juvenile and the parent may retain counsel of their own choosing at their own expense, but a juvenile or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.

(c) The court assigned to exercise jurisdiction under chs. 48 and 938 may order that the juvenile perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture or surcharge. If the parent agrees to perform com- munity service work in lieu of making restitution or paying the forfeiture or surcharge, the court may order that the parent per- form community service work for a public agency or a nonprofit charitable organization that is designated by the court. Commu- nity service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the juvenile or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution, forfeiture, or surcharge by the minimum wage established under s. 104.035 (1). The court shall ensure that the juvenile or parent is provided with a written state- ment of the terms of the community service order and that the community service order is monitored.

(3) An adjudication under s. 938.183 or 938.34 that the juve- nile violated a civil law or ordinance, is delinquent or is in need of protection and services under s. 938.13 (12), based on proof that the juvenile committed the act, subject to its admissibility under

s. 904.10, shall, in an action under sub. (1), stop a juvenile’s parent or parents from denying that the juvenile committed the act that resulted in the injury, damage or loss.

(4) Except for recovery under sub. (4a) or for retail theft under

s. 943.51, the maximum recovery under this section from any par- ent or parents may not exceed $5,000 for damages resulting from any one act of a juvenile in addition to taxable costs and disburse- ments and reasonable attorney fees, as determined by the court. If 2 or more juveniles in the custody of the same parent or parents commit the same act the total recovery under this section may not exceed $5,000, in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under s. 943.51.

(4a) (a) The maximum recovery under this section by a school board or a governing body of a private school from any par- ent or parents with custody of a minor child may not exceed

$20,000 for damages resulting from any one act of the minor child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court, for damages caused to the school board or the governing body of a private school by any of the following actions of the minor child:

1. An act or threat that endangers the property, health or safety of persons at the school or under the supervision of a school authority or that damages the property of a school board or the governing body of a private school and that results in a substantial disruption of a school day or a school activity.

2. An act resulting in a violation of s. 943.01, 943.02, 943.03, 943.05, 943.06 or 947.015.

895.035 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 4

(b) In addition to other recoverable damages, damages under par. (a) may include the cost to the school board or the governing body of a private school in loss of instructional time directly resulting from the action of the minor child under par. (a).

(c) If 2 or more minor children in the custody of the same par- ent or parents are involved in the same action under par. (a), the total recovery may not exceed $20,000, in addition to taxable costs, disbursements and reasonable attorney fees, as determined by the court.

(d) If an insurance policy does not explicitly provide coverage for actions under par. (a), the issuer of that policy is not liable for the damages resulting from those actions.

(5) This section does not limit the amount of damages recover- able by an action against a child or children except that any amount so recovered shall be reduced and apportioned by the amount received from the parent or parents under this section.

(6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.45 (1r) (a). Any recovery of a forfeiture under this section shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8), 938.343 (2) or 938.45 (1r) (b). Any recovery of a surcharge under this section shall be reduced by the amount recovered as a surcharge under s. 938.34 (8d).

(7) This section does not affect or limit any liability of a parent under s. 167.10 (7) or 343.15 (2).

History: 1985 a. 311; 1987 a. 27; 1993 a. 71; 1995 a. 24, 77, 262, 352; 1997 a.

27, 35, 205, 239, 252; 1999 a. 9, 32; 2003 a. 138; 2005 a. 443 s. 265; 2013 a. 237; 2015

a. 55.

This section imposes absolute liability on parents once all elements have been established. Accordingly, the defense of contributory negligence is unavailable to parents. First Bank Southeast v. Bentkowski, 138 Wis. 2d 283, 405 N.W.2d 764 (Ct. App. 1987).

An “act” under sub. (4) is a complete course of conduct. What distinguishes a sin- gle act from multiple acts is whether: 1) a sufficient period of time separates the con- duct; 2) the conduct occurred at separate locations; and 3) there is a distinct difference in the nature of the conduct. In cases of improper sexual contact, the jury need not make an individual damage determination for each act. N.E.M. v. Strigel, 208 Wis. 2d 1, 559 N.W.2d 256 (1997), 95−0755.

Under s. 938.34 (5) (a) assessing the damages to the victim is the first step in the court’s determination of restitution and determining the amount the juvenile is capa- ble of paying is the second. Whichever amount is lower is the maximum amount that the court may order as restitution. Under sub. (2m) (a) courts are without authority to order that the “total damage” figure be converted to a civil judgment. Sub. (2m)

(a) allows only for the conversion of restitution. State v. Anthony D., 2006 WI App 218, 296 Wis. 2d 771, 723 N.W. 2d 775, 05−2644.

The constitutional validity of parental liability statutes. O’Connor. 55 MLR 584.

NOTE: See also the notes to s. 343.15, for parental responsibility for minor drivers.

895.037 Abortions on or for a minor without parental consent or judicial waiver. (1) DEFINITIONS. In this section:

(a) “Abortion” has the meaning given in s. 48.375 (2) (a).

(c) “Emancipated minor” has the meaning given in s. 48.375 (2) (e).

(2) PENALTIES. (a) Any person who, in violation of s. 48.375 (4), intentionally performs or induces an abortion on or for a minor whom the person knows or has reason to know is not an emanci- pated minor may be required to forfeit not more than $10,000.

(b) Any person who intentionally violates s. 48.375 (7) (e) or

809.105 (12) may be required to forfeit not more than $10,000.

(3) CIVIL REMEDIES. (a) A person who intentionally violates

s. 48.375 (4) is liable to the minor on or for whom the abortion was performed or induced and to the minor’s parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion including, but not limited to, damages for personal injury and emotional and psychological distress.

(b) If a person who has been awarded damages under par. (a) proves by clear and convincing evidence that the violation of s.

48.375 (4) was willful, wanton or reckless, that person shall also be entitled to punitive damages.

(c) A conviction under sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judg- ment under this subsection.

(d) A person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding s. 814.04 (1).

(e) A contract is not a defense to an action under this subsec- tion.

(f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.

(4) CONFIDENTIALITY. The identity of a minor who is the sub- ject of an action under this section and the identity of the minor’s parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as “Jane Doe” and shall iden- tify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.

History: 1991 a. 263.

The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).

895.038 Partial−birth abortions; liability. (1) In this sec- tion:

(a) “Child” has the meaning given in s. 940.16 (1) (a).

(b) “Partial−birth abortion” has the meaning given in s. 940.16 (1) (b).

(2) (a) Except as provided in par. (b), any of the following per- sons has a claim for appropriate relief against a person who per- forms a partial−birth abortion:

1. If the person on whom a partial−birth abortion was per- formed was a minor, the parent of the minor.

2. The father of the child aborted by the partial−birth abortion.

(b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

1. The person consented to performance of the partial−birth abortion.

2. The pregnancy of the woman on whom the partial−birth abortion was performed was the result of a sexual assault in viola- tion of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or

948.09 that was committed by the person.

(3) The relief available under sub. (2) shall include all of the following:

(a) If the abortion was performed in violation of s. 940.16, damages arising out of the performance of the partial−birth abor- tion, including damages for personal injury and emotional and psychological distress.

(b) Exemplary damages equal to 3 times the cost of the partial− birth abortion.

(4) Subsection (2) applies even if the mother of the child aborted by the partial−birth abortion consented to the perfor- mance of the partial−birth abortion.

History: 1997 a. 219; 2005 a. 277.

A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physi- cal disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Car- hart, 530 U.S. 914, 147 L. Ed. 2d 743 (2000).

The federal Partial−Birth Abortion Ban Act of 2003 is distinguishable from Sten- berg and is constitutional. Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610; 167

L. Ed. 2d 480 (2007).

Enforcement of s. 940.16 is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).

895.04 Plaintiff in wrongful death action. (1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.

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(2) If the deceased leaves surviving a spouse or domestic part- ner under ch.770 and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse or surviving domestic partner, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50 percent of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recov- ered shall belong and be paid to the spouse or domestic partner of the deceased; if no spouse or domestic partner survives, to the deceased’s lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased’s brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviv- ing nonresident alien spouse or a nonresident alien domestic part- ner under ch. 770 and minor children shall be entitled to the bene- fits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse’s or surviving domestic partner’s interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.

(3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment may be entered protecting all defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative.

(4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occur- rence in the case of a deceased adult, for loss of society and com- panionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.

(5) If the personal representative brings the action, the per- sonal representative may also recover the reasonable cost of medi- cal expenses, funeral expenses, including the reasonable cost of a cemetery lot and care of the lot, grave marker or other burial monument, coffin, cremation urn, urn vault, outer burial con- tainer, or other article intended for the burial of the dead. If a rela- tive brings the action, the relative may recover those expenses on behalf of himself or herself or of any person who has paid or assumed liability for those expenses.

(6) Where the wrongful death of a person creates a cause of action in favor of the decedent’s estate and also a cause of action in favor of a spouse, domestic partner under ch. 770, or relatives as provided in this section, such spouse, domestic partner, or rela- tives may waive and satisfy the estate’s cause of action in connec- tion with or as part of a settlement and discharge of the cause of action of the spouse, domestic partner, or relatives.

(7) Damages found by a jury in excess of the maximum amount specified in sub. (4) shall be reduced by the court to such maximum. The aggregate of the damages covered by subs. (4) and (5) shall be diminished under s. 895.045 if the deceased or per- son entitled to recover is found negligent.

History: 1971 c. 59; Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1975 c. 94 s. 91

(3); 1975 c. 166, 199, 287, 421, 422; 1979 c. 166; 1983 a. 315; 1985 a. 130; 1989 a.

307; 1991 a. 308; 1997 a. 89, 290; 2009 a. 28, 276; 2015 a. 237.

Statutory increases in damage limitations recoverable in wrongful death actions constitute changes in substantive rights and not mere remedial changes. Bradley v. Knutson, 62 Wis. 2d 432, 215 N.W.2d 369 (1974).

A parent may maintain an action for loss of aid, comfort, society, and companion- ship of an injured minor child on the condition that the parents’ cause of action is com- bined with that of the child for the child’s personal injuries. Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975).

In an action for wrongful death by 2 children of the deceased, the plaintiffs’ failure to join 3 other siblings who would otherwise have been indispensable parties was not fatal to the court’s subject matter jurisdiction because affidavits submitted to the trial court indicated that the 3 siblings were unavailable. Kochel v. Hartford Accident & Indemnity Co., 66 Wis. 2d 405, 225 N.W.2d 604 (1975).

A judgment under sub. (2) means a final, not interlocutory, judgment. Collins v. Gee, 82 Wis. 2d 376, 263 N.W.2d 158 (1978).

The trial court in a wrongful death action should inform the jury of statutory limita- tions on recovery, if any. Peot v. Ferraro, 83 Wis. 2d 727, 266 N.W.2d 586 (1978).

A posthumous illegitimate child may not maintain an action for the wrongful death of the putative father. Robinson v. Kolstad, 84 Wis. 2d 579, 267 N.W.2d 886 (1978). This section does not require that proceeds be equally divided between parents.

Keithley v. Keithley, 95 Wis. 2d 136, 289 N.W.2d 368 (Ct. App. 1980).

Punitive damages are not recoverable incident to damages for wrongful death. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

This section does not permit an estate to recover, on its own behalf, damages for the decedent’s pecuniary loss. Weiss v. Regent Properties, Ltd., 118 Wis. 2d 225, 346 N.W.2d 766 (1984).

Recovery under sub. (7) is barred by s. 895.045 if a decedent’s negligence was greater than any individual tortfeasor’s. Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986).

A spouse’s claim under sub. (4) for loss of society and companionship is additional to a common law claim for loss of consortium prior to the death of the deceased. Kottka v. PPG Industries, Inc., 130 Wis. 2d 499, 388 N.W.2d 160 (1986).

A person who “feloniously and intentionally” kills his or her spouse is not a surviv- ing spouse for purposes of sub. (2) and is treated as having predeceased the decedent. Stienbarth v. Johannes, 144 Wis. 2d 159, 423 N.W.2d 540 (1988).

“Pecuniary injury” under sub. (4) includes the loss of any benefit, including social security disability benefits, that a plaintiff would have received from the decedent. Estate of Holt v. State Farm, 151 Wis. 2d 455, 444 N.W.2d 453 (Ct. App. 1989).

This section is inapplicable in medical malpractice actions. There is no cause of action in an adult child for the loss of society and companionship of a parent. Dzia- dosz v. Zirneski, 177 Wis. 2d 59, 501 N.W.2d 828 (Ct. App. 1993).

The damage limitation under sub. (4) is inapplicable to medical malpractice actions in which death resulted. Sub. (2) does not prevent a minor from bringing an action for a loss of companionship when malpractice causes a parent’s death, includ- ing when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).

Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of the parents’ child, this sec- tion requires payment of the proceeds to both parents. Bruflat v. Prudential Property & Casualty Insurance Co., 2000 WI App 69, 233 Wis. 2d 523, 608 N.W.2d 371,

99−2049.

Retroactive increases in the statutory damage limits were unconstitutional. Nei- man v. American National Property & Casualty Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160, 99−2554. See also Schultz v. Natwick, 2002 WI 125, 257 Wis. 2d

19, 653 N.W.2d 266, 00−0361.

Sub. (4) does not: 1) nullify the state constitutional right to have a jury assess dam- ages under art. I, s. 5; 2) violate separation of powers principles by blurring the bound- aries between judicial and legislative branches; 3) violate constitutional equal protec- tion guarantees; and 4) does not violate substantive due process. Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, 00−0072. Partially overruled on other grounds. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 26, 04−2592.

The rule that one who claims subrogation rights, whether under the aegis of either legal or conventional subrogation, is barred from any recovery unless the insured is made whole is applicable in wrongful death actions. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole, they have been unjustly enriched. Petta v. ABC Insurance Co., 2005 WI 18, 278 Wis. 2d 251, 692 N.W.2d 639, 03−0610.

The jury award of noneconomic damages for pre−death claims, namely the claim for the decedent’s pre−death pain and suffering, and the jury award for pre−death loss of society and companionship are governed by the cap set forth in the medical mal- practice statutes, s. 893.55, and not the wrongful death statute, this section. Bartholo- mew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717

N.W.2d 216, 04−2592.

Parents of minor children have separate claims for pre−death and post−death loss of society and companionship, and damages are not capped by the wrongful−death limit. Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857,

04−3252.

Under s. 895.01 (1) (o) and sub. (2), a wrongful death claim does not survive the death of the claimant. In a non−medical malpractice wrongful death case, under sub. (2), a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under sub. (2). However, in a medi- cal malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are therefore not eligible because of the exclusivity of s. 655.007, as interpreted in Czapinski. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05−2315.

Because the legislature modified “children” with “minor” in a different subsection of this section of the statute, the only reasonable interpretation of the legislature’s unmodified use of the word “children” in sub. (4) is that the term includes both adult and minor children. Pierce v. American Family Mutual Insurance Co., 2007 WI App 152, 303 Wis. 2d 726, 736 N.W.2d 247, 06−1773.

895.04 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 6

This section does not provide for the recovery of lost inheritance by a party on behalf of a class of heirs. Despite the use of the plural “lineal heirs,” the statute clearly contemplates that each relative will, in turn, have the right to bring an action for wrongful death. The use of the plural “heirs” encompasses exactly the situation when two or more heirs in the same tier of succession in the statutory hierarchy bring a wrongful death action together. Estate of Lamers v. American Hardware Mutual Insurance Co., 2008 WI App 165, 314 Wis. 2d 731, 761 N.W.2d 38, 07−2793.

A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased’s lineal heirs. Bowen v. American Family Insurance Co., 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11−0185. Sub. (4) does not expand the class of claimants who may recover loss of society and companionship damages beyond those who may recover for wrongful death under subs. (1) and (2). Sub. (4) limits the availability of loss of society and compan- ionship damages to certain persons within the class of claimants entitled to bring wrongful death actions. Bowen v. American Family Insurance Co., 2012 WI App 29,

340 Wis. 2d 232, 811 N.W.2d 887, 11−0185.

The cause of action authorized under s. 895.03 applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state’s law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under s.

895.03 and another state’s wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 353 Wis. 2d 619, 847 N.W.2d 324, 12−0320.

“Surviving spouse” in sub. (2) does not always simply mean any living spouse of the deceased. A careful reading of sub. (2) makes it clear that the trial court, in an attempt to protect the children, must work from the amount recovered by the spouse who is charged with the support of the minor children. In order to avoid an absurd, unreasonable result contrary to the legislative purposes of the wrongful death stat- utes, under the unique facts of this case, s. 895.03 and sub. (2) are construed to allow the minor children to recover even though the deceased’s spouse in the instant case is alive and does not recover any damages for the deceased husband’s wrongful death. Force v. American Family Mutual Insurance Co., 2014 WI 82, 356 Wis. 2d 582, 850

N.W.2d 866, 12−2402.

The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12−1493.

There may not be separate recovery for both an estate and its beneficiaries. Bell

v. City of Milwaukee, 746 F.2d 1205 (1984).

Cause of action by parents sustained for loss of society and companionship of child tortiously injured. 1976 WLR 641.

Expanding and Limiting Damages for Pecuniary Injury Due to Wrongful Death. Schoone. WBB Aug. 1972.

895.043 Punitive damages. (1) DEFINITIONS. In this sec- tion:

(a) “Defendant” means the party against whom punitive dam- ages are sought.

(b) “Double damages” means those court awards made under a statute providing for twice, 2 times or double the amount of dam- ages suffered by the injured party.

(c) “Plaintiff” means the party seeking to recover punitive damages.

(d) “Treble damages” means those court awards made under a statute providing for 3 times or treble the amount of damages suffered by the injured party.

(2) SCOPE. This section does not apply to awards of double damages or treble damages, or to the award of exemplary damages under ss. 46.90 (9) (a) and (b), 51.30 (9), 51.61 (7), 55.043 (9m) (a) and (b), 103.96 (2), 134.93 (5), 146.84 (1) (b) and (bm), 153.76, 252.14 (4), 252.15 (8) (a), 610.70 (7) (b), 943.245 (2) and (3) and 943.51 (2) and (3).

(3) STANDARD OF CONDUCT. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disre- gard of the rights of the plaintiff.

(4) PROCEDURE. If the plaintiff establishes a prima facie case for the allowance of punitive damages:

(a) The plaintiff may introduce evidence of the wealth of a defendant; and

(b) The judge shall submit to the jury a special verdict as to punitive damages or, if the case is tried to the court, the judge shall issue a special verdict as to punitive damages.

(5) APPLICATION OF JOINT AND SEVERAL LIABILITY. The rule of joint and several liability does not apply to punitive damages.

(6) LIMITATION ON DAMAGES. Punitive damages received by the plaintiff may not exceed twice the amount of any compensa- tory damages recovered by the plaintiff or $200,000, whichever is greater. This subsection does not apply to a plaintiff seeking

punitive damages from a defendant whose actions under sub. (3) included the operation of a vehicle, including a motor vehicle as defined under s. 340.01 (35), an off−highway motorcycle, as defined in s. 23.335 (1) (q), a snowmobile as defined under s.

340.01 (58a), an all−terrain vehicle as defined under s. 340.01 (2g), a utility terrain vehicle as defined under s. 23.33 (1) (ng), and a boat as defined under s. 30.50 (2), while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle. In this subsection, “intoxicant” has the meaning given in s. 30.50 (4e).

History: 1995 a. 17; 1997 a. 71; 1999 a. 79; 2005 a. 155 s. 71; Stats. 2005 s.

895.043; 2005 a. 388 s. 216; 2009 a. 274; 2011 a. 2, 208; 2013 a. 166 s. 77; 2015 a.

170.

NOTE: The first 3 cases noted below were decided prior to the adoption of s. 895.85 [now s. 895.043].

Punitive damages may be awarded in products liability cases. Judicial controls over punitive damage awards are established. Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980).

Guidelines for submission of punitive damages issues to the jury in a products lia- bility case are discussed. Walter v. Cessna Aircraft Co., 121 Wis. 2d 221, 358 N.W.2d 816 (Ct. App. 1984).

In awarding punitive damages, the factors to be considered are: 1) the grievousness of the wrongdoer’s acts; 2) the degree of malicious intent; 3) the potential damage that might have been caused by the acts; and 4) the defendant’s ability to pay. An award is excessive if it inflicts a punishment or burden that is disproportionate to the wrong- doing. That a judge provided a means for the defendant to avoid paying the punitive damages awarded did not render the award invalid. Gianoli v. Pfleiderer, 209 Wis. 2d 509, 563 N.W.2d 562 (Ct. App. 1997), 95−2867.

Nominal damages may support a punitive damage award in an action for inten- tional trespass. A grossly excessive punishment violates due process. Whether puni- tive damages violate due process depends on: 1) the reprehensibility of the conduct;

2) the disparity between the harm suffered and the punitive damages awarded; and

3) the difference between the award and other civil or criminal penalties authorized or imposed. Jacque v. Steenberg Homes, 209 Wis. 2d 605, 563 N.W.2d 154 (1997), 95−1028.

A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 571 N.W.2d 23 (1998),

97−0353.

The requirement under sub. (3) that the defendant act “in an intentional disregard of the rights of the plaintiff” necessitates that the defendant act with a purpose to disre- gard the plaintiff’s rights or be aware that his or her conduct is substantially certain to result in the plaintiff’s rights being disregarded. The act or course of conduct must be deliberate and must actually disregard the rights of the plaintiff, whether it be a right to safety, health or life, a property right, or some other right. There is no require- ment of intent to injure or cause harm. Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 6, 694 N.W.2d 320, 01−0724.

A defendant’s conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute. Wis- cher v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 6, 694

N.W.2d 320, 01−0724.

Sub. (3) requires evidence of either malicious conduct or intentional disregard of the rights of the plaintiff, not both. Henrikson v. Strapon, 2008 WI App 145, 314 Wis. 2d 225, 758 N.W.2d 205, 07−2621.

Sub. (3) sets the bar for the kind of evidence required to support a punitive damage award and does not expand the category of cases where punitive damages may be awarded. In cases in which punitive damages are barred in the first instance, the stan- dard for conduct under sub. (3) does not come into play. Groshek v. Trewin, 2010 WI 51, 325 Wis. 2d 250, 784 N.W.2d 163, 08−0787.

Courts apply a six−factor test to determine whether a punitive damages award is excessive: 1) the grievousness of the acts; 2) the degree of malicious intent; 3) whether the award bears a reasonable relationship to the award of compensatory dam- ages; 4) the potential damage that might have been caused by the acts; 5) the ratio of the award to civil or criminal penalties that could be imposed for comparable miscon- duct; and 6) the wealth of the wrongdoer. Courts are called upon to analyze only those factors which are most relevant to the case. The most important indicium of the rea- sonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct. Kimble v. Land Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395, 11−1514.

The due process clause does not permit a jury to base an award of punitive damages in part upon its desire to punish the defendant for harming persons who are not before the court. However, evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible. The due process clause requires state courts to provide assurance that juries are seeking simply to determine reprehensibility and not also to punish for harm caused to strangers. Philip Morris USA v. Williams, 784 U.S. 631, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007).

The availability of punitive damages depends on the character of the particular conduct committed rather than on the theory of liability propounded by the plaintiff. The recovery of punitive damages requires that something must be shown over and above the mere breach of duty for which compensatory damages can be given. Uni- fied Catholic Schools of Beaver Dam Education Ass’n v. Universal Card Services Corp., 34 F. Supp. 2d 714 (1999).

The Future of Punitive Damages. SPECIAL ISSUE: 1998 WLR No. 1.

895.044 Damages for maintaining certain claims and counterclaims. (1) A party or a party’s attorney may be liable for costs and fees under this section for commencing, using, or

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continuing an action, special proceeding, counterclaim, defense, cross complaint, or appeal to which any of the following applies:

(a) The action, special proceeding, counterclaim, defense, cross complaint, or appeal was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

(b) The party or the party’s attorney knew, or should have known, that the action, special proceeding, counterclaim, defense, cross complaint, or appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

(2) Upon either party’s motion made at any time during the proceeding or upon judgment, if a court finds, upon clear and con- vincing evidence, that sub. (1) (a) or (b) applies to an action or spe- cial proceeding commenced or continued by a plaintiff or a coun- terclaim, defense, or cross complaint commenced, used, or continued by a defendant, the court:

(a) May, if the party served with the motion withdraws, or appropriately corrects, the action, special proceeding, counter- claim, defense, or cross complaint within 21 days after service of the motion, or within such other period as the court may prescribe, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, special proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section. In determining whether to award, and the appropriate amount of, damages under this paragraph, the court shall take into consider- ation the timely withdrawal or correction made by the party served with the motion.

(b) Shall, if a withdrawal or correction under par. (a) is not timely made, award to the party making the motion, as damages, the actual costs incurred by the party as a result of the action, spe- cial proceeding, counterclaim, defense, or cross complaint, including the actual reasonable attorney fees the party incurred, including fees incurred in any dispute over the application of this section.

(3) If a party makes a motion under sub. (2), a copy of that motion and a notice of the date of the hearing on that motion shall be served on any party who is not represented by counsel only by personal service or by sending the motion to the party by regis- tered mail.

(4) If an award under this section is affirmed upon appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the suc- cessful party for the actual reasonable attorney fees the party incurred in the appeal.

(5) If the appellate court finds that sub. (1) (a) or (b) applies to an appeal, the appellate court shall, upon completion of the appeal, remand the action to the trial court to award damages to compensate the successful party for all the actual reasonable attor- ney fees the party incurred in the appeal. An appeal is subject to this subsection in its entirety if any element necessary to succeed on the appeal is supported solely by an argument that is described under sub. (1) (a) or (b).

(6) The costs and fees awarded under subs. (2), (4), and (5) may be assessed fully against the party bringing the action, special proceeding, cross complaint, defense, counterclaim, or appeal or the attorney representing the party, or both, jointly and severally, or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

(7) This section does not apply to criminal actions or civil for- feiture actions. Subsection (5) does not apply to appeals under s. 809.107, 809.30, or 974.05 or to appeals of criminal or civil forfei- ture actions.

History: 2011 a. 2.

895.045 Contributory negligence. (1) COMPARATIVE NEGLIGENCE. Contributory negligence does not bar recovery in an

action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the neg- ligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The lia- bility of each person found to be causally negligent whose per- centage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that per- son. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and sev- erally liable for the damages allowed.

(2) CONCERTED ACTION. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043 (5).

(3) PRODUCT LIABILITY. (a) In an action by any person to recover damages for injuries caused by a defective product based on a claim of strict liability, the fact finder shall first determine if the injured party has the right to recover damages. To do so, the fact finder shall determine what percentage of the total causal responsibility for the injury resulted from the contributory negli- gence of the injured person, what percentage resulted from the defective condition of the product, and what percentage resulted from the contributory negligence of any other person.

(b) If the injured party’s percentage of total causal responsibil- ity for the injury is greater than the percentage resulting from the defective condition of the product, the injured party may not, based on the defect in the product, recover damages from the man- ufacturer, distributor, seller, or any other person responsible for placing the product in the stream of commerce.

(c) If the injured party’s percentage of total causal responsibil- ity for the injury is equal to or less than the percentage resulting from the defective condition of the product, the injured party may recover but the damages recovered by the injured party shall be diminished by the percentage attributed to that injured party.

(d) If multiple defendants are alleged to be responsible for the defective condition of the product, and the injured party is not barred from recovery under par. (b), the fact finder shall determine the percentage of causal responsibility of each product defendant for the defective condition of the product. The judge shall then multiply that percentage of causal responsibility of each product defendant for the defective condition of the product by the per- centage of causal responsibility for the injury to the person attrib- uted to the defective product. The result of that multiplication is the individual product defendant’s percentage of responsibility for the damages to the injured party. A product defendant whose responsibility for the damages to the injured party is 51 percent or more of the total responsibility for the damages to the injured party is jointly and severally liable for all of the damages to the injured party. The responsibility of a product defendant whose responsi- bility for the damages to the injured party is less than 51 percent of the total responsibility for the damages to the injured party is limited to that product defendant’s percentage of responsibility for the damages to the injured party.

(e) If the injured party is not barred from recovery under par. (b), the fact that the injured party’s causal responsibility for the injury is greater than an individual product defendant’s responsi- bility for the damages to the injured party does not bar the injured party from recovering from that individual product defendant.

(f) This subsection does not apply to actions based on negli- gence or a breach of warranty.

History: 1971 c. 47; 1993 a. 486; 1995 a. 17; 2005 a. 155; 2011 a. 2.

Cross−reference: See s. 891.44 for conclusive presumption that child under 7 cannot be guilty of contributory negligence.

Ordinary negligence can be compared with negligence founded upon the safe− place statute, and in making the comparison, a violation of the statute is not to be con- sidered necessarily as contributing more than the common−law contributory negli- gence. It is not prejudicial error to not call attention to the different standards of care

895.045 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 8

in a safe−place case when appropriate jury instructions are used. Lovesee v. Allied Development Corp., 45 Wis. 2d 340, 173 N.W.2d 196 (1970).

Adopting the doctrine of pure comparative negligence is a legislative matter. Vin- cent v. Pabst Brewing Co., 47 Wis. 2d 120, 177 N.W.2d 513 (1970).

There is no distinction between active and passive negligence as to responsibility for injury or full indemnity to a tortfeasor whose negligence was passive. Pachowitz

v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 383, 202 N.W.2d 268 (1972).

For the purpose of applying the comparative negligence statute, both the causes of action for medical expenses and loss of consortium are derivative. The causal negli- gence of the injured spouse bars or limits the recovery of the claiming spouse pursuant to the terms of the statute. White v. Lunder, 66 Wis. 2d 563, 225 N.W.2d 442 (1975).

The contributory negligence of the plaintiff−spectator in viewing an auto race was not greater than defendants’ negligence as a matter of law when the plaintiff did not realize that watching from a curve would be more dangerous than sitting in the grand- stand, was not aware that tires would fly into the spectator area, there was no warning of potential dangers, and she was watching the race closely immediately prior to the accident. Kaiser v. Cook, 67 Wis. 2d 460, 227 N.W.2d 50 (1975).

The trial court’s denial of a motion by 2 employee−defendants to direct the jury to consider the employer’s negligence in its special verdict, even though the employer’s liability extended only to workers compensation, was an error. Connar v. West Shore Equipment, 68 Wis. 2d 42, 227 N.W.2d 660 (1975).

The trial court’s instruction to the jury not to compute all of the damages the plain- tiff suffered, but only that portion caused by the defendant’s negligence, was erro- neous. This section requires the jury to find 100 percent of the plaintiff’s damages, which are then reduced by the amount of contributory negligence. Nimmer v. Purtell, 69 Wis. 2d 21, 230 N.W.2d 258 (1975).

Conduct constituting implied or tacit assumption of risk is not a bar to an action for negligence. Polsky v. Levine, 73 Wis. 2d 547, 263 N.W.2d 204 (1976).

A minor injured during employment cannot be charged with contributory negli- gence when the employment is in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194, 255 N.W.2d 314 (1977).

When the court granted judgment notwithstanding the verdict regarding 2 of sev- eral defendants found causally negligent, and the percentage of negligence reallo- cated affected damages but not liability, the plaintiffs should have been given the option of a proportional reduction of the judgment or a new trial. Chart v. General Motors Corp., 80 Wis. 2d 91, 258 N.W.2d 680 (1977).

If a court can find as matter of law that a party is causally negligent, contrary to the jury’s answer, and the jury attributes some degree of comparative negligence to that party, the court should change the causal negligence answer and permit the jury’s comparison to stand. Ollinger v. Grall, 80 Wis. 2d 213, 258 N.W.2d 693 (1977).

When blowing snow obstructed a driver’s vision, but the driver did not reduce speed, and a parked truck on the highway “loomed up” out of the snow, the driver was causally negligent as matter of law. Nelson v. Travelers Ins. Co., 80 Wis. 2d 272, 259 N.W.2d 48 (1977).

The “emergency doctrine” relieves a person for liability for his actions when that person is faced with a sudden emergency he or she did not create. The “rescue rule” applies even though the action of the rescuer is deliberate and taken after some plan- ning and consideration. Rescuers will not be absolved of all negligence if their actions are unreasonable under the circumstances. Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977).

The negligence of a tortfeasor dismissed from a lawsuit on summary judgment as being less or equally negligent as the plaintiff can be considered by the jury in appor- tioning the total causal negligence of the remaining parties. Gross v. Midwest Speed- ways, Inc., 81 Wis. 2d 129, 260 N.W.2d 36 (1977).

Negligence per se arising out of a breach of a safety statute may be compared with common law negligence. Locicero v. Interpace Corp., 83 Wis. 2d 876, 266 N.W.2d 423 (1978).

Contributory negligence, if proved, is a defense in a strict liability case. Austin v. Ford Motor Co., 86 Wis. 2d 628, 273 N.W.2d 233 (1979).

In a safe place case, comparative negligence instructions need not direct the jury to consider the defendant’s higher duty of care. Brons v. Bischoff, 89 Wis. 2d 80, 277 N.W.2d 854 (1979).

A motorist injured while fleeing the police was, as matter of law, more negligent than the pursuing officer. Brunette v. Employers Mutual Liability Insurance Co., 107 Wis. 2d 361, 320 N.W.2d 43 (Ct. App. 1982).

Failure to give the jury an emergency instruction was reversible error, despite the plaintiff’s violation of several safety statutes. When an emergency instruction is appropriate is discussed. Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983).

“Seat belt negligence” and “passive negligence” are distinguished. Jury instruc- tions regarding seat belts are recommended. A method for apportioning damages in seat belt negligence cases is adopted. Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983).

A bus driver who told an 11−year−old that he could not ride the school bus the next day, but did not inform either the school or the child’s parents, was properly found 93 percent liable for injuries sustained by the boy while riding his bicycle to school the next day. Toeller v. Mutual Service Casualty Insurance Co., 115 Wis. 2d 631, 340 N.W.2d 923 (Ct. App. 1983).

Recovery under s. 895.04 (7) is barred by this section if a decedent’s negligence was greater than any individual tortfeasor’s. Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 387 N.W.2d 751 (1986).

A negligent tortfeasor has the right to indemnity from an intentional joint tortfea- sor. A Pierringer release of the intentional tortfeasor absolved the negligent tortfea- sor. Fleming v. Threshermen’s Mutual Insurance Co., 131 Wis. 2d 123, 388 N.W.2d 908 (1986).

Punitive damages may not be recovered when actual damages are unavailable due to this section. Tucker v. Marcus, 142 Wis. 2d 425, 418 N.W.2d 818 (1988).

This section is inapplicable to the equitable resolution of a subrogation dispute. Ives v. Coopertools, 197 Wis. 2d 938, 541 N.W.2d 247 (Ct. App. 1995).

Retroactive application of the 1995 amendment of this section was unconstitu- tional. Matthies v. Positive Safety Manufacturing Co., 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842, 99−0431.

The 1995 amendment of sub. (1) does not apply to strict product liability actions. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d

833, 98−2419.

Only a tortfeasor found to be 51 percent or more causally negligent may be jointly and severally liable for a plaintiff’s total damages. That a plaintiff has no negligence does not alter that rule. Thomas v. Bickler, 2002 WI App 268, 258 Wis. 2d 304, 654 N.W.2d 248, 01−2006.

The Due Process Clause of the 14th Amendment prohibits a state from imposing a grossly excessive punishment on a tortfeasor. The degree of reprehensibility of the conduct, the disparity between the harm or potential harm suffered by the plaintiff and the punitive damage award, and the difference between the remedy and other civil penalties imposed in comparable cases are factors to be considered. The most impor- tant factor is the degree of reprehensibility. Strenke v. Hogner, 2005 WI App 194, 287 Wis. 2d 135, 704 N.W.2d 309, 03−2527.

When a trial court finds that a small claims plaintiff’s actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit. Bryhan v. Pink, 2006 WI App 110, 294 Wis. 2d 347, 718 N.W.2d 112, 05−1030.

Sub. (2) is a codification of the common−law rule on concerted−action liability dis- cussed and not a new cause of action. Concerted−action liability attaches when 2 or more persons commit a tortious act in concert. Even if an agreement exists, if that agreement does not directly relate to the tortious conduct that caused the injury, the agreement is insufficient to satisfy the agreement required for concerted action. A plan among 3 people to purchase alcohol for an underage drinker who later caused injury driving while intoxicated did not constitute a concerted action when the com- mon plan to purchase alcohol was not also a common scheme or plan to engage in the act of driving that caused the injury. Richards v. Badger Mutual Insurance, 2006 WI App 255, 297 Wis. 2d 699, 727 N.W.2d 69, 05−2796.

Sub. (2) applies only after a judge or jury has determined, under applicable sub- stantive law, that more than one tortfeasor is liable in some measure to the plaintiff. Sub. (2) plays no role in determining whether a given defendant may be held liable to the plaintiff. Danks v. Stock Building Supply, Inc., 2007 WI App 8, 298 Wis. 2d 348, 727 N.W.2d 846, 05−2679.

Sub. (2) is the codification of the common law concerted action theory of liability. There are 3 factual predicates necessary to proving concerted action: 1) there must be an explicit or tacit agreement among the parties to act in accordance with a mutu- ally agreed upon scheme or plan; parallel action, without more, is insufficient to show a common scheme or plan; 2) there must be mutual acts committed in furtherance of that common scheme or plan that are tortious acts; and 3) the tortious acts that are undertaken to accomplish the common scheme or plan must be the acts that result in damages. Richards v. Badger Mutual Insurance, 2008 WI 52, 309 Wis. 2d 541, 749

N.W.2d 581, 05−2796.

When the plaintiff’s negligence was greater than any injurer’s, neither the plaintiff nor the plaintiff’s spouse could recover. Spearing v. National Iron Co., 770 F.2d 87 (1985).

Proportioning comparative negligence — problems of theory and special verdict formulation. Aiken. 53 MLR 293.

From defect to cause to comparative fault — Rethinking some product liability concepts. Twerski. 60 MLR 297.

The problem of the insolvent contributor. Myse. 60 MLR 891.

Punitive damage recovery in products liability cases. Ghiardi & Kircher. 65 MLR 1 (1981).

The concepts of “defective condition” and “unreasonably dangerous” in products liability law. Swartz. 66 MLR 280 (1983).

Seat belt negligence: The ambivalent Wisconsin rules. McChrystal. 68 MLR 539 (1985).

Second collision law — Wisconsin. Ghiardi. 69 MLR 1 (1985). Strict products liability in Wisconsin. 1977 WLR 227.

Comparative Negligence in Wisconsin. Horowitz. WBB Jan. 1981. Plaintiff’s failure to wear a safety belt. Towers. WBB July 1985.

Wisconsin’s Modified, Modified Comparative Negligence Law. Kircher. Wis. Law. Feb. 1996.

Enforceable Exculpatory Agreements. Pendleton. Wis. Law. Nov. 1997. Wisconsin’s Comparative Negligence Statute: Applying It to Products Liability

Cases Brought Under a Strict Liability Theory. Pless. Wis. Law. Aug. 1998.

895.046 Remedies against manufacturers, distribu- tors, sellers, and promoters of products. (1g) LEGISLA- TIVE FINDINGS AND INTENT. The legislature finds that it is in the public interest to clarify product liability law, generally, and the application of the risk contribution theory of liability first announced by the Wisconsin Supreme Court in Collins v. Eli Lilly Company, 116 Wis. 2d 166 (1984), specifically, in order to return tort law to its historical, common law roots. This return both pro- tects the rights of citizens to pursue legitimate and timely claims of injury resulting from defective products, and assures that busi- nesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago. The legislature finds that the application of risk contribution to former white lead carbonate manufacturers in Thomas v. Mallet, 285 Wis. 2d 236 (2005), was an improperly expansive application of the risk contribution the- ory of liability announced in Collins, and that application raised substantial questions of deprivation of due process, equal protec- tion, and right to jury trial under the federal and Wisconsin consti-

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895.047

tutions. The legislature finds that this section protects the right to a remedy found in article I, section 9, of the Wisconsin Constitu- tion, by preserving the narrow and limited application of the risk contribution theory of liability announced in Collins.

(1r) DEFINITIONS. In this section:

(a) “Claimant” means a person seeking damages or other relief for injury or harm to a person or property caused by or arising from a product, or a person on whose behalf a claim for such damages or other relief is asserted.

(b) “Relevant production period” means the time period dur- ing which the specific product that allegedly caused a claimant’s injury or harm was manufactured, distributed, sold, or promoted.

(2) APPLICABILITY. This section applies to all actions in law or equity, whenever filed or accrued, in which a claimant alleges that the manufacturer, distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations that the design, manufacture, dis- tribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a personal injury or harm to a person or property, a private nuisance, or a public nuisance, and to all related or independent claims, including unjust enrichment, restitution, or indemnification.

NOTE: The U.S. Seventh Circuit Court of Appeals in Gibson v. American Cya- namid Co. et al., 760 F. 3d 600, held that the Wisconsin state constitution’s due− process guarantee prohibits retroactive application of this section.

(3) REMEDY WITH SPECIFIC PRODUCT IDENTIFICATION. Except as provided in sub. (4), the manufacturer, distributor, seller, or pro- moter of a product may be held liable in an action under sub. (2) only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distribu- tor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant’s injury or harm.

(4) REMEDY WITHOUT SPECIFIC PRODUCT IDENTIFICATION. Sub- ject to sub. (5), if a claimant cannot meet the burden of proof under sub. (3), the manufacturer, distributor, seller, or promoter of a product may be held liable for an action under sub. (2) only if all of the following apply:

(a) The claimant proves all of the following:

1. That no other lawful process exists for the claimant to seek any redress from any other person for the injury or harm.

2. That the claimant has suffered an injury or harm that can be caused only by a manufactured product chemically and physi- cally identical to the specific product that allegedly caused the claimant’s injury or harm.

3. That the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted a complete integrated product, in the form used by the claimant or to which the claimant was exposed, and that meets all of the following crite- ria:

a. Is chemically and physically identical to the specific prod- uct that allegedly caused the claimant’s injury or harm.

b. Was manufactured, distributed, sold, or promoted in the geographic market where the injury or harm is alleged to have occurred during the time period in which the specific product that allegedly caused the claimant’s injury or harm was manufactured, distributed, sold, or promoted.

c. Was distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.

(b) The action names, as defendants, those manufacturers of a product who collectively manufactured at least 80 percent of all products sold in this state during the relevant production period by all manufacturers of the product in existence during the relevant production period that are chemically identical to the specific product that allegedly caused the claimant’s injury or harm.

(5) LIMITATION ON LIABILITY. No manufacturer, distributor, seller, or promoter of a product is liable under sub. (4) if more than 25 years have passed between the date that the manufacturer, dis-

tributor, seller, or promoter of a product last manufactured, dis- tributed, sold, or promoted the specific product chemically identi- cal to the specific product that allegedly caused the claimant’s injury and the date that the claimant’s cause of action accrued.

(6) APPORTIONMENT OF LIABILITY. If more than one manufac- turer, distributor, seller, or promoter of a product is found liable for the claimant’s injury or harm under subs. (4) and (5), the court shall apportion liability among those manufacturers, distributors, sellers, and promoters, but that liability shall be several and not joint.

History: 2011 a. 2; 2013 a. 20.

Article I, section 1, of the Wisconsin Constitution prohibits retroactive application of this section. Wisconsin Supreme Court precedent demands holding that this sec- tion violates state due−process principles by trying to extinguish the plaintiff’s vested right in his negligence and strict−liability causes of action. Gibson v. American Cya- namid Co., 760 F.3d 600 (2014).

Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2. Irgens. 2012 WLR 1245.

895.047 Product liability. (1) LIABILITY OF MANUFACTURER. In an action for damages caused by a manufactured product based on a claim of strict liability, a manufacturer is liable to a claimant if the claimant establishes all of the following by a preponderance of the evidence:

(a) That the product is defective because it contains a manufac- turing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product contains a manu- facturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. A product is defective in design if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.

(b) That the defective condition rendered the product unrea- sonably dangerous to persons or property.

(c) That the defective condition existed at the time the product left the control of the manufacturer.

(d) That the product reached the user or consumer without sub- stantial change in the condition in which it was sold.

(e) That the defective condition was a cause of the claimant’s damages.

(2) LIABILITY OF SELLER OR DISTRIBUTOR. (a) A seller or dis- tributor of a product is not liable based on a claim of strict liability to a claimant unless the manufacturer would be liable under sub.

(1) and any of the following applies:

1. The claimant proves by a preponderance of the evidence that the seller or distributor has contractually assumed one of the manufacturer’s duties to manufacture, design, or provide warn- ings or instructions with respect to the product.

2. The claimant proves by a preponderance of the evidence that neither the manufacturer nor its insurer is subject to service of process within this state.

3. A court determines that the claimant would be unable to enforce a judgment against the manufacturer or its insurer.

(b) The court shall dismiss a product seller or distributor as a defendant based on par. (a) 2. if the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending.

(3) DEFENSES. (a) If the defendant proves by clear and con- vincing evidence that at the time of the injury the claimant was under the influence of any controlled substance or controlled sub- stance analog to the extent prohibited under s. 346.63 (1) (a), or had an alcohol concentration, as defined in s. 340.01 (1v), of 0.08 or more, there shall be a rebuttable presumption that the claimant’s intoxication or drug use was the cause of his or her injury.

895.047 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 10

(b) Evidence that the product, at the time of sale, complied in material respects with relevant standards, conditions, or specifica- tions adopted or approved by a federal or state law or agency shall create a rebuttable presumption that the product is not defective.

(c) The damages for which a manufacturer, seller, or distribu- tor would otherwise be liable shall be reduced by the percentage of causal responsibility for the claimant’s harm attributable to the claimant’s misuse, alteration, or modification of the product.

(d) The court shall dismiss the claimant’s action under this sec- tion if the damage was caused by an inherent characteristic of the product that would be recognized by an ordinary person with ordi- nary knowledge common to the community that uses or consumes the product.

(e) A seller or distributor of a product is not liable to a claimant for damages if the seller or distributor receives the product in a sealed container and has no reasonable opportunity to test or inspect the product. This paragraph does not apply if the seller or distributor may be liable under sub. (2) (a) 2. or 3.

(4) SUBSEQUENT REMEDIAL MEASURES. In an action for dam- ages caused by a manufactured product based on a claim of strict liability, evidence of remedial measures taken subsequent to the sale of the product is not admissible for the purpose of showing a manufacturing defect in the product, a defect in the design of the product, or a need for a warning or instruction. This subsection does not prohibit the admission of such evidence to show a reason- able alternative design that existed at the time when the product was sold.

(5) TIME LIMIT. In any action under this section, a defendant is not liable to a claimant for damages if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes a spe- cific representation that the product will last for a period beyond 15 years. This subsection does not apply to an action based on a claim for damages caused by a latent disease.

(6) INAPPLICABILITY. This section does not apply to actions based on a claim of negligence or breach of warranty.

History: 2011 a. 2.

Wisconsin’s codification under 2011 Wis. Act 2 of its product liability law gener- ally did not supersede the common law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017).

The contract specification defense does not apply to a claim of strict liability under Wisconsin law. Under the contract specification defense, a manufacturer that makes a product strictly in accordance with the design specifications of another is not liable in negligence unless the specifications are so obviously defective and dangerous that a contractor of reasonable prudence would have been put on notice that the product was dangerous and likely to cause injury. The contract specification defense signifi- cantly undermines the policies underlying strict liability. Therefore, the defense does not exist under Wisconsin law. Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017).

A manufacturer of a component that is incorporated into a larger product is not nec- essarily strictly liable should the larger product prove defective. A component manu- facturer is strictly liable only if the injury is directly attributable to a defect in the com- ponent and there was no change in the component that was merely incorporated into something larger. But where the component part is subject to further proceeding or substantial change, or where the causing of injury is not directly attributable to defec- tive construction of the component part, the result might be different. The Wisconsin legislature explicitly codified this common law requirement under sub. (1) (d). Janusz v. Symmetry Medical Inc., 256 F. Supp. 3d 995 (2017).

Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2. Irgens. 2012 WLR 1245.

A New Era: Products Liability Law in Wisconsin. Edwards & Ozalp. Wis. Law. July 2011.

895.048 Recovery by auto or motorboat owner limited. The owner of a motor vehicle or motorboat which, while being operated by the spouse or minor child of such owner, is damaged as the result of an accident involving another vehicle or boat, may not recover from the owner or operator of such other vehicle or boat for such damages, if the negligence of such spouse or minor child exceeds that of the operator of such other vehicle or boat. In the event that it is judicially determined that a spouse or minor operator of the motor vehicle or motorboat is found to be guilty of less than 50 percent of the causal negligence involved in an acci- dent, then in that event the owner of the motor vehicle or motor- boat involved shall be entitled to recover in accordance with the contributory negligence principles as laid down in s. 895.045. For the purposes of recovery of damages by the owner under s.

895.048, and for this purpose only, the negligence of the spouse or minor operator shall be imputed to the owner.

895.049 Recovery by a person who fails to use pro- tective headgear while operating certain motor vehi- cles. Notwithstanding s. 895.045, failure by a person who oper- ates or is a passenger on a utility terrain vehicle, as defined in s.

23.33 (1) (ng), a motorcycle, as defined in s. 340.01 (32), an all− terrain vehicle, as defined in s. 340.01 (2g), or a snowmobile, as defined in s. 340.01 (58a), on or off a highway, to use protective headgear shall not reduce recovery for injuries or damages by the person or the person’s legal representative in any civil action. This section does not apply to any person required to wear protective headgear under s. 23.33 (3g), 23.335 (8) (a) or (b), or 347.485 (1).

History: 2003 a. 148; 2011 a. 208; 2015 a. 170.

When this section applies to prohibit a reduction of damages, it necessarily also precludes a person’s failure to wear a helmet from being considered a form of negli- gence. Hardy v. Hoefferle, 2007 WI App 264, 306 Wis. 2d 513, 743 N.W.2d 843,

06−2861.

895.05 Damages in actions for libel. (1) The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judi- cial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt any such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any headline or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled or spoken concerning the person libeled in the course of such proceeding by some other person.

(2) Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine or periodi- cal, the libeled person shall first give those alleged to be responsi- ble or liable for the publication a reasonable opportunity to correct the libelous matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definite- ness and certainty. The first issue published after the expiration of one week from the receipt of such notice shall be within a rea- sonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person’s statement of the true facts, or so much thereof as shall not be libelous of another, scurrilous, or otherwise improper for publication, published as the libeled person’s statement, shall constitute a correction within the mean- ing of this section. A correction, timely published, without com- ment, in a position and type as prominent as the alleged libel, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in miti- gation of actual damages to the extent the correction published does so mitigate them.

History: 1993 a. 486.

One who contributes a nondefamatory photograph of the plaintiff to a newspaper to accompany a defamatory article is not liable absent knowledge or control of the article. Westby v. Madison Newspapers, Inc., 81 Wis. 2d 1, 259 N.W.2d 691 (1977). A newscaster did not act with knowledge of falsity or with reckless disregard for

the truth by broadcasting that the plaintiff had been charged with a crime when the newscaster was told by a deputy sheriff that charges would be filed. Prahl v. Bro- samle, 98 Wis. 2d 130, 295 N.W.2d 768 (Ct. App. 1980).

A contract printer had no reason to know of libel and was entitled to summary judg- ment. Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 297 N.W.2d 500 (1980). Sub. (2) applies to non−media defendants, but relates only to libelous publications in print media, not broadcast media. Hucko v. Jos. Schlitz Brewing Co., 100 Wis. 2d

372, 302 N.W.2d 68 (Ct. App. 1981).

The trial court properly dismissed a defamation claim based on a letter by a medical director charging that a foundation conducted a sham nonprofit operation since the director established the defense of truth. Fields Foundation, Ltd. v. Christensen, 103 Wis. 2d 465, 309 N.W.2d 125 (Ct. App. 1981).

“Public figure” is defined. Constitutional protections of the news media and an individual defamer are discussed. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982).

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A former legislator who had gained notoriety within the district while in office and who was allegedly defamed in a radio broadcast within the district was a “public fig- ure” for purposes of a defamation action. Lewis v. Coursolle Broadcasting, 127 Wis. 2d 105, 377 N.W.2d 166 (1985).

A computer bulletin board is not a periodical and not subject to sub. (2). It’s In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 535 N.W.2d 11 (Ct. App. 1995).

If a defamation plaintiff is a public figure, there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice, but the inference is of little weight when uncontroverted testimony makes the malice assertion a remote possibil- ity. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997),

95−1098.

For purposes of libel law, a “public figure” who must prove malice includes a per- son who by being drawn into or interjecting himself or herself into a public contro- versy becomes a public figure for a limited purpose because of involvement in the particular controversy. “Public figure” status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc., 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98−2660.

A “public dispute” is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; the dispute’s ramifications must be felt by persons who are not direct partic- ipants. Maguire v. Journal Sentinel, Inc., 2000 WI App 4, 232 Wis. 2d 236, 605

N.W.2d 881, 97−3675.

In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise−anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04−0377.

The sub. (2) notice requirement applies to only libel in print. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00−0915.

Actual malice requires that an allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill−will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739,

06−0396.

There are two kinds of public figures: public figures for all purposes and public fig- ures for a limited purpose. Like public officials, public figures for all purposes must prove actual malice in all circumstances. Limited purpose public figures, on the other hand, are otherwise private individuals who have a role in a specific public contro- versy. Limited purpose public figures are required to prove actual malice only when their role in the controversy is “more than trivial or tangential” and the defamation is germane to their participation in the controversy. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07−2314.

The plaintiff was a public figure for all purposes when he was involved in highly controversial and newsworthy activities while in public office; the publicity and con- troversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and he had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07−2314.

In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice. However, this rule is not absolute. In this case, because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756

N.W.2d 649, 07−2314.

Sub. (2) provides that an opportunity to correct libelous matter “shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts.” The optional provision: “The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty,” does not nullify the requirement that the notice contain a statement of what are claimed to be the true facts. Once a claimant has been found to not meet the notice requirements, the action cannot be revived by again attempting to comply with the notice provisions. DeBraska v. Quad Graphics, Inc., 2009 WI App 23, 316 Wis. 2d 386, 763 N.W.2d 219, 07−2931.

The elements of a defamatory communication are: 1) a false statement; 2) commu- nicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12−1682.

In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be antithetical to the 1st amendment’s protection of true speech on matters of public concern. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12−1682.

Publishers’ privileges and liabilities regarding libel are discussed. Gertz v. Robert Welch, Inc., 418 U.S. 323.

A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of “actual malice” is required for recovery. Herbert v. Lando, 441 U.S. 153 (1979).

The “public figure” principle in libel cases is discussed. Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979).

If wire service accounts of a judge’s remarks are substantially accurate, a defama- tion suit by the judge is barred under sub. (1). Simonson v. United Press Intern., Inc., 500 F. Supp. 1261 (1980).

Defamation law of Wisconsin. Brody. 65 MLR 505 (1982).

The “public interest or concern” test: Have we resurrected a standard that should have remained in the graveyard? 70 MLR 647 (1987).

A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.

895.052 Defamation by radio and television. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable in damages for any defamatory statement published or uttered in, or as a part of, a vis- ual or sound broadcast by a candidate for political office in those instances in which, under the acts of congress or the rules and reg- ulations of the federal communications commission, the broad- casting station or network is prohibited from censoring the script of the broadcast.

895.055 Gaming contracts void. (1) All promises, agree- ments, notes, bills, bonds, or other contracts, mortgages, convey- ances or other securities, where the whole or any part of the con- sideration of the promise, agreement, note, bill, bond, mortgage, conveyance or other security shall be for money or other valuable thing whatsoever won or lost, laid or staked, or betted at or upon any game of any kind or under any name whatsoever, or by any means, or upon any race, fight, sport or pastime, or any wager, or for the repayment of money or other thing of value, lent or advanced at the time and for the purpose, of any game, play, bet or wager, or of being laid, staked, betted or wagered thereon shall be void.

(2) This section does not apply to contracts of insurance made in good faith for the security or indemnity of the party insured.

(3) This section does not apply to any promise, agreement, note, bill, bond, mortgage, conveyance or other security that is permitted under chs. 562 to 569 or under state or federal laws relat- ing to the conduct of gaming on Indian lands.

History: 1993 a. 174; 1995 a. 225; 1997 a. 27.

A Puerto Rican judgment based on a gambling debt was entitled to full faith and credit in Wisconsin. Conquistador Hotel Corp. v. Fortino, 99 Wis. 2d 16, 298 N.W.2d 236 (Ct. App. 1980).

895.056 Recovery of money wagered. (1) In this section:

(a) “Property” means any money, property or thing in action.

(b) “Wagerer” means any person who, by playing at any game or by betting or wagering on any game, election, horse or other race, ball playing, cock fighting, fight, sport or pastime or on the issue or event thereof, or on any future contingent or unknown occurrence or result in respect to anything whatever, shall have put up, staked or deposited any property with any stakeholder or 3rd person, or shall have lost and delivered any property to any winner thereof.

(2) (a) A wagerer may, within 3 months after putting up, stak- ing or depositing property with a stakeholder or 3rd person, sue for and recover the property from the stakeholder or 3rd person whether the property has been lost or won or whether it has been delivered over by the stakeholder or 3rd person to the winner.

(b) A wagerer may, within 6 months after any delivery by the wagerer or the stakeholder of the property put up, staked or depos- ited, sue for and recover the property from the winner thereof if the property has been delivered over to the winner.

(3) If the wagerer does not sue for and recover the property, which was put up, staked or deposited, within the time specified under sub. (1), any other person may, in the person’s behalf and the person’s name, sue for and recover the property for the use and benefit of the wagerer’s family or heirs, in case of the wagerer’s death. The suit may be brought against and property recovered from any of the following:

(a) The stakeholder or a 3rd person if the property is still held by the stakeholder or 3rd person, within 6 months after the putting up, staking or depositing of the property.

(b) The winner of the property, within one year from the deliv- ery of the property to the winner.

(4) This section does not apply to any property that is per- mitted to be played, bet or wagered under chs. 562 to 569 or under

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state or federal laws relating to the conduct of gaming on Indian lands.

History: 1993 a. 174, 486; 1995 a. 225; 1997 a. 27, 35.

895.057 Action against judicial officer for loss caused by misconduct. Any judicial officer who causes to be brought in a court over which the judicial officer presides any action or proceeding upon a claim placed in the judicial officer’s hands as agent or attorney for collection shall be liable in a civil action to the person against whom such action or proceeding was brought for the full amount of damages and costs recovered on such claim.

History: 1993 a. 486.

895.06 Recovery of divisible personalty. When personal property is divisible and owned by tenants in common and one tenant in common shall claim and hold possession of more than the tenant’s share or proportion thereof his or her cotenant, after making a demand in writing, may sue for and recover the coten- ant’s share or the value thereof. The court may direct the jury, if necessary, in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to the verdict.

History: 1993 a. 486.

895.065 Radioactive waste emergencies. (1) DEFINI-

TIONS. In this section:

(a) “Association” means a relationship in which one person controls, is controlled by or is under common control with another person.

(b) “Company” means any partnership, joint−stock company, business trust or organized group of persons, whether incorpo- rated or not, and any person acting as a receiver, trustee or other liquidator of a partnership, joint−stock company, business trust or organized group of persons. “Company” does not include a state or local governmental body.

(c) “Control” means to possess, directly or indirectly, the power to direct or cause the direction of the management and poli- cies of a company, whether that power is exercised through one or more intermediary companies, or alone, or in conjunction with, or by an agreement with, any other company, and whether that power is established through a majority or minority ownership or voting of securities, common directors, officers, stockholders, voting trusts, holding trusts, affiliated companies, contract or by any other direct or indirect means. “Control” includes owning, hold- ing or controlling, directly or indirectly, at least 5 percent of the voting power in the election of directors of a company. “Control” has the same meaning as the terms “controlled by” and “under common control with”.

(d) “Emergency provider” means any person who provides emergency care or facilities and includes emergency manage- ment.

(e) “Harm” means:

1. Damage to property.

2. Personal physical injury, illness or death, including mental anguish or emotional harm attendant to the personal physical injury, illness or death.

4. Economic loss.

5. Environmental pollution, as defined in s. 299.01 (4).

6. Expenses incurred by an emergency provider in preparing for and responding to a nuclear incident that are not reimbursed under s. 292.11 (7) or that are not paid by another state under a mutual aid agreement or by a gift or grant.

(f) “Nuclear incident” means any sudden or nonsudden release of ionizing radiation, as defined under s. 254.31 (3g), from radio- active waste being stored or disposed of in a waste repository or transported. “Nuclear incident” does not include any release of radiation from radioactive waste being transported under routine operations.

(g) “Person” means any individual or company. “Person” includes the federal government.

(h) “Radioactive waste” means radioactive waste, as defined in s. 293.25 (1) (b), and radioactive defense waste.

(i) “Responsible party” means any person described under sub.

(3) (a) 1. a. to d.

(j) “Routine operations” means the operation of transportation equipment in a manner that is not subject to the requirements for immediate notice of incidents under 49 USC 1801 to 1811 or notice of discharge under s. 292.11 (2).

(k) “Waste repository” means any system used or intended to be used to dispose of or store radioactive waste under 42 USC 10101 to 10226, including but not limited to a permanent disposal system, interim storage system, monitored retrievable storage system, defense waste storage system, away−from−reactor stor- age facility and a test and evaluation facility.

(2) LIABILITY. All responsible parties are strictly liable, jointly and severally, for any harm caused by a nuclear incident.

(3) REBUTTABLE PRESUMPTION. (a) In any action brought under sub. (2) to recover damages for harm claimed to be caused by a nuclear incident, it is presumed that the nuclear incident was a cause of the harm if the plaintiff produces evidence to the court sufficient to enable a reasonable person to find all of the follow- ing:

1. The defendant is any of the following:

a. A person who is in any way responsible for the design, con- struction, operation or monitoring of the waste repository or trans- portation equipment from which the radiation was released in the nuclear incident.

b. A person who owns the waste repository or transportation equipment from which the radiation was released in the nuclear incident.

c. A person who produces, possesses, controls or owns radio- active waste stored or disposed of in the waste repository or trans- portation equipment from which the radiation was released in the nuclear incident.

d. A person who has an association with any person described under subd. 1. a. to c.

2. The harm could reasonably have resulted from the nuclear incident.

(b) A defendant in an action brought under sub. (2) may rebut the presumption under par. (a) by proving that:

1. The defendant is not a responsible party; or

2. The harm claimed to be caused by a nuclear incident could not have reasonably resulted from the nuclear incident.

(4) COURT AWARD. In issuing any final order in any action brought under this section in which the plaintiff prevails, the court shall award to the plaintiff the cost of the suit, including reason- able attorney and expert witness fees, and the damages sustained by the plaintiff.

(5) CONSTRUCTION. This section may not be deemed to have any effect upon the liability of any person for any harm caused by any incident which is not a nuclear incident.

History: 1985 a. 29; 1989 a. 31; 1989 a. 56 s. 259; 1993 a. 27; 1995 a. 227, 247;

1999 a. 9; 2009 a. 42 ss. 153 to 156; Stats. 2009 s. 895.065.

895.07 Claims against contractors and suppliers.

(1) DEFINITIONS. In this section:

(a) “Action” means a civil action or an arbitration under ch. 788.

(b) “Association” means a homeowner’s association, condo- minium association under s. 703.02 (1m), unit owner’s associa- tion, or a nonprofit corporation created to own and operate por- tions of a planned community that may assess unit owners for the costs incurred in the performance of the association’s obligations.

(c) “Claim” means a request or demand to remedy a construc- tion defect caused by a contractor or supplier related to the con- struction or remodeling of a dwelling.

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(d) “Claimant” means the owner, tenant, or lessee of a dwell- ing, or an association, who has standing to sue a contractor or sup- plier regarding a construction defect.

(e) “Construction defect,” in those cases when the contractor or supplier has provided a warranty to a consumer, means the defi- nition of “defect” in the warranty. In all other cases, “construction defect” means a deficiency in the construction or remodeling of a dwelling that results from any of the following:

1. Defective material.

2. Violation of applicable codes.

3. Failure to follow accepted trade standards for workmanlike construction.

(f) “Consumer” means a person who enters into a written or oral contract with a contractor to construct or remodel a dwelling.

(g) “Contractor” means a person that enters into a written or oral contract with a consumer to construct or remodel a dwelling.

(h) “Dwelling” means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to resi- dential use. “Dwelling” includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.

(i) “Remodel” means to alter or reconstruct a dwelling. “Remodel” does not include maintenance or repair work.

(j) “Serve” or “service” means personal service or delivery by certified mail, return receipt requested, to the last−known address of the addressee.

(k) “Supplier” means a person that manufactures or provides windows or doors for a dwelling.

(L) “Working day” means any day except Saturday, Sunday, and holidays designated in s. 230.35 (4) (a).

(2) NOTICE AND OPPORTUNITY TO REPAIR. (a) Before com- mencing an action against a contractor or supplier regarding a construction defect, a claimant shall do all of the following:

1. No later than 90 working days before commencing the action, deliver written notice to the contractor containing a description of the claim in sufficient detail to explain the nature of the alleged defect and a description of the evidence that the claim- ant knows or possesses, including expert reports, that substanti- ates the nature and cause of the alleged construction defect.

2. Provide the contractor or supplier with the opportunity to repair or to remedy the alleged construction defect.

(b) Within 15 working days after the claimant serves notice of claim under par. (a), or within 25 working days if the contractor makes a claim for contribution from a supplier under sub. (7) (a), each contractor that has received the notice of claim shall serve on the claimant any of the following:

1. A written offer to repair or remedy the construction defect at no cost to the claimant. The offer shall include a description of any additional construction necessary to remedy the construction defect and a timetable for the completion of the construction.

2. A written offer to settle the claim by monetary payment.

3. A written offer including a combination of repairs and monetary payment.

4. A written statement that the contractor rejects the claim. The contractor shall state in the written response to the claim the reason for rejecting the claim and include a comprehensive description of all evidence the contractor knows or possesses, including expert reports, that substantiates the reason for rejecting the claim. The contractor shall also include in the written response to the claim any settlement offer received from a supplier.

5. A proposal for inspection of the dwelling under par. (c).

(c) If a proposal for inspection is made under par. (b), the claimant shall, within 15 working days of receiving the contrac- tor’s proposal, provide the contractor and any supplier on whom

a contribution claim has been made and its agents, experts, and consultants reasonable access to the dwelling to inspect the dwell- ing, document any alleged construction defects, and perform any testing required to evaluate fully the nature, extent, and cause of the claimed construction defects and the nature and extent of any repairs or replacements that may be necessary to remedy them. If destructive testing is required, the contractor shall deliver the claimant and all persons on whom a notice of claim or contribution claim has been served advance notice of the testing at least 5 work- ing days before commencement of the testing and shall, after com- pletion of the testing, return the dwelling to its pre−testing condi- tion within a reasonable time after completion of the testing, at the contractor’s expense. If any inspection or testing reveals a condi- tion that requires additional testing to allow the contractor to eval- uate fully the nature, cause, and extent of the construction defect, the contractor shall deliver notice to the claimant and all persons on whom a notice of claim or contribution claim has been served of the need for the additional testing and the claimant shall provide reasonable access to the dwelling. If a claim is asserted on behalf of the owners of multiple dwellings, then the contractor shall be entitled to inspect each of the dwellings subject to the claim. The claimant shall either provide a specific day for the inspection upon reasonable notice for an inspection or require the contractor to request in writing a date for the inspection, at least 3 working days before the inspection.

(d) Within 10 working days following completion of the inspection and testing under par. (c), the contractor shall serve on the claimant a notice that includes any of the offers or statements under par. (b) 1. to 4.

(e) If the claimant rejects a settlement offer made by the con- tractor, the claimant shall, within 15 working days after receiving the offer, serve written notice of that rejection to the contractor. The notice shall include the reasons for the claimant’s rejection of the contractor’s offer. If the claimant believes that the settlement offer omits reference to any portion of the claim, or was unreason- able, the claimant’s written notice shall include those items that the claimant believes were omitted and set forth the reasons why the claimant believes the settlement offer is unreasonable. The contractor shall deliver the claimant’s response to a supplier upon whom a contribution claim has been made.

(f) Upon receipt of a claimant’s rejection and the reasons for the rejection, the contractor shall, within 5 working days after receiving the rejection, serve the claimant a written supplemental offer to repair or to remedy the construction defect or serve on the claimant written notice that no additional offer will be made.

(g) If the claimant rejects the supplemental offer made by the contractor under par. (f) to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the claimant shall serve written notice of the claimant’s rejection on the contractor within 15 working days after receipt of the sup- plemental offer. The notice shall include the reasons for the claim- ant’s rejection of the contractor’s supplemental settlement offer. If the claimant believes the contractor’s supplemental settlement offer is unreasonable, the claimant shall set forth the reasons why the claimant believes the supplemental settlement offer is unrea- sonable. If the contractor declines to make a supplemental offer, or if the claimant rejects the supplemental offer, the claimant may bring an action against the contractor for the claim described in the notice of claim without further notice.

(h) If a claimant accepts any offer made under this subsection, and the contractor or supplier does not proceed to repair or remedy the construction defect under the terms of the offer or within the agreed upon timetable, the claimant may bring an action against the contractor or supplier for the claim described in the notice of claim without further notice.

(i) If a claimant accepts a contractor’s offer to repair a con- struction defect described in a notice of claim, the claimant shall provide the contractor and its agents, experts, and consultants rea-

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sonable access to the dwelling to perform and complete the con- struction by the timetable stated in the settlement offer.

(j) If a claimant receives a written statement that the contractor rejects the claim, or if the contractor does not respond to the claim- ant’s notice, the claimant may bring an action against the contrac- tor for the claim described in the notice of claim without further notice.

(k) If a claimant commences an action against a supplier and the supplier has not been provided notice of the claim by the con- tractor and an opportunity to repair or remedy the construction defect described in the claim as provided under to sub. (7), the court or arbitrator shall dismiss without prejudice or stay the action until the claimant serves the supplier with a copy of the notice of claim and provides the supplier an opportunity to repair or remedy the construction defect in the same manner as provided a contractor under this section.

(3) ACTION; DISMISSAL WITHOUT PREJUDICE. If the claimant commences an action but fails to comply with the requirements of sub. (2) (a) and the contractor or supplier establishes that the claimant was provided the notice and brochure under s. 101.148 (2), the circuit court or arbitrator shall dismiss the action without prejudice. If the claimant commences an action but fails to com- ply with the requirements of sub. (2) (a) and the contractor or sup- plier cannot establish that the notice and brochure was delivered to the claimant under s. 101.148 (2), the circuit court or arbitrator shall stay the action and order the parties to comply with the requirements of sub. (2) (a) and s. 101.148 (2). Before commenc- ing an action against a supplier seeking contribution for a claim that a claimant has served on a contractor, the contractor shall serve the supplier with a notice of contribution claim under sub. (7). If the contractor commences an action against a supplier but fails to serve the notice of contribution claim, the circuit court or arbitrator shall stay the action until the contractor has complied with the requirements of this subsection and sub. (7).

(4) WARRANTY TERMS. The claimant and contractor or sup- plier are bound by any contractor or supplier warranty terms per- taining to products or services supplied for the dwelling.

(5) ADDITIONAL CONSTRUCTION DEFECTS AND NOTICE AND OPPORTUNITY TO REPAIR. A construction defect that is discovered after an initial claim or contribution claim notice has been pro- vided may not be alleged in an action until the claimant or contrac- tor has served the contractor or supplier written notice of the new claim or contribution claim regarding the alleged new construc- tion defect. The contractor or supplier shall have an opportunity to resolve the notice of the new claim or contribution claim in the manner provided in subs. (2) and (7).

(6) ACTION OF CONTRACTOR OR SUPPLIER. In any action initi- ated by a contractor or supplier in which a claimant raises an affirmative defense or counterclaim alleging a construction defect, the claimant is not required to comply with this section.

(7) CONTRIBUTION. (a) Before commencing an action seeking contribution from a supplier for a claim that a claimant makes against the contractor, the contractor shall serve the supplier with a written notice of the claimant’s claim and a contribution claim within 5 working days after the contractor’s receipt of the claim, except that a contractor may make a contribution claim later than 5 days after the contractor’s receipt of the initial claim if the con- tractor has not done any of the following:

1. Taken any action to repair the defect.

2. Performed destructive testing.

3. Authorized the claimant to take any action to repair the defect.

4. Interfered materially with or altered the property that is the subject of the claim.

5. Materially precluded a supplier’s ability to offer to remedy the defect by making repairs.

(b) Before commencing an action against a supplier, a contrac- tor shall provide the supplier with the opportunity to respond to the contribution claim and repair the alleged construction defect

under this section. The notice of contribution claim shall state that the contractor asserts a construction defect claim. The notice of contribution claim shall describe the contribution claim in suffi- cient detail to explain the nature of the alleged construction defect and shall offer the opportunity to correct the construction defect. The contractor shall include in the notice of claim a description of the alleged construction defect and include a comprehensive description of all evidence that the contractor knows or possesses, including expert reports, that substantiates the nature and cause of the alleged construction defect.

(c) Within 15 working days after a supplier has received notice that a contractor is seeking contribution under par. (a), the supplier shall serve the contractor with any of the following:

1. A written offer to remedy fully or partially the construction defect at no cost to the claimant. The offer shall include a descrip- tion of any additional construction necessary to remedy the con- struction defect and a timetable for the completion of the construc- tion.

2. A written offer to settle the claim by monetary payment.

3. A written offer including a combination of repairs and monetary payment.

4. A written statement that the supplier rejects the claim. The supplier shall state in the written response to the claim the reason for rejecting the claim and include a comprehensive description of all evidence the supplier knows or possesses, including expert reports, that substantiates the reason for rejecting the claim.

5. A proposal for the inspection of the dwelling, following the procedures under par. (e).

(d) The contractor shall forward the supplier’s response to the claimant. The supplier and contractor shall use their best efforts to coordinate their responses to claims and contribution claims.

(e) If a supplier proposes to inspect the dwelling that is the sub- ject of the contribution claim, the contractor and claimant shall, within 15 working days after receiving the supplier’s proposal, provide the supplier and its agents, experts, and consultants rea- sonable access to the dwelling to inspect the dwelling, document any alleged construction defects, and perform any testing required to evaluate fully the nature, extent, and cause of the claimed con- struction defects and the nature and extent of any repairs or replacements that may be necessary to remedy them. If destruc- tive testing is required, the supplier shall give the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served advance notice of the testing at least 5 work- ing days before commencement of the testing and shall, after com- pletion of the testing, return the dwelling to its pre−testing condi- tion within a reasonable time after completion of the testing, at the supplier’s expense. If any inspection or testing reveals a condition that requires additional testing to allow the supplier to evaluate fully the nature, cause, and extent of the construction defect, the supplier shall provide notice to the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served of the need for the additional testing and the contractor and claimant shall provide reasonable access to the dwelling. If a claim is asserted on behalf of the contractor of multiple dwellings, then the supplier shall be entitled to inspect each of the dwellings. The contractor and claimant shall provide a specific day for the inspection upon reasonable notice for an inspection or require the supplier to request in writing a date for the inspection, at least 3 working days before the inspection.

(f) Within 10 working days following completion of the inspection and testing under par. (e), the supplier shall serve on the contractor a notice that includes any of the offers or statements under par. (c) 1. to 4.

(g) If the contractor rejects a settlement offer made by the sup- plier, the contractor shall, within 15 working days after receiving the offer, send written notice of that rejection to the supplier. The notice shall include the reasons for the contractor’s rejection of the supplier’s offer. If the contractor believes that the settlement offer omits reference to any portion of the claim, or was unreasonable,

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the contractor’s written notice shall include those items that the contractor believes were omitted and set forth the reasons why the contractor believes the settlement offer is unreasonable.

(h) Upon receipt of a contractor’s rejection and the reasons for the rejection, the supplier shall, within 5 working days of receiv- ing the rejection, make a supplemental offer of repair or monetary payment to the contractor or serve on the contractor written notice that no additional offer will be made.

(i) If the contractor rejects the supplemental offer made by the supplier to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the contractor shall, within 15 working days after receiving the offer, serve written notice of the contractor’s rejection on the supplier. The notice shall include the reasons for the contractor’s rejection of the sup- plier’s supplemental settlement offer. If the contractor believes the supplier’s supplemental settlement offer is unreasonable, the contractor shall set forth the reasons why the contractor believes the supplemental settlement offer is unreasonable. If the supplier declines to make a supplemental offer, or if the contractor rejects the supplemental offer, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice.

(j) If a contractor accepts any offer made under this subsection, and the supplier does not proceed to make the monetary payment or remedy the construction defect within the agreed upon timeta- ble, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice. The contractor may also file the supplier’s offer and contractor’s acceptance in the circuit court action, and the offer and acceptance create a rebuttable presumption that a binding and valid settlement agreement has been created and should be enforced by the court.

(k) If a contractor accepts a supplier’s offer to repair a con- struction defect described in a notice of claim, the contractor, when appropriate, and the claimant shall provide the supplier and its agents, experts, and consultants reasonable access to the dwell- ing to perform and complete the construction by the timetable stated in the settlement offer.

(L) If a contractor receives a written statement that the supplier rejects the claim, or if the supplier does not respond to the contrac- tor’s notice, the contractor may bring an action against the sup- plier for the claim described in the notice of claim without further notice.

(m) A contractor who is seeking contribution from a supplier and who elects to inspect a dwelling under sub. (2) (b) shall serve the supplier written notice of the inspection date and dwelling address, and whether destructive testing is contemplated, at least 5 working days before the inspection.

(8) FAILURE TO RESPOND TO NOTICE. If a person fails to timely respond to any notice served in a manner required under this sec- tion, then any offer made in that notice is rejected.

(9) LIMITATION PERIOD. If, during the pendency of the notice, inspection, offer, acceptance, or repair process, an applicable lim- itation period would otherwise expire, the limitation period is tolled pending completion of the notice of claim process described in this section. This subsection shall not be construed to revive a limitation period that has expired before the date on which a claimant’s written notice of claim is served or extend any appli- cable statute of repose.

(10) ALTERATION OF PROCEDURE. After service of the initial notice of claim and initial contribution claim, a claimant, a con- tractor, and a supplier may, by written mutual agreement, alter the procedure for the notice of claim process described in this section.

(11) APPLICATION TO OTHERS. This section does not apply to a contractor’s or supplier’s right to seek contribution, indemnity, or recovery against any party other than a supplier for a claim made against a contractor or supplier.

(12) HOMEOWNER REPAIRS. Without giving notice under this section, a homeowner may make immediate repairs to a dwelling to protect the health or safety of its occupants.

(13) BROCHURE. The department of safety and professional services shall prepare a brochure explaining the process under this section and shall provide that brochure to contractors.

History: 2005 a. 201; 2007 a. 97; 2011 a. 32.

895.08 Sport shooting ranges; actions related to safety. (1) DEFINITIONS. In this section:

(a) “Clear and immediate public safety hazard” means an unsafe condition that originates from, or is at, a sport shooting range and that could reasonably be expected to cause death or seri- ous injury to an individual.

(b) “Local unit of government” means the governing body of a county, city, town, village, or the elected tribal governing body of a federally recognized American Indian tribe or band in this state.

(c) “Sport shooting range” has the meaning given in s. 895.527 (1).

(2) TEMPORARY CLOSURE. (a) Except as provided in par. (b), no law enforcement officer or court may require the owner or operator of a sport shooting range to cease or suspend any portion of its operation, the use of a particular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range because of an alleged or actual unsafe condition at, or originating from, the sport shooting range.

(b) 1. A court may, upon petition by a law enforcement officer, temporarily order the owner or operator of a sport shooting range to cease or suspend a portion of its operation, the use of a particular firearm type at the sport shooting range, or the conduct of a partic- ular activity at the sport shooting range if it finds that there is prob- able cause to believe that the portion of the operation, the use of a particular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range constitutes a clear and immediate public safety hazard.

2. A court may, upon petition by a local unit of government or an individual, temporarily order the owner or operator of a sport shooting range to cease or suspend a portion of its operation, the use of a particular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range if the court finds, upon a preponderance of the evidence presented, that the portion of the sport shooting range’s operation, the use of a par- ticular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range constitutes a clear and immediate public safety hazard.

3. There is a rebuttable presumption that no portion of a sport shooting range’s operation, use of a particular firearm type at the sport shooting range, or conduct of a particular activity at the sport shooting range constitutes a clear and immediate public safety hazard.

(3) CONTINUING OPERATIONS. (a) An owner or operator of a sport shooting range who has been ordered by a court under sub.

(2) to temporarily cease or suspend a portion of its operation, the use of a particular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range may arrange for an evaluation of the sport shooting range by an entity designated by the department of natural resources under s. 23.43 as qualified to evaluate the sport shooting range. The evaluation shall identify any deficiencies in public safety measures employed at the range as compared to general safe range design and operation practices and provide recommendations to rectify any deficiencies that exist. The entity’s report on the findings of the evaluation shall be submitted to the court upon completion of the evaluation.

(b) After receiving a report under par. (a) that states that no deficiencies in public safety measures employed at the range as compared to general safe range design and operation practices exist, the court shall rescind the order issued under sub. (2) and dismiss the proceedings.

(c) After receiving a report under par. (a) that identifies any deficiency in public safety measures employed at the range as compared to general safe range design and operation practices that

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poses a clear and immediate public safety hazard, the court shall allow the range owner or operator to provide proof that such defi- ciencies have been remedied. If the range owner or operator pro- vides proof that the deficiencies have been remedied, the court shall rescind the order issued under sub. (2) and dismiss the pro- ceedings.

(d) After receiving a report under par. (a) that identifies any deficiency in public safety measures employed at the range as compared to general safe range design and operation practices that poses a clear and immediate public safety hazard and that cannot be remedied in the range’s location, the court may order perma- nent cessation of a portion of the sport shooting range operation, use of a particular firearm type at the sport shooting range, or the conduct of a particular activity at the sport shooting range to which the deficiency applies.

(e) If a court dismisses a petition on the grounds that the peti- tioner failed to demonstrate that a portion of a sport shooting range’s operation constitutes a clear and immediate public safety hazard, or if the court rescinds an order issued under sub. (2) on the grounds that a report filed under par. (a) finds no deficiencies in public safety measures employed at the range as compared to general safe range design and operation practices that constitute a clear and immediate public safety hazard, the court may order the petitioner to pay the defending party’s costs of litigation, including reasonable attorneys fees and consultant fees.

History: 2017 a. 179.

895.09 Scrap metal or plastic bulk merchandise con- tainer theft; civil liability. (1) Any owner of nonferrous scrap, a metal article, or a proprietary article, as those terms are defined in s. 134.405 (1), who incurs injury or loss as a result of a violation of s. 134.405 or s. 943.20 may bring a civil action against the per- son who committed the violation.

(2) If the person who incurs the loss prevails against a person who committed the violation, the court shall grant the prevailing party all of the following:

(a) Actual damages.

(b) Any lost profits that are attributable to the violation and that were not taken into account in determining the amount of actual damages under par. (a).

(c) Notwithstanding the limitations under s. 799.25 or 814.04, costs, disbursements, and reasonable attorney fees.

(3) If the court finds that the violation was committed for the purpose of commercial advantage, the court may award punitive damages to the person who incurs the loss.

(4) Any awards provided under sub. (2) (a) or (b) shall be reduced by the amount of any restitution collected for the same act under s. 800.093 or 973.20.

(5) The person who incurs the loss has the burden of proving by the preponderance of the evidence that a violation of s. 134.405 or 943.20 occurred.

History: 2007 a. 64; 2011 a. 194.

895.10 Tort actions in residential real estate trans- actions. (1) In this section, “residential real estate transaction” means a real estate transfer to which s. 709.01 (1) applies.

(2) In addition to any other remedies available under law, a transferee in a residential real estate transaction may maintain an action in tort against the real estate transferor for fraud committed, or an intentional misrepresentation made, by the transferor in the residential real estate transaction.

History: 2009 a. 4.

895.14 Tenders of money and property. (1) TENDER MAY BE PLEADED. The payment or tender of payment of the whole sum due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought in like manner and with the like effect as if such tender or payment had been made at the time pre- scribed in the contract.

(2) TENDER AFTER ACTION COMMENCED. A tender may be made after an action is brought on the contract of the whole sum then due, plus legal costs of suit incurred up to the time, at any time before the action is called for trial. The tender may be made to the plaintiff or attorney, and if not accepted the defendant may plead the same by answer or supplemental answer, in like manner as if it had been made before the commencement of the action, bring- ing into court the money so tendered for costs as well as for debt or damages.

(3) PROCEEDINGS ON ACCEPTANCE OF TENDER. If the tender is accepted the plaintiff or attorney shall, at the request of the defend- ant, sign a stipulation of discontinuance of the action for that rea- son and shall deliver it to the defendant; and also a certificate or notice thereof to the officer who has any process against the defendant, if requested. If costs are incurred for any service made by the officer after the tender is accepted and before the officer receives notice of the acceptance, the defendant shall pay the costs to the officer or the tender is invalid.

(4) INVOLUNTARY TRESPASS. A tender may be made in all cases of involuntary trespass before action is commenced. When in the opinion of the court or jury a sufficient amount was tendered to the party injured, agent or attorney for the trespass complained of, judgment shall be entered against the plaintiff for costs if the defendant kept the tender good by paying the money into court at the trial for the use of the plaintiff.

(5) PAYMENT INTO COURT OF TENDER; RECORD OF DEPOSITS. (a) When tender of payment in full is made and pleaded, the defend- ant shall pay the tender in full into court before the trial of the action is commenced and notify the opposite party in writing, or be deprived of all benefit of the tender. When the sum tendered and paid into court is sufficient, the defendant shall recover the taxable costs of the action, if the tender was prior to the com- mencement of the action. The defendant shall recover taxable costs from the time of the tender, if the tender was after suit com- menced.

(b) When any party, pursuant to an order or to law, deposits any money or property with the clerk of court, the clerk shall record the deposit in the minute record describing the money or property and stating the date of the deposit, by whom made, under what order or for what purpose and shall deliver a certificate of these facts to the depositor, with the volume and page of the record endorsed on the certificate.

History: 1981 c. 67; 1983 a. 192 ss. 274 to 279; 1983 a. 302 s. 8; Stats. 1983 s.

895.14.

895.28 Remedies not merged. When the violation of a right admits of both a civil and criminal remedy the right to prose- cute the one is not merged in the other.

895.33 Limitation of surety’s liability. Any person may limit the amount of liability as a surety upon any bond or other obligation required by law or ordered by any court, judge, munici- pal judge or public official for any purpose. The amount of the limited liability may be recited in the body of the bond or stated in the justification of the surety. In an action brought upon the bond, no judgment may be recovered against the surety for a sum larger than the amount of the liability stated, together with the pro- portional share of the costs of the action. In an action brought on the bond, a surety may deposit in court the amount of the liability, whereupon the surety shall be discharged and released from any further liability under the bond.

History: 1979 c. 110 s. 60 (11); 1985 a. 332.

895.34 Renewal of sureties upon becoming insuffi- cient and effects thereof. If any bail bond, recognizance, undertaking or other bond or undertaking given in any civil or criminal action or proceeding, becomes at any time insufficient, the court or judge thereof, municipal judge or any magistrate before whom such action or proceeding is pending, may, upon notice, require the plaintiff or defendant to give a new bond, recognizance or undertaking. Every person becoming surety on any such new bond, recognizance or undertaking is liable from the time the original was given, the same as if he or she had been the

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original surety. If any person fails to comply with the order made in the case the adverse party is entitled to any order, judgment, remedy or process to which he or she would have been entitled had no bond, recognizance or undertaking been given at any time.

History: 1977 c. 305.

A precondition for this section to apply is that the bond must at one time have been sufficient. Bruer v. Town of Addison, 194 Wis. 2d 617, 534 N.W.2d 634 (Ct. App. 1995).

895.345 Justification of individual sureties. (1) This section shall apply to any bond or undertaking in an amount of more than $1,000 whereon individuals are offered as sureties, which is authorized or required by any provision of the statutes to be given or furnished in or in connection with any civil action or proceeding in any court of record in this state, in connection with which bond or undertaking real property is offered as security.

(2) Before any such bond or undertaking shall be approved, there shall be attached thereto and made a part of such bond or undertaking a statement under oath in duplicate by the surety that the surety is the sole owner of the property offered by the surety as security and containing the following additional information:

(a) The full name and address of the surety.

(b) That the surety is a resident of this state.

(c) An accurate description by lot and block number, if part of a recorded and filed plat, or by metes and bounds of the real estate offered as security.

(d) A statement that none of the properties offered constitute the homestead of the surety.

(e) A statement of the total amount of the liens, unpaid taxes and other encumbrances against each property offered.

(f) A statement as to the assessed value of each property offered, its market value and the value of the equity over and above all encumbrances, liens and unpaid taxes.

(g) That the equity of the real property is equal to twice the pen- alty of the bond or undertaking.

(3) This sworn statement shall be in addition to and notwith- standing other affidavits or statements of justification required or provided for elsewhere in the statutes in connection with such bonds and undertakings.

History: 1993 a. 486; 1999 a. 96.

Cross−reference: This section does not apply to bonds of personal representa- tives. See s. 856.25.

895.346 Bail, deposit in lieu of bond. When any bond or undertaking is authorized in any civil or criminal action or pro- ceeding, the would−be obligor may, in lieu thereof and with like legal effect, deposit with the proper court or officer cash or certi- fied bank checks or U.S. bonds or bank certificates of deposit in an amount at least equal to the required security; and the receiver thereof shall give a receipt therefor and shall notify the payor bank of any deposits of bank certificates of deposit. Section 808.07 shall govern the procedure so far as applicable.

History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187 s. 135.

This section applies to all bonds, not just bail bonds. Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 68, 556 N.W.2d 697 (1996), 95−1352.

895.35 Expenses in actions against municipal and other officers. (1) Whenever in any city, town, village, school district, technical college district or county charges of any kind are filed or an action is brought against any officer thereof in the offi- cer’s official capacity, or to subject any such officer, whether or not the officer is being compensated on a salary basis, to a personal liability growing out of the performance of official duties, and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated, or in case such officer, without fault on the officer’s part, is subjected to a personal liability as aforesaid, such city, town, village, school district, technical college district or county may pay all reasonable expenses which such officer necessarily expended by reason thereof. Such expenses may likewise be paid, even though decided adversely to such officer, where it appears from the certificate of the trial judge that the action involved the

constitutionality of a statute, not theretofore construed, relating to the performance of the official duties of said officer.

(2) (a) In this subsection:

1. “Criminal proceeding” means an action or proceeding under chs. 967 to 979.

2. “Protective services officer” means an emergency medical services practitioner, as defined in s. 256.01 (5), an emergency medical responder, as defined in s. 256.01 (4p), a fire fighter, or a law enforcement or correctional officer.

(b) 1. Notwithstanding sub. (1), the city, town, village, school district, technical college district, or county shall reimburse a pro- tective services officer for reasonable attorney fees incurred by the officer in connection with a criminal proceeding arising from the officer’s conduct in the performance of official duties unless, in relation to that conduct, any of the following applies:

a. The officer is convicted of a crime.

b. The officer’s employment is terminated for cause.

c. The officer resigns for reasons other than retirement before the attorney fees are incurred.

d. The officer is demoted or reduced in rank.

e. The officer is suspended without pay for 10 or more work- ing days.

2. If a collective bargaining agreement covering the protec- tive services officer defines reasonable attorney fees for the pur- pose of subd. 1., that definition shall apply.

History: 1971 c. 154; 1993 a. 399, 486; 2005 a. 73; 2007 a. 130; 2017 a. 12.

A county has the option to refuse payment of its sheriff’s criminal defense attor- ney’s fees. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 263 N.W.2d 218 (1978).

This section allows a municipality or county to pay an officer’s attorney fees if it so elects. If the municipality refuses payment, the officer has no cause of action against the municipality under this section, even if the municipality had a practice of reimbursing attorney fees and costs incurred and it failed to pay because of political concerns. Murray v. City of Milwaukee, 2002 WI App 62, 252 Wis. 2d 613, 642

N.W.2d 541, 01−0106.

A city may reimburse a commissioner of the city redevelopment authority for legal expenses incurred by the commissioner when charges are filed against the commis- sioner in his or her official capacity seeking the commissioner’s removal from office for cause and the charges are found by the common council to be unsupported. Such reimbursement is discretionary. The city redevelopment authority lacks statutory authority to authorize reimbursement for such legal expenses. 63 Atty. Gen. 421.

A city council can, in limited circumstances, reimburse a council member for rea- sonable attorney fees incurred in defending an alleged violation of the open meeting law, but cannot reimburse the member for any forfeiture imposed. 66 Atty. Gen. 226.

This section applies to criminal charges brought against a former officer for alleged fraudulent filing of expense vouchers. 71 Atty. Gen. 4.

Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating open meetings law. 77 Atty. Gen. 177.

895.36 Process against corporation or limited liability company officer. No process against private property shall issue in an action or upon a judgment against a public corporation or limited liability company or an officer or manager in his or her official capacity, when the liability, if any, is that of the corpora- tion or limited liability company nor shall any person be liable as garnishee of such public corporation or limited liability company.

History: 1993 a. 112; 2005 a. 155.

895.37 Abrogation of defenses in employee personal injury actions. (1) In any action to recover damages for a per- sonal injury sustained within this state by an employee while engaged in the line of the employee’s duty as an employee, or for death resulting from personal injury so sustained, in which recov- ery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:

(a) That the employee either expressly or impliedly assumed the risk of the hazard complained of.

(b) When such employer has at the time of the injury in a com- mon employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.

(c) When such employer has at the time of the injury in a com- mon employment 3 or more employees, that the injury or death

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was caused in whole or in part by the want of ordinary care of the injured employee, where such want of ordinary care was not will- ful.

(2) Any employer who has elected to pay compensation as provided in ch. 102 shall not be subject to this section.

(3) Subsection (1) (a), (b) and (c) shall not apply to farm labor, except such farm labor as is subject to ch. 102.

(4) No contract, rule, or regulation, shall exempt the employer from this section.

History: 1993 a. 486; 2005 a. 155.

The fellow servant defense is not available to a farm employer of a child employed in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194, 255 N.W.2d 314.

895.375 Abrogation of defense that contract was champertous. No action, special proceeding, cross complaint or counterclaim in any court shall be dismissed on the ground that a party to the action is a party to a contract savoring of champerty or maintenance unless the contract is the basis of the claim pleaded.

895.42 Deposit of undistributed money and property by personal representatives and others. (1) (a) In this subsection, “trust company” means any trust company or any state or national bank in this state that is authorized to exercise trust powers.

(b) If in any proceeding in any court of record it is determined that moneys or other personal property in the custody of or under the control of any personal representative, trustee, receiver, or other officer of the court, belongs to a natural person if the person is alive, or to an artificial person if it is in existence and entitled to receive, and otherwise to some other person, and the court finds any of the following, the court may direct the officer having cus- tody or control of the money or property to deposit the money or property with any trust company:

1. That there is not sufficient evidence showing that the natu- ral person first entitled to take is alive, or that the artificial person is in existence and entitled to receive.

2. That the money or other personal property, including any legacy or share of intestate property, cannot be delivered to the person entitled to the money or property because the person is a member of the military or naval forces of the United States or any of its allies or is engaged in any of the armed forces abroad or with the American Red Cross society or other body or similar business.

(c) Any officer depositing money or property with a trust com- pany under par. (b), shall take the trust company’s receipt for the deposit. The receipt shall, to the extent of the deposit, constitute a complete discharge of the officer in any accounting made by the officer in the proceeding.

(2) In case such deposit is directed to be made, the court shall require the trust company or bank in which said deposit is ordered to be made, as a condition of the receipt thereof, to accept and han- dle, manage and invest the same as trust funds to the same extent as if it had received the same as a testamentary trust, unless the court shall expressly otherwise direct, except that the reports shall be made to the court of its appointment.

(3) No distribution of the moneys or personal property so deposited shall be made by the depository as such trustee or other- wise without an order of the court on notice as prescribed by s. 879.03, and the jurisdiction of the court in the proceeding will be continued to determine, at any time at the instance of any party interested, the ownership of said funds, and to order their distribu- tion.

History: 1973 c. 90; 1993 a. 486; 2001 a. 102; 2005 a. 149.

895.43 Intentional killing by beneficiary of contract. The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are gov- erned by s. 854.14.

History: 1981 c. 228; 1987 a. 222; 1997 a. 188.

895.435 Intentional killing by beneficiary of certain death benefits. The rights of a beneficiary to receive benefits payable by reason of the death of an individual killed by the bene- ficiary are governed by s. 854.14.

History: 1981 c. 228; 1987 a. 222; 1997 a. 188.

895.441 Sexual exploitation by a therapist; action for.

(1) DEFINITIONS. In this section:

(a) “Physician” has the meaning designated in s. 448.01 (5).

(b) “Psychologist” means a person who practices psychology, as described in s. 455.01 (5).

(c) “Psychotherapy” has the meaning designated in s. 455.01 (6).

(d) “Sexual contact” has the meaning designated in s. 940.225 (5) (b).

(e) “Therapist” means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

(2) CAUSE OF ACTION. (a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, coun- seling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.

(b) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1) and

815.05 (1g) (a), in an action brought under this section, the plain- tiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall sup- ply the court the name and other necessary identifying informa- tion of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other par- ties to the action, in a manner that reasonably protects the informa- tion from being disclosed to the public.

(c) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:

1. A plaintiff who is using initials in an action under this sec- tion from annoyance, embarrassment, oppression or undue bur- den that would arise if any information identifying the plaintiff were made public.

2. A plaintiff in an action under this section from unreason- ably long, repetitive or burdensome physical or mental examina- tions.

3. The confidentiality of information which under law is con- fidential, until the information is provided in open court in an action under this section.

(3) PUNITIVE DAMAGES. A court or jury may award punitive damages to a person bringing an action under this section.

(4) CALCULATION OF STATUTE OF LIMITATIONS. An action under this section is subject to s. 893.585.

(5) SILENCE AGREEMENTS. Any provision in a contract or agreement relating to the settlement of any claim by a patient against a therapist that limits or eliminates the right of the patient to disclose sexual contact by the therapist to a subsequent thera- pist, the department of safety and professional services, the department of health services, the injured patients and families compensation fund peer review council, or a district attorney is void.

History: 1985 a. 275; 1987 a. 352; 1991 a. 160, 217; 1995 a. 27 s. 9126 (19); 1999

a. 85; 2003 a. 111; 2005 a. 155 s. 62; Stats. 2005 s. 895.441; 2007 a. 20 s. 9121 (6)

(a); 2011 a. 32.

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Under sub. (2), consent is not an issue and, as such, an instruction regarding the victim’s contributory negligence was improper. Block v. Gomez, 201 Wis. 2d 795, 549 N.W.2d 783 (Ct. App. 1996), 94−1085.

This section grants no cause of action against a therapist’s employer. L.L.N. v. Clauder, 203 Wis. 2d 570, 552 N.W.2d 879 (Ct. App. 1996), 95−2084.

Reversed on other grounds. 209 Wis. 2d 674, 704, 563 N.W.2d 434 (1997), 95−2084.

895.442 Sexual exploitation by a member of the clergy; action for. (1) DEFINITIONS. In this section:

(a) “Member of the clergy” has the meaning given in s. 48.981

(1) (cx).

(b) “Religious organization” means an association, confer- ence, congregation, convention, committee, or other entity that is organized and operated for a religious purpose and that is exempt from federal income tax under 26 USC 501 (c) (3) or (d) and any subunit of such an association, conference, congregation, conven- tion, committee, or entity that is organized and operated for a reli- gious purpose.

(c) “Sexual contact” has the meaning given in s. 940.225 (5) (b).

(2) CAUSE OF ACTION. (a) Any person who suffers an injury as a result of sexual contact with a member of the clergy that occurs while the person is under the age of 18 may bring an action against the member of the clergy for all damages caused by that sexual contact.

(b) Any person who may bring an action under par. (a) may bring an action against the religious organization that employed the member of the clergy for all damages caused by that sexual contact if, at the time that the sexual contact occurred, another employee of that religious organization whose duties included supervising that member of the clergy knew or should have known that the member of the clergy previously had sexual contact with a person under the age of 18 and failed to do all of the following:

1. Report that sexual contact under s. 48.981 (3).

2. Exercise ordinary care to prevent similar incidents from occurring.

(c) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1), and

815.05 (1g) (a), in an action brought under this section, the plain- tiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff’s attorney shall sup- ply the court the name and other necessary identifying informa- tion of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other par- ties to the action, in a manner that reasonably protects the informa- tion from being disclosed to the public.

(d) Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect any of the following:

1. A plaintiff who is using initials in an action under this sec- tion from annoyance, embarrassment, oppression, or undue bur- den that would arise if any information identifying the plaintiff were made public.

2. A plaintiff in an action under this section from unreason- ably long, repetitive, or burdensome physical or mental examina- tions.

3. The confidentiality of information which under law is con- fidential, until the information is provided in open court in an action under this section.

(3) CONSENT. Consent is not an issue in an action under this section.

(4) CALCULATION OF STATUTE OF LIMITATIONS. An action under this section is subject to s. 893.587.

(5) SILENCE AGREEMENTS. Any contract or agreement con- cerning the settlement of any claim under this section that limits or eliminates the right of the injured person to disclose the sexual contact described under sub. (2) to another member of the reli- gious organization to which the member of the clergy under sub.

(2) belongs, to a therapist, as defined in s. 895.441 (1) (e), to a per- son listed under s. 48.981 (2) (a), or to a district attorney, is void.

History: 2003 a. 279; 2005 a. 155 s. 63; Stats. 2005 s. 895.442.

895.443 Physical injury, emotional distress, loss or damage suffered by members of certain groups; action for. (1) If a person suffers physical injury to his or her person or emotional distress or damage to or loss of his or her property by reason of conduct that is prohibited under s. 943.012 and that causes damage to any property specified in s. 943.012 (1) to (4) or by reason of conduct that is grounds for a penalty increase under

s. 939.645 (1), the person has a civil cause of action against the person who caused the physical injury, emotional distress, dam- age or loss.

(2) The burden of proof in a civil action under sub. (1) rests with the person who suffers the physical injury, emotional dis- tress, damage or loss to prove his or her case by a preponderance of the credible evidence.

(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover special and general damages, including dam- ages for emotional distress; punitive damages; and costs, includ- ing all reasonable attorney fees and other costs of the investigation and litigation which were reasonably incurred.

(4) A person may bring a civil action under sub. (1) regardless of whether there has been a criminal action related to the physical injury, emotional distress, loss or damage under sub. (1) and regardless of the outcome of any such criminal action.

(5) This section does not limit the right of a person to recover from any parent or parents under s. 895.035.

History: 1987 a. 348; 2003 a. 243; 2005 a. 155 s. 65; Stats. 2005 s. 895.443.

895.444 Injury caused by criminal gang activity; action for. (1) DEFINITIONS. In this section:

(a) “Criminal gang” has the meaning given in s. 939.22 (9).

(b) “Criminal gang activity” has the meaning given in s. 941.38 (1) (b).

(c) “Political subdivision” means a city, village, town or county.

(2) CIVIL CAUSE OF ACTION. (a) The state, a school district or a political subdivision may bring an action in circuit court for any expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources if the expenditure of money by the state, a school district or a political subdivision is the result of criminal gang activity.

(b) Any person who suffers physical injury or incurs property damage or loss resulting from any criminal gang activity has a cause of action for the actual damages sustained. The burden of proof in a civil action under this paragraph rests with the person who suffers the physical injury or property damage or loss to prove his or her case by a preponderance of the credible evidence.

(c) The action may be brought against the criminal gang or against any member, leader, officer or organizer of a criminal gang who participates in a criminal gang activity or who authorizes, causes, orders, ratifies, requests or suggests a criminal gang activ- ity. An action brought under this subsection shall also name as defendants the criminal gang and any criminal gang members that participated in the criminal gang activity. An action brought under this subsection may name, as a class of defendants, all unknown criminal gang members.

(d) The plaintiff may bring a civil action under this subsection regardless of whether there has been a criminal action related to the injury, property damage or loss or expenditure of money under par. (a) or (b) and regardless of the outcome of that criminal action.

(3) SERVICE OF PROCESS. A summons may be served individu- ally upon any member, leader, officer or organizer of a criminal gang by service as provided under s. 801.11 (1), (2), (5) or (6) where the claim sued upon arises out of or relates to criminal gang activity within this state sufficient to subject a defendant to per- sonal jurisdiction under s. 801.05 (2) to (10). A judgment ren-

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dered after service under this subsection is a binding adjudication against the criminal gang.

(4) INJUNCTIVE RELIEF, DAMAGES, COSTS AND FEES. (a) The court, upon the request of the state, a school district or a political subdivision, may grant an injunction restraining an individual from committing an act that would injure the state, a school district or a political subdivision or may order such other relief as the court determines is proper.

(b) The court may order a criminal gang member to divest him- self or herself of any interest or involvement in any criminal gang activity and may restrict a criminal gang member from engaging in any future criminal gang activity.

(c) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (a) in favor of the plaintiff shall include compensatory damages for the expenditure of money for the allocation or reallocation of law enforcement, fire fighting, emergency or other personnel or resources caused by the criminal gang activity and compensation for the costs of the inves- tigation and prosecution and reasonable attorney fees.

(d) In addition to the costs allowed under s. 814.04, a final judgment in an action under sub. (2) (b) in favor of the plaintiff shall include attorney fees and the costs of the investigation and litigation.

(e) The final judgment in favor of the plaintiff in an action under sub. (2) (a) or (b) may include punitive damages assessed against a criminal gang leader, officer, organizer or member who is found to have participated in criminal gang activity.

History: 1993 a. 98; 2005 a. 155 s. 67; Stats. 2005 s. 895.444.

895.445 Damage to certain machines; action for.

(1) An owner of a machine operated by the insertion of coins, cur- rency, debit cards or credit cards that is damaged by a person act- ing with the intent to commit a theft from that machine may bring an action against the person.

(2) The owner has the burden of proving his or her case under sub. (1) by a preponderance of the credible evidence.

(3) If the owner prevails in a civil action under sub. (1), he or she may recover all of the following:

(a) Treble damages.

(b) Costs, including all reasonable attorney fees and other costs of the investigation and litigation that were reasonably incurred.

(4) An owner may bring a civil action under sub. (1) regard- less of whether there has been a criminal action related to the dam- age under sub. (1) and regardless of the outcome of any such crim- inal action.

History: 1995 a. 133; 2005 a. 155 s. 69; Stats. 2005 s. 895.445.

895.446 Property damage or loss caused by crime; action for. (1) Any person who suffers damage or loss by rea- son of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76, or by reason of intentional conduct that occurs on or after April 28, 1998, and that is prohibited under s. 943.201 or 943.203, or by reason of intentional conduct that occurs on or after July 1, 2004, and that is prohibited under s. 943.011, 943.012, or 943.017, has a cause of action against the person who caused the damage or loss.

(2) The burden of proof in a civil action under sub. (1) is with the person who suffers damage or loss to prove a violation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 by a preponderance of the credible evidence. A conviction under s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76 is not required to bring an action, obtain a judgment, or collect on that judgment under this section.

(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:

(a) Actual damages, including the retail or replacement value of damaged, used, or lost property, whichever is greater, for a vio- lation of s. 943.01, 943.011, 943.012, 943.017, 943.20, 943.201, 943.203, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, 943.74, or 943.76.

(b) All costs of investigation and litigation that were reason- ably incurred, including the value of the time spent by any employee or agent of the victim.

(c) Exemplary damages of not more than 3 times the amount awarded under par. (a). No additional proof is required under this section for an award of exemplary damages under this paragraph. (3m) (a) In this subsection, “plant” includes the material

taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.

(b) If the violation of s. 943.01 (1) involves the circumstances under s. 943.01 (2d), the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action and, when determining the damages recoverable under sub. (3), shall include the market value of the plant before the damage or destruc- tion, and the costs of production, research, testing, replacement, and plant development directly related to the plant that has been damaged or destroyed.

(4) Any recovery under this section shall be reduced by the amount recovered as restitution under ss. 800.093 and 973.20 and ch. 938 for the same act or as recompense under s. 969.13 (5) (a) for the same act.

(5) No person may bring a cause of action under both this sec- tion and s. 95.195, 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence. If the plaintiff has a cause of action under both this section and s. 895.449, 943.212, 943.245 or 943.51 regarding the same incident or occurrence, the plaintiff may choose which action to bring. If the plaintiff has a cause of action under both this section and s. 95.195, the plaintiff must bring the action under s. 95.195.

(6) A person is not criminally liable under s. 943.30 for any action brought in good faith under this section.

History: 1995 a. 27; 1997 a. 101; 2001 a. 16, 91; 2003 a. 36, 138; 2005 a. 155 s.

70; Stats. 2005 s. 895.446; 2005 a. 447 s. 1; 2007 a. 96; 2011 a. 186.

Civil theft under this section is an “other civil action” under s. 799.01 (1) (d), not an “action based in tort” under s. 799.01 (1) (cr). The use of the term “civil action” in this section to describe the cause for civil theft indicates that the cause may also be properly characterized as a “civil action” under s. 799.01. This statutory civil theft claim has been specifically distinguished from similar claims of conversion, which sound in tort. Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759,

14−2420.

Attorney fees are included within the meaning of “costs of investigation and litiga- tion” under sub. (3) (b) because Stathus, 2003 WI App 28, has long stood for that proposition and the legislature, despite taking other, subsequent action in this section, has not legislated so as to alter that interpretation. Miller v. Storey, 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14−2420.

Under Wisconsin law the economic loss doctrine does not bar recovery under s. 100.18, but it does bar recovery under s. 895.80 [now s. 895.446], at least under the facts of this case. Dow v. Poltzer, 364 F. Supp. 2d 931 (2005).

895.447 Certain agreements to limit or eliminate tort liability void. (1) Any provision to limit or eliminate tort liabil- ity as a part of or in connection with any contract, covenant or agreement relating to the construction, alteration, repair or main- tenance of a building, structure, or other work related to construc- tion, including any moving, demolition or excavation, is against public policy and void.

(2) This section does not apply to any insurance contract or worker’s compensation plan.

(3) This section shall not apply to any provision of any con- tract, covenant or agreement entered into prior to July 1, 1978.

History: 1977 c. 441; Stats. 1977 s. 895.47; 1977 c. 447; Stats. 1977 s. 895.49;

2005 a. 155 s. 49; Stats. 2005 s. 895.447.

This section did not void an indemnity clause in a contract. Gerdmann v. U.S. Fire Insurance Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984).

This section did not void a subrogation waiver in a contract because the waiver did not limit or eliminate tort liability. “Tort liability” is the legal obligation or responsi- bility to another resulting from a civil wrong or injury for which a remedy may be obtained. The subrogation waiver in this case did not limit or eliminate the legal

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responsibility of the contractors to the property owner for the contractors’ negligent acts. Instead, the subrogation waiver waived the property owner’s right to recover damages from the contractors for their wrongful acts to the extent those damages were covered by a property insurance policy. Collection of damages does not equate with liability. Rural Mutual Insurance Co. v. Lester Buildings, LLC, 2019 WI 70, 387 Wis. 2d 414, 929 N.W.2d 180, 16−1837.

895.448 Safety devices on farm equipment, ordinary negligence. (1) In this section:

(a) “Farm equipment” means a tractor or other machine used in the business of farming.

(b) “Safety device” means a guard, shield or other part that has the purpose of preventing injury to humans.

(2) If a person in the business of selling or repairing farm equipment fabricates a safety device and installs the safety device on used farm equipment, after determining either that the farm equipment was not originally equipped with such a safety device or that a replacement is not available from the original manufac- turer or from a manufacturer of replacements, and notifies the owner or purchaser of the farm equipment that the person fabri- cated the safety device, the person is not liable for claims founded in tort for damages arising from the safety device unless the claim- ant proves, by a preponderance of the evidence, that a cause of the claimant’s harm was the failure to use reasonable care with respect to the design, fabrication, inspection, condition or installation of, or warnings relating to, the safety device.

History: 1993 a. 455; 2005 a. 155 s. 50; Stats. 2005 s. 895.448.

895.449 Action for loss caused by failure to pay for gasoline or diesel fuel. (1) In this section:

(a) “Association” means a membership organization whose membership is composed of retail businesses that sell gasoline or diesel fuel.

(b) “Fuel retailer” means a person who suffers a loss as the result of a violation of s. 943.21 (1m) (d).

(c) “Vehicle owner” means a person who holds the legal title of the vehicle that received gasoline or diesel fuel involved in a violation of s. 943.21 (1m) (d).

(2) Any fuel retailer has a cause of action against a vehicle owner whose vehicle was involved in a violation of s. 943.21 (1m) (d). The fuel retailer may provide an association with an affidavit specifying the time and date that the violation occurred, the regis- tration plate number of the vehicle that received the gasoline or diesel fuel, and the retail value of gasoline or diesel fuel involved in the violation.

(3) Upon receipt by an association of an affidavit under sub. (2), that association may obtain from the department of trans- portation, based on the registration plate number of the motor vehicle that received the gasoline or diesel fuel in violation of s.

943.21 (1m) (d), identifying information regarding the owner of that motor vehicle and may forward the identifying information to the person who provided the affidavit under sub. (2).

(4) The fuel retailer may send a letter by 1st class mail to the vehicle owner at the address obtained under sub. (3), requesting payment of the amount owed for the unpaid gasoline or diesel fuel, plus a service fee that does not exceed $30. The letter shall include the time and date of the violation, the registration plate number of the vehicle that received the gasoline or diesel fuel, and a state- ment that if the vehicle owner fails to pay the amount demanded within 30 days of receipt of the letter, the fuel retailer may com- mence a court action to collect that amount. If a vehicle owner fails to make the payment owed within 30 days of his or her receipt of the letter, the fuel retailer may commence an action in circuit court to collect the amount demanded.

(5) If the fuel retailer prevails in an action brought under this section, the fuel retailer shall be entitled to the amount of the loss incurred, the $30 service fee, and court costs.

History: 2011 a. 186.

895.45 Service representatives for adult abusive con- duct complainants. (1) DEFINITIONS. In this section:

(a) “Abusive conduct” means domestic abuse, as defined under s. 49.165 (1) (a), 813.12 (1) (am), or 968.075 (1) (a), harass- ment, as defined under s. 813.125 (1) (am), sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122 (1) (a), or child abuse under ss. 948.02 to 948.11.

(b) “Complainant” means an adult who alleges that he or she was the subject of abusive conduct or who alleges that a crime has been committed against him or her.

(c) “Service representative” means an individual member of an organization or victim assistance program who provides coun- seling or support services to complainants or petitioners and charges no fee for services provided to a complainant under sub.

(2) or to a petitioner under s. 813.122.

(2) RIGHT TO BE PRESENT. A complainant has the right to select a service representative to attend, with the complainant, hearings, depositions and court proceedings, whether criminal or civil, and all interviews and meetings related to those hearings, depositions and court proceedings, if abusive conduct is alleged to have occurred against the complainant or if a crime is alleged to have been committed against the complainant and if the abusive con- duct or the crime is a factor under s. 767.41 or is a factor in the complainant’s ability to represent his or her interest at the hearing, deposition or court proceeding. The complainant shall notify the court orally, or in writing, of that selection. A service representa- tive selected by a complainant has the right to be present at every hearing, deposition and court proceeding and all interviews and meetings related to those hearings, depositions and court proceed- ings that the complainant is required or authorized to attend. The service representative selected by the complainant has the right to sit adjacent to the complainant and confer orally and in writing with the complainant in a reasonable manner during every hear- ing, deposition or court proceeding and related interviews and meetings, except when the complainant is testifying or is repre- sented by private counsel. The service representative may not sit at counsel table during a jury trial. The service representative may address the court if permitted to do so by the court.

(3) FAILURE TO EXERCISE RIGHT NOT GROUNDS FOR APPEAL. The failure of a complainant to exercise a right under this section is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.

History: 1991 a. 276; 1995 a. 220; 2001 a. 109; 2005 a. 155 s. 64; Stats. 2005 s.

895.45; 2005 a. 443 s. 265; 2007 a. 20; 2015 a. 253.

895.453 Payments of chiropractic services from attor- ney contingency fees. (1) In this section:

(a) “Chiropractor” means a person licensed under ch. 446.

(b) “Motor vehicle” means a vehicle, including a combination of 2 or more vehicles or an articulated vehicle, which is self−pro- pelled, except a vehicle operated exclusively on a rail.

(2) Notwithstanding s. 803.03, if all of the following condi- tions exist, fees for chiropractic services provided to an injured person shall be paid out of the amount of fees due to his or her attorney under the contingency fee arrangement made between the person and the attorney:

(a) The person is injured as the result of a motor vehicle acci- dent.

(b) The services were provided by a chiropractor because of the injuries arising from the motor vehicle accident.

(c) The person is represented by an attorney under a contin- gency fee arrangement.

(d) The person receives an amount under a settlement agree- ment that is less than his or her damages.

(e) Prior to the person’s acceptance of the settlement agree- ment, the chiropractor has not been paid for his or her services and has provided written notification to the person’s attorney of the services that were provided to the person.

(3) Except as provided in sub. (4), if the conditions under sub.

(2) are met, the distribution of the amount due under the contin-

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gency fee arrangement shall be allocated on a pro rata basis between the person’s attorney and each chiropractor who pro- vided services, based on the percentage obtained by comparing the outstanding fees owed to the attorney and each chiropractor to the aggregate outstanding attorney and chiropractic fees.

(4) This section does not apply if any of the following exist:

(a) The chiropractor is eligible for payment for the services provided to the person under any health insurance contract or self− insured health plan.

(b) The chiropractor is eligible for payment for the services provided to the person under any governmental health plan or pro- gram, including Medicaid or Medicare.

History: 2011 a. 32.

895.455 Limits on recovery by prisoners. A prisoner, as defined in s. 801.02 (7) (a) 2., may not recover damages for mental or emotional injury unless the prisoner shows that he or she has suffered a physical injury as a result of the same incident that caused the mental or emotional injury.

History: 1997 a. 133; 2005 a. 155 s. 66; Stats. 2005 s. 895.455.

895.457 Limiting felon’s right to damages. (1) In this section:

(a) “Crime” means a crime under the laws of this state or under federal law.

(b) “Damages” means damages for an injury to real or personal property, for death, or for personal injury.

(c) “Felony” means a felony under the laws of this state or under federal law.

(d) “Victim” means a person against whom an act constituting a felony was committed.

(2) No person may recover damages from any of the following persons for injury or death incurred while committing, or as a result of committing, an act that constituted a felony, if the person was convicted of a felony for that act:

(a) A victim of that felony.

(b) An individual other than a victim of that felony who assisted or attempted to assist in the prevention of the act, who assisted or attempted to assist in the protection of the victim, or who assisted or attempted to assist in the apprehension or deten- tion of the person committing the act unless the individual who assisted or attempted to assist is convicted of a crime as a result of his or her assistance or attempted assistance.

(3) This section does not prohibit a person from recovering damages for death or personal injury resulting from a device used to provide security that is intended or likely to cause great bodily harm, as defined in s. 939.22 (14), or death.

(4) (a) Any applicable statute of limitations for an action to recover damages against a person described under sub. (2) (a) or

(b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceed- ing charging the person who committed the act with a felony for that act and ending with the final disposition, as defined in s.

893.13 (1), of the criminal proceeding.

(b) Any applicable statute of limitations for an action to recover damages from an individual described under sub. (2) (b) for injury or death incurred while committing, or as a result of committing, an act that constituted a felony is tolled during the period beginning with the commencement of a criminal proceed- ing charging the individual described under sub. (2) (b) with a crime as a result of his or her assistance or attempt to assist and ending with the final disposition, as defined in s. 893.13 (1), of the criminal proceeding. This paragraph does not apply if a criminal proceeding described in par. (a) does not result in a felony convic- tion and there is no other criminal proceeding described under par.

(a) pending.

(5) A court may stay a civil action described under sub. (2) until the final disposition of a criminal proceeding described under sub. (4).

History: 2003 a. 87; 2005 a. 155 s. 68; Stats. 2005 s. 895.457.

895.46 State and political subdivisions thereof to pay judgments taken against officers. (1) (a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee, except as provided in s. 146.89 (4), in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be cov- ered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defend- ing the action, unless it is found by the court or jury that the defendant officer or employee did not act within the scope of employment. Except as provided in s. 146.89 (4), the duty of a governmental unit to provide or pay for the provision of legal rep- resentation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employee or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state’s sovereign immunity to suit. Failure by the officer or employee to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employee as soon as reasonably possible is a bar to recovery by the officer or employee from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employee legal counsel and the offer is refused by the defendant officer or employee. If the officer, employee or agent of the state refuses to cooperate in the defense of the litigation, the officer, employee or agent is not eligible for any indemnification or for the provision of legal coun- sel by the governmental unit under this section.

(am) If a court determines that costs are awardable to an employee or official who has been provided representation by a governmental unit under par. (a), the court shall award those costs to the unit of government that provided the representation.

(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:

1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under s. 165.85

(4) (a) 1. and, if applicable, the recertification programs under s.

165.85 (4) (a) 7., or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or

2. At least 5 years of full−time employment as a law enforce- ment officer, as defined in s. 165.85 (2) (c).

(c) This subsection does not apply to any action or special pro- ceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.

(d) On and after March 1, 1983, all persons employed as dep- uty sheriffs, as defined in s. 40.02 (48) (b) 3., are covered by this subsection. The county board shall adopt written policies for pay- ments under this subsection on behalf of any other person, pro- vided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in s. 165.85 (2) (c),

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and the county may make the payments upon approval by the county board.

(dm) All security officers employed by the department of mili- tary affairs who are deputed under s. 59.26 (4m) are covered by this section while acting within the scope of their duties assigned under s. 59.26 (4m), as if they were state employees acting within the scope of their state employment.

(e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employees and agents of such a corporation, and any local emergency planning committee appointed by a county board under s. 59.54 (8) (a) and all members of such a committee, are state officers, employees or agents for the purposes of this subsec- tion.

(2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the direc- tions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for dam- ages and costs entered against the town officer.

(3) The protection afforded by this section shall apply to any state officer, employee or agent while operating a state−owned vehicle for personal use in accordance with s. 20.916 (7).

(4) The protection afforded by this section applies to members of the board of governors created under s. 619.04 (3), members of a committee or subcommittee of that board of governors, mem- bers of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and persons consult- ing with that council under s. 655.275 (5) (b), with respect to judg- ments, attorney fees, and costs awarded before, on, or after April 25, 1990.

(5) The protection afforded by this section applies to any of the following:

(a) A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89 (5) (a), for the provision of those services.

(am) A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04.

(b) A physician under s. 251.07 or 252.04 (9) (b).

(6) The protection afforded by this section applies to any crim- inal action under s. 291.97 (2) or 293.87 (2) or under 7 USC 136L (b), 15 USC 2616 (b), 33 USC 1319 (c), 42 USC 2284, 6928 (d) and (e), 6973 (b), 6992 (b) and (c), 7413 (c), 9603 (b), 9606 (b) and 11045 (b) or 49 USC 5124 that is commenced against a state offi- cer or state employee who is proceeded against in his or her offi- cial capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous sub- stances, as defined in s. 289.01 (11), if that officer or employee is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employee acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this sec- tion applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protec- tion includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.

(7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under s. 175.46.

(8) The protection afforded by this section applies to any owner of land within a drainage district established under ch. 88 who undertakes work on a drain if the work is approved by the drainage board.

(9) (a) The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in connection with a John Doe proceeding under s. 968.26 (2) arising from the officer’s or employee’s con- duct in the performance of official duties if all the following apply:

1. The officer or employee was acting within the scope of his or her employment.

2. The officer or employee is not convicted of a crime arising from the conduct that is the subject of any criminal complaint issued under s. 968.26 (2) (d).

(b) The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in defending a criminal complaint issued under s.

968.26 (2) (d) arising from the officer’s or employee’s conduct in the performance of official duties if all of the following apply:

1. The officer or employee was acting within the scope of his or her employment.

2. The officer or employee is not convicted of a crime arising from the conduct that is the subject of the criminal complaint issued under s. 968.26 (2) (d).

(10) Any employee of the state of Minnesota who is named as a defendant and who is found liable as a result of performing ser- vices for this state under a valid agreement between this state and the state of Minnesota providing for interchange of employees or services shall be indemnified by this state to the same extent as an employee of this state performing the same services for this state pursuant to this section.

History: 1973 c. 333; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s.

895.45; 1975 c. 81, 198, 199; Stats. 1975 s. 895.46; 1977 c. 29; 1979 c. 74, 221; 1981

c. 20; 1981 c. 96 s. 67; 1981 c. 314 s. 136; 1983 a. 6; 1983 a. 27 s. 2202 (32); 1985

a. 29, 66; 1987 a. 342; 1987 a. 403 s. 256; 1989 a. 31, 115, 187, 206, 359; 1991 a. 245,

269; 1993 a. 27, 28, 49, 238, 456, 490; 1995 a. 201, 227, 411; 1997 a. 35; 1999 a. 185;

2003 a. 111; 2005 a. 96; 2007 a. 79, 130; 2009 a. 24, 42, 93, 154; 2011 a. 32; 2013

a. 214, 241.

Cross−reference: See s. 775.06 for special procedure applying to state law enforcement officers.

Highway commission [now transportation dept.] supervisors who are responsible for the placement of highway warning signs may be sued if a sign is not placed in accordance with commission rules. They cannot claim the state’s immunity from suit. Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673 (1973).

“Litigation” under sub. (1) refers only to civil proceedings. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 263 N.W.2d 218 (1978).

Mandatory payment under sub. (1) did not apply to an official who was sued for illegally retaining his salary due to an alleged failure to comply with the statutory requirements for a bond and oath of office. The official was not acting in his official capacity when filing the bond or taking the oath or in defending a related suit. Thuermer v. Village of Mishicot, 86 Wis. 2d 374, 272 N.W.2d 409 (Ct. App. 1978).

An insurer of public employees had no right of recovery under s. 270.58 (1) [now

s. 895.46 (1)]. Horace Mann Insurance Co. v. Wauwatosa Board of Education, 88 Wis. 2d 385, 276 N.W.2d 761 (1979).

The state could not be sued as an indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight, 93 Wis. 2d 337, 286 N.W.2d 824 (1980).

The state may not be sued directly for the tortious acts of its employees. Miller v. Smith, 100 Wis. 2d 609, 302 N.W.2d 468 (1981).

The “color of law” element of 42 USC 1983 lawsuit is not identical to the “scope of employment” element under sub. (1). Cameron v. Milwaukee, 102 Wis. 2d 448, 307 N.W.2d 164 (1981).

Whether alderpersons were acting within the scope of their employment was inap- propriately decided by summary judgment. Schroeder v. Schoessow, 108 Wis. 2d 49, 321 N.W.2d 131 (1982).

Once a governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay, 112 Wis. 2d 609, 334 N.W.2d 235 (1983).

Sub. (1) applied to a forfeiture action against a police officer. Crawford v. City of Ashland, 134 Wis. 2d 369, 396 N.W.2d 781 (Ct. App. 1986).

“Any action” in sub. (1) (a) means a trial in which the issue of “scope of employ- ment” is essential and evidence on the issue is introduced and argued. Desotelle v. Continental Cas. Co., 136 Wis. 2d 13, 400 N.W.2d 524 (Ct. App. 1986).

In “scope of employment” cases under sub. (1) (a), consideration must be given to whether the employee was “actuated,” in some measure, by a purpose to serve the employer. Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 (1990).

A former school employee sued by the school district over her employment con- tract was not entitled to costs under sub. (1) (a). Pardeeville Area School District v. Bomber, 214 Wis. 2d 397, 571 N.W.2d 189 (Ct. App. 1997), 97−1469.

Voting members of a commission created by two villages were public officers pro- tected by s. 895.46 (1). 74 Atty. Gen. 208.

Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent that they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating the open meetings law. 77 Atty. Gen. 177.

The University of Wisconsin has no authority to agree to hold harmless a county that incurs liability because of a university officer’s torts, but common law would require the officer to indemnify the county and statutory indemnification would require the state to indemnify the officer when acting in the scope of employment. 78 Atty. Gen. 1.

State Emergency Response Board Committee and Local Emergency Planning Committee subcommittee members appointed by a county board are entitled to

895.46 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 24

indemnity for damage liability under s. 895.46 and legal representation by the attor- ney general under s. 165.25. 81 Atty. Gen. 17.

Members of the Investment Board, Employee Trust Fund Board, Teachers Retire- ment Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under s. 893.82 and are entitled to the state’s indemnification for liability under this section. OAG 2−06. An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if he or she is carrying out duties within the scope

of his or her employment. OAG 9−09.

This section may require indemnification for actions that are not intended to bene- fit the employer when those actions further the objectives of employment. Hibma v. Odegaard, 769 F.2d 1147 (1985).

Section 893.80 (4) bars direct suits against municipalities for the torts of their employees. It does not preclude suing the officer directly and using s. 895.46 to indi- rectly recover from the municipality. Graham v. Sauk Prairie Police Commission. 915 F.2d 1085 (1990).

An employee can misuse or exceed his or her authority while still acting within the scope of his or her employment. Graham exemplifies the principle that a police offi- cer can grossly exceed his authority to use force and still be found to have acted within the scope of employment. Javier v. City of Milwaukee, 670 F.3d 823 (2012).

Sub. (1) does not prevent a state official from asserting “good faith” as a defense to a charge of infringement of civil rights. Clarke v. Cady, 358 F. Supp. 1156 (1973).

The purpose of this section is not to transform any suit against a state employee into a suit against the state, but to shield state employees from monetary loss in tort suits. Ware v. Percy, 468 F. Supp. 1266 (1979).

A county could not be held liable for a civil rights judgment against a county judge when the judgment held that the judge was not carrying out duties of the office at the relevant time. Harris v. County of Racine, 512 F. Supp. 1273 (1981).

If an employee is part of an inter−municipal team under s. 66.305 [now s. 66.0313], the agency requesting the team’s services is the de facto employer for purposes of indemnification under this section. Leibenstein v. Crowe, 826 F. Supp. 1174 (1992). A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. constitution does not apply.

Abraham v. Piechowski, 13 F. Supp. 2d 1023 (1998).

895.463 Zoning ordinances. In any matter relating to a zon- ing ordinance or shoreland zoning ordinance enacted or enforced by a city, village, town, or county, the court shall resolve an ambi- guity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.

History: 2015 a. 391.

895.47 Indemnification of the Wisconsin State Agen- cies Building Corporation and the Wisconsin State Pub- lic Building Corporation. If the Wisconsin State Agencies Building Corporation or the Wisconsin State Public Building Cor- poration is the defendant in an action or special proceeding in its capacity as owner of facilities occupied by any department or agents of any department of state government, the judgment as to damages and costs shall be paid by the state from the appropriation made under s. 20.865 (1) (fm). The state, when it does not provide legal counsel to the defendant, its members, officers or employ- ees, shall pay reasonable attorney fees and costs of defending the action regardless of the results of the litigation, unless the court or jury finds that the member, officer or employee did not act within the scope of that person’s employment. Failure by the defendant to give notice to the department of justice of an action or special proceeding commenced against it, its members, officers or employees as soon as reasonably possible shall bar recovery by the defendant, its members, officers or employees from the state under this section. Attorney fees and expenses may not be recov- ered if the state offers the member, officer or employee legal coun- sel and the offer is refused.

History: 1977 c. 344, 447.

895.472 Indemnification of a financial institution. A financial institution, as defined in s. 943.80 (2), that compensates a customer for a pecuniary loss resulting from a financial crime, as defined in s. 943.80 (1), or assumes the loss, may bring a civil action against the person who committed the crime to recover the amount of the loss, any other damages incurred by the financial institution as a result of the crime, and the costs incurred to bring the action, including attorney’s fees.

History: 2005 a. 212 s. 2; 2007 a. 97 s. 239.

SUBCHAPTER II

EXEMPTIONS FROM, AND LIMITATIONS ON, LIABILITY

895.475 Exemption from civil liability for furnishing safety inspection or advisory services. The furnishing of, or failure to furnish, safety inspection or advisory services intended to reduce the likelihood of injury, death or loss shall not subject a state officer, employee or agent, or an insurer, the insur- er’s agent or employee undertaking to perform such services as an incident to insurance, to liability for damages from injury, death or loss occurring as a result of any act or omission in the course of the safety inspection or advisory services. This section shall not apply if the active negligence of the state officer, employee or agent, or of the insurer, the insurer’s agent or employee created the condition that was the proximate cause of injury, death or loss. This section shall not apply to an insurer, the insurer’s agent or employee performing the safety inspection or advisory services when required to do so under the provisions of a written service contract.

History: 1991 a. 39; 2005 a. 155 s. 42; Stats. 2005 s. 895.475.

A “written service contract” is a contract that obligates the insurer to provide loss control services to an insured. Samuels Recycling Co. v. CNA Insurance Cos., 223 Wis. 2d 233, 588 N.W.2d 385 (Ct. App. 1998), 97−3511.

895.478 Civil liability exemption; opioid antagonists.

(1) In this section:

(a) “Administer” has the meaning given in s. 118.29 (1) (a).

(b) “Health care professional” has the meaning given in s. 118.29 (1) (c).

(c) “High degree of negligence” has the meaning given in s. 118.29 (1) (d).

(d) “Opioid antagonist” has the meaning given in s. 450.01 (13v).

(e) “Opioid−related drug overdose” has the meaning given in s. 256.40 (1) (d).

(f) “Residence hall director” means the individual employed by any of the following to reside at a residence hall for students and oversee the management and operation of the hall:

1. The University of Wisconsin System.

2. A technical college district.

3. The governing body of a private nonprofit institution of higher education located in this state.

(2) Notwithstanding chs. 441, 447, 448, and 450, a residence hall director may administer an opioid antagonist to any student or other person who appears to be undergoing an opioid−related drug overdose if all of the following are satisfied:

(a) The residence hall director has received training on the administration of opioid antagonists that is approved by his or her employer specified in sub. (1) (f) 1., 2., or 3.

(b) As soon as practicable after administering the opioid antag- onist, the residence hall director reports the drug overdose by dial- ing the telephone number “911” or, in an area in which the tele- phone number “911” is not available, the telephone number for an emergency medical service provider.

(3) A residence hall director is immune from civil liability for his or her acts or omissions in administering an opioid antagonist under sub. (2) unless the act or omission constitutes a high degree of negligence. This subsection does not apply to a residence hall director who is a health care professional.

(4) An employer specified in sub. (1) (f) 1., 2., or 3. who approves training required under sub. (2) (a) for the administra- tion of opioid antagonists by a residence hall director is immune from civil liability for the act of approval unless it constitutes a high degree of negligence.

History: 2017 a. 29.

895.48 Civil liability exemption; emergency medical care. (1) Except as provided in sub. (1g), any person who ren- ders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care.

(1g) The immunity described in sub. (1) and s. 450.11 (1i) (c)

3. does not extend when employees trained in health care or health care professionals render emergency care for compensation and

25 Updated 17−18 Wis. Stats.

DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI-

SIONS

895.4802

within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities, or at a physician’s office.

(1m) (a) Except as provided in par. (b), any physician, physi- cian assistant, podiatrist, or athletic trainer licensed under ch. 448, chiropractor licensed under ch. 446, dentist licensed under ch. 447, emergency medical services practitioner licensed under s. 256.15, emergency medical responder certified under s. 256.15 (8), registered nurse licensed under ch. 441, or a massage therapist or bodywork therapist licensed under ch. 460 who renders volun- tary health care to a participant in an athletic event or contest spon- sored by a nonprofit corporation, as defined in s. 66.0129 (6) (b), a private school, as defined in s. 115.001 (3r), a tribal school, as defined in s. 115.001 (15m), a public agency, as defined in s. 46.856 (1) (b), or a school, as defined in s. 609.655 (1) (c), is immune from civil liability for his or her acts or omissions in ren- dering that care if all of the following conditions exist:

1. The health care is rendered at the site of the event or contest, during transportation to a health care facility from the event or contest, or in a locker room or similar facility immediately before, during or immediately after the event or contest.

2. The physician, podiatrist, athletic trainer, chiropractor, dentist, emergency medical services practitioner, as defined in s.

256.01 (5), emergency medical responder, as defined in s. 256.01 (4p), physician assistant, registered nurse, massage therapist or bodywork therapist does not receive compensation for the health care, other than reimbursement for expenses.

(b) Paragraph (a) does not apply to health care services pro- vided by a volunteer health care provider under s. 146.89.

(4) (ag) In this subsection:

1. “Cardiac arrest” means the sudden cessation of cardiac function and the disappearance of arterial blood pressure that con- note ventricular fibrillation or pulseless ventricular tachycardia.

2. “Pulseless ventricular tachycardia” means a disturbance in the normal rhythm of the heart that is characterized by rapid elec- trical activity of the heart with no cardiac output.

(am) Any of the following, other than an emergency medical services practitioner or an emergency medical responder — defi- brillation, is immune from civil liability for the acts or omissions of a person in rendering in good faith emergency care by use of an automated external defibrillator to an individual who appears to be in cardiac arrest:

1. The person who renders the care.

2. The owner of the automated external defibrillator.

3. The person who provides the automated external defibril- lator for use, if the person ensures that the automated external defi- brillator is maintained and tested in accordance with any opera- tional guidelines of the manufacturer.

4. Any person who provides training in the use of an auto- mated external defibrillator to the person who renders care.

(b) The immunity specified in par. (am) does not extend to any of the following:

1. A person whose act or omission resulting from the use or the provision for use of the automated external defibrillator con- stitutes gross negligence.

2. A health care professional who renders emergency care for compensation and within the scope of his or her usual and custom- ary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of an emergency or accident, enroute to a hospital or other institution equipped with hospital facilities or at a physician’s office.

History: 1977 c. 164; 1987 a. 14; 1989 a. 31; 1993 a. 109; 1995 a. 227; 1997 a.

67, 156, 191; 1999 a. 7, 9, 32, 56, 186; 2001 a. 74; 2003 a. 33; 2005 a. 155, 188, 486;

2007 a. 130; 2009 a. 113, 302, 355; 2011 a. 260; 2013 a. 200; 2017 a. 12.

Whatever the precise scope of “scene of any emergency or accident” in sub. (1), the phrase is sufficiently broad to include the defendant’s home when the injured, bleeding plaintiff arrived after being hurt in an incident involving an all−terrain vehi- cle in nearby woods. In the circumstances of the case, “emergency care” under sub.

(1) refers to the initial evaluation and immediate assistance, treatment, and inter-

vention rendered to the plaintiff during the period before care could be transferred to professional medical personnel. Mueller v. McMillian Warner Insurance Co., 2006 WI 54, 290 Wis. 2d 571, 714 N.W.2d 183, 05−0121.

There are 3 requirements before sub. (1) relieves a person from liability: 1) emer- gency care must be rendered at the scene of the emergency; 2) the care rendered must be emergency care; and 3) any emergency care must be rendered in good faith. Clay- ton v. American Family Mutual Insurance Co., 2007 WI App 228, 305 Wis. 2d 766, 741 N.W.2d 297, 07−0051.

The “Good Samaritan” law is discussed. 67 Atty. Gen. 218.

Incidental benefits received by volunteer members of the National Ski Patrol in exchange for rendering emergency care to disabled skiers may result in a loss of civil liability immunity under the Good Samaritan law. 79 Atty. Gen. 194.

The Good Samaritan statute. 62 MLR 469 (1979).

The Good Samaritan Statute: Civil Liability Exemptions for Emergency Care. Szymanski. Wis. Law. July 2007.

895.4801 Immunity for health care providers during COVID−19 emergency. (1) DEFINITIONS. In this section:

(a) “Health care professional” means an individual licensed, registered, or certified by the medical examining board under subch. II of ch. 448 or the board of nursing under ch. 441.

(b) “Health care provider” has the meaning given in s. 146.38

(1) (b) and includes an adult family home, as defined in s. 50.01 (1).

(2) IMMUNITY. Subject to sub. (3), any health care profes- sional, health care provider, or employee, agent, or contractor of a health care professional or health care provider is immune from civil liability for the death of or injury to any individual or any damages caused by actions or omissions that satisfy all of the fol- lowing:

(a) The action or omission is committed while the professional, provider, employee, agent, or contractor is providing services dur- ing the state of emergency declared under s. 323.10 on March 12, 2020, by executive order 72, or the 60 days following the date that the state of emergency terminates.

(b) The actions or omissions relate to health services provided or not provided in good faith or are substantially consistent with any of the following:

1. Any direction, guidance, recommendation, or other state- ment made by a federal, state, or local official to address or in response to the emergency or disaster declared as described under par. (a).

2. Any guidance published by the department of health ser- vices, the federal department of health and human services, or any divisions or agencies of the federal department of health and human services relied upon in good faith.

(c) The actions or omissions do not involve reckless or wanton conduct or intentional misconduct.

(3) APPLICABILITY. This section does not apply if s. 257.03, 257.04, 323.41, or 323.44 applies.

History: 2019 a. 185.

895.4802 Civil liability exemption; hazardous materi- als. (1) In this section:

(a) “Discharge” has the meaning given under s. 292.01 (3).

(b) “Hazardous substance” has the meaning given under s.

299.01 (6).

(c) “Hazardous substance prediction” means any declaration or estimate of the likely spread or impact of an actual discharge of a hazardous substance that is based on meteorological, mathemat- ical, computer or similar models.

(d) “Hazardous substance predictor” means any person who makes a hazardous substance prediction pursuant to a contract or agreement with a public agency or pursuant to a contract or agree- ment with a person who possesses or controls hazardous sub- stances for the purpose of assisting that person in supplying a pub- lic agency with a hazardous substance prediction in the event of an actual discharge of a hazardous substance.

(2) Any person is immune from civil liability for his or her good faith acts or omissions related to assistance or advice which the person provides relating to an emergency or a potential emer- gency regarding either of the following:

895.4802 DAMAGES, LIABILITY, MISCELLANEOUS COURT PROVI- SIONS

Updated 17−18 Wis. Stats. 26

(a) Mitigating or attempting to mitigate the effects of an actual or threatened discharge of a hazardous substance.

(b) Preventing or cleaning up or attempting to prevent or clean up an actual or threatened discharge of a hazardous substance.

(3) The immunity under sub. (2) does not extend to any per- son: